This summer, we shared the story of the Puerto Rican government’s allegedly unauthorized profiteering from Roberto Clemente’s identity without any compensation paid to the late baseball hero’s family, including Reason Magazine’s recommendation that the U.S. Supreme Court accept the Clementes’ appeal from a decision allowing the government to take what it deemed to be their “intangible property” for free:
The Constitution’s Takings Clause says the government must pay “just compensation” when it takes private property. The rule has long been simple: The government must pay for what it takes.
This should have been an easy case based on that principle. Puerto Rico must pay because it took the Roberto Clemente trademark for its own use. But the U.S. Court of Appeals for the 1st Circuit ruled for Puerto Rico earlier this year by drawing an artificial line. The court held that the simple pay-for-what-you-take rule protects only tangible property such as land, cars, and crops. Intangible property like trademarks, trade secrets, and patents, the court said, doesn’t deserve the same protection.
That distinction makes no sense. The plain text of the Takings Clause itself prohibits the government from taking “private property” for public use without just compensation. As the Supreme Court has recognized in Horne v. Department of Agriculture in 2015, the Constitution protects private property “without any distinction between different types.”
But yesterday, the Supreme Court issued an order denying the Clementes’ request that the Court hear their appeal. None of the justices provided any further explanation of or commentary on that decision. It leaves in place as the controlling ruling the referenced decision of the U.S. Court of Appeals for the First Circuit in favor of Puerto Rico and against the Clementes.
________________________________________________________.
Related
Puerto Rico Stole Roberto Clemente’s Trademark. The Supreme Court Should Make It Pay. (via Reason)
