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Friday, November 30, 2007

Fourth Amendment Protection in Text Pager Messages: The Ninth Circuit recently held oral argument in a fascinating case on how the Fourth Amendment protects messages sent and received via pagers. The name of the case is United States v. McCreary, and I have posted the brief for the defense here and the brief for the United States here. You can listen to the audio of the oral argument from mid-October before Judges Hug, W. Fletcher, and Clifton from this link. This potentially is a very important case, so I thought I would blog some relatively detailed thoughts about it. Given the usual pace of such things, the opinion probably will be published in a month or two.

  This appeal involves a string of bank robberies McCreary committed in 2002 along with several co-conspirators. Members of the group communicated with each other largely using MCI/Skytel text pagers. The pagers could send and receive messages in various different ways: first, you could enter in the pin # of the pager from another pager and then type in the message; second, you could go to Skytel's website, enter in the pin, and then send a message over the website; and fourth, you could send an e-mail to the PIN number of the text pager at the "skytel.com" domain. At least at the time, in 2002, MCI/Skytel kept records of all messages sent through its pager system.

  Investigators found out about the group's use of MCI/Skytel pagers and knew several of the pin numbers, so they issued subpoenas to get the records of the calls and the text of the messages sent and received. MCI/Skytel returned records including the actual texts of the pager messages. (I found the record a little unclear here, but that's the basic idea.) The text pager messages proved very helpful to the prosecution, as the members of the conspiracy were very open about what they were doing in their pager messages.

  The legal question in United States v. McCreary is whether the government violated McCreary's Fourth Amendment rights by obtaining the text of the pager messages using a subpoena instead of a search warrant. This big question in turn breaks down into three distinct questions. First, does the legitimate user of a text pager system generally have a Fourth Amendment reasonable expectation of privacy in the contents of his messages? Second, if so, do the facts of McCreary's usage of the pager system fall within that general rule of Fourth Amendment protection? And third, if the Fourth Amendment protects the pager messages, did the subpoena violate the Fourth Amendment?

  Let's take these questions in turn. As to the first question, I think the best answer is yes: the legitimate user of a text pager system generally will have Fourth Amendment protection in the contents of his messages. There are a bunch of reasons why, but the best doctrinal reason is explained in what I wrote on this topic in the forthcoming edition of LaFave, Israel, King & Kerr, Criminal Procedure Ch. § 4.3(c) (3d Ed. forthcoming Jan. 2008). The issue was Fourth Amendment protection in text messages and post-cut-through dialed digits — basically, communications you enter using a telephone or other keypad that are contents rather than dialing of numbers. The same analysis seems to apply to text pager messages.

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Salt Limits Sought by CSPI:

This past week, the Food & Drug Administration held a hearing on whether to regulate salt as a food additive under federal law. The hearing was held in response to a petition from the Center for Science in the Public Interest. The Washington Post reports:

A consumer group prodded the Food and Drug Administration yesterday to regulate salt as a food additive, arguing that excessive salt consumption by Americans may be responsible for more than 100,000 deaths a year.

The government has long placed salt in a "generally recognized as safe" or GRAS category, which grandfathers in a huge list of familiar food ingredients. But in an FDA hearing yesterday, the Center for Science in the Public Interest (CSPI) urged the agency to enforce tougher regulations for sodium.

Doing so "lays the foundation for saving tens of thousands of lives per year," said CSPI Director Michael Jacobson in an interview after the hearing. It "just has tremendous potential to health and to cut health-care costs."

"After 25 years of inactivity, the FDA is taking the salt issue seriously," Jacobson said. "They're really gathering information . . . and getting an earful from all sides."

UPDATE: Katharine Van Tassel has more at BioLaw here. Among other things, she ponders whether revoking salt's GRAS status could have implications for sugar.

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Thoughts on Surgery and Recovery:

I have now completed my ankle surgery and am no longer in pain from it. Thanks to all the well-wishers in cyberspace and elsewhere! I face 4-6 weeks of annoying walking on crutches and other recovery issues, but it should eventually all be OK. For the moment, it is still extremely difficult and disorienting not to be able to walk or drive, but I'm sure I'll overcome the problems involved over time, at least well enough to get through the recovery period.

I do have a couple of reflections for people who may be going through similar problems, now or in the future. First, do not imagine that you can get through the first few days after surgery living all by yourself. I foolishly thought that I could, but my doctor and relatives set me straight, and one of my family members generously came to live with me for a few days. Trying to make it on your own right after a serious surgery is actually both foolish and dangerous. Don't try it if you have any choice at all.

Second, this experience has given me a new appreciation for the value of extended families. As a friend from an extended family culture pointed out to me recently, that setup spreads the burden of caring for an invalid over a large number of different relatives who can each pitch in a little. That makes things easier for both the injured person and the caregivers/family members (none of whom face a really severe individual burden).

Obviously, extended families also have significant drawbacks and I'm certainly not advocating that we all return to that lifestyle. However, it's worth noting that the extended families have their advantages as well, and dealing with crises is certainly one of their strengths.

OK, I think that's enough surgery-blogging. I will try to return to more normal blogging topics as soon as my recovery permits.

UPDATE: Some claim that reliance on family members to help you during an illness or other crisis is unlibertarian, and that a true libertarian would rely on the market to solve such problems. See, e.g., here. This view is based on a misunderstanding of libertarianism that portrays it as advocating that all problems be solved by commercial transactions in the market. In reality, libertarians advocate the superiority of the private sector broadly defined over government. That private sector includes families, civil society, and charitable organizations as well as commercial enterprises. In some cases, noncommercial private sector options will be better than commercial ones (as is probably true for my recovery from my current operation). There is nothing unlibertarian about recognizing that reality. Moreover, even where family or charitable organizations will do a better job than for-profit businesses, the latter may still be better than government service providers. If I had no family members to help me in my current situation, I'd much rather rely on a commercial firm to provide the needed services than on a government bureaucracy that has little or no incentive to do a good job and that will not lose profits if it performs poorly.

Related Posts (on one page):

  1. Thoughts on Surgery and Recovery:
  2. Brief Blogging Hiatus:
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Another Titan of the Trial Bar in Trouble:

Overlawyered.com is rounding up news and commentary about the criminal indictment of noted plaintiffs' attorney Richard Scruggs. Scruggs is not the only high-profile plaintiffs' lawyer under siege. Earlier this year, class action maven William Lerach pled guilty to a federal conspiracy charge.

Meanwhile, it seems there's a new ATLA that's being challenged by the old ATLA.

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Judicial Trivia:

In honor of Judge Alex Kozinski becoming the new chief judge of the Ninth Circuit, there is a U.S. Court of Appeals Chief Judge trivia contest at How Appealing.

UPDATE: Here are the answers to questions one and three, question two, and question four.

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Ron Paul versus Barack Obama:

Along with many others, I've criticized Ron Paul for not renouncing support from assorted loonies. However, at least Paul has not directly solicited their support (update: as a commenter points out, he does, however, appear regularly on "Truther" Alex Jones's radio show). By contrast, "Obama paid his respects to one of Harlem's top powerbrokers - Reverend Al Sharpton, who says he hasn't decided who he is supporting, but the meeting sent a warning to Hillary Clinton that Harlem could be up for grabs." So long as it's considered acceptable for "mainstream" candidates to actually solicit support from the likes of Sharpton, and for that matter Giuliani supporter Pat Robertson, it gives Paul supporters good reason to question why their candidate is receiving such scrutiny for merely refusing to screen supporters. Apparently, if dangerous fringe demagogues have a sufficiently large political constituency, anything goes. (In my own case, I merely pointed out that the Paul campaign's refusal to disassociate itself from fringe supporters discourages me from supporting him as a protest candidate.)

