A while back I reported on an experiment I was undertaking in my first-year second-semester Introduction to Intellectual Property class. For the Spring 2007 semester, the required reading consisted entirely of material from a “coursepack” I had prepared, which contained only (a) the relevant statutory material (Patent Act, Copyright Act, Lanham Act) and (b) unedited judicial opinions. [If you want to see the cases I use, my syllabi are posted here].
My idea was pretty simple. Being able to read a judicial opinion from start to finish and to figure out what it means, or even what it might mean, even though there’s a lot of confusing junk in it, is an indispensable skill for any lawyer. If you are unable to do it – and I recognize that there are lots of lawyers out there who really are unable to do it – you are at an immense disadvantage in the practice of law (at least, in any practice that requires making legal arguments on behalf of clients); among other things, you will always be dependent on others who can do it (e.g., the authors of the treatises or hornbooks or articles or other secondary material on which you will necessarily have to rely) to do it for you, to tell you what the cases and the statutes mean. It is also very, very difficult; I have read a number of the cases that I include in my coursepack literally dozens of times, and there are still parts of them that remain inscrutable to me. Like most difficult things – playing the piano, reading and understanding 17th century poetry, surfing – it requires practice, and lots of it; the more you do it, the better you get at doing it.
You’d think, then, that we’d give our students lots and lots of practice, and lots and lots of help and guidance while they’re practicing, to help them master this critically important skill. But we don’t. In fact, we give them hardly any practice, and hardly any help and guidance, at all. All throughout law school we feed them a steady diet of edited, pre-digested cases, with all the “confusing stuff” – the stuff that just “gets in the way” of their learning the work-for-hire doctrine, or the elements of the patent infringement claim, or whatever it is we’re trying to teach them – taken out. All of the stuff that makes it hard to figure out what’s going on. But that’s precisely the point: it is hard. So how in God’s name are they ever going to learn how to do it if they never do it?
If you’re not familiar with legal education, you might think I was exaggerating, or even joking – but I’m not. It’s as though we were teaching graduate students in, say, 17th century English literature, and we had them read only edited, “bowdlerized” versions of Milton’s work – hey, you don’t really need to read Book II of Paradise Lost to get the “important stuff,” and it’ll just confuse you if you do.
Students do, it’s true, get exposure to complete, unedited opinions when they’re doing research – for papers, or for law review-type assignments, or the like. But except for one class (typically) on “Research & Writing,” they are expected to do that work entirely on their own, without any real help from people (like their professors) who actually know how to do it. Sink, or swim. Many sink.
I’ve now been doing this for 3 semesters, in two different classes (Intro to IP and Copyright Law), and while assessing the effectiveness of something like this is very difficult, here’s my take on how the experiment has been going. I’d give it somewhere between a B and a B+. Good, but could be better. I’m pretty sure I’m on the right track, and that the basic idea is a good one, though I’m not entirely certain yet that my implementation is as good as it should be.
I’m (pretty) certain that, by the end of the semester, (pretty much all of) the students are a lot better at being able to sit down and read a case through and extract meaning from it. They are, at least, not nearly as terrified of the the task as they are at the start of the semester – a good thing. They even start to take for granted their ability to do that – a very good thing; by the last few classes, they no longer find it odd that we can have a pretty intelligent discussion about trademark law based just upon their having read three or four of the key cases.
I’m also pretty certain that they’ve gotten better at managing their own confusion and ignorance – something I regard as one of the truly critical skills a lawyer needs to develop. You never know all that you need to know, in the law – “it depends” is always the correct answer, to every question. You never have enough facts, and you never know all you need to know about the law. Never. So being a good lawyer means knowing what you know, and knowing what you don’t know, and where the line is. So it’s a good thing for students to see that while they don’t understand what’s going on in some parts of KSR v Teleflex – nobody understands what’s going on in some parts of KSR v. Teleflex – they can still extract lots and lots of useful information about patent law from the opinion. Know what you know, and know what you don’t know.
I think they get better at skimming – at figuring out which parts of an opinion are critical and which are not, which parts you really have in order to understand to understand the court’s judgment and which you don’t (which, incidentally, means they get better at figuring out what’s a “holding” and what’s “dicta” . . .). In my experience, many students, when they’re doing research for a paper, have an insanely low threshold for reading cases; they cannot even imagine that one might have to read thirty or forty cases to really understand how the Supreme Court applies, say, the doctrine of “strict scrutiny” in First Amendment cases. That would take FOREVER!! But only if you’re really slow at it, as most of them are. They have to learn how to get fast(er), and I think this experiment is helping them.
They also start to understand that what a court says (and the meaning of what it has said) always depends on the “posture” of the case, and (for appellate courts) on the the standard of review.
All of that I kind of expected. But there was an unexpected benefit as well. One thing I was nervous about was the obvious need to reduce the total number of cases the class would be reading. I tried to select cases that don’t have too much “confusing junk” in them, but even so it’s hard work for them to get through the opinions, and I can only assign one or two per class. I was worried that their understanding of the substantive subject matter – the nuts and bolts of IP law – would suffer as a result. But I think the opposite may well be true. Casebooks edit out not only the “confusing stuff” but also the repetitive stuff; because the American Geophysical Union v Texaco case is in the “fair use” section of the Casebook, the court’s discussion of copyright ownership, or the scope of the reproduction right, will probably be omitted as having been covered elsewhere in the book. But it turns out – somewhat to my surprise – that the repetitive stuff is enormously helpful. It’s one thing to read, in the section on “copyright infringement,” that the plaintiff has to prove “copying” and “substantial similarity in protected material” in order to prevail, and to try to understand what that means. It’s quite another thing to read that in every case, over and over again, the same basic formulation of the elements of the copyright claim. And to notice that while the basic formulation stays pretty much the same, different courts, in different cases, might articulate the rule somewhat differently – hmmm, what’s up with that? I could be wrong, but I think my students understand the copyright infringement “test” more thoroughly for having encountered it so many times than they did when we focused on it just for a couple of classes.
It’s a lot more work this way – for the students, and for me. Some of that confusing stuff really is damned confusing, and we have to spend lots of our class time trying to sort it out. But I think I’m sticking with it.
Miles Davis Quintet Plays "'Round Midnight":
I've linked to a YouTube clip of the second Miles Davis Quintet before -- this was the famous quintet with Wayne Shorter, Herbie Hancock, Ron Carter, and Tony Williams that played together from 1964-1968. But last time the clip covered the band when they had just formed in 1964. Here's an excellent performance of the group playing late in their tenure; the tune is 'Round Midnight, and the place and time is Stockholm, 1967.
Peggy Noonan on GOP Leaders:
Peggy Noonan has a powerful essay in the Wall Street Journal on how Republican politicos in DC lost their way in the years of the Bush Presidency:
Many are ambivalent, deep inside, about the decisions made the past seven years in the White House. But they've publicly supported it so long they think they . . . support it. They get confused. Late at night they toss and turn in the antique mahogany sleigh bed in the carpeted house in McLean and try to remember what it is they really do think, and what those thoughts imply. And those are the bright ones. The rest are in Perpetual 1980: We have the country, the troops will rally in the fall. . . . What happens to the Republicans in 2008 will likely be dictated by what didn't happen in 2005, and '06, and '07. The moment when the party could have broken, on principle, with the administration – over the thinking behind and the carrying out of the war, over immigration, spending and the size of government – has passed. What two years ago would have been honorable and wise will now look craven. They're stuck. Mr. Bush has squandered the hard-built paternity of 40 years. But so has the party, and so have its leaders. If they had pushed away for serious reasons, they could have separated the party's fortunes from the president's. This would have left a painfully broken party, but they wouldn't be left with a ruined "brand," as they all say, speaking the language of marketing. And they speak that language because they are marketers, not thinkers. Not serious about policy. Not serious about ideas. And not serious about leadership, only followership.
