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2013-2014 Term Recap (Save Two)

Back on the first Monday in October of 2013, I pointed you to what I thought would be the highlights of the Supreme Court’s term that just ended. Here, for your reference, is a list of those cases, and the actual dispositions that the High Court handed down:

Cline v. Oklahoma Center for Reproductive Justice dealt with whether a state law can restrict a doctor’s ability to prescribe a drug (debatably an abortifacent, although I am not technically able to call a drug that or not) for a medically-valid purpose but which is not described in its FDA guidelines. The result was that the Court punted — taking the case off its docket without any ruling. This let stand the Oklahoma Supreme Court’s disposition overruling that law. Memorandum opinion, so we can’t quite be sure who made this call.clinecase

Also abortion-related, McCullen v. Coakley, much as I predicted, refined the rules surrounding time, place, and manner restrictions for anti-abortion protests around abortion clinics. Chief Justice Roberts reversed the First Circuit, striking down a thirty-five foot buffer zone that included public streets and sidewalks as overly restrictive on the free speech rights of the protestors, but also notes that the state can guarantee access to the clinics, just not by way of a law that prohibits peaceful use of public sidewalks. This was a 9-0 decision, but with concurrences by Scalia (joined by Kennedy and Thomas) and Alito.

Executive Benefits Insurance Agency v. Arkison: We now know that in the always-evolving field of bankruptcy law, under Stern v. Marshall, a bankruptcy court can issue findings of fact in bankruptcy-related state law claims but those findings are subject to review by the applicable state court, which also then issues conclusions of law and enters judgment. (I told you this would only be of interest to the law geeks. But it will affect a lot of business law decisions.) Opinion by Thomas for a unanimous court.

FernandezpicPick your roommates wisely! Fernandez v California tells us by a 6-3 vote that your roommate can give consent for the police to conduct a warrantless search of your home, including of your own stuff. Not really a departure from precedent, because it’s not for the police to sort out whose stuff is whose. Alito wrote the majority opinion. Ginsburg dissented, joined by Sotomayor and Kagan.

Kansas v. Cheever affirmed that a court-appointed psychologist can be called as an expert by the prosecution to rebut testimony by a defense psychologist. So that means that your shrink will say you need civil confinement and now the prosecution can call its own shrink to say that what you really need is some time in the regular pokey. Sotomayor wrote for a unanimous court. mccutcheonpic

In McCutcheon v. Federal Election Commission, the Supremes struck down aggregate campaign contribution limits as being inconsistent with the First Amendment. Chief Justice Roberts wrote the plurality opinion, joined by Justices Scalia, Kennedy, and Alito. Thomas concurred, and would have gone further to reverse the underlying case of Buckley v. Valeo. Dissent by Justice Breyer, joined by Ginsburg, Sotomayor, and Kagan.

Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc.: Can statistical data be used to raise an inference of racial discrimination in the housing context? We’ll have to wait to find out, because the underlying case settled, and the matter was dismissed from the Supreme Court’s docket because there is no longer a live claim or controversy.

National Labor Relations Board v. Noel Canning: Regarding the President’s power to make recess appointments to high administrative positions, Justice Breyer wrote for the Court that yes, the President has power to make recess appointments without the advice and consent of the Senate, at least when there is an actual recess rather than a pro forma recess for only a few days. But in this case, the recess appointment was made during such a pro forma recess which was scheduled to last only three days, so the President could reasonably have sought the advice and consent of the Senate and did not have an immediate need to fill a vacancy on his own, and thus the recess appointment was invalid. Decision was 9-0 in the outcome, but with a separate concurrence by Scalia joined by Roberts, Thomas, and Alito laced with Scalia’s trademark vitriol for the majority.

Navarette v. California affirmed a traffic stop based on an anonymous tipster, without further corroborating evidence. A lot of criminal investigations begin with an anonymous tip, and it’s difficult for the defense to get any other information beyond that should the police choose to protect their source. Unsettling and frustrating, but a fact of life. 5-4 majority opinion by Thomas (joined by Roberts, Kennedy, Breyer, and Alito); dissent by Scalia (joined by Ginsburg, Sotomayor, and Kagan). Interesting split.

schuettepicYou might think that abortion generates the worst fragmentations on the Court, but no, those are just the strongest-held opinions. The muddiest cases are either affirmative action or Establishment. So it’s not a surprise at all that Schuette v. Coalition to Defend Affirmative Action saw a bad split. (Predictably.) The plurality opinion by Kennedy, joined by Roberts and Alito, affirmed the power of state voters to abolish affirmative action by referendum. Scalia and Thomas would have gone further and reversed precedent allowing affirmative action to take place. Breyer concurred in the judgment, but little else. Sotomayor, in her first oral dissent, took a bit of a swipe at the Chief’s reasoning in a prior affirmative action case, joined by Ginsburg. Kagan absented herself, I presume because she handled some of this case while she was serving as the Solicitor General.

greecepicDid I mention subjects that cause bad splits and murky law? Yeah, that happened twice, the second time with the other bête noire of judicial clarity, the Establishment Clause. Confronted with an Establishment Clause challenge to a facially-neutral policy soliciting prayers before a city council meeting that resulted in almost uniformly sectarian Christian prayers being dispensed, the Court said in its cacophonously-fragmented Town of Greece v. Galloway decision that because such things are traditional and have always been part of American traditions, there is no Establishment Clause violation. The 5-4 majority vote was opinion by Kennedy, with Thomas and Alito each concurring (Thomas and Scalia in part on the grounds that the Establishment Clause is not incorporated to and therefore does not apply to a state or local government), with the principal dissent by Kagan and a special dissent by Breyer.

hobbylobbypicOne case that I didn’t think last October would be as attention-getting as it was was Sebelius v. Hobby Lobby Stores, Inc. I should have guessed that an Obamacare challenge would get everyone’s dander up. We wound up doing our very first Ordinary Court mock opinions on that one. And as we now know, the Court has deferred ruling on that decision until Monday. No indication why, but we should have the decision then. Look for a majority (or perhaps plurality?) opinion written by Chief Justice Roberts.

Further of note is Riley v. California, in which Chief Justice Roberts announced for a unanimous court that the contents of your cell phone cannot be searched without a warrant after an arrest. The defendant in that case was arrested on a traffic stop and the police accessed digital information on his phone both at the arrest site and later at the station, finding incriminating information and photographs strongly suggesting membership in a street gang and affiliation with known criminals (a violation of the terms of the defendant’s parole), participation in violent activities, and possession of firearms (also a violation of the terms of the defendant’s parole). But without a warrant for the search, the Supreme Court ruled this evidence inadmissible.

At least one commenter expressed interest in Harris v. Quinn, which deals with a “closed shop” union membership rule for state employees. Turns out, we’re going to have to wait a while on this one, too, just like Hobby Lobby. For what it’s worth, SCOTUSBlog reporters (most of whom are attorneys who regularly practice before the Supreme Court) predict a majority opinion written by Alito, which sounds grim for fans of the “closed shop” rule.

The biggest memo opinion, if you ask me, was when the Court denied certiorari in Elane Photography, LLC v. Willock, letting stand the New Mexico Supreme Court’s decision holding potentially liable a wedding photography company that refused to provide service to a same-sex commitment ceremony under that state’s human rights law. Another signpost along the now closed circle of same-sex marriage becoming a right enjoyed by all Americans, and perhaps more importantly of sexual orientation becoming a protected class for purposes of Federal anti-discrimination law. We’re not there yet, though.

So that’s what your Supreme Court did for you this year, my fellow Americans. I’ll try to do another docket preview by the opening of the next term in October.

 

Burt Likko Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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137 thoughts on “2013-2014 Term Recap (Save Two)

  1. If the Senate votes to adjourn, but the House refuses, the President has the power to adjourn Congress for as long as he sees fit. This could conceivably be used for recess appointments, correct?

    What is the threshold for the Senate voting for a recess? Could the current Senate Democrats do it without Republican support?

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  2. No mention of the Aereo case? I kinda feel like that showed some serious limitations on the ability of this SCOTUS to adequately deal with technology issues. In the future the whole thing might be regarded as an Olmstead like blunder in terms of the lack of tech savvy.

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    • I dunno. Aereo seemed pretty straightforward an attempt to bypass the spirit of the law. And the text, really. Their case was pretty strained, and Scalia’s dissent was….not convincing at all.

      While they may have used grids of micro-antennas and streaming to deliver it, it was the exact same concept and effect as cable — rebroadcast of broadcast signals.

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      • “Scalia’s dissent was….not convincing at all. ”

        You mean the part where he said “I share the Court’s feeling that what Aereo is doing (or enabling to be done) to the Networks’ copyrighted programming ought not to be allowed…[b]ut perhaps we need not distort the Copyright Act to forbid it.”

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      • Also, from the Aereo opinion:

        Under the Clause, an entity may transmit a performance through multipletransmissions, where the performance is of the same work. Thus when an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it “transmit[s] . . . a performance” to them, irrespective of the number of discrete communications it makes and irrespective of whether it transmits using a singlecopy of the work or, as Aereo does, using an individual personal copy for each viewer.
        Moreover, the subscribers to whom Aereo transmits constitute “the public” under the Act. This is because Aereo communicates the same contemporaneously perceptible images and sounds to a large number of people who are unrelated and unknown to each other. In addition, neither the record nor Aereo suggests that Aereo’s subscribers receive performances in their capacities as owners or possessors of the underlying works. This is relevant because when an entity performs to a set of people, whether they constitute “the public” often depends upon their relationship to the underlying work. Finally, the statute makesclear that the fact that Aereo’s subscribers may receive the same programs at different times and locations is of no consequence. Aereo transmits a performance of petitioners’ works “to the public.”

