What questions does Justice Kagan have about Missouri v. Holland?

January 18th, 2013

The Court just granted cert in United States v. Bond. Last year, Justice Kagan presided over a moot court at George Washington Law where she considered whether Congress can expand its own powers via a treaty (it focused on a First Amendment issue via Missouri v. Holland).

Kagan’s first question off the bat was whether the Court should overrule Missouri v. Holland.

Here is the summary of the facts:

Prentice v. Pitel

Petitioner Graham Detroit Prentice is a political activist who seeks to protect the integrity of the Constitution through a non-profit that Petitioner founded. Following September 11, 2001, Petitioner became increasingly concerned with Islamic extremism and began focusing his organization’s efforts on protesting against it. Petitioner had little success until 2004, when several members of Petitioner’s organization burned an image of an Islamic holy site during a protest in Washington, DC. Petitioner used the consequent media attention to establish his and his organization’s name and message, began organizing such extreme protests as a matter of course, and initiated what he claims is a successful “Sharia Prevention Campaign” in 2006.

Two years later, the United States and 41 other nations entered into the Convention on Religious Tolerance. This treaty was a response to a series of terrorist attacks in retaliation for offensive protests outside of Islamic holy sites, which threatened to lead to more protests and even more violence. The treaty required signatories to criminalize offensive protests outside of Islamic religious sites during prayer hours. After much international pressure, the treaty was ratified and the International Responsibility and Leadership Act (IRLA) was passed by Congress to bring the United States into compliance. The IRLA implements many of the treaty’s policies but does not precisely mirror it. Specifically, the IRLA subjects anyone who burns or otherwise destroys a religious artifact immediately outside of a religious site during prayer hours to escalating civil fines.

Petitioner violated the act during a protest on July 5, 2009, when he splashed red paint on copies of the Koran outside of a mosque. Respondent Benjamin Pitel, U.S. Attorney for the District of New Columbia, then sent Petitioner a letter warning him that his next violation would result in an enforcement action. After receiving the letter, Petitioner planned, advertised, and carried out another protest on August 1, 2009, where he burned Korans outside of a mosque in New Columbia during prayer hours. After notification of the violation and some settlement negotiations, Petitioner filed an action seeking to have the IRLA declared unconstitutional as a violation of the First and Tenth Amendments to the Constitution.


I. Whether the U.S. Court of Appeals for the Thirteenth Circuit erred in concluding that the International Responsibility and Leadership Act does not violate the Tenth Amendment of the Constitution?

II. Whether the U.S. Court of Appeals for the Thirteenth Circuit erred in concluding that the International Responsibility and Leadership Act does not violate the Free Speech Clause of the First Amendment of the Constitution?

H/T Charles K.