The Countermajoritarian Difficulty as to State Constitutions vs. the Federal Constitution:
When the U.S. Supreme Court reads the federal Constitution as barring certain kinds of laws -- especially state laws -- people often raise three related objections:
The Justices are unelected, and not accountable to the people.
The Justices' decisions are very hard to change for the people to change (since a constitutional amendment requires a two-thirds vote in each House of Congress, or a hard-to-call convention, plus majorities in three quarters of the state legislatures).
The decision of nine judges in Washington, D.C. is interfering with contrary views of the people throughout the country.
Of course, if one thinks that the Constitution does indeed command a particular result, then one probably wouldn't raise these objections, largely because the Constitution was indeed enacted by the people (though usually a very different group of people than is now alive). But if one thinks the Justices read the Constitution wrong, these three objections exacerbate the error. And when a constitutional provision is very vague, these objections might be (to many) a reason to leave decisions in the hands of the democratically elected branches rather than in the hands of the Justices.
It's not clear, though, that the same objections play out quite the same way when we have a state Supreme Court interpreting a state constitution. In many states, Supreme Court Justices are indeed elected; in other states, they are at least accountable to the voters in retention elections. In most states, the state constitution is quite easy to change, generally requiring only placing a constitutional amendment on the ballot (which may be expensive if signatures need to be gathered, but which can often be done with no such expense by the people's representatives in the legislature) followed by a majority vote of the electorate. And the decision is at least made by Justices from one's own state, rather than by people in far-off Washington, D.C.
Consider, for instance, the California Supreme Court decision in the same-sex marriage case. California Supreme Court Justices are accountable to the people in retention elections, a weak form of accountability but still some accountability. The California Supreme Court Justices are at least Californians making decisions for other Californians. And in November, the voters will have the final word on the matter, with a 50%+1 vote being all that's required to reverse the court decision -- no need for the famously cumbersome Article V federal constitutional amendment process.
Naturally, if one thinks the California Supreme Court interpreted the state constitutional provisions incorrectly, the fact that their error can be easily corrected doesn't mean that it's not an error. But it might suggest that residents of California -- and especially of states where the constitution is easier to change and the Justices are elected in competitive races -- should be less concerned about Justices' ability to place their own interpretations on vague or ambiguous constitutional language.
France’s public broadcaster, France 2, has sued blogger-media critic, Philippe Karsenty, for libel. The lawsuit centers on Karsenty’s allegation that the scene, which France 2 broadcast in September 2000, of twelve-year old Muhammad al-Dura crouching behind his father in a Gaza intersection moments before he was reportedly shot and killed by Israeli gunfire was staged by Palestinians on the street and that France 2 and its Jerusalem bureau chief, Charles Enderlin, are now covering up the hoax.
The France 2 broadcast, filmed by France 2’s Palestinian cameraman, Talal Abu Ramah, with Enderlin’s voiceover stating that the father and son "are the target of fire from the Israeli positions" and that the son was shot dead, helped to fuel the Second Intifada in September 2000 and became an incendiary icon throughout the Middle East and beyond. The incident was memorialized throughout the Arab world, including on postage stamps in a number of countries, and became a symbol of Palestinian martyrdom and Israeli killing of children. The France 2 broadcast appears in the background of the video of Daniel Pearl’s beheading taken by his killers.
Subsequent investigations have raised serious questions about the source of the gunfire and, indeed, whether Palestinian activists on the scene staged the entire incident in collaboration with the France 2 camera crew. Writing in Atlantic Monthly in 2003, James Fallows concluded that whatever else happened to al-Dura, he was not shot by Israeli soldiers and that the rest remains a mystery.
I recently saw Karsenty present his case, together with outtakes he has obtained from the France 2 broadcast, on a panel featuring former CNN senior vice president and general counsel, David Kohler, and former veteran CBS news correspondent, Murray Fromson. Viewing the outtakes, it seemed obvious to my untrained eyes that the incident was staged. The father and son remain frozen in crouching position, ostensibly to avoid Israeli gunfire, even as others run right past them. Other TV crews are filming just a few feet away from the father and son, directly in the alleged line of fire. And the son changes his position and raises his elbow after he was reportedly killed.
Nonetheless, a French trial court ruled in October 2006 that Karsenty had committed libel. It is clear from the decision (I assume the accuracy of an unofficial translation) that French libel law puts a far more onerous burden on the defendant than does US law and contains little of the free speech protections that, as I mentioned in yesterday’s post, US courts have imposed on defamation law to prevent the chilling of speech. The French court required Karsenty to prove the truth of his allegations – not just that the event was staged, but that France 2 and Enderlin are covering up the hoax – and that Karsenty’s proof “be perfect, complete and correlative to the defamatory allegations both in their substance and their impact.” The court also declined to view all the France 2 outtakes. In the United States, France 2 and Enderlin could not prevail unless they established that Karsenty published his claims knowing them to be false or with reckless disregard of the truth.
Karsenty has appealed and the French appellate court is due to issue its ruling on May 21. Karsenty is optomistic, in part because the appellate court did view the France 2 outtakes that, Karsenty believes establish that the al-Dura incident was staged.
The kind of media manipulation to which the al-Dura incident points is all too common in reporting from the region. Recall the initial Palestinian reports in September 2000 of an Israeli massacre of 3,000 Palestinian civilians in Jenin, broadcast without question by CNN, NPR, the BBC, and others, while the truth turned out to be 52 Palestinians killed, most of whom were armed combatants. (See here and here.) More recently, Hamas has staged and Western media reported electricity shortages in Gaza, replete with candles purporting to provide needed light while, as it turned out, screens blocked sunshine from streaming in through the window.
Certainly, some media outlets seem all too eager to transmit reports of Israeli atrocities. But the problem is far broader and deeper than that. Both broadcast and print journalists face tremendous pressure to produce under a highly competitive 24/7 news cycle. At the same time, many news organizations have sharply reduced their staff of foreign correspondents. As a result, they are increasingly reliant on local stringers and camera operators to report on local stories. In areas of conflict, it is inevitable that more than a trivial percentage of local reporters will be partisans and that video footage will be designed or doctored to favor one side or the other.
One hopes that major news organizations are able and willing to weed out the vast majority of questionable reporting, just as CNN refused to broadcast the al-Dura footage. But there are, of course, no guarantees. And, as I emphasized in an ealier post, fact-checking, like quality original reporting, costs a lot of money.
For their part, bloggers do an admirable job of exposing media failures. At the same time, for better or for worse, the Internet serves as an unfiltered outlet for the stories and footage that media organizations deem insufficiently trustworthy to carry.
The California Legislature's Enactment of Same-Sex Marriage:
Some defenders of the California Supreme Court's same-sex marriage decision have argued that it's actually consistent with the democratic process, because the California legislature had twice enacted same-sex marriage, and the Governor vetoed the bills on the grounds that the California Supreme Court should decide the matter. I heard this from another panelist on a KQED-FM radio show I was just on; you can also see something similar at Lawyers, Guns and Money, and elsewhere.
I think it's a mistake to ascribe much significance to these vetoed bills. Under California law, the California Legislature has no authority to by itself reverse -- even with the Governor's approval -- an initiative statute, such as the California ban on same-sex marriage (enacted in 2000); reversing such an initiative statute through the legislative process requires a subsequent popular vote. The legislature may at most place the amendment on the ballot.