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Thursday, November 29, 2007

Glenn Reynolds on Ron Paul:

He's just terrible, even when -- which is often, once he's off the subject of the war -- I agree with him. His voice is too high, he can't remember who the Kurds are, and he often comes off like a crazy old man in a bus station.

But that's good news, in a way. Paul's doing better than anyone expected. It's abundantly clear that he's not doing it on charisma and rhetorical skill. Which means that libertarian ideas are actually appealing, since Ron Paul isn't. Paul's flaws as a vessel for those ideas prove the ideas' appeal. If they sell with him as the pitchman, they must be really resonating. I suspect Paul himself would agree with this analysis. Er, except maybe the bus station part.

Heh.

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The Rosenkranz Amendment on Foreign Law:

My post on a proposal by Georgetown law professor Nick Rosenkranz for a constitutional amendment barring the use of foreign law in constitutional interpretation prompted extensive comment. The post was based on a presentation Prof. Rosenkranz made on a panel at the Federalist Society's annual lawyer's conference. Audio and video of the panel are now available here.

To recap the argument, Prof. Rosenkranz proposed a consitutional amendment stating that foreign law should not be used in constitutional interpretation. To be clear on what this proposal entails, it would not bar examination of historical texts, even those from abroad (such as pre-ratification English common law court decisions, Blackstone, etc.) that may help elucidate the meaning of constitutional provisions. It would, however, preclude judges from looking to contemporary sources of foreign law when seeking to discern the meaning of constitutional text. This would not be a new rule of constitutional interpretation, Prof. Rosenkranz argues, but a restatement of the original understanding. As he explains in this paper, "the Constitution itself ultimately refutes the notion that it should be interpreted by reference to the law of other states." Like the 9th and 11th Amendments, it would be a restatement of an interpretive rule that had been implicit in the document. However much I am suspicious of constitutional amendments, I think the underlying arguments are important and worth serious discussion.

I should also note that Prof. Rosenkranz was joined on the panel panel by his colleague Vicki Jackson, Yale's Akhil Amar, and the Honorable Frank Easterbrook. All gave interesting remarks, so the whole panel is worth watching (or podcasting).

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Debating Crawford and Voter ID:

PENNumbra, the on-line supplement of the University of Pennsylvania Law Review, has posted a debate between Bradley Smith and Ed Foley on voter ID requirements. Later this term, the Supreme Court will hear oral arguments in Crawford v. Marion County Election Board, a constitutional challenge to Indiana's particularly stringent voter ID requirement.

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UNRWA and Palestinian Suffering

November 29 is the United Nations' "International Day of Solidarity with the Palestinian People." It occurs on the anniversary of the 1947 date that the United Nations voted to partition the British Mandate of Palestine between Jews and Arabs. Many Palestinians and other Arabs rejected the UN partition, and started a war to exterminate the infant state of Israel a few months later. So by choosing November 29 as Palestinian day, the United Nations is in effect rewarding the aggressors who refused to comply with the UN plan. A much better date for the United Nations to acknowledge the suffering of the Palestinian people would be December 8, the anniversary of the 1949 creation of the organization that, for over half a century, has done more than anyone to immiserate the Palestinian people. That organization is UNRWA, the United Nations Relief and Works Agency for Palestine Refugees in the Near East.

That there is 21st-century refugee problem from a war that ended in 1949 is primarily because of UNRWA’s decision to maximize Palestinian suffering for political advantage.

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Wednesday, November 28, 2007

The Peevyhouse Farm:

A classic Contracts law case is that of Peevyhouse v. Garland Coal. I was recently reading Judith Maute's article, The Unearthed Facts of Peevyhouse v. Garland Coal & Mining Co. from the Contracts Stories books. Maute provides a url for the Google Earth picture of the Peevyhouse Farm. Cool.


The John G. Roberts Umpire Watch: Is Chief Justice John Roberts an "umpire," a "servant of the law" who merely "applies the law" rather than "makes the law" to his personal preferences? Or is he a political conservative who will always vote for the conservative cause in an ideologically-charged case? In his confirmation hearings, Roberts expressed hope that he would be an umpire. In his cases Last Term, however, Roberts tended to vote consistently for the conservative side.

  In light of the uncertainty, I propose a new feature here at the Volokh Conspiracy: The John G. Roberts Umpire Watch. When a new decision comes down, we'll make a judgment call about whether it was one of the Court's ideologically-charged cases. (This will require umpire-like judgment, perhaps, but I think we can probably identify most of the cases relatively straighforwardly based on how most of the Justices voted.) If it was, then we'll classify Roberts' vote as either politically conservative or politically liberal.

  Then, at the end of the Term, we'll tally up the numbers. If we see votes on both sides, it will support the case that Roberts is an "umpire." Someone truly following principle will go wherever that principle will take him, and that should led to mixed views from a political standpoint. On the other hand, if all the votes end up being conservative, that will support the notion that Roberts is voting to make the law to shape his personal preferences rather than merely following it.

  I should add: Yes, of course, this kind of vote-tallying is imperfect. There are some circumstances in which a neutral umpire would always vote a particular way. I'm reminded of the pro se appellant who argued that the trial judge was obviously biased: after all, the judge had denied 100% of his motions! Still, I think that's less likely given the wide mix of cases the court hears. Even if a particular legal principle has a political valence, the mix of cases on the Court's docket is so diverse that few principles explain more than one or two votes. Given that, I think the tally should give us interesting insights into how Chief Justice Roberts approaches his job.
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ABA Journal Top 100 Law Blogs List:

I'm pleased to say that we are on it, in the academic law blogs category. If you'd like to vote for your favorite law blogs, please go there (as well as to other categories, such as the general law blogs category, the political law blogs category, and the court-focused law blogs category. The site reports that "You may vote for as many blawgs as you wish, but you can vote for any particular blawg only once"; I've voted for several.

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Unanimity and the Roberts Court: Here's an interesting discussion on that topic with Jeff Rosen, Kathleen Sullivan, Doug Kmiec, Ken Starr, and Vikram Amar. (via Howard) A few thoughts in response:

  First, I don't agree that we have an unusually divided court. I think the current Supreme Court is less divided than the Court has been at most times in its history. What's unusual about the current Court, from a historical perspective, is that it pretty much only takes cases when there is a clear circuit split. That means the Justices tend to take technical cases that are very hard, rather than grand questions of the direction of constitutional law. It's a pretty different docket today than you had 30 or 50 years ago. This magnifies divisions, as two people who basically agree on a topic can always disagree on particulars.

  Second, I think Roberts' interest in unanimity mostly reflected his interest in keeping the role of the Supreme Court fairly narrow. Roberts doesn't want the Supreme Court to make enormous bold leaps, and unanimous decisions are usually decisions that don't rock the boat. As you get to a more divided Court, the chances of bold leaps tends to increase. So Roberts may have been thinking that he could limit the power of the Court by pushing the Justices to adopt narrower, unanimous ways of deciding cases.

  Finally, I think the recent frustration apparent among the four liberal Justices is partly the result of Roberts being much more party-line than many expected. Roberts cultivated an image as the principled minimalist, but last Term he consistently voted in a conservative direction. If a coin flip always comes up heads, after a while you're gonna wonder about the coin. I would guess the liberal Justices began to think they'd been "had," and their frustration at least partially reflects that.
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State Judge Apparently Demands That YouTube Take Down a Video of His Campaign Speech:

Doug Clark of the Greensboro News-Record reports:

Douglas McCullough is a judge on the N.C. Court of Appeals and an announced candidate for re-election in 2008. He's a Republican, as he makes clear when speaking to Republican audiences.

One such occasion was Oct. 20 at Lake Junaluska in Haywood County. A video at McCullough's campaign Web site captures his remarks.

