The Volokh Conspiracy

Co-blogger Orin Kerr asks an important question. How much effect will the individual mandate decision really have? To some extent, we can’t really know. It depends in part on the Supreme Court’s reasoning in upholding or striking down the mandate, and also on future political developments, including who gets to make the next several appointments to the Court. Still, I think a few tentative thoughts are in order. In some ways, Orin is right that the decision will probably not have as much effect as avid partisans claim. Nonetheless, it could well have an important impact both legally and politically.

I. The Legal Impact.

On the legal side, claims that a decision striking down the mandate would somehow restore Lochner v. New York are wildly overblown. Only slightly less implausible are assertions that it would lead to anything resembling a full-blown return to pre-New Deal federalism doctrine. If the Court strikes down the mandate, it probably will not even reverse the most extreme recent Commerce Clause cases, such as Gonzalez v. Raich, much less major New Deal-era cases such as Wickard v. Filburn. Instead, the Court would most likely distinguish Raich, perhaps on grounds similar to those I outlined here. I would love to see a decision overruling or severely limiting Raich. But the votes simply aren’t there for it so long as Raich majority members Scalia and Kennedy are still on the Court.

The legal impact of a decision upholding the mandate would be more difficult to confine. The federal government has presented a variety of arguments claiming that the health insurance mandate is a special case. If the Court upholds the mandate, we will probably get a majority opinion endorsing one or more of these “health care is special” contentions. The problem is that all of them can be used to justify virtually any other mandate as well, as I describe in detail in this article, and here. It’s possible that the justices will come up with a novel health care is special rationale that doesn’t suffer from these defects. But I am skeptical. It’ striking that after two years of effort by numerous outstanding pro-mandate lawyers and academics, the most commonly deployed health care is special argument remains the deeply flawed claim that it’s special because everyone uses health care.

Orin suggests that this may not matter much because few if any federal mandates will be enacted due to their unpopularity. Obviously, Congress is not going to enact every conceivable harmful mandate. But, for reasons I outlined here, a variety of mandates will be politically viable because they are popular, because rationally ignorant voters are unaware of them, because of interest group lobbying, or some combination of all three. For these reasons, the slippery slope case against the mandate is not purely hypothetical. Consider a parallel federal power to censor whatever speech Congress wants. If the Court ever endorses such a power, we are not going to get an Orwellian nightmare where all dissenting speech is forbidden. But Congress is likely to start censoring some speech that is unpopular, inimical to powerful interest groups, or both.

II. Potential Broader Effects.

Going beyond the legal issues, the broader long-term effect of the mandate case is much harder to predict. Orin may be right that the anti-mandate litigation has reinvigorated interest in constitutional limits on federal power, especially among conservative Republicans. On the other hand, the GOP is often guilty of “fair weather federalism,” as we saw many times in the Bush years. When and if a Republican president and Congress return to power, many Republicans may well conveniently ignore the principles they advocated in this case. This is especially likely if the mandate is upheld. In that event, they might reason that if liberal Democrats can claim the benefits of unconstrained federal power and the Court doesn’t stop them, Republicans should not engage in “unilateral disarmament” by restraining themselves when they are in the driver’s seat in Washington. Such a view may be unprincipled. But political partisans are all too likely to fall prey to it.

That said, I too do not believe that everyone will simply go back to “business as usual” after this case. As public opinion polls repeatedly show, the view that the mandate is unconstitutional is endorsed by a large majority of the population, not just libertarians and conservative Republicans. That may in time translate into broader awareness of the need to enforce constitutional limits on federal power. A victory for the anti-mandate plaintiffs would also be an important milestone for longstanding efforts to return the idea of judicial enforcement of federalism to intellectual respectability among jurists and other legal elites. The fact that there was no expert consensus on the constitutionality of the mandate is itself significant, and certainly came as an unpleasant surprise to many of the mandate’s defenders.

Finally, as Orin recognizes, the mandate case is also important because the law it addresses is significant in its own right. Even if the Court’s decision has no implications for future cases, it will still determine the fate of a crucial element of one of the most significant new federal health care law in decades. If the Court decides the mandate is not severable, it could take down some or all of the rest of Obamacare as well.