Now if the California Supreme Court is right that the initiative statute violates the California Constitution, then only a state constitutional amendment (which will likely be on the November ballot) can change that. But there's no doubt that it is the Court that made this decision, overturning the 61.4%-38.6% 2000 vote on the matter. It is that 2000 vote that's the only authoritative non-judicial statement on the matter. The Legislature had no power to itself change this statement, even had the Governor cooperated.
Incidentally, my sense is that this explains the Governor's veto statement that he wanted to see the Court's views on the matter: If the Court had concluded that the 2000 initiative statute was constitutionally permissible, then the Legislature and the Governor would have had no power to simply enact same-sex marriage; they would have had to do so through a statute that called for a popular vote on the subject.
Responding to an NGO Monitor Report accusing Human Rights Watch of anti-Israel bias (a topic that has been covered here before), HRW's Middle East Director Sarah Leah Whitson replies, "It's hard to comprehend how NGO Monitor thinks that merely devoting an alleged 9% of Human Rights Watch's energies in the Middle East to Israel constitutes a disproportionate focus." Maybe because no objective observer thinks that in a region populated with such human rights stalwarts as Egypt, Jordan, Kuwait, Syria, Iran, Saudi Arabia, Yemen, Hamas-controlled Gaza, Hezbollah-controlled South Lebanon, and Libya, Israel is responsible for anything approaching 9% of the human rights abuses in the region, whatever one thinks of its policies regarding the Palestinian territories.
I can see the argument that a disproportionate focus on Israel is appropriate, because Israel should be held to higher standards as a liberal democracy, and because liberal democracies are far more likely to be responsive to groups like Human Rights Watch than are countries like Saudi Arabia. Instead, Whitson claims that the disproportionate focus isn't disproportionate to begin with, and indeed it's incomprehensible that anyone might think otherwise, which is another nail in HRW's credibility coffin.
Whitson adds: "Israel today is the only country committing collective punishment by blockade because it is the only country that, directly and through its pressure on Egypt, is blocking all borders of a territory in order to squeeze its civilian population." So if Israel and Egypt close the border to Hamas-controlled Gaza, only Israel is engaging in "collective punishment." And Israel is doing so "to squeeze" the "civilian population," not because Hamas has been importing rockets (which it then uses to attack Israeli civilians) and other weaponry through whatever holes it can find in the borders, and meanwhile attacking Israeli border positions whenever they are opened for humanitarian purposes.
Federalist Society Consumer Credit Protection Conference:
The program and participants list for the Federalist Society Consumer Credit Protection Conference has been updated. The program will be Tuesday May 20 at the National Press Club. Information and registration info is available here. The first panel will be on subprime lending and the second will be on credit card regulation. Lunch is included and the program is free for students, government employees, and hill staff.
Tonight I was reading Frederick Jackson Turner’s "The Significance of the Frontier in American History." The first footnote just jumped off the page:
A paper read at the meeting of the American Historical Association in Chicago, July 12, 1893. It first appeared in the Proceedings of the State Historical Society of Wisconsin, December 14, 1893, with the following note: "The foundation of this paper is my article entitled 'Problems in American History,' which appeared in The Ægis, a publication of the students of the University of Wisconsin, November 4, 1892... It is gratifying to find that Professor Woodrow Wilson--whose volume on 'Division and Reunion' in the Epochs of American History Series, has an appreciative estimate of the importance of the West as a factor in American history--accepts some of the views set forth in the papers above mentioned, and enhances their value by his lucid and suggestive treatment of them in his article in The Forum December, 1893, reviewing Goldwin Smith's 'History of the United States.'" The present text is that of the Report of the American Historical Association for 1893, 199-227.
This is the sort of language one uses to make it clear that one’s ideas might be falsely attributed to another author, who did not properly attribute the source of borrowed ideas. BTW, Turner had been Wilson's student at Johns Hopkins.
My suspicions received some support in a passing sentence in a 1933 scholarly article. Reviewing Turner’s frontier thesis in the 1933 Pacific Historical Review, Frederic L. Paxson likens Turner to Columbus and calls him a prophet. In a footnote, Paxson quotes Wilson’s 1893 article, noting that Wilson does not mention Turner in his 1893 piece, which in part set out Turner’s thesis:
"When the great westward migration began everything was modified. . . Beyond the mountains . . . a new nation sprang up. . . . Our continental life is a radically different thing from our life in the old settlements. . . . The formative period of American history . . . did not end in colonial times or on the Atlantic coast . . . nor will it end until we cease to have frontier communities and a young political life just accommodating itself to fixed institutions. . . . Almost all the critical issues of our politics have been made up beyond the mountains." Woodrow Wilson, "Mr. Goldwin Smith's 'Views' on our Political History," in Forum, xvI, 495 (December, 1893); but though aware of the new revelation, Wilson failed to name the prophet [i.e., Turner].
So, not only was Woodrow Wilson the most racist of the post-Reconstruction presidents (a man who systematically re-segregated Washington and demoted African American government employees), but he might have been a plagiarist as well.
UPDATE: For background on Wilson's "Dixiecrat" views, see this analysis of the work of Lawrence J. Friedman:
It was Inauguration Day, and in the judgment of one later historian, "the atmosphere in the nation's capital bore ominous signs for Negroes." Washington rang with happy Rebel Yells, while bands all over town played 'Dixie.' Indeed, the Chief Justice of the Supreme Court, who swore in the newly elected Southern president, was himself a former member of the Ku Klux Klan. Meanwhile, "an unidentified associate of the new Chief Executive warned that since the South ran the nation, Negroes should expect to be treated as a servile race." Somebody had even sent the new president a possum, an act supposedly "consonant with Southern tradition."
This is not an alternate world scenario imagining the results of a Strom Thurmond victory in the 1948 election; it is the real March 4, 1913, the day Woodrow Wilson of Virginia moved into the White House. . . .
An openly racist Southern presidency had existed fewer than 30 years earlier [than Strom Thurmond's 1948 candidacy]: Wilson's. His White House had not only approved of the South's discriminatory practices (many of which were also widespread in the North), it implemented them in the federal government. Had Dixiecrat dreams come true, a Thurmond administration would have revived Woodrow Wilson's racial policies. . . .
Wilson's racist views were hardly a secret. His own published work was peppered with Lost Cause visions of a happy antebellum South. As president of Princeton, he had turned away black applicants, regarding their desire for education to be "unwarranted." He was elected president because the 1912 campaign featured a third party, Theodore Roosevelt's Bullmoose Party, which drew Republican votes from incumbent William Howard Taft. Wilson won a majority of votes in only one state (Arizona) outside the South. . . .
Upon taking power in Washington, Wilson and the many other Southerners he brought into his cabinet were disturbed at the way the federal government went about its own business. One legacy of post-Civil War Republican ascendancy was that Washington's large black populace had access to federal jobs, and worked with whites in largely integrated circumstances. Wilson's cabinet put an end to that, bringing Jim Crow to Washington.
Wilson allowed various officials to segregate the toilets, cafeterias, and work areas of their departments. One justification involved health: White government workers had to be protected from contagious diseases, especially venereal diseases, that racists imagined were being spread by blacks. In extreme cases, federal officials built separate structures to house black workers. Most black diplomats were replaced by whites; numerous black federal officials in the South were removed from their posts; the local Washington police force and fire department stopped hiring blacks. Wilson's own view, as he expressed it to intimates, was that federal segregation was an act of kindness. In historian Friedman's paraphrase, "Off by themselves with only a white supervisor, blacks would not be forced out of their jobs by energetic white employees."
