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  • TRADE-MARK CASES. UNITED STATES v. STEFFENS; UNITED STATES v. WITTEMANN; UNITED STATES v. JOHNSON. | Supreme Court | LII / Legal Information Institute
    the great markets of the world is so generally recognized and they are considered as so vitally important to the protection of commerce that they have been made the subject of treaties between the United States and France the German Empire Belgium Austria Russia and other powers The English Merchandise Marks Act of 1862 affords the same protection to foreigners that it does to the subjects of Great Britain Browne Trade Marks p 565 3 The subject of trade marks is not one of local but of common interest to all commercial nations Their operation and the benefits derived from their use are not confined to particular localities States or countries They not only admit but in order to their efficiency require uniformity of regulation 4 Congress has endeavored to effect this uniformity first by providing for the registration of trade marks and as remedies for the violation of the owners rights in them an action on the case for damages and a bill in equity to enjoin the offending party Sects 4937 4941 4942 Rev Stat But these civil remedies proved inadequate to effectually prevent pirating upon trade marks They do not materially differ from those which previously existed Congress then following the examples of Prussia France and England Browne Trade Marks pp 560 572 passed the act of Aug 14 1876 19 Stat 141 The offences therein defined are charged in the indictments and the information Further specification is unnecessary for the demurrers are general and the ground of each is that the entire act is unconstitutional Its constitutionality in its application to the trade marks of the subjects of foreign countries is the question presented by the indictments The purpose and the natural and reasonable effect of the acts are to protect the producer or the importer of foreign goods in his right of selling them in the United States and thus carry out in good faith and enforce our treaty stipulations on the subject The act is a regulation of foreign commerce The convention with France of the 16th of April 1869 16 Stat 771 forbids the reproduction in either of the two countries of the trade marks affixed to merchandise in the other and gives the injured party an action for damages just as if he were a citizen or subject of the country where the act of counterfeiting was committed It provides in the second article that the owners of trade marks residing in either of the two countries in order to secure their rights in the other must deposit duplicate copies of their marks in the Patent Office at Washington and in the clerk s office of the Tribunal of Commerce of the Seine at Paris Here is a mutual covenant concerning trade marks Whatever protection the laws of either country give to its own citizens or subjects is extended to the citizens or subjects of the other Such is the intent of the treaty The law of France of June 23 1857 provides not only a civil action but also a criminal proceeding which prescribes severe penalties against those who counterfeit trade marks or in any way fraudulently deal in false representations of trade marks It declares that foreigners shall equally enjoy its benefits for their products if in their countries diplomatic conventions have established reciprocity of French marks Browne Trade Marks 569 Congress in order to afford an effective remedy for the evil and extend the same protection to French importers that France gives to our producers and merchants in her markets has enacted that the forger of trade marks and the dealer in forged trade marks shall answer at the bar of criminal justice in the courts of the United States The end is lawful within the power of Congress the means are appropriate But it is said that in passing the statutes of Aug 14 1876 and July 8 1870 Congress has exceeded its power because in their application they cover cases arising wholly within the several States and make acts committed within their jurisdiction acts which are not directed against the operations of the general government crimes against the United States that they not only regulate foreign and inter state commerce but affect the domestic concerns of the several States The fraudulent dealing in trade marks plainly interferes with and thwarts the power and duty of the United States to protect foreign and inter state trade Moreover it is impossible to limit the effect of the wrong doing within the confines of a State It extends to all places where there is a market for the goods which are simulated by the false device But the answer to the objection is that the subject of these statutes is a general interest of commerce upon which Congress has power to legislate The operation of trade marks is coextensive with trade and it is no objection to the law regulating them that it touches the internal concerns of a State In the Wheeling Bridge Case 18 How 421 it was observed by the court It will not do to say that the exercise of an admitted power of Congress conferred by the Constitution is to be withheld if it appears or can be shown that the effect and operation of the law may incidentally extend beyond the limitation of the power Upon any such interpretation the principal object of the framers of the instrument in conferring the power would be sacrificed to the subordinate consequences resulting from its exercise The power of Congress to tax imports is exclusive and yet this constitutional provision very seriously limits the power of the States over their internal affairs It was held in Brown v Maryland 12 Wheat 419 that the States can in no way or manner tax the sale of imported goods before they are incorporated and mixed up with the mass of the property of the country Mr Justice Strong delivering the opinion of the court in State Tax on Railway Gross Receipts 15 Wall 284 construes the ruling in Brown v Maryland as applying to other persons than the importers who sell foreign goods by unbroken bale or package See also Welton v State of Missouri 91 U S 275 Here it is very plain that by this authoritative exposition of the Constitution not only the power of a State over its internal commerce but its right to tax property within its jurisdiction is interfered with and limited So where States in the exercise of their power to legislate concerning the police morals or health of the community have endeavored to regulate the sale of particular articles as of spirituous liquors their laws are invalid so far as they affect the sale of imported goods by the importer while they are in the original package and not mixed up with the general mass of salable commodities License Cases 5 How 504 Commonwealth v Kimball 24 Pick Mass 359 In License Cases the court decided that a State might regulate the sale of liquors in the original packages as imported from another State in the absence of legislation by Congress upon the same subject but when Congress exercised its power to regulate inter state commerce State laws so far as they conflict with the action of Congress must yield Here too the power of the States over their internal concerns is materially diminished So also in regard to the regulation of pilotage That is within the power of Congress Cooley v Board of Wardens 12 How 299 A general law regulating pilotage upon all the navigable waters of the United States materially affects the internal commerce of many States and yet parties have been indicted and convicted for a violation of its provisions United States v Farnham 2 Blatch 528 United States v Warren 4 McLean 463 United States v Taylor 5 id 242 In the regulation of trade with the Indian tribes the action of the law especially when the Constitution was adopted was chiefly within a State but the court asserted that the power of Congress comprehends navigation within the limits of every State in the Union so far as that navigation may be in any manner connected with commerce with foreign nations or among the several States or with the Indian tribes Gibbins v Ogden 9 Wheat 1 In this connection I refer to United States v Holliday 3 Wall 407 and United States v Forty three Gallons of Whiskey 93 U S 188 Congress having power to legislate upon the subject of trade marks as a general interest of commerce it is submitted that the legislation of Congress the purpose of which is to give them uniform protection throughout the country is constitutional however it may affect the internal affairs of the States If it be insisted by the defendants that the act by its terms can also be applied to trade marks for goods not intended for inter state or foreign commerce the reply is that excluding from operation the provisions which are in that regard objectionable a valid enactment susceptible of being enforced in all proper cases may remain Where a law which is constitutional under certain limitations exceeds them it may still be operative within its legitimate sphere and be void only for the excess Mr George Hoadly contra TOP MR JUSTICE MILLER delivered the opinion of the court The three cases whose titles stand at the head of this opinion are criminal prosecutions for violations of what is known as the trade mark legislation of Congress The first two are indictments in the southern district of New York and the last is an information in the southern district of Ohio In all of them the judges of the circuit courts in which they are pending have certified to a difference of opinion on what is substantially the same question namely are the acts of Congress on the subject of trade marks founded on any rightful authority in the Constitution of the United States The entire legislation of Congress in regard to trade marks is of very recent origin It is first seen in sects 77 to 84 inclusive of the act of July 8 1870 entitled An Act to revise consolidate and amend the statutes relating to patents and copyrights 16 Stat 198 The part of this act relating to trade marks is embodied in chap 2 tit 60 sects 4937 to 4947 of the Revised Statutes It is sufficient at present to say that they provide for the registration in the Patent Office of any device in the nature of a trade mark to which any person has by usage established an exclusive right or which the person so registering intends to appropriate by that act to his exclusive use and they make the wrongful use of a trade mark so registered by any other person without the owner s permission a cause of action in a civil suit for damages Six years later we have the act of Aug 14 1876 19 Stat 141 punishing by fine and imprisonment the fraudulent use sale and counterfeiting of trade marks registered in pursuance of the statutes of the United States on which the informations and indictments are founded in the cases before us The right to adopt and use a symbol or a device to distinguish the goods or property made or sold by the person whose mark it is to the exclusion of use by all other persons has been long recognized by the common law and the chancery courts of England and of this country and by the statutes of some of the States It is a property right for the violation of which damages may be recovered in an action at law and the continued violation of it will be enjoined by a court of equity with compensation for past infringement This exclusive right was not created by the act of Congress and does not now depend upon it for its enforcement The whole system of trade mark property and the civil remedies for its protection existed long anterior to that act and have remained in full force since its passage There propositions are so well understood as to require neither the citation of authorities nor an elaborate argument to prove them As the property in trade marks and the right to their exclusive use rest on the laws of the States and like the great body of the rights of person and of property depend on them for security and protection the power of Congress to legislate on the subject to establish the conditions on which these rights shall be enjoyed and exercised the period of their duration and the legal remedies for their enforcement if such power exist at all must be found in the Constitution of the United States which is the source of all powers that Congress can lawfully exercise In the argument of these cases this seems to be conceded and the advocates for the validity of the acts of Congress on this subject point to two clauses of the Constitution in one or in both of which as they assert sufficient warrant may be found for this legislation The first of these is the eighth clause of sect 8 of the first article That section manifestly intended to be an enumeration of the powers expressly granted to Congress and closing with the declaration of a rule for the ascertainment of such powers as are necessary by way of implication to carry into efficient operation those expressly given authorizes Congress by the clause referred to to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries As the first and only attempt by Congress to regulate the right of trade marks is to be found in the act of July 8 1870 to which we have referred entitled An Act to revise consolidate and amend the statutes relating to patents and copyrights terms which have long since become technical as referring the one to inventions and the other to the writings of authors it is a reasonable inference that this part of the statute also was in the