Orin speculates that Congress might repeal the individual mandate even if the Court does not strike it down. That certainly could happen. But such an outcome becomes less and less likely the longer the mandate stays on the books, and the more health insurance firms and other interest groups become dependent on it. Interest group pressure could well keep the mandate in place, despite its unpopularity, especially as public attention moves on to other issues. We should recall that the mandate’s unpopularity was not enough to keep it from getting enacted in the first place, with the support of a president who once denounced the idea as the equivalent of trying “to solve homelessness by mandating everybody to buy a house.” It may not be enough to get it repealed either.

Richmond-Times Dispatch columnist A. Barton Hinkle describes a massive corporate welfare handout that the Washington Redskins just got from Virginia’s state and local governments:

The announcement that the Washington Redskins will move their training camp to Richmond was met with mixed emotions, as they say. It’s certainly great news for Virginia’s capital city. Virginians across the state are happy the Skins will not decamp to Maryland. On the other hand, a fair number are shocked at the public funds being lavished on the team.

The Old Dominion will give the Skins $4 million; Loudoun County (home to the team’s headquarters) will give them another $2 million, and Richmond will kick in $400,000. All this for “the third-richest sports franchise on the planet behind British soccer giant Manchester United and the Dallas Cowboys,” as Richmond Times-Dispatch columnist Jeff Schapiro noted a week ago....

Football fans will be delighted to have the Skins in town a few weeks out of the year. But when it comes to the subsidy, even some longtime fans can’t help agreeing with State Sen. Chap Petersen—a season ticket holder—when he called it “corporate welfare at its finest.”

The official rationale for the huge subsidy is promoting economic development. But, as Hinkle points out, studies overwhelmingly show that sports team and stadium subsidies don’t actually produce any net development; they mostly just transfer wealth away from other, often more productive, activities.

The only thing that can be said for the Redskins is that they still have a long way to go before they get as much corporate welfare as the New York Yankees.

The National Journal is reporting that the Koch brothers have settled their lawsuit against the current leadership of  the Cato Institute:

“Looks like we’ve come to an accommodation with the Koch brothers, Cato founder and president Ed Crane said Tuesday in a email to employees.
Staffers will be briefed Monday on the settlement by Cato Chairman Bob Levy and John Allison, a prominent libertarian and former BB&T chief executive office, who mediated the negotiations, Crane said. “It will be great to get all this unpleasantness behind us,” he wrote.
In a follow up email to staff, Crane cautioned that negotiations are ongoing.
The deal will settle a lawsuit the Koch brothers filed in February over shares that determine control of Cato. . . .
The settlement involves dissolving the shareholder agreement. In addition, Crane is expected to retire under an agreement that allows him to select his successor, though the Koch brothers could veto the hiring.

Assuming this report is accurate, this is tremendously good news for all involved. Whatever the merits of the Kochs concerns about Cato’s current management, a hostile takeover was not in the interest of Cato or the broader libertarian cause to which they have devoted so much over the years.

I blogged previously about Brian Tamanaha’s terrific forthcoming book, Failing Law Schools. The book has received a lot of media attention so far, and I thought I would point out that the book is now available. (H/t: Mirror of Justice).

Chicago law bans gun possession without a license, and provides that licenses may not be issued to anyone who has “been convicted by a court in any jurisdiction of ... an unlawful use of a weapon that is a firearm.” Shawn Gowder has a misdemeanor conviction for “unlawful use of a weapon” based on simple possession of a gun; the conviction dates back from 1995 (it was originally a felony but was later redefined a misdemeanor because of a state court decision holding that struck down the law making the conviction a felony on state single-subject-clause grounds).

Gowder sued, and today a federal district court (Gowder v. City of Chicago (N.D. Ill. June 19, 2012)) held that the law violated Gowder’s Second Amendment rights. While the Supreme Court has stated that felons may be barred from possessing guns, and the Seventh Circuit held the same about people who have violent misdemeanor convictions, the district court held that nonviolent misdemeanants with convictions for nonviolent gun possession offenses do not permanently lose their Second Amendment rights. I think this is likely correct, and will likely be upheld on appeal (though that’s always hard to tell).

