Which issue is more important when it comes to utilizing scarce federal judicial resources:
- Can a student who unfurls a sign that says BONG HITS 4 JESUS sue his principal for suspending him?
- Which farting plush doll is the genuine one? Does “Pull My Finger Fred®” or “Fartman” have the exclusive right to fart and say “did somebody step on a duck?” and “silent but deadly” when its finger is pulled?
- Can federal officials be held liable when they retaliate against a property owner who refuses to surrender an easement across his land by cancelling the landowner’s easements across public property, filing false criminal charges against him, harassing the landowner’s guests, and “inciting a neighbor to ram his truck into the [landowner] while he was on horseback.”
I juxtapose these issues — all presented in cases argued or decided on Monday — not to disparage the importance of legal protection for sophomoric statements and scatological plushy toys. Instead, the contrast between the issues highlights one of the major concerns voiced in Monday’s oral arguments in Wilkie v. Robbins, the third case noted above.
The justices questioned both counsel whether recognizing either a RICO or Bivens cause of action for retaliation for the exercise of a Fifth Amendment right would somehow throw open the federal courthouse doors to claims by property owners alleging their Fifth Amendment rights have been violated — doors the Court has been very good at slamming shut lately in Kelo, Lingle, and especially San Remo. Justice Breyer, for example, stated:
What is worrying me throughout is, put this case to the side. If the Court recognizes what I take it has not happened in the past, that there is an action for private people to bring against the government, Bivens, under the Fifth Amendment, all of a sudden vast numbers of regulations, the coal pillars in Holmes case [Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)], everything south of that will be suddenly in Federal court as people claim that what’s going on with this regulation is there are individuals in the government who have gone too far, and they are just trying to get my property and the use of it, without paying a fair price. Now, by the way, sometimes people in government do go too far, so many of those claims might have some justification. But suddenly I see the possibility of this kind of action becoming a major roadblock, an obstacle sometimes used unjustifiably, and not necessarily, not necessary, this kind of thing, to impose a roadblock to totally legitimate government regulatory action. (Tr. 34-35).
The concern of chilling the regulators turns the usual constitutional analysis on its head. In First Amendment jurisprudence, for example, vague and potentially overrestrictive speech regulations are invalid because they might impede someone from speaking out; we don’t ask whether allowing First Amendment damage claims will chill government officials in the exercise of their duties. The major impact of Fourth Amendment law is designed to check the conduct of the police. To paraphrase Justice Brennan’s dissent in San Diego Gas & Elec. Co. v. City of San Diego, “if a policeman must know the Constitution, why not a BLM official?”
The “floodgate” argument seems to carry a lot more weight when constitutional property rights are at stake than when other rights are alleged to have been violated. But when cases involving advocacy of “bong hits” and flatulating dolls merit the federal courts’ rapt attention, it strikes me as quite odd that allegations of renegade behavior by federal officials might be deemed to be worthy only of administrative appeals, letters to inspectors general, and state courts.
Finally, two notes on the Fartman case that I cannot let pass:
First, instead of the usual stiff introductions, the Seventh Circuit oral arguments beganwith a fart, “pull my finger,” and the appellant’s lawyer stating “Mayit please the court…I along with my partner…represent Fartman andFartboy.” The oral arguments are worth a listen, if only to hear lawyers and federal appellate judges utter the immortal phrases “at bottom this is a goofy funny little product, but its an important issue,” “but can he fart?,” and “Count Fartula,” and citing Who Cut the Cheese: The Cultural History of the Fart as authority. Classic.
Second, a prediction: this case will generate a record number of silly titles in future law reviewcasenotes, e.g., “He Who Denied It, Supplied It: Pull My Finger Fred v. Fartman, and the Meaning of “Original Expression” in Copyright Law” — the comic possibilities are endless.
Save us all if SCOTUS grants cert review.