He describes himself and two other candidates -- Supreme Court Justice Bob Edmunds and Court of Appeals Judge John Tyson, also Republicans -- as EMT, a team needed to rescue the judiciary.

No problem with that.

Then he says Edmunds' re-election is especially important because of legislative redistricting, recounting how Democratic gerrymandering has kept Republicans in the minority in the state House of Representatives. After the next redistricting in 2011, a challenge is sure to go to the Supreme Court, McCullough says, strongly implying that Republicans will get a better deal if Edmunds is on the bench....

Clark argues the statements were improper; but it's hard to tell exactly what the judge said, because the video has been taken down from the Web site, and the judge has also apparently demanded that YouTube take down a copy that was posted there. The YouTube page pointed to by Clark reports, "This video is no longer available due to a copyright claim by a third party"; my guess is that the claim was filed by the judge or someone working with the judge (for instance, the videographer used by the Republican group to which the judge was speaking, who likely would not assert his own copyright if it the judge hadn't asked for it).

This takedown strikes me as quite troublesome: The posting of the video seems very likely to be fair use, because it was for purposes of news reporting and political commentary, and because it was highly unlikely to at all affect the market for the video (since the market likely didn't exist). More broadly, the judge is hiding important information from the public, information that he shouldn't be trying to conceal even if copyright law allowed such concealment. If anyone has a copy of the video and can point me to it, or e-mail it to me, I'd love to see it, and post it if it strikes me as newsworthy.

Thanks to my fellow lawprof Michael Kent Curtis for pointing out this story.

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Inadvertently Funny Headline:

"WJC President Calls on Hungarian Prime Minister to Reign in Extreme Right." Composed by the World Jewish Congress, and distributed via PR Newswire to various other sites.

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Fun Geography Game:

Here.

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Tuesday, November 27, 2007

The Unknown Unknowns: Over at Balkinization, Marty Lederman has an interesting post on trying to understand FISA based on the public record.
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Subpoena Ruled Unconstitutional Because Some Bloggers Are Really Freaked Out By the Bush Administration: Here's an excerpt from Magistrate Judge Stephen Crocker's new ruling that the First Amendment doesn't let criminal investigators issue a subpoena to people who purchased items from a person charged with tax evasion. The government apparently wanted the testimony so individuals could testify that they really did pay for the items, thus proving the income required. Why did the First Amendment block the subpeona? The person charged with tax evasion sold books, so the subpoenas are for book purchasing, and DOJ is part of the Bush Administration, and geez, we all know how some people like totally lose it about that kind of stuff:
  In this era of public apprehension about the scope of the USAPATRIOT Act, the FBI’s (now-retired) "Carnivore" Internet search program, and more recent highly-publicized admissions about political litmus tests at the Department of Justice, rational book buyers would have a non-speculative basis to fear that federal prosecutors and law enforcement agents have a secondary political agenda that could come into play when an opportunity presented itself. Undoubtedly a measurable percentage of people who draw such conclusions would abandon online book purchases in order to avoid the possibility of ending up on some sort of perceived "enemies list."
  [FOOTNOTE: I am not finding that such fears are well-founded, but neither can I find them completely speculative or irrational. Quite apart from any book buyer's personal fear of federal apparatchiks or black helicopters is the more commonly shared notion that living in the land of the free means that it's none of the government’s business what books people are reading.]
  Taken a step further, if word were to spread over the Net — and it would — that the FBI and the IRS had demanded and received Amazon’s list of customers and their personal purchases, the chilling effect on expressive e-commerce would frost keyboards across America. Fiery rhetoric quickly would follow and the nuances of the subpoena (as actually written and served) would be lost as the cyberdebate roiled itself to a furious boil. One might ask whether this court should concern itself with blogger outrage disproportionate to the government’s actual demand of Amazon. The logical answer is yes, it should: well-founded or not, rumors of an Orwellian federal criminal investigation into the reading habits of Amazon’s customers could frighten countless potential customers into canceling planned online book purchases, now and perhaps forever.
  I just love the line, "the chilling effect on expressive e-commerce would frost keyboards across America", immediately followed by the warning, "Fiery rhetoric quickly would follow." Yeah, always gotta worry about that fiery rhetoric — it can pop up any time, really. In terms of the law, here's what I don't get, or rather, here's one of the several things I don't get: If public misunderstanding of Judge Crocker's decision makes the otherwise constitutional subpoena unconstitutional, can't Judge Crocker write his opinion in a calming and soothing way to make the subpoena constitutional? Or are bloggers and their fiery rhetoric really that incorrigible?

  UPDATE: Commenter Matt Bruce asks a good question: "Wouldn't the fiery rhetoric just melt the frost off the keyboards?"
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Apochiefosis:

My former boss, Judge Kozinski, is becoming the Ninth Circuit's Chief Judge this Dec. 1. "The chief judge of the circuit assumes the position based on seniority. The chief judge is the judge in regular active service who is senior in commission of those judges who are (1) 64 years of age or under; (2) have served for one year or more as a circuit judge; and (3) have not served previously as chief judge. Judge Kozinski also believes that looks count, though he can provide no support for that proposition."

Judge Kozinski is sentenced to serve a seven-year term, or 84 months, as we former federal clerks like to say.

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Pennsylvania Supreme Court Treats Second Amendment as Involving an Individual Right:

D'Allesandro v. Pennsylvania State Police involves the question whether hearsay rules apply to administrative proceedings governing the issuance of concealed carry permits. Here's the brief discussion of the Second Amendment (paragraph break added):

[T]his Court has stated that an individual should not be faced with sacrificing “‘inherent and indefeasible rights’” for the sake of prosecutorial convenience in the administrative setting. A.Y., 641 A.2d at 1150. In A.Y., an individual sought removal of her name from the Statewide Child Line and Abuse Registry as a suspected child abuser following an administrative determination based solely on hearsay evidence. Noting the common evidentiary problems accompanying child abuse cases and the serious consequences for an individual labeled as a suspected child abuser, this Court adopted the evidentiary guidelines in Rule 807 of the Uniform Rules of Evidence for use in administrative proceedings in suspected child abuse cases, guidelines which are similar to the standard later adopted at 42 Pa.C.S. § 5985.1 by the General Assembly for use in criminal proceedings involving child abuse. Id. at 1152.

The present matter involves appellee’s right to bear arms, which implicates the Second Amendment of the United States Constitution, U.S. CONST. amend. II. (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”). It has been the practice of Pennsylvania courts to afford heightened evidentiary protection of “inherent and indefeasible rights” in administrative proceedings.

For the purposes of this opinion, we assume such a right is implicated, and thus, we will evaluate a denial of a license to carry a firearm according to the standard hearsay rules governing more formal judicial proceedings....

The opinion is not entirely clear here on many points, but the one thing it pretty clear does do is treat the right to bear arms as individual. I don't think the court is treating the Second Amendment as binding in these situations -- among other things, the court would then have had to discuss whether the right is incorporated against the states via the Fourteenth Amendment. Nor is it expressly saying the right is "inherent and indefeasible," since it's just assuming this for the purposes of this opinion.

