Additional Case: Leonard R. Friedman v. Board of Registration in
Medicine1
Facts: The patient first saw Friedman, a board-certified forensic psychiatrist, at his office in 1980. She
continued to visit him at least monthly until the summer of 1982. During a board hearing, the board
found that during one or more of three office visits some form of sexual activity took place between
Friedman and the patient. The board’s decision recounts patient’s testimony regarding what happened
on these occasions, but it does not make explicit findings about what occurred.
The board should not have simply recited the patient’s testimony. It should have made findings of fact
based on, or in rejection of, her testimony. It is clear, however, that the board disbelieved Friedman’s
denials and rejected his claim that the patient was out to get even with him. The board found that
Friedman had exploited the patient sexually. Psychiatrist appealed.
Among the substantial evidence was testimony concerning a telephone conversation between the
patient and Friedman. Patient’s son listened to the conversation on an extension line. In that
conversation, the patient accused Friedman of sexual exploitation. Friedman did not deny the
accusation.
Neither during the telephone conversation nor at the hearing did Friedman admit to the truthfulness of
the patient’s statements. He testified that it would have been inappropriate in the circumstances if he
had called her a liar during the telephone conversation.
Issue: Did the hearing officer err when he found that Dr. Friedman had sexually exploited his patient
even the hearing officer failed to make findings about what had occurred?
Holding: The Board finds that there was no error. The Board of Registration in Medicine revoked the
registration of a forensic psychiatrist to practice medicine on the ground that the psychiatrist, who
participated in sexual conduct with a patient during one or more office visits, had engaged in gross
misconduct in the practice of medicine.
Question: What does it mean for the Board to make findings about the testimony?
Answer: A finding is a decision or verdict based on facts or evidence presented during a trial.
Question: Why is that an issue here?
Answer: Mere recitation of facts cannot justify a judgment. A judge must decide the case based on
Limits on Agency Power
The four most important limitations on the power of federal agencies are statutory control in the
enabling legislation and the Administrative Procedure Act; political control by Congress and the
President; judicial review; and the informational control created by the Freedom of Information Act
and the Privacy Act.
Students should understand that control can often be affected by means other than lawsuits and
legislation. Students should pay particular attention to the amount of deference courts employ in
reviewing administrative decisions, which is discussed in the text.
1 408 Mass. 474, Supreme Judicial Court of Massachusetts, Suffolk.
1
Case: Fox Television Stations, Inc. v. Federal Communications
Commission2
Facts: “People have been telling me I’m on the way out every year, right? So f*** ’em,” said Cher, on
a televised Billboard Music Awards ceremony. A year later, on the same program, Nicole Richie asked,
“Have you ever tried to get cow s*** out of a Prada purse? It’s not so f****** simple.”
U.S. law bans the broadcast of “any obscene, indecent, or profane language.” The Federal
Communications Commission (FCC), which regulates the broadcast industry, had issued guidelines
indicating that the utterance of an isolated vulgarity was acceptable so long as it was not repeated at
length. After Nicole Richie explained the difficulties of cleaning a Prada purse, the FCC declared a
more stringent indecency policy. This stricter standard made a single fleeting expletive punishable if
the word was “patently offensive”. But the FCC failed to give a clear definition of the term, and it
enforced the new rule unevenly. For example, it allowed bad language during news interviews and
films, but condemned the same words in other contexts.
When the FCC found that Fox had violated the agency’s standards by broadcasting Cher and Nicole
Richie’s three words, Fox argued that the new policy was too vague and arbitrary. The Appeals Court
agreed with Fox. The Supreme Court granted certiorari.
Issue: Was the FCC’s indecency policy unacceptably vague and arbitrary?
Decision: Yes, the FCC had failed to give broadcasters fair notice of what kind of conduct could be
punished. And it did not apply the rules equally to everyone.
Reasoning: The FCC has the right to set and change its policies. However, laws must provide a person
of ordinary intelligence with reasonable notice of what behavior is prohibited. How could Fox have
Clear rules also ensure that government agencies do not act in an arbitrary or discriminatory fashion.