        Uh, guys? You just said that YouTube was illegal.

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      • Jim,

        No, it was the bit about Kinko’s and copying and such.

        Look, I get the tension there — and there is one — between hosting content and distributing content that goes back to things like p2p networks.

        But Scalia was trying to hang a lot on basically the customer clicking the ‘select show’ bit being the big move, and not the fact that Aereo was indistinguishable from cable other than lacking non-broadcast signals to add to the selection.

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      • Uh, guys? You just said that YouTube was illegal.

        Doesn’t YouTube present language that says that by uploading content, you (a) expressly grant copyright permission for YouTube to do its thing and (b) have the legal authority to do that? YouTube pulls videos when it turns out that (b) wasn’t true; TTBOMK, no one has ever challenged (a).

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      • “Doesn’t YouTube present language that says that by uploading content, you (a) expressly grant copyright permission for YouTube to do its thing and (b) have the legal authority to do that? ”

        Per Aereo that’s not an affirmative defense anymore. According to that decision, the entity which creates, stores, and provides a copy of copyrighted content is now engaging in direct copyright infringement.

        This is actually a really weird decision in that both opinions barely reference Cartoon Network, LP v. CSC Holdings, Inc. (aka “Cablevision”) which pretty clearly states that what Aereo was doing is legal.

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      • I didn’t really agree with the Second Court on that either. :)

        Honestly, I’m surprised Scalia does. He’s treating Aereo like, well, the broadcast equivalent of a router — one that passes all packets over it equally, and is thus not culpable if any of those packets happen to be legally problematic. (Copyright, in this case).

        Or even as if Aereo were a content neutral host, similar to YouTube only giving less of a crap about the law, and streamed this content to anyone who asked.

        Whereas Aereo looks expressly set up to do exactly what the law forbade — transmit broadcast signals to consumers while avoiding paying the requisite licensing fees.

        The whole “customer chooses the content” thing is a nice argument in theory, but it fails when the entire content available to be copied is 99% infringing works. Heck, he even says it but refuses to follow the chain to the end — it’s like a Kinko’s service where they hand you a copier that can copy any book, then a library card for the library next door, and says “you can only copy the books in the library”.

        Sure, some of the library books are public domain. Most are not.

        He even does bring in Netflix, but says Netflix is different because they curate their own content — whereas, in this example, the library does. Which is, bluntly, BS. Netflix “curates” only because Netflix actually pays the license holders for the rights, otherwise Netflix would be quickly out of business under a wave of lawsuits.

        Under that logic, Aereo curates too — it selects only those shows currently being broadcast, a selection that might be mandated by reality but is STILL a curation of the set of all available shows.

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      • Per Aereo that’s not an affirmative defense anymore.

        Are you saying that copyright permissions can’t be assigned any more? What’s the difference between me clicking through an explicit copyright agreement at YouTube then uploading my video, and signing a contract with Hulu and providing them a copy of my video?

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      • “The whole “customer chooses the content” thing is a nice argument in theory, but it fails when the entire content available to be copied is 99% infringing works.”

        This is the “contributory infringement” / “making available” line of reasoning, which has been shot down in case after case regarding copyright infringement. (See “Capitol Records, Inc. v. Thomas-Rasset” for a notable example.)

        *******

        I still think that I’d go with Scalia’s reasoning, where he says that what Aereo is doing is challengeable but that overturning Cablevision is not the way to do it, particularly when the vast majority of modern Internet content delivery is directly dependent on Cablevision.

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      • “Are you saying that copyright permissions can’t be assigned any more?”

        No, but that’s not what you said either. What you said was that YouTube has the uploader check a box saying “the copyright status of this work allows it to be retransmitted”, and that this checkbox absolves YouTube of liability should that not be true. And what Aereo means is that the checkbox does not protect YouTube; copying copyrighted material and sending the copies to someone constitutes copyright infringement.

        YouTube could argue that it is only a third-party holding service that doesn’t monitor content, and that this lack of knowledge means they aren’t liable, but what this argues is that YT must explicitly avoid any direct knowledge of the content they’re hosting.

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      • And what Aereo means is that the checkbox does not protect YouTube; copying copyrighted material and sending the copies to someone constitutes copyright infringement.
        Betcha it doesn’t.

        Seriously, Scalia might have gotten on his high horse about it, but the other Justices basically view this as Aereo skirting around a law they felt clearly applied. The ruling was narrow, and I suspect any ambiguities will be slapped down should they pop up.

        Aereo’s briefs claimed the world would effectively end (as it were) if the courts ruled against them, but the Court pretty clearly edge out the Apocalypse.

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      • “Betcha it doesn’t.”

        Please read the opinion and tell me how it doesn’t apply to YouTube.

        Please don’t rely on “well the Court said it doesn’t”. The PPACA did not say “millions of people should lose their current insurance plan” but that is what ended up happening.

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      • …but the other Justices basically view this as Aereo skirting around a law they felt clearly applied. The ruling was narrow…

        My own feeling is that they’ve just muddied the waters. We know that renting a shared antenna, shared amplifier, and shared coax in a building with multiple apartments to watch over-the-air signals is okay. We know now that renting an antenna and a shared tuner at some distance from you, then watching a unique copy of the signal is not okay (presumably, even if you were at home). So far as I know, no one has challenged the Slingbox-in-an-apartment model where everything but the tuner is rented and the stream is distributed as a unique copy to anywhere in the world. Tuners are getting cheaper all the time. If Aereo had rented its customers a dedicated tuner, ie a Slingbox with the physical packaging stripped off, would they have passed muster?

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      • I’m kind of with here; I didn’t think the Aereo case was a particularly close call, nor legally all that interesting. Aereo didn’t add anything substantial to the broadcasts, and did attempt to earn profit through the exploitation of works protected by the copyrights of third parties.

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      • In a couple of apartment complexes I’ve lived in, they offered to allow you to hook up to the antennae so that you could get local channels on TV.

        How is this different than what Aereo would offer me? Or were the apartment complexes also in violation of the law? Is it that Aereo offered other sevices in addition to the ability to get a signal that otherwise wouldn’t be in reach?

        Without knowing all that much on the merits of the case, this ruling is frustrating to me because it deprives me of the one option I have to get channels other than NBC without having to buy a whole cable/satellite package. Added to that if the networks want to exist on the lucre of carriage fees, maybe they should become cable networks.

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      • Will,

        There’s always been a distinction between “personal/home” and “commercial”. Like, you could use a VCR to record a TV show and watch it yourself all you wanted — but you couldn’t use a VCR to record a TV show, then sell or rent copies of it. (You could, however, buy a videotape with a licensed copy and do that).

        The Aereo setup, for personal use — your own tuner you physically own, attached to your systems — would pass muster. Selling the full kit — tuner, software, routers or whatnot — would pass muster.

        Running it as a business, wherein you handle the hardware? No. That’s where Aereo got cute with the law — they said that everyone had their own tuner, just like if was running in their own house, just it happened to be in Aereo’s building.

        But running your entire business and hanging it on the thin thread of ‘you have your own dedicated antenna in our building” was just a bad risk from the get-go.

        To answer another question, I suspect had it been an apartment block with an Aereo-style setup for each unit, it would have passed muster — because those antenna would have been tied to physical locals and basically been the equivalent of personal systems. Whereas, again, a warehouse full of the things streamed nation wide — bridge to far. And I think that’s as far as the court is going to take it — the law’s against it, it’s equivalent to rebroadcast to the public without license, and the ‘one antenna per customer’ figleaf wasn’t big enough.

        It’s not gonna kill the cloud or dropbox, anymore than the VCR died because you couldn’t record MASH and sell bootleg copies.

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      • After digging a bit farther, I have to modify my comment above: Fox is suing Dish over the inclusion of Slingbox technology, claiming it’s an improper retransmission technology. Maybe we’ll get to see how lower courts interpret the Aereo ruling later this year :^)

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      • ” I suspect had it been an apartment block with an Aereo-style setup for each unit, it would have passed muster — because those antenna would have been tied to physical locals and basically been the equivalent of personal systems. ”

        So physical proximity is a factor?

        Doesn’t that mean that cloud data services are infringing if, say, I make a copy of a DVD I own and then watch that copy? The cloud hosting service doesn’t have a server in my home, after all (indeed that’s the whole point!)

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      • streamed nation wide

        That’s not my understanding of how it was supposed to work. According to wikipedia:

        During times when customers venture out of the normal broadcasting range for network television, they will not be able to access the service

        Now, I’m not sure how Aereo was enforcing this, and there might have been ways around it, but it seems to me that what they were in effect doing was renting me the equipment/internet infrastructure that would allow me to watch and timeshift my personal local broadcast programming on small screens, so long as I stay within normal TV broadcast range – IOW, they are saving me the trouble of lugging my big flatscreen, a big antenna, and my TIVO around with me on my daily rounds – but they are not granting anyone access to any programming they wouldn’t have free access to, if they did those things.

        I’m not saying they weren’t exploiting a loophole; but it does seem like a valid loophole.

