« June 19, 2005 - June 25, 2005 | Main
Saturday, July 02, 2005
The Final Installment of the Castle Rock Debate
Castle Rock | 05:31 AM | Tom Goldstein | Comments (0) | TrackBack
Richar Smith concludes the debate:
First, let me thank those who have followed this online debate and especially those who have contributed to it. This being my first blog debate, I was unsure how it would be received. But I have been pleased not only by the quality of the commentary, but also by the genuine interest in what I believe is a very important case.
I have three primary reactions to John’s latest statement and then conclude with two general observations.
First, a final note on the factual discussion. John has highlighted his client's version (which the town may or may not have been able to prove at trial) in an effort to justify in the public's mind the Court's disturbing decision. The town obviously prefers the version that has its police scouring "one end of town to the other" to Ms. Gonzales's version -- the version that was actually before the district court, the 10th Circuit, and the Supreme Court -- which has the police doing nothing but essentially ignoring her as her children are murdered. In the motion to dismiss posture, this case was decided on Ms. Gonzales's allegations, which is why I highlight them. Moreover, it is important to remember that this was a procedural due process case. Though the town pretends that anyone disappointed by bad policing could sue, that is not accurate. Ms. Gonzales would not have had a case if the police had considered her complaint and told her that there was no probable cause to believe a violation had occurred (as the town now alleges). A procedural due process claim like this requires an allegation that the plaintiff was ignored.
John argues that the “restraining order contained no allegation of suicidal threats, erratic behavior, or violence of any kind, much less a finding of such behavior.” He suggests that the order was a routine incident to the divorce proceeding. To the contrary, Ms. Gonzales obtained her restraining order pursuant to Section 14-10-108(2)(b)-(c) of the Uniform Dissolution of Marriage Act, which authorizes state courts to award an order "enjoining a party from molesting or disturbing the peace of the other party or of any child [or] excluding a party from the family home ... upon a showing that physical or emotional harm would otherwise result." It is true, as John says, that the legal requirements for the restraining order were not alleged, but that is of no moment. He does not dispute that the restraining order issued, nor that Mr. Gonzales is alleged to have exhibited that behavior.
Second, I am aware of no legal authority for John's suggestion that a due process right arises out of state law only if the state intends "the additional step ... of creating a protected property interest." In fact, as the early history of the 14th Amendment ably demonstrates, the due process right is abridged when a state establishes a benefit (i.e., enforcement), creates an expectation that it will be conferred on a particular individual (i.e., issues a restraining order), and then arbitrarily denies the benefit (i.e., ignores her). This is true even if the state has established no recourse mechanism. That is, even if the state does not intend its citizens to be able to sue for expected benefits, it cannot arbitrarily distribute them. Were that not the rule, and property rights existed only where states had private remedies, then there would be no need for the 14th Amendment.
More fundamentally, John’s argument confuses the role of state law. As Justice Scalia properly notes, the state statutes merely define applicable benefits and create justifiable expectations. The question of whether a state has created "a property interest for purposes of the Fourteenth Amendment ... is ultimately one of federal constitutional law" and is independent of state intent.
Third, reflecting on John's final sentence, it appears that the Gonzales opinion leaves no room for a state even to create purposefully a "zany" property interest in police protection even if it desired to do it. In Pennsylvania, for example, where the Legislature created a mandatory enforcement duty a decade ago with full knowledge that it would constitute a “property” right, the Gonzales Court has replaced the legislative intent with its own and upended the statute. In 1990, the U.S. District Court for the Eastern District found that Pennsylvania's enforcement statute was too permissive to create a mandatory duty sufficient to support a due process claim. See Hynson v. City of Chester, 731 F. Supp. 1236, 1240 (ED Pa. 1990) (no entitlement to arrest). The same Court later that year found that a protection order issued pursuant to the statute sufficiently mandated enforcement to create an enforceable constitutional duty. See Coffman v. Wilson Police Department, 739 F. Supp. 257, 264 (ED Pa. 1990). The Legislature's response was to strengthen the statute to provide mandatory duties, knowing full well that violations of those duties without due process would be actionable in federal court as constitutional violations. See Burella v. City of Philadelphia, No. 00-884, 2003 U.S. Dist. LEXIS 25170 (ED Pa. Dec. 17, 2003). The Gonzales opinion with its sweeping dicta ("In light of today's decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause") seems to leave no room for Pennsylvania's intent.
Stepping back from the trees to look at the forest for a moment, I have two general observations that I think are worth some discussion and further thought. First, as I implied in my initial posting, I am struck by the Court's decision to interpret the Colorado statute in a way that purposefully enhances police discretion. The logical assumption underlying the opinion appears to be that police (as a subset of the Executive) are possessed with inherent discretion in determining how, when, and, in fact, whether, to enforce the Legislature's mandates. Some would say there is nothing new or controversial about that statement, but as this case highlights, if that assumption true, then the Legislatures' hands are tied -- even the preamble language that I suggested in my prior post would be futile.Second, in the debate over legal minutia, let us not forget that the practical impact of this opinion could be devastating. Representative headlines certainly are disturbing: "Police Need Not Enforce Restraining Orders," "Cops Not Responsible For Protection." Victims already are questioning whether this decision means that they can no longer rely on the police to answer the call for help. And if the abused believe that they cannot rely on restraining orders as an effective part of the solution and to extricate themselves from abusive relationships, then we have failed them.
The Gonzales decision sounds a wake-up call to state legislatures to stand up and take responsibility for the protection of those who are most in need. It bears repeating that as many as one out of every three American women have been physically or sexually abused by a husband or boyfriend at some point in their lives, and millions of innocent children have witnessed those acts of violence.
Thus, in the wake of the Gonzales opinion, the critical question is what to do next. If you have read my online bio (www.mwe.com), you know that I am not often confused with a liberal. And truly, I do not believe the solutions to the domestic violence epidemic must be politically divisive. John's suggested steps that States could take to improve protections are a good first start, but our efforts should not end there.
Friday, July 01, 2005
The Castle Rock Debate - Part 3
Castle Rock | 07:40 AM | Tom Goldstein | Comments (1) | TrackBack
The comments following Richard’s posting have already provided much of the answer I intended. Let me elaborate, and clarify, a bit.
The district court ruled for Castle Rock on a motion to dismiss, not even a motion for summary judgment, so there was nothing outside the allegations in the initial complaint. The facts alleged in the complaint are principally as Richard states, but they are not supported by the actual documentary evidence. During the recorded 911 call at 8:45 p.m., for example, Mrs. Gonzales stated that she knew that Mr. Gonzales was not violating the restraining order and that, as a result, there was nothing the police could do. And in the first 911 call, Mrs. Gonzales admitted to police that she had authorized the dinner visit. Moreover, one important assertion by Richard of even the alleged facts is wrong; he says that the restraining order ordered Mr. Gonzales not to molest or disturb the peace of Mrs. Gonzales or her children “in part because [of his] history of suicidal threats and eratic behavior.” The restraining order contains no allegation of suicidal threats, eratic behavior, or violence of any kind, much less a finding of such behavior. The allegation of suicidal threats and eratic behavior exists only in paragraph 11 of the complaint, without any reference to the restraining order, or even any allegation that Mrs. Gonzales ever conveyed this concern to police. The simple fact is that the restraining order at issue here was a standard order issued incident to a divorce proceeding, not one based on any claim of actual or threatened domestic violence.
My point in raising the actual facts was not to “mischaracterize the operative facts” on which the legal issues were determined, but to demonstrate just how easy it would be, had this case come out differently, so force municipalities into Court every time there is a call on a restraining order that did not produce the result desired by one party or the other. Given what the police knew—that the restraining order authorized prearranged mid-week dinner visits (actually, whether or not Mrs. Gonzales even showed police the restraining order is also contested); that Mrs. Gonzales had, by her own admission, agreed to the Tuesday night dinner visit; and that Mr. Gonzales picked up the girls as agreed—it is very likely that they could have been sued by Mr. Gonzales for false arrest had they actually taken that step at any time that evening. Colorado law provides police immunity from suit when mistakenly making arrests for restraining order violations, but that state statute would not immunize them from a federal § 1983 action for deprivation of liberty without due process.
With respect to police discretion, I’ll concede, for argument’s sake, that the legislature may have intended to eliminate at some of the discretion traditionally afforded to police, but that still does not mean that Colorado also intended the additional step, required by Roth, of creating a protected property interest. As we noted in our briefs, the Supreme Court confirmed in Sandin v. Conner, 515 U.S. 472 (1995), that a State may establish mandatory procedures without creating a property right to those procedures. At most, that is all that Colorado did here.
One of the comments blasts Justice Scalia for trying to have it both ways in how he interprets “shall.” But even accepting that shall is mandatory does not mean that the Colorado legislature also intended to create a property interest in that mandate. I think the real inconsistency is with Justice Stevens’ reliance on the word “shall” as dispositive proof that Colorado created a property interest. In City of Chicago v. Morales, 527 U.S. 41, 47 n.2 (1999), he had just the opposite view. A Chicago ordinance specified that a police officer “shall order all [loitering gang members] to disperse and remove themselves from the area,” yet Justice Stevens, writing for the majority, held that police had an unconstitutional amount of discretion to decide whether to enforce the statute, and against whom. He elaborated on the point as follows: “It is possible to read the mandatory language of the ordinance to conclude that it affords the police no discretion, since it speaks with the mandatory ‘shall.’ However, not even the city makes this argument, which flies in the face of common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances.” Id., at 62 n.32.
Finally, Richard wonders what more Colorado could do if it really wanted to create a property interest (contrary to Justice Souter’s view that there cannot be a property interest in procedure). For starters, it could make the crime of violating a restraining order more serious than a relatively minor class 2 misdemeanor. It could treat the restraining order’s injunction against disturbing the peace of an estranged spouse as more important than the injunction against transferring marital assets without prior permission. It could specifically promise “protection” from the State to named beneficiaries of restraining orders, and it could expressly state it is creating an entitlement to such protection in its beneficiaries and provide a remedy against the government or its officers for failures to protect. It could broaden its tort remedies to extend to negligence, or even impose strict liability, rather than limit its tort remedies to willful and wanton police action, as it has done. But if it did that, the state tort law would be more than adequate, and resort to a “zany” constitutional claim, to use Justice Scalia’s word again, would not be necessary even then.
Evangelicals, Secularists, and Status-Wars: A Reply to Balkin
Ten Commandments | 12:46 AM | Noah Feldman | Comments (3) | TrackBack
I’m grateful to my teacher and friend Jack Balkin for his illuminating response to my forthcoming N.Y. Times magazine article and book, which he posted this morning on Balkinization. I’m especially interested in his characteristically creative hypothesis about public religious symbolism, which he says is about the battle for social status – because if it is correct, it proves my point better than I did myself.
I’m not certain that I agree with Balkin that seeking government validation for religious symbols amounts to an attempt by those I have called values evangelicals to win a zero sum fight for social status against legal secularists. But assume for the moment that this is so. That would mean that the secularists’ attempt to keep those same symbols out of the public sphere is also an attempt to win a social status fight. Since Lemon, and indeed even a bit before, secularists have been on top, and Balkin says they will be loath to give ground now, when evangelicals are rising. But if this is a fight about social status, why in the world should the Constitution of the United States adjudicate it in favor of the secularists? If class wars must inevitably be fought, as Balkin implies, the place to fight them out is electoral politics, not the courts.
Unless, that is, you are a law professor, a secularist, and thus a member of an elite which has enormous social status and a disproportionate influence on just one branch of government, namely the judiciary. In essence, Balkin is implying that secularists will (and perhaps should) resist the temptation to give away the judicial veto that has enabled them to stay on top in the status wars. Notice that I never urged the government to go out and put up religious symbols; I just argued that the Constitution should not be read to prohibit them when democratic politics have generated such symbols. I don’t much care for wars in which one group tries to elevate itself over others; but I am a lot more troubled by one group claiming that egalitarianism just so happens to mandate the elevation of its own symbolic preferences. It is more than likely that some values evangelicals understand the judicial prohibition on religious symbols in just the terms that Balkin proposes. No wonder, then, that they think secularists are denigrating them and their faith.
In my own view, most secularists are nowhere near so cynical. Most, I think, sincerely feel that religious symbols exclude them, and oppose such symbols out of the (mistaken) belief that if they are eliminated, all Americans will feel included. Those secularists, I hope, will see from my argument that their wholly admirable goal of inclusion in fact is not satisfied by a ban on public religious symbols, because values evangelicals end up feeling excluded. And of course what is really at stake is not the symbols themselves, but what they stand for. The reason people on both sides get so riled up about religious symbolism is that it is a stand-in for the deeper question of whether religious values should or may determine political choices. Here, too, I want secularists to acknowledge that asking people of faith to keep their religious commitments out of public discourse is not a neutral or inclusive or “liberal” as that term was classically understood, but actually exclusionary.
Finally a quick reply to some of Balkin’s other thoughts. Fights over money really are zero-sum in the real world where you can’t just get more money out of thin air, but must raise taxes or cut somewhere else. That’s why the professional politicians – as well as the political scientists – generally think that if you want to know what’s really going on in politics, you should follow the money. As for solving the details of what counts as government funding or what kinds of activities performed by religious institutions should be denied funding, I entirely agree that much more detail would be needed to make out a full jurisprudence. That’s not what I’m doing in this article, though, or indeed in the book from which it is loosely excerpted. Instead I am trying to change the entire framework in which these admittedly difficult decisions will be made. In the book, Divided by God: America’s Church-State Problem – and What We Should Do About It, I offer a new interpretation of the history of church-state relation in the U.S., one focused on successive waves of newly developed religious diversity as the drivers of our ideas on religion and government. I hope readers of this posting will have a look at the full argument, and let me know what they think.
A Thoughtful Proposal -- in the Wrong Direction
Ten Commandments | 12:25 AM | Thomas Berg | Comments (0) | TrackBack
Professor Feldman's "A Church-State Solution" is a very thoughtful piece, attentive to the current positions and divisions on church-state matters. I do think, though, that his proposal would take things in the wrong direction. Feldman's is largely an argument about what policy will reduce religious divisions among us, and I think it suffers from two problems.
1. Feldman overlooks other goals, besides reducing religious division, that may be of equal or greater importance in church-state matters. For example, a very different theme was central to the founding-era proponents of religious freedom and disestablishment: the integrity and independence of religious organizations and communities. They viewed this theme as crucial both because religion (duty to a higher power) was of intrinsic importance and because religion was essential to the virtue of citizens and thus the health of society. A major reason for disestablishment was that religion would better thrive and contribute to society if it was not promoted or favored by government, but rather reflected the free choices of individuals who would then affect society and government through their values.
Feldman's proposal -- allow government to make symbolic statements for its favored religion, but forbid government from including religious schools or charities in funding programs – would lead us away from these ideals of religious integrity and voluntary choice. Cases about government symbols -- the category where Feldman wants to allow more government-religious interaction -- involve the government selecting one message it favors, perhaps on the basis of majority vote, but certainly to the exclusion of other messages that many citizens would choose. And even the general religious view that the government selects is likely to be watered down or otherwise distorted to suit the government’s interests: official prayers will be reduced to the least common denominator between varying faiths, municipal crèches will be surrounded by plastic reindeer and used to encourage the commercialization of Christmas.By contrast, the policy that Feldman wants to bar -- inclusion of religious schools or social services in funding programs – can reflect much better the choices of individuals and religious communities. A wide range of entities can participate in these programs under equal terms, reflecting a wide range of choices about religion. With voucher programs, the amount of funding is a direct function of the choices of individuals to attend a given school or receive help from a given charity. Indeed, funding is probably necessary to ensure that religious schools or charities can continue to thrive according to individuals’ choices, since government typically funds the competing public/secular entities.