opinion of Congress an exercise of the power found in that clause of the Constitution It may also be safely assumed that until a critical examination of the subject in the courts became necessary it was mainly if not wholly to this clause that the advocates of the law looked for its support Any attempt however to identify the essential characteristics of a trade mark with inventions and discoveries in the arts and sciences or with the writings of authors will show that the effort is surrounded with insurmountable difficulties The ordinary trade mark has no necessary relation to invention or discovery The trade mark recognized by the common law is generally the growth of a considerable period of use rather than a sudden invention It is often the result of accident rather than design and when under the act of Congress it is sought to establish it by registration neither originality invention discovery science nor art is in any way essential to the right conferred by that act If we should endeavor to classify it under the head of writings of authors the objections are equally strong In this as in regard to inventions originality is required And while the word writings may be liberally construed as it has been to include original designs for engravings prints c it is only such as are original and are founded in the creative powers of the mind The writings which are to be protected are the fruits of intellectual labor embodied in the form of books prints engravings and the like The trade mark may be and generally is the adoption of something already in existence as the distinctive symbol of the party using it At common law the exclusive right to it grows out of its use and not its mere adoption By the act of Congress this exclusive right attaches upon registration But in neither case does it depend upon novelty invention discovery or any work of the brain It requires no fancy or imagination no genius no laborious thought It is simply founded on priority of appropriation We look in vain in the statute for any other qualification or condition If the symbol however plain simple old or well known has been first appropriated by the claimant as his distinctive trade mark he may by registration secure the right to its exclusive use While such legislation may be a judicious aid to the common law on the subject of trade marks and may be within the competency of legislatures whose general powers embrace that class of subjects we are unable to see any such power in the constitutional provision concerning authors and inventors and their writings and discoveries The other clause of the Constitution supposed to confer the requisite authority on Congress is the third of the same section which read in connection with the granting clause is as follows The Congress shall have power to regulate commerce with foreign nations and among the several States and with the Indian tribes The argument is that the use of a trade mark that which alone gives it any value is to identify a particular class or quality of goods as the manufacture produce or property of the person who puts them in the general market for sale that the sale of the article so distinguished is commerce that the trade mark is therefore a useful and valuable aid or instrument of commerce and its regulation by virtue of the clause belongs to Congress and that the act in question is a lawful exercise of this power Every species of property which is the subject of commerce or which is used or even essential in commerce is not brought by this

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    may be which they may now have in and to any other lands in the Territory of Minnesota or elsewhere 10 Stat 1166 This sentence however does not mention the 1837 Treaty and it does not mention hunting fishing and gathering rights The entire 1855 Treaty in fact is devoid of any language expressly mentioning much less abrogating usufructuary rights Similarly the Treaty contains no language providing money for the abrogation of previously held rights These omissions are telling because the United States treaty drafters had the sophistication and experience to use express language for the abrogation of treaty rights In fact just a few months after Commissioner Manypenny completed the 1855 Treaty he negotiated a Treaty with the Chippewa of Sault Ste Marie that expressly revoked fishing rights that had been reserved in an earlier Treaty See Treaty with the Chippewa of Sault Ste Marie Art 1 11 Stat 631 The said Chippewa Indians surrender to the United States the right of fishing at the falls of St Mary s secured to them by the treaty of June 16 1820 6 See e g Choctaw Nation v Oklahoma 397 U S 620 631 1970 rejecting argument that language in Treaty had special meaning when United States was competent to state that meaning more clearly The State argues that despite any explicit reference to the 1837 Treaty rights or to usufructuary rights more generally the second sentence of Article 1 nevertheless abrogates those rights But to determine whether this language abrogates Chippewa Treaty rights we look beyond the written words to the larger context that frames the Treaty including the history of the treaty the negotiations and the practical construction adopted by the parties Choctaw Nation v United States 318 U S 423 432 1943 see also El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 U S 1999 slip op at 9 In this case an examination of the historical record provides insight into how the parties to the Treaty understood the terms of the agreement This insight is especially helpful to the extent that it sheds light on how the Chippewa signatories to the Treaty understood the agreement because we interpret Indian treaties to give effect to the terms as the Indians themselves would have understood them See Washington v Washington State Commercial Passenger Fishing Vessel Assn 443 U S 658 675 676 1979 United States v Winans 198 U S 371 380 381 1905 The 1855 Treaty was designed primarily to transfer Chippewa land to the United States not to terminate Chippewa usufructuary rights It was negotiated under the authority of the Act of December 19 1854 This Act authorized treaty negotiations with the Chippewa for the extinguishment of their title to all the lands owned and claimed by them in the Territory of Minnesota and State of Wisconsin Ch 7 10 Stat 598 The Act is silent with respect to authorizing agreements to terminate Indian usufructuary privileges and this silence was likely not accidental During Senate debate on the Act Senator Sebastian the chairman of the Committee on Indian Affairs stated that the treaties to be negotiated under the Act would reserv e to them i e the Chippewa those rights which are secured by former treaties Cong Globe 33d Cong 1st Sess 1404 1854 In the winter of 1854 1855 Commissioner Manypenny summoned several Chippewa chiefs to Washington D C to begin negotiations over the sale of Chippewa land in Minnesota to the United States See App 288 letter from Manypenny to Gorman Jan 4 1855 The negotiations ran from February 12 through February 22 Commissioner Manypenny opened the negotiations by telling the Chippewa chiefs that his goal for the negotiations was to buy a portion of their land id at 304 1855 Treaty Journal and he stayed firm to this proposed course throughout the talks focusing the discussions on the purchase of Chippewa land Indeed all of the participants in the negotiations including the Indians understood that the purpose of the negotiations was to transfer Indian land to the United States The Chief of the Pillager Band of Chippewa stated It appears to me that I understand what you want and your views from the few words I have heard you speak You want land Id at 309 1855 Treaty Journal statement of Flat Mouth Commissioner Manypenny confirmed that the chief correctly understood the purpose of the negotiations He appears to understand the object of the interview His people had more land than they wanted or could use and stood in need of money and I have more money than I need but want more land Ibid See also id at 304 statement of Hole in the Day the principal negotiator for the Chippewa Your words strike us in this way They are very short I want to buy your land These words are very expressive very curt Like the authorizing legislation the Treaty Journal recording the course of the negotiations themselves is silent with respect to usufructuary rights The journal records no discussion of the 1837 Treaty of hunting fishing and gathering rights or of the abrogation of those rights Id at 297 356 This silence suggests that the Chippewa did not understand the proposed Treaty to abrogate their usufructuary rights as guaranteed by other treaties It is difficult to believe that in 1855 the Chippewa would have agreed to relinquish the usufructuary rights they had fought to preserve in 1837 without at least a passing word about the relinquishment After the Treaty was signed President Pierce submitted it to the Senate for ratification along with an accompanying memorandum from Commissioner Manypenny describing the Treaty he had just negotiated Like the Treaty and the Treaty journal this report is silent about hunting fishing and gathering rights Id at 290 294 message of the President of the United States communicating a treaty made with the Mississippi the Pillager and the Lake Winnibigoshish Bands of Chippewa Indians Commissioner Manypenny s memorandum on the 1855 Treaty is illuminating not only for what it did not say but also for what it did say The report suggests a purpose for the second sentence of Article 1 According to the Commissioner s report the Treaty provided for the purchase of between 11 and 14 million acres of Chippewa land within the boundaries defined by the first article In addition to this defined tract of land the Commissioner continued those Indians and especially the Pillager and Lake Winnibigoshish bands have some right of interest in a large extent of other lands in common with other Indians in Minnesota and which right or interest is also ceded to the United States Id at 292 This part of the Commissioner s report suggests that the second sentence of Article 1 was designed not to extinguish usufructuary rights but rather to extinguish remaining Chippewa land claims The other lands do not appear to be the lands ceded by the 1837 Treaty The Pillager and Lake Winnibigoshish Bands did not occupy lands in the 1837 ceded territory so it is unlikely that the Commissioner would have described the usufructuary rights guaranteed by the 1837 Treaty as belonging especially to those Bands Moreover the 1837 Treaty privileges were held in common largely with Chippewa bands in Wisconsin not with other Indians in Minnesota In other words the second sentence of Article 1 did not extinguish usufructuary privileges but rather it extinguished Chippewa land claims that Commissioner Manypenny could not describe precisely See e g id at 317 318 1855 Treaty Journal Pillager negotiator declines to state precisely what our bands claim as a right See also 861 F Supp at 816 817 One final part of the historical record also suggests that the 1855 Treaty was a land purchase treaty and not a treaty that also terminated usufructuary rights the 1854 Treaty with the Chippewa Most of the Chippewa Bands that resided within the territory ceded by the 1837 Treaty were signatories to the 1854 Treaty only the Mille Lacs Band was a party to the 1855 Treaty If the United States had intended to abrogate Chippewa usufructuary rights under the 1837 Treaty it almost certainly would have included a provision to that effect in the 1854 Treaty yet that Treaty contains no such provision To the contrary it expressly secures new usufructuary rights to the signatory Bands on the newly ceded territory The State proposes no explanation compelling or otherwise for why the United States would have wanted to abrogate the Mille Lacs Band s hunting and fishing rights while leaving intact the other Bands rights to hunt and fish on the same territory To summarize the historical record provides no support for the theory that the second sentence of Article 1 was designed to abrogate the usufructuary privileges guaranteed under the 1837 Treaty but it does support the theory that the Treaty and Article 1 in particular was designed to transfer Chippewa land to the United States At the very least the historical record refutes the State s assertion that the 1855 Treaty unambiguously abrogated the 1837 hunting fishing and gathering privileges Given this plausible ambiguity we cannot agree with the State that the 1855 Treaty abrogated Chippewa usufructuary rights We have held that Indian treaties are to be interpreted liberally in favor of the Indians Washington v Washington State Commercial Passenger Fishing Vessel Assn 443 U S at 675 676 Choctaw Nation v United States 318 U S at 432 and that any ambiguities are to be resolved in their favor Winters v United States 207 U S 564 576 577 1908 See also County of Yakima v Confederated Tribes and Bands of Yakima Nation 502 U S 251 269 1992 To attack the conclusion that the 1855 Treaty does not abrogate the usufructuary rights guaranteed under the 1837 Treaty the State relies primarily on our decision in Oregon Dept of Fish and Wildlife v Klamath Tribe 473 U S 753 1985 Klamath required this Court to interpret two agreements In the first agreement an 1864 Treaty between the United States and several Indian Tribes now collectively known as the Klamath