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Case: United States v. Biswell1
Facts: Biswell operated a pawn shop and had a license to sell "sporting weapons". Treasury
agents demanded to inspect Biswell's locked storeroom. The officials claimed that, the Gun
Control Act of 1968 gave them the right to search without a warrant.
That law says, in part, "the Secretary [of the Treasury] may enter during business hours the
premises of any firearms dealer for the purpose of inspecting or examining (1) any records or
documents required to be kept by such dealer, and (2) any firearms or ammunition kept or stored by
such dealer."
Biswell voluntarily opened the storeroom, and the agent found two sawed-off rifles inside. The
guns did not remotely meet the definition of "sporting weapons," and Biswell was convicted on
firearms charges.
The appellate court found that, because the search violated the Fourth Amendment, the rifles
could not be admitted as evidence. It reversed the conviction, and the government appealed to the
Supreme Court.
Issue: Did the agent’s warrantless search violate the Constitution?
Excerpts from Justice White's Decision: When the officers asked to inspect respondent's locked
storeroom, they were merely asserting their statutory right, and respondent was on notice as to
their identity and the legal basis for their action. Respondent's submission to lawful authority and
his decision to step aside and permit the inspection rather than face a criminal prosecution is
analogous to a householder's acquiescence in a search pursuant to a warrant when the alternative is
a possible criminal prosecution for refusing entry or a forcible entry. In neither case does the
lawfulness of the search depend on consent; in both, there is lawful authority independent of the
will of the householder who might, other things being equal, prefer no search at all.
In the context of a regulatory inspection system of business premises that is carefully limited in
time, place, and scope, the legality of the search depends not on consent but on the authority of a
valid statute.
Federal regulation of the interstate traffic in firearms is undeniably of central importance to
federal efforts to prevent violent crime. Large interests are at stake, and inspection is a crucial part
of the regulatory scheme.
Here, if inspection is to be effective and serve as a credible deterrent, unannounced, even
frequent, inspections are essential. In this context, the prerequisite of a warrant could easily
frustrate inspection; and if the necessary flexibility as to time, scope, and frequency is to be
preserved, the protections afforded by a warrant would be negligible.
It is also plain that inspections for compliance with the Gun Control Act pose only limited
threats to the dealer's justifiable expectations of privacy. When a dealer chooses to engage in this
pervasively regulated business and to accept a federal license, he does so with the knowledge that
his business records, firearms, and ammunition will be subject to effective inspection. Each
licensee is annually furnished with a revised compilation of ordinances that describe his
obligations. The dealer is not left to wonder about the purposes of the inspector or the limits of his
task.
We have little difficulty in concluding that where, as here, regulatory inspections further urgent
federal interest, and the possibilities of abuse and the threat to privacy are not of impressive
dimensions, the inspection may proceed without a warrant where specifically authorized by statute.
The seizure of respondent's sawed-off rifles was not unreasonable under the Fourth Amendment,
the judgment of the Court of Appeals is reversed, and the case is remanded to that court.
Question: What if this was a search of a private home?
1 406 U.S. 311, SUPREME COURT OF THE UNITED STATES (1972)
Question: Does the owner of commercial property have a different expectation of privacy than
that of a homeowner?
Answer: Yes; there is a greater latitude to conduct warrantless searches/inspections of
Additional Case: Doe v. Maryland Board of Social Works2
Facts: “Mrs. F” was a licensed social worker in Maryland. One of her clients, “John Doe,” was
convicted of child abuse and sex offenses involving his minor granddaughter. The Board of Social
Work Examiners, an administrative agency, learned that Mrs. F. had likely violated the law by failing to
report the abuse. The agency began an investigation, and issued a subpoena duces tecum to Mrs. F.,
demanding all treatment records for John Doe and his wife Jane Doe, for the year in which the abuse
occurred.
The Does (“Petitioners”) sued, asking the court to quash the subpoena. They claimed that a social
worker-client privilege prohibited disclosure of their records. The intermediate court of appeals
declared the subpoena valid. The Does appealed to the state’s highest court.
