What does &quot;Congress having occupied the field&quot; mean? I've run across the phrase &quot;Congress having occupied the field&quot; in legal writings recently. Can someone explain this? My question relates to The Common Law Right of Access to Public Records. Since Congress passed FOIA and exempted itself, does this phrase apply to the records of the Capitol Police actions on January 6th?
There are a number of areas in which the US states can pass laws only to the extend that they do not conflict with Federal laws passed by Congress. When a federal law clearly says that states may not pass laws on a given subject, the issue is clear. When it specifically invites state laws, the issue is also clear. But when a Federal law imposes certain regulations in a given area, it may not be clear if a state may go beyond the Federal requirements. Sometimes it can. For example, there is a Federal Minimum Wage. But states are free to impose higher minimum wage levels, and some have done so. So when a court decision or legal article says &quot;Congress having occupied the field&quot; it means that a set of Federal laws is intended to be a compelte regulation of a given area, and states may not add additional regulations of their own in that area. I am not sure what rules apply to disclosure of information by the Capitol police.
Interesting question. I routinely write wills that authorize the executor to destroy property that has no significant economic or sentimental value, but I've never encountered a case where a testator or testatrix has directed that property be destroyed and I've never seen a reported case (or even a news report) in which that has happened. To the extent that an estate is solvent, there is no reason that a creditor could complain and if the destruction was done in a safe manner (as opposed to burning down a house or something like that without consulting the fire department) I'm not sure that there would be a public interest in doing so either. There are many religions that had a practice historically of burying someone with grave goods, so there are reasonable First Amendment freedom of religion arguments for allowing such a practice if it had a religious basis. And, if no interested party objected, I don't see how anyone could stop the executor from acting, unless the property to be destroyed was, for example, evidence of a crime, in which case it would be a crime to destroy it and the provision of the will would be void because it was a crime to carry it out. If an executor sought permission from a court to carry out this instruction, the court might require a public notice of the planned destruction to give notice to any third party who might claim an ownership interest in the property allegedly belonging to the decedent. On the other hand, usually, all interested parties in an estate can agree to act contrary to a will by unanimous consent, in which case no one would have standing to fight for the provision in court (unless it was considered a charitable bequest, in which case a state attorney general or an advocate appointed by the court with the "will" as the client could defend it). Given the strong public policies in the law disfavoring "waste" (i.e. useless destruction of property) such a provision could be held to be void as against public policy (similarly, bequests contingent upon marriage decisions are now void as against public policy).
My understanding is that &quot;the record&quot; only refers to the official record of the proceeding, e.g. the transcripts that would be kept on file and used as the basis for formal decisions. Such records are usually prepared after the fact by a court reporter based on their shorthand notes or audio recordings, so this indicates that the reporter should simply leave out the statement in question when creating those records, perhaps replacing it with a marking saying &quot;(stricken)&quot; or something of the sort. &quot;Stricken from the record&quot; doesn't indicate that the statement is to be kept secret or scrubbed from all history in some Orwellian fashion, merely that it should not be considered in any legal decision-making process (e.g. a judge's ruling). The decision should be made as if the statement had never been uttered. Anyone else in the courtroom -- lawyers, journalists, members of the public -- is free to remember it, write it down, publish it, shout it from the rooftops, or etch it into stone tablets, if they wish. No penalties exist for doing so. I also don't think there is any requirement to delete it from the court reporter's preliminary notes or audio recordings; again, only from the final official transcript. (There could be other situations where it is forbidden to record or divulge what was said: secret grand jury proceedings, material under seal, gag orders, etc. But those would all require some sort of regulation or order outside the usual meaning of the phrase &quot;strike from the record&quot;.)
The original law was 80 Stat 383, PL 89-554, which is a massive reorganization of the structure of federal agencies. It created title 5 entitled &quot;Government Organization and Employees&quot;. The act itself was not given a name: it did contain provisions in §552 requiring that information be made available, as opposed to being kept secret. Subsequently in 1974, PL 93-502 amended the law specifically w.r.t. §552, and the act begins with the text To amend section 552 of title 5, United States Code, known as the Freedom of Information Act Essentially, by this act of Congress, §552 was legislatively deemed to be &quot;known as&quot; the Freedom of Information Act. The expression was used earlier, see the documents here. This speech (June 20 1966) by Rep. Moss sets forth the arguments for the relevant bill S.1160 which amended title 5,, saying Our system of government is based on the participation of the governed, and as our population grows in numbers it is essential that it also grow in knowledge and understanding. We must remove every barrier to information about—and understanding of—government activities consistent with our security if the American public is to be adequately equipped to fulfill the ever more demanding role of responsible citizenship This is the sense in which the bill was about &quot;freedom of information&quot;. In the speech, he also refers (p. 3 of the scan) to the chairmen of the &quot;Freedom of Information Committees&quot;, and LBJ in his signing statement I have always felt that freedom of information is so important to our form of government that it should not be restricted except when there is an important reason for doing so This gave rise to an informal name to the act, which then was &quot;codified&quot; in 1974 by another act of Congress.
What you describe is essentially a Warrant Canary, which is legally murky. From a functional point of view, it is breaking the non-disclosure requirements of the NSL by omission. Proponents of warrant canaries would point to case law such as West Virginia State Board of Education v. Barnette and Wooley v. Maynard to suggest that the Free Speech clause of the First Amendment restricts the government from compelling speech. New York Times Co. v. United States could also be read to prevent the prior restraint unless the existence of the NSL was successfully argued to be &quot;crucial military information&quot;.
It depends on what you mean by &quot;clean.&quot; The police have probably made a record of the incident and included your name. If you're in the United States, the odds are that the public has access to that record under a freedom of information law. But that's a lot of work that few people will bother with. You haven't been arrested or convicted, so the incident probably wouldn't show up if anyone did a background check, if that's what you're worried about.
In New South Wales it is entirely legal to film police (or anyone else). However, as discussed (What is considered &quot;public&quot; in the context of taking videos or audio recordings?) audio recording is more restricted: you must either have the permission of all the participants in a conversation or be a party to the conversation. I do not imagine the law is any different in Victoria.
The Constitution said people have the Rights to Properties. No it doesn't. There is no such provision. The closest I am aware of is the so-called &quot;takings clause&quot; in the Fifth Amendment, which reads: Nor shall private property be taken for public use without just compensation. There has been a good deal of litigation over just when when a &quot;taking&quot; occurs under this provision. The classic and most obvious case is the use of eminent domain to aquire actual title to the property by a government (Federal, State, or local). This is always a takign, and compensation nis required. The more questionable cases have occurred when some law or regulation leaves the owner with title, but significantly restricts the uses to which the property may be put, particularly when the existing use becomes unlawful. Courts have ruled in different ways in such cases, but I think the current standard is that when a regulation removes all, or almost all, economic value from the property there has been a &quot;regulatory taking&quot; and compensation must be paid. But as far as I know, a tax on the property has never been considered to be a taking inn this sense.