Indian Tribe the Indians conveyed their remaining lands to the United States and a portion of this land was set aside as a reservation Id at 755 The 1864 Treaty provided that the Tribe had the exclusive right of taking fish in the streams and lakes included in said reservation and of gathering edible roots seeds and berries within its limits but it provided for no off reservation usufructuary rights Ibid quoting Treaty of Oct 14 1864 Due to a surveying error the reservation excluded land that under the terms of the Treaty should have been included within the reservation Thus in 1901 the United States and the Tribe entered into a second agreement in which the United States agreed to compensate the Tribe for those lands and the Tribe agreed to cede surrender grant and convey to the United States all their claim right title and interest in and to the lands erroneously excluded from the reservation Id at 760 The Tribe contended that the 1901 agreement had not abrogated its usufructuary rights under the 1864 Treaty with respect to those lands We rejected the Tribe s argument and held that it had in fact relinquished its usufructuary rights to the lands at issue We recognized that the 1864 Treaty had secured certain usufructuary rights to the Tribe but we also recognized based on an analysis of the specific terms of the Treaty that the 1864 Treaty restricted those rights to the lands within the reservation Id at 766 767 Because the rights were characterized as exclusive this foreclose d the possibility that they were intended to have existence outside of the reservation Id at 767 In other words because the right to hunt and fish reserved in the 1864 Treaty was an exclusive right to be exercised within the reservation that right could not consistently survive off the reservation on the lands the Tribe had sold Id at 769 770 This understanding of the Tribe s usufructuary rights under the 1864 Treaty that those rights were exclusive on reservation rights informed our conclusion that the Klamath Tribe did not retain any usufructuary rights on the land that it ceded in the 1901 agreement land that was not part of the reservation In addition we noted that there was nothing in the historical record of the 1901 agreement that suggested that the parties intended to change the background understanding of the scope of the usufructuary rights Id at 772 773 Klamath does not control this case First the Chippewa s usufructuary rights under the 1837 Treaty existed independently of land ownership they were neither tied to a reservation nor exclusive In contrast to Klamath there is no background understanding of the rights to suggest that they are extinguished when title to the land is extinguished Without this background understanding there is no reason to believe that the Chippewa would have understood a cession of a particular tract of land to relinquish hunting and fishing privileges on another tract of land More importantly however the State s argument that similar language in two Treaties involving different parties has precisely the same meaning reveals a fundamental misunderstanding of basic principles of treaty construction Our holding in Klamath was not based solely on the bare language of the 1901 agreement Rather to reach our conclusion about the meaning of that language we examined the historical record and considered the context of the treaty negotiations to discern what the parties intended by their choice of words This review of the history and the negotiations of the agreements is central to the interpretation of treaties El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 U S at slip op at 9 As we described above an analysis of the history purpose and negotiations of this Treaty leads us to conclude that the Mille Lacs Band did not relinquish their 1837 treaty rights in the 1855 Treaty IV Finally the State argues that the Chippewa s usufructuary rights under the 1837 Treaty were extinguished when Minnesota was admitted to the Union in 1858 In making this argument the State faces an uphill battle Congress may abrogate Indian treaty rights but it must clearly express its intent to do so United States v Dion 476 U S 734 738 740 1986 see also Washington v Washington State Commercial Passenger Fishing Vessel Assn supra at 690 Menominee Tribe v United States 391 U S 404 413 1968 There must be clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other and chose to resolve that conflict by abrogating the treaty United States v Dion supra at 740 There is no such clear evidence of congressional intent to abrogate the Chippewa Treaty rights here The relevant statute Minnesota s enabling Act provides in relevant part T he State of Minnesota shall be one and is hereby declared to be one of the United States of America and admitted into the Union on an equal footing with the original States in all respects whatever Act of May 11 1858 11 Stat 285 This language like the rest of the Act makes no mention of Indian treaty rights it provides no clue that Congress considered the reserved rights of the Chippewa and decided to abrogate those rights when it passed the Act The State concedes that the Act is silent in this regard Brief for Petitioners 36 and the State does not point to any legislative history describing the effect of the Act on Indian treaty rights With no direct support for its argument the State relies principally on this Court s decision in Ward v Race Horse 163 U S 504 1896 In Race Horse we held that a Treaty reserving to a Tribe the right to hunt on the unoccupied lands of the United States so long as game may be found thereon and so long as peace subsists among the whites and Indians on the borders of the hunting districts terminated when Wyoming became a State in 1890 Id at 507 quoting Art 4 of the Treaty This case does not bear the weight the State places on it however because it has been qualified by later decisions of this Court The first part of the holding in Race Horse was based on the equal footing doctrine the constitutional principle that all States are admitted to the Union with the same attributes of sovereignty i e on equal footing as the original 13 States See Coyle v Smith 221 U S 559 1911 As relevant here it prevents the Federal Government from impairing fundamental attributes of state sovereignty when it admits new States into the Union Id at 573 According to the Race Horse Court because the Treaty rights conflicted irreconcilably with state regulation of natural resources an essential attribute of its governmental existence Race Horse supra at 516 the Treaty rights were held an invalid impairment of Wyoming s sovereignty Thus those rights could not survive Wyoming s admission to the Union on equal footing with the original States But Race Horse rested on a false premise As this Court s subsequent cases have made clear an Indian tribe s treaty rights to hunt fish and gather on state land are not irreconcilable with a State s sovereignty over the natural resources in the State See e g Washington v Washington State Commercial Passenger Fishing Vessel Assn 443 U S 658 1979 see also Antoine v Washington 420 U S 194 1975 Rather Indian treaty rights can coexist with state management of natural resources Although States have important interests in regulating wildlife and natural resources within their borders this authority is shared with the Federal Government when the Federal Government exercises one of its enumerated constitutional powers such as treaty making U S Const Art VI cl 2 See e g Missouri v Holland 252 U S 416 1920 Kleppe v New Mexico 426 U S 529 1976 United States v Winans 198 U S at 382 384 United States v Forty three Gallons of Whiskey 93 U S 188 1876 See also Menominee Tribe v United States supra at 411 n 12 Here the 1837 Treaty gave the Chippewa the right to hunt fish and gather in the ceded territory free of territorial and later state regulation a privilege that others did not enjoy Today this freedom from state regulation curtails the State s ability to regulate hunting fishing and gathering by the Chippewa in the ceded lands But this Court s cases have also recognized that Indian treaty based usufructuary rights do not guarantee the Indians absolute freedom from state regulation Oregon Dept of Fish and Wildlife v Klamath Tribe 473 U S at 765 n 16 We have repeatedly reaffirmed state authority to impose reasonable and necessary nondiscriminatory regulations on Indian hunting fishing and gathering rights in the interest of conservation See Puyallup Tribe v Department of Game of Wash 391 U S 392 398 1968 Washington v Washington State Commercial Passenger Fishing Vessel Assn supra at 682 Antoine v Washington supra at 207 208 This conservation necessity standard accommodates both the State s interest in management of its natural resources and the Chippewa s federally guaranteed treaty rights Thus because treaty rights are reconcilable with state sovereignty over natural resources statehood by itself is insufficient to extinguish Indian treaty rights to hunt fish and gather on land within state boundaries 7 We do not understand Justice Thomas to disagree with this fundamental conclusion Race Horse rested on the premise that treaty rights are irreconcilable with state sovereignty It is this conclusion the conclusion undergirding the Race Horse Court s equal footing holding that we have consistently rejected over the years Justice Thomas s only disagreement is as to the scope of State regulatory authority His disagreement is premised on a purported distinction between rights and privileges This Court has never used a distinction between rights and privileges to justify any differences in State regulatory authority Moreover as Justice Thomas acknowledges post at 4 the starting point for any analysis of these questions is the Treaty language itself The Treaty must be interpreted in light of the parties intentions with any ambiguities resolved in favor of the Indians Winters v United States 207 U S at 576 577 There is no evidence that the Chippewa understood any fine legal distinctions between rights and privileges Moreover under Justice Thomas s view of the 1837 Treaty the guarantee of hunting fishing and gathering privileges was essentially an empty promise because it gave the Chippewa nothing that they did not already have The equal footing doctrine was only part of the holding in Race Horse however We also announced an alternative holding The Treaty rights at issue were not intended to survive Wyoming s statehood We acknowledged that Congress in the exercise of its authority over territorial lands has the power to secure off reservation usufructuary rights to Indian Tribes through a treaty and that it would be also within the power of Congress to continue them in the State on its admission into the Union Race Horse 163 U S at 515 We also acknowledged that if Congress intended the rights to survive statehood there was no need for Congress to preserve those rights explicitly in the statehood Act We concluded however that the particular rights in the treaty at issue there the right to hunt on the unoccupied lands of the United States were not intended to survive statehood Id at 514 see id at 514 515 The Chief Justice reads Race Horse to establish a rule that temporary and precarious treaty rights as opposed to treaty rights which were of such a nature as to imply their perpetuity are not intended to survive statehood Post at 11 But the temporary and precarious language in Race Horse is too broad to be useful in distinguishing rights that survive statehood from those that do not In Race Horse the Court concluded that the right to hunt on federal lands was temporary because Congress could terminate the right at any time by selling the lands 163 U S at 510 Under this line of reasoning any right created by operation of federal law could be described as temporary and precarious because Congress could eliminate the right whenever it wished In other words the line suggested by Race Horse is simply too broad to be useful as a guide to whether treaty rights were intended to survive statehood The focus of the Race Horse inquiry is whether Congress more precisely because this is a treaty the Senate intended the rights secured by the 1837 Treaty to survive statehood Id at 514 515 The 1837 Treaty itself defines the circumstances under which the rights would terminate when the exercise of those rights was no longer the pleasure of the President There is no suggestion in the Treaty that the President would have to conclude that the privileges should end when a State was established in the area Moreover unlike the rights at issue in Race Horse there is no fixed termination point to the 1837 Treaty rights The Treaty in Race Horse contemplated that the rights would continue only so long as the hunting grounds remained unoccupied and owned by the United States the happening of these conditions was clearly contemplated when the Treaty was ratified Id at 509 By contrast the 1837 Treaty does not tie the duration of the rights to the occurrence of some clearly contemplated event Finally we note that there is nothing inherent in the nature of reserved treaty rights to suggest that they can be extinguished by implication at statehood Treaty rights are not impliedly terminated upon statehood Wisconsin v Hitchcock 201 U S 202 213 214 1906 Johnson v Gearlds 234 U S 422 439 440 1914 The Race Horse Court s decision to the contrary that Indian treaty rights were impliedly repealed by Wyoming