2. Even if reducing division is the overriding goal, I question whether Feldman’s proposal will achieve it. He’s right that voucher programs create some disputes over whether some schools will be denied eligibility because of their unpopular or anti-social teachings or practices. But of course he himself proposes to exclude school because of their religious teaching: why shouldn’t this exclusion promote just as much resentment, or more since it’s so broad-brush? (As my Mirror of Justice colleague Rick Garnett points out, and as I’ve discussed here, the largest class of religious schools, Catholic schools, do quite well at producing civic virtue.) The exclusion of religious schools from funding has produced intense controversy for decades; what makes us think it wouldn’t do so in the future? Even more, excluding religious schools from funding intensifies cultural disputes by pushing everyone (except the wealthy) into a single set of institutions, the public schools: many more people then have an interest in insisting that the schools reflect their (inconsistent and incompatible) values. We will continue to face the endless emotional disputes over public-school prayers, Christmas prayers, sex education, and countless other issues. As Jack Balkin put it, disputes over the content of official statements in government settings are "zero sum"; someone must win and everyone else loses. By contrast, voucher-type programs allow families of varying views each to send their children to schools closer to their views.
Feldman’s answer is that secularists and religious minorities should accept more Christian elements in the public schools and the public square. But such a sacrifice is still bound to produce resentment among non-Christians; and voucher programs would make the sacrifice unnecessary because families who wanted serious Christian elements could go to (now more affordable) Christian schools. In addition, any amount of religion that Feldman would allow in public schools would (and probably should) be insufficient to satisfy those who want their children’s education to contain serious religious elements and not just the occasional watered-down prayer or plaque on the wall. (In fact, Feldman would still forbid any sort of “mandated” prayer, which, in the light of Supreme Court precedent such as Lee v. Weisman, would probably cover any sort of official prayer in a public K-12 school.)
3. In the modern state, therefore, preserving the goal of religious voluntarism that animated the founders calls for the opposite of Feldman's proposal: continued suspicion of official government religious pronouncements, but increased acceptance of including religious choices fully in programs of educational or social-service funding. Nevertheless, I want to emphasize that I think that Feldman's analysis is very thoughtful and deserves close study.
(I should finish by saying that I share and appreciate Feldman’s position that religious views should be fully welcome into public debate on law and policy. But I don’t lump that question together with question of official government pronouncements on religion, as he does. One can draw a distinction between government being influenced by religious values in deciding on matters of law or legislation within its competence for example, being influenced by Catholic pro-life views in eliminating the death penalty) and government making a separate and more general pronouncement of a religious nature (for example, posting the Ten Commandments as a statement about the religious foundations of law in general). Religious values may participate as equal partners in public debate, and thus may influence the debate, and thus in a democracy may influence public decisionmaking. That doesn’t establish those values in the sense of the government adopting them as its favored stance overall. Indeed, much of the purpose of disestablishing religion – removing it from a direct favored relation with government – was to enable it to influence government by influencing the values of the people who then influence the government through debate and voting.)
Thursday, June 30, 2005
Religious Symbols and Funding -- the Feldman/Balkin/Berg/Garnett "Debate"
Ten Commandments | 07:38 AM | Marty Lederman | Comments (0) | TrackBack
In the wake of the Ten Commandments cases, the New York Times Magazine this Sunday is publishing excerpts from Noah Feldman's forthcoming book on the "Church-State problem." One of Feldman's provocative theses is that the Court should be more permissive in the "religious symbolism" cases (a broad category that apparently would include not only things such as the Ten Commandments, creches and the Pledge of Allegiance, but also prayer and teaching creationism in the public schools), even to the point of permitting expressly sectarian endorsement, as long as there is no religious "coercion," but that the Court should reassert what appear to be 1970's-era restrictions on state funds being conveyed to religious institutions. In short: "no coercion, no money."
This is, of course, almost the opposite of the direction the Court has been taking in recent years. It also raises many, many difficult and interesting questions, some of which are pointedly but respectfully posed by Jack Balkin over on Balkinization. Feldman's proposal is also likely to receive a skeptical reaction from folks such as Tom Berg, who in our discussion here and at Mirror on Justice (see also Rick Garnett's new post here) have suggested that religious communities should focus less on the "symbolism" cases (in large part because Tom thinks there is great danger to religion when the state appropriates religious symbols) and more on securing the sort of neutrality in funding that is, for instance, suggested in Justice Thomas's plurality opinion in Mitchell v. Helms. (Current law is governed by Justice O'Connor's controlling concurrence in Mitchell, which prohibits the state from providing direct aid to be used for "specifically religious activities" and religious indoctrination, and which apparently also prohibits any direct monetary aid from being sent to a certain (undefined) category of religious institutions, because (in Justice O'Connor's cryptic words) "this form of aid falls precariously close to the original object of the Establishment Clause's prohibition.")
There is much, much more to be said in this debate. I hope that Noah, Jack, Tom, Rick and others will weigh in here or in the Comments on the main blog (where I'm cross-posting this), and/or on Balkinization and Mirror of Justice.
Wednesday, June 29, 2005
The Castle Rock Debate Continues
Castle Rock | 09:30 PM | Tom Goldstein | Comments (6) | TrackBack
Richard Smith responds to John Eastman's opening post in the debate over the Castle Rock case:
Let me first thank Tom and ScotusBlog.com for inviting me to participate in this online discussion. Along with others in my law firm McDermott Will & Emery, I had the honor of serving as pro bono counsel for a collection of law enforcement organizations in this case, and on behalf of those law enforcement groups filed an amicus brief in support of Ms. Gonzales.
Two points initially struck me as I read John Eastman's provocative initial posting. First, I was puzzled by John's description of the facts of the case, a description that has been amplified by the town in media interviews over the past few months. Second, I was intrigued by John's (accurate) statement that the Supreme Court interpreted the Colorado statute "against the backdrop of ... discretion." Because the Colorado Legislature enacted the mandatory enforcement statute precisely to eliminate that historical discretion, it is curious that the Gonzales Court would interpret the state statute following a guiding principle that enhances discretion. The unintended result leaves states with few legislative options.
I have tremendous respect for John, who is a fine advocate and who served his client well in this case. But in his initial posting here, as the town as done in its briefs to the Court, he has consistently mischaracterized the operative facts. He has argued that the Castle Rock police responded appropriately to Ms. Gonzales and worked hard to find her children. But in the procedural posture of this appeal, we are required to assume that Ms. Gonzales's rendition is true. It follows:
On May 21, 1999, Ms. Gonzales obtained from a Colorado court a temporary restraining order against her estranged husband, Simon Gonzales. In part because Mr. Gonzales's history of suicidal threats and erratic behavior, the restraining order ordered Mr. Gonzales not to molest or disturb the peace of Ms. Gonzales or her three children and excluded him from the family home. When made permanent on June 4, 1999, the restraining order was slightly modified to allow Mr. Gonzales occasional visitation with the children in the form of summer and alternating weekend visits and a "pre-arranged, advance notice mid-week dinner visit." Eighteen days after being served with the permanent order, Mr. Gonzales abducted the children from their yard, without advance notice or prior arrangements.
At 7:30 p.m., in a moment that every parent fears, Ms. Gonzales was unable to find her children and called the police or help. She had done everything right; she had obtained a restraining order against her children's assailant and now relied on the police to enforce it. Two detectives were dispatched to her home. She handed them a copy of the restraining order and asked that it be enforced as the law required, and her children returned to her immediately. The detectives responded in but one way: "they stated that there was nothing they could do about the TRO and suggested that [Ms. Gonzales] call the Police Department again if the three children did not return home by 10:00 p.m."
Ms. Gonzales spoke with Mr. Gonzales at 8:30 p.m., who admitted to taking the children. She called one of the detectives who had earlier rejected her pleas, and was again told to wait until 10 p.m. Shortly after 10 p.m., Ms. Gonzales again called police and was told to wait until midnight. She called again at midnight. Nothing. She went to Mr. Gonzales's house, calling from outside on her cell phone, and was told to wait there for police. They never showed up. At nearly 1 a.m., she finally went to the police department itself and demanded assistance. An officer had her fill out a form and went to dinner, making "no reasonable effort to enforce" the restraining order. Two hours later, Mr. Gonzales would arrive at that same police station with his three murdered children and begin firing at it with a handgun he had purchased with the girls that night. He was shot dead at the scene.
Under no circumstances can these events be described as "explicitly authorized" under Ms. Gonzales's restraining order, as John has argued. As alleged, the abduction was neither "pre-arranged," nor with "advance notice"; and at least by 10 p.m., after which Ms. Gonzales made four desperate pleas for help, there is no justification even to believe that it was a "mid-week dinner visit" for three girls as young as seven. John made these same fact arguments to the Court, and it refused to take the bait.
The simple truths are that Mr. Gonzales allegedly violated the restraining order, that the police knew it, and that they ignored their responsibility to act because Mr. Gonzales was the children's father. The tragically violent end is all too familiar. The National Network to End Domestic Violence reports that as many as one out of every three American women say that they have been physically or sexually abused by a husband or boyfriend at some point in their lives. Millions of innocent children witness those acts of violence.
Victims advocates recognize the alleged reaction of the Castle Rock police -- to ignore Ms. Gonzales, to defer her until later in the evening, and ultimately to determine that further action (to use John's words) "was clearly not warranted to track down a father" -- as the time-honored historical standard. Advocates say that police, who typically are men, are loathe to get involved in what are predominately thought of as private, family matters. And it is the police's inherent ability to use discretion to act on that instinct that in many cases prevents them from protecting victims.
Colorado was supposed to be different. Following more than a dozen other states that had recently enacted mandatory enforcement laws, the Colorado Legislature eliminated police discretion in the domestic violence context in 1994, and made enforcement of restraining orders mandatory. The Colorado statute explicitly directed that police "shall use every reasonable means to enforce" restraining orders. In an individual case, that may be by arresting violators, or it by employing other reasonable means, but in all instances, the obligation to enforce was mandatory.
As John implies, the Gonzales Court's interpretation of the Colorado statute, holding that "shall" does not mean "shall," can only be understood as an effort to preserve traditional police discretion. John and the majority opinion correctly point out that many of Colorado's law enforcement statutes seemingly mandate some form of action, yet only in the domestic violence context is it clear that the elimination of police discretion was integral to the statutory scheme. Where elimination of police discretion in responding to domestic violence was the very point of mandatory enforcement statutes, to conclude that a legislature's use of the obligatory "shall" does not really mean "shall" is to say that a legislature is powerless to eliminate police discretion.
Of course, John is correct that "[t]he State of Colorado may want to commit itself to the expense of 24-hour-a-day police protective services, and a 'drop-everything' command to enforce restraining orders," and some would say it tried to do so here. But despite the Court's seemingly hollow recognition that its decision "does not mean States are powerless" and that "the people of Colorado are free to craft such a system under state law," it is difficult to see how such legislation would be crafted.
If one assumes that Colorado intended to eliminate discretion here, then what language must the state have used to do so? If "shall" was not enough, is "must" qualitatively better? Or was the Legislature to include a boldfaced preamble noting: "We really mean shall this time"?
Curing an invalid purpose
Ten Commandments | 12:23 PM | Rick Garnett | Comments (2) | TrackBack
In the McCreary case, the display at issue had been revised after, and in response to, earlier rulings by courts that the Counties' two previous displays lacked a "secular purpose." And, one of the issues in play was the extent to which the history of the litigation regarding these displays, and the content of the two earlier displays, was relevant to the question whether the third display had the required "secular purpose."
Judge Ryan, dissenting from the Sixth Circuit's ruling below, had "denied that the prior displays should have any bearing on the constitutionality of the current one: a 'history of unconstitutional displays can[not] be used as a sword to strike down an otherwise constitutional display." Justice Souter, however, insisted that "the world is not made brand new every morning. . . . [R]easonable observers have reasonable memories, and our precedents sensibly forbid an observer 'to turn a blind eye to the context in which [the] policy arose.'" He added, in a footnote, "[j]ust as Holmes's dog could tell the difference between being kicked and being stumbled over, it will matter to objective observers whether posting the Commandments follows on the heels of displays motivated by sectarianism, or whether it lacks a history demonstrating that purpose."
Now, Justice Souter emphasized that "we do not decide that the Counties' past actions forever taint any effort on their part to deal with the subject matter." Still, "an implauslbe claim that governmental purpose has changed should not carry the day in a court of law any more than in a head of common sense." Building on Marty's post asking about the prospects for future installations of Ten Commandments displays, I wonder what we can expect in terms of the development of a curing-nonsecular-purposes jurisprudence? More specifically, in practice, will -- in Justice Scalia's words -- a continuing "desire to display the Ten Commandments", in the face of court rulings that earlier displays are insufficiently neutral or fail to stay on the "acknowledgment" (rather than "endorsement") side of the line, preclude a conclusion that a later display has the required "secular purpose"?
When I was in practice, I worked for a while on the Kiryas Joel litigation. To (over)simplify, after the United States Supreme Court invalidated -- on Establishment Clause grounds -- the Kiryas Joel school district, the Legislature of New York tried again. Then, the new district was also invalidated by the New York Court of Appeals (although that court conceded that the "Legislature was perfectly within its authority in attempting to cure the constitutional infirmity of a prior law"). So, the Legislature tried a third time. And, in an opinion invaliding this third effort, the State's intermediate appeals court complained that "this case results from the third attempt of the Legislature of this state to ignore the rulings from Courts . . . and to impermissibly endorse the Satmar community of Kiryas Joel." (The New York Court of Appeals affirmed, 4-3).
Here's the question I'm getting at: When will / should government responses to judicial determinations that previous government actions violated the Establishment Clause be framed as "attempt[s] . . . to ignore" such determinations?
Tuesday, June 28, 2005
A Debate Over Castle Rock
Castle Rock | 06:53 PM | Tom Goldstein | Comments (13) | TrackBack
We're pleased to host a debate over the Court's recent Castle Rock decision between the city's lead attorney (John Eastman) and the lead attorney for some of the principal amici supporting the respondent, Richard Smith of McDermott Will & Emery. (You can see the SCOTUSblog write-up of the case here.) We held a similar debate on SCOTUSblog regarding the beef ads case. We'll have a new post each day, alternating sides, with four posts in total.
John Eastman begins the debate:
Castle Rock v. Gonzales, decided by the Supreme Court on Monday, June 27, presented the federal courts with a tragic set of facts. Simon Gonzales, an estranged husband and father of three little girls, took his daughters out for a mid-week dinner visit in June, 1999, as the standard-form restraining order that had been issued against him explicitly authorized. Tragically, before the night was out, he had shot and killed his three daughters and then committed “suicide by cop” by opening fire on the Castle Rock, Colorado police station.
The wrongdoer here was quite obviously Simon Gonzales, but the girls’ mother filed a $30 million federal lawsuit against the Town of Castle Rock and three individual police officers, claiming that the police violated her constitutional rights by not arresting Simon when she first alleged he had the girls in violation of a restraining order that told police to use every reasonable means to enforce it and that they “shall arrest or seek a warrant for an arrest” if they had probable cause to believe that the restraining order was being violated.
During oral argument in Castle Rock v. Gonzales, Justice Breyer asking Brian Reichel, attorney for Mrs. Gonzales, why he chose to ask the federal courts to invent a new constitutional entitlement to police enforcement of restraining orders rather than simply pursue the tort remedies that were available under Colorado state law. Mr. Reichel’s response was quite telling: Colorado law required that he prove causation and foreseeability—in other words, that the police department’s alleged inaction actually caused the harm to the Gonzales girls, and that the harm was foreseeable. Mr. Reichel implicitly conceded that he could not prove causation and foreseeability, so he sought to create a constitutional remedy for failure to act that would not put him to those pesky proof requirements.
The Supreme Court has repeatedly held that the Constitution should not become a substitute for state tort law, and it reiterated that position on Monday. Even constitutional law scholars who wish the rule were otherwise, such as Duke Law Professor Erwin Chemerinsky, have conceded that “the Supreme Court clearly followed precedent” in this case. It is precedent that is both common sensical and compelling. Without it, municipal governments would find themselves subject to massive liability every time they failed to foresee criminal conduct, or failed to arrive on the scene of a fire, or prevent a riot, in time to protect citizens against the tortuous conduct of their fellow citizens whenever the state has used the word “shall” to give guidance to police or firefighters or paramedics in the daily performance of their jobs. The State of Colorado may want to commit itself to the expense of 24-hour-a-day police protective services, and a “drop-everything” command to enforce restraining orders, but the Supreme Court made clear on Monday that the federal courts should not be in the business of creating such a “zany property right,” to use Justice Scalia’s phrase, without a much more clear indication of Colorado’s intent than the use of the word “shall.”
