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The Complainant is The Royal Bank of Scotland Group plc of London, United Kingdom of Great Britain and Northern Ireland (“U.K.”) represented by Melbourne IT Digital Brand Services, U.K.
The Respondent is Najeeb Alim of Cincinnati, Ohio, United States of America (“U.S.”).
The disputed domain name <rbsexclusivecommercialfunding.info> is registered with GoDaddy.com, LLC. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 26, 2012. On August 27, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 29, 2012, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 4, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was September 24, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 26, 2012.
The Center appointed Mihaela Maravela as the sole panelist in this matter on October 12, 2012. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Panel notes that the Registrar has confirmed the specific language of the registration agreement as English. In these circumstances, the Panel is satisfied that English is the appropriate language of the proceedings in accordance with paragraph 11 of the Rules.
The Complainant was incorporated in Scotland, Edinburgh in 1727 and is one of the oldest banks in the United Kingdom of Great Britain and Northern Ireland (“UK”). It was incorporated as a public limited company in UK in 1968. The Complainant is a worldwide financial service provider with an established presence in Europe, the Middle East, the United States of America, South America, and Asia.
- United States trademark, Registration No. 3185538, registered on December 19, 2006.
In addition, the Complainant owns an extensive international portfolio of registered trademarks for the word RBS, either by itself or in phrases incorporating it, including RBS BANK and RBS BANKLINE. Many of such registrations are as Community trademarks.
- <rbsprivatebanking.com>, registered on April 18, 2005.
The disputed domain name <rbsexclusivecommercialfunding.info> was registered on May 20, 2011.
No other information as to the Respondent, its services or activities, is available to the Panel, as the Respondent did not reply to the Complainant’s contentions.
On September 29, 2011, the Complainant addressed a cease and desist letter to the Respondent, by email, followed up on October 5, 2011. The Respondent did not reply to any of these letters.
The Complainant claims that the disputed domain name <rbsexclusivecommercialfunding.info> is confusingly similar to the trademark RBS, which has been registered by the Complainant around the world. The dominant part of the disputed domain name <rbsexclusivecommercialfunding.info> reproduces the trademark RBS and is bound to create confusion and a risk of association with the Complainant’s trademark. Addition of the suffix “exclusive commercial funding” is three generic words that only describes the intention with the site, i.e. to give exclusive commercial funding and only enhances the confusing similarity between the disputed domain name and the trademark RBS, strengthening the impression that the former belongs to, or is affiliated to the latter.
The Complainant further contends that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has not found that the Respondent has any registered trademarks or trade names corresponding to the disputed domain name. The Complainant has also not found anything that would suggest that the Respondent has been using RBS in any other way that would give them any legitimate rights in the name. The Respondent is not legally or economically related to the Complainant and has never been authorized or licensed by the Complainant to use in any manner the trademark RBS. The Respondent is neither making any legitimate noncommercial or fair use of the disputed domain name. On the contrary, the Respondent used the disputed domain name to display information on the website to which the disputed domain name resolves that they are in the business of giving a type of mortgage to the public. The Complainant contends that the Respondent is using the Complainant’s trademark to attract Internet users and drive traffic to their own site and in that way “steal business” from the Complainant.
The Complainant finally submits that the Respondent registered and is using the disputed domain name in bad faith. The Complainant contends that it is due to the considerable value and goodwill of the trademark RBS that the Respondent registered the disputed domain name, and dismisses the possibility that the Respondent was unaware of the Complainant’s rights at the time of registration of the disputed domain name. Moreover, by using the disputed domain name to drive traffic to their own website using the Complainant’s trademark for their own commercial gain the Respondent is not making a legitimate non-commercial or fair use without intent for commercial gain. The Respondent’s failure to respond to the Complainant’s cease and desist letter requesting voluntary transfer of the disputed domain name is further indicative of bad faith.
It is essential to this proceeding that fundamental due process requirements must be met. Such requirements include that a respondent has notice of proceedings that may substantially affect its rights. The Policy and the Rules established procedures intended to assure that respondents are given adequate notice of proceedings commenced against them, and a reasonable opportunity to respond (see, e.g., paragraph 2(a), Rules).
Based on the methods employed to provide the Respondent with notice of the Complaint, the Respondent’s obligation under the registration agreement to maintain accurate and current contact information, the Panel is satisfied that the Center took all steps reasonably necessary to notify the Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of the Respondent to submit a reply is not due to any omission by the Center. See also Hoffmann-La Roche Inc. v. Samuel Teodorek, WIPO Case No. D2007-1814.
Because the Respondent has defaulted in providing a response to the allegations of Complainant, the Panel is directed to decide this administrative proceeding on the basis of the complaint (Rules, paragraph 14(a)), and certain factual conclusions may be drawn by the Panel on the basis of Complainant’s undisputed representations (id., paragraph 15(a)).
iii) that the disputed domain name has been registered and is being used in bad faith.
The Panel must determine whether (a) the Complainant has a trademark or service mark; and (b) whether the disputed domain name is identical or confusingly similar to that trademark or service mark.
These registrations predate the registration of the disputed domain name, i.e. May 20, 2011.
As to matter of similarity for the purposes of the Policy, the Panel has proceeded to compare the disputed domain name to the trademark rights which have been proved.
The disputed domain name <rbsexclusivecommercialfunding.info> incorporates entirely the Complainant’s trademark RBS, a trademark found in numerous UDRP decisions to be distinctive, well-known worldwide (see The Royal Bank of Scotland Group Plc v. IRBS, WIPO Case No. D2012-0854; The Royal Bank of Scotland Group Plc v. Contact Privacy Inc. / Nat, WIPO Case No. D2012-0856; The Royal Bank of Scotland Group Plc v. Fastdomain Inc / Hyper Link Technology, Jeetender Rajouria, WIPO Case No. D2012-0666) and strong, due to its use, investment in advertising and brand protection, as well as its presence in protected trademarks and a considerable number of domain names worldwide (see The Royal Bank of Scotland Group Plc v. Arbechay, Adalbrecht Engelbert, WIPO Case No. D2012-0665).
The addition of the words “exclusive commercial funding” is generic and non-distinctive, and where such words are combined with well-known trademarks, a finding of confusing similarity is generally recognized (see The Royal Bank of Scotland Group Plc v. Contact Privacy Inc. / Nat, WIPO Case No. D2012-0856).
The impression of the Internet user will be that the disputed domain name belongs to the Complainant or at least is connected to the Complainant and its services. Even in the latter case, it is the Panel’s view that such connection is all the more heightened where the trademark is well-known (see also The Royal Bank of Scotland Group Plc v. Arbechay, Adalbrecht Engelbert, WIPO Case No. D2012-0665).
Further, as to the addition of the generic top-level domain (gTLD) “.info”, this does not bear any relevance to the comparison at hand, as use of a gTLD is required of domain name registrants, and has no impact on the overall impression made by the dominant part of the disputed domain name, “rbs”.
The Panel therefore finds that the disputed domain name is confusingly similar to the Complainant’s trademarks, therefore the requirement of paragraph 4(a)(i) of the Policy is satisfied.
The consensus view of WIPO panels is that the burden of proof in establishing no rights or legitimate interests in respect of the disputed domain name rests with the complainant in as far as making out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent (See WIPO Overview, Paragraph 2.1.).
In the present case, the Complainant has established prima facie that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
In the absence of a response or defense by the Respondent, the Panel gives prevalence to the Complainant’s affirmation that no license or authorization was ever given to the Respondent to use the trademark RBS (see Guerlain S.A. v. Peikang, WIPO Case No. D2000-0055, the absence of any license or permission from the Complainant excludes bona fide or legitimate use).
Further, the Respondent’s failure to act upon the Complainant’s cease and desist letter also indicates in this Panel’s view that the disputed domain name registration lacks the fundament of entitlement or legitimate interest.
The Panel finds that the Respondent does not appear to have any rights or legitimate interests in the disputed domain name. Rather, the Respondent appears to act as a competitor of the Complainant, offering a kind of trust services in the real estate sector, as an alternative to the mortgage loans. This is not in the opinion of this Panel a legitimate noncommercial or fair use of the disputed domain name.
Under these circumstances, the Panel finds that the Respondent registered the disputed domain name to profit from the Complainant’s trademark goodwill and reputation, which is incompatible with making a legitimate, noncommercial or fair use of the disputed domain name.
The Panel therefore finds that the Respondent has no rights or legitimate interests in the disputed domain name.
To fulfill the third requirement, the Complainant must prove that the disputed domain name was registered and is being used in bad faith.
In order to assess whether the Respondent registered and uses the disputed domain name in bad faith, paragraph 4(b) of the Policy provides examples constituting, prima facie, evidence of bad faith.