s statehood Act was informed by that Court s conclusion that the Indian treaty rights were inconsistent with state sovereignty over natural resources and thus that Congress the Senate could not have intended the rights to survive statehood But as we described above Indian treaty based usufructuary rights are not inconsistent with state sovereignty over natural resources See supra at 31 32 Thus contrary to the State s contentions Race Horse does not compel the conclusion that Minnesota s admission to the Union extinguished Chippewa usufructuary rights guaranteed by the 1837 Treaty Accordingly the judgment of the United States Court of Appeals for the Eighth Circuit is affirmed It is so ordered Notes 1 The intervening counties are Aitkin Benton Crow Wing Isanti Kanabec Mille Lacs Morrison Pine and Sherburne The intervening landowners are John W Thompson Jenny Thompson Joseph N Karpen LeRoy Burling Glenn E Thompson and Gary M Kiedrowski 2 The Wisconsin Bands are also respondents in this Court St Croix Chippewa Indians of Wisconsin Lac du Flambeau Band of Lake Superior Chippewas Bad River Band of Lake Superior Chippewa Indians Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin Sokaogan Chippewa Community and Red Cliff Band of Lake Superior Chippewa 3 The landowners who intervened in this suit are Robert J Edmonds and Michael Sheff These landowners along with the six landowners who intervened in the Mille Lacs Band suit have filed briefs in this Court in support of the State The counties too have filed briefs in support of the State 4 See 1837 Treaty with the Saganaw Chippewa Art 6 7 Stat 530 The said tribe agrees to remove from the State of Michigan as soon as a proper location can be obtained 1837 Treaty with the Potawatomie Art 1 7 Stat 533 And the chiefs and head men above named for themselves and their bands do hereby cede to the United States all their interest in said lands and agree to remove to a country that may be provided for them by the President of the United States southwest of the Missouri river within two years from the ratification of this treaty 1837 Treaty with the Sacs and Foxes Art 4 7 Stat 541 The Sacs and Foxes agree to remove from the tract ceded with the exception of Keokuck s village possession of which may be retained for two years within eight months from the ratification of this treaty 1837 Treaty with the Winnebago Art 3 7 Stat 544 545 The said Indians agree to remove within eight months from the ratification of this treaty to that portion of the neutral ground west of the Mississippi which was conveyed to them in the second article of the treaty of September 21st 1832 and the United States agree that the said Indians may hunt upon the western part of said neutral ground until they shall procure a permanent settlement 5 The Chief Justice disagrees with this conclusion primarily because he understands the removal order to be a mechanism for enforcing the revocation of usufructuary rights Post at 6 7 The implicit premise of this argument is that the President had the inherent power to order the removal of the Chippewa from public lands this premise is flawed The Chippewa were on the land long before the United States acquired title to it The 1837 Treaty does not speak to the right of the United States to order them off the land upon acquisition of title and in fact the usufructuary rights guaranteed by the Treaty presumed that the Chippewa would continue to be on the land Although the revocation of the rights might have justified measures to make sure that the Chippewa were not hunting fishing or gathering it does not follow that revocation of the usufructuary rights permitted the United States to remove the Chippewa from the land completely The Chief Justice s suggestion that the removal order was merely a measure to enforce the revocation of the usufructuary rights is thus unwarranted It cannot be presumed that the ends justified the means it cannot be presumed that the rights of the United States under the Treaty included the right to order removal in defense of the revocation of usufructuary rights The Treaty the statutory law and the Constitution were silent on this matter and to presume the existence of such Presidential power would run counter to the principles that treaties are to be interpreted liberally in favor of the Indians Washington v Washington State Commercial Passenger Fishing Vessel Assn 443 U S 658 675 676 1979 and treaty ambiguities to be resolved in their favor Winters v United States 207 U S 564 576 577 1908 The Chief Justice also argues that the removal order ought to be severable from the part of the order purporting to extinguish Chippewa usufructuary rights because of the strong presumption supporting the legality of executive action that has been authorized expressly or by implication Post at 7 Presumably the Chief Justice understands the 1837 Treaty to authorize the executive action in question In this context however any general presumption about the legality of executive action runs into the principle that treaty ambiguities are to be resolved in favor of the Indians Winters v United States supra at 576 577 see also County of Yakima v Confederated Tribes and Bands of Yakima Nation 502 U S 251 269 1992 We do not think the general presumption relied upon by the Chief Justice carries the same weight when balanced against the counterpresumption specific to Indian treaties 6 See also e g 1846 Treaty with the Winnebago Art IV 9 Stat 878 Government agrees to pay Winnebago Indians 40 000 for release of hunting privileges on the lands adjacent to their present home 1837 Treaty with the Sacs and Foxes Art 2 7 Stat 543 specifically ceding all the right to locate for hunting or other purposes on the land ceded in the first article of the treaty of July 15th 1830 7 The Chief Justice asserts that our criticism of Race Horse is inappropriate given our recent reaffirm ation of that case in Oregon Dept of Fish and Wildlife v Klamath Tribe 473 U S 753 1985 Post at 11 Although we cited Race Horse in Klamath we did not in so doing reaffirm the equal footing doctrine as a bar to the continuation of Indian treaty based usufructuary rights Klamath did not involve the equal footing doctrine Rather we cited Race Horse for the second part of its holding discussed in the text infra at 32 34 See 473 U S at 773 n 23 In any event the Race Horse Court s reliance on the equal footing doctrine to terminate Indian treaty rights rested on foundations that were rejected by this Court within nine years of that decision See United States v Winans 198 U S 371 382 384 1905 The intervening counties are Aitkin Benton Crow Wing Isanti Kanabec Mille Lacs Morrison Pine and Sherburne The intervening landowners are John W Thompson Jenny Thompson Joseph N Karpen LeRoy Burling Glenn E Thompson and Gary M Kiedrowski The Wisconsin Bands are also respondents in this Court St Croix Chippewa Indians of Wisconsin Lac du Flambeau Band of Lake Superior Chippewas Bad River Band of Lake Superior Chippewa Indians Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin Sokaogan Chippewa Community and Red Cliff Band of Lake Superior Chippewa The landowners who intervened in this suit are Robert J Edmonds and Michael Sheff These landowners along with the six landowners who intervened in the Mille Lacs Band suit have filed briefs in this Court in support of the State The counties too have filed briefs in support of the State See 1837 Treaty with the Saganaw Chippewa Art 6 7 Stat 530 The said tribe agrees to remove from the State of Michigan as soon as a proper location can be obtained 1837 Treaty with the Potawatomie Art 1 7 Stat 533 And the chiefs and head men above named for themselves and their bands do hereby cede to the United States all their interest in said lands and agree to remove to a country that may be provided for them by the President of the United States southwest of the Missouri river within two years from the ratification of this treaty 1837 Treaty with the Sacs and Foxes Art 4 7 Stat 541 The Sacs and Foxes agree to remove from the tract ceded with the exception of Keokuck s village possession of which may be retained for two years within eight months from the ratification of this treaty 1837 Treaty with the Winnebago Art 3 7 Stat 544 545 The said Indians agree to remove within eight months from the ratification of this treaty to that portion of the neutral ground west of the Mississippi which was conveyed to them in the second article of the treaty of September 21st 1832 and the United States agree that the said Indians may hunt upon the western part of said neutral ground until they shall procure a permanent settlement The Chief Justice disagrees with this conclusion primarily because he understands the removal order to be a mechanism for enforcing the revocation of usufructuary rights Post at 6 7 The implicit premise of this argument is that the President had the inherent power to order the removal of the Chippewa from public lands this premise is flawed The Chippewa were on the land long before the United States acquired title to it The 1837 Treaty does not speak to the right of the United States to order them off the land upon acquisition of title and in fact the usufructuary rights guaranteed by the Treaty presumed that the Chippewa would continue to be on the land Although the revocation of the rights might have justified measures to make sure that the Chippewa were not hunting fishing or gathering it does not follow that revocation of the usufructuary rights permitted the United States to remove the Chippewa from the land completely The Chief Justice s suggestion that the removal order was merely a measure to enforce the revocation of the usufructuary rights is thus unwarranted It cannot be presumed that the ends justified the means it cannot be presumed that the rights of the United States under the Treaty included the right to order removal in defense of the revocation of usufructuary rights The Treaty the statutory law and the Constitution were silent on this matter and to presume the existence of such Presidential power would run counter to the principles that treaties are to be interpreted liberally in favor of the Indians Washington v Washington State Commercial Passenger Fishing Vessel Assn 443 U S 658 675 676 1979 and treaty ambiguities to be resolved in their favor Winters v United States 207 U S 564 576 577 1908 The Chief Justice also argues that the removal order ought to be severable from the part of the order purporting to extinguish Chippewa usufructuary rights because of the strong presumption supporting the legality of executive action that has been authorized expressly or by implication Post at 7 Presumably the Chief Justice understands the 1837 Treaty to authorize the executive action in question In this context however any general presumption about the legality of executive action runs into the principle that treaty ambiguities are to be resolved in favor of the Indians Winters v United States supra at 576 577 see also County of Yakima v Confederated Tribes and Bands of Yakima Nation 502 U S 251 269 1992 We do not think the general presumption relied upon by the Chief Justice carries the same weight when balanced against the counterpresumption specific to Indian treaties See also e

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  • ALASKA AIRLINES, INC., et al., Petitioners, v. William E. BROCK, Secretary of Labor, et al. | Supreme Court | LII / Legal Information Institute