According to Friedman, President Wilson said as much to those appalled blacks who protested his actions. He told one protesting black delegation that "segregation is not a humiliation but a benefit, and ought to be so regarded by you gentlemen." When the startled journalist William Monroe Trotter objected, Wilson essentially threw him out of the White House. "Your manner offends me," Wilson told him. Blacks all over the country complained about Wilson, but the president was unmoved. "If the colored people made a mistake in voting for me," he told The New York Times in 1914, "they ought to correct it."
I argued in yesterday’s post that copyright burdens speech. Not all who posted comments agreed, but assuming I’m correct (and I’m not the only one to make that claim; others, including Eugene Volokh, have made similar arguments), what, if anything, should be done about it?
Sometimes the law burdens speech for very good reason, such good reason that we favor the law over the speaker. The obvious, regularly noted example is forbidding falsely crying “fire” in a crowded theater. Laws against defamation, false advertising, misleading securities filings, and incitement to immediate violence are others, as are prohibitions on using sound trucks in a residential neighborhood and blasting music above a certain decibel level at an outdoor rock concert.
Moreover, even if we do not believe that the burden on speech is justified (I realize, of course, that “we” is artificial since people often don’t agree – see the comments to my last post!), that does not necessarily mean that the First Amendment as currently interpreted forbids the speech burden. The First Amendment provides that “Congress shall make no law … abridging freedom of speech.” But First Amendment doctrine is highly complex and First Amendment protections far more qualified than the amendment’s sweeping, absolute language suggests.
For that reason, I distinguish in my book between First Amendment doctrine and free speech policy. For example, I think First Amendment doctrine provides that Congress may not abolish the fair use defense because that would constitute an unconstitutional abridgement of speech. But free speech policy – or First Amendment “values” -- might go further. In order for copyright law to best promote First Amendment values, including the value of expressive diversity, courts should interpret fair use broadly and Congress should limit copyright holders’ exclusive rights to prevent them from using copyright as a vertical restraint to suppress competition from new media. Courts and Congress should do that even if the First Amendment does not require it.
Courts have recognized that copyright can abridge speech, but they have almost never actually imposed First Amendment limitations on copyright. In Eldred v. Ashcroft, the Supreme Court held that when “Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” In so holding, the Court strongly suggested that the idea/expression dichotomy and fair use doctrine are critical free speech safeguards within copyright law, that without them, copyright would run afoul of the First Amendment.
As I argue in Copyright's Paradox, I think the Eldred decision is very poorly reasoned and perpetuates copyright’s anomalous treatment in First Amendment doctrine. After all, other legal regimes, including defamation, right to privacy, trademark, the right of publicity, and others, have built-in protections for speech, but courts have nevertheless constitutionalized them, imposing First Amendment constraints to make certain that they don’t unduly burden speech. First Amendment limits are especially warranted in copyright given that the idea/expression dichotomy and fair use doctrine are notoriously arbitrary and indeterminate. At the very least, the First Amendment should be applied to make sure that copyright’s internal free speech safeguards actually do their job.
Last September, the 10th Circuit Court of Appeals held that Congress’ restoration to copyright of certain works already in the public domain alters the traditional contours of copyright protection and thus must be subject to First Amendment scrutiny. The Court reasoned that the idea/expression dichotomy and fair use are inadequate free speech safeguards vis-à-vis removing works from the public domain. It remanded the case to the district court to determine whether the Restoration Act is a content-based or content-neutral speech restriction, and thus whether strict scrutiny or some form of intermediate scrutiny should apply.
Whether the Copyright Act is a content-based or content-neutral speech restriction under First Amendment doctrine is a complex question, which I have previously debated with Eugene. (I think it’s content-neutral.) But whichever the courts determine, it is clear that Copyright Act amendments that alter copyright’s traditional contours should be held to run afoul of the First Amendment when copyright’s internal free speech safeguards provide inadequate protection. As I argue in my book, the anticircumvention provisions of the Digital Millennium Copyright Act, which the legislative history refers to “paracopyright,” should be ripe for First Amendment challenge.
A federal grand jury indicted a Missouri woman Thursday for her alleged role in perpetrating a hoax on the online social network MySpace against a 13-year-old neighbor who committed suicide. Megan Meier, 13, hanged herself in her bedroom after being targeted in a MySpace hoax. Lori Drew of suburban St. Louis is said to have helped create a false-identity MySpace account to contact Megan Meier, who thought she was chatting with a 16-year-old boy named Josh Evans. Josh didn't exist. Megan hanged herself at home in October 2006 after receiving cruel messages, including one stating the world would be better off without her. Salvador Hernandez, assistant agent in charge of the Los Angeles FBI office, called the case heart-rending. "The Internet is a world unto itself. People must know how far they can go before they must stop. They exploited a young girl's weaknesses," Hernandez said. "Whether the defendant could have foreseen the results, she's responsible for her actions." Drew was charged with one count of conspiracy and three counts of accessing protected computers without authorization to get information used to inflict emotional distress on the girl.
This case involves a terrible tragedy; I think what Lori Drew did is truly despicable. But the government's legal theory, based entirely on the Computer Fraud and Abuse Act, 18 U.S.C. 1030, is very weak. Legally speaking, the prosecution is a real stretch. In my view, the courts should dismiss the indictment. In this post, I'll explain why.
To understand this case, you need to understand the government's theory. The indictment is not charging Drew with harassment. Nor are they charging her with homicide. Rather, the government's theory in this case is that Drew criminally trespassed onto MySpace's server by using MySpace in a way that violated MySpace's Terms of Service (TOS).
Here's the idea. The TOS required Drew to provide accurate registration information, not to harass or harm other people, and not to promote conduct that was abusive. She didn't comply with these terms, the theory goes, so she was criminally trespassing onto MySpace's computer when she was logging into her account. The indictment turns this into a federal felony conspiracy charge by arguing that she did this in concert with others to obtain information and to further tortious conduct — intentional infliction of emotional distress — violating the felony provisions of 18 U.S.C. 1030(a)(2).
But these arguments are a real stretch for three reasons.
Problem One: The first major hurdle is a legal question that I wrote an article on in 2003: Is it a federal crime to violate contractual limitations on use of a computer? The federal statute, 18 U.S.C. 1030, generally prohibits accessing a computer "without authorization" or "exceeding authorized access." But what makes an access "without authorization"? If the computer owner says that you can only access the computer if you are left-handed, or if you agree to be nice, are you committing a crime if you use the computer and are nasty or you are right-handed? If you violate the Terms of Service, are you committing a crime?
In my article, Cybercrime's Scope: Interpreting "Access" and "Authorization" in Computer Misuse Statutes, 78 NYU L. Rev. 1596 (2003), I argue that the answer should be "no." I won't recite the legal arguments here, as you can just read the article itself. (You can imagine the basic idea, though: Since everyone who uses computers violates dozens of different TOS every day, the theory would make everyone who uses computers a felon.) However, I will point out that the MySpace case is to my knowledge the very first federal indictment that has tried to claim that violations of Terms of Service for an Internet account amounts to a crime under Section 1030. In fact, I wrote my NYU article in part because I figured it was only a matter of time before a sympathetic case came along and some aggressive prosecutor would try the argument and see if it flew. It looks like this is the test case.