After reviewing the website to which the disputed domain name resolves, it appears that the website is redirected to webdeco.com website where a kind of trust services in the real estate sector, as an alternative to the mortgage loans, are presented. The website includes the RBS logo. All these facts have been considered by this Panel to be proof of registration in bad faith, with the intention of creating confusion with the Complainant’s services for commercial gain.
As noted above, the trademark RBS is well-known. Therefore, the Respondent is most likely to have known of the Complainant, its products and trademarks prior to registering the disputed domain name. Also, the Respondent registered the disputed domain name almost 20 years after the Complainant registered its trademarks.
- also, as noted above, the Panel has concluded that the Respondent had knowledge of the Complainant’s trademarks at the time of registration of the disputed domain name. The Respondent provided no explanations for which he registered the disputed domain name.
Therefore, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <rbsexclusivecommercialfunding.info> be transferred to the Complainant.

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OF WASHINGTON et al., Appellants.
 Statutes - Construction - Ambiguous Terms. The courts will resolve a doubt as to the scope or meaning of a term in a statute, but will not interpret an unambiguous statute.
 Statutes - Municipal Corporations - Intent In Statute - Meanings. The term "municipal corporation" when used in a statute can refer to either a municipal corporation proper, such as a county or city government, or a quasi-municipal corporation. In each instance the meaning is to be ascertained by examination of the statute.
 Statutes - Construction - Purpose - In General. A statute is to be construed with reference to its manifest object, and if susceptible of two constructions, one of which will carry out and the other defeat the manifest object, it should receive the former construction.
 Statutes - Construction - Remedial Statutes. Remedial legislation should be given a liberal construction to effect its purpose.
 Municipal Corporations - Labor Relations - Labor Relations Acts -Irrigation District Employees. An irrigation district is a municipal corporation within the meaning of RCW 41.56.020, which renders the public employee collective bargaining rights of RCW 41.56 applicable to municipal corporations.
 Statutes - Construction - Exceptions - Effect on Remainder of Statute. An exception specifically mentioned in a statute operates to define the generality of the remainder of the statute.
 Statutes - Validity - Presumptions - Meaningless Statutes. It is presumed that the legislature does not enact unnecessary or meaningless statutes or provisions.
 Statutes - Construction - Meaning of Words - In General. A word used in a statute that is capable of more that one meaning takes its meaning from the context in which it is used.
 Statutes - Construction - Language Used. When legislative intent is clear, a court is governed by it despite the fact that the court might have used or preferred a somewhat different choice of language than that employed by the legislature.
Appeal from a judgment of the Superior Court for Yakima County, No. 51911, Lloyd L. Wiehl, J., entered April 3, 1970. Reversed.
legislation. One of the defendants appeals from a judgment in favor of the plaintiff.
Slade Gorton, Attorney General, and Virginia O. Binns, Assistant, for appellants.
Schweppe, Doolittle, Krug, Tausend, Beezer & Beierle, by Mary Ellen Krug and Donald L. Logerwell, for respondent.
This chapter shall apply to any county or municipal corporation, or any political subdivision of the state of Washington except as otherwise provided by RCW 47.64.030, 47.64.040, 54.04.170, 54.04.180,28.72.010 through 28.72.090, and chapter 53.18 RCW.
It defined, in RCW 41.56.030, the term "public employee" to mean any employee of a public employer, with certain enumerated exceptions not pertinent in this action.
superior court held that the act in question did not apply to irrigation districts and consequently did not authorize the department to certify the bargaining agent of the employees of the district.
A declaratory judgment was entered accordingly, and the department has appealed.
The position of the department upon this appeal is that an irrigation district is either a municipal corporation or a political subdivision, within the meaning of RCW 41.56.020. Conversely, the irrigation district maintains that it is neither.
 Since the question is one of statutory interpretation, we approach it with the applicable rules of statutory construction in mind. Of course the basic rule is that, where the language of a statute is clear and unambiguous, there is no room for judicial interpretation. King County v. Seattle, 70 Wn.2d 988, 425 P.2d 887 (1967). Here there is a dispute as to the meaning of the term municipal corporation, as well as the term political subdivision. We find it unnecessary to explore the scope of the latter, since we are convinced that the term municipal corporation, as used in this statute, is broad enough to include irrigation districts and that it was the legislative intent to include them.
A municipal corporation, in its strict and proper sense, is a body politic established by laW partly as an agency of the state to assist in the civil government of the country but chiefly to regulate and administer the local and internal affairs of the city, town or district which is incorporated. Sometimes the term municipal corporation is used in a broader sense and includes public quasi corporations, the principal purpose of whose creation is an instrumentality of the state, but not for the regulation of local and special affairs of a compact community. Dillon on Municipal Corporations (5th ed.), vol. 1, §§ 31 and 32.
In a rather comprehensive treatise, 3A C. Antieau, Local Government Law (Independent Local Government Entities) (1970), the author analyzes the nature of such entities as the one with which we are concerned here and points out that the following, while in strict logic not true municipal corporations, have nevertheless been called such in certain contexts: School districts (§ 30C.01); fire protection districts (§ 30D.00); airport authorities (§ 30E.00); housing authorities (§ 30F.00); sewerage and sanitary districts (§ 30G.00); port districts (pointing out that RCW 53.04.060 provides that the district shall become a municipal corporation, and that the decisions of this state accordingly treat port districts as municipal corporations) (§ 301.00); utility districts (also defined by statute in this state as municipal corporations) (§ 30J.00); drainage and irrigation districts (§ 30K.00); library districts (the author stating, "This is solely a matter of ascertaining the intent of the local legislature.") (§ 30L.00); park and recreation districts (§300.00); building authorities (§ 30P.11); road and highway district (§ 30P.15).
According to this writer, even a hospital authority has been called a "governmental subdivision of the state." (§ 30H.00). Also, he ventures the opinion that a parking authority may conceivably be a municipal corporation under certain statutes and for certain purposes.
corporation which exercises no governmental functions" (In re Horse Heaven Irrigation Dist., 11 Wn.2d 218, 227, 118 P.2d 972 (1941)), it also has recognized in Columbia Irrigation Dist. v. Benton County, supra, and cases cited therein, that the term may be used in a constitution or statute in either a broad or a limited sense, and in each case the meaning of the term must be ascertained by an examination of the statute to determine the legislative intent.
It is plain, therefore, that the legislature does use the term municipal corporation in its broad sense and has in fact used it in reference to irrigation districts. The question then becomes, did it intend to use it in a broad sense in RCW 41.56.020?
manifest object, and if the language is susceptible of two constructions, one of which will carry out and the other defeat the manifest object, it should receive the former construction. 2 J. Sutherland, Statutory Construction § 4704 (3d ed. 1943). In ascertaining the legislative purpose consideration must be given to all of the provisions of an act, and a construction must be adopted which is reasonable and in furtherance of the manifest purpose of the legislation. State v. Lee, 62 Wn.2d 228, 382 P.2d 491 (1963).
Here the declared purpose of the act was to promote the continued improvement of the relationship between public employers and their employees by providing a uniform basis for implementing the right of public employees to join labor organizations of their own choosing and to be represented by such organizations in matters concerning their employment relations with public employers. RCW 41.56.010.
The employees covered are "all public employees" except those expressly exempted. It appears evident, however, that the legislature did not intend to include employees of the state itself, but rather employees at the local level, since state employees are not referred to in RCW 41.56.020 (except insofar as employees of the toll bridge authority may be regarded as state employees, that authority covered by RCW 47.64.030 and .040, being expressly exempted).
«1» The employer in that case was a quasi municipal corporation described as a municipal corporation by both the legislature and the court.
however, are the provisions defining unfair labor practices (RCW 41.56.140 and .150) and providing remedies therefor (RCW 41.56.160 through .190). Other provisions affecting the improvement of employer-employee relations are contained in the remaining sections.
 This legislation, being remedial in nature, is entitled to a liberal construction to effect its purpose. Peet v. Mills, 76 Wash. 437, 136 P. 685 (1913).
The respondent does not suggest that an irrigation district is a private organization or that its employees are not public employees. Rather, its position is that the legislature intended to cover only employees of local governing bodies, such as cities, towns and counties. We find no such restrictive intent expressed in the statute. The service Which irrigation district employees render is a vital one in the areas which they serve. It is in the public interest to avoid interruption of irrigation services, just as it is to avoid interruption of services rendered by a city's fire or police department. We are given no plausible reason why the legislature should have chosen to deny such employees the protection of the act or to regard them as private employees, having the right to strike.
Motor Co. v. Automotive Machinists Lodge 942, 48 Wn.2d 519, 295 P.2d 305 (1956)). We find expressed in the statute no indication that the legislature intended to exclude employees who might conceivably be subject to federal regulation, or to exclude agricultural employees of public employers.
