The Skinny on SCOTUS - 6-26-24 Edition: Gratuities Aren't Bribes and Standing Is Tricky

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I am not going to lie: Today (Wednesday) surprised me. With three days designated as decision days on the Supreme Court's calendar and 14 decisions to go, I expected there to be at least four decisions handed down rather than just two. This means one of two things:


Additionally, I'm disappointed, frankly, that standing won the day in the "big one" (Murthy v. Missouri) — but I've not yet had an opportunity to read all 68 pages, and perhaps I'll come to view it differently once I have. Both of Wednesday's decisions were 6-3 splits, one along the partisan divide, one not. 

BREAKING: Supreme Court Deals First Amendment Blow in Murthy v. Missouri

In Snyder v. US, Jackson's Dissent Is Red Meat for the Left to Chew On

June 26, 2024 Decisions

Snyder v. United States

Date: June 26, 2024

Author: Kavanaugh

Split: 6-3

Dissent: Jackson, Sotomayor, Kagan

Appeal From: Seventh Circuit

Basic Facts: 

Federal and state law distinguish between two kinds of payments to public officials—bribes and gratuities. Bribes are typically payments made or agreed to before an official act in order to influence the public official with respect to that future official act. Gratuities are typically payments made to a public official after an official act as a reward or token of appreciation. While American law generally treats bribes as inherently corrupt and unlawful, the law’s treatment of gratuities is more nuanced. Some gratuities might be innocuous, and others may raise ethical and appearance concerns. Federal, state, and local governments have drawn different lines on which gratuities and gifts are acceptable and which are not. 

For example, Congress has established comprehensive prohibitions on both bribes and gratuities to federal officials. If a federal official accepts a bribe for an official act, federal bribery law provides for a 15-year maximum prison sentence. See 18 U. S. C. §201(b). By contrast, if a federal official accepts a prohibited gratuity, federal gratuities law sets a 2-year maximum prison sentence. See §201(c).

In 1984, Congress passed and President Reagan signed a law now codified at 18 U. S. C. §666 that, as relevant here, extended the gratuities prohibition in §201(c) to most state and local officials. Congress reversed course after two years and amended §666 to avoid the law’s “possible application to acceptable commercial and business practices.” H. R. Rep. No. 99–797, p. 30 (1986). As amended, the text of §666 now closely resembles the bribery provision for federal officials, §201(b), and makes it a crime for most state and local officials to “corruptly” solicit, accept, or agree to accept “anything of value” “intending to be influenced or rewarded in connection with” any official business or transaction worth $5,000 or more. §§666(a)(1)(B), (b). That crime carries a 10-year maximum prison sentence. §666(a).

This case involves James Snyder, who is the former mayor of Portage, Indiana. In 2013, while Snyder was mayor, Portage awarded two contracts to a local truck company, Great Lakes Peterbilt, and ultimately purchased five trash trucks from the company for about $1.1 million. In 2014, Peterbilt cut a $13,000 check to Snyder. The FBI and federal prosecutors suspected that the payment was a gratuity for the City’s trash truck contracts. But Snyder said that the payment was for his consulting services as a contractor for Peterbilt. A federal jury ultimately convicted Snyder of accepting an illegal gratuity in violation of §666(a)(1)(B). The District Court sentenced Snyder to 1 year and 9 months in prison. On appeal, Snyder argued that §666 criminalizes only bribes, not gratuities. The Seventh Circuit affirmed Snyder’s conviction.



Whether section 666 criminalizes gratuities, i.e., payments in recognition of actions the official has already taken or committed to take, without any quid pro quo agreement to take those actions.

Holding: Reversed and remanded.

Section 666 proscribes bribes to state and local officials but does not make it a crime for those officials to accept gratuities for their past acts.

Skinny: (At least under §666), you can say "thank you" to state and local officials with nice little gifts after the fact — you just can't entice them to act a certain way with the promise of such gifts upfront. And if that seems shady, tell Congress to get off its duff and fix it. (Or prosecute those officials under other statutes prohibiting this behavior.) 

Murthy v. Missouri

Date: June 26, 2024

Author: Barrett

Split: 6-3

Dissent: Alito, Thomas, Gorsuch

Appeal From: Fifth Circuit

Basic Facts:

Under their longstanding content-moderation policies, social-media platforms have taken a range of actions to suppress certain categories of speech, including speech they judge to be false or misleading. In 2020, with the outbreak of COVID–19, the platforms announced that they would enforce these policies against users who post false or misleading content about the pandemic. The platforms also applied misinformation policies during the 2020 election season. During that period, various federal officials regularly spoke with the platforms about COVID–19 and election-related misinformation. For example, White House officials publicly and privately called on the platforms to do more to address vaccine misinformation. Surgeon General Vivek Murthy issued a health advisory that encouraged the platforms to take steps to prevent COVID–19 misinformation “from taking hold.” The Centers for Disease Control and Prevention alerted the platforms to COVID–19 misinformation trends and flagged example posts. The Federal Bureau of Investigation and Cybersecurity and Infrastructure Security Agency communicated with the platforms about election-related misinformation in advance of the 2020 Presidential election and the 2022 midterms.

Respondents are two States and five individual social-media users who sued dozens of Executive Branch officials and agencies, alleging that the Government pressured the platforms to censor their speech in violation of the First Amendment. Following extensive discovery, the District Court issued a preliminary injunction. The Fifth Circuit affirmed in part and reversed in part. The court held that both the state plaintiffs and the individual plaintiffs had Article III standing to seek injunctive relief. On the merits, the court held that the Government entities and officials, by “coerc[ing]” or “significantly encourag[ing]” the platforms’ moderation decisions, transformed those decisions into state action. The court then modified the District Court’s injunction to state that the defendants shall not coerce or significantly encourage social-media companies to suppress protected speech on their platforms.



  1. Whether respondents have Article III standing
  2. Whether the government’s challenged conduct transformed private social-media companies’ content-moderation decisions into state action and violated respondents’ First Amendment rights
  3. Whether the terms and breadth of the preliminary injunction are proper.

Holding: Reversed and remanded.

Neither the individual nor the state plaintiffs have established Article III standing to seek an injunction against any defendant.

Skinny: There are lots of hurdles to clear to get the relief the plaintiffs sought here (i.e., prohibiting government actors from doing something in the future), and unfortunately, they weren't able to do so. 

An added note: This is one of those frustrating decisions outcome-wise that probably makes sense process-wise. From a philosophical standpoint, I get it — we want the rigid framework (requiring the i's to be dotted and the t's to be crossed and the system to work methodically) to hold so that we don't get wildly inconsistent rulings based purely on partisan whims. From a practical (and First Amendment-revering) standpoint, I'm still a big fan of District Judge Terry Doughty's July 4, 2023, ruling on this. 

You can check out prior installments of The Skinny on SCOTUS series, here.


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