But the court is saying that cases involving individual gun rights "implicate" the Second Amendment, which requires a judgment that the Second Amendment is about individual rights, not just a state's right or a right belonging to some state-run National Guard-type organization. In this, the court seems to be joining several state court systems that have held the same, and opposing slightly more that have held the opposite. From the D.C. Circuit's decision in Parker v. D.C.:

Of the state appellate courts that have examined the question, at least seven have held that the Second Amendment protects an individual right, see Hilberg v. F.W. Woolworth Co., 761 P.2d 236, 240 (Colo. Ct. App. 1988); Brewer v. Commonwealth, 206 S.W.3d 343, 347 & n.5 (Ky. 2006); State v. Blanchard, 776 So. 2d 1165, 1168 (La. 2001); State v. Nickerson, 126 Mont. 157, 247 P.2d 188, 192 (Mont. 1952); Stillwell v. Stillwell, 2001 Tenn. App. LEXIS 562, 2001 WL 862620, at *4 (Tenn. Ct. App. July 30, 2001); State v. Anderson, 2000 Tenn. Crim. App. LEXIS 60, 2000 WL 122218, at *7 n.3 (Tenn. Crim. App. Jan. 26, 2000); State v. Williams, 158 Wn.2d 904, 148 P.3d 993, 998 (Wash. 2006); Rohrbaugh v. State, 216 W. Va. 298, 607 S.E.2d 404, 412 (W. Va. 2004), whereas at least ten state appellate courts (including the District of Columbia) have endorsed the collective right position, see United States v. Sandidge, 520 A.2d 1057, 1058 (D.C. 1987); Commonwealth v. Davis, 369 Mass. 886, 343 N.E.2d 847, 850 (Mass. 1976); In re Atkinson, 291 N.W.2d 396, 398 n.1 (Minn. 1980); Harris v. State, 83 Nev. 404, 432 P.2d 929, 930 (Nev. 1967); Burton v. Sills, 53 N.J. 86, 248 A.2d 521, 526 (N.J. 1968); In re Cassidy, 268 A.D. 282, 51 N.Y.S.2d 202, 205 (N.Y. App. Div. 1944); State v. Fennell, 95 N.C. App. 140, 382 S.E.2d 231, 232 (N.C. Ct. App. 1989); Mosher v. City of Dayton, 48 Ohio St. 2d 243, 358 N.E.2d 540, 543 (Ohio 1976); Masters v. State, 653 S.W.2d 944, 945 (Tex. App. 1983); State v. Vlacil, 645 P.2d 677, 679 (Utah 1982); see also Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 470 N.E.2d 266, 269, 83 Ill. Dec. 308 (Ill. 1984) (stating in dicta that Second Amendment protects collective right).

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Can the First Amendment Defeat A Grand Jury Subpoena?: Here's an interesting report:
  Federal prosecutors have withdrawn a subpoena seeking the identities of thousands of people who bought used books through online retailer Amazon.com Inc. (AMZN), newly unsealed court records show.
  The withdrawal came after a judge ruled the customers have a First Amendment right to keep their reading habits from the government.
  "The (subpoena's) chilling effect on expressive e-commerce would frost keyboards across America," U.S. Magistrate Judge Stephen Crocker wrote in a June ruling.
  "Well-founded or not, rumors of an Orwellian federal criminal investigation into the reading habits of Amazon's customers could frighten countless potential customers into canceling planned online book purchases," the judge wrote in a ruling he unsealed last week.
A bit about the criminal case that led to the subpeona:
  Federal prosecutors issued the subpoena last year as part of a grand jury investigation into a former Madison official who was a prolific seller of used books on Amazon.com. They were looking for buyers who could be witnesses in the case.
  The official, Robert D'Angelo, was indicted last month on fraud, money laundering and tax evasion charges. Prosecutors said he ran a used book business out of his city office and did not report the income. He has pleaded not guilty.
  D'Angelo sold books through the Amazon Marketplace feature, and buyers paid Amazon, which took a commission.
  "We didn't care about the content of what anybody read. We just wanted to know what these business transactions were," prosecutor Vaudreuil said Tuesday. "These were simply business records we were seeking to prove the case of fraud and tax crimes against Mr. D'Angelo."
  The initial subpoena sought records of 24,000 transactions dating back to 1999. The company turned over many records but refused to identify the book buyers, citing their First Amendment right to keep their reading choices private.
  This will be celebrated 'round the blogosphere, but at least based on the press story, I don't think I understand the legal argument behind Judge Crocker's decision. True, there are precedents on the books involving First Amendment limitations on civil subpoenas. But Dan Solove's wishes notwithstanding, I don't think I've ever heard of a First Amendment right to anonymity trumping a grand jury subpoena obtained in a criminal case. The general rule is that if the grand jury issues a subpoena, there's no third party right to assert a First Amendment interest of others against the grand jury subpoena. Or so I have always thought.

  To respond to the comments that will be coming: Yes, of course you can try to extend cases and draw analogies to established principles. And yes, it may be consistent with your view of what the law should become, the fundamental truths of the cosmos, etc. My point is only that, at least off the top of my head, I can't think of a court approaching the law this way until Magistrate Judge Crocker's decision. Anyway, I'm sure someone will post the decision, as it sounds like Judge Crocker was quite eager for it to be public.

  UPDATE: The order is there, via commenter Opus. I'll add a new post on it shortly.
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Brief Blogging Hiatus:

I will have a hopefully brief blogging hiatus while I recover from ankle surgery over the next few days. It's a fairly simple operation, but may nonetheless prevent me from blogging for awhile. Back next week, I hope!

Related Posts (on one page):

  1. Thoughts on Surgery and Recovery:
  2. Brief Blogging Hiatus:
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A Surprising Comment For a Libertarian Blog: Once in a while a commenter will criticize a VC post on grounds that it is inconsistent with libertarianism. The argument usually goes something like this: "I am surprised to see Position X at a libertarian blog. Position X is far from the correct libertarian view."

  I find myself puzzled by these sorts of comments. Sure, most of us tend to lean libertarian. We tend to like free markets, and we tend to like limited government. But we're human beings, not robots: We don't get our marching orders from a book or a website that tells us the "correct" way to think.

  To borrow from Holmes (at the risk of annoying David), "The Volokh Conspiracy does not enact Mr. Herbert Spencer's Social Statics." So tell us when we're wrong, and tell us when we're being inconsistent. But no need to tell us when we're not being libertarian.
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Pending Appellate Cases and the CTA-BRIEF Database: A few weeks ago, I blogged about amending the Federal Rules of Appellate Procedure to require appellants to state "questions presented" early on in the appellate process so potential amici and commentators could weigh in. The comment thread suggested that I am pretty much alone in liking the idea.

  Fortunately, I've come across a better-than-expected substitute: Westlaw's CTA-BRIEF database. I don't know how comprehensive it is, and it looks like it takes a few weeks before filed briefs show up in it, but the database lets you run text-searchable queries for appellate briefs citing particular statutes, cases, phrases, or combination thereof. It's a pretty cool service: If you run queries with a date restriction of the last few months you end up with briefs filed in cases not yet decided. Plus, a WESTCLIP request can direct Westlaw to e-mail any briefs that satisfy your query when they enter the database.

  Among other things, this will let me blog about interesting pending cases rather than decisions already out. I hope to have the first such post on a very interesting Ninth Circuit case argued in October about the Fourth Amendment and text messages. Meanwhile, check out the CTA-BRIEF database if you're interested — it's pretty cool.
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Defamation Liability for Disagreements About Political Labeling:

The Canadian case I note below reminded me of U.S. v. Cooper, an 1800 case in which Cooper was convicted under the Sedition Act of libeling then-President Adams.

On its face, the Sedition Act was (as its defenders pointed out) a considerable improvement over the English law of seditious libel; it purported to punish only false statements, and ones that were "malicious" to boot. Even today, factually false statements about particular people (even political leaders) said with knowledge of their falsehood may be punished, potentially even criminally. But in practice the Act ended up being used to punish opinions that judges disagreed with, and not just false factual allegations. Cooper offers a great example. Here's one part of Cooper's allegedly libelous statement: "Our credit was not yet reduced so low as to borrow money at eight per cent. in time of peace, while the unnecessary violence of official expressions might justly have provoked a war." Here's the relevant part of Justice Chase's instruction to the jury (at the time, judges were expected to express their opinions about the facts in the course of their instructions, though Chase seems to have gone pretty far even by the standards of the time):

The [defendant] states that, under the auspices of the president, “our credit is so low that we are obliged to borrow money at eight per cent. in time of peace.” I cannot suppress my feelings at this gross attack upon the president.... Are we now in time of peace? Is there no war? No hostilities with France? Has she not captured our vessels and plundered us of our property to the amount of millions? Has not the intercourse been prohibited with her? Have we not armed our vessels to defend ourselves, and have we not captured several of her vessels of war?