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      • Aereo didn’t provide you with a dedicated tuner, just a dedicated antenna. Within a few years, though, costs will be down to the point where the business model will accommodate dedicated tuners. That’s a much more interesting case, since the courts will be forced to start spelling out exactly when equipment sharing is allowed (ie, Will’s shared antenna passed muster long ago), or how long the cables can be, or what types of cable or conversions are allowed. Or who has physical control of the resource, which is potentially a nightmare in the future “internet of things”.

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      • Glyph:
        Eh, the law in question is pretty specific to broadcast TV and says, effectively, “Thou Shalt Not Rebroadcast TV without paying the broadcasters. EVER”.

        Personal use is one thing, but if you’re making a profit off doing it in bulk?

        Doesn’t really matter where you use it — it’s rebroadcasting a broadcast signal without paying the piper.

        You can buy the equipment and do it yourself. You can probably rent the equipment to people for individual use. And their argument was they WERE renting equipment for individual use, it’s just the users kept the hardware in Aereo’s warehouse (as it were) — which wasn’t going to fly.

        They’d have probably done better just to sell the software and hardware packages to people, but that wouldn’t have been nearly so lucrative at the expense of the license holders.

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      • Michael:
        Congress could just, you know, amend the law. Or Aereo could pay licensing fees like Time Warner. Or just sell hardware and software packages for it.

        SCOTUS was ruling on a particular law here — a very narrow one about broadcast signals and rebroadcast of them — not on a sweeping Constitutional issue.

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      • – hmmm, that does seem a bit of a sticky wicket when it comes to internet/cloud stuff.

        What if I record a local broadcast on my DVR, back that up to [the cloud], then stream it back from [the cloud] to my screen?

        Is my cloud provider breaking the law (is that stream a “rebroadcast” to me, without payment to the broadcaster)?

        Was I breaking the law when I backed it up to the cloud (was *I* “rebroadcasting”, without payment to the broadcaster)?

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      • Jim,
        So physical proximity is a factor?
        No, personal use is a factor — not physical proximity. Say your business model is you DVR broadcasts and then stream the results to anyone paying you 5 bucks a month — definitely illegal unless you license it. But you can DVR it yourself and watch it.

        I suspect SCOTUS would have allowed something like an apartment block because of, well to be blunt — they’d have been thinking old style antennas and gone ‘eh, close enough’ since apartments tend to share utilities and the like anyways. (It wouldn’t have been the most consistent decision, but had that been what was in front of them I think they’d have gone with it).

        Doesn’t that mean that cloud data services are infringing if, say, I make a copy of a DVD I own and then watch that copy? The cloud hosting service doesn’t have a server in my home, after all (indeed that’s the whole point!)
        No. It’s YOUR personal, licensed copy of the DVD. You’re allowed to copy that as many times as you want, as long as you don’t distribute them commercially. The broadcast Aereo copied wasn’t licensed for retransmittal, and they DID distribute it commercially.

        A better question would be: Could you host people’s electronic copies of DVDs and then open it to anyone who wanted to watch, as long as you only streamed on a one-to-one basis (10 copies of Major league in storage? 10 streams at once of Major League). That’d be a fun one to litigate. You’re allowed to loan DVDs. (Best guess: No. You can loan DVDs, but if someone is making money off it it’s commercial — and you can only loan those if they’re licensed. Like RedBox)

        And again: Dropbox and it’s like have non-infringing uses, which are — indeed — the bulk of it’s use. Aereo existed solely to retransmit broadcast signals.

        Seriously, this was a decision based entirely on an act aimed solely at broadcasts. A DVD is literally outside of the scope of the decision entirely, because it doesn’t fall under the act in question.

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      • What if I record a local broadcast on my DVR, back that up to [the cloud], then stream it back from [the cloud] to my screen?

        Is my cloud provider breaking the law (is that stream a “rebroadcast” to me, without payment to the broadcaster)?

        Was I breaking the law when I backed it up to the cloud (was *I* “rebroadcasting”, without payment to the broadcaster)?
        No, that’s the VCR exception. That’s been established for ages — it’s not limited to hardware, it’s a question of personal use basically.

        Seriously, this decision has jack to do with cloud computing. Broadcast here doesn’t mean “wireless” or “remote”. The law in question is basically “Oh those TV signals through the air? You can’t take them and resell them unless you pay to do so”.

        If you’re talking about the “Cloud” you have wandered off the reservation. Seriously: Narrow decision. I get why it has the “gee whiz, this is neat” crowd in uproar, but hey — not everything cool is legal and why should ABC bend over and take it so Aereo can make some money off, effectively, stealing their stuff?

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      • Anyways, to sum up:

        Law says “Broadcast signals — like ABC — you can’t take and resell them unless you pay ABC” (or NBC or whomever). But you’re allowed to set up an antenna and watch them yourself, for free. They’re broadcast for you to do so.

        Cable companies pay to do so, in fact. That’s why you can get broadcast on your cable.

        And obviously you have to pay for an antenna. And a TV. But they’re yours. And you can record shows to DVR legally. You can make tapes or DVDs and watch them all you want. You just can’t record them and sell them. (Yes, technically if you taped Babylon 5 than sold your tapes years later, you were breaking the law. Nobody cares about garage sales though).

        The Courts looked at Aereo who said “We just sell an antenna service, we’re not reselling broadcasts” and the Courts said “You’re effectively reselling broadcasts, not just renting antennas”

        Scalia disagreed, with a torturous analogy to Kinko’s and a library card that failed to mention that in his version of Kinko’s, you could ONLY copy books from the library and 99% of all the books in the library were copyrighted. That Kinko’s would have been sued into oblivion for existing solely to violate copyrights.

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      • And obviously you have to pay for an antenna…. But they’re yours.

        No. Antenna owned by the apartment building, coax, amplifiers for distribution… those shared resources for accessing an over-the-air signal are all legal. At best you’re renting them as part of the package deal. At worst you’re paying the landlord separately for them, perhaps at a profit.

        Ditto the original cable-tv systems, which consisted of a group of houses in a deep valley with no over-the-air reception, who put an antenna up on the ridge and ran one shared coax down to their houses (with amplification). They weren’t a business, though.

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      • No. Antenna owned by the apartment building, coax, amplifiers for distribution… those shared resources for accessing an over-the-air signal are all legal. At best you’re renting them as part of the package deal. At worst you’re paying the landlord separately for them, perhaps at a profit.

        Ditto the original cable-tv systems, which consisted of a group of houses in a deep valley with no over-the-air reception, who put an antenna up on the ridge and ran one shared coax down to their houses (with amplification). They weren’t a business, though.
        Courts consider that, as best I understand, an issue of getting the broadcast signal, not as someone packaging it and reselling it.

        And again — a commercial enterprise doing it as a core part of their business model is going to receive stricter scrutiny than, say, an apartment building because the core goal of an apartment manager isn’t to sell video content — but to sell apartments.

        Now you could claim Aereo was basically just providing access you couldn’t get (no antenna on your cell phone, as it were) and I’m pretty sure that was the core of their claim, but given it’s commercial nature, that was never likely to fly. perhaps Congress should amend the Act in question to allow it for, say, not-TVs — to allow Aereo and similar companies to provide streaming broadcasts via that method to phones and the like.

        But that’s not the law now, and what they were doing was — in the end — snagging TV broadcasts and repackaging them to sell.

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      • morat, seriously, you need to go read the actual language of the opinion and not be thinking “oh well this only applies to Aereo and not to anyone else so I don’t have to be worried”.

        The only thing that stops any of this applying to hosting services is the people who write about things saying “well, of course none of this applies to hosting services”. There is not anything limiting in the language of the opinion.

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      • morat, seriously, you need to go read the actual language of the opinion and not be thinking “oh well this only applies to Aereo and not to anyone else so I don’t have to be worried”.

        The only thing that stops any of this applying to hosting services is the people who write about things saying “well, of course none of this applies to hosting services”. There is not anything limiting in the language of the opinion
        I did. Then I read synopsis by actual lawyers. SCOTUSblog has several.

        David Post is pretty pointed that the opinion is very narrow. Schruers, the most pessimestic, thinks it might have a chilling effect on investors simply because a technophobic judge might rule wrongly before being overturned, and “It looks like cable, acts like cable, is regulated like cable” is a fuzzy rule that might turn investors off.

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      • While they may have used grids of micro-antennas and streaming to deliver it, it was the exact same concept and effect as cable — rebroadcast of broadcast signals.

        Ya’ll making a nomenclature error.

        “Broadcast”, as a verb, has a very specific meaning to the FCC, RF folks, and media transmissions.

        “Broadcast” refers to the transmission of a signal to undesignated locations.

        Aereo is not “broadcasting” anything. This makes them not at all like a television station or a cable company.

        (and the ruling was incorrect on that basis.)

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      • The fundamental problem with Aereo is that there appears to me — and I’m willing to be corrected! — that there’s little actual relationship between what they claimed to be doing and what they were actually doing.

        As I understand it, their claim is that by dint of your rental of this little “micro-antenna” all they were doing was allowing you to access your own personal copy of the broadcasted content. So let’s look at each element of this: First, what precisely was that littlebitty antenna actually doing? Was it even hooked up to anything? Were they all connected in parallel or series to the shared tuner or what? And given existing precedent wrt shared antenna and coax setups in apartment buildings, what lead them to believe that those little individually rented antennas was even legally relevant? It’s like they took that precedent, did the exact opposite, and ran with it.