In other words, the Supreme Court rightly interpreted the Colorado statute against the backdrop of the discretion that police need to do their jobs every day. Here, police drove out to meet with Mrs. Gonzales immediately after her first telephone call. The Town of Castle Rock put two officers—50% of the force on duty that night—on the investigation to try to locate Simon Gonzales and his daughters. Those officers searched for Mr. Gonzales’s truck from one end of town to the other. They did not put out a statewide All Points Bulletin, but under the circumstances known to them at the time (rather than with the benefit of hindsight), an APB was clearly not warranted to track down a father who was out for a mid-week dinner visit with his daughters, as he was permitted. It would be nice if police could anticipate every crime before it happens, but the Supreme Court was right not to allow the creation of a federal constitutional case for their inability to predict this particular tragedy.
What are the Prospects for Future Erections of the Ten Commandments?
Ten Commandments | 05:32 PM | Marty Lederman | Comments (1) | TrackBack
Several of us on this sub-blog have speculated that the "practical" message of yesterday's decisions -- and of Justice Breyer's controlling van Orden concurrence, in particular -- is that although some pre-existing, longstanding displays of the Ten Commandments may be permitted to stand (under a sort of "grandfathering" exception), going forward there will be a strong presumption that new attempts to display the Ten Commandments on state property are unconstitutional, and that the Court will not look kindly on most examples of government speech of a sectarian nature.
On his "Religion Clause" blog, Professor Howard Friedman agrees with this assessment: "While characterizing the motivations of the Fraternal Order of Eagles and Cecil B. DeMille in their distribution of monuments in the 1950's may be difficult, it is not difficult to characterize the motivations of those posting the commandments in Kentucky courthouses. They were attempting to reclaim a Christian America. The scrambling to hide that motivation is something that only lawyers could ignore. The net effect of the rulings will be to prohibit new monuments today motivated by Christian evangelism, while keeping the bulldozers away from scores of courthouse lawns around the country."
This understanding of the precedential impact of yesterday's decisions is strongly confirmed, especially for lower courts dealing with the issue, by the Court's actions today in denying certiorari in two cases that Lyle discusses over on the main blog: one a ruling invalidating a state judge's use of a Ten Commandments poster in his courtroom, and the other a ruling forbidding a city council from convening its meetings with prayers referring to Jesus Christ. It is notable that the Court did not "GVR" these cases (i.e., grant the petitions, vacate the judgments and remand for reconsideration in light of van Orden and McCreary County) -- something that it ordinarily would have done if, in the Court's view, yesterday's decisions might have had any impact on the lower court judgments.
On the other hand, Professor Friedman concludes that "evangelicals are already misreading the opinions. The Washington Post reported that within hours of the decisions, the Christian Defense Coalition announced a campaign to erect monuments similar to the one in Texas in 100 cities across the country as a way to preserve the country's Christian heritage. And the Fort Wayne Journal Gazette reports a rush by Indiana legislators to place the Ten Commandments on Indiana's statehouse lawn." He doesn't think these efforts will meet with much success: "It is the motivation, not the location or form of the depiction, that is key to yesterday's holdings. Only willful blindness could lead to a different conclusion."
Thoughts?
A "secular purpose" to aid "religion in general"?
Ten Commandments | 04:09 PM | Rick Garnett | Comments (2) | TrackBack
A few years ago, Professor Andrew Koppelman published a paper in which he argued that the Establishment Clause's "secular purpose" requirement is best understood "as permitting government to favor religion in general, so long as its support does not violate the axiom that government may not declare religious truth." And, it is possible, he argued, for "government to favor religion-in-general without declaring religious truth." But what is "religion-in-general"? Koppelman wrote:
If there is a universal human problem, then it is a matter of some urgency to identify this problem and its cure. Religion-in-general is the set of activities that seek to address this universal human problem. The goal that the state may permissibly pursue is to be defined at this level of abstraction. The state may coherently single out for special favor the enterprise of seeking this universal remedy.There is a lot more to Koppelman's article and argument. I wonder, though, if his claim that promoting the good of "religion in general" is consistent with the secular-purpose requirement (a claim which, in his article, he contended was consistent with the relevant cases, correctly understood) can be squared with Justice Souter's opinion in McCreary? Justice Souter suggests (op. at 12), for example, that a purpose "to favor . . . adherence to religion generally" would be an impermissible one. Now, I imagine that Justice Souter is thinking and talking about "religion" on a lower level of generality or abstraction than is Professor Koppelman. Still, does Justice Souter's opinion leave room for government efforts to promote "religion in general", as Koppelman defines it?
BitTorrent: The Next Main Event
Grokster | 01:27 PM | Edward Felten | Comments (2) | TrackBack
Few tears will be shed if Grokster and StreamCast are driven out of business as a result of the Supreme Court's decision. The companies are far from lovable, and their technology is yesterday's news anyway.
A much more important issue is what the rules will be for the next generation of technologies. Here the Court did not offer the clarity we might have hoped for, opting instead for what Tim Wu has described as the Miss Manners rule, under which vendors must avoid showing an unseemly interest in infringing uses of their products. This would appear to protect vendors who are honestly uninterested in forstering infringement, as well as those who are very interested but manage to hide it.
Lower courts will be left to apply the Grokster Court's inducement rule to the facts of other file distribution technologies. How far will lower courts go? Will they go too far?
The litmus test is BitTorrent. Here is a technology that is widely used for both infringing and non-infringing purposes, with infringement probably predominating today. And yet: It was originally created to support noninfringing sharing (of concert recordings, with permission). Its creator, Bram Cohen, seems interested only in noninfringing uses, and has said all the right things about infringement -- so consistently that one can only conclude he is sincere. BitTorrent is nicely engineered, offering novel benefits to infringing and noninfringing users alike. It is available for free, so there is no infringement-based business model. In short, BitTorrent looks like a clear example of the kind of dual-use technology that ought to pass the Court's active inducement test.
A court that followed the Grokster analysis closely would have to let BitTorrent off the hook. To do otherwise, I think, would be to institute a de facto predominant-use test, finding BitTorrent liable because too many of its users infringed. This might be dressed up as an inducement analysis, but it would be clear to everybody what was going on. Given the squishiness of the Grokster analysis, we can't rule this out.
So the stage is set for the next phase of the copyright/technology litigation war. The music and movie industries don't want to live in a world where BitTorrent is allowed to exist. The Supreme Court didn't give them enough yesterday to kill BitTorrent. So the industries' goal will be to stretch the Grokster rule, just as they tried to stretch the Sony rule before hitting a sandbar in the Grokster district court. We'll see a careful campaign of litigation against peer-to-peer services, trying to gradually stretch the noose of inducement liability until it fits around BitTorrent's neck. Failing that, we'll see a push to get Congress to codify (the industries' interepretation of) the Grokster rule.
The real winners, as usual, are the copyright lawyers.
Grokster = More Fair Use Cases?
Grokster | 12:26 PM | Fred von Lohmann | Comments (4) | TrackBack
One potential consequence of the MGM v. Grokster ruling may be an uptick in courts deciding fair use cases involving personal, noncommercial activities like "time-shifting" and "space-shifting."
A variety of new digital technologies are advertised and promoted for uses that the technology vendors believe to be fair uses. For example, Time Trax promotes its technology for recording satellite radio, Mercora for recording music from webcasts, and Sling Media for transmitting your TiVo'd TV shows to yourself over the internet. All maintain that these personal, noncommercial, nontranformative uses of copyrighted works fall within the scope of fair use. No court, however, has ever weighed in on these (or virtually any other) personal digital fair uses.
If these innovators are wrong on the fair use score, however, are they all liable for inducement? To put it another way, the Supreme Court's Grokster ruling may put "fair use technology companies" in the position of having to litigate, and win, the fair use question on behalf of their customers in order to resist an inducement charge. That's an expensive burden to foist on these companies.
Notice that this is different from the situation that technology companies face when addressing contributory infringement claims. According to the Supreme Court in the Betamax case, it is enough if any use satisfies the "capable of substantial noninfringing uses" test (whatever that may mean).
So what happens if you are sued for inducement, and a court decides that your advertised use is not actually a fair use? Do statutory damages wipe out both the product and the company?
In other words, is it inducement if you reasonably, but incorrectly, believed that the use for which you promoted your product was covered by fair use (or any other copyright exception)? Hopefully the courts (or Congress) will find or fashion a safe harbor like this. But till then, like a Russian doll, a nested fair use case may be discovered in many an inducement case.
Eschew Surplusage
Grokster | 12:17 PM | Fred von Lohmann | Comments (0) | TrackBack
And the award for concision goes to Harvard's (soon Oxford's) Prof. Jonathan Zittrain, speaking in today's New York Times: "Sony emerges not in tatters."
Religion and Public Choice?
Ten Commandments | 10:29 AM | William Marshall | Comments (0) | TrackBack
As Doug suggested yesterday, one of the practical results of these
decisions is that they will force politicians to conceal their
motivations (if they want their displays of religoius symbols upheld.)
This strikes me as a very good thing. Although I have no doubt that the societal divisions these cases represent are real and deep, there is also no doubt that these divisions have been exacerbated by politicians seeking to exploit them for political gain. True, as Eugene notes, the decisions themselves can be divisive; but isn't there a difference when the division is caused by a court seeking to resolve a controversy rather than by a politican seeking to exploit one? That said, I certianly agree with Burt and Ann that these cases are trivial and cause more harm than they solve. My only concern about that, however, is that, left unchecked, politicans will continue to push the envelope in order to get the political benefits that they percieve in being seen as advancing religion against a hostile secularism.
Monday, June 27, 2005
The Discussion Board
Castle Rock | 11:59 PM | Tom Goldstein | Comments (2) | TrackBack
Note: If you're interested in only one of the subjects being discussed here, you can select it under "Categories," which is found below the Search box in the right-hand column of this page. Alternatively, you can link to:
the Kelo "sub-blog" at http://www.scotusblog.com/discussion/archives/kelo/index.html;
the Grokster sub-blog at http://www.scotusblog.com/discussion/archives/grokster/index.html;
and the Ten Commandments sub-blog at http://www.scotusblog.com/discussion/archives/ten_commandments/index.html.
Why It All Matters
Ten Commandments | 10:17 PM | Noah Feldman | Comments (7) | TrackBack
Ann Althouse points out that the actual symbols here are not inherently important--but that is always the case where symbols are concerned, and it was true of the creches in Lynch and Allegheny Cty, too. The reason today's cases are significant is that the Ten Commandments displays are symbols of a far deeper divide over the fundamental question whether religious values should inform public policy choices or rather should remain a private matter, irrelevant to the state's public decisions and the public reason that justifies it. This debate in turn sheds light on the core question of liberal consitutionalism, namely whether the state may or should promote a version of the good life even as it allows people to pursue their own choices. The Ten Commandments displays may be trivial or Cecil B. DeMille-inspired, but the two tablets, precisely because they are law (at least to some) are in fact a perfect metonymy for Law itself and its relation to religion.
The deep disagreement on the Court, reflected in the doctrine (if it can charitably be called that), is therefore not just a local embarrassment for those of us who care about the rule of law even in constitutional cases. The judicial divide reflects the national split.
I have more on this, but will hold it for an article in this Sunday's Times magazine and a book, Divided by God, that will be out next week.
Clarifying Inducement: What's The Remedy?
Grokster | 09:30 PM | Derek Slater | Comments (0) | TrackBack
The Court also leaves open precisely what the remedy is if one is found to have actively induced infringement.
Here, too, the relationship to patent law may be relevant. In that context, the appropriate remedy has not included forbidding distribution of the defendant's technology. Rather, the remedies have prohibited the on-going, present misconduct found to be actively inducing infringement.
As Fred von Lohmann pointed out in the press conference today, alleged misconduct by the P2P companies took place years ago. What is there to enjoin today?
If past misconduct can be used to prove that present actions also amount to inducement, the potential harm to innovators would be substantial. Finding that an action from long ago amounts to inducement could open the door to claims about all subsequent activities.
The question of damages also is unclear. Statutory damages, which can be obtained regardless of actual harm in cases of copyright infringement, are not available in the patent context.
The DiMA et. al. brief similarly suggested that injunctions only apply to "the conduct that gave rise to liabilty, and should not prevent distribution of the technology itself." Furthermore, they argued that "Damages should be awarded only for harm directly caused by a company’s active encouragement."
[cross posted at Deep Links]
Clarifying Inducement: How Is Patent Law Relevant?
Grokster | 09:29 PM | Derek Slater | Comments (1) | TrackBack
Justice Stevens' Sony opinion discusses in some detail how patent law's "staple article of commerce" doctrine will be imported into copyright. The Grokster decision purports to import the active inducement standard from patent law, too. But it's unclear whether the Court actually has done so.
First, patent law requires a causal connection between the inducer and direct infringer. The inducement has to have actually influenced someone to commit an infringement. A court reading Grokster may be tempted to conclude, however, that a mere intent to encourage people to infringe may be enough. In particular, the Court focused on the P2P companies' decision to attract Napster users, without pointing to any evidence that Napster users actually migrated to either the Grokster or Morpheus systems.
Second, patent inducement has never taken failure to stop infringement or inaction as relevant to inducement. Instead, patent inducement requires "active" steps to specifically encourage infringement. Yet, a court might rule otherwise in the copyright context, as the Court today pointed to the P2P companies' failure to redesign their networks as relevant in light of initial evidence of intent to induce.
Third, patent inducement has not treated infringement's relationship to a company's business model as relevant. Again, the Court took this factor into account in light of other evidence of inducement.
A straightforward transplant of the patent inducement doctrine might have provided technologists with some insight into what it will mean for them in the copyright context. Unfortunately, the Court's decision muddies the import of patent caselaw.
[cross-posted at Deep Links]
Unavoidable Inducement?
Grokster | 09:16 PM | Derek Slater | Comments (0) | TrackBack
In light of the decision, some on the petitioners' side argue (once again) that the standard only targets "bad actors," not harming any legitimate businesses. However, in some ways, the decision may make it difficult for legitimate businesses to avoid inducement.
In the respondents' press conference, Grokster counsel Michael Page pointed out the perverse aspects of focusing on the P2P companies' attempting "to satisfy a known source of demand for copyright infringement." On the bright side, one could produce a tool that is used substantially for infringement but, because one did not intend to satisfy those users, one will not necessarily be liable. However, follow-on innovators who create similar products might be precluded; a court might conclude that they were attempting to satisfy that demand.
This problem for legitimate businesses runs even deeper. Ernest Miller provides a clever hypothetical:
"Suppose that there was ample evidence that Sony fully intended and explicitly encouraged Betamax users to infringe copyright with their videotape recorder (ads, internal emails, business plans). Consequently, under this standard, sales of the Betamax were shut down. What happens when VHS comes along? What will the makers of VHS have to do in order to avoid liability thanks to the bad actions of Sony? Should VHS be punished for going after the Betamax market? It would have been hard for VHS not to go after the Betamax market, that's where the buyers of VCRs are."Plus, once such intent to induce is found, other factors like product design could become relevant. In light of their attempting to satisfy demand of former Napster users, Grokster's and Streamcast's failure to monitor their users was relevant to inducement. Ernest continues his hypothetical with this question: "[Is it] evidence of illicit intent that the VHS was built without broadcast flag technology?"
Ernest covers more ground on this score here.
[cross-posted at Deep Links]
Fear-Mongering
Grokster | 07:40 PM | Fred von Lohmann | Comments (0) | TrackBack
Today, during an interview on the News Hour with Jim Lehrer, lead counsel for the movie studios and record labels, Don Verrilli, accused me of "fear-mongering." While I suspect his barb may be something out of MPAA/RIAA talking points, others who I respect have suggested that the ruling in MGM v. Grokster is good news for technology companies.
Color me skeptical. As I see it, things are at least as bad as they've ever been, and maybe a bit worse.
As a technology company (and I'll incorporate by reference here the companies listed in the emerging technology company amicus brief, as well as the ones listed in Prof. Tushnet's post), you can still be sued for contributory infringement. Thanks to today's ruling, it's as hard as ever to determine whether the Sony Betamax ruling might protect you. Your lawyers are left to choose between the vacated Ninth Circuit MGM v. Grokster ruling and the Seventh Circuit Aimster dicta to divine the scope of the Betamax defense. And before you rely on the Ninth Circuit's Napster ruling, remember that was the foundation of the Ninth Circuit's now-vacated ruling in MGM v. Grokster.
