Legal Docket: Foreign governments and Native American debt collectors

MARY REICHARD, HOST: It’s Monday, June 12th. We’re so glad you’ve come along for today’s edition of The World and Everything in It. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. We’ll get to Legal Docket in a moment. But first, I want to talk about this program, The World and Everything in It and how it continues.

Let’s go back to in 2011 when we started.

Quite simply, we could not have done it without your support.

That we’ve not missed a single program over the last 12 years is also a testament to your ongoing support.

Because you share The World and Everything in It with friends and family, we’re now at the point where in the past 12 months, we’ve served up almost 20 million listens.

REICHARD: Again, couldn’t have done it without you.

With you, we feel there’s nothing we cannot do. And in this mission God has given us, there’s so much we must do.

We are in our June Giving Drive. It’s one of the two times during the year that we come to you to say we rely on your generous gifts to carry out this important work at this strategic time.

Some see these times as dangerous, and they sure seem that way.

EICHER: One reason is that those who possess the power to tell the story of the world… are telling lies.

Let me tell you the story of the Associated Press Stylebook.

The Associated Press reaches half the population of the world and it publishes a widely used stylebook.

In it AP tells us we mustn’t use the term woke, and if you must, place it in quotations. When reporting on euthanasia, make sure to stress that it’s carried out “under strict conditions.”

REICHARD: On the subject of transgenderism, oops, do not use the term transgenderism. Because, quoting here, it “frames transgender identity as an ideology.” We wouldn’t want to do that.

As you must’ve guessed by now, AP style evolves.

EICHER: Most recently, it sent out an email to members calling attention to its Transgender Coverage Topical Guide all 3-thousand words. And of course, we got a copy.

The first command is to avoid false balance. That is to say and I’m quoting: “giving a platform to unqualified claims or sources in the guise of balancing a story by including all views. For instance, do not quote people speaking about biology or athletic regulations unless they have the proper background.”

REICHARD: In other words, let’s consider the parent who isn’t a biologist and hasn’t taken the time to read the 78 sections of the official little league rulebook app. Why platform such a rube who thinks it’s dangerous for boys to be playing against his daughter? That might be false balance.

EICHER: Then there’s an entirely new lexicon. To write, “sex (or gender) assigned at birth is the accurate terminology,” according to the AP.

Phrasing like pregnant people or people seeking abortions is increasingly used in medical contexts and is also acceptable to include people who have those experiences but do not identify as women.

REICHARD: Avoid the word “mutilation,” which is a politicized and subjective term that mischaracterizes “gender-affirming surgery.”

And these red flags: no misgendering, no deadnaming, no improper pronoun use. And when you properly use pronouns, don’t make the mistake of calling them preferred pronouns … because that implies choice.

It goes on like that.

EICHER: We use the AP Stylebook. It’s helpful in a lot of ways. But we’re wary of it. Because our commitment is to tell the truth.The truth of the scriptures and the truth that we can plainly see..

And there’s so much truth to tell. But it takes resources to build up the organization that’s telling it. There are reporters to train and hire, to place in the field where the news is, and to equip to bring back stories for print, digital, radio, and television.

REICHARD: With your help, we’ve created a strong organization that can scale. Every gift turns into more and deeper truthful news coverage. Every gift becomes the story that the mainstream news media would rather ignore. Every gift helps train a Christian reporter, helps put a Christian sound engineer in front of a newsmaker, helps spread the word that there is hope.

EICHER: Lies cannot stand up to the truth. We believe truth is a worthy investment.

And we hope that over the remaining days of June, you’ll renew your investment. Please visit wng.org/donate. And thank you very much.

It’s time for Legal Docket.

The U.S. Supreme Court handed down four opinions last week. That leaves 23 decisions remaining before the end of the term on June 30th.

Today, we’ll run through the opinions before covering one oral argument.

First opinion today was a big surprise given the tenor of questions at oral argument.

A fractious 5-4 decision says Alabama’s district map for the 2022 congressional elections likely diluted the power of the black vote.

The maps were drawn so that just one district out of seven was majority minority … even though more than a quarter of the voting-age population in Alabama is black.

REICHARD: Voters sued, relying on a section of the Voting Rights Act that bars any voting practice, quoting directly here, that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.”

The voters alleged race discrimination. And the high court agreed with the lower court’s determination that that is what likely occurred.

So now Alabama will have to redraw the map that will be used in the 20-24 elections to include at least one other majority black district, so two out of seven

EICHER: Next, a unanimous decision in favor of Jack Daniel’s whiskey in a trademark dispute.

Justice Elena Kagan began the opinion by writing: “This case is about dog toys and whiskey, two items seldom appearing in the same sentence.”

Mark Walsh from Scotusblog reported that when Justice Kagan announced the opinion from the bench, she held the squeaky toy in her hand and even sang a line from the song “Barbie Girl.” That was part of an old copyright lawsuit filed by Mattel.

REIHCARD: Anyway, here’s a refresher on the facts: VIP Products makes a squeaky dog toy called “Bad Spaniels” that’s a parody of the Jack Daniel’s whiskey bottle. For example, the wording of the “Old No. 7 Brand” turns into “The Old No. 2 on Your Tennessee Carpet.”

You can hear the winning argument from Jack Daniel’s lawyer Lisa Blatt back in March:

LISA BLATT: It's not whether you get the joke. You get that somebody other than the brand was making the joke because that's all that matters. Not -- ha, ha, ha is not a standard under the Lanham Act. It's whether it’s confusing as to source.

