What do you want, tough guy?

Photographer: Frazer Harrison/Getty Images

A Film Noir Trope Is Now Unconstitutional

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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“Lemme see your register.” Can’t you just hear the tough cop asking the hotel desk clerk that question in every noir film you’ve ever seen? As of Monday, the question is now unconstitutional, and the hotel doesn’t have to show its list of guests unless the police have a warrant. The case even came out of Los Angeles, home of the film noir tradition.

The L.A. ordinance before the U.S. Supreme Court is a policeman’s dream. It requires hotels in the city to get guests’ names and addresses, their means of payment, their car registrations (this is L.A. after all) and the number of guests, and keep that information on file for 90 days. My favorite part of the law says that if you walk in without a reservation, pay cash or rent the room for less than 12 hours, you need to show photo ID -- which the hotel has to record. The seediness is almost too wonderful. Drug deals, prostitution, the spontaneous drifter -- the law is out to target them all.

The provision of the law that was challenged in this case, City of Los Angeles v. Patel, wasn’t any of these. It was the provision that says the police can automatically see any part of the register just by asking. It’s a misdemeanor -- that is, a crime -- for the hotel proprietor to refuse.

I wish the case had included facts as sordid as the law itself -- but in truth that would’ve been less legally interesting than what actually happened. In the real world, a group of hotel operators in conjunction with a lodging association brought a collective lawsuit in federal court challenging the ordinance as unconstitutional on its face. Their argument was that, as written, the law violated the Fourth Amendment right to privacy from unreasonable searches and seizures -- in all cases whatsoever.

A facial challenge, as it’s called in the con-law biz, is a rare bird. Most constitutional cases arise from particular facts, and involve someone claiming that his or her constitutional rights have been specifically violated. A facial challenge is brought without any facts at all. To win, the plaintiff has to show (at least in theory) that the law would be unconstitutional in every conceivable case. In other words, for a facial challenge to succeed, it must be impossible to imagine conditions where applying the law would be permissible under the Constitution.

Given that the Fourth Amendment is written so that it bars “unreasonable” searches and seizures, you’d think it would be a bad fit for a facial challenge. After all, surely it would sometimes be reasonable for the police to see a hotel register without a warrant. That was the view of Justice Antonin Scalia in dissent. He thought that the law is “constitutional in most, if not all, of its applications.” And in a 1968 case called Sibron v. New York, the court said the “constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.”

But Justice Sonia Sotomayor, writing for five justices including swing voter Justice Anthony Kennedy, thought otherwise. The 1968 case, she noted, involved a highly flexible law that allowed New York police to stop anyone whom they suspected of having committed a felony or being about to commit one. In contrast, Sotomayor said, the L.A. law is categorical, rather than flexible -- and so could be subjected to a facial challenge.

Turning to the actual constitutional right, Sotomayor said that the hotel operator who refused to turn over the register must be given the opportunity to make his or her case before a neutral decision-maker like a judge. In her vision, police officers wanting to see a register could issue an on-the-spot subpoena, which could then be challenged by the hotel operator before an administrative judge. This, Sotomayor insisted, wouldn’t be unworkable.

Interestingly, Sotomayor went on to hold that hotel owners have a constitutional privacy interest in the records required by the ordinance. Scalia in dissent would’ve held that because hotels are a closely regulated industry, their proprietors have no privacy right in their registration logs. And the city of Los Angeles, in litigating the case, spoke of a “centuries-old” tradition of warrantless searches in hotels, where privacy rights weren’t thought to apply. Sotomayor said the historical record wasn’t as clear as all that.

The disagreement between the hard-core liberals and the true-blue conservatives here about the constitutional rights of proprietors amounted to a near complete reversal of those eight justices’ opinions in the big-ticket cases of Citizens United and Hobby Lobby, which involved corporations’ First Amendment rights and statutory religious liberty rights, respectively.

In those cases, the four conservatives plus Kennedy thought that free speech and religious liberty applied to corporations. The four liberals strongly disagreed.

Apparently when it comes to hotels’ privacy under the Fourth Amendment, all eight see things the other way around. Liberals think the hotel proprietors have privacy rights; the conservatives think these are businesses without them.

Only Kennedy consistently favored the extension of constitutional rights to both corporations and hotels in all these cases. Round up the usual suspects.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net