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/// Analyzing Supreme Court Decisions

Directions: Read each set of summaries, opinion statements, and dissenting opinions
to learn about two cases heard by the Supreme Court in 2017. Then write a brief es-
say in response to the Your Turn question after each set.

Case 1: Nelson v. Colorado (2017)

A summary of the case, adapted from the Supreme Court’s web site:

Petitioner Shannon Nelson was convicted by a Colorado jury of two felonies and three mis-
demeanors. The trial court imposed a prison term of 20 years to life and ordered her to pay
$8,192.50 in court costs, fees, and restitution. On appeal, Nelson’s conviction was reversed
for trial error, and on retrial, she was acquitted of all charges. Petitioner Louis Alonzo Mad-
den was also convicted by a Colorado jury. The trial court imposed an indeterminate prison
sentence and ordered him to pay $4,413.00 in costs, fees, and restitution. After one of Mad-
den’s convictions was reversed on direct review and the other vacated on postconviction
review, the State elected not to appeal or retry the case.

The Colorado Department of Corrections withheld $702.10 from Nelson’s inmate account
between her conviction and acquittal, and Madden paid the State $1,977.75 after his con-
viction. In both cases, the funds were allocated to costs, fees, and restitution. Once their
convictions were invalidated, both petitioners moved for return of the funds. Nelson’s trial
court denied her motion outright, and Madden’s post-conviction court allowed a refund of
costs and fees, but not restitution. The Colorado Court of Appeals concluded that both peti-
tioners were entitled to seek refunds of all they had paid, but the Colorado Supreme Court
reversed. It reasoned that Colorado’s Compensation for Certain Exonerated Persons stat-
ute (Exoneration Act or Act), Colo. Rev. Stat. §§13–65–101, 13–65–102, 13–65–103, provided
the exclusive authority for refunds and that, because neither Nelson nor Madden had filed
a claim under that Act, the courts lacked authority to order refunds. The Colorado Supreme
Court also held that there was no due process problem under the Act, which permits Col-
orado to retain conviction-related assessments unless and until the prevailing defendant
institutes a discrete civil proceeding and proves her innocence by clear and convincing
evidence.

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Opinion of the Court by Justice Ginsburg (adapted)
When a criminal conviction is invalidated by a reviewing court and no retrial will
occur, is the State obliged to refund fees, court costs, and restitution exacted from
the defendant upon, and as a consequence of, the conviction? Our answer is yes.
Absent conviction of a crime, one is presumed innocent. Under the Colorado law
before us in these cases, however, the State retains conviction-related assessments
unless and until the prevailing defendant institutes a discrete civil proceeding and
proves her innocence by clear and convincing evidence. This scheme, we hold, of-
fends the Fourteenth Amendment’s guarantee of due process.

The Exoneration Act provides a civil claim for relief “to compensate an innocent per-
son who was wrongly convicted.” 362 P. 3d, at 1075. Recovery under the Act is avail-
able only to a defendant who has served all or part of a term of incarceration pur-
suant to a felony conviction, and whose conviction has been overturned for reasons
other than insufficiency of evidence or legal error unrelated to actual innocence.
See §13–65–102. To succeed on an Exoneration Act claim, a petitioner must show,
by clear and convincing evidence, her actual innocence of the offense of conviction.
§§13–65–101(1), 13–65–102(1). A successful petitioner may recoup, in addition to
compensation for time served, “any fine, penalty, court costs, or restitution . . . paid
. . . as a result of his or her wrongful conviction.” Id., at 1075 (quoting §13–65–103(2)
(e)(V)). Under Colorado’s legislation, as just recounted, a defendant must prove her
innocence by clear and convincing evidence to obtain the refund of costs, fees, and
restitution paid pursuant to an invalid conviction. That scheme, we hold, does not
comport with due process. Accordingly, we reverse the judgment of the Supreme
Court of Colorado

Dissenting Opinion by Justice Thomas (adapted)

The Court assumes, without reference to either state or federal law, that defen-
dants whose convictions have been reversed have a substantive right to any money
exacted on the basis of those convictions. By doing so, the Court assumes away the
real issue in these cases. As the parties have agreed, the existence of Colorado’s
obligation to provide particular procedures depends on whether petitioners have
a substantive entitlement to the money. Colorado concedes that “if [petitioners]
have a present entitlement” to the money—that is, if “it is their property”—“then
due process requires [the State to accord] them some procedure to get it back.” Tr.
of Oral Arg. 52. And Colorado acknowledges that the procedural hurdles it could
impose before returning the money “would be fairly minimal,” id., at 51, because
petitioners would need to prove only that their convictions had been reversed and
that they had paid a certain sum of money, see ibid. Similarly, petitioners concede
that if defendants in their position do not have a substantive right to recover the
money—that is, if the money belongs to the State—then Colorado need not “pro-
vide any procedure to give it back.” Id., at 53. If defendants in their position have no
entitlement to the money they paid pursuant to their reversed convictions, there
would be nothing to adjudicate. In light of these concessions, I can see no justifica-
tion for the Court’s decision to address the procedures for adjudicating a substan-

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tive entitlement while failing to determine whether a substantive entitlement exists
in the first place. In my view, petitioners have not demonstrated that defendants
whose convictions have been reversed possess a substantive entitlement, under ei-
ther state law or the Constitution, to recover money they paid to the State pursuant
to their convictions. Accordingly, I cannot agree with the Court’s decision to reverse
the judgments of the Colorado Supreme Court.