The court also held that the Chicago ordinance was unconstitutionally vague, because it wouldn’t be clear to a reasonable citizen that “unlawful use of a weapon” includes simple possession offenses, especially given that the phrase is defined differently in the laws of different states. But on this point, I think the district court likely erred.

“Unlawful use of a weapon” is defined by an Illinois statute to include simple possession of the sort for which Gowder had been convicted — in fact, his 1995 conviction was under that very statute — so the Chicago ordinance can and should be interpreted to refer to that statute. And so interpreted, the ordinance wouldn’t be unconstitutionally vague as to Gowder and as to anyone else who has such a conviction in Illinois, though indeed it would be unconstitutional on Second Amendment grounds as applied to people like Gowder, for the reasons that the judge gave in his Second Amendment discussion. (It might conceivably be unconstitutionally vague as to people who have convictions in other states for crimes that neither clearly fit nor clearly don’t fit within the Illinois definition of “unlawful use of a weapon.” But even if that happens in some situations — and I’m not sure it ever would — that is reason to hold the statute unconstitutional vague as to such a person and situation, not a reason to hold it unconstitutionally vague on its face.)

To be sure, it may well be unfair to put ordinary citizens in a position where they have to know that the phrase “unlawful use of a weapon” includes mere possession, and it may well be that the ordinance should be written more clearly. (On the other hand, presumably Gowder knows that his conviction was for “unlawful use of weapons,” since that’s the name of the crime of which he was convicted.)

But, rightly or wrongly, the void-for-vagueness doctrine doesn’t cure such potential unfairness: A statute is evaluated not just on its face, but together with whatever clarifying interpretations have been imposed by courts, or could reasonably be imposed by this court. And interpreting a reference to “unlawful use of weapons” in an ordinance of an Illinois city using the definition of “unlawful use of weapons” in an Illinois state statute is precisely the sort of clarifying construction that courts could and should impose (even if other states defined the phrase differently).

This post is nothing but sheer speculation without any support whatsoever. I’m sure I’m wrong about this, and you shouldn’t take this post at all seriously. Really, it’s just silliness that you should ignore. With those caveats, I was intrigued by Justice Ginsburg’s light and amusing tone during her commentary about the Affordable Care Act litigation at last week’s American Constitution Society convention. Justice Ginsburg often gives public speeches and comments to the press about the current Term, and more than any other Justice she is willing to give a few subtle hints about how the Court’s major undecided cases might be coming out. The thinking — perhaps foolish — is that her tone in these speeches acts as a modest but not-entirely-useless barometer of how her side is doing.

If you watch Justice Ginsburg speaking about the Affordable Care Act case starting at the 27:40 mark of the video, she seems to be having fun talking about the case. She says that the case is indeed “unprecedented,” at least if you mean unprecedented in “the number of press conference, prayer circles, protests, and counter-protests” held during the oral argument. She describes one of the questions as being whether the individual mandate should be “chopped like a head of broccoli” from federal law. She pokes fun at the obscurity of the anti-injunction act issue. She jokes about the rumors concerning when the case will be handed down. Maybe Justice Ginsburg was just in a good mood. Maybe there were just some obvious jokes to make on the mandate case relative to some of the criminal cases she covered. Yes, I’m sure that’s it. Any other conclusion would be silly speculation. But given all the interest in how the individual mandate case might come out, I wonder if some are speculating that Ginsburg’s tone reflects some satisfaction with how the case came out.

The Supreme Court will hand down its decision in the Affordable Care Act case in a few days, and there’s lots of apocalyptic rhetoric from both sides about what a decision affirming or reversing might mean for the law and for the Supreme Court. I agree that the decision is likely to be hugely important. But I also think there are some reasons why the mandate decision may end up being less significant than many people think.

