Schweiker v. Chilicky Following the Supreme Court case Schweiker v Chilicky, can’t congress theoretically violate the Constitution as long as Congress provides a remedy? What I mean is that: If I were a congressman, and a law that I wanted to pass violated, let’s say, the First Amendment, can’t I create a provision within the law that creates a commission to review all alleged violations of the 1st amendment under the law, but make the commission extremely biased, as to allow for 1st amendment violations?
No. Congress could establish some sort of review board to address First Amendment violations, but it could not do so in such a biased way as to ensure there are no consequences for those violations, for at least two reasons: First, due process would require that any commission Congress established provide not only an opportunity to be heard by the commission, but also an impartial tribunal. The tribunal would not need to be perfectly unbiased, but setting up an &quot;extremely biased&quot; panel would be insufficient. Second, even if Congress established a commission that satisfied due process, Schweiker v. Chilicky, 487 U.S. 412 (1988) would only prevent the courts from awarding monetary damages against the federal government; the courts would still be free to grant equitable and extraordinary relief to address First Amendment violations. So under Schweiker, if Congress established a commission to pre-screen all Facebook activity, you probably could not get money damages based on sales you might have expected to make if the commission had approved your Facebook ads faster, but you could get an injunction (or perhaps a writ of mandamus or prohibition) to stop the commission from screening your ads in the first place. The court's handling of First Amendment violations can often be different because free-speech rights are such a fundamental requirement of our form of government, but the analysis would be roughly the same for violations of Second Amendment or Third Amendment or Eighth Amendment rights.
You may be mistaken about the purpose of the Miller test. If some content is obscene according to the Miller test, then it does not receive First Amendment protection, and could be prohibited from distribution by the government. However, it says nothing about the contractual obligations that two parties can agree to. To the extent that the obligations themselves are objectionable this analysis would fall under the doctrines of unconscionability and public policy.
Suggestive Precedent Only one person has ever had this section of the 14th amendment used against them since Reconstruction ended: to block Victor Berger from taking his seat in the 1919-1920 House of Representatives; he had previously won a single term in the House in 1910. This disqualification was done in the House of Representatives itself, with a near unanimous vote holding that he was not eligible for the seat on multiple occasions. Based on events leading to his conviction under the Espionage Act, he was held in violation of the 14th amendment clause in question, and was denied his seat. Berger (and others) appealed this conviction to SCOTUS, who overturned it in 1921, holding the judge had an impermissible appearance of bias against the defendants. Berger then went on to win three consecutive House elections from 1922-1926. The curious bit here is that no one seemed to have any problem with his taking the seat at this point, and no vote was ever held to remove the disability the 1919 Congress had asserted (as per the 14th amendment), nor any to deny him the seat yet again. This creates a problematic precedent for anyone looking to deny a seat already won. First is that the enforcement of the 14th amendment provision was done by Congress itself, creating the question of whether that is the only Constitutional way to remove an elected congressperson under this clause. Second is that Congress created an implicit connection between a valid criminal conviction and a 14th amendment disqualification, by simply ignoring his prior disqualification after his conviction's overturning. This is a bit tenuous, but nevertheless a potential obstacle, as the Congressional records for the House proceedings on Berger, a rather fascinating read, are explicit in declaring that they are operating independently of the actual criminal case and judgements. No court has had opportunity to decide these for certain, but they provide a convenient defense for the accused. As such it is handy if you have alternative and additional paths to pursue your case under, so as to differentiate it. In Marjorie Taylor Greene's case, for example, there are explicit state laws for challenging if a candidate meets all valid legal and constitutional requirements. No such process was used, or perhaps available (I haven't tried to check this), in Berger's case. This creates a substantial legal difference, at least in principle, as it concerns disqualifying a candidate from future seats rather than denying a set to an already-sitting (or at least, already-elected, which SCOTUS has held is much the same thing) congressperson, and is utilizing a non-Congressional legal channel. MTG herself is challenging this law's constitutionality, I presume under the argument that in fact only Congress can effect and judge a candidate's compliance with the 14th amendment. The counter defense, presumably, would be that the case is not attempting to interfere with her currently held seat, which may conceivably be solely under Congress's control, but with potential future seats. Time constraints Finally, as a practical matter, the few court cases we've had on denying someone a seat in Congress have all taken about the entire duration of a given Congress (2 years) to resolve. This means the case could become moot before a decision is ever finalized, and even if not the practical result would be a very small loss in the total time the accused Congressperson remains a valid and voting member. So it makes more sense to target all future candidacies instead of the presently held seat, as that will never be formally mooted short of Congressional action pursuant to the 14th amendment.