To be fair, they must treat the same behavior in the same way. Never before had the FCC penalized this
Question: Does the court’s ruling mean that it agrees with the networks and fleeting use of
expletives in broadcasts is legitimate?
Answer: No. The court does not consider that issue on its merits. Instead, the court asks whether
Question: Why did the court decide that the FCC decision was not well-reasoned?
Answer: The court decided that the FCC’s decision was not well-reasoned because many of the
justifications for the change in policy offered by the FCC are contrary to the agency’s practice. For
Question: Doesn’t it seem to be a good public policy to prohibit expletives on network broadcasts
when children could be watching or listening? Why doesn’t the court exercise its power to ban
such language?
Answer: Even if the court agreed with the FCC, it must make sure the FCC operates within its
Freedom of Information Act (FOIA)
Congress passed the landmark Freedom of Information Act (known as “FOIA”) in 1966. It is designed
to give all of us, citizens, businesses, and organizations alike, access to the information that federal
agencies are using. The idea is to avoid government by secrecy.
2 613 F.3d 317, 2d Circuit Court of Appeals, 2010.
Additional Case: Perlman v United States Department of Justice3
Facts: Perlman filed a request under FOIA with the Department of Justice (“DOJ”) seeking the release
of a 143-page Report of Investigation (“ROI”) by DOJ’s Office of the Inspector General. The ROI
discussed allegations of impropriety on the part of Immigration and Naturalization Service (“INS”)
officials in running the EB-5 Investor Visa Program (“EB-5”), created in 1990 to offer special American
visas to wealthy foreigners who invested between $500,000 and $1 million in business ventures
employing at least ten American workers. The INS approved for inclusion in the EB-5 program the use
of limited partnerships to which foreign investors contributed cash in an amount less than $500,000 and
pledged promissory notes to meet the minimum investment required by the EB-5 program.
Participating investors could thus obtain a green card without having to put up the remaining money.
Allegations surfaced that former INS officials who were involved with these partnerships received
improper preferential treatment from current INS employees. The DOJ’s Inspector General investigated
the allegations, particularly the role of Paul Virtue, former INS deputy general counsel and produced
the ROI. The ROI consists of (1) a synopsis, (2) a subject of investigation form, containing basic
information on Virtue, (3) a list of the 40 memoranda of investigation (“MOIs”), and (4) the MOIs.
The DOJ’s Office of Inspector General denied Perlman’s FOIA request, relying on two FOIA
exemptions: Exemption 6, concerning personnel and similar files, and Exemption 7(C), concerning
reports compiled for law enforcement purposes. Perlman administratively appealed the denial. In
response to Perlman’s administrative appeal DOJ’s Office of Information and Privacy ordered the
disclosure of 49 report pages, most redacted in some respect, but otherwise upheld the prior denial.
Perlman filed a lawsuit challenging the agency’s failure to release the entire ROI. After the DOJ moved
for summary judgment the trial court conducted in camera review of the entire ROI and granted DOJ’s
motion in part and denied it in part. It found the ROI was compiled for law enforcement purposes
because it investigated possible violations of law by Virtue and was covered by Exemption 7(C). It also
determined that the ROI was a “similar file” because it contained private information similar to that
contained in personnel files, bringing it within Exemption 6. The District Court further found Virtue’s
privacy interests in withholding the ROI outweighed the public’s interest in disclosure.
Issue: Did Exemptions 7(C) and 6 exempt the ROI from disclosure under FOIA?
Holding: The court agreed with the trial court that Exemption 7(C) applied to the ROI prepared by the
DOJ’s Inspector General. Perlman argued that Exemption 7(C) did not apply because the ROI
concerned an investigation of the EB-5 program as a whole, not Virtue personally. Review of a claim
under Exemption 7(C) involves two steps: “a document must first be shown to have been compiled for
a law enforcement purpose, and if so, the agency must also demonstrate that release of the material
would result in one of the… harms specified in the [FOIA].” An Inspector General of a federal agency
engages in law enforcement activities for purposes of FOIA. The court’s in camera review of the ROI
led it to conclude that it was prepared for law enforcement purposes and thus within the scope of
Exemption 7(C).