Although no formal declaration of war has been made, is it not notorious that actual hostilities have taken place? And is this, then, a time of peace? The very expense incurred, which rendered a loan necessary, was in consequence of the conduct of France. The [defendant], therefore, has published an untruth, knowing it to be an untruth.

Whether the time of the "quasi-war" with France was or was not a "time of peace" is not a question of fact; it's a question of opinion -- of how you should define "time of peace" -- and Cooper's readers would have recognized it as such. Even when libel law may properly punish factual falsehoods, it shouldn't let judges or juries proclaim some political characterization of the facts (we're in a time of peace because no war has been declared, even though there are sporadic hostilities; someone who uses lawful means for restricting speech is an enemy of free speech) to be "false."

Likewise, consider another part of Cooper's statement, "Nor were we yet saddled with the expense of a permanent navy, or threatened, under his auspices, with the existence of a standing army." Here's Justice Chase's instruction related to this point:

[T]o assert, as [defendant] has done, that we have a standing army in this country, betrays the most egregious ignorance, or the most wilful intentions to deceive the public.

We have two descriptions of armies in this country -- we have an army which is generally called the Western army, enlisted for five years only -- can this be a standing army? Who raises them? Congress. Who pays them? The people. We have also another army, called the provisional army, which is enlisted during the existence of the war with France -- neither of these can, with any propriety, be called a standing army.

In fact, we cannot have a standing army in this country, the constitution having expressly declared that no appropriation shall be made for the support of an army longer than two years. Therefore, as congress may appropriate money for the support of the army annually, and are obliged to do it only for two years, there can be no standing army in this country until the constitution is first destroyed.

There is no subject on which the people of America feel more alarm, than the establishment of a standing army. Once persuade them that the government is attempting to promote such a measure, and you destroy their confidence in the government. Therefore, to say, that under the auspices of the president, we were saddled with a standing army, was directly calculated to bring him into contempt with the people, and excite their hatred against him.... This publication is evidently intended to mislead the ignorant, and inflame their minds against the president, and to influence their votes on the next election....

Again, the alleged falsehood wasn't related to specific facts (e.g., Adams was paid such-and-such a bribe by so-and-so to authorize certain military expenditures) -- it had to do with the characterization of a certain army as a "standing army." Chase thought this political term ought to be used to mean only certain kinds of forces, just as he thought "time of peace" ought to be used to mean only certain situations; Cooper disagreed. That's a difference of opinion about how to apply political labels -- but Chase's interpretation of the Sedition Act treated the matter as involving a factual falsehood, which could be legally punished.

That's a big potential problem with libel law, a problem that American law has in recent decades has largely avoided. (There are other problems with American libel law, but I set them aside for now.) Unfortunately, Canadian law seems to be slipping into this problem, when criticisms of anti-"hate-speech" activists are involved.

Related Posts (on one page):

  1. Defamation Liability for Disagreements About Political Labeling:
  2. Calling Speech Restrictors "Enemies of Free Speech" Can Now Lead to Legal Liability in Canada:
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Calling Speech Restrictors "Enemies of Free Speech" Can Now Lead to Legal Liability in Canada:

Richard Warman, a lawyer who worked as an investigator for the Canadian Human Rights Commission, often filed complaints against "hate speech" sites — complaints that were generally upheld under Canadian speech restrictions. Fromm, a defender of various Holocaust deniers and anti-Semites, has been publicly condemning Warman for, among other things, being "an enemy of free speech." Warman sued, claiming that these condemnations are defamatory.

Friday, the Ontario Superior Court held for Warman — chiefly on the grounds that because Warman's claims were accepted by the legal system, they couldn't accurately be called an attack on free speech. Thus, for instance:

[25] The implication, as well as the clear of meaning of the words ["an enemy of free speech" and "escalated the war on free speech"], is that the plaintiff is doing something wrong. The comment "Well, see your tax dollars at work" also implies that Mr. Warman misused public funds for this "war on free speech".

[26] The plaintiff was using legal means to complain of speech that he alleged was "hate" speech.

[27] The evidence was that Mr. Warman was successful in both the complaint and a libel action which he instituted.

[28] Freedom of expression is not a right that has no boundaries. These parameters are outlined in various legislative directives and jurisprudence. I find Mr. Fromm has exceeded these. This posting is defamatory.

Likewise, apropos another statement ("Since then, a number of dissidents have been dragged before human rights tribunals, largely through the efforts of CHRC hatchetman Richard Warman"), the court responds:

[32] While opposition to legislation is permitted, it is defamatory to say that Mr. Warman is largely responsible for "dragging" dissidents before the human rights tribunal, when in fact the "dissidents" were disseminating prohibited hate speech. The tribunal upheld the complaint. This posting is also defamatory.

Likewise, here's another statement that the court treated as defamatory and legally punishable:

[48] At the press conference after Mr. Fromm's comments, he introduced three other people who spoke of their "problems with Richard Warman". Mr. Fromm added, after one speaker:
Thank you very much, Jason. So, for posting an opinion, the same sort of opinion that might have appeared in editorial pages in newspapers across this country, Jason and the Northern Alliance, his site has come under attack and people who are just ordinary Canadians find themselves in front of the courts for nothing more serious than expressing their opinion. This is being done with taxpayers' money. I find that reprehensible.

[49] In one posting Mr. Fromm describes Mr. Warman's "campaign of intimidation" recitingvarious actions taken by Mr. Warman. He states that freedom of the Internet was the key issue.

[50] Again Mr. Warman was referred to as acting like a one-man thought police agency.

[51] The plaintiff is accused of using taxpayer money to "restrict freedom of speech" and of refusing "to allow those with differing opinions the right to express their views."

[52] The tone of all these allegations is derisive and holds the plaintiff up to ridicule and contempt. The words themselves and the inferences to be drawn are all defamatory.

Likewise, the court says, "[59] Mr. Warman is criticized for his anti-hate speech stance, and his professionalism and integrity are attacked. This would lead a reasonable reader to conclude that the plaintiff was an ideologue who wanted only to deny freedom of speech to those with whom he disagrees. [60 ]I find this posting defamatory."

* * *

It seems to me that Fromm was simply expressing opinions that the court disapproved of — that people who try to restrict "hate speech" are "enem[ies] of free speech," that people who are punished for hate speech are "dissidents," that people who for ideological reasons use the law to restrict speech they disagree with are ideologues who want only to deny freedom of speech to those with whom they disagree. Who is an "enemy of free speech" obviously turns on the speaker's view of free speech, and the view that he expects his audience to share, or that he wants to persuade his audience to share. Who deserves to be labeled with the generally positive term "dissident" depends on what dissent the speaker believes to be legitimate and morally proper.

Yet the Canadian justice system not only allows the suppression of certain viewpoints, and excludes them from free speech restrictions. With this case, it also tries to deny critics the right to label the speech they support "free speech," and the dissenters they like "dissidents."

The court is insisting that Canadians' speech not only follows the government-approved ideology on the topic of race, ethnicity, and religion (an ideology that I agree with, but that I don't think should be legally coerced). It is also insisting that Canadians' speech follows the government-approved ideology and terminology on the topic of free speech itself.

Some of the other statements come closer to factual falsehood, for instance when Fromm says Warman went after "tax-fighter Richard Kyburz"; a reader may infer that Warman went after Kyburz because of Kyburz's stance on taxes, rather than because of Kyburz's anti-Semitic speech. I'm not sure that even those, in context, should properly be seen as legally punishable. But the court's decision is in any event much broader than these statements.