You can also still be sued for vicarious liability. The Supreme Court refused to address this theory, so your lawyers have to parse the statements of the Ninth Circuit in Napster ("Turning a blind eye to detectable acts of infringement for the sake of profit gives rise to liability.") and the ambivalent dicta in Aimster ("How far the doctrine of vicarious liabiity extends is uncertain.").
Finally, you now have to wrestle with the new inducement theory, newly imported from patent law. Many lawyer hours will be spent reading the patent precedents, trying to figure out how you might be able to resist discovery into every facet of your business, as plaintiffs try to prove "intent."
I agree that things certainly could have been worse, from the technology sector's point of view. But I don't see how the Supreme Court ruling creates any new comfort for innovators on the contributory infringement or vicarious liability fronts.
Putting aside the "brooding and pervasive devotion to the secular."
Ten Commandments | 07:07 PM | Ann Althouse | Comments (2) | TrackBack
In Van Orden, Justice Breyer quotes Justice Goldberg:
[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.
“Brooding… devotion to the secular” – that’s a phrase that has always struck me too. What do we really think we are doing with the Separation of Church and State? It should be that we are invigorating our culture, not grimly purifying it, squeezing out the heartfelt expressions of real people, scrubbing away traditions perceived as tainted.In McCreary,Justice Scalia begins with a story about himself:
On September 11, 2001 I was attending in Rome, Italy an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer “God bless America.” The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country’s loss, sadly observed “How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address ‘God bless ______.’ It is of course absolutely forbidden.”
Even as the Establishment Clause is fundamental to our national identity, we have not taken it to have a thuddingly heavy meaning. We have found some air in it, some room for the expression of human beings who, despite their placement in government positions, naturally speak of God. They could learn to watch themselves and avoid such expressions, but we haven’t required it.Installing a big permanent stone monument is scarcely the same as speaking “God bless America.” It’s the very opposite of spontaneous human expression. But it’s an old stone monument, and most people either don’t notice it, don’t mind it, or get a positive feeling from it. To take it down now is so inexplicably intrusive to ordinary people who’ve gotten used to it or who never noticed it before but would surely notice the removal. I find it easy to align myself with Justice Breyer and say surely tolerating this old monument can be part of what it means to get along in a pluralistic society and therefore part of the real meaning of the Establishment Clause.
I can accept McCreary too. The framed document inside the courthouse, put up recently, is different enough. It's odd to have two different outcomes, and part of me would prefer a crisp rule, if for no other reason than to convey to ordinary people that there really is law here. But continuing the complicated analysis of what Justice Breyer calls the "borderline" cases is not going to destroy us. We can tolerate some complexity if we must.
Maybe it's better that it's not so easy to see what's permitted and what isn't, and those who make the decisions whether to file lawsuits can exercise a little discretion about what is worth fighting for. Clearly, old things carved in stone should be left alone. (A rule that rhymes.) Recent stunts by political panderers: go after that.
Ten Commandments
Ten Commandments | 05:30 PM | Burt Neuborne | Comments (8) | TrackBack
Sorry I'm late to the party. At my age, doctors are forever poking and prodding, so I've just read the two sets of opinions. My initial reaction is that it isn't worth the time to read the opinions. Years ago, I proposed the "two plastic animals" rule to govern public displays of religious symbols. The rule posits that any religious symbol may be publicly displayed as long as it is flanked by two or more plastic animals of sufficiently bad taste. The Court has now refined the law of faith-based exterior decorating to allow a religious display if it's matured sufficiently (I suppose the Pieta is per se OK), and if it is surrounded by a sufficient number of secular monuments of sufficiently bad taste. Recent displays that respect the dignity of a great religious symbol may be stamped out. This is doctrinal progress? Frankly, I find Justice Breyer's swing vote very hard to understand. I beleive that he takes contextualism to an indefensible place. It can't be that the Establishment Clause in this context simply tracks Justice Breyer's refined sensibilities. I kept thinking as I read the Breyer opinion that what's really bothering Breyer is Flast. In the absence of a genuine community controversy, why should a single hyper-sensitive person trigger judicial review after 40 years. Breyer transmutes that idea to a loss on the merits, as opposed to an Article III issue. I also think it important that the Scalia/Rehnquist/Thomas position only has three votes. Kennedy would not join part I of the plurality. Thus, even with Breyer's insistence on communing with the oracle at Delphi, I see no major shift in doctrine emerging from the cases. Indeed, the stress on purpose that underlies both cases probably makes it harder for the religious right to paper the country with new symbols. Once again, though, I'll ask why do we care? I'm sympathetic to the notion that being forced to look at the government's display of someone else's religious symbol can be disconcerting and can send a message of exclusion. That's why I've signed all of those briefs. But, tell me that Muslims in this country need a display of the 10 Commandments to let them know they are outsiders. Or, that atheists need government displays of religious symbols to tell them they are on the margin of American public life. To my mind, worrying about the symbols confuses cause and effect. As long as we insist on an equality principle - a Koranic verse at the Texas capitol, I don't see the value in offending many millions of Americans for whom the displays provide solace and meaning. That's particularly so when the cases enrage millions of persons who then forget about their economic best interests when they vote. I would hold my fire for the many settings when religious zealots use government to force people to behave a certain way. Move over Justice Breyer. I'm climbing in. Burt Neuborne
Offense at What? Classes of Citizens?
Ten Commandments | 05:20 PM | Douglas Laycock | Comments (6) | TrackBack
I haven't read Thomas yet. But I quite agree that "offense at seeing the Ten Commandments" is not the sort of harm against which the Establishment Clause protects. It is offense at seeing the government post the Ten Commandments, thereby taking a position on religious questions and trying to persuade religious minorities to adopt the government's preferred religious views.
It is true that religious minorities can try to get government to endorse their religious views too, and will occasionally succeed, just as Baptists occasionally won parish elections in 18th-century Massachusetts. But that just highlights a core part of the problem: when we let government take positions on religious questions, we are implicitly or explicitly voting on religion -- voting on which religious views deserve endorsement. The religions that Jack Balkin says are labeled second class are the religions that regularly lose those explicit or implicit elections.
The process of voting on religion, of the electorate choosing the true religious view, should scare evangelicals as much as anybody. But like the Congregationalists in Massachusetts, they don't see a problem as long as they win most of these implicit elections -- and as long as losing only means that no display goes up, not that some other religion's display goes up. The Congregationalists learned when the Unitarians started winning elections.
If Someone Asks You About BrandX...
Grokster | 04:56 PM | Susan Crawford | Comments (0) | TrackBack
If someone asks you what the Supreme Court thinks about the internet today, you've got a couple of responses.
1. In Grokster, the Court seems to understand that the case before it isn't just about P2P, and that the development of technology is really at issue. It doesn't want to let one industry -- the content industry -- use its statutory copyright monopoly to control the growth of another industry. On the other hand, the Court also recognizes that going after individual filesharers is very difficult, and that it may be necessary to go after intermediaries where sufficient evidence of intent is present. (This could be called the "There Must Be Liability In Here Somewhere" argument.) Result: some risk of liability for copyright infringement by technology providers, and a roadmap for what evidence is relevant when those cases come up.
2. In BrandX, the Court takes an entirely different approach. Using homespun analogies to pizza and dogs, and based on some fundamental misunderstandings about technology, the Court defers to the FCC's determinations about internet services. (This could be called the "This is Really Hard And We Want Out" tack.) Result: unfettered discretion lodged in the FCC to do what it wants with all internet services.
Now, the BrandX case is about a classification question. Should cable modem services be classified as "telecommunications services" or "information services"? If cable modem internet access is a telecommunications service, then many common-carrier obligations kick in -- like the obligation to allow others to plug into your network, to charge only set rates, and to contribute to the costs of rural telephone systems. The FCC didn't want to impose all of those costs on the cable industry, and so they said that cable internet access is really an "information service." This means that the FCC can apply "social policies" to the service (which can be very onerous and costly -- just as costly as the common-carrier rules), but won't set prices or require interconnection.
The problem with this classification by the FCC is that the statutory definition of "information service" doesn't fit with what internet access actually is. Information services are supposed to be things that generate, acquire, store, transform, process, retrieve, or make available information across telecommunications connections. The FCC reasoned that cable modem service is an information service because it gives people the ability to manipulate information using the internet across high-speed telecommunications. But that's not really right. Cable modem service allows people to reach online information, but doesn't necessarily allow them to manipulate it.
Your browser software allows you to see graphical online pages. Your email program allows you to receive and send email. Your IM client allows you to chat with friends. None of these things are necessarily provided by your cable service company. The 1996 telecom act, which contained these definitions, didn't foresee what the internet would become or how it would be used.
The Court defers to the FCC's classification, and along the way drops some very powerful dicta that gets ahead of the rewrite of the telecom act that is now in progress. Federal telecommunications policy, the Court says, should be set by the Commission. Everything accessed online is an information service. The Court says "the Commission has jurisdiction to impose additional regulatory obligations [on information service providers] under its Title I ancillary jurisdiction to regulate interstate and foreign communications."
The opinion has no limiting principles. The FCC can call anything that processes information an "information service," including any application you can think of. And it can impose any rules it wants to on that information service. We'll be relying on the Commission's self-restraint from now on.
That should be good cocktail-party banter.
[Cross-posted to Susan Crawford blog]
Justice Scalia and "second-class citizenship"
Ten Commandments | 04:24 PM | Rick Garnett | Comments (5) | TrackBack
I appreciate Jack Balkin's detailed and provocative post on Justice Scalia's dissenting opinion in McCreary. With respect, though, it is not as clear to me that the opinion shows that Scalia is "willing to enshrine a notion of first class and second class citizens based on religion -- first class citizens can have government acknowledge their religion in public pronouncements and displays, while second class citizens cannot." Maybe I'm hung up on the words "can" and "cannot." I do not understand Justice Scalia to be saying in McCreary -- or ever to have said -- that the Constitution would permit government to preclude, prevent, or ban any citizens from "hav[ing] government acknowledge their religion in public pronouncements and displays." If some citizens "cannot" secure -- or fail to secure -- such acknowledgments, is it correct to say that this because of a constitutional theory rendering them second-class citizens? Would Justice Scalia regard this failure as signalling that these citizens "don't count," or are "insignificant"? Or, would he say instead that the democratic political process tends to produce acknowledgments of majoritarian values and commitments, which the Constitution permits, even when it does not (and should not) permit the enforcement or imposition of those values? (I suppose this question touches also on Justice Thomas's view that "offense at seeing the [Ten Commandments]" is not the kind of harm to which the Religion Clause speaks, and acknowledgments of religion are simply not the kinds of official actions that count as "establishments" of religion). I would welcome others' thoughts (and I apologize in advance if I have misread or misunderstood Jack's point).
More questions than answers
Grokster | 04:24 PM | Rebecca Tushnet | Comments (4) | TrackBack
My name is Rebecca Tushnet. I teach at the Georgetown University School of Law. While I was not involved in Grokster, I do have a clear bias: Justice Souter, for whom I clerked, is the very model of a thoughtful, committed and careful jurist, and thus I am inclined to support any proposition he endorses.
That said, I am concerned that not every court is as careful as Justice Souter – this was a problem with his opinion in Campbell v. Acuff-Rose, which quite clearly says that satire can be fair use (though it has comparatively less advantage in the fair use analysis than parody does) but which has widely been overread to say that parodies win fair use defenses, but satires don’t. I fear that similar uncertainties will follow the Grokster ruling. In fairness, though, I can’t imagine a plausible majority opinion that wouldn’t leave many thorny questions.
The previous posts have made a number of excellent points which I’ll try not to reiterate, though I adore Kathleen Sullivan’s image of “strangling little iPods in their cradles.” I don’t quite get Charlie Petit’s idea that the Betamax involved “authorized source material and authorized distribution channels” whereas Grokster doesn’t. Except for unreleased pilots such as “Global Frequency” and bootlegs, the music and TV shows available through peer-to-peer networks came from authorized source material and authorized distribution channels (CD stores and broadcasts). Then they got moved to forms the copyright owners didn’t authorize and couldn’t control – a lot like TV shows got moved to blank videotapes.
This leads into my big questions: What would this opinion really have meant for the VCR? Would “See any TV show you want to, anytime you want to see it” or “build a library” count as enough obvious encouragement of librarying – which was not found to be fair use – to justify a finding of contributory infringement? (I’m still looking for a copy of the “build a library” ad, unfortunately.) What about “any TV show” in the context of pay cable, which again was not analyzed as fair use when the Court looked at time-shifting free broadcast TV?
[Images in extended entry]
Moving onward, what would a responsible lawyer tell Apple about “Rip. Mix. Burn.” after today? Does that clearly promote infringement?
How about Sourceforge, which distributes Azureus, a major BitTorrent client? Let me make clear that Sourceforge offers BitTorrent software, not torrents or files – it seems to me trivial even in the pre-reversal 9th Circuit to establish that sites hosting unauthorized torrents are contributory infringers. Sourceforge is not such a site. It offers only the peer-to-peer technology, naked and pure. Except: drill down into the description on the site a bit, and you get this: “The RSS Feed Scanner is an automatic RSS feed parser which is highly configurable and allows unnattended operation via its advanced filtering capabilities. .... The filter strings can be easily edited via the graphical configuration tool, and each filter can also support targeting of specific episodes within a series of the same titles (for example in downloading episodes of shows).” So maybe not so pure after all. Maybe this means that Sourceforge is a black hat, despite initial appearances, or that this particular plugin is inherently infringement-promoting. I would definitely not rest easy tonight if I ran Sourceforge.
Another question is whether the decision, which is explicitly targeted at “devices” including software, will have spillover effects on non-device-related conduct. Already in the Napster/venture capitalist litigation and in the Canadian P2P litigation questions have been raised about whether someone who enables sharing of files on her computer is encouraging infringement by those who download those files. If all she does is enable (or fail to disable, depending on how her file-sharing software is configured) uploading, has she done enough to be liable for others’ infringement? This may not be all that important if the copyright owner’s right of distribution is broadly defined, but the scope of the distribution right remains unsettled.Relatedly, I’ve long wondered whether this PBS lesson plan, which encourages the creation of unauthorized derivative works and even their dissemination on the Internet, constitutes contributory infringement. That page has plenty of “solicitation that broadcasts a message designed to stimulate others” to create unauthorized copies (slip op. at 20). Many people will, of course, think that most or all of the resultant art is fair use – but fair use is not usually what people want to rely on when copyright owners’ lawyers come around. If I encourage you to create mash-ups of existing songs, believing that at least some of the time the results will be fair use, have I induced infringement if, some of the time, the results are infringing?
Justice Souter doesn’t get into this question, because Grokster conceded that unauthorized copying using its software would be infringement, but it could become important for other technologies, including a future “Rip. Mix. Burn.” campaign.
What is "Inducement"?
Grokster | 04:17 PM | Derek Slater | Comments (1) | TrackBack
I am honored to be in the company of such stellar thinkers today at SCOTUS blog - thanks to Tom and co. for the opportunity. To introduce myself and where I'm coming from: my name is Derek Slater, and, as a student fellow at the Berkman Center for Internet and Society, I work on the Digital Media Project and contributed to the amicus brief in support of respondents by Professors Fisher, Zittrain, and Palfrey. Currently, I'm a summer intern at the Electronic Frontier Foundation, which acts as counsel for Streamcast Networks.
Today, I'll be posting here, EFF's blog DeepLinks, and my blog, A Copyfighter's Musings, and cross-posting between them. What I write here is my own opinion and does not represent the views of the organizations for which I work.With that said, let's dive in. Looks like I'm already behind, so I'll start midstream.
At the least, one could hope that the Supreme Court's decision in December to hear the Grokster case was a first step in bringing clarity to secondary copyright infringement doctrines. Instead, the Court introduced a new doctrine, the contours of which are entirely unclear. The ambiguity invites more lawsuits and will raise doubts in the minds of all innovators.
Apparently, the inducement test requires "clear expression" or "affirmative steps" to promote infringement. The Court includes communications to users and internal messages as possible evidence of wrongful purpose. But the Court says little about how explicit or on point such actions must be.
That allows copyright holders and courts to second-guess every decision an innovator has made. Every marketing campaign, every design choice, every business plan, every document concerning how the software might be used are potentially fair game. Mere knowledge of illegal uses is not enough, but plaintiffs might seize on anything that might hint at the company attempting to generate such uses.