The court also disagreed with Perlman’s argument that Exemption 6 did not apply because “the ROI
was similar to a personnel file because (1) the ROI did not involve a disciplinary proceeding; and (2)
the ROI responded to specific allegations, not routine record keeping requirements.” Exemption 6
allows an agency to withhold “personnel and medical files and similar files.” The term “similar files” is
to be construed broadly. The ROI contains personal information about Virtue and his alleged
misconduct and qualifies as a similar file under Exemption 6.
These conclusions did not end the court’s analysis. Perlman argued that the public’s interest in
disclosure of the investigation into the EB-5 program outweighed the privacy interests of those
mentioned in the ROI. The court disagreed with Perlman as to the privacy interests of witnesses and
third parties, but concluded “that the public’s interest in disclosure of the ROI, with limited exceptions,
substantially outweighs Virtue’s privacy interests.” With respect to Virtue the court considered
3 312 F.3d 100; 2002 U.S. App. LEXIS 24070 U.S. Court of Appeals for the Second Circuit 2002.
“(1) the government employee’s rank; (2) the degree of wrongdoing and strength of evidence
against the employee; (3) whether there are other ways to obtain the information; (4) whether the
information sought sheds light on a government activity; and (5) whether the information sought is
related to job function or is of a personal nature. The factors are not all inclusive and no one factor
is dispositive.”
Virtue’s status as former INS deputy general counsel, role as administrator of the EB-5 program and
overseer of the investor limited partnerships, and the investigation’s focus on the manner in which
government employees discharged their duties, all weighed in favor of disclosure. The court remanded
the matter for further proceedings consistent with its opinion.
Question: The Court of Appeals concluded that the ROI fell within Exemptions 7(C) and 6. Why
didn’t that end the court’s analysis?
Answer: The FOIA also required a court to balance the privacy interests of those mentioned in the
Question: The court concluded that disclosure was warranted with respect to Virtue. How can that
be accomplished while protecting the privacy interests of witnesses and third parties?
Answer: The INS can redact the report before releasing it, i.e. remove from the body of the report
Privacy Act
This 1974 statute prohibits federal agencies from giving information about an individual to other
agencies or organizations without written.
Multiple Choice Questions
1. A bill is vetoed by ________________.
(a) The Speaker of the House
(b) A majority of the voting members of the Senate
(c) The President
(d) The Supreme Court
2. If a bill is vetoed, it may still become law if it is approved by __________________.
(a) 2/3 of the Supreme Court
(b) 2/3 of registered voters
(c) 2/3 of the Congress
(d) The President
(e) An independent government agency
3. Which of the following Presidents was most influential in the passing of the Civil Rights Act?
(a) Franklin D. Roosevelt
(b) Ronald Reagan
(c) Abraham Lincoln
(d) John F. Kennedy
(e) George W. Bush
4. Under the Freedom of Information Act, any citizen may demand information about
(a) How an agency operates
(b) How an agency spends its money
(c) Files an agency has collected on the citizen herself
(d) All of the above
5. If information requested under the Freedom of Information Act is not exempt, an agency has
_________ to comply with the request.
(a) 10 days
(b) 30 days
(c) 3 months
(d) 6 months
Essay Questions
1. Until recently, every state had a statute outlawing the burning of American flags. But in Texas v.
Johnson, the Supreme Court declared such statutes unconstitutional, saying that flag burning is
symbolic speech, protected by the First Amendment. Does Congress have the power to overrule the
Court’s decision?
Answer: No. When the Supreme Court declares that the Constitution protects an activity, such as
flag burning, that is the final word. This is different from the Griggs-Wards Cove dispute. There,
2. In 1988, terrorists bombed Pan Am Flight 103 over Lockerbie, Scotland, killing all passengers on
board. Congress sought to remedy security shortcomings by passing the Aviation Security
Improvement Act of 1990, which, among other things, ordered the Federal Aviation Authority
(FAA) to prescribe minimum training requirements and staffing levels for airport security. The FAA
promulgated rules according to the informal rulemaking process. However, the FAA refused to
disclose certain rules, concerning training at specific airports. A public interest group called Public
Citizen, Inc., along with family members of those who had died at Lockerbie, wanted to know the
details of airport security. What steps should they take to obtain the information? Are they entitled
to obtain it?