    strong oversight mechanism The final test for legislative vetos as well as for other provisions is the traditional one the unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted 7 The inquiry is eased when Congress has explicitly provided for severance by including a severability clause in the statute This Court has held that the inclusion of such a clause creates a presumption that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision See INS v Chadha 462 U S at 932 103 S Ct at 2774 Champlin Refining Co v Corporation Comm n of Oklahoma 286 U S at 235 52 S Ct at 565 In such a case unless there is strong evidence that Congress intended otherwise the objectionable provision can be excised from the remainder of the statute In the absence of a severability clause however Congress silence is just that silence and does not raise a presumption against severability See Tilton v Richardson 403 U S 672 684 91 S Ct 2091 2098 29 L Ed 2d 790 1971 plurality opinion United States v Jackson 390 U S at 585 n 27 88 S Ct at 1218 n 27 In this case the parties disagree as to whether there is a severability clause applicable to the EPP 8 We need not resolve this question for there is no need to resort to a presumption in order to find the legislative veto provision severable in this case There is abundant indication of a clear congressional intent of severability both in the language and structure of the Act and in its legislative history IV Congress intent that the EPP s first hire provisions should survive in the absence of the legislative veto provision is suggested strongly by the affirmative duty the statute places directly on air carriers The first hire portion of the EPP establishes in detail an obligation to hire protected employees that scarcely needs the adoption of regulations by the Secretary and thus leaves little of substance to be subject to a veto Section 43 d 49 U S C App 1552 d designates the recipients of this first right of hire namely employees defined by the Act as protected who are furloughed or terminated other than for cause during the first 10 years of deregulation It also specifies the class of carriers that are obligated and the extent of the obligation Carriers previously regulated by the CAB have a duty to hire protected employees before they hire any other person although they may first recall their own employees The preference is limited to an individual s occupational specialty and applies without regard to age The language of these provisions is sufficiently unambiguous to notify carriers of their responsibilities and sufficiently detailed to require little further action on the part of the Secretary 9 Congress did direct the Secretary to take certain actions with regard to the EPP s first hire provisions he is to establish and periodically to publish a list of available jobs to make every effort to assist protected employees in finding employment and to encourage negotiations in rehiring and seniority He also may require air carriers to file data necessary to fulfill these duties 43 d 2 and 3 These obligations on the part of the Secretary are obviously designed merely to facilitate the obligation to hire imposed upon certain carriers and their ancillary nature is further evidence that Congress delegated only limited substantive discretion to the Secretary With this subsidiary role allotted to the Secretary the veto provision could affect only the relatively insignificant actions he might take in connection with the duty to hire program 10 There is thus little reason to believe that Congress contemplated the possibility of vetoing any of these actions and one can infer that Congress would have been satisfied with the duty to hire provisions even without preserving the opportunity to veto the DOL s regulations Moreover Congress did not link specifically the operation of the first hire provisions to the issuance of regulations While the Secretary is explicitly directed to promulgate by rule guidelines for the assistance payments authorized by the EPP 43 b 1 11 there is no similar command with regard to the duty to hire provisions The Act simply provides that the Secretary may issue such regulations as are necessary to the administration of the program 43 f 1 A duty to hire that is not dependent upon the issuance of regulations is unlikely to be dependent upon an opportunity for Congress to veto those regulations The regulations eventually promulgated by the DOL 29 CFR 220 01 et seq 1986 support the conclusion that Congress itself elaborated most of the details necessary for the first hire program The regulations reiterate the statutory requirements and provide a limited administrative appeal for ascertaining eligibility in the event of a dispute 220 26 but are otherwise silent as to a mechanism for enforcing the right of hire The primary focus is on mechanical details notices to be sent information to be published and procedures to be followed See e g 220 23 220 25 and 220 27 Most importantly in the regulations themselves the DOL acknowledges the duty to hire imposed directly by the Act for the regulations are made effective subject to the proviso that nothing in these regulations shall preclude the exercise of statutory rights and duties between October 24 1978 the enactment date of the Act and the effective date of these regulations 220 01 g Not only do the first hire provisions stand on their own independent of any need for extensive regulations but should Congress object to the regulations issued it retains a mechanism for the expression of its disapproval that reduces any disruption of congressional oversight caused by severance of the veto provision The EPP s report and wait provision in the statute requires the Secretary to forward regulations to the Transportation Committees of both Chambers of Congress and to wait 30 days before issuing them as final regulations 43 f 3 This interval gives Congress an opportunity to review the regulations and either to attempt to influence the agency s decision or to enact legislation preventing the regulations from taking effect 12 In arguing that the legislative veto is nonseverable petitioners place great significance on the fact that the EPP is the only section of the Act to delegate authority to the DOL and only rules issued pursuant to that section are subject to the veto We find this emphasis misplaced The EPP is the only aspect of the Act concerned with labor protection and thus naturally is the only provision to involve the DOL The fact that this is the only veto in the Act is unremarkable given the nature of the rest of the statute Although it did not remove completely the need for regulation 13 the Act is primarily a deregulatory statute 14 and aside from the EPP did not create any new programs requiring congressional oversight Moreover the absence of a veto clause in other provisions of the Act indicates nothing about whether Congress regarded the clause as essential to the duty to hire provisions of 43 B The legislative history of the EPP supports the conclusion that Congress would have enacted the duty to hire provisions even without a legislative veto provision by revealing that Congress regarded labor protection as an important feature of the Act while it paid scant attention to the legislative veto provision The bill passed by the Senate contained protections for employees that later became the heart of the labor provisions in the final Act monetary compensation for lost wages and relocation expenses and a hiring preference within the industry The sponsors of the primary deregulation bill S 689 introduced during the first session of the 95th Congress were optimistic that deregulation would lead to an increase in the number of jobs 15 and that bill did not contain employee protections But in response to union testimony that the existing protections were inadequate 16 and the support for labor protection provisions expressed by administration witnesses 17 the compensation program and first hire provisions were added as 22 of S 2493 the bill introduced in the second session With the inclusion of the labor provisions the bill was viewed as striking the proper balance between the legitimate demands of industry consumers labor and management 124 Cong Rec 10654 1978 remarks of Sen Percy The Senate Committee Report expressed its reasons for providing protection for individual airline employees as follows An individual employee will be able to do little to adjust to the new structure Many airline employees have given most of their working lives to the air transportation industry and have too much invested to leave it now In many cases a job shift even within the industry would be costly because of lost seniority Older employees looking for a new job might encounter difficulties because of their age Since employees will not be able to adjust in the sense their employers can the Committee believes that a reasonable program of transition assistance should be provided Because it is the public who will benefit from the regulatory reform provided for in this bill the public should be willing to assume reasonably close to the full cost of such reform including the cost of transition for any dislocated employees The Committee believes that the Congress on behalf of the American people must insure that the benefits to the public which result from its decision to alter substantially the regulation of air transportation are not paid for by a minority the airline employees and their families who have relied on the present system S Rep No 95 631 p 114 1978 In contrast to this extensive discussion of employee protection the Committee paid scant attention to legislative oversight When it did show concern with retaining control over the form the program would take it was in the context of the compensation program not the duty to hire Eligible employees who lost their jobs would be entitled to monthly assistance payments for a maximum of 3 years or until they were reemployed whichever occurred first The amount of such payment would be equal to a percentage of former wages as determined by regulations promulgated by the Department of Labor These regulations will be subject to congressional re view The committee considered setting statutory percentage figures and maximum dollar amounts but concluded that the Secretary of Labor after consultation with the Secretary of Transportation will be in a better position to determine the appropriate amounts The committee intends that the percentages chosen will result in compensation payments that are less than the employees after tax income in order to preserve maximum incentives for employees to secure comparable work Id at 116 117 emphasis added 18 In introducing S 2493 on the floor Senator Cannon discussed the EPP but did not mention the legislative veto power or make note of any need for congressional oversight 124 Cong Rec 10647 10649 1978 The summary of the bill printed in the record similarly omitted any indication that the legislation contained a veto Id at 10649 The employment provisions were discussed extensively during the floor debate on airline deregulation and support for the duty to hire requirement was repeatedly voiced 19 Several amendments modifying the monthly assistance program both to restrict and to liberalize payments were offered 20 but there was no attempt to alter the duty to hire program The most dramatic endorsement of the EPP as a whole came in response to an amendment offered by Senator Hatch that would have eliminated the EPP completely The Senate resoundingly rejected the amendment by the lopsided vote of 85 7 Id at 10679 10682 In contrast to this emphasis on the substantive aspects of the EPP neither supporters nor opponents of the bill ever mentioned the legislative veto provision on the floor of the Senate The House bill H R 12611 which lacked a legislative veto provision contained even more encompassing protections for displaced employees In its 32 it provided protections for airline workers identical to those in the rail industry and stipulated that no new authority granted by the Act could be exercised by a carrier unless the Secretary certified that employees would be protected 21 The House adopted this bill without apparent controversy over the labor provisions and despite the broad delegation of power to the Secretary without any mention of congressional oversight 124 Cong Rec 30661 30708 1978 The bill that emerged from the Conference Committee contained a version of the EPP basically the same as the Senate bill H R Conf Rep No 95 1779 p 105 1978 U S Code Cong Admin News 1978 pp 3737 3813 listing the differences The debate on the final bill again illustrates the relative unimportance of the legislative veto provision in this legislation The only discussion of the EPP reflected wholesale approval of the program with many Members stressing their support for the provisions 22 or regrets that the EPP provisions were not even stronger 23 One comment alone in fact the only such comment made during the entire deliberation on the Act concerned the legislative veto 24 This was an endorsement of the provision by Representative Levitas which is best understood as an expression of his general support for legislative veto provisions rather than a judgment that oversight was particularly important to the EPP 25 The language and structure of the EPP and its legislative history provide an uncontradicted view of congressional intent with regard to severance of the legislative veto provisions from the duty to hire program This evidence leads to the conclusion that any concerns about the operation of the EPP related principally to the financial assistance program Even this concern was minimal The emphasis during deliberations on the Act was placed overwhelmingly on the substantive provisions of the statute with scant attention paid to any need for congressional oversight In the almost total absence of any contrary refrain we cannot conclude that Congress would have failed to enact the Airline Deregulation Act including the EPP s first hire program if the legislative veto had not been included Accordingly we affirm the judgment of the Court of Appeals It is so ordered CC Transformed by Public Resource Org 1 A protected employee is eligible for monthly assistance if he has been deprived of employment or adversely affected with respect to compensation as a result of a qualifying dislocation Any employee terminated for cause is ineligible 43 a A qualifying dislocation is a bankruptcy or major contraction of an air carrier previously certified by the CAB occurring during the first 10 complete calendar years following enactment of the Act the major cause of which is the change in regulatory structure provided by the Act 43 h 2 A major contraction is defined as a work force reduction of at least 71 2 within a 12 month period 43 h 4 2 If both Houses adopt an approval resolution during the 60 day period the rule becomes effective immediately 43 f 3 3 The Act became law on October 24 1978 In March 1979 the Secretary proposed regulations for both the financial assistance and duty to hire provisions of the EPP 44 Fed Reg 19146 Revised proposed regulations relating only to the duty to hire were published in September 1982 47 Fed Reg 41304 The final rules were promulgated and submitted to Congress in November 1983 48 Fed Reg 52854 and but for this litigation would have become effective 4 The Court of Appeals remanded the case to the District Court for consideration of petitioners remaining challenges to the DOL regulations These are not at issue here 247 U S App D C 132 137 766 F 2d 1550 1565 1985 The District Court sustained all but one of the regulations 632 F Supp 178 1986 It remanded to the Secretary for further explanation of the issue whether 29 CFR 220 21 a 1 1986 dealing with the initial hiring age of flight officers and pilots was valid in the light of the carriers obligation to maintain air safety 632 F Supp at 184 The Court of Appeals reversed in part 258 U S App D C 89 809 F 2d 930 1987 Table In an unpublished memorandum it held that the remand of this issue was inappropriate because Congress made it absolutely clear 43 d 1 that the hiring preference should apply regardless of age The Court of Appeals remanded for agency clarification of a different issue the scope of the exception to the duty to hire created by an equal opportunity agreement as established by 29 CFR 220 29 and 220 01 j 1986 With the exception of these provisions the duty to hire regulations are now in force 5 Petitioners contend that the Court of Appeals lacked jurisdiction because the District Court held an Act of Congress unconstitutional which holding must therefore be appealed directly to this Court pursuant to 28 U S C 1252 The issue at hand however is not the constitutionality of the remaining provisions but their severability from the unconstitutional legislative veto provision which is a question of legislative intent The appeal was properly taken to the Court of Appeals pursuant to 28 U S C 1291 See EEOC v Allstate Insurance Co 467 U S 1232 104 S Ct 3499 82 L Ed 2d 810 1984 Heckler v Edwards 465 U S 870 885 104 S Ct 1532 1540 79 L Ed 2d 878 1984 6 See Hearings on the Supreme Court Decision in INS v Chadha and Its Implications for Congressional Oversight and Agency Rulemaking before the Subcommittee on Administrative Law and Governmental Relations of the House Committee on the Judiciary 98th Cong 1st Sess 138 1983 remarks of Rep Berman I t