Indeed, the Court harped on the companies' mere decision to market to Napster users. Because some Napster users infringed, advertising themselves as new Napsters indicated "a principal, if not exclusive, intent on the part of each [company] to bring about infringement." Even use of the -ster suffix drew the Court's ire. (Friendster, you're on notice.)
And once there's the scent of intent to satisfy infringers, inducement can include just about anything else. The Court states that failure to design a technology to reduce infringement is not sufficient. However, in the context of other evidence, as in this case, it can be. So too can be the mere fact that infringing uses produce financial benefits for the company. The Court leaves open what else might be added into the equation.
Equipped with this weapon, copyright holders have enough to force myriad innovators into court. Even if some innovators could eventually prove their innocence, the standard may be enough to force many into expensive trials that few can afford.
When the petitioners argued before the Court in March, they threw the kitchen sink of possible tests at the Court. It was if they didn't know which to adopt, and, it seems the Court was unsure as well. Because of the Court's failure to create a clear standard, now innovators share a sense of uncertainty, as their ability to create technology falls into doubt.Soon, I'll have more on the ambiguity in the standard, as well as how it could have been clearer.
More posts around the blogosphere on the inducement test's meaning:
Ed Felten on business models and design choices.
Susan Crawford offers a more positive view.
Randy Picker tries to pick apart the design issues. Lawrence Solum digs in, too.
Many more out there....[cross-posted at Deep Links]
More on Footnote 12
Grokster | 04:16 PM | Susan Crawford | Comments (0) | TrackBack
Ed Felten is right to focus on Footnote 12. That's the key footnote that technologists will be waving to say "don't allow the content industry to get into the business of designing our products and services." If there is no other evidence of intent and the device is capable of substantial noninfringing uses, you can't tag a technology with secondary infringement liability based on mere reluctance to filter.
Another legal-beagle point on this "don't design" argument is that the Court specifically says it is not talking about vicarious infringement. Vicarious infringement is based on "profiting from direct infringement while declining to exercise a right to stop or limit it," according to the Court. Vicarious liability doesn't require intent.
But we're in the contributory infringement box, which is based on "intentionally inducing or encouraging direct infringement." So the Court focuses on evidence showing an "affirmative intent" that the product be used to infringe. Contributory infringement looks at active steps evidencing intent, while liability for vicarious infringement might only require a failure to act (such as failure to filter). The classic example given by the Court of active steps is advertisement -- which is a corporate message encouraging infringement.
I read the decision as saying that IF there is evidence of advertising AND other marketing and promotional indicia of intent, THEN failure to filter might be relevant. But failure to filter on its own (as Footnote 12 suggests) would never be enough.
Now, of course, it's not hard to do discovery and find evidence of intent. So this gives the content industry substantial ammunition. And that's why this is a balanced opinion that doesn't completely please either side.
The End of Consensus on Prohibiting Sectarian Discrimination
Ten Commandments | 04:09 PM | Marty Lederman | Comments (3) | TrackBack
I'm not at all surprised by the outcomes in these cases (principally for the pragmatic reasons that I think were driving Justice Breyer, which I discussed in my previous post). But I do think that there is one very surprising, and very disturbing, aspect of the opinions.
The only Establishment Clause principle on which there has been any sort of consensus among Justices over the past two generations is sectarian neutrality--that the government may not prefer some denominations to others. As the Souter and Stevens opinions point out, that principle is plainly implicated in these cases. The Rehnquist plurality in van Orden does not even acknowledge the issue. Remarkably, however, Justice Scalia's opinion in McCreary County (which the Chief Justice and Justice Thomas join in pertinent part) expressly advocates abandoning the sect-neutrality principle in cases of government speech. (Justice Scalia professes adherence to the sect-neutrality principle in cases of public aid and free exercise, but he doesn't really offer any persuasive explanation for drawing such distinctions among subsets of Religion Clause cases.)
As Jack Balkin demonstrates in his must-read blog posting, Justice Scalia's bold new non-neutrality stance is premised on the notion that the Constitution permits preferences for the so-called "Judeo-Christian-Islamic" tradition of monotheism. Polytheistic (e.g., Hinduism) and nontheistic (e.g., Buddhism) religions -- not to mention Jews, Christians and Muslims who do not believe in the literal words of the Bible, or who do not believe in the particular version of the Decalogue that the state sanctions -- are flat out of luck. For more on this theme, see Justice Stevens's dissenting opinion in van Orden, which is in my view a tour de force. As Jack Balkin explains, "Justice Scalia's tradition of establishment of monotheism is, like so many other traditions, an invented tradition which he has made up to produce an outcome that he politically prefers. [A]lthough Justice Scalia repeatedly claims that his theory of adherence to text, original understanding and tradition is superior because it constrains judges from imposing their personal views into the Constitution, it does nothing of the sort. This case is a perfect example. Justice Scalia has particular views about religion and about what sorts of government invocations of religion should or should not be regarded as offensive or as marginalizing people with different religious beliefs than his own. These political beliefs produce the outcome he takes in this case."
Jack even wonders why, on Justice Scalia's view, Jews and Muslims must be included in the mix of first class religious citizens: "After all, if you exclude them you still have about 91% of the population. So why couldn't the government offer prayers to Jesus Christ, our Lord and Savior?"
Jack's question is somewhat rhetorical, I suppose, but Justice Thomas takes it quite seriously: In canvassing what he views as the absurd results of the Court's Establishment Clause jurisprudence, Justice Thomas mocks a recent district court decision invalidating the National Park Service's preservation of a memorial cross in the Mojave Desert. "If a cross in the middle of a desert establishes a religion," Justice Thomas writes, "then no religious observance is safe from challenge." As though an official U.S. memorial cross is the easy case for rejecting the Establishment Clause challenge! It is revealing that Justice Thomas cites only the district court decision. Perhaps he did not wish to upbraid Judge Kozinski, who, writing on behalf of a unanimous Ninth Circuit panel, affirmed the district court's decision, concluding that the sectarian discrimination made the cross an easy case for invalidation: Quoting Allegheny County, Judge Kozinski wrote that "Whatever else the Establishment Clause may mean ..., it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions).'" 371 F.3d at 550. (It's also worth noting that, although this holding invalidated a federal statute, the SG did not even petition for cert.)
Supreme Court Sows Uncertainty
Grokster | 04:07 PM | Fred von Lohmann | Comments (0) | TrackBack
[Hello all, I'm Fred von Lohmann, staff attorney with EFF and counsel to StreamCast Networks, one of the two defendants in today's MGM v. Grokster ruling. The following also appears on EFF's Deep Links weblog. On the EFF homepage, you'll also find audio of our press conference this morning, along with Public Knowledge, representatives of Grokster, and the Consumer Electronics Association.]
Let's measure today's opinion against the chief issues mentioned in the "Grokster Reader's Guide" last week.
- It's not About P2P: It's still not about P2P. Whether or not today's ruling unleashes new litigation against innovators, it will have no effect on the tens of millions of Americans who continue to use P2P file-sharing software, nor will it deter off-shore programmers living beyond the reach of US copyright laws. Hilary Rosen is right: giving music fans a compelling legitimate alternative, whether through collective licensing or simply competing with free, is the only solution.
- No Matter What, We've Won: There is reason to celebrate in today's ruling. It could have been much worse. As many have noted, the Court rejected many of the more extreme positions that the entertainment industry argued for in the courts below. As discussed below, the Court left intact several important legal bulwarks for innovators. While the Court didn't shore them up, it also didn't tear them down.
- Main Event #1: Sony Betamax. The Supreme Court left the Betamax defense intact by essentially refusing to say anything about it, although the sniping between the two concurrences suggests that a future battle may be coming. Neither side can declare total victory on this score and future cases are probably inevitable (especially where well-advised companies use today's decision as a roadmap for avoiding any hint of inducement).
- Main Event #2: Vicarious Liability. The Court chose to punt on this issue, choosing to base its decision on inducement instead of addressing the entertainment industry's "you could have designed it differently" theory of vicarious liability. The Court's exposition of inducement, however, suggests that it would be hostile to any theory that imposed a free-floating obligation to redesign (without any evidence of inducement) on technologists. That's good news.
- Main Event #3: Inducement. The Court conjured a new form of indirect copyright liability, importing inducement from patent law. Lawyers will be reading the tea leaves here for years to come, trying to divine the precise boundaries of this new form of copyright liability (and, contrary to what the patent lawyers will tell you, patent precedents don't resolve all the questions). The opinion suggests that copyright plaintiffs must show some overt act of inducement; the design and distribution (along with the usual incidents of distribution) of a product, by itself, are not enough. But the Court's opinion may lead lower courts to conclude that once you find an overt act, however small, virtually everything else becomes relevant to divine your "intent." That would be a bonanza for entertainment lawyers eager to foist huge legal costs on defendants. Reminiscent, in some ways, of the securities class actions that have bedeviled high tech companies for years.
More about the details of the Court's inducement theory soon.
Divisiveness, Oppression, and the Impossibiity of Principled Opinions
Ten Commandments | 04:06 PM | Douglas Laycock | Comments (0) | TrackBack
Each side has a principle; it is unimaginable that either side would or could enforce its principle absolutely. This is more obvious for the secularists because of where the lines have been drawn over the last generation, but it is true for both.
The Scalia four say government can promote or endorse traditional religion with little in the way of limits. But the odd concession about monotheism instead of Christianity reveals a limit of sorts, even though in practice they plainly mean to uphold monotheism with a Christian sensibility. But they would not let government harangue us with daily e-mails or nightly TV ads in prime time to give our lives to Christ. They haven't said that, but I'm pretty sure it's true. If they were winning more, then at some point they would have to draw a line. The line would be unprincipled, separating differences of degree.
The Souter four want to leave religion to the choices of individuals, families, and churches, and keep government out of our religious business. But they cannot possibly eliminate all government references to religion. They would not change the place names in the southwest, and they would not change the coinage. They too have to draw a line between what they strike down and what they are willing to accept, and that line will be unprincipled, separating differences of degree. Breyer's opinion may well be tactical, but whether tactical or sincere, the line he is trying to draw is inherently messy.
These opinions are in fact divisive. In principle, a rule leaving promotion of religion to the private sector has the potential to be nondivisive, while a rule allowing government to promote religion is inherently divisive. But in the world we live in, given the large fraction of the population determined to use the organs of government to promote their religion, decisions trying to limit that will be divisive.
So are we better off or worse off with this divisiveness than with what we had in the past? Well, that depends on how far back you go. The Protestant establishment of the nineteenth century was oppressive; it was hard for religious minorities to escape prayers and services with Protestant theology and Protestant sensibilities. Alan Brownstein has spoken movingly of how the school prayer decisions made it possible for people like him to leave Jewish enclaves and move to Davis, California or anywhere else in the country.
This oppression ended when courts (and in some places, school boards) began to take religious dissenters seriously as parts of the polity. And the pendulum had to swing a very long ways before oppression of religious minorities was ended. Today's cases are not about oppression; it is indeed possible to just ignore these displays. But especially for conscientious or sensitive members of religious minority groups (by which I mean to include nonbelievers as well as non-Christian faiths), significant imposition begins just short of these cases, as soon as prayer or religious rituals are imposed on an audience assembled for other purposes.
As to which is more divisive, well, that's a matter of who is angriest and willing to make a fuss at any point in time. Right now, that's the cultural right. At times in the nineteenth century, when both sides were willing to go physical, we had mob violence, burned churches, and people dead in the streets. The secular side is not provoking that kind of confrontation today, and they are not likely to. But they should not forfeit their rights for that forbearance.
"Divisiveness"
Ten Commandments | 03:23 PM | Sanford Levinson | Comments (0) | TrackBack
With regard to "divisiveness": I think it is useful to compare the concern expressed by Justice Breyer (and, before him, Justice Brennan) for the "divisiveness" posed by religious controvesy in the public square with the views expressed by some conservatives that race-based divisiveness is equally dangerous, so that affirmative action must be made unconstitutional (and not simply criticized as bad public policy) lest the polity be caught up in an ever-more-dangerous identity politics. And, of course, political conservatives, well aware of the power of Karl Marx's analysis, are quick to pounce on anyone who suggests that American politics might benefit from a dose of old-fashioned "class conflict." What unites all of these views is precisely what Rick Pildes brilliantly identified in his article on Bush v. Gore four long years ago: We have a Supreme Court (and, of course, they are not unique in their perceptions) that is basically terrified of politics and the potential for genuine conflict that a serious politics can generate.
The nine justices, of course, are not fearful of precisely the same threats to the political order, thus the 5-4 divisions. As Eugene points out, though, there is no reason at all to believe that these particular Supreme Court justices have any real idea of the practical dynamics of our political system. Steve Breyer is, no doubt, very smart, but it is surely close to bizarre that he believes that participants in contemporary culture wars over the Ten Commandments will be impressed by the Harvardian distinctions between the Ten Commandments in the Courthouse and outside it. As is often pointed out, only Sandra Day O'Connor (who, I am sure, shocked both her supporters and detractors, of whom I am generally one, by actually being consistent in these two cases), has ever actually held elected political office. It is interesting that she doesn't perceive the same threat, at least in this case, that her colleague does.
Lyle Has A Ten Commandments Post
Ten Commandments | 03:14 PM | Tom Goldstein | Comments (0) | TrackBack
On the main SCOTUSblog.
Second-Class Citizenship
Ten Commandments | 02:58 PM | Jack Balkin | Comments (1) | TrackBack
I've placed a long discussion of Justice Scalia's rather disturbing theory of what the Establishment Clause allows on Balkinization. Here's the introduction:
In his dissent in McCreary County v. ACLU, Justice Scalia forthrightly explains that the Establishment Clause is not about preserving neutrality between religion and non-religion. It is not even about neutrality among religions. Rather, it requires neutrality among monotheistic religions that believe in a personal God who cares about and who intervenes in the affairs of humankind, and in particular, among Christianity (and its various sects), Judaism, and Islam. From the United States as a Christian Nation, we have traveled to our "Judeo-Christian heritage," and now, apparently, to the "Judeo-Christian-Islamic" tradition. There is no such tradition, of course, as various members of all of these religions (and the various sects of these religions) have fought with and persecuted each other for many years. And one effect of Justice Scalia's theory is that he is willing to enshrine a notion of first class and second class citizens based on religion-- first class citizens can have government acknowledge their religion in public pronouncements and displays, while second class citizens cannot. Well, who said that the Constitution prohibited different classes of citizens, anyway? The Fourteenth Amendment? Who cares about your stinking Fourteenth Amendment!
Justice Breyer and Divisiveness
Ten Commandments | 02:57 PM | Marty Lederman | Comments (4) | TrackBack
I don't really want to disagree here with anything Eugene and Rick have written about whether evaluations of "divisiveness" can or ought to be a function in deciding religious symbolism cases. I'd simply like to suggest that perhaps Justice Breyer is not so much arguing that the outcome should be determined by the divisiveness (or lack thereof) of the display in question, as much as he is offering us clues to his own split votes in these cases. Reading his separate opinion, it's hard not to conclude that he is, in fact, very troubled by the Texas decalogue, and that it is plainly unconstitutional on any reasonable doctrinal test. But Justice Breyer well knows what the public and political reaction would have been had the Court struck down both displays. It wouldn't have been pretty, and yes, it would have been divisive in exactly the manner Eugene suggests -- which would be an unambiguously bad thing, for the Nation, for the Court, and for Establishment Clause doctrine (and perhaps even, as Burt Neuborne suggests, for progressive causes generally!). And so Justice Breyer takes one for the team, much in the way that Justice Stevens did with his standing opinion in Newdow. That is to say: His is a tactical vote, intended to allay precisely the Court-driven divisiveness that would result if he acted in accord with doctrine and his genuine beliefs about how the cases shoudl come out in the best of all possible worlds.
Legality of Design Decisions, and Footnote 12
Grokster | 02:44 PM | Edward Felten | Comments (3) | TrackBack
As a technologist I find the most interesting, and scariest, part of the Grokster opinion to be the discussion of product design decisions. The Court seems to say that Sony bars liability based solely on product design (p. 16):
Sony barred secondary liability based on presuming or imputing intent to cause infringement solely from the design of distribution of a product capable of substantial lawful use, which the distributor knows is in fact used for infringement.