Answer: The groups should, and did, file an “FOIA request”–i.e., a request for documents pursuant
to the Freedom of Information Act. Most agency information must be made available to the public.
3. The Aviation Security Improvement Act (ASIA) states that the FAA can refuse to divulge
information about airport security. The FAA interprets this to mean that it can withhold data in
spite of the FOIA. Public Citizen and the Lockerbie family members interpret FOIA as being the
controlling statute, requiring disclosure. Is the FAA interpretation binding?
Answer: No. Pursuant to the Chevron case, a court will look to see if there is clear congressional
intent. If there is, it must be followed. If there is not, then the agency’s interpretation will be
4. An off-duty, out-of-uniform police officer and his son purchased some food from a 7-Eleven store
and were still in the parking lot when a carload of teenagers became rowdy. The officer went to
speak to them and the teenagers assaulted him. The officer shouted to his son to get the 7-Eleven
clerk to call for help. The son entered the store, told the clerk that a police officer needed help, and
instructed the clerk to call the police. He returned 30 seconds later and repeated the request, urging
the clerk to say it was a Code 13. The son claimed that the clerk laughed at him and refused to do
it. The policeman sued the store. Argument for the Store: We sympathize with the policeman and
his family, but the store has no liability. A bystander is not obligated to come to the aid of anyone
in distress unless the bystander created the peril, and obviously, the store did not do so. The
policeman should sue those who attacked him. Argument for the Police Officer: We agree that in
general a bystander has no obligation to come to the aid of one in distress. However, when a
business that is open to the public receives an urgent request to call the police, the business should
either make the call or permit someone else to do it.
Answer: The Maryland high court established another exception to the bystander rule. “It is
evident…that a shopkeeper has a legal duty to come to the assistance of an endangered business
5. Federal antitrust statutes are complex, but the basic goal is straightforward: to prevent a major
industry from being so dominated by a small group of corporations that they destroy competition
and injure consumers. Does Major League Baseball violate the antitrust laws? Many observers say
that it does. A small group of owners not only dominate the industry, but actually own it,
controlling the entry of new owners into the game. This issue went to the United States Supreme
Court in 1922. Justice Holmes ruled, perhaps surprisingly, that baseball is exempt from the antitrust
laws, holding that baseball is not “trade or commerce.” Suppose that members of Congress dislike
this ruling and the current condition of baseball. What can they do?
Answer: The congressmen could introduce a bill overruling the Supreme Court’s interpretation of
Discussion Questions
1. Courts generally follow precedent, but in the Tarasoff and Soldano (Chapter 1) cases discussed early
in this chapter, they did not. Consider the opening scenario at the Old Abandoned Mill. Should the
hiker bear any legal responsibility for Gary’s untimely end? Or, should a court follow precedent and
hold the lazy hiker blameless?
2. Revisit the Fox Television Stations case. Do you agree with the opinion? What would a sensible
broadcast obscenity policy contain? When, if ever, should a network face fines for airing bad
language?
3. Revisit United States v. Biswell. Do you agree with the Court’s decision? Is it reasonable that
government agencies can conduct searches more freely if a business is in an industry that is
comprehensively regulated? Should a pawnshop face more searches than other kinds of enterprises,
or should the rules be the same for all companies?
4. FOIA applies to government agencies, but it exempts Congress. Should top lawmakers be obligated
to comply with FOIA requests, or would that create more problems than it would solve?
5. Suppose you were on a state Supreme Court and faced with a restaurant-choking case. Should you
require restaurant employees to know and employ the Heimlich maneuver to assist a choking
victim? If they do a bad job, they could cause additional injury. Should you permit them to do
nothing at all? Is there a compromise position? What social policies are most important?