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  • DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM, INC., et al. v. FEDERAL COMMUNICATIONS COMMISSION et al. Certiorari to the United States Court of Appeals for the District of Columbia Circuit. | Supreme Court | LII / Legal Information Institute
    b and c and he accordingly faults the plurality opinion for declining to decide the precise doctrinal categories that should govern the issue at hand The value of the categorical approach generally to First Amendment security prompts a word to explain why I join the Court s unwillingness to announce a definitive categorical analysis in this case Neither the speech nor the limitation at issue here may be categorized simply by content Our prior case most nearly on point dealt not with a flat restriction covering a separate category of indecency at the First Amendment s periphery but with less than a total ban directed to instances of indecent speech easily available to children through broadcasts readily received in the household and difficult or impossible to control without immediate supervision See FCC v Pacifica Foundation 438 U S 726 747 1978 plurality opinion It is a characteristic of speech such as this that both its capacity to offend and its social value vary with the circumstances 5 It is not surprising that so contextually complex a category was not expressly assigned a standard level of scrutiny for reviewing the Government s limitation at issue there 6 Nor does the fact that we deal in this case with cable transmission necessarily suggest that a simple category subject to a standard level of scrutiny ought to be recognized at this point while we have found cable television different from broadcast with respect to the factors justifying intrusive access requirements under the rule in Red Lion see Turner Broadcasting System Inc v FCC 512 U S 1994 slip op at 12 13 finding that Red Lion s spectrum scarcity rationale had no application to cable today s plurality opinion rightly observes that the characteristics of broadcast radio that rendered indecency particularly threatening in Pacifica that is its intrusion into the house and accessibility to children are also present in the case of cable television ante at 14 It would seem then that the appropriate category for cable indecency should be as contextually detailed as the Pacifica example and settling upon a definitive level of scrutiny rule of review for so complex a category would require a subtle judgment but there is even more to be considered enough more to demand a subtlety tantamount to prescience All of the relevant characteristics of cable are presently in a state of technological and regulatory flux Recent and far reaching legislation not only affects the technical feasibility of parental control over children s access to undesirable material see e g Telecommunications Act of 1996 Section s 551 Pub L 104 104 110 Stat 139 142 Feb 8 1996 provision for V chip to block sexually explicit or violent programs but portends fundamental changes in the competitive structure of the industry and therefore the ability of individual entities to act as bottlenecks to the free flow of information see id Title III 110 Stat 114 128 promoting competition in cable services As cable and telephone companies begin their competition for control over the single wire that will carry both their services we can hardly settle rules for review of regulation on the assumption that cable will remain a separable and useful category of First Amendment scrutiny And as broadcast cable and the cyber technology of the Internet and the World Wide Web approach the day of using a common receiver we can hardly assume that standards for judging the regulation of one of them will not have immense but now unknown and unknowable effects on the others 7 Accordingly in charting a course that will permit reasonable regulation in light of the values in competition we have to accept the likelihood that the media of communication will become less categorical and more protean Because we cannot be confident that for purposes of judging speech restrictions it will continue to make sense to distinguish cable from other technologies and because we know that changes in these regulated technologies will enormously alter the structure of regulation itself we should be shy about saying the final word today about what will be accepted as reasonable tomorrow In my own ignorance I have to accept the real possibility that if we had to decide today just what the First Amendment should mean in cyberspace we would get it fundamentally wrong Lessig The Path of Cyberlaw 104 Yale L J 1743 1745 1995 The upshot of appreciating the fluidity of the subject that Congress must regulate is simply to accept the fact that not every nuance of our old standards will necessarily do for the new technology and that a proper choice among existing doctrinal categories is not obvious Rather than definitively settling the issue now Justice Breyer wisely reasons by direct analogy rather than by rule concluding that the speech and the restriction at issue in this case may usefully be measured against the ones at issue in Pacifica 8 If that means it will take some time before reaching a final method of review for cases like this one there may be consolation in recalling that 16 years passed from Roth v United States 354 U S 476 1957 to Miller v California 413 U S 15 1973 before the modern obscenity rule jelled that it took over 40 years from Hague v CIO 307 U S 496 1939 to Perry Ed Assn v Perry Local Educators Assn 460 U S 37 1983 for the public forum category to settle out and that a round half century passed before the clear and present danger of Schenck v United States 249 U S 47 1919 evolved into the modern incitement rule of Brandenburg v Ohio 395 U S 444 1969 I cannot guess how much time will go by until the technologies of communication before us today have matured and their relationships become known But until a category of indecency can be defined both with reference to the new technology and with a prospect of durability the job of the courts will be just what Justice Breyer does today recognizing established First Amendment interests through a close analysis that constrains the Congress without wholly incapacitating it in all matters of the significance apparent here maintaining the high value of open communication measuring the costs of regulation by exact attention to fact and compiling a pedigree of experience with the changing subject These are familiar judicial responsibilities in times when we know too little to risk the finality of precision and attention to them will probably take us through the communications revolution Maybe the judicial obligation to shoulder these responsibilities can itself be captured by a much older rule familiar to every doctor of medicine First do no harm TOP Justice O Connor concurring in part and dissenting in part I agree that Section s 10 a is constitutional and that Section s 10 b is unconstitutional and I join Parts I II III and V and the judgment in part I am not persuaded however that the asserted important differences between Section s 10 a and 10 c ante at 30 are sufficient to justify striking down Section s 10 c I find the features shared by Section s 10 a which covers leased access channels and Section s 10 c which covers public access channels to be more significant than the differences For that reason I would find that Section s 10 c too withstands constitutional scrutiny Both Section s 10 a and 10 c serve an important governmental interest the well established compelling interest of protecting children from exposure to indecent material See Sable Communications of Cal Inc v FCC 492 U S 115 126 1989 Ginsberg v New York 390 U S 629 639 640 1968 Cable television like broadcast television is a medium that is uniquely accessible to children see ante at 13 14 and of course children have equally easy access to public access channels as to leased access channels By permitting a cable operator to prevent transmission of patently offensive sex related programming Section s 10 a and 10 c further the interest of protecting children Furthermore both provisions are permissive Neither presents an outright ban on a category of speech such as we struck down in Sable Communications of Cal Inc v FCC supra Sections 10 a and 10 c leave to the cable operator the decision whether or not to broadcast indecent programming and therefore are less restrictive than an absolute governmental ban Certainly Section s 10 c is not more restrictive than Section s 10 a in this regard It is also significant that neither Section s 10 a nor restriction we upheld in FCC v Pacifica Foundation 438 U S 726 1978 I agree with Justice Breyer that we should not yet undertake fully to adapt our First Amendment doctrine to the new context we confront here Because we refrain from doing so the precedent established by Pacifica offers an important guide Section 10 c no less than Section s 10 a is within the range of acceptability set by Pacifica See ante at 13 16 The distinctions upon which the Court relies in deciding that my view constitutionally significant Much emphasis is placed on the differences in the origins of leased access and public access channels To be sure the leased access channels covered by Section s 10 a were a product of the Federal Government while the public access channels at by municipalities see ante at 30 31 but I am not persuaded that the difference in the origin of the access channels is sufficient to justify upholding Section s 10 a and striking down Section s 10 c The interest in protecting children remains the same whether on a leased access channel or a public access channel and allowing the cable operator the option of prohibiting the transmission of indecent speech seems a constitutionally permissible means of addressing that interest Nor is the fact that public access programming may be subject to supervisory systems in addition to the cable operator see ante at 31 33 sufficient in my mind to render Section s 10 c so ill tailored to its goal as to be unconstitutional Given the compelling interest precedent I would hold Section s 10 c like Section s 10 a constitutional Justice Kennedy with whom Justice Ginsburg joins concurring in part concurring in the judgment in part and dissenting in part The plurality opinion insofar as it upholds Section s 10 a of the 1992 Cable Act is adrift The opinion treats concepts such as public forum broadcaster and common carrier as mere labels rather than as categories with settled legal significance it applies no standard and by this omission loses sight of existing First Amendment doctrine When confronted with a threat to free speech in the context of an emerging technology we ought to have the discipline to analyze the case by reference to existing elaborations of constant First Amendment principles This is the essence of the case by case approach to ensuring protection of speech under the First Amendment even in novel settings Rather than undertake this task however the plurality just declares that all things considered Section s 10 a seems fine I think the implications of our past cases for this one are clearer than the plurality suggests and they require us to hold Section s 10 a invalid Though I join Part III of the opinion there for the Court striking down Section s 10 b of the Act and concur in the judgment the remainder Two provisions