978-1285860381 Chapter 4 Solution Manual Part 2

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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

(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

(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

(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

(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

(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?