First, the challenge to the mandate has had an enormous impact even if the mandate is upheld. The political, rhetorical, and legal attacks on the mandate have caused a significant shift in how the legal culture on both sides of the aisle construes federalism issues. By the end of the Rehnquist Court in 2005, the Rehnquist federalism revolution was mostly dead. When Rehnquist and O’Connor departed and were replaced with Justices seemingly less committed to federalism than they, the prospect for any federalism revival at the Court seemed dim. I remember attending the oral argument in Comstock in January 2010 and being aghast at how uninterested in federalism the conservative Justices were. In just two years, opposing the mandate on constitutional grounds rooted in federalism principles has become the standard Republican position. This change has dramatically revived the right’s interest in limited federal power, and has signaled to the left that federalism concerns must be taken seriously. That reemergence of interest in federalism will continue whether the Court strikes down the ACA or upholds it.

Second, if the oral argument in the mandate case is a good guide, the Court may end up with a test that strongly discourages mandates whether or not this particular mandate is upheld. At oral argument, Justice Kennedy suggested that perhaps mandates should require some sort of special justification or heightened scrutiny to be allowed, with the big question then being whether the health care market regulated in this case satisfied that heightened scrutiny. If the Court ends up adopting a test like that, the Court will effectively blunt the possible future use of mandates even if the Court concludes that the health care market is unique and satisfies the heightened scrutiny. Given that the mandate has polled terribly, it’s not likely that Congress would be rushing to enact one in the future anyway. I suspect the polling numbers alone would persuade future Congresses that designing programs to use a mandate instead of the 1960s-style entitlement is a political loser. But even if the politics alone doesn’t end mandates, I suspect a higher degree of scrutiny for mandates would achieve that goal.

Third, we may end up in the same place over time in terms of health care laws no matter how the Court rules. If the Supreme Court upholds the Affordable Care Act, it seems reasonably likely that Congress will repeal parts of it over the next ten years (including the very unpopular mandate). If the Supreme Court strikes down only the mandate, the Court will bring us to a similar position. If the Court strikes down the entire law, it seems reasonably likely that some version of the Affordable Care Act (minus the unpopular mandate) will be enacted in the next ten years. And if we’re left with a law without mandates, it’s not clear if it will last over time or will prove ineffectual and be replaced by something else. It’s important to remember that the objection to the ACA is procedural in nature. The challenge is about how Congress can achieve its goal, not whether a national health care law can be enacted if people want one. So while striking down the entire mandate would restart the process on a health care law, there’s a sense in which all the roads may be leading to the same place over the long run.

Fourth, although there have been a lot of claims about how a decision in the mandate case might impact public perceptions of the Supreme Court, I tend to discount such claims. Public opinion about the Supreme Court seems to be relatively insensitive to individual decisions: Gallup’s poll suggests that the Court’s approval rating ranges from about 40% to 60% over the years. Changes in the ratings seem to coincide more with confirmation hearings (which in recent years have often correlated with a bump in approval ratings) than with particular decisions. That would make some sense, I suppose: Supreme Court confirmation hearings are major stories every day for at least ten weeks or so, while even major Supreme Court decisions are major stories only for a few days tops. Maybe the mandate case is so big that it would be different, but I’m not confident of that. So on balance I don’t think a ruling on the mandate is likely to make much difference one way or the other.

The mandate case is still hugely important, of course. The size and scale of the ACA is so vast that any case on its constitutionality will have major effects. The legislative process can be heavily path-dependent, so which path the Court takes may make a big difference even over time. The medicaid expansion issue from Day 3 is potentially a big sleeper issue that may have major impact, too. And importantly, part of my argument is premised on a particular view of how the Justices might craft the opinion (especially my point #2); if I end up being wrong on that, which is certainly possible, then it’s hard to predict how much impact the decision might have. But for the reasons above, I think there’s a decent possibility that the decision in the health care cases may have less impact than many are expecting.

A fighting bookend for the personally abusive epitaphs case, and also an interesting issue in its own right — Svedberg v. Stamness (N.D. 1994) (emphasis added):

This case arises from what is apparently a long-running feud between Anthony Stamness and Christian Svedberg, both minors.... Testimony indicated that Stamness and others referred to Svedberg as “Dumbo,” a cartoon elephant with unusually large ears, and Stamness had, on one occasion, stated, “You had better watch it Dumbo or I will kill you.”