And again (on p. 17),
Sony's rule limits imputing culpable intent as a matter of law from the characteristics or uses of a distributed product.
But when it comes time to lay out the evidence of intent to foster infringement, we get this (p. 22):
Second, this evidence of unlawful objective is given added significance of MGM's showing that neither company attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software. While the Ninth Circuit treated the defendants' failure to develop such tools as irrelevant because they lacked an independent duty to monitor their users' activity, we think this evidence underscores Grokster's and StreamCast's intentional facilitation of their users' infringement.
It's hard to square this with the previous statements that intent is not to be inferred from the characteristics of the product. Perhaps the answer is in -footnote 12, which the court hangs off the last word in the previous quote:
Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.
So it seems that product design decisions are not to be questioned, unless there is some other evidence of bad intent to open the door.
To make things worse, the Court here criticizes Grokster and StreamCast for making a very reasonable engineering decision. There is every reason to believe that filtering technology would add to the cost and complexity of the companies' software, without substantially reducing infringement. (We discussed this issue in the computer science professors' brief.) In short, the Court here engages in exactly the kind of design second-guessing that technologists fear.
Legitimate technologists will still worry that a well-funded plaintiff can cook up a stew of product design second-guessing, business model second-guessing, and occasional failures of copyright compliance by low-level employees, into an active inducement case. This risk existed before, and the Court today hasn't done much to reduce it.
Importance (Not!) of Religious Symbols Cases
Ten Commandments | 02:39 PM | Thomas Berg | Comments (0) | TrackBack
Thanks to the SCOTUS blog for setting up this discussion and inviting me to participate.
I have mixed feelings about the idea, floated by Ann Althouse and Burt Neuborne, of liberals relinquishing the fight in religious symbols cases. (Going along with this ambivalence, I have no dog in the 10 Commandments case and was not involved in any brief.) As someone who often litigates on behalf of religious organizations and persons trying to bring their beliefs to bear on public life, I welcome a softening of strict church-state separation: a movement away from separation as mandating a secular public square and toward a focus on whether religious liberty is preserved and advanced. Moreover, as someone who holds "liberal" positions on a number of issues such as economic policy, international relations, etc., I would like to see those positions revitalized in middle America -- a development that may well require that liberals stop alienating middle America on other issues such as official religious symbols when the symbols involve no real coercion against anyone.
But as a proponent of broad religious freedom, I do not want to see government expression of religious positions expand, even when the expression is non-coercive. This is partly because the freedom of minority religious views, those who dissent from the government's favored view, can be threatened in many subtle ways. But it is also because government expression of a favored religious view threatens the vitality of an independent religious sector. As my fellow religious-liberty scholar and litigator Carl Esbeck wrote recently in Liberty magazine: "That government has no authority to speak on inherently religious matters is a venerable First Amendment rule designed to protect organized religion-religion that should not want its prayers composed and symbols appropriated by Caesar. A religion that does not resist the state co-opting its sacred objects is flirting dangerously with becoming a civil religion, that is, a subordinate and uncritical booster of American nationalism."
From the standpoint of the real vitality of religious communities in American civil society, I think that issues like the posting of the 10 Commandments pale in importance compared with other major Religion Clause issues:
(1) Whether government has the duty (and at least the power) to accommodate sincere religious conduct when it comes in conflict with law, by exempting that conduct from the law (subject to overriding social needs).
(2) Whether religious schools and social service agencies, who provide beneficial services to society, should be able to participate in programs of government funding paying for those services, without giving up their ability to define their mission, hire employees committed to that mission, and so forth.
Both of these issues are very important to ensuring that religious organizations themselves remain free to pursue their vision -- including contributing to civil society -- without pressure or discouragement from the active modern state. But in religious symbols cases, the state chooses the vision and does not protect or empower independent religious organizations in their efforts. Official religious symbols, therefore, should be at most a low priority for religious believers, and at worst they tempt them away from more important goals. Religious parents who want a religious component in their children's education settle for trying to get a few scraps of prayer at public school graduation, rather than trying to end the government discrimination in funding that pressures them to choose the (state-funded) public school over a seriously religious private school.
Tom Berg
Eminently Quotable, But Is It Sound?
Ten Commandments | 02:39 PM | Eugene Volokh | Comments (2) | TrackBack
Justice O'Connor, concurring in McCreary County, writes:
Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders' plan of preserving religious liberty to the fullest extent possible in a pluralistic society.By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. The well-known statement that "[w]e are a religious people" has proved true. Americans attend their places of worship more often than do citizens of other developed nations, and describe religion as playing an especially important role in their lives.
Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?
I'm sure this will be quoted often -- but is it really apt? For much of our nation's history our system has been (by and large) little legal coercion of religious practice, coupled with routine government references to religion, including displays of Ten Commandments memorials; displays of creches; graduation prayers and even daily prayer in school; Presidential preclamations and Congressional acts praising religion; references to God on coinage, in the National Anthem and elsewhere, references that likely contained, at least at the time, some message of endorsement of theism; and more. And this has continued until recently: I suspect that standalone creches were quite common until the 1989 decision striking them down, graduation prayer was quite common until the 1992 decision striking it down, and Ten Commandments displays, even ones that the Court would now consider unconstitutionl, were fairly common until today.
What's more, little legal coercion of religious practice, coupled with routine government references to religion is the system that Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas would adopt. Justice O'Connor's system is much less tried and true.
Now Justice O'Connor might well be right on her bottom line: Perhaps barring Ten Commandments displays, and similar government endorsement of religion, would further strengthen American traditions of religious tolerance, and would increase the religiosity of Americans to boot. (Query why increasing the religiosity of Americans should be any concern of the Court's; perhaps as to that, she meant to ask why supporters of religion should want to trade away a system that has served them so well.)
But it seems to me far from clear that her argument for that bottom line works here. That a routine-endorsement-of-religion system has done good things in the past (compared to systems whose flaws went far beyond endorsement of religion) doesn't mean that a no-routine-endorsement-of-religion system would yield equally good results in the future.
Justice Breyer's Naïveté
Ten Commandments | 02:24 PM | Eric Muller | Comments (8) | TrackBack
(Cross-posted from IsThatLegal?.
I was not going to write anything about today's Ten Commandments decisions, but the foolishness and naïveté of Justice Breyer's outcome-determinative concurrence in the Texas case calls out to be named.
Several factors lead Breyer to see the Ten Commandments tablets on the grounds of the Texas State Capitol as secular, but the one he calls "determinative" is that nobody has publicly complained about it before.
As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect, primarily to promote religion over nonreligion, to engage in any religious practice, to compel any religious practice, or to work deterrence of any religious belief. . . . Those 40 years suggest that the public visiting the capitol grounds has considered the religious aspect of the tablets message as part of what is a broader moral and historical message reflective of a cultural heritage.
What could Justice Breyer mean when he says that "40 years passed in which the presence of this monument, legally speaking, went unchallenged?" Breyer is trying to gauge whether people visiting the Capitol see the monument as religious, and to do that, he asks whether people have repeatedly filed lawsuits?That is supposed to be a measure of what the average visitor sees in the monument?
Why does Breyer limit himself to asking whether the monument has "gone unchallenged" "legally speaking?" Do people's views register only if people have the courage and the resources to sue? Here's the truth: Justice Breyer hasn't the faintest idea how "the public" actually sees this monument. He's just making this up.
Justice Breyer leaves open the possibility that decades of "legally unchallenged" display of a religious message might run afoul of the Establishment Clause if the absence of "legal challenge" were due to a "climate of intimidation."
How, exactly, is a person to show such a "climate of intimidation?" Perhaps there is no such climate in Austin, Texas, but monuments like this grace the parks of little towns across the country -- towns like Cody, Wyoming, where there is nary a mosque nor a Buddhist church nor a Hindu temple to be found.
The social pressures toward conformity and against public complaint (not to mention litigation) can be overpowering in America's small towns. Take it from someone who lived for four years in Laramie, Wyoming (which, by the way, is a melting pot compared to Cody). I could never "prove" a climate of "intimidation" on religious matters in Laramie. But that doesn't mean it's not there.
Justice Breyer has obviously never lived in a small town. He's mistaking his own view of this monument for "the public's." And he's missing the Establishment Clause dangers that lie in towns so homogeneous--and there are many of them--that "the public" could never be expected to produce a soul brave enough to complain.
[Marty Lederman adds: Eric, I think you'll like Justice Souter's response to this argument:
"[T]he State’s argument . . . seems to be that 40 years without a challenge shows that as afactual matter the religious expression is too tepid to provoke a serious reaction and constitute a violation. Perhaps, but the writer of Exodus chapter 20 was notlukewarm, and other explanations may do better in accounting for the late resort to the courts. Suing a State over religion puts nothing in a plaintiff’s pocket and can take a great deal out, and even with volunteer litigators to supply time and energy, the risk of social ostracism can be powerfully deterrent. I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause."
Having said that, I should note that I don't think Justice Breyer was being naive -- instead, he was being tactical. I'll try to say more on this in response to Eugene's post.]
Painful Analogies
Grokster | 02:02 PM | Susan Crawford | Comments (0) | TrackBack
[I should have introduced myself two entries ago. I'm Susan Crawford, and I teach cyberlaw at Cardozo Law School. I'm proud to have been part of the team that worked on an amicus brief arguing for the same middle ground adopted by the Court today in Grokster. The brief was filed by the Digital Media Association, Netcoalition, CDT, and the ITAA.]
Humble metaphors make for bad internet policy. The Grokster 9-0 opinion doesn't use them.
But the BrandX guys -- my, all that talk about pizzas v. pizza delivery and dogs v. leashes. Just painful. And the use of this simplifying (but really obfuscating) set of metaphors indicates that the Court really didn't know what it was talking about when it started defining everything online as "information services" provided by the access provider.
So I'm hoping that we can categorize everything said about "information services" other than cable modem access as "dog dicta."
In my next entry, I'll go back to musing about Grokster, and, in particular, the meaning and import of fn. 12. We may have another fn. 4 of Carolene Products in the making.
Hollywood beats Grokster but not Silicon Valley
Grokster | 01:37 PM | Kathleen Sullivan | Comments (1) | TrackBack
There was little doubt Hollywood was going to win Grokster; the only issue was how. The Court wasn’t going to leave the motion picture and recording industries at the mercy of limitless free filesharing. Grokster wasn’t likely to get away with being a clever Napster any more than, to recall Mill’s famous example, a clever inciter would get away with saying to a mob “corn dealers are starvers of the poor” instead of “storm the farmhouse.” And the Court doesn’t generally grant cert. from the 9th Circuit to affirm.
But the litigating positions taken by both sides kept veering toward extremes. Many in the motion picture industry kept pushing for a 51% rule: if the primary use of a technology infringed copyright, contributory liability could follow. Whoops, there goes broadband. As you read this, at least half of what is whizzing by in cyberspace over connections like yours is likely infringement. So that couldn’t be the law; it’s unlikely that even Congress would enact it.
Grokster’s defenders kept pushing for an equally untenable 99.9% rule: if a technology, no matter how much it is used to infringe, is theoretically capable of a noninfringing use, then no contributory liability. Well, it’s an easy parlor game to think up a list of hypothetical noninfringing uses. This is a lot like overbreadth under the First Amendment—don’t stop hard-core porn because the rule might sweep in nude shots from the National Geographic. Not surprisingly, Sony, like Broadrick in the overbreadth context, introduced the word “substantial” as a way of ensuring that the balance is struck in favor of real rather than hypothetical innovation.
So a middle way between these two extremes was needed, but which one? Try to get the Court to split the difference at a 75% rule? Unlikely to work, because it sounds too legislative and this is an area in which the Court knows that technology is rapidly changing and may make any bright-line rule quickly obsolete. Use a standard instead of a rule, i.e. “overwhelming,” “vast majority,” “lion’s share” (it is MGM after all) of uses are infringing? Well, that would guarantee full employment for lawyers but not give a lot of clarity to the lower courts.
But there was an alternative third way in plain sight: to punt on the exact degree of infringingness required and to focus on active inducement. And if there was any disagreement among the justices on how inhibiting to innovative technology an objective rule or standard would be, such that they couldn’t agree on any way to read or change Sony, this offered an attractive way out. Plus this has the advantage of not adjudicating the messy fact question on the record below of just how much Grokster usage was infringing (90%? 75%? Now? Someday?)
They did disagree on the policy question, we now know from the concurrences, and they did take the escape hatch, with Justice Souter writing for the Court that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting act is of infringement by third parties.” On this standard, Hollywood surely has a strong case against Grokster on remand.
Sony remains unaltered because the Court couldn’t agree on how to restate or reform it. Three justices (Justice Ginsburg joined by Chief Justice Rehnquist and Justice Kennedy) would have reread Sony with a tilt toward Hollywood, requiring defendants to do a lot more than get a few declarations from pals like Brewster Kahle to show a reasonable prospect of substantial or commercially significant noninfringing use. Like a business plan and projected advertisement stream. Even Souter’s opinion showed some droll skepticism toward Grokster’s noninfringing use defense on this record: “While there is doubtless some demand for free Shakespeare, users seeking Top 40 songs …or the latest release by Modest Mouse, are certain to be far more numerous than those seeking a free Decameron…”
Justice Breyer joined by Justices Stevens and O’Connor would have read Sony with a tilt toward Silicon Valley, with Grokster’s showing of 10% noninfringing uses good enough if it weren’t for that darn active inducement problem. Breyer, one of only two dissenters in Eldred, is consistently alert to the problems of evolving technology and anxious that courts not do anything to strangle little Ipods in their cradles.
So what’s the bottom line? While it wasn’t a 51% rule, the decision was still obviously a strong win for Hollywood, and while it wasn’t a 99.9% rule, it also preserved important protections from secondary liability for technology innovators whose business model is something other than exploiting infringement. The outcome was a tribute to the advocacy of those pushing for a middle way (the SG, Don Verrilli for the studios at the oral argument, the high-tech amici who wrote in support of neither side).
Some in the Grokster camp will likely try to put a game face on the loss by predicting the ruling will be easily evaded by clever inducers. That is unlikely. Willful blindness will not be a helpful business model for the future, even for technopiles like Justice Breyer, who wrote that Grokster itself “may well be liable under today’s holding.” On the other hand, Breyer’s opinion reminded Hollywood that it could do more to introduce digital watermarking and fingerprinting to stop making things so easy for the geek world to pillage it. Future rulings on active inducement will likely take into account how hard each side really tried.
Divisiveness
Ten Commandments | 01:27 PM | Eugene Volokh | Comments (7) | TrackBack
The opinions joined by Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer routinely stress that Ten Commandments displays and the like often threaten to produce "religious divisiveness," and that the Establishment Clause should be read as making such divisiveness into a reason for invalidating (at least some) government actions.
But I wonder: What has caused more religious divisiveness in the last 35 years -- (1) government displays or presentations of the Ten Commandments, creches, graduation prayers, and the like, or (2) the Supreme Court's decisions striking down such actions? My sense is that it's the latter, and by a lot: All these decisions have caused a tremendous amount of resentment among many (though of course not all) members of the more intensely religious denominations. And the resentment has been aimed not just at the Justices but at what many people see as secular elites defined by their attitudes on religious matter. The resentment is thus a form of religious division, and I've seen more evidence of that than I have of religious division caused simply (i.e., setting aside the litigation-caused division) by the presence of Ten Commandments displays, creches, or even graduation prayers.
Isn't there something strange about a jurisprudence that in seeking to avoid a problem (religious divisveness) causes more of the same problem, repeatedly, foreseeably, and, as best I can tell, with no end in sight?
Now it may well be that the Court's actions are justifiable under some other theory. There may well be some other reason why government use of such religious symbols must be struck down despite the religious divisiveness of such government actions. But it seems mighty odd for the Court to strike the actions down in the name of a goal -- avoidance of religious divisiveness -- that the Court's actions are themselves undermining.
It's More Important Than Grokster
Grokster | 01:27 PM | Susan Crawford | Comments (2) | TrackBack
I realize that I was invited here to talk only about Grokster, but in the great traditions of the blogosphere I'm going to overstep my welcome.
The consequences of BrandX (also decided today) are more important than those of Grokster. Grokster keeps the status quo in place. BrandX opens up a whole new world of regulatory power.
