Kaytie Hobbs, Blog Chair, University of Cincinnati Law Review
The Supreme Court is spending these hot June days handing down decision from its 2018 term. This blog post surveys a few of the more interesting holdings so far:
Gamble v. United States[1]
Held: Dual-sovereignty doctrine is upheld, allowing states and the federal government to prosecute people for the same conduct separately under their own laws.
The Fifth Amendment of the U.S. Constitution provides that it is unconstitutional for any person to be “twice put in jeopardy” “for the same offence.”[2]Terance Gamble relied on this clause when he argued that his prosecution in state and federal court for the same conduct violated the Constitution.[3]Gamble, a felon, was convicted by Alabama for unlawfully possessing a firearm before the U.S. instituted a separate proceeding against him for the same conduct.[4]
However, the Court has held repeatedly that a crime under one sovereign is not the same offenceas a crime under another sovereign within the meaning of the Amendment.[5]What followed was the dual-sovereignty doctrine: a state and the federal government may prosecute an individual for the same conduct that is brought separately under state law and federal law.[6]
Writing for the majority, Justice Alito explained that “at its core,” this provision prohibited second prosecutions against people who are acquitted or convicted of offenses.[7]The next question, then, is what can be considered an “offence” within the meaning of the Amendment.
Looking at the text of the Fifth Amendment, the Court concluded that the dual-sovereignty rule flows from the language of the Amendment itself.[8]Because those in 1791 would understand an “offence” to be a violation of a law, and because those laws would be written by one sovereign, the Court found that two sovereigns would create two laws, and therefore two “offences.” [9]
The Court also looked to precedent to strengthen its conclusion. The cited cases noted that one act might constitute two offences,[10]and that extraneous concerns like public safety could dictate separate prosecutions by states and federal governments.[11]
A practical issue concerning foreign courts was raised as well. Illustrating the problem, the majority crafted an example of a murder of a U.S. citizen in another country.[12]Without the dual-sovereignty rule, American courts would be unable to prosecute offenses that a foreign court has tried – in this example, the offense being the fictitious murder.[13]The U.S. has a valid interest in prosecuting that crime for several reasons, ranging from national-security concerns to doubting the foreign country’s judicial system.[14]
For all of those reasons, the Court upheld the dual-sovereignty rule; practically speaking, this means that prosecutors on state and federal levels will continue to prosecute people under both legal systems without fear that convictions would be later overturned.
Mission Product Holdings, Inc. v. Tempnology, LLC[15]
Held: A debtor’s rejection of a contract constitutes a breach and therefore does not take away the other party’s rights under that contract.
Debtors filing for bankruptcy have the option to reject executory contracts—contracts that have not been fully performed—under Section 365 of the Bankruptcy Code.[16]The Code further states that a debtor’s rejection of such a contract constitutes a breach.[17]In this case, the Court considered whether a debtor who rejected such a contract would rescind the licensee’s rights under that contract.[18]
Writing for the majority, Justice Kagan answered in the negative, holding that a rejection of the contract does not rescindit, but instead is considered a breach.[19]Because “breach” is not a specialized bankruptcy term, the Court looked to contract law, which provides certain avenues to the injured party of a contractual breach.
To explain the concept under ordinary contract law, the Court provided an imaginary example of an executory contract outside of the bankruptcy world: a photocopier being leased to a law firm by a dealer.[20]The dealer breaks the agreement by no longer servicing the photocopier, leaving the law firm with two choices: (1) sue for damages and continue to use the photocopier, or (2) return the machine and stop payments.[21]Delving back into the bankruptcy realm, the Court concluded that in bankruptcy, the same rule applies.[22]
From a practical standpoint, this decision could be monumental. As the majority pointed out, this section applies to any executory contracts – which applies to many types of licensing agreements, ranging from trademarks (at issue in this case) to other types of property.[23]
Manhattan Community Access Corp. v. Halleck[24]
Held: Operating a public access channel on a cable system is not a traditionally and exclusive public function, and private entities are not transformed into state actors subject to the First Amendment through that operation alone.
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.”[25]Because the First Amendment applies to governmentactors, the Court has crafted a test to evaluate situations where private entities become state actors.[26]
There are three avenues available to prove a private actor has transformed into a state actor: (1) when it performs a “traditional public function”; (2) the government compels the private entity to act a certain way; or (3) the government and the private entity work together.[27]
Here, the private entity was MNN, a private nonprofit corporation that operated public access channels.[28]MNN declined to air a film made by respondents, who then sued, arguing violation of their First Amendment rights based on content discrimination.
The Court was tasked with determining whether MNN was a private or state actor. The filmmakers argued that operating the public access channels was a government function, but the Court disagreed and found that historically, it was not exclusively a government action. The Court noted that operation was performed by private cable operators, private nonprofits, cities, and other community organizations.[29]
They also argued that MNN transformed itself into a state actor due to operating a public place for speech; again, the Court disagreed. Justice Kavanaugh stated that private entities frequently opened itself to speech, likening this situation to a comedy club open mic night or a grocery store’s community bulletin.[30]
By holding that MNN was not a state actor solely by virtue of operating public access channels allows it to retain editorial discretion, and sets favorable precedent for other private entities operating similar channels.
[1]Gamble v. United States, Slip Op. No. 17-646 (U.S. Jun. 17, 2019).
[2]U.S. Const. amend. V.
[3]Gamble, Slip. Op. No. 17-646.
[4]Id.
[5]See Fox v. Ohio, 46 U.S. 410 (1847); United States v. Marigold, 50 U.S. 560 (1850).
[6]United States v. Lanza, 260 U.S. 377, 382 (1922) (holding that conduct constituting crimes by both federal and state sovereignties are offenses against both, and therefore “may be punished by each.”)
[7]Gamble, Slip. Op. No. 17-646.
[8]Id.
[9]Id.
[10]50 U.S. 560.
[11]Fox v. Ohio, 46 U.S. 410 (1847).
[12]Gamble, Slip. Op. No. 17-646 at *5.
[13]Id.
[14]Id.
[15]Mission Prod. Holdings, Inc. v. Tempnology, LLC, No. 17-1657 (U.S. May. 20, 2019)
[16]11 U.S.C.§ 365(a).
[17]11 U.S.C. § 365(g).
[18]Mission, No. 17-1657.
[19]Id.
[20]Id. at *6.
[21]Id.
[22]Id.
[23]Id. See also The Fashion Law,The Supreme Court’s Decision in Mission Product Holdings is Significant for the Bankruptcy-Prone Fashion Industry, May 20, 2019, http://www.thefashionlaw.com/home/the-supreme-courts-decision-in-mission-product-holdings-is-significant-for-fashion. This article recognizes that the retail industry is no stranger to bankruptcy proceedings – and that it can affect brands who file for bankruptcy and attempt to end licensing agreements to use their brands.
[24]Manhattan Community Access Corp. v. Halleck, No. 17-1702 (U.S. Jun. 17, 2019).
[25]U.S. Const. amend. I.
[26]See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978).
[27]Halleck, No. 17-1702at *5.
[28]Id. at *2.
[29]Id. at 6.
[30]Id.