        Then there’s the virtual DVR setup. In an actual, physical DVR, you have one or more tuners (I’ve seen as many as six advertised) physically accessing a digital or analog stream, that the customer/consumer has legal right to access (paid cable/satellite or off-air), and then records a unique digital copy of content onto a hard drive which the customer can access at their convenience. Is it Aereo’s contention that each customer is renting a slice of a set of digital tuners which then feeds into a set of hard drives, such that each customer actually accesses their own individual copy of whatever content they wish to view? IOW, at the Aereo facility does there exist a an individual digital copy of everything for each customer? If they have a thousand customers do they have a thousand copies of How I Met Your Mother, each sequestered in their own directory tree that only that customer may access?

        Not the way I understand it and therein lies the problem. They created a system that’s essentially a virtual CATV system while proudly pointing to these silly little useless micro-antennas to claim it’s the exact opposite of what it actually is. If I had been a Justice I would have been annoyed in a I’m-not-actually-as-dumb-as-I-look,-Counselor sort of way at the arguments being put forth.

        It looks to me like you could actually do something like this, leasing a tuner or tuners feeding into leased storage space and providing individual cloud access, all perfectly legally. You just couldn’t do it for anything near the price they were charging due to all the extra hardware you would need to actually, really-for-real do what they’re now only pretending to do.

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      • I make no pretense to have followed this closely, or having a clear understanding of the technology aspects of the case, so can someone help me out here?

        This was just about broadcast TV, right? As in, I can legally buy an antenna to catch the signals, and I can legally buy a machine to record those signals to watch later, right?

        And couldn’t an antenna company legally rent me an antenna on a monthly basis instead of selling one to me out right? And couldn’t they legally rent a recording machine to me instead of selling one to me outright?

        And would it matter if they kept those on their property as a service to me instead of me having to have them cluttering up my house?

        Isn’t that what Aereo was doing? But that seems so simple, that I think I must be missing something. Or is this basically what is hinting at?

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      • I see Morat’s addressed this issue, but from what he’s written so far, I’m not following the logic of it. Why could I rent you an antenna and a receiver/recorder on a monthly basis if you kept it at your house, but I can’t rent you those if I keep it at my business.

        Why is that a meaningful difference as a matter of law?

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      • – as near as I can figure, the relevant question is, what is Aereo’s “product” they are vending?

        Aereo contended they are only vending equipment/infrastructure, to allow you to watch programming which you could watch for free anyway over the air.

        The broadcasters contended Aereo was *really* vending their programming, which by law they must be paid for (since every person who gets Aereo AND drops cable, takes a chunk out of the fees cable companies pay broadcasters for that programming).

        I gotta admit, I don’t see many people getting Aereo and dropping cable, who wouldn’t have dropped cable anyway. And at least with Aereo they were presumably still getting the originally-broadcast ads for their market.

        Still, from a legal perspective, had the cable companies originally pulled an Aereo, and installed one tiny antenna for each of their cable customers, and told broadcasters “stuff it, you ain’t getting paid”, they’d probably have been slapped down the same way.

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      • “Why is that a meaningful difference as a matter of law?”

        It isn’t, but (as we see here in this thread, even) people are taking the attitude of “well what you’re doing looks weird, and when something looks weird there’s usually illegality involved, therefore we’ll stop you doing what you’re doing even though we can’t actually figure out what’s illegal about it. But don’t worry, we’ll include ‘we only mean it this once’ in our opinion, that way there’s surely no chance that anyone will use this as precedent.”

        And then Comcast sues Google, claiming that YouTube “communicates the same contemporaneously perceptible images and sounds to a large number of people who are unrelated and unknown to each other”, and that “neither the record nor YouTube suggests that YouTube’s users receive performances in their capacities as owners or possessors of the underlying works”, and therefore YouTube is ilegally transmitting copyrighted works to the public.

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      • This is a case where Jim’s basically correct (IMO), snark and all.

        An over-the-air transmission is done via the FCC rules for RF broadcast. Stations have a limited amount of power, and the part of the RF band that they’re using has a limited effective range.

        Historically, this meant that I had a monopoly on that band. And since there’s a maximum amount of over-the-air bands in the RF spectrum allocated for commercial broadcast, my license from the FCC gives me a right to transmit certain types of signals. In return, since I have monopoly rights on that bandwidth, commercial vendors will pay me to stick their advertisements in my broadcast. This enables me to pay content providers for content to show, over the air.

        My license agreement with the content providers is contingent upon what I do with it. There is a huge difference between the licensing cost that I pay as, say, a local over-the-air television station and a satellite or cable provider.

        Because a satellite or cable provider is NOT broadcasting. A cable provider is sending a signal down a wire, which they either lease or own, to a limited set of customers that have to have decoding devices in order to be able to receive my signal.

        The satellite company is using an RF signal, but they’re still not broadcasting, because you need a decoder to unscramble the signal. Also: the license terms for the satellite-to-earth section of the RF spectrum is different from the television section, but that’s an aside.

        Aereo is nothing like a cable company, because they *cannot* license *content* at *all* in the way that a cable or satellite provider does. In fact, they’d be legally *constrained* from doing so because the over-the-air content that they’re catching with the antennas comes with a whole ‘nuther set of legal complications.

        Let’s say they *paid* NBC the way DirecTV paid NBC, for the right to transmit NBC stuff. Then the local, over-the-air television broadcaster could *sue* NBC, because they have exclusive rights in the geographic area in which they operate due to their contract with NBC (this is why when you watch NBC on satellite or cable, you see the over-the-air broadcast, you don’t see the NBC feed that NBC sends out to the affiliate).

        In a real world scenario where the big N media companies didn’t own, lock stock and barrel, the local television stations all the way up to most of the content, the local broadcasters would, without a doubt, be HUGE FANS of Aereo, because they are extending their own coverage, and since Aereo can track what the users watch, I get useful information as an entity that sells commercial space, because people can use Aereo to watch my station, I can pay Aereo to tell me what they’re actually watching (something that historically local television stations really couldn’t do, hence the Neilsen ratings), and then I can price the commercial slots that I sell to local vendors accordingly. Indeed, I can even tell which commercials people skip, which is something over-the-air broadcast television stations *never* could do.

        That’s just a fucking hash, though, as far as Time Warner or even NBC is concerned, because NBC isn’t just NBC any more. They no longer have a vested interest in price taking for the NBC broadcast that they used to rely upon.

        Because NBC (or ABC-Cap Disney, or whoever) now is trying to use their content bundling leverage to negotiate with content access providers, e.g., the cable company and the satellite companies.

        The justices just plain don’t understand the technology, and it’s very unclear to me that they really even understand the historical public interest argument for the FCC to be around in the first place, because this decision just doesn’t make any goddamn sense, as
        pointed out.

        I can legally record an over-the-air broadcast, by virtue of it being an over-the-air broadcast. That’s the Fair Use as applied to the stuff that people are willing to put OVER THE AIR. The broadcast is entailed by the use of public airwaves. Nothing Aereo is doing is illegal under the understanding of what over-the-air broadcasting was from the establishment of the FCC until the mid-80s.

        Unless you look at it as, “Large media companies, having eaten up all of the small media companies, are disinterested in providing content to the public that the public actually wants to watch. They are interested in using their monopoly power to force cable and satellite companies to carry their entire swath of stuff, and Aereo, quite a bit like TiVO and any one of a number of other services before it, challenges their ability to do that, without giving up their broadcast stations.”

        And you know, they could do that. Aereo can ONLY record stuff that is broadcast over the air.

        So why don’t they just do that?

        Because they gain monopoly rights by having the over-the-air broadcast station in the local geographic area.

        It’s literally a case of having your cake and wanting to eat it too.

        Don’t broadcast stuff over the air that you don’t want people to record – in any way, was the operational rule established back when the first video recorders came out.

        Now that rule is basically gone.

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      • – what do you say to this:

        had the cable companies originally pulled an Aereo, and installed one tiny antenna for each of their cable customers [and used that antenna to send broadcast material through the cables to their customers], and told broadcasters “stuff it, you ain’t getting paid”, they’d probably have been slapped down the same way.

        Is it your opinion that cable companies *should* have been allowed to do that?

        Is it your opinion that they *would* have been allowed to do that?

        Why didn’t they do that?

        Did they just not think of it first; or was the tech not there; or did they realize that broadcasters would come after them with legal elephant guns, so they decided to pony up?

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      • had the cable companies originally pulled an Aereo, and installed one tiny antenna for each of their cable customers [and used that antenna to send broadcast material through the cables to their customers], and told broadcasters “stuff it, you ain’t getting paid”, they’d probably have been slapped down the same way.

        Mmmmmaybe? I think this is a counterfactual that has a nice feature that you can’t falsify it.

        Is it your opinion that cable companies *should* have been allowed to do that?

        Yes, it is my opinion that cable companies should be able to do that, provided they aren’t sending the signal to cable subscribers outside the geographical zone of the over-the-air transmission. If they were recording things in New York and sending it to California, then no. Because the over-the-air station has the rights to that zone. I’m not sure why a local station carrier would care if a cable company did that, I suspect they’d think it was grand, why not?

        Why didn’t they do that?

        Well, for starters, because the cable companies (back when cable was just getting started) were usually legally required to carry local television stations and they carried those stations by getting a video feed directly from the local television station. Which is actually how most of them operate right now, still.