 Our examination of the legislative purpose and of other acts in which the legislature has used the term municipal corporation to describe bodies such as the respondent irrigation district, and in fact to describe irrigation districts themselves (RCW 54.04.030 and see RCW 53.48.010), convinces us that the legislature was accustomed to using the term in its broad sense and that it intended to use it in that sense here. But if any doubt remains, we think the context in which the term appears makes it clear that the legislature was not thinking of municipal corporations in any restricted sense. Having declared that the act shall apply to "any municipal corporation," it proceeded to list four exceptions. These exceptions are the Washington toll bridge authority (RCW 47.64.030 and .040), public utility districts (RCW 54.04.180), school districts (RCW 28A.72.010-.090) and port districts (RCW 53.18).
The reason for each of these exceptions is easily discerned, since the cited statutes contain other provisions for employer-employee relations procedures and remedies. Not only does this fact confirm the manifest purpose to extend the benefits of the act to public employees at the local level generally, but the very nature of the exceptions makes it indisputable that the legislature was aware of having used the term municipal corporation in its broad sense. This is true because not one of them is a municipal corporation in the strict sense, and at least two are quasi municipal corporations of a nature very similar to that of the respondent. We refer of course to public utility districts and port districts, neither of which exercises governing functions any more than does the respondent and both of which perform services which are essentially proprietary.
[6,7] If the legislature had used the term municipal corporations in its strict sense, it would have had no reason to expressly exclude certain quasi municipal corporations. An exception, like a proviso, operates to restrict the generality of legislative language. 2 J. Sutherland, Statutory Construction § 4936 (3d ed. 1943). Logically, then, a term which is restricted by an exception must have been used with the understanding that it was broad enough to include the exception, else engrafting the exception would have been an unnecessary and meaningless act. It is of course presumed that the legislature does not deliberately engage in such acts, and it would be anomalous to suppose that the exceptions attached to RCW 41.56.020 were placed there inadvertently.
 Also supporting this conclusion is the principle that a word which is capable of more than one meaning takes its meaning in a given case from the context in which it is used. State ex rel. Kadow v. Board of Adjustment, 77 Wn.2d 587, 464 P.2d 418 (1970).
 It is true of course that, if the legislature had expressly stated that the act should apply to all municipal corporations, including quasi municipal corporations, we would not be confronted with the problem of interpretation presented in this case. Nevertheless, where the intent of the legislature is clear, the court is governed by it, despite the fact that, as draftsman, it might have used or preferred a somewhat different choice of language than that employed by the legislature. Guinness v. State, 40 Wn.2d 677, 246 P.2d 433 (1952).
Examining the statute as a whole, and having in mind its expressed purpose, we are convinced that the legislature intended RCW 41.56 to cover irrigation districts such as the respondent.
HAMILTON, C.J., FINLEY, HUNTER, HALE, NEILL, STAFFORD, WRIGHT, and UTTER, JJ., concur.
Petition for rehearing denied August 30, 1972.


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v. Joseph METZINGER, Lisa Korologos, Defendants-Appellees.
Aden J. Fine (Christopher A. Hansen and Scott Michelman, on the brief), American Civil Liberties Union Foundation, New York, N.Y., for Plaintiffs-Appellants.
Sara L. Shudofsky (Neil M. Corwin and Sarah S. Normand, on the brief), for Michael Garcia, United States Attorney for the Southern District of New York, New York, N.Y., for Defendants-Appellees.
Elena M. Paul, Ronald M. Daignault, Sami J. Valkonen, New York, N.Y., for Amicus Curiae Volunteer Lawyers for the Arts.
Before: KEARSE, SOTOMAYOR, KATZMANN Circuit Judges.
This case arises out of the efforts of the Federal Bureau of Investigation and the United States Attorney's Office for the Southern District of New York to remove from the internet a video that they may have believed posed a danger to the public safety. We are called upon to determine, first, whether the defendants are entitled to summary judgment on their contention that their actions did not violate the First Amendment rights of the video's filmmaker and distributor and, second, whether the plaintiffs-appellants' claims are nonetheless barred by the doctrine of qualified immunity. We hold that although the defendants are not entitled to summary judgment on their First Amendment argument, they are entitled to qualified immunity. The decision of the district court is affirmed.
The pertinent facts, undisputed for the purposes of this motion, are as follows.
Is there going to be a Military Takeover of New York City on New Years Eve 1999? I don't know too much about this tape you are about to see. I got it from my cousin Steve who's in the army. He said that copies of this tape are floating around the base, and nobody knows who made it. If it's fake, then there's nothing to worry about. If it's real, then we're in really big trouble.
Zieper rented space for the film from BECamation, a web hosting service run by plaintiff-appellant Mark Wieger. Wieger rented his internet space from a company called Online Marketing, LLC (“OLM”), which in turn rented its space from GTE Internetworking (“GTE”). Zieper also publicized his film by posting information about it on a number of internet sites. On none of these sites did Zieper indicate whether the work was fictional.
On November 8, 1999, the New York Police Department (“NYPD”) faxed information about the film to the FBI's Joint Terrorism Task Force. Patrick Fitzgerald, then-Co-Chief of the Organized Crime and Terrorism Unit of the U.S. Attorney's Office for the Southern District of New York, watched the film with Pasquale D'Amuro, then-FBI Assistant Special Agent in Charge of the Counterterrorism Branch of the New York Office, and concluded that the video was a work of fiction. He also determined that they could ask that it be removed from the internet, although they could not order its removal. Fitzgerald explained this to D'Amuro, who told defendant Joseph Metzinger, one of the FBI agents assigned to work on the case, that he should try to have it removed, but that all that he could do was make a request.
On November 9, 1999, the U.S. Attorney's Office served a grand jury subpoena on GTE to obtain information about Zieper's website. From GTE's response, the office learned that GTE rented the space to OLM, which in turn rented it to Wieger. The next day, Metzinger went to Zieper's home in West Caldwell, New Jersey with two NYPD officers and an officer from the local West Caldwell force. Because Zieper was not at home when they arrived, they left and returned later in the evening. When they returned at approximately 7 p.m., Zieper was still not at home, so they called his home telephone number and reached an answering machine, which provided his pager number. The West Caldwell police officer paged Zieper, and when Zieper returned the call, the police officer told him that he was outside his home with FBI agents who wanted to speak with him and wanted to know when he would be home. Zieper told the officer he would not be returning home that night, and the call ended. No mention was made of the video.
Metzinger then paged Zieper, and when Zieper returned this second page, Metzinger told him that he was an FBI agent and that he and the other officers were at his home because of the website and film. The two spoke for approximately five minutes, during which time Metzinger told Zieper he was trying to find out about the film and asked him where he had gotten it. He also told him that it might upset people who were coming to New York and that it would have a negative effect on people's plans and local businesses. Finally, he told him that people were asking the FBI about the video, and he asked him if there was any way the FBI could prevent people from seeing the tape. Zieper was not particularly forthcoming during the phone call, but told Metzinger he would call him back the next day. Zieper also said he did not think it was possible to stop people from seeing the video because it was going to be aired on a local news station that evening. When Metzinger asked if Zieper could call the station to request that they not air the story, Zieper said that he did not think he could stop it, but perhaps Metzinger could.
Zieper did not call Metzinger back the next day, so Metzinger left a voice mail message for Zieper, who had his attorneys return the phone call. The attorneys told Metiznger that the film was fictional and expressed their view that Metzinger was violating the First Amendment in pursuing Zieper. Although the lawyers offered to meet with Metzinger, Metzinger declined to meet with them or to discuss the matter further. When one of the lawyers expressed the hope that “it's over,” Metzinger reported that it was not over. Metzinger told the lawyers that more FBI agents were on their way to Zieper's home and that he could not stop them. Notwithstanding that comment, Metzinger did, in fact, stop the officers once he got off the phone with Zieper's attorneys.
Four days later, on November 15, 1999, Metzinger and Lisa Korologos, the Assistant United States Attorney assigned to the case, placed a joint call to Wieger. Wieger later recalled that they identified themselves as working in the U.S. Attorney's Office and the FBI office handling “riot control or something along those lines,” and they asked him if he owned the website on which the video was hosted. Wieger explained that he did not own the site, but merely hosted it, and that he had been told that the film in question was a work of fiction. Korologos responded that the film was serious, and Metzinger explained that they were afraid that the video was going to incite a riot. Together, they explained that their job was to stop a riot and that they wanted to get the video offline, so that people would no longer be able to see it. They told Wieger that they had traced the website to him through contact with OLM and GTE and that “if he didn't pull the site down,” GTE would. They also told Wieger that they had been in contact with Zieper and Zieper's lawyers, that they had asked Zieper to take down the website, and that he had refused. Wieger later recalled that he asked the defendants if he was “in trouble,” but he could not recall whether either responded. During the course of the call, Korologos asked Wieger if he would block access to the site. Wieger asked if that was what they wanted him to do, and she said yes. Wieger agreed and blocked access to the site while they were all on the phone. The conversation lasted approximately 15-20 minutes.