Problem Two: The second and third legal hurdles to the prosecution are less intellectually interesting but clearer and easier for the defense to make. The first problem is that the crime requires the government to show that Drew intended to violate the Terms of Service. That is, lack of authorization must be intentional — it must have been Drew's conscious object to have violated the TOS. But here there is no evidence that Drew even read the TOS. Most people don't, of course; I would be surprised if 1 person in 100 actually tried reading it. If Drew wasn't aware that she was violating the TOS, she couldn't be exceeding her authorized access intentionally. (Paragraph 11 of the indictment lamely notes that a copy of the TOS was "readily available" to MySpace Users if they went looking for it, clicked the link, and read it. But the statute requires intent, so whether the TOS was "readily available" is irrelevant.)
Problem Three: The third hurdle, and perhaps the easiest way for the defense to win, is that the government's theory requires proof that the goal of the conspiracy was to obtain information. The alleged underlying crime here is 18 U.S.C. 1030(a)(2)(C), which prohibits exceeding authorized access to a computer to get information. Think hacking in to get credit card numbers, to get a copy of a special computer file, or to take data from a database. But based on the facts discussed in the indictment and the news stories, it doesn't seem that Drew had the intent to obtain information from her victim. Her apparent goal was to harass her victim and to cause emotional distress, not to obtain information from her. That may not make it morally or ethically any less objectionable; indeed, perhaps it is more so. But the statute wasn't violated unless Drew was acting to try to obtain information, and it doesn't seem like that was her intent.
UPDATE: Over at Concurring Opinions, Daniel Solove agrees with most of the analysis but comments on this last issue: "I'm not so sure I agree. The news accounts I read about the case indicated that one of Drew's primary motivations for creating the fake profile was to learn information from Megan Meier. She wanted to know information from Megan that pertained to her own daughter, who was a classmate of Megan's. The harassing came later on." I haven't read the news reports closely, so maybe we'll have to wait and see how the facts unfold on the third issue.
Orin mentioned the upcoming ACS National Convention. In contemplation of a hypothetical Obama presidency, does anyone know what the public perception of ACS is? In other words, if Obama wins, will his nominees be interrogated about ACS affiliations like Federalist Society members have been? Will the Washington Post run stories on the ACS influence over the Justice Department? Will ACS members go out of their way to deny membership? Will an interation of the shoe being on the other foot have any lasting impact of taming this sort of behavior?
Although these questions seem like they are phrased tendentiously, I sincerely wonder about this. I have been distressed by what seems like the real dishonesty of some of the attacks on the Federalist Society and I'm wondering whether the absurdity and nastiness will continue to escalate or whether there will be some sort of truce and step in the direction of respect.
If I had to guess, I'd predict that Republicans and the media will not make a big deal out of ACS affiliation, but that doing so will do nothing to bring about reciprocity toward future Republican appointees.
Also, I wonder whether Republicans would be willing to filibuster Democratic judicial nominations. On this point, I have no strong intuition as to what to expect.
Update:
A couple of Commenters noted that the Republicans used delaying tactics with Clinton nominees--that certainly is true. But they were in the majority at that time. The question I was wondering is whether as members of the minority they would actually formally filibuster nominees. The two issues may essentially the same, but it is not obvious to me that using informal obstructionist tactics when in the majority automatically means that they would use a formal filibuster when in the minority.
"Did the California Supreme Court Just Do John McCain an Inadvertent Favor?"
Rick Hasen (Election Law Blog) notes that "it seems very likely an initiative overturning the decision through a constitutional amendment will qualify and appear on the November ballot" (see here) and opines:
This helps John McCain because those conservative voters may not have come out in great numbers for him, but they will come out now to vote for this amendment, and they are more likely to vote for McCain than for the Democrat once they are already voting. That's not to say that California will go red, but it is to say that the Democratic nominee will have to devote more resources to this very expensive to campaign in state.
Congratulations to California Same-Sex Married Couples:
In all this talk of constitutional law, it's easy to miss a human dimension: There are lots of same-sex couples in California who are already married under foreign law, who are already married in their own consciences and religious traditions, and who have long wanted to have their marriages recognized in the state in which they live.
Whatever one might think of the social or legal consequences of this sort of decision, it pretty clearly makes them happy, and happy for the right reason -- the common human desire to have them, their families, their love, and their mutual commitment recognized. So congratulations to all these couples, those whom I know well personally and the many more whom I don't.
Now this tendency is often pooh-poohed when the initial legislative decision takes place — and of course that makes sense, because the decision's backers want to argue that the decision is quite narrow. Thus, for instance, consider:
Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, arguing that the claim that a hate crime law "would lead to acceptance of gay marriages" was "arrant nonsense."
Editorial, A Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30: "Nor does passage of the bill [that bans sexual orientation discrimination in various commercial transactions] put Massachusetts on a 'slippery slope' toward [same-sex marriage or domestic benefit] rights."
Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise (quoting Riverside Human Relations Commission member Kay Smith): "Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward same-sex marriages] .... But, this legislation needs to be looked at on the face value of what it is, and it really does very little."
Yet consider how the California Supreme Court used the legislative enactment of these sorts of laws as part of its basis for deciding that the right to marry should be seen as encompassing same-sex marriage:
There can be no question but that, in recent decades, there has been a fundamental and dramatic transformation in this state’s understanding and legal treatment of gay individuals and gay couples. California has repudiated past practices and policies that were based on a once common viewpoint that denigrated the general character and morals of gay individuals, and at one time even characterized homosexuality as a mental illness rather than as simply one of the numerous variables of our common and diverse humanity. This state’s current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation, and, more specifically, recognize that gay individuals are fully capable of entering into the kind of loving and enduring committed relationships that may serve as the foundation of a family and of responsibly caring for and raising children.
[Footnotes to above: See, for example, Civil Code section 51 (barring sexual orientation discrimination in the provision of services by any business establishment); Government Code sections 12920 (barring sexual orientation discrimination in employment), 12955 (barring sexual orientation discrimination in housing), 11135, subdivision (a) (barring sexual orientation discrimination in any program operated by, or that receives any financial assistance from, the state); Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 466-475 (Gay Law Students) (Cal. Const. prohibits sexual orientation discrimination by public utility). See, for example, sections 297 et seq., 9000, subdivisions (b), (g); Welfare & Institutions Code section 16013, subdivision (a); Sharon S. v. Superior Court (2003) 31 Cal.4th 417; Elisa B. v. Superior Court, supra, 37 Cal.4th 108....]
Similar arguments were made by the Massachusetts Supreme Judicial Court and the Vermont Supreme Court, when they decided that their state constitutions should be read as recognizing a right to same-sex marriage (Massachusetts) and same-sex domestic partnership benefits (Vermont).
Now the California Supreme Court majority does say that "our reference to numerous statutes demonstrating California’s current recognition that gay individuals are entitled to equal and nondiscriminatory legal treatment does not suggest that an individual’s entitlement to equal treatment under the law — regardless of his or her sexual orientation — is grounded upon the Legislature’s recent enactment of the Domestic Partner Act or any other legislative measure. The capability of gay individuals to enter into loving and enduring relationships comparable to those entered into by heterosexuals is in no way dependent upon the enactment of the Domestic Partner Act; the adoption of that legislation simply constitutes an explicit official recognition of that capacity. Similarly, the numerous recent legislative enactments prohibiting discrimination on the basis of sexual orientation were not required in order to confer upon gay individuals a legal status equal to that enjoyed by heterosexuals; these measures simply provide explicit official recognition of, and affirmative support for, that equal legal status."