In addition Stamness, along with others, constructed three large snow figures that were prominently displayed throughout the community of Northwood. All of the snow figures were constructed with very large ears. After hearing the evidence the court concluded that these threats and taunts, harassment, and construction of snow figures were intended to adversely affect the safety, security, and privacy of Svedberg. As a result the court ordered that “Anthony Stamness shall have no contact with Christian Svedberg and shall cease or avoid the following specific conduct: Uninvited visits to the Petitioner, harassing phone calls to the Petitioner, calling the Petitioner abusive names (including “Dumbo”), or any other conduct which injures the Petitioner, either physically or emotionally, including the construction and public display of any effigy of Christian Svedberg.”

The court upholds the order, on the grounds that the defendant’s conduct, including the snow sculptures, were “fighting words” that justified the injunction. (Note that the injunction didn’t focus on threats, but also banned calling Svedberg “dumbo” and publicly displaying “any effigy” of Svedberg.)

Logic demands that when determining whether an expression constitutes fighting words, the age of the addressee must be taken into account. No one would argue that a different reaction is likely if a thirteen-year-old boy and a seventy-five-year-old man are confronted with identical fighting words....

The judge in the instant case did not err when he accepted evidence regarding Stamness’ taunts, threats including a threat to kill, and the public display of snow effigies which he concluded were constructed to harass Svedberg. In this context, when delivered to a fourteen-year-old, these actions when taken as a whole constitute fighting words, and are therefore unprotected by the First Amendment. Consequently, Stamness’ argument that he was engaged in protected activity fails.

Two concurring judges reasoned that the conduct, in context, was not fighting words but threatening: “‘Pure speech’ and expressive conduct that accompany or follow a physical threat can be, as a matter of fact, part of the threatening conduct.” The concurring opinion stressed that, among other things, Stamness’s conduct “has ... resulted in threats to the physical safety of Christian and the incessant teasing and harassing conduct has left Christian afraid to go to school, a completely unacceptable situation. The testimony also indicates that Christian suffers from depression as a result and has made suicidal statements.”

One judge dissented, reasoning that much of the speech was neither fighting words nor threats:

This case tells a sad tale of parents who failed to parent and school administrators who failed to administer. As a result, a child who should have been disciplined at home and at school, instead, was restrained by a district court from saying “Dumbo” to another child, building snowmen with big ears, and threatening and harassing the other child. He faces up to one year in prison if he violates the restraining order....

I do not disagree that context is important in looking at whether words are fighting words and that ordinary teenage children may react differently than older, ordinary folks. But I cannot agree that given the context of this case, that erecting three snowmen with big ears and calling someone “Dumbo” can be constitutionally prohibited by a court. I am sure that the derisive name, “Dumbo,” and the snowmen with big ears caused Christian to suffer humiliation and pain and embarrassment. What they did not cause and what they were not likely to cause was the risk of an immediate breach of the peace.

I have no difficulty at all agreeing with the proposition that a threat of violence is not protected speech. I have greater difficulty taking seriously the utterance of an insensitive, teenage clod, a type my children would have described as a “meanie,” especially in the context of this case. Anthony did not engage in any pushing, shoving, hitting, punching, slapping, tripping, brandishing of arms, or any other physical bullying. With the exception of the one occasion, he did not make any verbal threats. Hyperbole and bluster do not constitute a “true” threat. Anthony simply did not engage in any discernible pattern of threatening behavior. Instead, he cruelly made fun of Christian by calling him “Dumbo” and by building three snowmen. Not the stuff that violence is made of. But, even so, I might not object if the restraining order only forbade threats of violence. It goes much farther than that....

This case cries for the exercise of parental responsibility and school responsibility. It goes without saying that parents and school authorities have considerable power to control children. Rather than encourage the exercise of that control, the court steps into the breach. I think that is a mistake and that “[p]arents should be discouraged from resorting to the courts to resolve ordinary problems of daily living.” ...

