This week, the Court considers a free speech challenge to credit card surcharges, litigation sanctions, and what standards for a free appropriate public education for students with disabilities. Next week, the Court takes on both disparaging trademarks and the rights of detainees who claim they were held in severe conditions of confinement based only on racial profiling.
Tuesday, January 10
An interesting case this morning involves claims of free speech rights in an unusual context: credit card fees. Merchants pay a fee to credit card companies, but ten states prohibit them from passing on that fee as a “surcharge.” The group of merchants in Expressions Hair Design v Schneiderman argue that this prohibition is an unconstitutional limitation on speech. The Second Circuit rejected that, holding that it only regulates commercial practices (conduct, not speech), but the merchants note that the law allows them to offer a discount for paying with cash, so as a practical matter, it regulates what they call it rather than what they charge.
The second case, Goodyear Tire & Rubber Co. v. Haeger, involves the scope of a court’s inherent power to award attorney fees and other sanctions where a party engages in some form of litigation misconduct.
Wednesday, January 11
The Individuals with Disabilities Education Act (IDEA) requires states to provide children with disabilities with a “free appropriate public education” (FAPE), but that is not fully defined. Some courts, including the lower courts in this case (Endrew F. v. Douglas County School District), have held that it requires only that the state provide some sort of education that is of more than minimal value to the student. Other courts, and the Obama Administration in this case, have argued that this is not enough, and the standard should involve a “meaningful” education.
[This is the only case being argued today, and is scheduled for one hour. However, the Solicitor General is arguing along with the parties, so it may run a few minutes long.]
Wednesday, January 18
Two significant and contentious issues are before the Court today.
First, the Court considers the provision in the Trademark Act that allows for refusal to register the trademark if it would “disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 U.S.C. 1052(a). The specific case (Lee v. Tam) involves Samuel Tam, who named his band The Slants in order to bring attention to discrimination against Asians, “following in the long tradition of reappropriation, in which members of minority groups have reclaimed terms that were once directed at them as insults and redirected the terms outward as badges of pride.” This case will have implications for the current name of the Washington football team, among other contentious current issues.
Next, the court considers detainee rights in Ziglar v. Abbasi and Hasty v. Abbasi, which allege that, in the aftermath of the 9/11 attacks, individuals were arrested and detained in extreme conditions on the basis of no evidence other than race, religion, and national origin. The Atlantic offers an overview and makes predictions of the sort of reception the cases are likely to receive. The Center for Constitutional Rights has detailed information about their case. [The parties had requested additional time for argument, but that was denied and the cases are considered with one hour total. I would expect it to run a little long nonetheless.]