of the 1992 Act Section s 10 a and c authorize the operator of a cable system to exclude certain programming from two different kinds of channels Section 10 a concerns leased access channels These are channels the cable operator is required by federal law to make available to unaffiliated programmers without exercising any control over program content The statute allows a cable operator to enforce a written and published policy of prohibiting on these channels any programming it reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards speech we can refer to as indecent programming Section 10 c involves public educational and governmental access channels or PEG access channels as they are known These are channels set aside for use by members of the public governmental authorities and local school systems As interpreted by the Federal Communications Commission FCC Section s to prohibit indecent programming on PEG access channels See ante at 3 5 quoting statutory provisions in full and discussing interpretive regulations 9 Though the two provisions differ in significant respects they have common flaws In both instances Congress singles out one sort of speech for vulnerability to private censorship in a context where content based discrimination is not otherwise permitted The plurality at least recognizes this as state action ante at 6 avoiding the mistake made by the Court of Appeals Alliance for Community Media v FCC 56 F 3d 105 112 121 1995 State action lies in the enactment of a statute altering legal relations between persons including the selective withdrawal from one group of legal protections against private acts regardless of whether the private acts are attributable to the State Cf Hunter v Erickson 393 U S 385 389 390 1969 state action under the Fourteenth Amendment The plurality balks at taking the next step however which is to advise us what standard it applies to determine whether the state action conforms to the First Amendment Sections 10 a and c disadvantage nonobscene indecent programming a protected category of expression Sable Communications of Cal Inc v FCC 492 U S 115 126 1989 on the basis of its content The Constitution in general does not tolerate content based restriction of or discrimination against speech R A V v St Paul 505 U S 377 382 1992 Content based regulations are presumptively invalid Carey v Brown 447 U S 455 461 463 1980 Police Dept of Chicago v Mosley 408 U S 92 96 1972 In the realm of speech and expression the First Amendment envisions the citizen shaping the government not the reverse it removes governmental restraints from the arena of public discussion putting the decision as to what views shall be voiced largely into the hands of each of us in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity Cohen v California 403 U S 15 24 1971 Each person should decide for him or herself the ideas and beliefs deserving of expression consideration and adherence Our political system and cultural life rest upon this ideal Turner Broadcasting System Inc v FCC 512 U S 1994 slip op at 16 We therefore have given the most exacting scrutiny to regulations that suppress disadvantage or impose differential burdens upon speech because of its content Id at slip op at 17 Sections 10 a and c are unusual They do not require direct action against speech but do authorize a cable operator to deny the use of its property to certain forms of speech As a general matter a private person may exclude certain speakers from his or her property without violating the First Amendment Hudgens v NLRB 424 U S 507 1976 and if Section s 10 a and c were no more than affirmations of this principle they might be unremarkable Access channels however are property of the cable operator dedicated or otherwise reserved for programming of other speakers or the government A public access channel is a public forum and laws requiring leased access channels create common carrier obligations When the government identifies certain speech on the basis of its content as vulnerable to exclusion from a common carrier or public forum strict scrutiny applies These laws cannot survive this exacting review However compelling Congress interest in shielding children from indecent programming the provisions in this case are not drawn with enough care to withstand scrutiny under our precedents Before engaging the complexities of cable access channels and explaining my reasons for thinking all of Section s 10 unconstitutional I start with the most disturbing aspect of the plurality opinion its evasion of any clear legal standard in deciding this case See ante at 11 disavowing need to declare which among the many applications of the general approach that this Court has developed over the years we are applying here The plurality begins its flight from standards with a number of assertions nobody disputes I agree of course that it would be unwise to declare a rigid single standard good for now and for all future media and purposes ante at 11 I do think it necessary however to decide what standard applies to discrimination against indecent programming on cable access channels in the present state of the industry We owe at least that much to public and leased access programmers whose speech is put at risk nationwide by these laws In a similar vein we are admonished this case is complicated not simple the importance of contextual review we are told cannot be evaded by recourse to simple analogies Ante at 9 13 18 All this is true but use of a standard does not foreclose consideration of context Indeed if strict scrutiny is an instance of judicial formulae so rigid that they become a straitjacket that disables Government from responding to serious problems ante at 11 this is a grave indictment of our First Amendment jurisprudence which relies on strict scrutiny in a number of settings where context is important I have expressed misgivings about judicial balancing under the First Amendment see Burson v Freeman 504 U S 191 211 212 1992 concurring opinion Simon Schuster Inc v Members of N Y State Crime Victims Bd 502 U S 105 124 125 1991 opinion concurring in judgment but strict scrutiny at least confines the balancing process in a manner protective of speech it does not disable government from addressing serious problems but does ensure that the solutions do not sacrifice speech to a greater extent than necessary The plurality claims its resistance to standards is in keeping with our case law where we have shown a willingness to be flexible in confronting novel First Amendment problems The cases it cites ante at 10 11 however demonstrate the opposite of what the plurality supposes in each we developed specialized or more or less stringent standards when certain contexts demanded them we did not avoid the use of standards altogether Indeed the creation of standards and adherence to them even when it means affording protection to speech unpopular or distasteful is the central achievement of our First Amendment jurisprudence Standards are the means by which we state in advance how to test a law s validity rather than letting the height of the bar be determined by the apparent exigencies of the day They also provide notice and fair warning to those who must predict how the courts will respond to attempts to suppress their speech Yet formulations like strict scrutiny used in a number of constitutional settings to ensure that the inequities of the moment are subordinated to commitments made for the long run see Simon Schuster supra at 115 116 Perry Ed Assn v Perry Local Educators Assn 460 U S 37 45 1983 mean little if they can be watered down whenever they seem too strong They mean still less if they can be ignored altogether when considering a case not on all fours with what we have seen before The plurality seems distracted by the many changes in technology and competition in the cable industry See ante at 11 12 ante at 3 4 Souter J concurring The laws challenged here however do not retool the structure of the cable industry or with the exception of Section s 10 b involve intricate technologies The straightforward issue here is whether the Government can deprive certain speakers on the basis of the content of their speech of protections afforded all others There is no reason to discard our existing First Amendment jurisprudence in answering this question While it protests against standards the plurality does seem to favor one formulation of the question in this case namely whether the Act properly addresses an extremely important problem without imposing in light of the relevant interests an unnecessarily great restriction on speech Ante at 12 Though the plurality frowns on any effort to settle on a form of words it likes this formulation well enough to repeat it see ante at 11 This description of the question accomplishes little save to clutter our First Amendment case law by adding an untested rule with an uncertain relationship to the others we use to evaluate laws restricting speech The plurality cannot bring itself to apply strict scrutiny yet realizes it cannot decide the case without uttering some sort of standard so it has settled for synonyms Close judicial scrutiny ante at 11 12 is substituted for strict scrutiny and extremely important problem ante at 12 or extraordinary problem ante at 11 is substituted for compelling interest The admonition that the restriction not be unnecessarily great in light of the interest it serves ante at 12 is substituted for the usual narrow tailoring requirements All we know about the substitutes is that they are inferior to their antecedents We are told the Act must be appropriately tailored ante at 11 sufficiently tailored ante at 12 or carefully and appropriately addressed ante at 18 to the problems at hand anything evidently except narrowly tailored These restatements have unfortunate consequences The first is to make principles intended to protect speech easy to manipulate The words end up being a legalistic cover for an ad hoc balancing of interests in this respect the plurality succeeds after all in avoiding the use of a standard Second the plurality s exercise in pushing around synonyms for the words of our usual standards will sow confusion in the courts bound by our precedents Those courts and lawyers in the communications field now will have to discern what difference there is between the formulation the plurality applies today and our usual strict scrutiny I can offer little guidance except to note the unprotective outcome the plurality reaches here This is why comparisons and analogies to other areas of our First Amendment case law become a responsibility rather than the luxury the plurality considers them to be The comparisons provide discipline to the Court and guidance for others and give clear content to our standards all the things I find missing in the plurality s opinion The novelty and complexity of the case is a reason to look for help from other areas of our First Amendment jurisprudence not a license to wander into uncharted areas of the law with no compass other than our own opinions about good policy Another troubling aspect of the plurality s approach is its suggestion that Congress has more leeway than usual to enact restrictions on speech where emerging technologies are concerned because we are unsure what standard should be used to assess them Justice Souter recommends to the Court the precept First do no harm ante at 6 The question though is whether the harm is in sustaining the law or striking it down If the plurality is concerned about technology s direction it ought to begin by allowing speech not suppressing it We have before us an urgent claim for relief against content based discrimination not a dry run I turn now to the issues presented and explain why strict scrutiny is warranted Cable operators deliver programming from four sources retransmission of broadcast stations programming purchased from professional vendors including national services like ESPN and Nickelodeon and delivered by satellite programs created by the cable operator itself and access channels PEG and leased the two kinds of programming at issue here See Mueller Note Controversial Programming on Cable Television s Public Access Channels The Limits of Governmental Response 38 DePaul L Rev 1051 1056 1057 1989 hereinafter Mueller See also Turner Broadcasting supra at slip op at 3 PEG access channels grew out of local initiatives in the late 1960 s and early 1970 s before the Federal Government began regulating cable television Mueller 1061 Local franchising was the first form of cable regulation arising from the need of localities to control access to public rights of way and easements and to minimize disruption to traffic and other public activity from the laying of cable lines See D Brenner M Price M Meyerson Cable Television and Other Nonbroadcast Video Section s 3 013 1996 hereinafter Brenner Turner Broadcasting supra at slip op at 2 3 The cable medium may depend for its very existence upon express permission from local governing authorities A local government would set up a franchise authority to oversee the cable system and to negotiate a franchise agreement specifying the cable operator s rights and obligations See Brenner Section s 3 01 Section s 3 014 discussing States where local franchising has now been displaced by state regulation Cf 47 U S C Section s 522 10 defining franchise authority A franchise now mandatory under federal law except for systems operating without