Compare Anonymous v. Anonymous (N.Y. Sup. Ct. 2010) and Fisher v. Johnson, 1992 WL 83309 (Minn. Ct. App. Apr. 28). Anonymous concludes that “hiring of a professional, licensed private investigator in a matrimonial action to gather evidence [of a spouse's infidelity] is for a proper and legitimate purpose,” and doesn’t constitute criminal harassment, criminal stalking, or conduct that justifies the issuance of a restraining order. (Let’s focus here on conduct that consists just of following and photography, and doesn’t include breaking into people’s homes, tapping their phone lines, hacking their computers, pretending to be someone else in order to get confidential information from banks or phone companies, or other conduct that is independently criminal.)

Fisher, on the other hand, upholds a restraining order against a mother who was following her daughter, “presumably to gather evidence of alcohol use in an effort to win custody of one or all of Fisher’s children.” Such conduct, the court held, was an “intentional violation of privacy” and a violation of the state statute, which justified the issuance of a restraining order that would prevent future such behavior. Nothing in the opinion suggested that plaintiff reasonably feared a violent attack from her mother (though there had been “alleg[ations of] various violent confrontations,” it was the invasion of privacy and not any threat that was the basis for the decision).

Let’s assume that both decisions are consistent with the relevant state statutes (which are worded differently). My question: What should be the proper rule in cases such as this? One can imagine a wide range of other such situations as well, such as a father having his child’s lover followed to see whether the lover is lying about various things, an investigative reporter following someone who he suspects is engaged in some sort of fraud, a lawyer hiring a private investigator to follow a client’s adversary to see whether the adversary is lying about being badly injured, and so on?

Again, please assume that all we have is following (perhaps coupled with asking questions of motel clerks, bartenders, and so on), not break-ins and the like, and that the following is not seen as threatening violence, either because the target was unaware that he or she was being followed, or because the target knows the follower and recognizes that the follower is looking for information, not an opportunity for an attack.

ABC News reports:

Suicide bombers killed 21 people [and wounded at least 100] in attacks on three churches in Nigeria during Sunday services, exacerbating religious tensions in a West African nation that is almost evenly divided between Muslims and Christians....

It was the third Sunday in a row that deadly attacks have been carried out against Christian churches in northern Nigeria. No one immediately claimed responsibility for the latest one, but suspicion fell on the radical Islamist sect Boko Haram because it took responsibility for the two earlier weekend assaults.

Boko Haram is waging an increasingly bloody fight with security agencies and the public in Nigeria. More than 560 people have been killed in violence blamed on the sect this year alone, according to an Associated Press count....

Atrocity has, unsurprisingly, begun to lead to atrocity, though fortunately at this point at a smaller scale, and apparently just beginning (which suggests that it can more easily be stopped); the Christian Science Monitor reports:

Frustrated with the government’s inability to stop a string of such attacks in recent months, some Christians responded today with reprisals, killing at least 7 more people....

Until today, Christians living in the predominately-Muslim north have mostly resisted being provoked to violence, responding instead with calls on the government to suppress Boko Haram and reestablish security. Today’s retaliation from some Christians is raising concerns that a cycle of religious violence could start in Nigeria, Africa’s most populous nation.

Northland Family Planning Clinic v. Center for Bio-Ethical Reform (C.D. Cal. June 15, 2012) rejected a copyright claim, finding (I think correctly) that defendant’s use was a fair use as a matter of law.

Northland Family Planning Clinic created a video (apparently this one) titled “Every Day, Good Women Choose Abortion,” which, true to its title, aimed to tell women that getting an abortion is a decision that good women can and do make. Defendants created several videos that included several verbatim segments of the Good Women Choose Abortion video, interspersed with graphic imagery of abortions and, in some versions, some commentary, e.g., a quote from George Orwell. (The latest version, called the CBR II video by the opinion, is apparently here.) Plaintiffs sued, claiming copyright infringement. Defendants argued the use was a fair use, and the court agreed. An excerpt, though please read the whole opinion (which is pretty readable) for the details:

In this case, the balance of the [17 U.S.C. § 107] factors weighs in favor of finding fair use. While the accused works have some commercial use, their transformative character [as criticism of the original] substantially eclipses that consideration. Thus, the first factor tips in favor of Defendants. Because the Northland Video is, at least in part, a creative work, the second factor militates in favor of Northland. The third factor weighs in favor of Defendants because they did not use an excessive amount of the Northland Video to create their parody, in light of the Fisher factors [which state that parodies and similar critical works are generally entitled to use substantial portion of the original in order to comment on it -EV].