Later that day, the parties spoke again. This time, Wieger called Korologos back to make sure that he had done everything she wanted him to do. She asked whether anyone could still see the site, and he explained that it would still be possible for someone to see it. She then asked how it would be possible to keep everyone from seeing the site, and he explained that the only way to do that would be to remove all the files. When he asked whether she wanted him to do that, she said yes, and he removed the files. He then suggested that they should tell Zieper that he had removed the files, but she told him it was not necessary to do so. Neither Metzinger nor Korologos had any further contact with either Zieper or Wieger after this phone call. On November 26, 1999, Wieger again made the video accessible on the website, and no law official agent contacted him about taking it down.
On December 22, 1999, plaintiffs brought suit in the United States District Court for the District of New Jersey against the following individuals in their official capacities: then-Attorney General Janet Reno, then-United States Attorney for the Southern District Mary Jo White, then-FBI Director Louis Freeh, Metzinger, and Korologos. Plaintiffs also sued Metzinger and Korologos in their individual capacities, seeking unspecified damages. The district court granted the defendants' motion to dismiss the declaratory and injunctive claims on standing grounds, see Zieper v. Reno, 111 F. Supp.2d 484, 491 (D.N.J.2000), and transferred the only remaining claims-claims against Metzinger and Korologos in their individual capacities for violations of the plaintiffs' First and Fifth Amendment rights-to the Southern District of New York, id. at 492. Metzinger and Korologos moved to dismiss on qualified immunity grounds.
In June 2002, the district court denied this motion on the ground that discovery was necessary, see Zieper v. Reno, 00 Civ. 5594(RMB), 2002 WL 1380003, 2002 U.S. Dist. LEXIS 11421 (S.D.N.Y. June 26, 2002), and this Court affirmed in pertinent part, see Zieper v. Metzinger, 62 Fed.Appx. 383 (2d Cir.2003). Following discovery, the defendants moved for summary judgment, and the district court granted this motion. Zieper v. Metzinger, 392 F.Supp.2d 516 (S.D.N.Y.2005). It concluded that no reasonable jury could find that Metzinger's contact with Zieper amounted to threats or coercion in violation of the First Amendment, but that there was a triable issue of fact on the issue of coercion as to the conversation with Wieger. Id. at 530, 532. The district court then determined that plaintiffs' claims were nonetheless barred by the doctrine of qualified immunity because reasonable officers could have disagreed about the legality of the defendants' actions. Id. at 539.
We now affirm. Although we disagree that a reasonable jury could not have found that Metzinger's conversations with Zieper and his attorneys gave rise to a First Amendment violation, we hold that the plaintiffs' claims are barred by the doctrine of qualified immunity.
We review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the non-moving parties and drawing all reasonable inferences in their favor. See, e.g., Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.1999).
It is well-established that “First Amendment rights may be violated by the chilling effect of governmental action that falls short of a direct prohibition against speech.” Aebisher v. Ryan, 622 F.2d 651, 655 (2d Cir.1980). Accordingly, the First Amendment prohibits government officials from encouraging the suppression of speech in a manner which “can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official's request.” Hammerhead Enters., Inc. v. Brezenoff, 707 F.2d 33, 39 (2d Cir.1983). In determining whether a particular request to suppress speech is constitutional, what matters is the “distinction between attempts to convince and attempts to coerce.” Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir.2003) (per curiam).
Because the district court found that no triable issue of fact existed on the question of whether the defendants' conduct toward Zieper violated the First Amendment, we must determine whether a juror could reasonably find that the defendants, in their repeated communications with Zieper and his attorneys, engaged in activity that could reasonably be interpreted as intimating that some form of punishment would follow his failure to accede to their request. The district court determined that a juror could not reach this conclusion primarily because Metzinger “spoke in a tone that was facially polite and non-threatening,” and “nothing in Metzinger's words to Zieper refer[red] to criminal statutes or legal consequences, or mirror[red] the language of a criminal violation.” Zieper, 392 F.Supp.2d at 528-29.
While the precise language and tone that Metzinger used is certainly important, we have never held that it is the only relevant factor in determining whether a public official has crossed the line “between attempts to convince and attempts to coerce.” Okwedy, 333 F.3d at 344; see, e.g., id. at 343 (“[T]he existence of regulatory or other direct decisionmaking authority is certainly relevant to the question of whether a government official's comments were unconstitutionally threatening or coercive….”); Rattner v. Netburn, 930 F.2d 204, 210 (2d Cir.1991) (noting that “a threat was perceived and its impact was demonstrable”); Hammerhead Enters., 707 F.2d at 39 (holding that there was no First Amendment violation where a (“letter refer [red] to no adverse consequences that might be suffered by stores [,] … the entity sending the letter had no power to impose sanctions on merchants who did not respond[,] … [and] not a single store was influenced by [the] correspondence”) (internal footnote omitted)). Instead, it is necessary to consider the entirety of the defendants' words and actions in determining whether they could reasonably be interpreted as an implied threat. Cf. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963)(explaining the need to “look through forms to the substance” of the defendant's actions).
Here, Zieper received a call from an FBI agent informing him that he and other police officers were outside his home and wanted to speak with him about his video. The agent informed him that the FBI was concerned about the video and wanted to know if there was any way they could prevent people from seeing it. At no time did the agent make clear that Zieper's actions were lawful or that he would not face consequences for making the video public. The next day, Zieper's attorneys spoke to Metzinger and made clear that their client had no intention of removing the video and that they viewed his actions as a First Amendment violation. When the lawyers nonetheless offered to meet with him, Metzinger refused their offer to talk. Instead, when they expressed the hope that this was over, he told them it was not and that more FBI agents were on the way to Zieper's house and that he could not stop them.
Although the police may not have expressly told Zieper or his attorneys that he faced punishment for his actions, their decision to send not only an FBI agent, but also three police officers, to his home before even speaking with him could have reasonably suggested to someone in Zieper's position that there might be legal consequences if he failed to accede to the government's request that he remove his video. So, too, could the fact that the government officials repeatedly called him, twice in quick succession the first evening and then again the next day, even though he had told them he would call them. See Rattner, 930 F.2d at 210 (suggesting that “unannounced visits by police personnel” might be relevant in determining whether the defendants' actions could be reasonably viewed as an implicit threat); see also Bantam Books, Inc., 372 U.S. at 68-69, 83 S.Ct.631 (noting the fact that the defendant's notices were “invariably followed up by police visitations” as one factor that was relevant in determining that the notices “serve as instruments of regulation”); cf. Rattner, 930 F.2d at 209-10 (noting that the letter was not simply a “plea” because, in part, it “stated that the recent Gazette raises significant questions and concerns”) (emphasis added; internal quotation marks omitted). Likewise, after Zieper's attorneys firmly told Metzinger that they viewed the officials' actions as violations of the First Amendment, a reasonable juror could conclude that Metzinger's efforts to “convince” Zieper to take down the video had failed and that his claims that the FBI agents were heading to Zieper's home, that he could not stop them from going to Zieper's home, and that this was not over, were an attempt to “coerce” Zieper into doing so. Thus, we hold that a rational juror could conclude that the officers' actions and comments could reasonably be interpreted as an attempt to coerce Zieper into removing his film from the internet, and we believe that the district court erred in holding to the contrary.
the right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)(internal citations omitted).
At the time of defendants' actions, it was well-established that the defendants could “ ‘exhort[ ]’ private entities” to remove speech so long as they did not engage in “any threat, coercion, or intimidation” when doing so. X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 70 (2d Cir.1999) (quoting Hammerhead Enters., 707 F.2d at 37). Thus, it was clearly lawful for defendants to request that plaintiffs remove from the internet a video which they may have believed posed a danger to the public safety. However, in making this request, the defendants were forced to walk a difficult line: They could lawfully explain why the government was concerned about the video and request its removal, so long as none of their statements or actions might reasonably be interpreted as coercive. In walking this line, much of what the defendants here did was unobjectionable: They were free to contact both plaintiffs, to explain that the government was concerned about the video's effect on the general public, and to request that plaintiffs remove it from the internet. However, as we held above, a reasonable juror could conclude that some of the defendants' actions here did cross the sometimes fine line between an “attempt[ ] to convince and [an] attempt[ ] to coerce.” Okwedy, 333 F.3d at 344.
Notwithstanding our conclusion that a reasonable juror could find a First Amendment violation, under our case law, the defendants are entitled to qualified immunity if it would not have been clear to a reasonable officer in their position that their conduct was unlawful. Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (“The relevant, dispositive inquiry … is whether it would be clear to a reasonable officer that his conduct was unlawful ….”); see also Hope v. Pelzer, 536 U.S. 730, 740, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)(stating that for a right to be clearly established for qualified immunity purposes, it “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right” (quotation marks omitted)).