        Because, you know, the local television station wanted cable company customers to also watch their stations, because that’s how they get paid. By the ad revenue, not by selling the content. They bought the content.

        The market was:

        Local station gets content
        Local station airs content, with ads
        Local station collects ad fees.
        Local station pays affiliate fees (pays for content) using some of the ad fees, keeps a slice for themselves.

        Viewer has no relationship with the content provider, the content carrier, or the people who pay for ad space. Not directly.

        They plunk up an antenna, they get to see stuff, that’s it.

        Cable changed the rules somewhat, but not really… it was more of a case of providing *additional* content under an entirely different licensing mechanism, and really had screwall to do with the over-the-air television market.

        But since 1970, larger and larger media conglomerates have bought cable companies, libraries of movies, local broadcast stations, small ISPs, and a partridge and a pear tree.

        The new, emerging business model of the media conglomerate is to charge the individual customer, directly, for the content, effectively cutting out local broadcaster (whom they own), which is fine with them, because maintaining antennas and a broadcasting station is expensive, they just do it because the regulatory structure that was built from the time the first black and white teevee was shipped grants them certain rights and privileges as long as they maintain the broadcasting service. If they can get to the point where the customers are paying them directly for the content, and the advertisers are paying them directly for ad placement, and sometimes advertisers are paying them also to insert ad placement directly into the content, well, then they can start petitioning the regulatory structure to get rid of all the broadcasting rules and requirements because, yanno, nobody does it that way any more.

        And they’ve gone from one revenue stream to three.

        Now, to be clear, I don’t know that this isn’t a better way to do business. Companies like Netflix are getting into the content business, but they’re selling the content a la carte, which is arguably better for the consumer than the bundled content that DirecTV or TimeWarner Cable sells you in packages (packages, I might add, that they can advertise, get you on a contract, and then drop channels that they told you were in that package because fuck you, I don’t care that you signed up for the UltraPremium package so that you could get ESPN 2, 3, and International, somebody bought ESPN and they now want me, the cable company, to pay them, the content provider, three times what I used to pay for ESPN and I have to take the Home Whatzis Channel, too).

        All of these mid-transition situations are balls, though… because all of the costs of any of the weird subcurrents of the transitional market are going to be dropped right on the consumers’ heads.

        At any rate, nothing Aereo was doing was breaking any rules, flat period end of story. The Supreme Court just decided that the FCC rules didn’t apply, because… reasons. I need to read the whole result, rather than just reviews of it, but I suspect it’s going to be utter garbage. If content providers have a problem with the regulatory structure that was built to give them their for-profit business model in the first goddamn place, the right place for them to try and solve that is through the legislative process. SCOTUS should have punted this to Congress.

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      • C.J. Roberts seemed to understand modern smart phones pretty well in Riley. This was a vote that surprised me a little bit. I’m not surprised in the outcome; I expected Scalia to join with the Ginsburg bloc. But Roberts is usually pretty pro-police on search and seizure issues, so I was expecting a dissent from him or Thomas.

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      • Probably because they all HAVE smartphones.

        it’s pretty easy to see the privacy implications when you own one. It’s harder if, say, you’re talking [technobabble cloud techspeak technobabble].

        In retrospect, I should have really paid more attention to that case simply because it was one where the judges would have a pretty solid grasp on the consequences without a lot of crap to wade through, which meant the ruling (as it is) is a pretty darn important one.

        No “unforeseen consequences” — it’s a pretty solid look at how they view the issue, because there’s far less of a chance of them misreading the technological implications.

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  3. In Utility Air Regulatory Group v. EPA various different majorities held that (1) the EPA can regulate greenhouse gas emissions from stationary sources, but (2) not on the basis of greenhouse gas emissions alone. The word “anyway” becomes a technical term, as in “sources that would fall under EPA regulation for emission of pollutants other than greenhouse gases anyway“. That’s not a direct quote, but the opinion, plus the concur/dissent follow-ons, do use the phrase “‘anyway’ sources” repeatedly, which I find amusing. To sum up, the EPA got most of what it wanted for the short term, but not for the reasons that it argued it should.

    Given the EPA plan is to assign each state a number for how much it must reduce greenhouse gas emissions from power plants, and that the states will have to come up with their own plan for achieving the reduction, I expect to see several cases involving the state plans in federal court in the coming years.

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      • Not sure how you decided on the good/bad. This case just settled that the EPA can regulate CO2 emissions from stationary sources (eg, power plants). Next round (maybe two years?) will decide whether the recently announced plan for how much reduction has to be achieved, state-by-state, stands. Assuming that happens, since each state gets to create its own plan for how to achieve the reduction, is for several of those plans to wind up in court. Long-term effect in Pittsburgh might be significantly more-expensive electricity — certainly that’s what the generating companies there are going to claim.

        Your good/bad choices make some sense if this were the EME Homer City decision handed out back in April — another example for Burt of a significant decision released before the end of the term — that upheld the Cross State Air Pollution Rule, but only some. CSAPR doesn’t apply to North Dakota at all.

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  4. McCullen v. Oakley: As sympathetic as I am to the right of women seeking abortion to not be harassed, I think this was a good decision. I think it’s critical that we restrict encroachments on First Amendment rights, as each step makes the next step a little easier.

    McCutcheon: Same argument as above. If money doesn’t actually equal speech, it’s an important amplifier of it, and limiting the size of speech amplifiers is a limitation on the effectiveness of speech.

    NLRB v. Canning: Thank god! I can certainly understand the President’s frustration at not being able to get his nominees confirmed (sometimes not even an up/down vote), and from a strategic perspective I can respect his attempt to find a possible path to his goal and see if it would work. But as a precedent this would effectively allow a president to do regular end-runs around the Senate’s advice and consent function. And presidential aggrandizement of power has developed at such a pace in the last century that any place it gets nipped in the bud a bit is vital. (And, really, Scalia can’t control his need to be vitriolic even when he agrees with the majority’s outcome? We need a good test for diminished mental function and a constitutional amendment to require annual testing of the federal judiciary.)

    Search and Seizure cases:
    Fernandez: Don’t like it, but probably the right call. Maybe though, there should be a limitation that the police can’t enter the absent suspect’s closed bedroom, that only common areas and things in plain view are eligible for search in such a case.

    Navarette: Don’t like it. Don’t like the way that anonymous tipsters are a de facto end run around the right to confront one’s accuser and a tendency toward creating a secret police.

    Riley: Great outcome, but I’m astounded at a unanimous ruling. Now if we can just get a ruling for forced X-Rays and enemas.

    Schuette: However one feels about AA as a policy, the idea that it’s constitutionally required seems a hell of a stretch.

    Greece v. Galloway: Will you fishing Christians just stop already? You’ve got just as much religious freedom as the rest of us, so can you just stop trying to impose your religion on the rest of us? Seriously, just a little live-and-let-live courtesy from you self-absorbed bastards would be greatly appreciated.

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      • The problem I see with what you guys propose is that I could be standing 35 feet away screaming “You’re a whore and you’re going to hell you baby-killing bitch” and we’re going to say that’s legit, while the person standing quietly on the sidewalk with a sign saying, “Please respect life” is illegitimate.

        Is proximity really the problem here?

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      • Kim,

        Out of arm’s reach seems perfectly reasonable to me. Double arm’s length even. Hell, I’d even go triple arm’s length, and then we’re pretty much around your ten foot range. If you’re within range of immediate physical contact, you’re too close.

        I’m wondering if Heffman’s “accommodating” Christians are willing to be at least that accommodating?

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      • The reason I’m fixating a bit on this issue is that RAV v. City of St. Paul has basically already ruled out allowing localities to proscribe TYPES of speech and content. So the only solution had been to keep those people AWAY from locations where they could serve as a threatening presence.

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      • The reason I’m fixating a bit on this issue is that RAV v. City of St. Paul has basically already ruled out allowing localities to proscribe TYPES of speech and content. So the only solution had been to keep those people AWAY from locations where they could serve as a threatening presence.

        So then you’d be okay with a 35 foot buffer zone around any business that sells meat or fur or hires non-union workers?

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      • You can’t directly threaten someone. You can’t spit on them. You can’t throw things at them. You can’t assault them, much less commit battery.

        Yes, words can hurt, and our old schoolyard chant of sticks and stones can break my bones but words will never hurt me was more bravado than truth. But those words can be hurled from 35 feet away, and the signs can be just as visible.

        And as much as it can hurt, in a democracy speech does get privilege and given broad leeway. In my view it is holy.

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      • Words can be hurled from 35 feet away, but there’s definitely a difference in how damaging those words can be if you’re within arm’s reach of someone (or within relatively close proximity while lugging around weapons) vs. being 35 feet away.

        Also, the fact that RAV v. St Paul completely ignored the fact that there had been societal intimidation and the context that cross-burning had against African Americans when proscribing certain types of speech was ridiculous in the worst possible way.

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      • In the context of the buffer zone case, I think it originated from a surprisingly (even by abortion clinic terms) nasty problem.

        Like assault, blocking the door, death and violent threats, and even pretending to be police or security guards to get close.

        The physical gauntlet wasn’t on display for the case, it was the quiet old ladies. That wasn’t what prompted the law — which means they’re STILL going to have to deal with that, and in terms of just keeping a lid on things a 35 foot zone was probably better for both sides than constant arrests and police interference.