Finally, the fourth factor also weighs in favor of Defendants because the accused Videos did not create a cognizable market injury to the Northland Video. Though Northland many have suffered pecuniary or reputational losses as a result of the accused Videos, those injuries are not recognized under the Copyright Act. On balance, Defendants’ use of the Northland Video was fair. [Remainder of text moved: -EV] Under the “market effect” factor, the Court focuses on the extent to which the Defendants’ work usurps the potential market for the original or its derivatives. It is not relevant that a use may damage the original’s value through criticism. Courts must distinguish between “biting criticism that merely suppresses demand and copyright infringement, which usurps it.” ... In this case, the harm Northland claims to suffer is not cognizable because it stems from an “aim at garroting the original,” not a usurpation of the original’s market. Northland asserts that the accused Videos have diminished the value of the Northland Video and have terminated all conversations with potential licensees. While this is no phantom injury, it is not recognized by the Copyright Act. Campbell v. Acuff-Rose, 510 U.S. at 591-92 (“We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing theater review, kills the demand for the original, it does not produce a harm cognizable under the Copyright Act.”) Furthermore, it is unfathomable to think that the accused Videos are a market substitute for the Northland Video. The purposes and messages of the two are diametrically opposite.

The one slight weakness of the opinion, I think, is in its treatment of the defendant’s video as “parody,” coupled with the conclusion that “for purposes of copyright law, humor is not a necessary element of parody” (and neither is even an attempt at humor). This is understandable, given that most of the recent cases on the commentary/criticism branch of fair use have involved parodies, including Campbell v. Acuff-Rose Music Inc. (1994), the leading Supreme Court case on the subject. But it still adds an unnecessary convolution, it seems to me.

Copyright law has long recognized that commentary on a work and criticism of the work must generally be required to include substantial portions of the work being commented on or criticized, so that the reader can understand the point the commenter or critic is trying to make, especially given that commentary and criticism (unlike, say, a direct copy or a translation) are unlikely to compete with the original work or even with adaptations of the original work that are licensed by the copyright owner. When Congress codified the fair use defense in 1976, it specifically gave “criticism” and “comment” as examples of uses that were especially likely to be fair. Campbell and other cases then concluded that parody was a fair use, because it was a form of criticism or commentary. “Like less ostensibly humorous forms of criticism, [parody] can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107.”

So the most straightforward way of thinking about this, I think, is that (1) this is a “criticism” / “comment” case, (2) the parody cases are useful precedents because they too are “criticism” / “comment” cases, and (3) the lack of humor in this case doesn’t keep the parodies from being good analogies. Calling this is a parody case but then saying that parody need to be an attempt at humor needlessly departs from the normal usage of “parody,” and makes the court’s argument seem less persuasive than it could be. But in any event, whether we call this a criticism/comment case or a nonhumorous parody case, the court’s fair use analysis is quite correct.

It looks to me that there is only one case undecided from the Supreme Court’s December sitting — First American Financial Corp v. Edwards — and only one Justice without a majority opinion assignment: Justice Thomas. That suggests that the majority opinion was at least initially assigned to Justice Thomas. The case involves whether the purchaser of real estate settlement services had Article III standing to sue for an alleged violation of the Real Estate Settlement Procedures Act that the petitioner argues did not affect the services’ price or quality.

Even if I’m right  so far, it’s been long enough since argument that there’s a reasonable chance that something unusual has happened–i.e., that Justice Thomas has lost the majority and is writing only for a plurality or perhaps even writing a dissent. Mind you, my predictions have generally been no more accurate than the Magic 8-Ball‘s, and I suspect this case will be no different.

One alternative possibility I have heard is that Justice Thomas was assigned the majority opinion in yesterday’s Williams v. Illinois but lost it, and he did have a separate opinion in that case. But because Justice Thomas’s views on the Confrontation Clause have long been a bit different from his colleagues–witness his lone concurrence in the judgment/dissent in Davis v. Washington–I doubt he would have been assigned that opinion.

What do you think?