Supreme Court rules employer recommendation not property

[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Wednesday in Sekhar v. United States [SCOTUSblog backgrounder; JURIST report] that attempting to compel a person to recommend that his employer approve an investment does not constitute "the obtaining of property from another" under the Hobbs Act [18 USC § 1951(a)]. In this case, Sekhar allegedly threatened the attorney for New York Comptroller Thomas DiNapoli to gain a government contract through DiNapoli's attorney's recommendation of Sekhar. The court's ruling effectively reversed the decision [text] of the US Court of Appeals for the Second Circuit, which had held that the attorney's "recommendation" is intangible property of the state of New York, and thus under the jurisdiction of federal extortion law [18 USC § 875(d)]. In the court's unanimous opinion, Justice Antonin Scalia wrote:

The Government's defense of the theory of conviction is unpersuasive. No fluent speaker of English would say that "petitioner obtained and exercised the general counsel's right to make a recommendation," any more than he would say that a person "obtained and exercised another's right to free speech." He would say that "petitioner forced the general counsel to make a particular recommendation," just as he would say that a person "forced another to make a statement." Adopting the Government's theory here would not only make nonsense of words; it would collapse the longstanding distinction between extortion and coercion and ignore Congress's choice to penalize one but not the other.
Justice Samuel Alito filed a concurring opinion, which was joined by Justices Anthony Kennedy and Sonia Sotomayor. Alito stated that "the term "property" plainly does not reach everything that a person may hold dear; nor does it extend to everything that might in some indirect way portend the possibility of future economic gain." Alito also stated that prior court precedent "supports the conclusion that internal recommendations regarding government decisions are not property."

 

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