The Supreme Court of the United States (SCOTUS) released several new decisions June 19 which are of interest to conservatarians. Each of the questions addressed balances the rights of the group against the rights of the individual.
The first question, “How far can a state go in restricting the speech of sex offenders to protect children?” In Packingham v. North Carolina, SCOTUS unanimously ruled that a North Carolina law which “makes it a felony for a registered sex offender ‘to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages” is unconstitutional. The court’s reasoning for this is that it “impermissibly restricts lawful speech in violation of the First Amendment.” The rationale is that the state has an interest in protecting children from sex offenders, and so a more specifically tailored law which prohibits sex offenders from using social media to troll children would be permissible, but the North Carolina law was too burdensome because it prevents “legitimate exercise of First Amendment rights.”
To put it simply — North Carolina had the right idea but took it too far. Children use all sorts of websites where there is very little chance that anyone can communicate with them, and as explained by the opinion, even sex offenders have a right to read the news and express their opinions. Look for a more focused law which follows this guidance in the future.
The next question is, “How much psychiatric assistance does a criminal defendant deserve?” In McWilliams v. Dunn, an Alabama court convicted a poor man of rape and murder after providing him with a psychiatric evaluation to determine if he was competent to stand trial and whether he had a mental illness when the crime was committed. The defendant sought neurological and neuropsychological testing while awaiting sentencing. The experts determined that he did have some neuropsychological problems. Upon this and other discoveries related to his mental health, the defendant asked for assistance from a psychiatric expert to help him review the findings. The trial court denied the request and sentenced him to death. In a five to four decision, SCOTUS held that when an indigent defendant has a mental condition that is both seriously in question and relevant to the punishment he might suffer, the State must provide “access to a competent psychiatrist who will conduct an appropriate  examination and assist in  evaluation,  preparation, and  presentation of the defense.” Justice Breyer penned the decision, joined by Kennedy, Ginsburg, Sotomayor, and Kagan. Justices Alito, Roberts, Thomas, and Gorsuch dissented.
The relatively even split amongst the justices speaks volumes about this decision. McWilliams received psychiatric and neuropsychological evaluations, just not assistance. The conservative justices felt that was sufficient, and the progressive justices believe that the state must pay an expert to join the defense team. Taxpayers will be unnecessarily burdened by this holding. Now any defendant who can establish mental health problems is entitled to a second highly paid defense team member. As one might expect, the progressives coddled the criminal.
The third question is, “Can the Patent and Trademark Office (PTO) deny a trademark because it is disparaging?” In Matal v. Tam, a rock band composed of Asian-Americans named themselves “The Slants,” to take ownership of the term. They then attempted to trademark the name. PTO denied the application under the provisions of the Lanham Act, which prohibits “the registration of trademarks that may ‘disparage … or bring … into contemp[t] or disrepute’ any ‘persons, living or dead,'” and the term “Slants” is disparaging to Asians. SCOTUS held unanimously for split reasons that the Lanham Act disparagement clause violates the First Amendment right to free speech because “It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”
SCOTUS got this exactly right. The minute that the government starts determining what sort of speech is permissible, we are on a path straight to hell. The next thing you know, society in general looks like Evergreen State College.
And our final question this week is, “Can illegal aliens who are detained in a time of war sue the government for damages?” In Ziglar v. Abbasi, illegal immigrants, whom federal agents imprisoned for three to six months after the September 11, 2001, terror attacks sued several government officials over claimed constitutional violations relating their detention based on their race or national origin, and harsh conditions, punitive strip searches, and physical abuse. Despite case law which creates a right to sue for damages when the federal government violates Constitutional rights, SCOTUS held, in a four to two decision, that while the claims against prison officials for abuse were permissible, the claims for their detention were not. Their reasoning was that the circumstances surrounding the detention were unique, being both during a time of high anxiety post-September 11 and that Congress had had many years to provide a means to get damages for this treatment, and had not done so. They further reasoned that to allow detainees in similar situations to sue U.S. officials would create a chilling effect on the ability to protect the nation in times of danger, and if anyone should put limits in place, it is Congress’ job to do it.
SCOTUS reached the right decision for the wrong reasons on this one, and this is likely to harm U.S. citizens in the future. It is entirely fair for anyone abused by government agents on U.S. soil to be allowed to seek damages for that injury, but illegal aliens are criminals by their very presence. That alone is justification for denying them rights related to detention based on protected classifications such as race, gender, etc. When SCOTUS instead chooses the politically correct choice to invoke “time of war” as their justification, suddenly there is a partial precedent for the potential suspension of the Constitutional rights of citizens as well. Look for that argument to be made in the future when a U.S. citizen is indefinitely detained based on his religion or ethnic makeup.
So, tell us, readers, did SCOTUS get it right? Should sex offenders be able to cruise social media? Can you trademark “The White Trash Bandits?” Do criminal defendants deserve psychological assistance through trial and sentencing? Do Illegal aliens have the same Constitutional rights as citizens? How would you decide? We welcome your insight in our comments section below and as always on our Facebook page.
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