Your Turn: Write a brief essay (a) describing how this case relates to the Bill of
Rights and (b) explaining what facts, information, and interpretations were central
to the Court’s opinion. (18 points)

The Supreme Court ruled in favor of the accused on April 19, 2017, deciding 7-1 to overturn and return
the case to the state court. Chief Justice John Roberts, Justice Anthony Kennedy, Stephen Breyer, Sonia
Sotomayor, and Elena Kagan joined Justice Ruth Bader Ginsburg in writing the Court's opinion. The
provision of the legislation relating to "any fine, penalty, court costs, or restitution imposed upon and
paid by the falsely convicted individual" was found to be in violation of the Fourteenth Amendment's
protection of due process in this ruling. The petitioners are entitled to quick reimbursement of the money
paid in connection with the erroneous conviction.

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Case 2: Matal v. Tam (2017)
A summary of the case, adapted from the Supreme Court’s web site:

This case concerns a dance-rock band’s application for federal trademark registration of
the band’s name, “The Slants.” “Slants” is a derogatory term for persons of Asian descent,
and members of the band are Asian-Americans. But the band members believe that by
taking that slur as the name of their group, they will help to “reclaim” the term and drain its
denigrating force. The Patent and Trademark Office (PTO) denied the application based on
a provision of federal law known as the Lanham Act prohibiting the registration of trade-
marks that may “disparage . . . or bring . . . into contempt] or disrepute” any “persons, living
or dead.” 15 U. S. C. §1052(a).

Opinion of the Court by Justice Alito (adapted)

Because the disparagement clause applies to marks that disparage the members of a racial
or ethnic group, we must decide whether the clause violates the Free Speech Clause of the
First Amendment. And at the outset, we must consider three arguments that would either
eliminate any First Amendment protection or result in highly permissive rational-basis
review. Specifically, the Government contends (1) that trademarks are government speech,
not private speech, (2) that trademarks are a form of government subsidy, and (3) that
the constitutionality of the disparagement clause should be tested under a new “govern-
ment-program” doctrine.

The First Amendment prohibits Congress and other government entities and actors from
“abridging the freedom of speech”; the First Amendment does not say that Congress and
other government entities must abridge their own ability to speak freely. And our cases
recognize that “[the Free Speech Clause . . . does not regulate government speech.” At issue
here is the content of trademarks that are registered by the PTO, an arm of the Federal
Government. The Federal Government does not dream up these marks, and it does not
edit marks submitted for registration. Except as required by the statute involved here, 15 U.
S. C. §1052(a), an examiner may not reject a mark based on the viewpoint that it appears to
express. Thus, unless that section is thought to apply, an examiner does not inquire wheth-
er any viewpoint conveyed by a mark is consistent with Government policy or whether any
such viewpoint is consistent with that expressed by other marks already on the principal
register. Instead, if the mark meets the Lanham Act’s viewpoint-neutral requirements, regis-
tration is mandatory.

In light of all this, it is far-fetched to suggest that the content of a registered mark is gov-
ernment speech. If the federal registration of a trademark makes the mark government
speech, the Federal Government is babbling prodigiously and incoherently.

Trademarks are private, not government, speech.

We next address the Government’s argument that this case is governed by cases in which
this Court has upheld the constitutionality of government programs that subsidized speech
expressing a particular viewpoint.

Trademark registration is not the only government registration scheme. For example, the
Federal Government registers copyrights and patents. State governments and their subdi-
visions register the title to real property and security interests; they issue driver’s licenses,

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motor vehicle registrations, and hunting, fishing, and boating licenses or permits. Previous
cases are not instructive in analyzing the constitutionality of restrictions on speech im-
posed in connection with such services.

[Previous] cases use the term “viewpoint” discrimination in a broad sense, see ibid., and
in that sense, the disparagement clause discriminates on the basis of “viewpoint.” To be
sure, the clause evenhandedly prohibits disparagement of all groups. It applies equally to
marks that damn Democrats and Republicans, capitalists and socialists, and those arrayed
on both sides of every possible issue. It denies registration to any mark that is offensive to
a substantial percentage of the members of any group. But in the sense relevant here, that
is viewpoint discrimination: Giving offense is a viewpoint. We have said time and again that
“the public expression of ideas may not be prohibited merely because the ideas are them-
selves offensive to some of their hearers.”

For this reason, the disparagement clause cannot be saved by analyzing it as a type of gov-
ernment program in which some content- and speaker-based restrictions are permitted.

For these reasons, we hold that the disparagement clause violates the Free Speech Clause
of the First Amendment. The judgment of the Federal Circuit is affirmed.

Dissenting Opinion:
There was no dissenting opinion in this case. The Court voted in favor of Tam in a unani-
mous 8-0 decision.

Your Turn: Write a brief essay (a) describing how this case relates to the Bill of Rights and
(b) explaining what facts, information, and interpretations were central to the Court’s opin-
ion. (18 points)

The Disparagement Clause outlaws trademarks that denigrate members of a racial or ethnic group, and it
is a violation of the First Amendment's Free Speech Clause. The 8-0 majority's judgment was written by
Justice Samuel A. Alito, Jr. The Court determined that the plain interpretation of the language plainly
suggested that the Disparagement Clause pertained to racial and ethnic groupings, and hence the Clause
applied to the mark in question. The Clause also discriminated on the basis of viewpoint, because giving
offense is a viewpoint. Because the PTO simply granted trademarks, they were not government speech,
and so were not subject to the First Amendment's limitations on viewpoint regulation. To declare
otherwise would be a huge and inappropriate expansion of the government speech theory. Similarly,
trademark clearance by the PTO did not amount to a government-provided subsidy, despite the fact that
viewpoint discrimination has been found to be permissible in other situations. Because it was not
narrowly tailored to serve a significant interest, the Disparagement Clause was likewise not a lawful
restriction of commercial speech. Any expressed interest in avoiding offense ran counter to the First
Amendment's guarantee of free expression, and the Clause was too wide to satisfy the government's
other stated interest in ensuring the smooth flow of trade.

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