Here, our pre-existing law would not have made apparent to a reasonable officer that defendants' actions crossed the line between an “attempt[ ] to convince and [an] attempt[ ] to coerce” because the cases in which we have held that individuals' First Amendment rights were violated involved conduct more likely to be perceived as threatening than that here. In Bantam Books, the threats issued were much more explicit than those in the present case. There, a state commission notified a publication distributor that some of the publications he distributed had been “reviewed … and … declared to be … completely objectionable for sale, distribution or display for youths.” Bantam Books, Inc., 372 U.S. at 62, 83 S.Ct. 631 n. 5. The notice further stated that “[t]he Chiefs of Police have been given the names of the aforementioned magazines with the order that they are not to be sold, distributed or displayed to youths [under] eighteen years of age…. The Attorney General will act for us in case of non-compliance.” Id. A separate notice also threatened prosecution: “Your cooperation in removing the listed and other objectionable publications … will be appreciated. Cooperative action will eliminate the necessity of our recommending prosecution to the Attorney General's department.” Id. at 63, 83 S.Ct. 631 n. 5.
Likewise, in Rattner, the threat of a commercial boycott constituted a more direct economic sanction than the one contemplated here and, thus, required fewer and simpler inferences to discern. There, the defendant, a member of the Village of Pleasantville Board of Trustees and the mayor's “right-hand man,” sent a letter to the Village Chamber of Commerce in which he expressed concerns about the Chamber's publication of an advertisement that detailed on-going litigation between the plaintiff and the Village and charged the Village with hiding the costs of that litigation from taxpayers. Rattner, 930 F.2d at 206. The defendant and others complained to Chamber members about the decision to publish the advertisement, and defendant wrote a letter to each member of the Chamber, other than plaintiff. In the letter, the defendant expressed his belief that the advertisement's “inclusion in a Chamber paper was and is inappropriate and a disservice to those of us who live here and have been strong supporters of our local businesses.” Id. He also indicated that “[t]he healthy growth of many local businesses depends on the trust and honesty displayed by our local businesses…. I believe-and many of my neighbors believe-that the recent Gazette raises significant questions and concerns about the objectivity and trust which we are looking for from our business friends.” Id. At a debate among candidates for Village Trustee approximately three weeks later, the defendant “stated that he had made a list of approximately 40 local businesses at which he regularly shopped,” thereby strongly suggesting that he might launch an economic boycott of those businesses. Id.; see also id. at 210 (“Several Chamber directors testified at their depositions that they viewed the letter as reminiscent of McCarthyism, threatening them with boycott or discriminatory enforcement of Village regulations if they permitted the publication of additional statements by Rattner….”).
Thus, the language in those cases was more likely to be perceived as threatening than was the defendants' conduct in this case. When Metzinger spoke to Zieper, he merely told him that the video might upset people who were coming to New York and that it might have a negative effect on people's plans and local businesses and asked him if there was any way the FBI could prevent people from seeing the tape. See, e.g., Hammerhead Enters., 707 F.2d at 36-37 n. 2 (finding no First Amendment violation when the Administrator of the New York City Human Resources Administration urged that stores not sell a board game because it was an “ugly and damaging slam at this society's poorest citizens” and “does a grave injustice to taxpayers and welfare clients alike”). Indeed, when Zieper told Metzinger that he could try to have the local news affiliate not run a story about the video, Metzinger might have taken that as a sign that Zieper was willing to consider removing the video and, thus, that further attempts to contact him would not be viewed as coercive. While we hold that Metzinger's comments to Zieper's attorneys the following day that this was “not over” could, in the circumstances here, reasonably have been interpreted as coercive, Metzinger only stated this in response to the attorneys' expressed hope that the matter was over, and Metzinger could have reasonably believed that his statement would be interpreted only as an informative response to the attorneys' statement.
Likewise, although the district court held that Korologos' statement to Wieger about his upstream provider's willingness to remove the video could reasonably be interpreted as threatening economic sanctions, Korologos, unlike the defendant in Rattner, never indicated that she understood the potential economic significance to Wieger of his relationship with the upstream provider, or suggested that she was using their alleged prior contact to gain leverage. See Rattner, 930 F.2d at 206 (citing official's letter which noted that the “healthy growth of many local businesses depends on the trust and honesty displayed by our local businesses”). Korologos could have believed that this statement would reasonably be interpreted as only informative. Indeed, at oral argument, appellants' counsel acknowledged that one reasonable inference of Korologos' statement was that she was simply making a factual assertion.
The district court also held that “[g]iving plaintiffs the benefit of every reasonable inference on this motion, … a reasonable jury could find that the statement that Zieper's video might ‘incite a riot’ was coercive” because it is similar to language in a criminal statute. Zieper, 392 F.Supp.2d at 531. However, defendants here are entitled to qualified immunity because an officer could reasonably believe that this language would be interpreted as simply an explanation of why they were concerned about the video and not a threat of prosecution under the criminal statute. The defendants' statements and conduct fall considerably short of the thinly veiled threats of prosecution issued in Bantam Books. In Bantam Books, the Commission sent out multiple notices, which were “phrased virtually as orders,” reminded the recipients “of the Commission's duty to recommend to the Attorney General prosecution of purveyors of obscenity,” were circulated to local police departments, and were “invariably followed up by police visitations.” Bantam Books, 372 U.S. at 62-63, 68, 83 S.Ct. 631. Thus, because Bantam Books and Rattner present examples of threats that are more direct on their face than those defendants used here, these cases were not “closely analogous” enough to the circumstances here to give the defendants' fair warning of the illegality of their actions. See Lauro v. Charles, 219 F.3d 202, 215-16 (2d Cir.2000).
Appellants express concern that extending qualified immunity to the officials here will effectively immunize government officials from liability whenever they use ambiguous threats to suppress protected speech, but this fear is unwarranted. There will certainly be some cases in which the totality of the circumstances are such that a reasonable officer would have to recognize that his or her requests could reasonably be interpreted as threatening. All we hold today is that the defendants' actions here do not present such a case. Moreover, as a result of our holding that a reasonable juror could conclude that the defendants' actions violated the First Amendment, officials who are in a similar situation in the future will be on notice that they must be especially careful to make sure that the totality of their actions do not convey a threat even when their words do not.
As the Supreme Court has recognized, civil suits for damages “can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties,” and “it is inevitable that law enforcement officials will in some cases reasonably but mistakenly” believe that their actions are lawful. Anderson, 483 U.S. at 638, 641, 107 S.Ct. 3034. Even if it is somewhat more difficult to sue public officials in the specific context of implied threats to speech than in other contexts, this result is hardly surprising: The very purpose of qualified immunity is to protect officials when their jobs require them to make difficult on-the-job decisions. See, e.g., Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (“This accommodation for reasonable error exists because ‘officials should not err always on the side of caution’ because they fear being sued.”) (quoting Davis v. Scherer, 468 U.S. 183, 196, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984)). This is especially true when officials are forced to act quickly. Here, the defendants knew the video was about to be publicized on a local news station, and reasonable officials could have feared that the video would cause more damage as its notoriety spread and more people saw it. See, e.g., Laverne v. Corning, 522 F.2d 1144, 1149 (2d Cir. 1975) (noting that “qualified immunity is based on the common-sense rationale that the public interest requires that public officials be able to carry out their discretionary duties and act decisively without the intimidation that would result if good-faith errors in judgment were later to subject them to liability for damages”). In any event, the qualified immunity standard “ ‘gives ample room for mistaken judgments' by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Hunter, 502 U.S. at 229, 112 S.Ct. 534 (quoting Malley v. Briggs, 475 U.S. 335, 341, 343, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Even viewing the evidence most favorably to the plaintiffs, we cannot say here that these defendants did more than make a “mistaken judgment[ ]” about what precisely they could say in the context of requesting that Zieper's video be removed from the internet, and we cannot hold that a reasonable official in the defendants' circumstances would necessarily have understood that his or her actions were unlawful. Thus, the defendants are entitled to qualified immunity.
Accordingly, the opinion of the district court is AFFIRMED.

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Time and again, we have seen that neither precedent nor a perceived need to achieve consensus on the Court can hold Justice Clarence Thomas back from pronouncing what he has found to be the best understanding of the Constitution and federal statutes. His decisions scrape away at what Ralph Rossum has called the “excrescence” of flawed precedent,1 no matter how deeply entrenched. He looks beyond the entrenchment to the Constitution and history. Not surprisingly, his administrative law decisions and his decisions directly interpreting the Constitution receive the most attention. But the Justice’s deep commitment to not only thinking, but rethinking is also on display in the more prosaic criminal-law opinions I will discuss.