Issue: Was the subpoena valid?
Holding: Validity of subpoena affirmed. It wrote:
A state statute affords social workers and their clients similar protections that have long been
applicable to other relationships where privacy issues and the need for open communication are of
paramount importance, e.g., marital privilege, attorney—client privilege, psychiatrist/psychologist
—patient privilege, clergyman—communicant privilege, etc. We consider the information
contained in those treatment records to be both confidential and privileged. Therefore, we must
examine the Board's claim that its subpoena power and obligation to oversee the conduct of the
licensed social workers of this State provides an exception to petitioners' privilege and
confidentiality rights as provided by law.
The Board’s interests in obtaining Ms. F’s treatment records are clearly compelling. The legislature
established the Board to protect the public by setting and maintaining high professional standards
for social work. As the Court of Special Appeals stated: "To deny the Board access to patient files
is to deny it the ability to carry out its legislative mandate.”
Neither the social worker—client privilege nor any claim concerning petitioners' constitutional
right to privacy automatically prevents the Board from subpoenaing petitioners' treatment records.
While the Board is required by law to protect the petitioners' treatment records from further
disclosure, the Board must be allowed to have access to those treatment records in order to fulfill
its statutory mandate to protect the public by conducting a full investigation and, where
appropriate, disciplining those licensed social workers who are found to be in violation of the
[law].
Question: Did the Does move to quash the subpoena only because they sought to block the
investigation?
Answer: They had a valid basis for their claim. The court acknowledged that the Does’
Question: If those communications were confidential, than why may the Board of Social Work
abrogate the Does’ privilege?
Answer: The Board must balance competing interests. It must balance the policies served by the
2 384 Md.161, 862 A.2d 996 Maryland Court of Appeals, 2004
Question: What facts support abrogating the privilege in this case?
Answer: Mrs. F, the Does’ social worker, may have violated her legal duty to report Mr. Doe’s
General Question: If in reviewing the records the Board discovered evidence that the Does had
committed other crimes, could the Board act on its knowledge?
Limits on Agency Power
The four most important limitations on the power of federal agencies are statutory control in the
enabling legislation and the APA; political control by Congress and the president; judicial review; and
the informational control created by the Freedom of Information Act and the Privacy Act. Control can
often be affected by means other than lawsuits and legislation. How much deference do courts employ
in reviewing administrative decisions?
Case: Fox Television Stations, Inc. v. Federal Communications
Commission3
567 U.S. ____, 132 S.Ct. 2307
United States Supreme Court, 2012
Facts: U.S. law provides that “[w]hoever utters any obscene, indecent, or profane language by
means of radio communication shall be fined . . . or imprisoned not more than two years, or
both.” The Federal Communications Commission (Commission) has been instructed by
Congress to enforce this law between the hours of 6 a.m. and 10 p.m.</CSTX1>
In the 2002 Billboard Music Awards, broadcast by Fox, the singer Cher exclaimed: “I’ve
also had my critics for the last 40 years saying that I was on my way out every year. Right. So
f*** ’em.” [During Fox’s] Billboard Music Awards in 2003, Nicole Richie made the following
unscripted remark while presenting an award: “Have you ever tried to get cow s*** out of a
Prada purse? It’s not so f ***ing simple.” During [NBC’s] 2003 Golden Globe Awards, the
singer Bono exclaimed: “This is really, really, f ***ing brilliant. Really, really great,”upon
winning the award for Best Original Song.
The Commission had long held that fleeting, or single and unscripted, expletives were
not indecent. But after the first two incidents, involving Cher and Ritchie, the Commission
changed its policy, holding that that even one-time use could be a violation. It then punished
NBC for Bono’s use of the F-word. Even though the Cher and Nicole Ritchie incidents took
place before this policy change, the Commission retroactively applied its new policy to them
and found Fox to be in violation of it.