Related Posts (on one page):

  1. Defamation Liability for Disagreements About Political Labeling:
  2. Calling Speech Restrictors "Enemies of Free Speech" Can Now Lead to Legal Liability in Canada:
41 Comments

Free Online Constitutional Law Treatise, from the Library of Congress:

This is The Constitution of the United States of America, Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States, updated through 2006. Though it has its limitations, it's generally a very useful resource -- and, it seems to me, a highly underpromoted one.

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From "The Death of Environmentalism" to Break Through:

In 2004, environmental consultants Ted Nordhaus and Michael Shellenberger published an essay provocatively called "The Death of Environmentalism." In it, they argued modern environmentalism had played itself out, had become yet another component of interest-group liberalism, and was incapable of addressing climate change and other major contemporary challenges. Coming from within the movement, the essay caused quite a stir within the environmental community and prompted extensive debate about the movement and its future.

Now Nordaus and Shellenberger are back with a book, Break Through: From the Death of Environmenalism to the Politics of Possibility, that expands upon their thesis and attempts to lay out a forward-looking agenda for a new progressive politics that can tackle the environmental challenges of our day. Like their essay, the book is prompting extensive (and much needed) discussion about the future of environmentalism. Environmental law prof Jamison Colburn analyzed the book for Dorf on Law, and my own take can be found in my review in today's WSJ. It concludes:

In an odd way, the doomsaying of the global warmists has had a tonic effect, revealing, nearly 40 years since the first Earth Day, that environmentalism is stuck in a midlife crisis. Messrs. Nordhaus and Shellenberger want desperately to get it unstuck. If heeded, their call for an optimistic outlook--embracing economic dynamism and creative potential--will surely do more for the environment than any U.N. report or Nobel Prize.
The review is somewhat brief, so I'd like to expand on some points, particularly some of my disagreements with the authors.

Overall, I think their critique of the environmental movement, and its obsession with the "politics of limits" and a "doomsday discourse," is important and insightful. They explain how the environmental movement has become, in may respects, just another liberal interest group seeking the attention of the Democratic Party. Greens may score occasional political victories, but most are symbolic. As they argue, today’s environmental movement is fundamentally incapable of mobilizing action sufficient to address major ecological concerns, global warming in particular.

They condemn other environmentalists for ignoring trade-offs, confusing hard choices for “false choices,” and obstructing environmental progress. While most environmental leaders embrace the call for alternative energy sources, others like Robert F. Kennedy Jr. devote their energies to fighting offshore wind power near Hyannisport, dividing the movement and chilling investments in future technologies. As Nordhaus and Shellenberger lament, “when push comes to shove, would-be green developers and entrepreneurs too often find themselves abandoned by the very same environmentalists who advocate such projects in theory. The idea that transforming America’s economy, energy grid, or suburban landscape might require tradeoffs is anathema to many environmentalists” who seem wedded to the idea that there is some potential nirvana over the horizon in which humans live peacefully with no impact on the world around them.

Their project is more ambitious than simply announcing environmentalism's obituary. They want to exhume the corpse and resurrect a new progressive politics to take its place. This is a harder task, and I found this part of the book less satisfying. Nordhaus and Shellenberger wish to see environmentalism reborn into a new, post-materialist progressivism driven by an optimistic, growth-oriented and forward-looking vision of the future, what they call “the politics of possibility.” Such a politics should appeal to Americans’ shared values, rather than parochial interest group resentments, and should recognize that well-intentioned environmental measures may have undesirable effects.

While I liked the book, I am not ready to sign on to all of their prescriptions. Portions of their agenda are sensible -- particularly their call for emphasizing innovation over prescriptive regulation -- but other portions are too lacking in specifics or a bit fanciful for my taste. At one point, Nordhaus and Shellenberger lament that the lack of a “thick” environmental identity comparable to that of conservative evangelicals, and call upon progressives to create “a new web of pre-political associations" to advance their cause, as if such institutions could be created from whole cloth. Yet the institutions of civil society must grow and evolve over time -- and are rarely (if ever) created by design. Governments in particular know far more about how to squelch such institutions with ill-conceived government interventions than how to nurture their growth and success.

My disagreements with Nordhaus and Shellenberger may stem from our competing worldviews. I do not share their progressive political outlook or relatively greater faith in government-led solutions. Of course it is a much easier task to challenge the agenda of others than to construct an alternative of one's own. In any event, Break Through makes an important and provocative contribution to the debate over environmentalism’s future. Nordhaus and Shellenberger's call for an optimistic environmental politics that embraces economic prosperity and humanity’s creative potential is refreshing. It provides the base for a keener shade of green, even if their call for a new progressive politics leaves something to be desired. Environmentalism may be dead; long live environmentalism.

66 Comments

Invitation to Nov. 28 "Stem Cell Century" panel discussion:

I want to invite all VC readers in the Boston area interested in the policy issues surrounding stem cell reserach to a panel discussion of my new book tomorrow, Wednesday, Nov. 28, from 6-7:30 p.m. The event, sponsored by the Harvard Stem Cell Institute and the Harvard Law School's Health Policy Center, will be held at "The Meeting Room," located at 2 Arrow Street in Cambridge, MA, about a block away from Harvard Yard. I'll be speaking about the book, and then commentary will be provided by Professors Kevin Eggan (a well-known Harvard stem cell scientist), Frances Kamm (a philosopher at the Harvard Kennedy School of Government), and Pam Samuelson (an intellectual property expert at Boalt Hall and Harvard Law School). The event is open to the public, so please let any friends or colleagues interested in stem cell research specifically or the interface between law and biotechnology in general know.

Related Posts (on one page):

  1. Invitation to Nov. 28 "Stem Cell Century" panel discussion:
  2. Stem Cell Vote in New Jersey:
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Wash Your Hands!

A history of hand-washing -- and good reason to continue the practice.

29 Comments

A Funny Correction, Related to the Court's New Second Amendment Case,

from a generally reliable and honest online legal news source:

EDITOR'S NOTE: In the first edition, sent this morning, the topic listed as #1 [on which the Supreme Court granted review] was incorrectly labeled as referring to the "Talent Agency Act."

Please disregard this error. The proper topic is in regard to the Second Amendment. We apologize for the error.

I should say that I'm positive there's no political significance to this.

15 Comments

Airport Security in Israel:

I recently blogged about some of the failures of the Transportation Security Administration, the federal bureaucracy charged with ensuring airport security in the United States. It was therefore interesting for me to observe Israeli airport security in action during my recent trip to Israel. Israeli airport security is widely considered the best in the world. There hasn't been a successful hijacking of an airliner originating in Israel since 1969, and you can be quite sure that it's not because the terrorists haven't been trying hard enough.

I noticed two obvious differences between the US and Israeli systems. First, the Israelis forego the stupid TSA ritual of making all passengers remove their shoes. Most of the time, this is just an annoying indignity. In this case, avoiding it was a godsend, since I had a twisted ankle (I later learned that it was fractured) that turned taking my shoes on and off into a mild form of torture. Perhaps taking off shoes really does provide some important security benefit that I'm unaware of. But the fact that the Israelis don't consider it necessary suggests to me that any such benefits of this practice are questionable, at best.

The second big noticeable difference between the two approaches is that the Israelis rely far more on profiling than the TSA does. Even though I doubt that the Israeli security officials singled me out for any special scrutiny, one of them nonetheless asked me 8-10 detailed questions about my background, my reasons for visiting Israel, where I had gone, and so on. The idea is, apparently, to look for inconsistencies and other red flags that might suggest the need for closer scrutiny. Every single passenger at Ben Gurion Airport undergoes similar screening.