"What?" you ask. "I thought BrandX was just about the access of little ISPs to big mean cable systems."
No. In fact, both opinions are the reverse of what they purport to be. The Grokster opinion gives certainty to tech companies. And the BrandX opinion takes it away again.
In BrandX, Justice Thomas gets very confused about the internet and ends up essentially announcing that everything a user does online is an "information service" being offered by the access provider. DNS, email (even if some other provider is making it available), applications, you name it -- they're all included in this package. And the FCC can make rules about these information services under its broad "ancillary jurisdiction."
This is very very big. This means that even though information services like IM and email don't have to pay tariffs or interconnect with others, they may (potentially) have to pay into the universal service fund, be subject to CALEA, provide enhanced 911 services, provide access to the disabled, and be subject to general consumer protection rules -- all the subjects of the FCC's IP-enabled services NPRM. I've blogged about this a good deal elsewhere, but I want the news to be heard here: the FCC is now squarely in charge of all internet-protocol enabled services.
The implications of all this are staggering. This is the real news from today. After the DC Circuit's ruling in the broadcast flag case, people may have thought that the FCC's "ancillary jurisdiction" was in trouble. No longer -- the FCC has been given an enormous jurisdictional surge in power.
As Jim Speta notes: "As Scalia says, 'This is a wonderful illustration of how an experienced agency can (with some assistance from credulous courts) turn statutory constraints into bureaucratic discretions.'"
A lot to like . . .
Grokster | 01:23 PM | Ian Gershengorn | Comments (0) | TrackBack
I can’t offer a balanced view because we represented the petitioners (the content providers) in the case. We are still in the process of digesting it all, but some initial reactions seem appropriate. From the content providers' side, there is a lot to like in the Souter opinion.
First, all nine Justices recognized the problem that copyright owners face. Justice Souter wrote that “the probable scope of copyright infringement is staggering,” and the Court noted the “evidence of infringement on a gigantic scale.” The Court also noted that “digital distribution of copyrighted material threatens copyright holders as never before, because every copy is identical to the original, copying is easy, and many people (especially the young) use file-sharing software to download copyrighted works.” This is precisely the problem that content providers have identified and sought to remedy.
Second, the inducement standard the Court adopted is quite broad. Unlike Douglas Lichtman, I don’t think it will be so easy for systems like Grokster to simply “cleanse” their record. The Court’s standard properly makes relevant a lot of information that the content providers believe ought to be relevant, but that respondents had sought to render irrelevant. For example, the Court emphasized that respondents did not “attempt[] to develop filtering tools or other mechanisms to diminish the infringing activity” and the fact that they “make money by selling advertising space, by directing ads to the screens of computers employing their software.”
Third, the Court recognized the need for a “sound balance between the respective values of supporting creative pursuits through copyright protection and promoting innovation in new communication technologies.” It has been the content providers’ view all along that whatever a “sound balance” is, it cannot be that all of the content is available to everyone for free. That is no balance at all.
Fourth, although the Court did not address Sony, it vacated the Ninth Circuit’s standard – indeed, no Justice advocated the Ninth Circuit’s heightened knowledge standard. Moreover, the Court left open the possibility of vicarious liability. In short, the legal world was returned to its “pre-Grokster” order. In that order, both Courts of Appeals that had addressed peer-to-peer systems – the Seventh Circuit in Aimster and the Ninth Circuit in Napster – had found those systems to be culpable.
Lyle Has A Grokster Post
Grokster | 01:19 PM | Tom Goldstein | Comments (0) | TrackBack
On the main SCOTUSblog.
Business Models as Evidence of Intent
Grokster | 01:16 PM | Edward Felten | Comments (1) | TrackBack
[Greetings, SCOTUSblog readers. My name is Ed Felten. I'm a professor of computer science and public affairs at Princeton University. That makes me the token technologist in this group. I was one of seventeen computer science professors who filed an amicus brief in Grokster urging affirmance. I blog at freedom-to-tinker.com.]
One interesting aspect of Justice Souter's majority opinion is the criticism of the business models of StreamCast and Grokster (pp. 22-23):
Third, there is a further complement to the direct evidence of unlawful objective. It is useful to recall that StreamCast and Grokster make money by selling advertising space, by directing ads to the screens of computers employing their software. As the record shows, the more the software is used, the more ads are sent out and the greater the advertising revenue becomes. Since the extent of the software's use determines the gain to the distributors, the commercial sense of their enterprise turns on high-volume use, which the record shows is infringing. This evidence alone would not justify an inference of unlawful intent, but viewed in the context of the entire record its import is clear.
It's hard to think of any conceivable business model for a software company under which an increase in use of the product does not lead to an increase in revenue. If you sell software, greater use allows you to increase the price, or to sell more units. Likewise if you sell software by subscription. If you give away the software and make money on auxiliary products or services, you'll still benefit from increased usage.
Certainly Sony's profits would have increased the more people used Betamaxes. The same is true for iPods, TiVos, photocopiers, and many other legitimate products. Profiting from use seems like pretty poor evidence of intent to cause infringement.
The Breakdown of the Justices
Ten Commandments | 01:01 PM | Tom Goldstein | Comments (0) | TrackBack
Doug Laycock writes below:
[C]ontrast what the four dissenters say in McCreary (probably what they really believe) with what the same four say in the Van Orden plurality (trying to take account of the Court's precedents). Interesting that after failing to get the fifth vote, they left the Van Orden opinion the way it was instead of rewriting it on the lines of the McCreary dissent. I think to safe to say that the McCreary dissent is a better prediction of their future votes.Consistent with that, note that Justice Scalia has no majority opinion in that sitting. It seems to me quite possible that Justice Scalia's McCreary County dissent was originally assigned to be the Van Orden majority.
ML asks: Isn't it more likely that AS lost a majority in Spector?
TG responds: I personally think not because Kennedy's Spector opinion has six Justices at one point. (Rich Samp agrees with you in a comment over on SCOTUSblog, however.) I think the Chief may have tried to write something that he hoped Breyer could join, or at least something that when combined with Breyer's opinion articulates something like an intelligible principle of law.
Surprises in the Ten Commandments Cases
Ten Commandments | 12:54 PM | Rick Garnett | Comments (0) | TrackBack
First, thanks very much to SCOTUS Blog for hosting this discussion, and for inviting me to participate. I am sure I am not alone in thinking that the Kelo-related conversation hosted by this Blog in recent days was incredibly informative and engaging.
I wonder if others were surprised that the vote in Van Orden (the Texas case) was only 5-4? After oral argument, I thought that Justice Breyer would probably vote in favor of the Texas monument; I did not expect, though, that Justice O'Connor would vote, as she did in McCreary, against the display.
I am particularly intrigued by Justice Breyer's statement -- his concession, perhaps? -- that he "see[s] no test-related substitute for the exercise of legal judgment" and that "no exact formula can dictate a resolution to . . . fact-intensive cases." As I understand his opinion, then, he does not even profess to rely on the already "fact-intensive" endorsement test, but instead invokes, at an even more general level, "the underlying purposes of the Clause." And, one of the "basic purposes" of the Religion Clause, he writes, is to "avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike."
In several recent opinions -- e.g., his Zelman dissent, his opinion in Newdow -- Justice Breyer has treated as constitutionally significant his predictions or observations regarding what Chief Justice Burger once called "political divisiveness along religious lines." So, is "divisiveness" the new "endorsement"?
I should note that I have an article in draft that examines, in some detail, the history and content of this "political divisiveness" argument. I'm sure we'll all have more to say about this as the conversation proceeds, but here's a quick thought (taken from an essay I wrote a few weeks ago for Commonweal magazine):
It is worth remembering . . . with John Courtney Murray, that “pluralism [is] the native condition of American society” and that the unity toward which Americans have aspired – e pluribus unum – is the “unity of a limited order.” Those who crafted our Constitution believed that both authentic freedom and effective government could both be secured through checks and balances, rather than standardization; and by harnessing, rather than homogenizing, the messiness of democracy. Accordingly – this side of heaven, anyway – we should, in Murray’s words, “cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity.”
Initial Reactions
Ten Commandments | 12:43 PM | Douglas Laycock | Comments (1) | TrackBack
Quick initial reactions on McCreary and Van Orden. Disclosure: I filed amicus briefs in each case for the Baptist Joint Committee, the Interfaith Alliance (and in Van Orden, joined by the American Jewish Congress and the American Jewish Committee).
The split decision, the emphasis on purpose in McCreary, and Breyer's emphasis on the specific facts of Van Orden, mean that we will be litigating these cases one at a time for decades. Still, on the whole, a big win for the supporters of these displays. The ones that have been around for a long time, which is a lot of them, now have something of a grandfather clause. Conceal your religious purpose, point to anything else in the area that the state might have endorsed, however unrelated, and the state should be home free.
New displays will be tougher to defend, but the lesson for supporters of such displays is the same: conceal religious purpose, put some secular stuff nearby, obfuscate, and your chances are good. These longer odds of success should deter lawsuits, but Breyer's opinion is a counterincentive: sue early, as soon as the thing goes up, before the grandfather clause begins to run.
I agree with those who say these cases are primarily of symbolic significance. I recently had to explain US church-state law to a French audience, and found myself sheepishly explaining the time and energy we spend on these issues. But to those who feel strongly on either side, the felt sense of insult is great.
Other things to note: contrast what the four dissenters say in McCreary (probably what they really believe) with what the same four say in the Van Orden plurality (trying to take account of the Court's precedents). Interesting that after failing to get the fifth vote, they left the Van Orden opinion the way it was instead of rewriting it on the lines of the McCreary dissent. I think to safe to say that the McCreary dissent is a better prediction of their future votes.
A Balanced View
Grokster | 12:34 PM | Susan Crawford | Comments (1) | TrackBack
Today's Grokster opinion is a victory for content AND for technology. I was afraid that Sony would be undermined -- and it wasn't. The content guys were afraid that they wouldn't be able to go after bad guys -- and they've been given ammunition. What we've got is an opinion that is balanced and middle-of-the-road. It leaves Sony's "substantial noninfringing use" standard alone (yes, the concurring Justices snipe back and forth about what that standard means, but that doesn't matter), it doesn't adopt any formless Aimster balancing test, and it says strongly that you can't impute intent to technology. A good day for innovation. And a good day for Congressional staff, who won't have to deal with some request for Induce legislation -- we're done.
Now, that's not to say that there aren't some clouds here for technology companies. If you've got a stated intent to help others infringe, and a bunch of "bad" ads, and lots of other evidence of culpable intent, and THEN someone writes to you and encourages you to adopt their filtering technology, and you don't -- well, then you might be liable for inducement. There are certainly ways that this opinion might spark litigation.
But for the moment, tech companies can breathe easy. Distribution of a general-purpose copying device, by itself, is simply not an infringing act. And that was the right decision. Happy summer vacation, Justices.
Proof of secular purpose and adverse possession of the public square
Ten Commandments | 12:34 PM | Ira Lupu | Comments (0) | TrackBack
These two decisions highlight two grand themes. In McCreary County, the theme of course is the relevance of governmental purpose to constitutional outcomes. One very important question that may now appear in future litigation about the Decalogue or other religious symbols is the placement of the burden of proof re: secular purpose. Would any government display of a religious text, like the Ten Commandments, raise an inference of impermissible religious purpose under McCreary, thereby shifting the burden to the government to provide objective evidence of a secular, validating purpose? Or does the burden remain on plaintiffs to show objective evidence of impermissible purpose beyond the symbol itself? (McCreary involved plenty of such evidence, so the burden was readily satisfied.) For older displays, the placement of the burden may well prove dispositive.
The second question is the more substantive one of the extent to which government may speak in a religious voice not shared by all citizens. Here, of course, Justice Breyer represents the slightly surprising swing vote. (A background paper posted by the Pew Forum on Religion and Public Public Life back in March identified O'Connor and Breyer as the "contextualists" to watch in these cases.) Breyer emphasizes his view of the purposes of the Establishment Clause, which include (for him) avoiding political divisiveness along religious lines, a theme he emphasized in his Zelman dissent. So he focuses on, among other things, the age of the display, and the absence of challenge for 40 years. With Breyer's opinion now representing the controlling position, contemporary attempts to create new displays of the Ten Commandments and other religious sentiments will be considerably more difficult to sustain than older, pre-existing ones. The heaviest impact of that emphasis on the age of the display is likely to fall in the short run on evangelical Christians, who are the prime movers in most such contemporary efforts. The others who will be affected by that emphasis are religious movements newly come to political power in America; they will be less able to have government adopt or acknowledge their messages. And the beneficiaries of Breyer's view are long-in-the-mainstream religious groups (i.e., the sorts of Christians and Jews who cooperated when the Texas monument and others like it went up.)
I am bothered by this sort of adverse possession of the public square by religious sentiments; if you get your message up and keep it there for a generation or two without challenge you win, but if you try to get a new message into that square, and there's contemporary litigation, you may lose. This is not "originalism"; it's some sort of Breyerian pragmatism, and it cannot be squared with any theory of equal religious liberty in America.
Lichtman: A Hollow Victory
Grokster | 11:49 AM | Douglas Lichtman | Comments (5) | TrackBack
MGM won on paper today, but my first reading of the opinion makes me wonder whether the victory will have any bite outside of this specific litigation. Intent-based standards, after all, are among the easiest to avoid. Just keep your message clear -- tell everyone, and I mean everyone, that your technology is designed to facilitate only authorized exchange -- and you have no risk of accountability.
That is not the standard I was hoping for. As I have urged elsewhere, I would have allowed liability to be based exclusively on objective evidence, for example a party's failure to alter its technology in a way that would significantly reduce infringing behavior without significantly interfering with legitimate.
The Court closed the door on this sort of inquiry, however. As the opinion makes clear, evidence of unreasonable product design can be considered only if there is also smoking-gun evidence of intent. Indeed, even outlandish design desicions are off limits without the relevant precursor.
Surely the Court realizes that well-advised bad actors rarely leave smoking guns lying about. Hence the victory here looks hollow, and in my view the legal rule seems poorly crafted.
More on Justice Breyer, Partly on Divisiveness
Ten Commandments | 08:06 AM | Thomas Berg | Comments (0) | TrackBack
Having seen so many times in which the concept of "political and social divisiveness" has been used as a conversation-stopper against religious participation in public life -- from Lemon v. Kurtzman's "political entanglement" prong to ordinary comments like "why does X have to spout his beliefs and be so divisive?" -- I'm happy to see a non-conservative justice like Breyer actually recognize how empirically uncertain it is whether a strict separationist Establishment Clause increases or decreases religious divisions in society as compared with some lesser, but still non-trivial, degree of separation.
The real question is not empirical, but rather whether "divisiveness" should be a criterion in itself. One problem with it is the one others have identified: "divisiveness" only assesses people's responses, not whether they are justifiable or not. Are the opponents of 10 Commandments displays justified in being angry because the display unnecessarily favors the religious views of some citizens and leaves out the deeply held views of others? Or are the supporters of displays justified in being angry because their underlying values get left out if the government can't express any religious values? To decide that, we need a principle about the proper bounds between church and state, and mere the fact of divisiveness one way or the other doesn't help.
The second problem -- which may not be applicable to this case -- is that, as Rick points out, free religious activity in a pluralistic society will create divisions and controversy. Certainly there has to be a strong "state versus private action" distinction here: if state-created religious division is impermissible, division that results from the free speech and activity of religious individuals and groups should typically be protected rather than suppressed. My own view is that Justice Breyer and the other dissenters in Zelman, in voting to prohibit school-choice funding programs based on their potential for divisiveness, were voting to use the Establishment Clause to discourage religious diversity in educational options. But I digress ....
I'm a bit surprised that Breyer didn't use the endorsement test or something like it in Van Orden to differentiate between the two displays. He could have done so, since most of his analysis is consistent with that test (distinguishing, in a fact-specific way, the promotion of the religious view from the acknowledgment of religious roots of a cultural/moral idea). Instead, he rejects any the use of any single test -- not only for the Establishment Clause as a whole, but even for the sub-class of cases involving non-coercive religious symbols. I am glad that the first among his "basic purposes" is "the fullest possible scope of religious liberty and tolerance for all." Id. at 1 (citing Justice Goldberg's concurrence in Abington School Dist. v. Schempp). Because I am one who writes and litigates for a view of the Religion Clauses that emphasizes respecting the religious choices of individuals and groups rather than strictly separating church and state, I have always liked Goldberg's opinion with its recognition that pure neutrality or separation can create "a passive, or even active, hostility to the religious." Schempp, 374 U.S. at 306. But even though the basic goal is good, I don't think that just stating it at this level of generality gives much guidance for future cases.