them prior to 1984 Section s 541 b is an authorization akin to a license by a franchise authority permitting the construction or operation of a cable system Section s 522 8 From the early 1970 s onward franchise authorities began requiring operators to set aside access channels as a condition of the franchise See Mueller 1061 1062 D Agosta C Rogoff A Norman The Participate Report A Case Study of Public Access Cable Television in New York State 24 1990 hereinafter Agosta attached as Exhibit K to Joint Comments for the Alliance for Community Media et al filed with the FCC under MM Docket No 92 258 The FCC entered the arena in 1972 requiring the cable companies servicing the country s largest television markets to set aside four access channels one each for public educational governmental and leased programming by a date certain and to add channel capacity if necessary to meet the requirement Cable Television Report and Order 36 F C C 2d 141 189 198 1972 See also In re Amendment of Part 76 of the Commission s Rules and Regulations Concerning the Cable Television Channel Capacity and Access Channel Requirements of Section 76 251 59 F C C 2d 294 303 321 1976 modifying the 1972 rules We struck down the access rules as beyond the FCC s authority under the Communications Act of 1934 FCC v Midwest Video Corp 440 U S 689 708 709 1979 When Congress turned its attention to PEG access channels in 1984 it recognized that reasonable third party access to cable systems will mean a wide diversity of information sources for the public the fundamental goal of the First Amendment without the need to regulate the content of programming provided over cable H R Rep No 98 934 p 30 1984 It declined however to set new federal mandates or authorize the FCC to do so Since almost all recent franchise agreements provide for access by local governments schools and nonprofit and community groups over some channels the 1984 Act instead continued the policy of allowing cities to specify in cable franchises that channel capacity and other facilities be devoted to such use Ibid Section 611 of the Communications Act of 1934 added by the Cable Communications Policy Act of 1984 1984 Act authorized local franchise authorities to require cable operators to set aside channel capacity for PEG access when seeking new franchises or renewal of old ones 47 U S C Section s 531 b Franchise authorities may enforce franchise agreements Section s 531 c but they lack the power to impose requirements beyond those authorized by federal law Section s 531 a But cf Section s 557 a grandfathering as valid all pre 1984 franchise agreements for the remainder of their term Federal law also allows a franchise authority to require adequate assurance that the cable operator will provide adequate public educational and governmental access channel capacity facilities or financial support Section s 541 a 4 B Prior to the passage of Section s 10 c of the 1992 Act the cable operator save for implementing provisions of its franchise agreement limiting obscene or otherwise constitutionally unprotected cable programming Section s 544 d was forbidden any editorial control over PEG access channels 47 U S C Section s 531 e 1988 ed Congress has not in the 1984 Act or since defined what public educational or governmental access means or placed substantive limits on the types of programming on those channels Those tasks are left to franchise agreements so long as the channels comport in some sense with the industry practice to which Congress referred in the statute My principal concern is with public access channels the P of PEG These are the channels open to programming by members of the public Petitioners here include public access programmers and viewers who watch their shows By contrast educational and governmental access channels the E and G of PEG serve other speakers Under many franchises educational channels are controlled by local school systems which use them to provide school information and educational programs Governmental access channels are committed by the cable franchise to the local municipal government which uses them to distribute information to constituents on public affairs Mueller 1065 1066 No local governmental entity or school system has petitioned for relief in this case and none of the petitioners who are viewers has asserted an interest in viewing educational or governmental programming or briefed the relevant issues The public access channels established by franchise agreements tend to have certain traits They are available at low or no cost to members of the public often on a first come first served basis Brenner Section s 6 043a b at 6 38 The programmer on one of these channels most often has complete control over as well as liability for the content of its show Ibid Mueller 1064 The entity managing the technical aspects of public access such as scheduling and transmission is not always the cable operator it may be the local government or a third party that runs the access centers which are facilities made available for the public to produce programs and transmit them on the access channels Brenner Section s 6 047 at 6 48 Public access channels meet the definition of a public forum We have recognized two kinds of public forums The first and most familiar are traditional public forums like streets sidewalks and parks which by custom have long been open for public assembly and discourse Perry 460 U S at 45 Hague v CIO 307 U S 496 515 1939 opinion of Roberts J The second category of public property is the designated public forum whether of a limited or unlimited character property that the State has opened for expressive activity by part or all of the public International Soc for Krishna Consciousness Inc v Lee 505 U S 672 678 1992 Public access channels fall in the second category Required by the franchise authority as a condition of the franchise and open to all comers they are a designated public forum of unlimited character The House Report for the 1984 Cable Act is consistent with this view It characterized public access channels as the video equivalent of the speaker s soapbox or the electronic parallel to the printed leaflet They provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas H R Rep No 98 934 at 30 Public forums do not have to be physical gathering places Rosenberger v Rector and Visitors of Univ of Va 515 U S 1995 slip op at 8 9 nor are they limited to property owned by the government Cornelius v NAACP Legal Defense and Ed Fund Inc 473 U S 788 800 1985 Indeed in the majority of jurisdictions title to some of the most traditional of public forums streets and sidewalks remains in private hands 10A E McQuillin Law of Municipal Corporations Section s 30 32 3d ed 1990 Hague v CIO supra at 515 Wherever the title of streets and parks may rest they have immemorially been held in trust for the use of the public and time out of mind have been used for purposes of assembly communicating thoughts between citizens and discussing public questions Public access channels are analogous they are public forums even though they operate over property to which the cable operator holds title It is important to understand that public access channels are public forums created by local or state governments in the cable franchise Section Section s 10 c does not as the Court of Appeals thought just return rightful First Amendment discretion to the cable operator see Alliance for Community Media 56 F 3d at 114 Cable operators have First Amendment rights of course restrictions on entry into the cable business may be challenged under the First Amendment Los Angeles v Preferred Communications Inc 476 U S 488 494 1986 and a cable operator s activities in originating programs or exercising editorial discretion over programs others provide on its system also are protected Turner Broadcasting 512 U S at slip op at 11 But cf id at slip op at 31 32 distinguishing discretion of cable operators from that of newspaper editors Yet the editorial discretion of a cable operator is a function of the cable franchise it receives from local government The operator s right to exercise any editorial discretion over cable service disappears if its franchise is terminated See 47 U S C Section s 541 b cable service may not be offered without a franchise Section s 546 prescribing procedures and standards for renewal Cf Brenner Section s 3 079a franchise terms of 15 years are the norm Section s 3 0715 typical franchise agreements recognize the absolute right of the franchisor to refuse renewal at expiration of term If the franchise is transferred to another so is the right of editorial discretion The cable operator may own the cables transmitting the signal but it is the franchise the agreement between the cable operator and the local government that allocates some channels to the full discretion of the cable operator while reserving others for public access In providing public access channels under their franchise agreements cable operators therefore are not exercising their own First Amendment rights They serve as conduits for the speech of others Cf PruneYard Shopping Center v Robins 447 U S 74 87 1980 Section channels that the cable operator once had the discretion never existed It vests the cable operator with a power under federal law defined by reference to the content of speech to override the franchise agreement and undercut the public forum the agreement creates By enacting a law in 1992 excluding indecent programming from protection but retaining the prohibition on cable operators editorial control over all other protected speech the Federal Government at the same time ratified the public forum character of public access channels but discriminated against certain speech based on its content The plurality refuses to analyze public access channels as public forums because it is reluctant to decide the extent to which private property can be designated a public forum ante at 12 We need not decide here any broad issue of whether private property can be declared a public forum by simple governmental decree That is not what happens in the creation of public access channels Rather in return for granting cable operators easements to use public rights of way for their cable lines local governments have bargained for a right to use cable lines

    Original URL path: http://www.law.cornell.edu/supremecourt//text/518/727 (2012-11-09)
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  • WILLIAMS, Commissioner of Finance of Tennessee, et al. v. STANDARD OIL CO. OF LOUISIANA. SAME v. TEXAS CO. | Supreme Court | LII / Legal Information Institute
    control the present case There is nothing in the point that the act in question may be justified on the ground that the sale of gasoline in Tennessee is monopolized by appellees or by either of them because objections to the materiality of the contention aside an inspection of the pleadings and of the affidavits submitted to the lower court discloses an utter failure to show the existence of such monopoly Nor need we stop to consider the further contention that appellees being foreign corporations may not carry on their business within the state except by complying with the conditions prescribed by the state While that is the general rule a well settled limitation upon it is that the state may not impose conditions which require the relinquishment of rights guaranteed by the federal Constitution Frost Trucking Co v R Com 271 U S 583 593 et seq 46 S Ct 605 70 L Ed 1101 47 A L R 457 where the applicable decisions of this court are reviewed Finally it is said that even if the price fixing provisions be held invalid other provisions of the act should be upheld as separate and distinct This contention is emphasized by a reference to section 12 of the act which declares That if any section or provision of this act shall be held to be invalid this shall not affect the validity of other sections or provisions hereof In Hill v Wallace 259 U S 44 71 42 S Ct 453 459 66 L Ed 822 it is said that such a legislative declaration serves to assure the courts that separate sections or provisions of a partly invalid act may be properly sustained without hesitation or doubt as to whether they would have been adopted even if the Legislature had been advised of the invalidity of part But the general rule is that the unobjectionable part of a statute cannot be held separable unless it appears that standing alone legal effect can be given to it and that the Legislature intended the provision to stand in case others included in the act and held bad should fall The question is one of interpretation and of legislative intent and the legislative declaration provides a rule of construction which may sometimes aid in determining that intent But it is an aid merely not an inexorable command Dorchy v Kansas 264 U S 286 290 44 S Ct 323 325 68 L Ed 686 In the absence of such a legislative declaration the presumption is that the Legislature intends an act to be effective as an entirety This is well stated in Riccio v Hoboken 69 N J Law 649 662 55 A 1109 1113 63 L R A 485 where the New Jersey Court of Errors and Appeals in an opinion delivered by Judge Pitney afterward a justice of this court after setting forth the rule as above said In seeking the legislative intent the presumption is against any mutilation of a

    Original URL path: http://www.law.cornell.edu/supremecourt//text/278/235 (2012-11-09)
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