Let me add a footnote. Beginning with its first bribery law in 1789, Congress had clearly and consistently limited federal criminalization of bribery only to the bribing of federal officials.15 There is nothing in the legislative history of the Hobbs Act that suggests that in 1946 (or in 1934, when Congress first prohibited affecting interstate commerce by extortion under color of official right) Congress thought it was making all state and local bribery a federal crime.16 The words of the Hobbs Act prohibition were far more limited, setting federal prosecutors loose only on those non-federal officials who obtained payment under the pretense of official right.
In his Ocasio dissent, Justice Thomas reprised his Evans dissent. History, he explained again, was on the side of the defendant, because extortion and bribery are different crimes.20 Interestingly, Justice Breyer, who had not been on the Court when Evans was decided, filed a concurring opinion in Ocasio, forthrightly admitting that he “agree[d] with the sentiment expressed” in Justice Thomas’s dissenting opinion that Evans “may well have been wrongly decided.”21 But Justice Breyer said that he felt constrained to “take Evans as good law.”22 Justice Thomas, of course, would not and does not let an erroneous prior construction of a federal statute stand in the way of getting it right twenty-four years later.
The bottom line: Evans was wrong. Rather than try to follow its logic, and thereby fouling adjacent areas of criminal-law doctrine, the Court should have, as Justice Thomas argued, cut out the tumor.
The path of least resistance is all too easy to take. In the law, that often translates into a reflexive reliance on precedent. Justice Thomas is not so tempted. In each and every opinion, he forces us to engage with the principle and history that lie beyond past decisions—whether or not he once agreed with their conclusions.44 That commitment to intellectual honesty is no doubt one of his most profound and enduring contributions to the law.
Kate Stith is the Lafayette S. Foster Professor of Law at Yale Law School. Many thanks to Megan McGlynn ’17 for her insightful and most helpful research assistance.
Preferred Citation: Kate Stith, No Entrenchment: Thomas on the Hobbs Act, the Ocasio Mess, and the Vagueness Doctrine, 127 Yale L.J. F. 233 (2017), http://www.yalelawjournal.org/forum/no-entrenchment.
Id. at 278 (Thomas, J., dissenting).
Id. at 282; see id. at 281-84, 284 n.4.
18 U.S.C. § 1951(b)(2) (2012).
Evans, 504 U.S. at 283-84 (Thomas, J., dissenting).
136 S. Ct. 1423 (2016).
Ocasio, 136 S. Ct. at 1437 (Thomas, J., dissenting).
See Ocasio, 136 S. Ct. at 1435.
Id. at 1437 (Breyer, J., dissenting).
136 S. Ct. at 1445 (Sotomayor, J., dissenting).
527 U.S. 41, 64 (1999) (plurality opinion).
Id. at 103 (Thomas, J., dissenting).
Id. at 112 (quoting Kolender v. Lawson, 461 U.S. 352, 370 (White, J., dissenting)).
135 S. Ct. 2551 (2015).
Id. at 2563-64 (Thomas, J., concurring).
Ralph A. Rossum, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration 12 (2014).
Id. at 283. Justice Thomas went on to conclude: “The Court, therefore, errs in asserting that common-law extortion is the ‘rough equivalent of what we would now describe as ‘taking a bribe.’” Id. (quoting id. at 260 (majority opinion)).
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined . . . or imprisoned not more than twenty years, or both.
Compare Hobbs Act, 18 U.S.C. § 420(e) (1946) (non-substantively revised and codified in 1948 at 18 U.S.C. § 1951(a) (Supp. 1947-1949)), with id. § 91 (“Bribery of United States officer”), id. § 207 (“Official accepting bribe”), id. § 199 (“Accepting bribe by Member of Congress”), and id. § 200 (“Offering bribe to Member of Congress”). When these and other federal bribery laws were consolidated in 1962 into a new provision, 18 U.S.C. § 201 (Supp. 1959-1963), the maximum prison sentence was increased to (and remains) fifteen years in prison (plus disqualification from holding office).
As effectively as if there were federal common law crimes, the court in Kenny . . . amend[ed] the Hobbs Act and br[ought] into existence a new crime—local bribery affecting interstate commerce. Hereafter, for purposes of Hobbs Act prosecutions, such bribery was to be called extortion. The federal policing of state corruption had begun.
John T. Noonan, Jr., Bribes: The Intellectual History of a Moral Idea 586 (1984).
The first federal law to address bribery provided for only civil penalties. See Act of July 31, 1789, ch. 5, § 35, 1 Stat. 29, 46-47 (providing that bribery of customs officers would result in disqualification from office with both parties subject to being fined). The bribery provision of the Crimes Act of 1790 prohibited federal judges from receiving bribes, and provided, in addition to disqualification, for a fine and imprisonment “at the discretion of the court.” Crimes Act of 1790, ch. 9, § 21, 1 Stat. 112, 117. The offense of “extortion . . . under, or by colour of his office,” applicable only to federal officials, was added in the Crimes Act of 1825, ch. 65, § 12, 4 Stat. 115, 118. The principal statute prohibiting bribery of federal officials is now 18 U.S.C. § 201 (2012), which was enacted in its current form in 1962. See Act of Oct. 23, 1962, Pub. L. No. 87-849, § 1(a), 76 Stat. 1119-20 (codified as amended at 18 U.S.C. § 201); see also supra note 13. Also in the early 1960s, Congress enacted the Travel Act of 1961, Pub. L. No. 87-228, 75 Stat. 498 (codified as amended at 18 U.S.C. § 1952 (2012)), which includes state bribery law as a predicate offense. It was not until 1984 that the Federal Program Bribery statute, Crime Control Act of 1984, Pub. L. No. 1104, 98 Stat. 1837 (codified as amended at 18 U.S.C. § 666 (2012)), came into force. The latter explicitly reaches instances of bribery by any agent of a recipient of federal funds; the statute is targeted at, inter alia, state and local corruption. But federal prosecutors know that “extortion” has connotations of coercion, and even violence, that are not present in the term “bribery.” It is thus not surprising that state and local bribery schemes are often charged not under the federal program bribery statute but as Hobbs Act extortion. See, e.g., United States v. Silver, 184 F. Supp. 3d 33 (S.D.N.Y. 2016) (denying motion for acquittal notwithstanding the verdict of guilty as to, inter alia, two Hobbs Act counts of extortion under color of official right), vacated on other grounds, No. 16-1615-CR, 2017 WL 2978386 (2d Cir. July 13, 2017).
The relevant provisions of the 1946 Hobbs Act “did not make any significant change in the section referring to obtaining property ‘under color of official right’ that had been prohibited by the 1934 [Anti-Racketeering] Act.” Evans, 504 U.S. at 262. Justice Stevens later remarked that the legislative history of the Hobbs Act was “sparse and unilluminating with respect to the offense of extortion.” Id. at 264.
Id. at 1436. The defendant, a local police officer, was prosecuted for violating the Hobbs Act and for conspiring to violate the Hobbs Act, in violation of 18 U.S.C. § 371, after he accepted payments from automobile body shops in return for referring accident victims to the shops. He challenged his conspiracy conviction, “contending that, as a matter of law, he c[ould ]not be convicted of conspiring with the [bribe payors] to obtain money from them under color of official right.” Id at 1427The Court rejected this contention, relying on Evans. Id. at 1434 (“The subtext of [Ocasio’s] arguments is that it seems unnatural to prosecute bribery on the basis of a statute prohibiting ‘extortion,’ but this Court held in Evans that Hobbs Act extortion ‘under color of official right’ includes the ‘rough equivalent of what we would now describe as “taking a bribe”‘” (citing and quoting Evans, 504 U.S. at 260)). Justices Kennedy, Ginsburg, Breyer, and Kagan joined the majority opinion. Justice Sotomayor filed a separate dissenting opinion, in which Chief Justice Roberts joined, that relied on the Hobbs Act’s language prohibiting obtaining property “from another.” Id. at 1440 (Sotomayor, J., dissenting). Justice Breyer’s concurring opinion is discussed infra text accompanying notes 21-22.
Ocasio, 136 S. Ct. at 1436. The decision noted that it did not reach the question whether a “color of right” extortion victim (the bribe payor) may be prosecuted as an accomplice to a Hobbs Act violation committed by the person engaged in extortion (the bribe recipient), pursuant to 18 U.S.C. § 2(a) (2012). Ocasio, 136 S. Ct. at 1432 n.6. But the decision went on to note that the Government’s brief had cited cases for the proposition that the bribe payor “may be guilty of [color of official right] Hobbs Act extortion as an aider and abettor.” Id. The federal mens rea standard for accomplice liability is close to, if not equivalent to, the “specific intent” required for conspiracy liabilitySee id. at 1430. As reported in Daniel C. Richman, Kate Stith, & William J. Stuntz, Defining Federal Crimes 469-70 (2014), all federal Courts of Appeals have adopted some version of “Learned Hand’s classic language in United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938), . . . [explaining that] ‘the government must prove that the defendant . . . “participate[d] in [the criminal venture] as in something he wishe[d] to bring about, and [sought] by his actions to make it succeed.”’” It is hard to find daylight between this high standard of mens rea required for accomplice liability and the mens rea required for conspiratorial liability. Ocasio, 136 S. Ct. at 1432, 1435, reiterates the conspiracy standard enunciated in Salinas v. United States, 522 U.S. 52, 63-64 (1997): conspirators must “share a common purpose” and pursue “the same criminal objective.” Hence, at least as matters now stand, Ocasio foretells the Court also holding that bribe payors can be found guilty of the substantive crime of Hobbs Act extortion. Again, as strange as it sounds, this would mean the extortion victim is guilty of his own extortion.