        We’ll see how it pans out, but I suspect Mass (it was Massachusetts, right?) is going to come right back to a more tailored buffer zone. Or a lot more pepper spray.

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      • Like assault, blocking the door, death and violent threats, and even pretending to be police or security guards to get close.

        All of those thing are in and of themselves illegal and can be stopped by enforcing laws that are already on the books.

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      • Words can hurt but MA enacted their law because of specific instances of violence including two shootings.

        I have never seen people protest outside a place that sells meat or fur. The union protests I see have always been very respectful and never tried to block entry. Usually it is one or two people with an inflatable rat or Grim Reaper and the union reps are merely handing out pamphlets and wishing people good day. There is a hotel near my office that gets a good deal of protests over a lack of contracts and they don’t block entry. They just go around a circle and chant. So great strawman.

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      • Sorry, Nob, but we don’t ban symbols, even if ugly, in the U.S. I think you’re reacting generally to things that are offensive, but you’re not getting serious about delving down into the details of how we’ll effectively ban them. So we ban burning crosses on public sidewalks, what about in my own front yard across the street from the black family? What about the image of a burning cross I paint on my garage where the black family across the street can see it? Or on the T-shirt I just happen to always wear as I wait peeking out the window so I can “coincidentally” go out to get my mail at the same time the guy across the street does?

        Confederate flags? Are we going to ban them? Just in some cases, not in others?

        Swastikas? A Jewish family moves in across the street and I paint a swastika on my garage? Maybe I cleverly fit it in with some other symbols, so I can pretend it’s not really about anti-semitism?

        Can we ban people, at least white people, from saying nigger when the black person walks by less than 35 feet away? Fine people for walking by the synagogue as the congregation comes out and saying “Auschwitz was too good for you kikes”?

        All of these are offensive, and no decent person would do these things. But banning them without treading into thought police territory is pretty damned tricky in my view.

        Of course that’s a tangent from the original question here, about proximity. And that’s ok, I just wanted to make sure you were aware that I was aware that the discussion had drifted.

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      • Saul and Kim,

        Do we seriously think that someone intent on killing is going to worry about needing to try to do so from 35 feet away? Do we really think we’re going to deter them, or force them to take a trickier long-range shot?

        Or are we just going to deter non-violent people?

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      • James,
        Protesters were dressing up as “Clinic Guides” (my term) and then intercepting the understandably confused clientele.

        If you keep someone at least 35 feet away, at least you might have time to see them coming. Remember, everyone’s already wearing bulletproof vests. at that point, you’re better off getting cover.

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      • Acts of violence are already illegal we should enforce laws against them rather than pass laws restricting non-violent speech. The law in question bans non-violent speech against one target while allowing identical speech against another target(“abortion is murder” vs “meat is murder”.

        Although i don’t think it relevant there have been countless cases of violence comming from both animal rights and union protests, a high profile example of that latter is the violence at the AFL-CIO organised protest at the WTO in Seattle.

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      • All of these are offensive, and no decent person would do these things. But banning them without treading into thought police territory is pretty damned tricky in my view

        While I understand that there’s no easy way to craft legislation that can distinguish between intimidation and “merely” being offensive, it’s not the symbolism that’s problematic, it’s the fact that it’s tied to a history of violence and coercion that makes cross-burning so horrible. Ditto anti-semitism, or misogyny.

        In which case, it seems to me, that it’s perfectly reasonable to create spheres where people don’t have to deal with the additional traumatic burdens that come from those expressions.

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      • Nob,
        Traumatic burdens are different for everyone.

        Someone says they don’t want to be around young black men.
        Someone else says they don’t want to be around gay people (and complains about systematic harassment because he keeps on being hit on by guys whose gaydar is off, and who refuse to accept “I’m not gay” as fact).

        We have this “if it’s directed toward you, if you fear for your person” form of restricting speech. So, someone can put up 88 everywhere, and it’s no harm no foul (though you won’t see me near if I can possibly drive off).

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      • FWIW, , the general consensus is that R.A.V. v. St. Paul has subsequently been limited pretty much to the specific facts of that case. The “viewpoint neutrality” theory of that case never really got a lot of intellectual traction; it is technically still good law but also close to a dead letter at this point.

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      • it’s not the symbolism that’s problematic, it’s the fact that it’s tied to a history of violence and coercion that makes cross-burning so horrible.

        Well, that history is what gives it the symbolism, right? Otherwise it’s just a couple of burning sticks. I just don’t think “it’s not the symbolism that’s problematic” is right in any way.

        In which case, it seems to me, that it’s perfectly reasonable to create spheres where people don’t have to deal with the additional traumatic burdens that come from those expressions.

        Again, then, should I be barred from burning a cross on my front lawn so the black family across the street can see it? Or, assuming there are good viewpoint neutral bans on front lawn fires or open fires of any kind in a dry region, should I be barred from painting a picture of a burning cross on my garage door so that the black family will see it daily?

        We’re assuming I’m a racist now, and let’s say I’m a shop-owner who knows I can’t refuse to serve black people but would like to keep them out of my store, so I put the picture of the burning cross in my store window. Can we ban that?

        Or say I run an open pit barbecue restaurant where I have a permit to have an open flame. Racist that I am I’m sure black people can’t resist good barbecue, so I make sure to always have a burning cross in the middle of the pit. Can we ban that?

        You keep emphasizing the foulness of the symbol or the acts, but that’s not something about which we’re in disagreement. Application of the law is what matters.

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      • Libel law? So, if you can prove the critic lied or acted with reckless disregard for the truth, with statements that can’t be seen as personal opinion, caused harm to a person’s reputation or caused material harm, it’s a tort allowing a civil action? Shrug. Sure, but that doesn’t get you to a 35 foot buffer zone.

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    • McCullen v. Oakley: As sympathetic as I am to the right of women seeking abortion to not be harassed, I think this was a good decision. I think it’s critical that we restrict encroachments on First Amendment rights, as each step makes the next step a little easier.

      I find this a little surprising given your vehement critique of George Will. It seems to me that to some extent this sort of de facto harassment and intimidation seems like a terribly broad reading of speech. It’s certainly entering into protecting the right of people to verbally assault others, that strikes me as problematic.

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      • I don’t see the conflict at all, since rape and abortion are very different things (and most abortions do not stem from rape). It’s also not about team red v. team blue, since I’m on team puce.

        For me it’s about prioritization of conflicting rights. Free speech is critical and constitutionally protected. Freedom from being insultingly yelled at is nice, but neither critical nor constitutionally protected.

        I am, though, strongly in favor of other protestors getting in the face of the anti-abortion protestors and telling them to actually act Christ-like. Or standing between the Westboro thugs and funeral-goers. I still believe the best–even though it be imperfect–response to bad speech is good speech.

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      • I guess I don’t see there being a clear, bright line between bullying, intimidation, and threats vs. some holy thing called speech. And given the emotional baggage society already imposes on women who get abortions, I’m not sure if the prioritization you speak of is proper, particularly given that there’s already a tendency for US society to trivialize and minimize the harm stemming from harassment and bullying.

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      • dand,

        You mean letting PETA idiots stand on public university sidewalks mouth-frothing at bio profs? Sure. Raiding mink farms to “liberate” the critters? No.

        I’m really not a team red/blue guy on this. I think each side has a constitutional right to be vocal idiots, no matter how much I hate their ideas. I fully support right of both Nazis and Commies to march openly and get laughed at by everyone else.

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      • Nob,
        I don’t think there’s a clear bright line, either. That’s why I lean toward pragmatically defining speech broadly.

        And I do see speech as holy. You can’t have a democracy without it, and you can’t trust the government or the majority to decide where to draw the line between acceptable and unacceptable speech, because it’s particularly the speech of the minority that needs protection.

        Keep in mind the issue we’re talking about here. Pro-life people see abortion as literal pre-meditated murder. It doesn’t matter that you or I disagree, or what kind of logical arguments we can make against it, that’s what they (or many of them) believe. I don’t accept a position of “I don’t think it’s really murder, so I’m not going to allow you to express your deep-seated belief vocally at the very last moment you have to try to save a life.”

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      • I think it’s perfectly reasonable to say “You may have your beliefs, but you don’t have a right to traumatize other people while in the process of expressing them”. Again, it’s the trivialization of the real harm caused by words and intimidating behavior by mobs against individuals that’s the problem. How different, fundamentally, is it than the attempts to slut-shame victims of sexual assault, or people picketing, calling, or otherwise harassing a rape victim because she makes an allegation against a figure that’s popular?

        What about if the protesters decide to picket an abortion clinic while openly carrying weapons? Burning crosses on the sidewalk in front of a black family’s home? Putting a noose around a statue of MLK? I mean all this stuff is technically legal as expressions of free speech.

        …but it’s also pretty much getting into violence and intimidation that go beyond free expression and into infringing upon the targeted party’s basic human dignity. I grant you that there’s no constitutional right to be safe from threatening speech and intimidating behavior, but that edges more into rights that are even more fundamental in any free society.

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      • Nob,
        You’re talking about the form of expression, rather than just where the expression takes place. And I’ve already there’s no bright line, but you’re the one who seems to be functionally drawing one. At least I don’t know of a way to readily distinguish traumatizing speech from merely critical speech–it would seem to rely a lot on the response of the listener, and we have a long-standing common-law tradition that general rules don’t get set to the standard of the most sensitive among us.