What can we learn from the Israeli approach? Obviously, the TSA should be compelled to forego its idiotic shoe procedures. Whether we can adopt the profiling aspect of the Israeli system is much harder to say. Israel has the advantage of having only one major airport. Requiring such individualized screening at the hundreds of major airports in the US would be much more expensive and might significantly slow down air traffic. Moreover, some of the questions the Israeli security people ask would be illegal or politically unfeasible in the US. For example, the official who questioned me asked me several questions about my level of religious observance ("what religious holidays do you celebrate?", "do you celebrate them in a synagogue?", etc.). When I explained that I wasn't religious, the Israeli official said that he wasn't either. Although this didn't happen in my case, the Israelis also engage in extensive ethnic screening, imposing especially strict scrutiny on Arabs and Muslims, including even those who are Israeli citizens; they also scrutinize even non-Arab gentiles more carefully than Jews. Such practices might not be legal in the US, and would certainly come under severe political attack if implemented. In addition, they might alienate some of the minority groups whose support we most need in the War on Terror, sch as American Muslims.

For these reasons, I'm not sure that we can fully adopt the Israeli approach to airport security in the US. Nonetheless, we should at least consider moving in the direction of more individualized screening and (nonracial) profiling, and fewer mindless rituals (such as taking off your shoes) that waste time and money without appreciably increasing security.

Boston Globe columnist Jeff Jacoby has a more detailed description of the Israeli approach here.

173 Comments

Monday, November 26, 2007

Slow Gossip Day:

Mickey Kaus catches the New York Post gossip page passing along this gem:

WHICH single singer/songwriter has a dirty habit of picking up women when he's wasted? He's been spotted stumbling around downtown luring harlots back to his pad.

A single man getting drunk and picking up women? Now that's news.

(I take it that "harlot" is being used as a dysphemism for women who -- like the male singer/songwriter -- are willing to have sex with relative strangers, and not in the sense of prostitute; the "prostitute" meaning seems inconsistent with "luring," and for that matter with the generic term "picking up women," which usually means something other than "picking up prostitutes.")

34 Comments

The Law and Propriety of Posting YouTube Links: In response to yesterday's post including a link to a YouTube clip of a jazz performance, commenter "Siona Sthrunch" contends that such posts violate copyright law; are hypocritical; undermine the credibility of the blog; and even undermine our commitment to the United States Constitution:
  As I've said many times, everyone knows, or should know, that lawyers posting on Volokh are effectively immune from any copyright suit. It's much too expensive to litigate against a bunch of lawyers. Kerr can freely post from now till doomsday and never fear paying any monetary penalties.
  The only "penalty" the blog suffers from its hosting of Kerr's continual copyright infringement (he posts these kinds of videos periodically) is that it weakens the philosophical underpinnings of the blog's stated commitment to the rule of law and of the constitution. Because Kerr and Volokh both financially benefit from copyright enforcement - seeing as how they both have books that they most emphatically do not put in the public domain - this also makes Kerr's copyright infringement fairly hypocritical.
  Is this clear? Even though noone will sue Kerr (or Volokh for that matter), when Volokh turns around and tries to argue that "the First Amendment protects the Phelps" or that "the Second Amendment protects the individual right to bear arms" he loses credibility. If he can fudge on the copyright clause of the constitution to gain readership, why shouldn't he fudge on other aspects?
  So is Strunch correct that I am guilty of "continual copyright infringement"? Is he right that I am a hypocrite because I am an author trying to profit from the sale of copyrighted materials? (Which reminds me, wouldn't a Computer Crime Law casebook make a wonderful Xmas present? Fun for the whole family!!!) And is he right that posting YouTube links "weakens the blog's stated commitment to the constitution"? These are three pretty serious accusations — and ones "Strunch" and others have made before, at least in some form-- so I thought I would take a closer look.

  First, let's examine the question of substantive copyright law. Is it copyright infringement to provide a link to a file hosted on YouTube that is likely an unauthorized copy, and to invite readers to view the file? Copyright is not my area, so maybe my legal analysis is way off. But my sense of the answer is "probably not." The primary issue is liability under the principles of contributory infringement. As the Supreme Court explained in Grokster, "One infringes contributorily by intentionally inducing or encouraging direct infringement." Contributory infringement generally requires (1) knowledge of the infringing activity and (2) a material contribution to the infringement.

  The law here is really murky, in part because there are so few cases (DMCA notice & takedown letters usually address the problem before a lawsuit is filed), but I think I'm probably not liable. First, I don't think a link in this context amounts to a material contribution to the infringement. The file I linked to is very widely and publicly known. If you google the song name, the file is the second link that appears (right after the Wikipedia entry). The clip has been viewed over 125,000 times in the last year. Further, YouTube is one of the most visited sites on the Internet, and everyone knows that you can get music clips there: just go to youtube.com and search for "cantaloupe island" and this clip is the first thing that pops up.

  Given that, I don't think my linking to the file is a "material" contribution to any infringement. Yes, my link singled out the widely known clip for its musical excellence; but I see that as pointing out which of the widely-known clips on YouTube is musically strong, not doing the work of locating and pointing out the infringing clip. Given that, I don't think linking to it materially contributed to any infringement: a YouTube link in this context strikes me as more like the link in Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (C.D.Cal. 2006) than the link in Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999).

  Second, I'm not sure I have the knowledge required for contributory infringement. The cases here are super-murky, but they seem to suggest that "knowledge" is not satisfied by a decent likelihood, but rather appears to require a pretty bright "red flag" showing that it is essentially certain (in light of the uncertainties of ownership, fair use, and the like) that conduct is leading to unlawfully infringing activity. Do I or should I have that?

  Here's my relevant state of mind. First, I'm pretty sure Capitol Record owns the copyright to the clip. When I first saw the clip on YouTube a few months ago, I recognized the performance from the CD I have of One Night With Blue Note (an authorized copy, natch) and figured there must be a DVD out there, too. I then found the DVD and purchased it from Amazon, and indeed can confirm that it's the same performance. I'm also guessing that the posting was not authorized: The file was posted by a user with the screenname "drummer123," who has not posted anything else on YouTube, and I doubt Capitol Records would post a clip in that way.

  I also doubt that most uses of the clip would count as fair use, given that one full song (out of a 10-or-so song DVD) is posted. On the other hand, fair use is an inherently murky four-factor test, and it depends in part on factual settings that I don't know. I don't know how many people are following my link and in what circumstances. My jazz posts usually draw about 2 comments (other than those about copyright infringement), and I don't know how many folks will click on the link and watch enough of the clip to be clearly beyond fair use. As I understand it, I need to know (or being in a position where I should know) that I am actually causing copyright infringement to occur to be liable for contributory infringement. See Perfect 10 v. Amazon, 487 F.3d 701, n.13 (9th Cir. 2007). Is my state of mind enough to establishing the knowledge requirement of contributory infringement liability? I've looked at a bunch of the cases, and I'm not really sure. It might be, but I'm not sure.

  In sum, I think I'm probably legally in the clear because I don't think the link to such a publicly and widely known clip is a material contribution to infringement in those circumstances. And if it is, there's also a debatable issue of if I have the requisite knowledge to be liable. As I said, though, this is not my area. I didn't mean that as false modesty: Seriously, this ain't my area. (I follow criminal copyright, but contributory infringement is an issue of civil copyright liability rather than criminal copyright law.) So if I'm wrong, let me know.

  Finally, am I being hypocritical by posting these links, apart from the legal questions? And what about the VC's commitment to the United States Constitution, and to the Republic for which it stands, E Pluribus Unum? Here, I think I'm in the clear, too. I don't think I'm being hypocritical, as I don't think I'm somehow disrespecting Capitol Records' rights. My post to the YouTube clip included a prominent link to where readers can purchase the DVD, and it highly recommended the DVD, as well. I myself have purchased authorized copies of the music twice: first on CD, and then on DVD. Given that, I don't think I'm being hypocritical by somehow disrespecting the notion that authors and their agents should receive compensation for their works.