Yet the majority's citing those past legislative decisions — and going on to say that "Indeed, the change in this state’s past treatment of gay individuals and homosexual conduct is reflected in scores of legislative, administrative, and judicial actions that have occurred over the past 30 or more years. (See, e.g., Stats. 1975, ch. 71, §§ 7, 10, pp. 133, 134 [revising statutes criminalizing consensual sodomy and oral copulation]; Governor’s Exec. Order No. B-54-79 (Apr. 4, 1979) [barring sexual-orientation discrimination against state employees]; Morrison v. State Board of Education (1969) 1 Cal.3d 214 [homosexual conduct does not in itself necessarily constitute immoral conduct or demonstrate unfitness to teach].)" — means that the Justices in the majority must see legislative decisions as relevant. Maybe at least one Justice of the 4-to-3 majority was indeed swayed by the body of legislative pro-gay-rights judgment; or even if the argument was makeweight, the majority must think that some of the readers would be swayed by these legislative judgments. And these legislative judgments are seen as relevant even in an area (same-sex marriage) different from that in which the initial legislative judgments took place.
Of course, some people might like this slippery slope, because they like what's on the bottom. (See Deb Price, Marriage Is the Only Acceptable Option, S.J. Mercury News, May 23, 2002: "When Hawaii's steps toward legalizing gay marriage led to a backlash in Congress and many states in the mid-'90s, some gay-rights advocates felt the need to pooh-pooh the 'slippery slope' argument by foes that we'd ultimately try to push beyond any piecemeal rights thrown our way and would be satisfied with nothing less than full marriage. But not anymore. 'Our foes kept saying, 'This is a slippery slope to marriage,' and we kept nodding our heads, 'Yep,'' says [Anne] Stanback, unabashedly embracing marriage as the goal, just as do the movement's two top political groups, the Human Rights Campaign and the National Gay and Lesbian Task Force.") I myself support recognition of same-sex marriage as a policy matter. Still others may disapprove of the bottom of the slope, but might see some of the steps down it as morally imperative. (The decriminalization of same-sex sexual conduct, which the California Supreme Court majority cited as evidence of a "change in this state’s past treatment of gay individuals and homosexual conduct," is likely the best example.)
But it seems to me that decisions such as the California, Massachusetts, and Vermont ones illustrate that it's a mistake to just factually dismiss the claims that slippage is possible. When we're dealing with a legal system that's built on analogy and precedent (both binding precedent and persuasive precedent), slippery slope risks have to be taken seriously.
California Supreme Court Holds That California Must Recognize Same-Sex Marriage:
"[T]o the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional." The opinion is here. The vote is 4-3, which Chief Justice George joined by Justices Kennard, Werdegar, and Moreno in the majority, and Justices Baxter, Chin, and Corrigan dissenting on the key issue. (Justice Corrigan's dissent seems to suggest that some form of domestic partnership is constitutionally mandated, but that there's no constitutional requirement that it be labeled "marriage"; but the dissent doesn't seem to be entirely clear on this, perhaps precisely because domestic partnership is provided and the issue of whether it's mandated is thus not squarely on the table.)
The opinion is entirely based on claims under the California Constitution, and does not rely on federal constitutional claims. This seems that the U.S. Supreme Court cannot review this; and it also means that a state constitutional amendment -- which seems likely to be on the ballot this November -- could overturn the decision.
Here's the court's reasoning, in a nutshell:
1. The California Constitution's Due Process Clause and Privacy Clause (there's an explicit one in California) secure a right to marry, which extends to same-sex marriages as well as opposite-sex marriages. The limit of marriage to opposite-sex couples thus must be reviewed under strict scrutiny (i.e., must be narrowly tailored to a compelling state interest).
2. The California Constitution's Equal Protection Clause treats sexual orientation as a suspect classification. Any discrimination against gays and lesbians thus must be reviewed under strict scrutiny, and the opposite-sex-only rule is indeed such a discrimination.
3. The opposite-sex-marriage-only rule does not constitute presumptively impermissible sex discrimination, only sexual orientation discrimination.
4. The ban on same-sex marriage can't pass muster under strict scrutiny (pretty much a foregone conclusion, given how demanding strict scrutiny generally is).
California Supreme Court Holds That There Is A State Constitutional Right to Same-Sex Marriage in California:
The opinion is here, via Howard. The holding:
We . . . conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.
Applying strict scrutiny to the California marriage statute, the court concludes that:
[T]he purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest. . . . Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.
Americans are basically pro-immigrant but ambivalent about it. This ambivalence is reflected in polls, which of course provide different results based on how questions are asked. For example, last year a CBS News poll asked, "Should illegal immigrants be prosecuted and deported or shouldn't they?" And 69% of respondents favored deportation. When the same interviewers asked the same respondents what should happen to illegal immigrants who have lived and worked in the U.S. for at least two years, and then offered a specific alternative to deportation, only 33% favored deportation; 62% said they should be given a chance to keep their jobs and eventually apply for legal status.
When a separate Gallup poll asked a similar question but offered four alternatives, just 13% favored deportation, and 78% said illegal immigrants should be allowed to keep their jobs and apply for citizenship.
In other words, for all the loud talk we've heard in recent months, via cable news, talk radio and the blogosphere, the American public seems not to have lost confidence in the melting pot. And rightly so, because there's plenty of evidence that assimilation is proceeding apace. True, it doesn't always seem that way, but we all know that perceptions can sometimes be illusions.
Riley goes on to note that the "melting pot" continues to operate, even if assimilation is not as rapid or complete as it may have been in the past.
With respect to linguistic assimilation, which is one of the more important measures because it amounts to a job skill that can increase earnings, the historical pattern is as follows: The first generation learns enough English to get by but prefers the mother tongue. The children of immigrants born here grow up in homes where they understand the mother tongue to some extent and may speak it, but they prefer English. When those children become adults, they establish homes where English is the dominant language.
There's every indication that Latinos are following this pattern. According to 2005 Census data, just one-third of Latino immigrants in the country for less than a decade speak English well. But that proportion climbs to 75% for those here 30 years or more. There may be more bilingualism today among their children, but there's no evidence that Spanish is the dominant language in the second generation. The 2000 Census found that 91% of the children of immigrants, and 97% of the grandchildren, spoke English well.
The problem is not with immigration or a lack of assimilation, Riley suggests, but ideological opposition to assimiliation from some American elites. If social conservatives or others are concerned about immigration, this is where they should target their ire.
If American culture is under assault today, it's not from immigrants who aren't assimilating but from liberal elites who reject the concept of assimilation. For multiculturalists, and particularly those in the academy, assimilation is a dirty word. . . .
But social conservatives who want to seal the border in response to these left-wing elites are directing their wrath at the wrong people. The problem isn't the immigrants. The problem is the militant multiculturalists who want to turn America into some loose federation of ethnic and racial groups. The political right should continue to push back against bilingual education advocates, anti-American Chicano Studies professors, Spanish-language ballots, ethnically gerrymandered voting districts, La Raza's big-government agenda and all the rest. But these problems weren't created by the women burping our babies and changing linen at our hotels, or by the men picking lettuce in Yuma and building homes in Iowa City.
It's an interesting argument, and one with which I am quite sympathetic. While illegal immigration is a concern, and border security is a real issue, immigration has been a boon to this nation, and there is no reason that it should not continue to be in the future.
ACS National Convention:
On June 12-14, the American Constitution Society is hosting its National Convention in Washington, DC. I spoke at the ACS Convention in 2005, and the experience was terrific (as blogged here). I'm happy to say that I'll be on a panel again this year, as are my co-bloggers Randy Barnett and Dale Carpenter. You can see the schedule for this year's convention here.
The latest score on farm legislation: Congress 1, President Bush 0. And there's a good chance for a shutout within the next few days.