        Can we sometimes figure out when criticism bleeds over into harrassment and terrorizing? Sometimes. So let’s try to do that. But a blanket rule that you can’t do any protest within X feet of people? That’s using a sledge hammer when you need a scalpel.

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      • If someones family was murdered by communists they might find Che T-shirts offensive? Does that mean you’d be ok with banning them, or do you have a double standard based on the speaker being a member of team blue vs team red?

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      • Really? If you can’t understand why there’s a difference between gathering a group of people to yell at them and hurl vicious language toward them and wearing a t-shirt, I don’t think there’s any level of explanation that’ll get through to you.

        Trolling isn’t particularly civil, and I’m not inclined to waste any further effort on answering stupid false equivalences, but for the record, I would be perfectly fine with say preventing PETA from mobbing around a biology professor and screaming abuse at them while they’re heading to class, or labor unions forming cordons and yelling threats and abuse at replacement workers.

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      • Really? If you can’t understand why there’s a difference between gathering a group of people to yell at them and hurl vicious language toward them and wearing a t-shirt,

        Would you say the same about a t-shirt with swastika or confederate flag on it? Communists murdered more people than either the CSA or Nazis and as such communist symbols should be treated the same way as the confederate flag or a swastika.

        Trolling isn’t particularly civil, and I’m not inclined to waste any further effort on answering stupid false equivalences

        I’m not trolling i’m debating. If the difference is so obvious then it should be easy to explain using objective criteria, but instead of doing so you call me names shout “false equivalence!”, then run away.

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      • Passively wearing attire, while potentially offensive, doesn’t rise to the level of threats and intimidation. Your fixation on specific symbols (none of which hold any particular significance to me) belies your partisan focus.

        Objectively there’s a difference between taking offense at symbols being worn by people at random in public, and being the target of specific, targeted actions conducted by people.

        Hell a quiet dude standing with a placard wouldn’t be a problem, as opposed to a dozen people yelling and screaming. Are you seeing the difference yet? Seriously.

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      • Passively wearing attire, while potentially offensive, doesn’t rise to the level of threats and intimidation. Your fixation on specific symbols (none of which hold any particular significance to me) belies your partisan focus.

        I’m not partisan, i’m just a free speech absolutist ans anti-communist. Do you favor treating Nazi and communist symbols the same.

        Objectively there’s a difference between taking offense at symbols being worn by people at random in public, and being the target of specific, targeted actions conducted by people.

        Under that criteria a person standing outside an abortion clinic yelling “abortion is murder” is no different than a person standing outside KFC yelling “meat is murder” yet under the law in question on is legal while one is not, the law should treat them both the same.

        Hell a quiet dude standing with a placard wouldn’t be a problem, as opposed to a dozen people yelling and screaming. Are you seeing the difference yet? Seriously.

        Under the law in question both are illegal.

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      • The Democrats were the party of slavery and Jim Crow. Can we ban the donkey? Or since they’re the racial good guys now and the Republicans are evil, can we ban the elephant? What about white sheets? Nooses? What about the backward swastika, which has an ancient history distinct from the Nazis, but could be used as an end-around by neo-nazis when we ban the regular swastika? The confederate battle flag, or the stars and bars, too?

        All burning crosses?

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      • James,
        Nice one with that last one.

        Nob,
        Unlike, say, Australia, which will seriously arrest people for making fun of Aboriginals (to the point that free speech advocates are Well Advised Never To Set Foot There), America tends to default on the side of “letting things lie.”

        That said, your original concern was about threats, and threats are quite clearly not free speech. Simple assault…

        What that kos link shows is that there is deliberate lying and fraud going on, and I’m not sure if that’s prosecutable. If you dress like a clinic worker, and then proceed to intercept people — is that illegal?

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      • I haven’t actually argued for banning any symbols, so I’m not sure where you’re getting that tangent.

        I do think there’s a significant difference between curtailing speech against government and curtailing it against private citizens. Just like how there’s a public figure exemption to libel and slander laws.

        Speech is a contextual thing, there will always be connotations behind expressions that go beyond simply expressing an opinion. Calling someone a nigger is offensive. Gathering your posse,. dressing up in white sheets, and burning a cross in front of that same person’s house is something beyond offensive and going into making threats to their personal safety, even if you don’t purposefully use threatening language or “violent rhetoric”.

        Given that throughout its entire history the US has never actually sought to curtail activities of the latter nature and has consistently allowed people to threaten, intimidate and otherwise apply pressure to minority groups, pardon me for not being super sympathetic to this notion that respecting their right to AVOID harassment somehow constitutes thought policing.

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      • I haven’t actually argued for banning any symbols, so I’m not sure where you’re getting that tangent.

        Well, you did say,
        I don’t really have a problem with treating Soviet, Nazi, CCP, or CSA symbols as all being symbols of monstrous oppression of one sort or another and treating them equally.

        If you meant all equally protected by the First Amendment, then I’m totally on board with you.

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      • “communist symbols should be treated the same way as the confederate flag or a swastika.”

        Oh, you mean incorporating the hammer and sickle into state flags, and adorning the back of pickup trucks with them?

        OK, if you say so.

        Although, I gotta say, seeing you equate the Stars and Bars with the Nazi swastika makes my liberal heart go pitter pat.

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    • “Will you fishing Christians just stop already?”

      Stop what?

      What exactly should that group have done to be more accomodating?

      Unless you’re saying “fuck the First Amendment, I want public expressions of religious sentiment BANNED”

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      • It’s not about expressions of religious sentiment, which are perfectly ok. Even in public. If you want to stand in the park and pray out loud, even on a PA system, I’ll staunchly support your right to do so. Hell, if you want to use the comment period at a city council meeting to say a prayer out loud as your comment, I’ll support your right to do so.

        But we’re talking about government-sponsored prayers here, “the” prayer before the governemnt meeting, so it’s about establishment, not religious freedom. So if you all are going to insist upon prayers before government meetings, at least stop setting things up so they’re almost always Christian.

        So to answer your specific question:
        1. Stop thinking that you need to have a Christian prayer before a government meeting.
        2. Stop thinking that government sponsored prayers are merely public expressions of religious sentiment, rather than falling into establishment territory.
        3. Stop rigging the game so that these supposed voluntary public expressions of religious sentiment are a game only Christians get to play.

        This is not simply anti-Christianism. In Dearborn, MI, which is heavily Muslim, there were efforts to restrict Christian proselytizers from setting up shop at a public festival. That’s a no-go. And if the Dearborn City Council had prayers before meetings and they were always Muslim prayers, I’d oppose that, too.

        But I’m fine with church bells on Sunday morning, and I’d be fine with a mosque’s call to prayer 5 times a day. It was a bit jarring when I first heard it at 4:30 a.m. in the UAE, but I quickly got used to it and it became a nice element of the rhythm of the day.

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      • By the way, Jim, here’s what “accomodating” seems to mean for Christians. The article’s about a proposal to broadcast the call to prayer from a mosque in Dearborn, and Christians who oppose it.

        ‘My main objection is simple,” she said. ”I don’t want to be told that Allah is the true and only God five times a day, 365 days a year. It’s against my constitutional rights to have to listen to another religion evangelize in my ear.’

        But apparently it’s ok to be told that Jesus is the true god before city council meetings. And for her religious freedom is not having to hear any other religions expressing their beliefs.

        ”Everyone talks about their rights,” Mr. Schultz said. ”The rights of Christians have been stripped from them. Last week there were Muslims praying downstairs, in a public building. If Christians tried to do that, the A.C.L.U. would shut us down.”

        This is a lie that’s being repeated by Christians almost non-stop in this country, and hinted at even by you, that we’re trying to stop Christians from praying in public, or that they’re already not allowed to pray in any public building. Seriously, you’re the only group that gets to regularly open up public meetings with your prayers, yet people in your group are still claiming they’re not allowed to pray in public while others are.

        So, this “accomodating” business? I don’t see much of that in American Christianity. What I see is a lot of effort to preserve its traditional place of privilege over other religions and over the non-religious.

        >Some residents complained about the potential noise.

        That’s fair, as long as the rule is evenly applied to church bells (and my college’s bells and noon bell-tower music). Just because it doesn’t personally bother me doesn’t mean the sheer noise level of these things doesn’t bother others (I can hear my college’s belltower from my home a mile away, which seems somewhat excessive).

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      • “if you all are going to insist upon prayers before government meetings, at least stop setting things up so they’re almost always Christian.”

        I’m talking about Greece v. Galloway specifically. If you want to use this as a springboard to be more generally “ARRRGH CHRISTIANS DARRRRGH” then I guess it’s not useful to continue the conversation.

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      • ‘My main objection is simple,” she said. ”I don’t want to be told that Allah is the true and only God five times a day, 365 days a year.

        It is quite funny and telling that this guy was objecting to the Allah part and not to the “Muhammed is the messenger” part.

        Maybe he’ll go after the Mexicans next. I’m tired of those people always proselytizing for their god Dios.

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      • It is quite funny and telling that this guy was objecting to the Allah part and not to the “Muhammed is the messenger” part.

        Heh, that part slipped right by me.

        Of course many Christians are happy to tell you that the God of Abraham, Isaac and Jacob somehow isn’t really the God of Abraham, Isaac and Jacob.