More portentously, the decision may foretell reconsideration of what constitutes a criminal conspiracy, at least as regards the Hobbs Act, see infra text accompanying notes 23-29. There may also be, waiting in the wings, reconsideration of whether foreign officials may be prosecuted for conspiracy to receive bribes the giving of which was in contravention of the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78m, 78dd-1 to 78dd-3, 78ff (2012). See Michael F. Dearington, Ocasio v. United States: The Supreme Court's Sudden Expansion of Conspiracy Liability (and Why Bribe-Taking Foreign Officials Should Take Note) (Feb. 27, 2017) (unpublished manuscript) (on file with author); Shu-en Wee & Daniel Richman, Bribery Conspiracies, Foreign and Domestic: Ocasio v. United States and Its Implications for FCPA Complicity Theories, Compliance & Enforcement (Aug. 15, 2016), http://wp.nyu.edu/compliance_enforcement/2016/08/15/bribery-conspiracies-foreign-and-domestic-ocasio-v-united-states-and-its-implications-for-fcpa-complicity-theories [http://perma.cc/NE85-AS2B].
Id. (Breyer, J., concurring). Breyer went on to note that “[t]he present case underscores some of the problems that Evans raises.” Id.
Id. Ocasio had not sought to have Evans overruled, and counsel conceded at oral argument that he took the holding in Evans “as a given.” Id. (quoting Transcript of Oral Argument at 20, Ocasio, 136 S. Ct. 1423 (No. 14-361)). “That being so,” said Breyer, “I join the majority’s opinion in full.” Id.
In addition to extortion “under color of official right,” the Hobbs Act prohibits extortion “induced by wrongful use of actual or threatened force, violence, or fear.” Hobbs Act, 18 U.S.C. § 1951 (2012). See also supra note 3. These provisions apply to private-sector, as well as public-sector, extortion. See, e.g., United States v. Capo, 817 F.2d 947, 954 (2d Cir. 1987) (en banc) (holding that threats of economic harm are extortionate when “the defendant purports to have the power to hurt the victim in economic terms and fear is induced.”) (quoting United States v. Brecht, 540 F.2d 45, 51 n.11 (2d Cir. 1976), cert. denied, 429 U.S. 1123 (1977))). The Ocasio Court did not limit its holding to conspiracy to violate the “color of right” prong of the Hobbs Act. Indeed, Justice Alito seemingly went out of his way to suggest that voluntary payments made by “a store owner . . . to gang members” to ensure they would not “trash the store” could—assuming the evidence showed that the store owner voluntarily entered into this cost-of-doing-business arrangement with the gang members—be guilty of conspiracy to extort herself. Ocasio, 136 S. Ct. at 1435.
See, e.g., Phillip E. Johnson, The Unnecessary Crime of Conspiracy, 61 Cal. L. Rev. 1137, 1164 (1973) (“[T]he term ‘agreement’ may connote anything from firm commitment to engage in criminal activity oneself to reluctant approval of a criminal plot to be carried out entirely by others.”).
Ocasio, 136 S. Ct. at 1435; see also id. at 1432 (“[W]hen [a] person’s consent or acquiescence is inherent in the underlying substantive offense, something more than bare consent or acquiescence may be needed to prove that the person was a conspirator.”).
Id. at 2567 (“The problem of vague penal statutes is nothing new. The notion that such laws may be void under the Constitution’s Due Process Clauses, however, is a more recent development.”).
Id. (“Before the end of the 19th century, courts addressed vagueness through a rule of strict construction of penal statutes, not a rule of constitutional law.”).
See id. at 2570 (discussing International Harvester Co. of America v. Kentucky, 234 U.S. 216 (1914), and Collins v. Kentucky, 234 U.S. 634 (1914)).
Id. at 2564. More generally, Thomas was concerned that the Court had used the vagueness doctrine to strike down an array of duly enacted statutes, including that at issue in Morales, the policies of which Court majorities disapproved. Id. at 2566-67, 2571-72.
See generally William H. Pryor, Jr., Justice Thomas, Criminal Justice, and Originalism’s Legitimacy, 127 Yale L.J. F. 173 (2017), http://www.yalelawjournal.org/forum/justice-thomas-criminal-justice-and-originalisms-legitimacy [http://perma.cc/S3C6-6LQL].
135 S. Ct. at 2563. The ACCA provides for a higher prison term for defendants with three prior convictions for, inter alia, a “violent felony.” 18 U.S.C. § 924(e)(1) (2012). The statutory definition of “violent felony” specifically mentions burglary, arson, extortion, and the use of explosives, and then provides that any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another” is also included. § 924(e)(2)(B)(ii). The just-quoted provision has become known as the ACCA’s “residual clause,” which the Court in Johnson struck down as impermissibly vague under the Due Process Clause of the 14th Amendment. 135 S. Ct. at 2563.
Thomas judged one of the defendant’s previous convictions, possession of a sawed-off shotgun, not to come within the statutory definition of a “violent felony.” 135 S. Ct. at 2563-66 (Thomas, J., concurring).
See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 520-21 (2000) (Thomas, J., concurring) (acknowledging that a precedent he joined was incorrectly decided).


text:
College Awards The College has instituted two Awards of Excellence for overall performances to be given to students after rigorous verification of their records by a duly constituted Staff Council Awards Committee. Another coveted award is the Principal's Award.
Golden Jubilee Awards This award replaces the Silver Jubilee Award which was instituted with donations made by the Principal and members of the faculty in the Silver Jubilee Year 1973. The first Silver Jubilee Award was given in the academic year 1974-75. In the Golden Jubilee Year the teaching faculty and the Principal upgraded this as the Golden Jubilee Award. It was first given in the academic year 1997-98.
The Golden Jubilee Award is given to two third year students - one from Humanities and Social Sciences and one from the Sciences including B. Sc. Honours Mathematics. Till 2014, the award was in the nature of Rolling Trophy and a Certificate of Merit. From the academic year 2014-15, each award also includes a cash prize of Rs 7500.
Eligibility: Academic - Humanities & Social Sciences: 55% marks; Sciences including B.Sc. Honours Mathematics 60% marks. Applicants should have ordinarily cleared concurrent/ subsidiary subjects and also have the requisite attendance as per University guidelines.
Extracurricular and Co-curricular:Participation in at least two categories of activities from amongst (a) Cultural/ Extracurricular activities; (b) Organization of department/ college functions; and (c) Co-curricular activities NCC/ Sports/ Social Service.
Procedure for Applying:Applications with complete biodata including details of academic, cultural/extracurricular/co-curricular and organizational activities, along with an essay on a specified topic are to be submitted by a notified date.
Professor Savitri G. Burman Awards of Excellence These were instituted in the Golden Jubilee Year 1998 by Shri S. K. Burman for two second year students, one from Humanities and Social Sciences and one from the Sciences including B.Sc. Honours Mathematics. Each award was in the nature of a Rolling Trophy and a Certificate of Merit. From the academic year 2014-15, it also includes a cash prize of Rs. 5000.
The modalities for selection are the same as for the Golden Jubilee Award, excluding the essay.
Principal's Award The Principal at her discretion gives this award to a student whose contribution to a cause or the college is exemplary in nature. Till 2014, this award was in the nature of a Silver Medal. From the academic year 2014-15, the award includes a cash prize of Rs. 5000.
University Rankers Award The award is given to students procuring top three university ranks in the north campus at the University Examinations. From the academic year 2014-15, it is in the nature of a Certificate of Merit and a cash prize of Rs. 2500 (as against Rs. 1500 in previous years).
Students who secure the highest cumulative marks in M.A./M.Sc. Previous University Examinations Semester I to Semester II are given a Certificate of Merit and a cash prize of Rs. 2500 (as against Rs. 1500 in previous years).
Students who secure the highest cumulative marks in B.A./B.Sc. University Examinations Semester I to Semester IV are given a Certificate of Merit and cash prize of Rs. 2500 (as against Rs. 1500 in previous years).