  And what about the Constitution, enacted by We the People to form a More Perfect Union? To be candid, I don't see how this issue implicates respect for the Constitution. Yes, the copyright laws were enacted pursuant to the Constitution's grant of authority found in the Copyright Clause. But every federal law was enacted pursuant to some affirmative grant of power found in Article I. (Granted, the courts often don't act like it, but I'm tellin' ya, it's totally true.) So compliance with copyright laws doesn't really raise a question of respect for the Constitution, at least unless we want to take the view that compliance with any federal law raises such a question. In any event, given that I don't think my link violates the copyright laws, I am happy to say that the Constitution is getting my full respect either way.
100 Comments

U.S., S. Ct., L.Ed.: In recent years, courts and treatises have tended to cite U.S. Supreme Court decisions by including references to three different reporters: first, the official Government Printing Office's United States Reports (U.S.); second, West's Supreme Court Reporter (S. Ct.); and third, Michie's Lawyer's Edition (L.Ed.). I was recently working on a forthcoming edition of a treatise, and we followed that convention as well.

  I wonder, though, isn't that becoming a bit outdated? In an era of the web, I think it makes more sense to just include U.S. citations where available (it takes a year or so for them to come out) and cites to the original .pdf slip opinion if it's not. You can easily find these on the web, all for free. And once the official U.S. citation is available, it seems to be what everyone uses. In light of that, I wonder if the extra citations are more trouble than they're worth.

  It's probably too early to change practices: there are some folks who have the old books and want to use them, and the added costs of the extra citations is pretty low. But I would guess that over time that group will get smaller and smaller.
54 Comments

Sunday, November 25, 2007

Herbie Hancock Quintet Plays "Cantaloupe Island": Herbie Hancock recorded a string of wonderful Blue Note records in the 1960s, and one of his best was his 1964 recording Empyrean Isles with Freddie Hubbard on trumpet, Ron Carter on bass, and Tony Williams on drums. The album featured one very catchy tune, Cantaloupe Island, amidst the otherwise not-particularly-commercial music. Here's the original group joined by Joe Henderson playing the song on February 22, 1985, at a reunion concert celebrating the rebirth of Blue Note Records:

This performance is taken from a terrific DVD, One Night With Blue Note. Definitely worth checking out. (Oh, and for the copyright folks out there, I note that the clip has been up for almost a year and has over 125,000 views; I'm assuming that the copyright holders don't object to it being posted.)
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Florida Supreme Court Welcomes Junk Science:

In Marsh v. Valyou, the Florida Supreme Court (1)reiterated that Florida follows the Frye general acceptance test; (2) held that Frye doesn't apply to a medical expert's "opinion" testimony regarding causation; (3) held that even if Frye did apply, it should be applied only to the issue of whether the technique of "differential diagnosis" is generally accepted in the medical community, regardless of whether the technique was used in a generally accepted way. [It was not, as the dissent explains in some detail. In fact, it wasn't really a differential diagnosis at all, but a differential etiology, and this cannot properly be used to "rule in" a cause that has not been otherwise established by other evidence.]; and (4) implicitly rejected the notion that Florida Rule of Evidence 702, modeled on the federal rule that led to the Daubert Supreme Court opinion, provides a "backup" reliability test for causation testimony.

In short, the Florida Supreme Court essentially held that any qualified medical expert (with qualifications always defined loosely) can testify to almost any causation theory, without any real judicial scrutiny. Florida law, then, has regressed to the pre-Daubert let-it-all-in stage, at least with regard to medical causation testimony. Florida thus joins Illinois and Kansas as states that have applied Frye so liberally as to make it virtually meaningless in cases involving causation disputes. The general argument is that only real scientific methodologies, not "pure opinion", are subject to Frye. As I've written, "this peculiar outcome seems to suggest that the less objective the basis for an expert's scientific opinion, the less judicial scrutiny it should receive!"

The dissent, written by Justice Cantero and joined by two other justices, is a model opinion, and eviscerates the majority's reasoning. The dissent could have found additional support in this article of mine on Frye, published at 41 Jurimetrics J. 385-407 (2001).

Interestingly, the national tort reform groups were absent as amici from this case, once again confirming that are dropping the ball when it comes to ensuring that the victories they won with the Daubert trilogy and amended Rule 702 aren't snatched away by permissive state court rulings.

I hope that Marsh will lead the Florida legislature to joins Georgia and Michigan in adopted a state version of amended Rule 702 by statute. Otherwise, Florida will become a breeding ground for quackspertise.

UPDATE: The best overall discussion of Frye out there is in my co-authored treatise, The New Wigmore: Expert Evidence. To give credit where it's due, David Kaye wrote this chapter.

39 Comments

Is a Poetry Slam Assault?

Stuart Buck offers up a tort law poem.

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The South Carolina Bar Scandal:

There's a little scandal brewing in South Carolina over the state Supreme Court's decision to eliminate the results from one question, allowing several people to pass who would otherwise have failed, including the daughter of a influential local pol. Louisville Dean Jim Chen has been on the case. He provides background and links here, and an update here.

UPDATE: Jim Chen has still more:

Legal professionals, in South Carolina and the rest of the nation, have every reason to question the Supreme Court's decision to mint 20 new lawyers who, by every account, flunked South Carolina's July 2007 bar exam. They have reason to doubt the high court's outlandishly illogical explanation. This sort of thing has happened before; now it is being reinstitutionalized anew. Not Very Bright's timeline leaves no room for doubt: this was a hamfisted, naked power play by South Carolina's judiciary, carried out at the expense of that state's bar and larger public. Yet, like many observers who are far closer to South Carolina than I am, I too expect this scandal to fade from public view as attention turns to Thanksgiving and this weekend's Clemson-Carolina football game. Panem et circenses, indeed.

The simple explanation is, as usual, correct and complete. South Carolina's lawyers, by my informal survey, are horrified by the Supreme Court's abuse of power. They rue how this episode will resonate for years, even decades, as yet another generation of South Carolinians learns that power, not prowess, that pedigree, not performance, holds the key to success. They cringe at the thought of outsiders consigning this most quintessentially Southern of Southern states to perpetual cultural irrelevance in the American pageant.

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Sunday Song Lyric: Timbaland has an impressive record as a producer. Now he's impressively successful as an artist two. This past week he had two singles in the top five on American Top 40: "The Way I Are" at number five, and "Apologize" at number one. The former is what one would expect from Timbaland: a well-produced hip-hop dance track. The latter, however, features One Republic, a light-alt rock band who wrote the track and star in Timbaland's video. Timbaland's new album, Shock Value, is filled with such interesting collaborations. While he features some of the usual suspects (Missy Elliott, Nelly Furtado, Justin Timberlake, 50 Cent, and Dr. Dre), the album also features guest appearances by The Hives, Fall Out Boy, and Elton John (on piano).


She Wants Revenge, an 1980s-style alternative band heavily influenced by The Cure, Bauhaus, and similar bands, also makes an unexpected appearance on Timbaland's album in the song "Time." It's a blend of hip-hop and retro alternative. The chorus features a Peter Hook-style bass line backing a vocal reminiscent of Peter Murphy or mid-1980s Dave Gahan.

She's too invested on the hours that pass her by
I'd pay attention if I thought it was worth the time
I tell her easy, but her hands they find a way
Confusing passion for the love he never gave
Fall back on reasons that we know won't stand a chance
Watching her shoulders like a memory from the past
I tell her easy but her hands they find a way
Confusing passion for the love he never gave
Nothing profound, to be sure, but you can almost hear the black lipstick and eyeliner through this portion of the song.
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