Wednesday afternoon, the House of Representatives overwhelmingly passed a much-debated Farm Bill, with a veto-proof 318-106 vote. The measure, stuffed with lawmakers' pet projects for local farmers, now moves to the Senate, where it is also likely to pass.
Bush, now traveling in the Middle East, has threatened to veto the $290 billion bill because it gives generous subsidies to farmers, many of whom are now reaping the benefits of higher food prices.
"Farm income is expected to exceed the 10-year average by 50% this year, yet Congress' bill asks American taxpayers to subsidize the incomes of married farmers who earn $1.5 million per year," he said in a statement Tuesday.
Nonetheless, if it passes the Senate by a two-thirds majority, the president's veto would be moot. Still, Bush is likely to try--Congress has only overridden his veto once in the past seven years. It's also a smart move for him. As a lame duck president, he can call for reductions in government spending, then put the blame on a Democrat-controlled Congress for going over budget in an election year.
The "farm bill" is actually far more than funding for agriculture programs. The measure passed Wednesday increases funding for nutrition programs by $10.4 billion, provides $1 billion for renewable-energy investments, increases conservation spending by $7.9 billion and adds $84 million to international food aid and nutrition programs.
The National Food Bank Network praised the bill, which provides $1.25 billion to food banks. The bill also cuts the corn ethanol tax credit [slightly to 45 cents a gallon], redirecting the money to incentives to improve research on cellulosic ethanol [subsidized at $1.01 a gallon].
But it's also laden with pork. According to Ryan Alexander, president of the watchdog group Taxpayers for Common Sense, the bill includes "tax breaks for horse racing and timber companies, millions for salmon fishermen and subsidies to millionaire farmers." The group says just 8% of all producers receive 78% percent of the subsidies in the farm legislation. . . .
When the current farm bill was proposed in February 2007, Bush wanted to provide subsidies only for farmers with incomes under $200,000 per year. The bill that just passed the House would provide subsidies for farmers who make up to $750,000 annually, $1.5 million for couples.
It is nonsense to continue subsidizing ethanol, propping up food prices, and providing other forms of government welfare for the rich.
UPDATE: Here is an example of the sort of provisions that lobbyists got inserted into the farm bill.
Herring v. United States, and "Who Are The Police"?
The petitioner's merits brief was recently filed in Herring v. United States, a really interesting Fourth Amendment case out of the Eleventh Circuit that will be argued before the Supreme Court in the fall. I wanted to offer some preliminary thoughts on the case.
First, the facts. Coffee County police investigator Anderson observed a man named Herring, and developed reason to think that there was a warrant out for Herring's arrest. Anderson quickly called the Coffee County warrant clerk to see if there were any arrest warrants sworn out for Herring. The warrant clerk checked the county database but found no warrants. Anderson then asked the warrant clerk to contact the warrant clerk in nearby Dale County to see if there were any warrants in that county for Herring's arrest. The Dale County warrant clerk reported back to the Coffee County clerk's office that there was in fact an active warrant in Dale County for Herring's arrest. The Dale County warrant clerk then relayed that information to Anderson.
The Dale County warrant clerk then looked through the county files for the actual warrant. When she couldn't find it, she called the clerk's office and learned that there had been a snafu: The warrant had existed but had been recalled, even though it had not yet been noted in the Dale County database. The Dale County warrant clerk called the Coffee County warrant clerk immediately to tell her that there had been a mistake; there actually was no warrant. Although only 10-15 minutes had passed since their earlier call, the call came too late. Anderson had already pulled over Herring and arrested him based on the belief that a warrant existed. A search incident to arrest revealed drugs and a gun, leading to criminal charges. In this case, Herring wants the drugs and gun suppressed as violations of the Fourth Amendment.
Ok, on to the legal issues. At the heart of Herring is the question, "who are the police?" When the Supreme Court refers to terms like "probable cause" and the need for the exclusionary rule to "deter the police," is the relevant actor the single individual who actually conducts the search or seizure or the entity of police as a whole? And if you look at the entity as a whole, does that mean all the police in the county, the state, or maybe all of the police who were involved in the case? In one case, the police is a person; in the other, it's an entity.
Why is this the heart of Herring? Under the Fourth Amendment, an arrest is justified if the police have probable cause to believe that a crime was committed and that the suspect committed it; also, reasonable reliance by the police on authority to conduct a search or seizure that later turns out to be false generally leads to admission of evidence. Under these standards, if you construe "the police" to mean the actual person who conducted the search or seizure then Herring should easily lose. On the other hand, if you view "the police" as all of the involved agents of the state, then Herring probably should win.
Consider how existing doctrine looks if you view "the police" as only referring to Officer Anderson, the officer who actually arrested and searched Herring. He acted perfectly appropriately, it seems. Having heard from the warrant clerk that a warrant existed, he not only acted in reasonable reliance, he quite possibly also had probable cause to arrest Herring ("quite possibly" because it's not entirely clear how the mistaken claim of a warrant can be factored into the probable cause analysis). From his standpoint, this was all a perfectly innocent mistake caused by someone else's inadvertent error. Under existing doctrine, the evidence comes in.
On the other hand, try construing "the police" as a collective entity of the entire government. First, they no longer seem to have probable cause: if you took all the people who know about Herring and put them in a room, they would realize that they didn't have probable cause (at least based on what we know). Second, there is no longer reasonable reliance; "the police" as a whole weren't acting in reasonable reliance on some other entity, but rather had made the apparent error themselves. The evidence stays out.
So what's the right answer? I'm not entirely sure, at least yet. However, my sense is that the answer that fits best with the rest of Fourth Amendment law is that "the police" should mean Anderson himself. That's clearly how probable cause determinations are traditionally made. What matters is what that arresting officer knew, or what the affiant wrote in the warrant application, not what was known to all members of the government if you imagined them all in the same room sharing what they knew about the case. Given that, it's not clear to me why you would treat the "reasonable reliance" issue differently.
Second, I think you run into serious problems trying to identify who "the police" are if you start to go beyond the officer who actually made the arrest and conducted the search. For example, should warrant clerks count? Should clerk's offices count? Should officers in other states count? Police officers in other countries? Confidential informants? It may be possible to come up with an answer to these questions, but my sense is that it's actually pretty hard. I think the Justices might explore this issue and then in the end conclude that it's just not feasible to do.
I think there are two major objections to defining "the police" as the individual officer. The first is the fear that agents of the state will act in bad faith. A corrupt police officer might tell another police officer that there's a warrant out for a suspect's arrest, and when the second officer arrested the suspect, the evidence would still come in. This is a concern, but it's also a concern in the warrantless context; one officer could always make up facts tending to create probable cause. But as best I can recall, I haven't seen any evidence that it is an actual (as compared to hypothetical) problem.
The second argument is that an exclusionary rule is needed to encourage better government databases. But at least so far, I'm not convinced that there aren't easier ways to encourage better databases beyond an exclusionary rule. That's especially true because the folks that feel the brunt of the exclusionary rule are usually the individual officers in the field who make the arrest: Depending on the local government picture, they may have only limited abilities to pressure the computer database people to do better. The facts of Herring bring this out in particular; Officer Anderson in Coffee County probably can't push Dale County to do a better job with their database. Given that there is no particular incentive for governments to maintain poor arrest warrant databases, I'm unconvinced that suppression would be useful here.
Anyway, those are my tentative thoughts. The case isn't going to be argued until the fall, so there's certainly more than enough time to change my mind.
Attorney General Hillary Clinton? Secretary of State? Justice?