Students who secure the highest cumulative marks in B.El.Ed. University Examinations Part I, II and III are awarded a Certificate of Merit and a cash prize of Rs. 2500 (as against Rs. 1500 in previous years).
The college is privileged to receive a large number of endowments by private donors for instituting awards as listed below. Each award has its own eligibility criteria.
Angeli Qwatra Award for Excellence was instituted by Dr. Angeli Qwatra, Alumna of the college in the academic year 2008-09. There are two awards: one for Humanities and Social Sciences and one for Sciences including Mathematics. Applications are invited from final semester students. The selection criteria places a weighted emphasis on academics, extra-curricular and co-curricular activities, on the spot essay and an interview. Each award is in the nature of a Certificate of Merit and a cash prize of Rs. 7500. This is given on the occasion of Miranda House Alumnae Association or the Founder's Day function.
The award is in a nature of Certificate of Merit and cash prize of Rs. 6000.
The award is in a nature of Certificate of Merit and cash prize of Rs 6000.
Miranda House Alumnae Association Award was instituted by Alumnae Association in the academic year 2007-08. There are two 60 awards, one for Humanities and Social Sciences and one for Sciences including Mathematics, given on the basis of academic merit and economic need. Applications are invited from students of Semester IV with a family income not exceeding Rs 1.5 lakhs per annum. The merit criteria consider the cumulative marks of University Examinations Semester I and Semester II. Each award is in the nature of Certificate of Merit and a cash prize of Rs. 5000.
Yashoda Fellowship for Commitment to Social Change in the memory of Baby Falak was instituted by Yashoda Charitable Trust in the academic year 2013-14. The award is given to any student who has demonstrated continuous commitment to social change through academics and co-curricular activities within or outside the college. The selection is not limited to students participating in the national service scheme (NSS). The award is in the nature of Certificate of Merit and a cash prize of Rs. 5000.
B. S. Jolly Award for Community Engagement was instituted by Dr. Pratibha Jolly, Principal Miranda House in memory of her father in the academic year 2013-14. The award is given to a student who undertakes exemplary work with demonstrable outcomes in the area of social service. The work undertaken is not limited to that undertaken under the National Service Scheme (NSS) in the college. Preference is given to students who are able to launch independent initiatives. The award is in the nature of a Certificate of Merit and cash prize of Rs. 5000.
Bawa Balwant Singh Bhalla Award was instituted by Ms. Meena Singh in memory of father of Late Ms. J. R. Bhalla, former faculty at Department of Economics in Miranda House in the academic year 2013-14. The award is given to a Semester IV student who excels in sports and has also performed very well in academics. The award is in the nature of a Certificate of Merit and cash prize of Rs. 5000.
Sumona Dutta Memorial Award was instituted by Mrs. Nibedita Dutta, as a Gold Medal in memory of her daughter in the academic year 1999-2000, who graduated as a student of B.A. Honours in Economics in 1994. Sumona died tragically in a rail accident in August 1995. From the academic year 2014-15, the award is in the nature of a Certificate of Merit and a cash prize of Rs. 10000 for a student of B.A. Honours Economics Semester VI. The criteria for selection includes good academic record and participation in cocurricular and extra- curricular activities. A Departmental Committee shortlists 5 to 10 students and select the awardee on basis of an Interview.
Mallan Devi Bhalla Award was instituted by Mr. B. B. Singh Bhalla in memory of his grandmother in the academic year 1980-81. The award is given to a student of B.A. Honours Economics Semester VI who secures the highest cumulative marks in the University Examinations Semester I to Semester V. The award will be in the nature of a Certificate of Merit and a cash prize of Rs. 2500.
Highest cumulative marks in B.A. Honours Hindi University Examinations Semester I to Semester III.
Highest cumulative marks in B.A. Honours Hindi University Examinations Semester I to Semester V.
Highest cumulative marks in B.A. Programme in Hindi Language University Examinations Semester I to Semester IV.
Highest cumulative marks in M.A. Previous Hindi University Examinations Semester I to Semester II.
Each award is in the nature of Certificate of Merit and cash prize of Rs. 5000.
N. N. Kesar Memorial Award for Musical Talent was instituted by Dr. Saroj Kesar, former faculty at Department of Zoology in Miranda House in memory of her husband. Till the academic year 2013-14, it was given as a cash prize of Rs. 2500 to a student winning a competitive N. N. Kesar Musical Event is given to a student of B.A. Honours Music Semester VI for securing the highest cumulative marks in University Examinations Semester I to Semester V. The award is in the nature of a Certificate of Merit and a cash prize of Rs. 5000.
S. S. Ahluwalia Award was instituted by Dr. V. W. Ahluwalia, former faculty at Department of Philosophy in Miranda House in memory of her husband in the academic year 2008-09. The award is given to a student of B.A. Honours Philosophy who secures the highest cumulative marks in University Examinations Semester I to Semester III. The award is in the nature of Certificate of Merit and a cash prize of Rs. 5000.
Two awards will be given to the students of Semester I who opt for Discipline course in Sanskrit and secure at least 70% marks in Sanskrit. Each award is in the nature of a Certificate of merit and a cash prize of Rs 1500.
One award will be given to a student of B.A. Honours Sanskrit Semester VI who secures the highest cumulative marks in University Examinations Semester I to Semester V. The award is in the nature of a Certificate of Merit and a cash prize of Rs. 2000.
Sanyukta & D.N. Chaudhari Award was instituted by Ms. Sanyukta Chaudhari, former faculty at Department of Sanskrit in 63 Miranda House. The award is given to a student of B.A. Honours Sanskrit Semester VI who secures the highest marks in University Examinations Semester I to Semester V. From the academic year 2014-15, the award is in the nature of a Certificate of Merit and a cash prize of Rs. 2500.
Highest cumulative marks in B.A. Honours Sanskrit in University Examination Semester I to Semester III.
Highest cumulative marks in B.A. Honours Sanskrit in University Examinations Semester I to Semester V.
Highest cumulative marks in Sanskrit Language in B.A. Programme University Examinations Semester I to Semester III.
Madan Mohan Chopra Memorial Award was instituted by Shri Man Mohan Chopra, former member of the Administrative Staff, in memory of his younger brother who worked in the office during 1971-72. The award is given to a student of B.Sc. Applied Physical Sciences Semester VI on the basis of highest cumulative marks in the University Examinations Semester I to Semester Vis the nature of a Certificate of Merit and a cash prize of Rs. 2500.
Kanta Venugopal Award for Genetics was instituted by Ms. Sucheta and Professor M. N. Murty in the academic year 2007- 08.The award is given to a student of B.Sc. Honours Botany Semester VI who secures an aggregate of 60% and above in the pertinent University Examination along with the highest marks in the Genetics paper scoring at least 65% . The award is in the nature of 64 Certificate of Merit and a cash prize of Rs. 5000.
Dr. Lakshmichand Dayawanti Memorial Award was instituted by Dr. Sunita Ahuja, former faculty at the Department of Chemistry in Miranda House in memory of her parents in the academic year 2001- 02. The award is given to a student of B.Sc. Honours Chemistry Semester IV selected by the Department of Chemistry on the basis of (i) performance in the University Examinations Semester I to Semester III (ii) attendance record (iii) behaviour and conduct in the class (iv) participation in extra-curricular activities. The award is in the nature of a Certificate of Merit and a cash prize of Rs. 2500.
Naunit Ram Ahuja Award was instituted by Dr Sunita Ahuja, a former faculty at the Department of Chemistry in Miranda House in memory of her father in the academic year 2011-12. The award is given to a student of B.Sc. Honours Chemistry Semester IV on the basis of academic merit and economic need. The award is in the nature of a Certificate of Merit and cash prize of Rs. 5000.
G.K. Dhingra Award was instituted by Dr. Aruna Popli, former faculty at Department of Chemistry in Miranda House in memory of her father in the academic year 2014-15. The award is given to a student of B.Sc. Honours Chemistry Semester VI on the basis of highest cumulative marks in the Organic Chemistry Paper in University Examination Semester III and Semester IV. The award is in the nature of a Certificate of Merit and cash prize of Rs. 5000.
Dr. Anita Tandon Award was instituted by Professor S.K. Tandon in memory of his wife, Dr. Anita Tandon, former faculty at Department of Chemistry in Miranda House in the academic year 2010-11. The award is given to a student of B.Sc. Honours Chemistry Semester II who secures the highest marks in Organic Chemistry Paper in the University Examination Semester I. The award is in the nature of a Certificate of Merit and cash prize of Rs. 5000.
D. N. Gulati Memorial Award was instituted by Ms. Sangeeta Gulati in memory of her father in the academic year 2014-15. The award is given to a student of B.Sc. Honours Mathematics Semester IV who secures the highest cumulative marks in University Examinations Semester I to Semester III. The award is in the nature of a Certificate of Merit and a cash prize of Rs. 2000.

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