The Lanham Act is the federal trademark law. The justices ruled that the humorous use of someone else’s trademark as one’s own on a commercial product is not an “expressive work” protected under that law.

EICHER: The justices sidestepped two questions: whether consumers are actually confusing this parody product with the real thing and whether parodies get heightened protection from infringement claims. Instead, the court issued a narrow ruling about trademark dilution under a different federal law.

So all is not lost for VIP and Bad Spaniels. Case is remanded to the lower courts for further proceedings.

REICHARD: Onto the next opinion in Dubin v United States.

It’s a win for a man who received two convictions: one for overbilling Medicaid, another for aggravated identity theft. That last one by itself added a mandatory two years to his prison sentence.

The identity-theft part was the man’s challenge … arguing he’d made no misrepresentations about the patient’s identity. Overbilling has nothing to do with that.

His lawyer, Jeffrey Fisher, during argument in February said that the law is not so broad:

JEFFREY FISHER: Understanding what Congress meant by words, we would not assume Congress would sweep in vast arrays of conduct without doing so clearly.

The justices agreed in its unanimous decision. This case is also remanded to lower court for further proceedings.

EICHER: Okay, the third opinion is a dispute involving nursing home care.

In a 7-2 ruling, the court found in favor of a widow who sued on behalf of her late husband. He developed dementia and moved into a public nursing home paid for by Medicaid.

His widow sued the nursing home under a section of law known as 42 U.S.C. Section 19-83. That permits a private person to sue state actors when they violate federal law.

In court, she said her husband was inappropriately given psychotropic drugs and then involuntarily transferred to another care facility. To do that is to violate a federal law that governs nursing homes that receive federal funds.

REICHARD: You can hear the eventual ruling in this comment by Justice Brett Kavanaugh. This came up during an exchange with the nursing home’s lawyer:

JUSTICE KAVANAUGH: It says rights. I mean, it says rights. It's a very uncomfortable fact for you is that the statute says rights over and over again. Resident rights, too.

That’s what the majority justices found, that the Federal Nursing Home Reform Act creates an individually enforceable right. That’s opposed to what the nursing home argued: that Medicaid patients lack standing to sue because Medicaid is a contract between state and federal government.

So this means the widow may proceed with the case in lower court.

EICHER: On to our oral argument for today. This one involves the sovereign immunity of Native American tribes and bankruptcy. That is, whether tribes are even subject to the federal Bankruptcy Code.

Here’s what happened. A man borrowed $1,100 in a payday loan from a company called Lendgreen. It’s a subsidiary of the “Band” the Lac Du Flambeau Band of Lake Superior Chippewa Indians. We’ll just refer to it as they do, as the “Band.”

The borrower filed for bankruptcy, which ordinarily puts an automatic hold on certain creditors. They are not allowed to pressure the debtor to pay up while bankruptcy proceedings are going on.

But the Band ignored the stay and kept contacting him.

The dispute is whether the Band is subject to a law that applies to the federal government, the states, and—here’s the key phrase— “other foreign or other domestic governments.”

The Band takes the position that the law doesn’t specifically name Native Tribes, so it’s exempt from the rule of not contacting debtors.

REICHARD: The lawyers duked it out with dueling interpretations of the law. First, the Band’s lawyer, Pratik Shaw:

PRATIK SHAW: Is it unequivocally clear, given the structure that Congress used, serially listing each of the big four, big five, and a bunch of others but leaving out Indian tribes, is it abundantly clear that they wanted to include Indian tribes when adopting that structure? The answer to that has to be no.

And lawyer Gregory Rapawy for the man in bankruptcy:

GREGORY RAPAWY: You have heard from The Band that if Congress had meant tribes, it would have used the particular word "tribes." But Congress can speak clearly in more than one way. And so the focus here should be the unambiguous words that Congress did use, not other words that it might have used but did not.

Chief Justice John Roberts wondered what Shaw for the Tribe would say if Congress had written the statute differently:

JUSTICE ROBERTS: What if the statute said "every government"?

SHAW: Your Honor, that would be harder if it said "every government." But, if it said every government after specifically enumerating three of the big four.

ROBERTS: No, no, it just said "every government."

SHAW: Yeah, if it just said "every government," again, that's a harder case. I -- I -- I still wouldn't give it up because this Court has been very clear that Congress has to be specific.

Congress needs to be specific, yes; but Shaw pointed to other legal tools to interpret meaning:

SHAW: The other side no doubt has exhaustively searched the code and cannot find a single example in the history of this country where Congress has abrogated the sovereign immunity of tribes without mentioning tribes.

Justice Ketanji Brown Jackson asked this of the debtor’s lawyer:

JUSTICE JACKSON: If the idea is we want to make sure that Congress actually considered the entities that are being affected by this rule, we have evidence that they considered others because they listed them in the statute, and, here, tribes don't appear, why isn't that just the answer?

RAPAWY: I think that the -- the reason why that's not the answer, Justice Jackson, is because the clear statement rule is a -- is a tool for interpreting the law and a way of determining congressional intent, not a way of imposing a heightened burden on Congress's exercise of powers that it concededly has within the Constitution.

It comes down to this: do the words of the Bankruptcy Code mean to include Tribes with that catch-all phrase of “other foreign or domestic governments?” Or does it mean to exclude Tribes because they aren’t specifically mentioned?

We’ll find out by the end of the month. And that’s this week’s Legal Docket!

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