What would Hillary Clinton Want from Obama? Is it the Vice Presidency? Jim might well be right that Obama might have good reason to offer Clinton this, and it might even make for a strong ticket (though I'm not sure that would be so). But I wonder whether Hillary would want this. The Vice Presidency is a notoriously low-power job. A President who genuinely trusts the Vice President may bring the Vice President informally into lots of important decisions (consider Bush and Cheney), but I doubt that Obama would be willing to do this with Clinton, or that Clinton would much like this sort of role.
The Vice Presidency is often a stepping-stone to the Presidency, but I doubt that it would be for Hillary, who'll be 69 in November 2016 — quite old for a first-term President, notwithstanding Reagan and McCain. Query how the higher life expectancy for women plays out here; query also how the conventional wisdom that men are seen as aging more gracefully than women (I stress "seen" here, because that's the relevant matter) might come into play. But I do suspect that she won't see herself as a viable 2016 candidate, and a 2012 insurgent run against a President Obama would likely be impossible if she's part of the Administration.
Nor would running as Vice-President and losing increase her chances of being the Presidential nominee in 2012; if anything, it would likely decrease them. Maybe she might just like the historic element of being the first female Vice President, but I doubt it.
What then might Clinton want more than her job as Senator? How about Attorney General or Secretary of State? Would it look bad for Obama to make this sort of offer before the election? (My sense is that primary rivals do sometimes get Cabinet positions, consider Bush Sr. and Jack Kemp, but that no deal is generally made beforehand.) How about Supreme Court Justice, for which there is something of a precedent in the Eisenhower-Warren situation, though I understand that it's not clear whether there had been an explicit deal?
Would she want those sorts of positions? Would she be an asset to the campaign if such a deal were announced beforehand? What if no such official deal were announced, but a quiet offer and acceptance led her to withdraw, publicly endorse Obama, and enthusiastically campaign for him?
This is way outside my area of expertise, so it may well be that all these options are nonstarters, and that I'm mistaken about her likely lack of enthusiasm for the Vice Presidency. Still, I thought these might be interesting alternatives to discuss.
UPDATE: Commenter GV, writes "What reason would Obama have to offer Clinton anything? Since Indiana, she has stopped attacking him, so the primary no longer hurts him. She has already said she'll campaign for him if she loses. It's clear to everyone now, even Hillary, that this race is over." I take it that one reason would be to win over some of the Hillary partisans who might otherwise be miffed at how he and his voters have treated their candidate, and who might therefore stay home come election day.
Ohio Attorney General Marc Dann has finally resigned. Based on the early reports, it does not appear that he was able to strike any exit deal to ensure a soft landing or protect himself from prosecution. More here and here.
Until Governor Ted Strickland appoints a successor, First Assistant Attorney General Tom Winters will serve as AG. Here is Winters' memo to AG personnel.
Obama probably has the power to get Clinton to drop out.--
There are three ways to get someone to do something: You persuade them, you offer them some benefit, or you threaten them with harm.
Leaving aside the last method (threats), so far inducing Hillary Clinton to drop out has focused mostly on persuasion. Yet the possibility of Barack Obama’s paying Clinton’s $20 million campaign debt (much of which is owed to herself) is one benefit that could be offered to Clinton — and has been broached.
The more obvious payoff would be to offer her the Vice Presidential slot on the ticket. If Obama really wants Clinton to end her campaign now, it is probably within his power to do so. But the price might be more than he wants to pay.
As I wrote in yesterday’s post, my book, Copyright’s Paradox, explains that copyright serves both as an “engine of free expression” and silencer of free expression. Yesterday, I focused on how copyright still serves as an engine of free expression in the digital age, albeit an engine of more modest proportions than the Supreme Court’s moniker suggests.
Today I look at the other side of the equation — how copyright law burdens speech. I will emphasize at the outset that the fact that copyright burdens some speech is NOT reason in and of itself to abolish copyright or to find that copyright law violates the First Amendment. Rather we must tailor copyright to minimize its speech burdens while still enabling copyright law to serve as engine of free expression. (I do argue in my book that copyright’s duration and scope have expanded so much that, in its current dimensions and configuration, copyright burdens too much speech.)
Very basically, if your movie, song, graphic, book, or blog is protected by copyright, I can’t copy from it in my own speech unless you give me permission (express or implied) or unless my copying falls within an exception to your exclusive rights, like fair use. So copyright law can effectively prevent me from speaking using the words, images, or sounds of my choosing.
If the government were to do that directly and because it didn’t like my choice of locution, say by forbidding me from distributing copies of the Koran or the Communist Manifesto on a street corner, it almost certainly abridge my First Amendment right to free speech. As the Supreme Court has held repeatedly, the government abridges speech in such cases even if the speaker could convey his message using other words.
Yet, like copyright’s role as engine of free expression, the question of when and how copyright law can truly be said to burden speech (let alone violate the First Amendment) is far more complex than might initially meet the eye. Perhaps the easiest cases – and the closest to what we usually think of as censorship — are those in which the copyright owner withholds permission and sues or threatens to sue for infringement because he wants to suppress the speaker’s message.
Here’s an example given to me by a reader of this blog: During the 2004 presidential campaign, opponents of John Kerry sought to highlight what they viewed as Kerry’s radical Left views by offering the public free PDF copies of the book “The New Soldier,” which Kerry co-authored in 1971 together with the Vietnam Veterans Against the War. According to a post on Free Republic, the book’s co-editor, a close friend of Kerry, used the notice-and-takedown procedures of the Digital Millennium Copyright Act to force Yahoo to shutdown the web site that offered the free copies as part of a concerted effort to suppress circulation of the book for political reasons.
But sometimes the copyright holder’s reasons for suppressing the allegedly infringing speech are mixed or entirely commercial. The Margaret Mitchell Estate sought to enjoin publication of Alice Randall’s racy sequel to Gone With the Wind from the viewpoint of a slave both because it objected to her message (perhaps) and because it wished to license only those sequels that furthered the approved image and economic value of the original work.
And often copyright holders are, in principle, quite willing to grant permission but insist on a license fee that exceeds the speaker’s ability to pay. Speakers may be unable to afford various goods, ranging from a computer to a printing press, needed for effective speech. Yet we don’t normally limit property rights in those to goods in order to give speakers an entitlement to own or use them. Why should copyright be viewed differently? Why, for example, should we support an interpretation of fair use that heavily favors noncommercial uses, like educational documentary films, when we don’t require owners of top-of-the-line movie cameras to make them available to documentary film makers?
Many commentators favor treating copyright differently because copyright law creates an artificial scarcity in a good – original expression – that, but for copyright law, would be available at the average cost of production. That argument gets us part of the way, but ultimately, I think, the answer lies in distributive free speech policy. Fostering expressive diversity (in the sense of speech from diverse and antagonistic voices, not product differentiation) is a cornerstone of American information, telecommunications, and free speech policy. The balance between copyrights and fair use should be struck to promote that goal.
The same is true when we examine media markets as a whole. As I have detailed in a recent post on Balkinization, major media markets are highly concentrated, at levels that are deleterious both to competition and expressive diversity. Copyright is relevant to that untoward consolidation because incumbent media regularly use copyright as a vertical restraint to stifle competition from new media. New media, like today’s YouTube, peer-to-peer file trading networks, Internet radio, and Google News and yesterday’s then-new recording industry, radio, and cable television, often seek to establish themselves in part by distributing incumbent media industries’ copyrighted works. But new media also are vehicles for greater expressive diversity, for breaking incumbent media’s stranglehold on the market and public discourse. So to the extent copyright gives incumbents a proprietary veto over new media’s use of copyrighted expression, copyright law tends to be an obstacle to expressive diversity and thus is rightly seen to impose a burden on speech.