Fox challenged the Commission’s indecency regulations, claiming it did not have fair notice
of what was forbidden. The Second Circuit found the policy was vague and, as a result,
unconstitutional because it failed to give broadcasters sufficient notice of what would be
3 613 F.3d 317, 2d Circuit Court of Appeals, 2010.
considered indecent and because the Commission acted inconsistently. The Commission had on
occasion found the fleeting use of the F-word and the S-word not indecent provided they
occurred during a news interview or were “essential to an artistic or educational work.” This
standard left broadcasters guessing.
Issue: Did the Commission give broadcasters fair notice of its policies?
Excerpts from Justice Kennedy’s Opinion: A fundamental principle in our legal system is that
laws which regulate persons or entities must give fair notice of conduct that is forbidden or
required. This requirement of clarity in regulation is essential to the protections provided by the
Due Process Clause of the Fifth Amendment. It requires the invalidation of laws that are
impermissibly vague.
Even when speech is not at issue, the regulated parties should know what is required of
them so they may act accordingly. Precision and guidance are necessary so that those enforcing
the law do not act in an arbitrary or discriminatory way.
In 2001, the Commission stated that for material to be indecent it must depict sexual or
excretory organs or activities and be patently offensive as measured by contemporary
community standards. A key consideration was “whether the material dwell[ed] on or
repeat[ed] at length.” In 2004, the Commission changed course and held that fleeting expletives
could be a statutory violation. Now the Commission determined fleeting expletives were
actionably indecent.
This history makes it apparent that the Commission policy in place at the time of the
broadcasts gave no notice to Fox that a fleeting expletive could be actionably indecent; yet Fox
[was] found to be in violation. The Commission’s standards were vague. The lack of notice and
vague standards render the Commission’s policy unconstitutional. The Commission’s orders
must be set aside.
Question: Other than “fair notice,” what other principle did the FCC violate in this case?
Question: What is the source upon which the Court relies when it determines that entities must
be given fair notice of conduct that is forbidden or required?
Question: What is the petition asking the Supreme Court to hear a case called?
Freedom of Information Act
Additional Case: Perlman v United States Department of Justice4
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 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 10 American workers. The
INS approved for inclusion in the EB-5 program the use of limited partnerships to which foreign
4 312 F.3d 100; 2002 U.S. App. LEXIS 24070 U.S. Court of Appeals for the Second Circuit 2002
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
“(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?
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?
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. When courts interpret statutes, they ask ___.
(a) what the words in the statute ordinarily mean
(b) which political parties endorsed the law
(c) what Congress intended the law to do
(d) whether or not the law supports good public policy
(e) all of the above, except (b)
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
Case 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
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
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 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
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 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 baseball is not “trade or commerce.” Suppose members of congress dislike
this ruling and the current condition of baseball. What can they do?
Answer: The congressman could introduce a bill overruling the Supreme Court's interpretation of
Discussion Questions
1. Courts generally follow precedent, but in the Tarasoff and Soldano cases discussed early in this
chapter, they did not. Consider the opening scenario based on the Seinfeld season finale. Should
Jerry and his friends bear any civil legal responsibility for the carjacking or should a court follow
precedent and hold the smug bunch blameless?
2. Revisit the Fox 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. This chapter presents various examples where the law intersects with ethics. Jerry and his friends
were rude and refused to help. Cher and Nicole Ritchie uttered profanity on live national television
at a time when children were watching. What are your Life Principles on these issues?
4. During live national coverage of a Super Bowl half-time show, Justin Timberlake tore off part of
Janet Jackson’s shirt, exposing her breast for nine-sixteenths of a second. Television network CBS
called it a “wardrobe malfunction,” but the “malfunction” coincidentally occurred just as
Timberlake was singing the lyrics, “Gonna have you naked by the end of this song.” The FCC
fined CBS $550,000 but the network challenged the fine in court. The appeals court held CBS did
not have to pay because the FCC did not have a clear policy on momentary displays of nudity. Do
you agree with this conclusion? Do you think the incident was intentional or truly accidental? If it
was intentional, should CBS have known better, regardless of FCC policies? If it was accidental,
should CBS still be held accountable? Should it matter if it was intentional or accidental?
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?