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      • IMO the Town of Greece did in fact set things up so that they would always get a Christian prayer. The policy adopted by the Town was to invite a “chaplain of the month” selected at random from a list drawn up by the city clerk, to deliver a benediction. But in order to get on the list at all, the cleric had to both 1) maintain a house of worship within the city limits, and 2) respond in the affirmative to a solicitation sent out by the clerk to houses of worship within the city limits. These seem like reasonable rules on their face, right? But it just so happens that the only houses of worship within the city limits of Greece, NY, are Christian churches:
        There is a substantial Jewish population in Greece, NY, but all of the temples and synagogues are either in unincorporated land or in neighboring Rochester. So, there are no Jewish houses of worship within the city limits.
        There are enough Muslims to support a mosque, but the mosque is in unincorporated land near the city. So, there are no Muslim houses of worship within the city limits.
        There is a substantial pagan population (I actually know of one them, he was a childhood friend who moved there for his job), but they do not maintain a house of worship at all and instead meet at the homes of various members of their group, or they rent outdoor space, usually on private land, for outdoor rituals and merriment.
        There is a substantial atheist-agnostic-skeptic population but they too meet in private homes rather than a dedicated building, and when they do meet, they are of course not worshiping anything so any building in which they gather to be atheists together would not be a “house of worship” at all but rather a “house of non-worship.”
        So, reasonable-seeming rules operate to filter out every kind of disfavored religious viewpoint. Anyone with business before the town council — business owners, say, or people looking for zoning variances to improve their homes — must therefore attend a town council meeting that begins with a Christian prayer in which all of the elected officials and professional staff visibly participate and then celebrate the cleric delivering the prayer.

        If you can’t see a governmental endorsement of Christianity in this, then change it from Greece, NY to Dearborn, MI, and change Christianity to Islam, and imagine being a Christian with business before that city’s governing body which begins all of its meetings with Muslim benedictions and readings from the Koran, arrived at through carefully-engineered rules that filter out the participation of any Christians in that ritual. A bit intimidating to imagine, isn’t it?

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      • The town’s brief claims that recent prayer-givers (at the time of the Court arguments) included persons of Jewish, Baha’i, Wiccan, and Cherokee faith.

        You can argue “but they only started doing that after the whole thing went to court!” in which case I can reply “which means the respondents got what they wanted, the potential for prayer-givers to be more than just monotonously Christian, and we can all go home.”

        You can argue “but the prayer-givers are still mostly Christian!” in which case I can reply “oh, so now it’s a numbers game, an argument that the town’s practices were not sufficiently inclusive, which means that Galloway’s argument isn’t actually relevant to the problem at hand.”

        It’s also worth noting that the Galloway side used a different argument before the Supreme Court than they did at the District and Circuit Court levels.

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      • What the town’s brief elides is that each of those prayergivers was brought in by special invitation, after the Establishment Clause lawsuit was threatened. In other words, each and every non-Christian “chaplain of the month” was specifically brought in for the purpose of artificially creating an appearance of greater religious diversity than the rule conjured up.

        If you ask me, the “Quick, let’s bend the rules and get a Jew in here before we get sued!” response strongly corroborates the inference that the rules were deliberately crafted so as to endorse Christianity. But it turns out the town council didn’t need to do even that much to find cover. SCOTUS did not address this facet of the case, and found no Establishment in the prayer policy. By the reasoning of the Court, even if the non-Christians had never been specially invited, there would still not have been an Establishment.

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      • I’m talking about Greece v. Galloway specifically. If you want to use this as a springboard to be more generally “ARRRGH CHRISTIANS DARRRRGH” then I guess it’s not useful to continue the conversation.

        Really, JH? You’re going to play that card after your very first comment concluded with “Unless you’re saying “fuck the First Amendment, I want public expressions of religious sentiment BANNED”?

        Was that strawman evidence of a commitment to useful conversation?

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      • From the opinion: “Yet Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted “by reference to historical practices and understandings.””

        That sounds an awful lot to me like this bit from Korematsu: ” Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities …decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily.”

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      • “In other words, each and every non-Christian “chaplain of the month” was specifically brought in for the purpose of artificially creating an appearance of greater religious diversity than the rule conjured up.”

        I, the Wizard of Speed and Time, was able to reply to your post five minutes before you posted it.

        “If you ask me, the “Quick, let’s bend the rules and get a Jew in here before we get sued!” response strongly corroborates the inference that the rules were deliberately crafted so as to endorse Christianity.”

        Or maybe what it means is that the town honestly thought they were doing everything they could to include people from multiple faiths and creeds, and when it was pointed out to them that they were failing to accomplish this they took stronger steps than they had been previously.

        But, y’know, I can understand how epistemic closure requires that you see cultural opponents as Evil rather than just Stupid.

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      • I deny the accusation of epistemic closure. I cop to a less-than-charitable interpretation of events, but in my opinion the evidence here merits such an interpretation. You are free to interpret the evidence differently of course, but that difference of opinion does not mean that I’m editing out of my world view facts which might not be harmonious with the way I’ve looked at the case.

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    • I’m waiting for an open carry, stand-your-ground state to have an abortion protest that gets a little grabby or out of hand, and the woman whips out her piece and screams, “I’m standing my ground” and plugs a few people.

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  5. 2 patent cases.

    In Limelight v. Akamai, the court held that in order for contributory infringement to exist, there must be at least one direct infringer. (The Fed. Circuit is badly split internally. One faction adopted a rule that a single person must perform all the steps of a method in order to infringe a method patent. The other faction did an end-run around that rule by allowing for multiple parties to contribute to infringement of a method claim. No dice, said the Supremes unanimously.)

    And in Alice Corp v. CLS Bank, the court issued a very muddled opinion that might or might not be a major blow to software patents generally. The patent in Alice took a very old idea — intermediated settlements of debt positions — and put them on a computer. Not patentable, said the court. Why? Because running a long-existing algorithm (third-party intermediation) on well-known devices (computers) and just getting the same result a little faster has no novel step.

    Well, ok. What is the minimum requirement for a novel step? Like porn, we know it when we see it.

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    • Well, ok. What is the minimum requirement for a novel step? Like porn, we know it when we see it.

      I suppose that’s true to some extent, but can we all at least agree that running through all of the existing patents and appending “on a computer” or “in bed” to them to get new patents is probably not doing America any good?

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      • yes. While I don’t go as far as Kevin Drum (software patents should be banned!), I think the PTO should have been far tougher in the whole area of implementing existing and/or obvious algorithms on existing devices. Speed alone isn’t novelty. (Nor, arguably, is the absence of human involvement.)

        But there certainly are new methods of doing things that are both truly novel and are implemented by an algorithm running on a computer that I think are patent worthy. Email, for one. Just because the PTO has been doing a lousy job doesn’t mean you categorically ban the entire field from patent protection.

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      • I’ve slowly evolved to agreeing with Drum more than I disagree. If the Patent Office was full of wise sages who were ready to be really brutal and reject the vast majority of applications, I think it could be workable. But it’s not, so the baby to bathwater ratio at this point is approaching zero. My current company is an itty bitty startup that’s doing some pretty cool stuff, but I spend a lot more of my time worrying that we’ll get sued by somebody who has a patent on “storing data using a computing device” than thinking about the benefits we’d get if we applied for patents on some of our more clever ideas. It seems like much more of a net drag than a net win.

        My last company had serious resources for patents and patent attorneys, and we were one of the leading creators of new biometric matching algorithms. Still, the vast majority of our new stuff was kept as a trade secret instead of being patented. Patents took a lot of time and cost a fortune to defend, so if you have an idea that you actually plan to use for something, it’s often better just to use it and keep it secret rather than open it up for your competitors to clone and fight you in court over. Of course, if you have an idea that’s obvious, likely to be used all over the place, and you have no product to use it in, you might as well try to patent it and hope to squeeze some cash from a company that’s actually doing some work.

        I’d love to see the truly brilliant get rewarded for great inventions, but those are few and far between, and it seems like the social costs of rewarding them this way is becoming untenable.

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    • What is the minimum requirement for a novel step?

      Does duration matter, which is often relevant in software patents? Discrete cosine transform as a step in compressing digital video went from “novel” to “a standard method taught in every textbook” over the course of three or four years. But you had to pay the MPEG-LA group for much longer than that if you wanted to include a device that used it in your video system (including pure software implementations). And pay enough that China thought seriously about developing their own video compression standard to avoid the payments.

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  6. “Cline v. Oklahoma Center for Reproductive Justice”

    This could be a situation where the USSC is waiting for state- and circuit-level courts to hash out the issue. In Sorrell v. IMS Health Inc. the USSC found that pharmaceutical marketing was a form of free speech; circuit courts have, since then, the Second Circuit found (in U.S. v. Caronia) that off-label promotion was similarly protected, even though actual marketing is still not allowed (a sales rep can say “you can use this for this-or-that off-label”, but they aren’t allowed to make TV commercials about it yet.)

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  7. SCOTUS refused to grant cert to NCAA v. Governor of New Jersey. This means that the ruling by the 3rd Circuit stands.

    In short, NJ tried to allow a limited amount of legalized sports betting, in violation of the Professional and Amateur Sports Protection Act of 1992. NJ argued that the act was unconstitutional because it carved out exceptions for 4 states. The NCAA argued that those exceptions were due to a grandfather clause. The 3rd Circuit sided with the NCAA 2-1.

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