There are lots of times when it's illegal to lie. Among them: impersonating a federal agent (18 USC 912) lying to a federal agent (18 USC 1001); health care fraud (18 USC 1035 and 1347); mail fraud (18 USC 1341); wire fraud (18 USC 1343); perjury (18 USC 1623); False Claims Act (31 USC 3729-33); and libel and slander (common law). But you're right that these laws are all at least theoretically in conflict with the First Amendment rule that &quot;Congress shall make no law ... abridging the freedom of speech.&quot; So why are some of them upheld against a First Amendment challenge while others are struck down? The Supreme Court explained its rationale a few years ago in U.S. v. Alvarez, 567 U.S. 709 (2012). That case dealt with a federal statute making it illegal to falsely claim that you had won any medal that Congress had authorized to be awarded to the armed forces. The federal government said that false speech had no value and therefore was not protected, pointing to cases upholding laws like the ones listed above where the Court had used similar descriptions. But the Court rejected that argument, noting that the cases where it has upheld laws limiting false speech dealt with &quot;defamation, fraud, or some other legally cognizable harm associated with a false statement&quot;: In those decisions the falsity of the speech at issue was not irrelevant to our analysis, but neither was it determinative. The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection. Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more. Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood. So that sort of gives you an organizing principle. It's not really a philosophical distinction, and meeting it doesn't mean that the lie is illegal, just that it may be outlawed. tl;dr: The First Amendment usually does not protect false statements when they are: made knowingly; and made with some corrupt purpose.
Taking the US as an example, the Constitution states Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Congress or a state government hasn't prohibited you from comparing platforms. Another private entity has. And, that's fine. You're free to launch the app as a separate website, or print out the flyers and hand them to people on the bus, or publish your own monthly magazine comparing various platforms, so you still have freedom of speech and of the press. As an example, if you write a letter about how great the government of North Korea is to the letters department at Stamp Collectors Magazine, and they don't publish it, have they violated your human rights? The app store restriction may be quite dumb. After all, the built-in web browser allows the reading of the exact same news. But there's no law against being dumb.
This article surveys the law, as of 2014. The answer is "yes or no, depending on which circuit". In US v. Chafin 423 F. App’x 342, the court decided that although the Second Amendment protects an individual's right to bear arms, it does not necessarily give rise to a corresponding right to sell a firearm drawing an analogy to US v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123 "the protected right to possess obscene material in the privacy of one's home does not give rise to a correlative right to have someone sell or give it to others". Likewise the 9th weighs in, in Montana Shooting Sports Association v. Holder, 727 F.3d 975: Heller said nothing about extending Second Amendment protection to firearm manufacturers or dealers. If anything, Heller recognized that firearms manufacturers and dealers are properly subject to regulation Contrarily, in the Northern Illinois district in Illinois Association of Firearms Retailers v. City of Chicago, the court finds in response to a ban on the sale of firearms in the city that. the right to keep and bear arms for self-defense under the Second Amendment. This right must also include the right to acquire a firearm...the ordinances are declared unconstitutional The same court in Kole v. Village of Norridge determined that the would-be operator of a gun store, thus has derivative standing to assert the subsidiary right to acquire arms on behalf of his customers both decisions relying on Ezell v. City of Chicago, 651 F.3d 684, where the city sought indirect means to encumber the exercise 2nd of Amendment rights (banning shooting ranges). The final answer will have to be made by SCOTUS, and so far there is nothing on the docket that could decide the matter. Instead, the question will be answered based on level of scrutiny for firearms regulations and whether " the government can establish that the challenged law regulates activity falling outside the scope of the right as originally understood"; and if it is not outside the scope of the 2nd Amendment, "then there must be a second inquiry into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights".
Maybe I'm reading Walsh wrong, but it seems to me to be saying that Stout might apply in some cases, but it doesn't in that specific case. I think you are indeed reading it wrong. In the Walsh case, the court says: We have not had occasion to decide the question up to this time, but now that it is presented, we not only reiterate the doubt which we expressed in the McAlpin case (supra), but we think that the question of the defendant's negligence was erroneously submitted to the jury in the Stout case, and that we ought not to follow it as a precedent. It's clearly repudiating Stout here, and not just as it applies to that case. It literally says they think it should not be followed as precedent.
The law works in the opposite direction of what you seem to be imagining. State courts generally have jurisdiction to hear lawsuits based on federal law, even without &quot;authorization&quot; from Congress. It is therefore perfectly normal to see lawsuits under Section 1983 , the Privacy Protection Act, or the Magnuson-Moss Consumer Protection Act being litigated in state court. Instead, when Congress authorizes a private right of action, it includes explicit language when it does not want cases heard in state court. This is the case with copyright, patent, and bankruptcy litigation, for example.