Tom Berg
More from Walter Dellinger on Takings and Due Process
Kelo | 02:11 AM | Marty Lederman | Comments (0) | TrackBack
Here is my brief reply to Marty's excellent response: I do think that using the correct clause -- due process rather than takings -- would change results in some cases going in both directions. At present the Court is using the "commercial speech" doctrine and the takings clause in cases where the real issue ought to be whether the law or action in question violates the due process clause (in addition to using them in cases in which they really are appropriate) . The result of using the wrong tool is that (1) much economic regulation gets no judicial review at all while (2) some narrow set of economic regulations that can arguably be dragged into the First Amendment or the Takings Clause rubric can get too much. Except for the real first amendment and takings cases, all economic regulation ought to get something like Cleburne serious rational-basis scrutiny. Justice Kennedy -- even though his opinion was ostensibly under the takings clause -- hinted that this is where he would go as well.
The Start of the Ten Commandments Group-Blog
Ten Commandments | 01:46 AM | Marty Lederman | Comments (13) | TrackBack
The Court is expected to issue its decisions in McCreary County and van Orden later this morning. As Tom has noted, nose-counting suggests that Justices Scalia and Souter are writing the two opinions, in which case it might the case that the Court (Justice O'Connor?) has concluded that one display is constitutional and the other is not.
This is the start of a "group blog" on the decisions. In addition to discussion of the decisions themselves, and their doctrinal significance, I'm hoping that our discussants might consider two other, "meta"-questions:
First: Do these sorts of "public religious symbolism" cases matter? Over at her blog, Ann Althouse writes: "I think it's very bizarre of us to regard the Ten Commandments case as the big case. . . . [I]t really just isn't that important whether there's a monument amid other monuments somewhere on the state capitol grounds or a framed text amid other framed texts on a courthouse wall. . . . There are ideologues who want to purge religion from the public eye who care [how the Court decides this particular case] and religionists who want to intrude a lot more of it who care. If either of these groups were getting very far, I would care about the outcome in the cases that would arise. But the displays at issue in this case are inconsequential. Still, they are too much for the extreme secularists and just the beginning of what extremists on the other side would like to see. The Court needs to draw a good line that fends off both extremes. I don't care which side of the line the particular displays at issue in this case end up on.... I ... think the [Establishment Clause] extremists are blowing [this case] out of normal proportion. Everyone needs to learn to get along, and those who want to purify things too much don't impress me. Sure, they'll be put out if the government wins in these cases. I don't think people who take great offense easily should be driving the outcomes.... I think most atheists ... and many religious people ... accept and even enjoy seeing evidence of other religions around them. It's part of art and history and culture -- part of the beauty of the world that we live in (either by the grace of God or by pure, weird chance)."
Reactions to Ann's provocative take?
Second: Have liberals and progressives made a significant error -- in terms of their long-term interests -- in expending energy on such "government religious symbolism" cases over the past generation or two, even if such cases have (from their perspective) resulted in improved Establishment Clause doctrine? This question is prompted by comments of Burt Neuborne at the Amercian Constitution Society "Constitution in 2020" Conference, and on the Conference blog. Notwithstanding the fact that Burt has litigated countless cases involving creches, decalogues, etc., he writes that "one final staple of the progressive judicial agenda may not be worth defending at all -- the religious symbolism cases may do nothing but enrage voters who might be [our] natural economic allies." Is Burt onto something important? And, if so, where should we progressives draw the line? I assume, for example, that Burt does not mean to include in his indictment the cases dealing with elementary schools, such as most importantly Engle and Schempp, even if (as is likely the case) those decisions did more to turn voters away from the progressive agenda than all the others combined. But perhaps he does. And what about Lee v. Weisman, the Santa Fe football-prayer case, Newdow, etc.? (In this same general vein (although not specifically pertinent to the Ten Commandments cases), see also Bill Marshall's candid recent article in the Notre Dame Law Review, in which he argues that "the tension between the constitutional commitment to anti-establishment and the societal need to engage in collective religious exercise can be accommodated by a doctrine that allows for government support for religion in limited and exceptional circumstances," and that "there may be moments of national crisis and grief when instrumental values pale and it becomes constitutionally permissible to pierce the secular veneer.")
Sunday, June 26, 2005
Which Clause?: Locating the "Public Use" Requirement
Kelo | 11:03 PM | Marty Lederman | Comments (1) | TrackBack
Walter Dellinger suggests that it is more appropriate to view the requirement of "public use" as emanating from the Due Process Clause of the Fourteenth Amendment, rather than from the Just Compensation Clause of the Fifth Amendment (as incorporated by the Fourteenth). I happen to think that Walter is probably correct -- but I wonder what follows from this, and whether there isn't a good reason that property-rights advocates should be reluctant to look to the Due Process Clause for greater protection.
As for the merits of Walter's suggestion: It's worth recalling that there is no language in the Fifth Amendment (or anywhere else in the Constitution) that expressly requires that "takings" of property be for a "public use" or a "public purpose." The Fifth Amendment merely provides that takings that are "for public use" must be (justly) compensated. It might be fair to read this language as resting on an assumption that all takings are for public uses. This was, for instance, Justice Holmes's understanding in Mahon, where he wrote that the “protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation.” 260 U.S. at 415. However, it's not fair, I think, for a plain-meaning or original-intent constitutionalist [note: I'm not one] to derive a prohibition on non-public-use takings from the Just Compensation Clause. To be sure, Justice Thomas argues in his Kelo dissent that there is an "express" public-use limitation in the Fifth Amendment itself, relying principally on the theory that if the words "for public use" did not impose a distinct requirement, they would be surplusage. But I'm doubtful: As Jed Rubenfeld has explained, perhaps the words "for public use" were included in order to indicate that compensation is due when the public uses the "taken" property (in the sense of affirmatively exploiting some productive attribute of private property for a particular state-dictated service, in a manner “approach[ing] a taking-over or conscription of the relevant property for the mandated use," 102 Yale L.J. at 1150), but not when the public (i.e., the state) does something other than using the property, such as destroying it (see, e.g., Caltex; Miller v. Schoene) or condemning it or requiring that it lie fallow (see, e.g., Mugler; Central Eureka Mining Co.).
In any event, Ilya is absolutely correct to note that in the late-Nineteenth and early-Twentieth Centuries, the Court derived the "public use" requirement not from the Fifth Amendment's words (the Court not yet having recognized the Fifth Amendment as "incorporated" against the states), but instead from principles of due process (see, e.g., Missouri Pac. Ry. v. Nebraska; Thompson v. Consolidated Gas), or even from pre-constitutional postulates, such as Justice Chase's famous "take from A to give to B" dictum in Calder v. Bull. (See generally Mark Graber, “Naked Land Transfers and American Constitutional Development,” 53 Vand. L. Rev. 71 (2000) (historical survey of nontextual constitutional prohibition on transfers of land from “A” to “B”); John V. Orth, “Taking From A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm,” 14 Const. Comment. 337, 339, 344 (1997) (noting that in the heyday of laissez-faire, “taking from A and giving to B” became the prime shorthand to describe what was forbidden by “substantive due process”; but that after the demise of Lochner, such a “simple paradigm[]” became an “embarrassment[] as legal discourse”).)
It's notable, in this regard, that Justice O'Connor does not begin her Kelo dissent with the words of the Constitution, but instead with the famous Calder v. Bull dictum -- a dictum that "merely" indicates that because it is against "all reason and justice" to take from A and give to B, courts should not presume that legislatures have been given such powers or that legislatures have done any such thing. Of course, that notion -- that legislatures have not been afforded the power to effect transfers of property from A to B -- has been anachronistic in our legal system for quite some time, and is almost unrecognizable after enactment of the 16th Amendment and the development of the modern, redistributive state. But even if one agrees with Justice Chase that legislatures have not been afforded the power to effect some sorts of transfers to private parties, and even if one concludes that this absence of power isn't simply a matter of state law, but is also reflected in the federal Constitution, I agree with Walter that it is a matter within the purview of the Due Process Clause, which prohibits the rare "naked transfers" that cannot be explained by any rationale other than the desire to benefit discrete private parties at the expense of others.
But what would follow from this shift to the Due Process Clause? After all, under that clause, economic regulation is ordinarily subject to the deferential rational-basis test, which is precisely the test the Court did employ in Berman and Midkiff. As Justice Kennedy notes in his concurrence, the government does not always win: regulation of property is unconstitutional if it is "clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications." See also note 17 of the Stevens opinion, citing the "class of one" equal protection case Village of Willowbrook v. Olech. But the scrutiny the Court applies under the Due Process Clause is no more rigorous than the scrutiny applied in the modern public-use cases, including Kelo. Therefore, although I agree with Walter that the Due Process Clause is the proper "tool for the job," I wonder why he thinks the outcomes of the job might be different if only the Court were to use the appropriate tool.
Walter Dellinger Writes . . . .
Kelo | 04:56 PM | Tom Goldstein | Comments (0) | TrackBack
Much of what is wrong with Takings Clause jurisprudence seems to me to have been caused by the unwillingness of property rights advocates and sympathetic Justices to revisit the total abandonment of economic due process and their use of the Takings Clause where due process provides a better tool. Take a case like Eastern Enterprises in which massive retroactive liability is imposed on coal companies. The law may have been unconstitutional (I think it was) as a violation of the due process clause. Of the five Justices who thought it unconstitutional, only Justice Kennedy was willing to say it violated economic substantive due process. The other four in the majority were terrified by coming anywhere near "Lochner." So they invoked the technical sounding Takings Clause. This is essentially the same clumsy move William O. Douglas made in Griswold. Since he and most of his colleagues in the majority were unwilling to condemn the Connecticut Birth Control ban as a violation of liberty without due process for fear of sounding like Lochner, Douglas rolls out the Third Amendment etc. Like Kennedy in Eastern Enterprises, John Marshall Harlan is the only Justice who will treat the issue as one of substantive due process -- and he writes a better opinion as as result.
The same fear of revisiting Lochner has led to much of the misguided "regulatory" Takings jurisprudence where that clause is used instead of due process I don't study this area, so I don't really know which of the governmental acts challenged as regulatory Takings I would think were unconstitutional as violations of substantive due process and which not. But I am sure that is the right framework for analysis, not the Takings Clause.
When the Takings Clause is sent in to do the work of Due Process, it is the wrong tool for the job. Most often it is the Just Compensation element that renders the Takings Clause inapposite to the issue before the Court. That clause of the Fifth Amendment (better called the Just Compensation Clause) is violated when and only when the state fails to provide adequate compensation to the owners of the property (assuming a public purpose, a criteria that seems particularly difficult for a court to second guess). When you have a case like Brown v. Washington Legal Foundation (which I argued on behalf of Justices of the Washington Supreme Court, who had adopted the rule using interest from lawyers trust accounts to fund legal services) this issue came up in a pristine form. Clearly the interest on the accounts was the property of the clients and (in my view, unlike some who had defended earlier attacks) it seem to me to have been "taken" by the state. But no compensation was due, because there was no loss: individually accounting for the money would exceed the money due. At argument, I was asked something along these lines: "Are you saying that if I have a piece of property that is a crummy little plot that has no value the government can come and just take it?" I responded that that was exactly what I was saying -- as far as the takings clause is concerned. If the property is worth $10 and the government pays $9 it has violated the clause. But if its worth $10 and loses all $10 in value and the government pays you $0 it has not denied Just Compensation. Whatever problems there are with the IOLTA program, the Takings clause doesn't seem the right tool. And the same is true of this term's San Remo case.
In cases like Eastern Enterprise, Justice Kennedy is willing to go right to due process -- read his majority opinion in State Farm v. Campbell (invalidating a state's award of excesssive punitive damages) and his majority opinion in Lawrence v. Texas the same term (invalidating Texas anti-gay law) and together they read like the same opinion. I think he is right both times.
For anyone interested in an explication of my view that the abandonment by many liberals economic liberty has weakened the underpinnings for the protection of personal liberty and that, correspondingly, that the refusal by many conservatives to recognize a constitutional basis for the protection of personal liberty has weakened the case for the protection of economic rights, see my Simon Lecture at the Cato Institute.
Legislative fix?
Kelo | 08:57 AM | Nicole Garnett | Comments (0) | TrackBack
David is right to chide me for suggesting that the members of the New London City Council are not "real people." His sentiment is echoed in Michael Kinsley's suggestion that ruling for the property owners would be "judicial activism." I'm going to leave to one side arguments about why -- as Ilya noted in an earlier post -- the Court selectively champions democratic outcomes. I imagine that subject may come up tomorrow, in the context of the 10 Commandments case -- and in the weeks to come if there is a retirement on the Court.
On the subject of democracy, however, I just received an email from Julia Mahoney at UVA who reports:
"Here in Virginia, the response to the decision has been fast and furious: within a day and a half, several state legislators vowed to introduce legislation restricting the eminent domain powers of localities."
This was really interesting to me: During an interview for the Elkhart, Indiana public radio station Friday, I learned that Indiana has convened an "Eminent Domain Study Commission."
I wonder how common this response will be, and what such a commission might recommend?
Larry Tribe on Justice O'Connor in Midkiff and in Kelo
Kelo | 08:27 AM | Marty Lederman | Comments (1) | TrackBack
Professor Laurence Tribe, who argued Midkiff in support of the Hawaii Housing Authority's land reform statute, writes with this observation about Justice O'Connor's contrasting opinions:
"In arguing Midkiff, at the level of formal doctrine I urged a standard identical to that for substantive due process challenges; but fearing precisely the kinds of identity-attacking and/or community-disintegrating moves that some think New London made in Kelo, I emphasized both in my brief and in oral argument the strong support in historical tradition and in economic utility for the state's comprehensive scheme for transforming oligopolies with respect to residential property in key areas of the state into well-functioning real estate markets -- thereby arguing that the state law at issue would survive not only rationality review but any plausibly heightened standard, as well. Although Justice O'Connor's opinion for the Court in Midkiff recited some of that material, her opinion was painted with a surprisingly broad brush -- and I was only mildly surprised in Kelo to see her retrace some of her steps from Midkiff and retract the most sweeping of the statements to be found there. Adding the Kennedy Kelo concurrence to the O'Connor Kelo dissent yields a 5-4 majority for at least trying to develop workable criteria for ferreting out corrupt or otherwise pretextual takings."
Barron and Kinsley on Kelo
Kelo | 08:08 AM | Marty Lederman | Comments (2) | TrackBack
David Barron has this Op/Ed today in the Hartford Courant. "The Supreme Court concluded it would follow the wise counsel of previous courts, and defer to the economic policy choices of the people's representatives. But if the court showed admirable deference in refusing to second-guess the city, it also rightly backed away from statements in some earlier opinions that sounded almost like abdication. . . . Important as [its] caveats are, though, Kelo's real significance lies in its broad view of local planning power."
And here's Michael Kinsley's syndicated column. Although his principal theme is that in Raich and Kelo "the danger of conservative judicial activism has been averted for another year," he is fairly contemptuous of the Kelo reasoning: "The court ruled, 5 to 4, that yuppification is a valid public purpose. Or at least it was reasonable for the city to promote yuppification. Who wouldn't like a few more Starbuckses in town? The four dissenters (O'Connor, Scalia, Thomas and the Chief) said: If this is a "public purpose," what in the world is not? One answer is that the town's elected officials thought that the project served a public purpose and that the various subsidies and favors were worth the price. But they may or may not have thought this. When the local government showers a big development with money and favors, it's usually not about sovereignty but about lack of sovereignty. Private developers play jurisdictions off against one another, extracting concessions from all that none would actually make a sovereign decision to give. A Supreme Court decision that concessions of this sort were unconstitutional would have taken them off the table and actually increased the effective sovereignty of elected officials."
Does anyone agree with Kinsley that this is a blow to local sovereignty and that elected officials would have breathed a sigh of relief if the Court had reversed?