MGM v. Grokster (9-0; Souter writing for the majority; Ginsburg concurring; Breyer concurring)
[Topic: Copyright]
Background and Opinion:
Grokster and StreamCast, as many of you know, are distributors of computer programs allowing users to distribute software through peer-to-peer networks (I'll just refer to "Grokster" from now on). MGM and other copyright holders sued Grokster in California federal District Court, alleging that they "knowingly and intentionally distributed their software to enable users to" violate the Copyright Act. MGM offered a study that showed that about 90% of the files offered on the peer-to-peer networks violated copyright law, and futher argued that Grokster went as far as to actively encourage people to download their software for the purpose of infringing copyrights.
Nevertheless, the District Court granted summary judgment in favor of Grokster, and the Ninth Circuit affirmed. In doing so, the Ninth Circuit applied a key Supreme Court copyright case, Sony v. Universal City Studios. Sony had held that Sony's distribution of VCRs (a new technology at the time) did not violate the Copyright Act despite the potential use of VCRs to infringe upon copyrights. This was in large part because of the "significant non-infringing uses" VCRs had. The Ninth Circuit interpreted Sony's holding to require distributors of products with "substantial non-infringing uses" to have actual knowledge of specific cases of infringement before liability may attach to them.
The Supreme Court reversed and remanded. The Court accused the Ninth Circuit of upsetting the balance between copyright protection and technology innovation through a too-broad application of Sony. That Grokster's software has some non-infringing use does not end the analysis and is not basis for granting summary judgment in their favor. The fact that MGM has some evidence that Grokster actively "communicated an inducing message to their software users" to violate copyrights means that MGM has enough evidence to overcome summary judgment. Without revisiting the Sony rule (or ruling on the merits of MGM's case), the Court sent the case back down to the District Court, where the case will presumably continue.
Other Opinions:
Ginsburg (joined by Rehnquist and Kennedy) concurred. Unlike the Court, Ginsburg went further than the majority in emphasizing that it was unlikely that Grokster's technology had any significant non-infringing uses at all. Ginsburg's tone suggests that, based upon the evidence presented, she believes that MGM should be awarded summary judgment when the case goes back down to the District Court and that the Sony rule may need to be revisited to give copyright owners more protection.
Breyer (with Stevens and O'Connor) took the opposite tack in his concurrence, arguing that Grokster's technology likely does provide for "significant non-infringing uses", as did VCRs in the Sony case. While agreeing with the majority that software distributors may be liable for copyright infringement when they actively encourage third-parties to infringe, Breyer made clear that granting summary judgment to Grokster would be defensible under Sony. The Sony rule, Breyer continued, adequately balances the dual interests of protecting copyrights and fostering technology advances. Thus, Breyer concludes, the Sony rule does not need to be altered.
Impact:
Note first that the majority was NOT ruling against Grokster on the merits of MGM's case; rather, the Court's holding was simply that a technology distributor MAY be liable for copyright infringement when it actively solicits third-party users to break copyright law. I think this case will end up having a fairly limited impact, since future technology distributors will simply be more careful about making comments about "how this system is the one to go to for all your copyright infringing needs" (not an actual quote, but sums up Grokster's advertising strategy pretty closely).
Though this was a 9-0 decision, the concurrences suggest a wide split on the Court in regards to how far copyright protection should reach. The majority's more limited opinion seems correct to me, but I would also side with Breyer as far as the Sony rule goes - programs like Grokster do have many uses other than infringing copyright, and such technology should (generally) be allowed to flourish on its own.
McCreary County v. ACLU (5-4; Souter writing for the majority; O'Connor concurring; Scalia dissenting)
[Topic: First Amendment/Establishment Clause]
Background and Opinion:
Ten Commandments case #1. Government officials in two Kentucky counties had placed a version of the Ten Commandments on the walls of the county courthouses. These displays were highly visible to visitors to the courthouses. The ACLU sought a preliminary injunction against the displays, arguing that they violated the Establishment Clause. After the suit commenced, the counties expanded the displays, this time with accompanying language that the Ten Commandments formed the basic "legal code upon which the civil and criminal codes" of Kentucky are founded. The District Court eventually granted the ACLU's injunction, but while an appeal was going on, the counties again changed the display to include other "founding documents of American law", including the lyrics of the Star Spangled Banner. The ACLU again sought an injunction against this third display, but this time the counties argued that the posting of the Ten Commandments was not motivated by religious purpose; rather, it was to "educate the citizens" about important documents forming the foundation of the American legal system. The ACLU received the injunction, and the Sixth Circuit affirmed.
The question presented to the Court was two-fold: 1) whether examination of the government's purpose for the display is a valid ground for a ruling based upon the Establishment Clause, and 2) whether the Court can take into account the development of the display when determining the government's purpose.
The Court answered both in the affirmative. In an opinion authored by Justice Souter, the majority held that setting up a courthouse Ten Commandments display was in violation of the Establishment Clause when, as the Court concluded was the case here, the purpose of the display is to disrupt the neutrality between church and state. In so determining, the Court must be able to examine legislative purpose to separate what the government might say is their purpose and what the real purpose is. Here, the government claimed the display was to educate citizens on the foundations of American law. This claimed purpose, according to the majority, was not convincing. First of all, would the "foundations of American law" really include the lyrics of the Star Spangled banner? And (more importantly) the evolution of the display from a single display of the Commandments to a display including secular "foundational documents" indicates that the government's stated reason for displaying the Commandments was mere pretext. Because the display of the Ten Commandments alone in the courtroom (commanding onlookers into religiously-based action) was motivated by religious purpose, the counties could not post them on the courthouse walls.
The Court recognized that this decision does not mean that sacred texts may never be incorporated into a governmental display (after all, the Ten Commandments are part of the extensive courthouse frieze at the Supreme Court itself), but such a display is constitutionally unacceptable when there is a danger that the display disrupts governmental neutrality towards religion. The Supreme Court frieze does not because the Commandments (with Moses) are accompanied by several secular figures as part of a large display; on the other hand, it was clear with Kentucky's courthouse display (and the evolution from the solo display to the pretextual "foundations of American law" display) that the purpose was religiously-motivated.
Other Opinions:
O'Connor authored a concurrence to stress that the point of the Establishment Clause and Free Exercise Clause is to foster religious liberty in a pluralistic society. O'Connor noted that the American system has worked - particularly when compared to the violent consequences in other nations' of government involvement in religion. Though many, perhaps even most, Americans believe the Ten Commandments accord with their belief system, the Court's role is not to "count heads" before making judgments on the religion clauses.
Scalia (along with Thomas, Kennedy, and Rehnquist) dissented. The dissent largely focuses on the historical importance of monotheistic religions in the development of American society and law, arguing that this reality clashes with the theoretical principle that government and religion should be "neutral" towards each other. Scalia continued by noting that there are two competing interests in the context of public acknowledgments of God - the interest of the minority in not feeling excluded from society, and that of the "overwhelming majority" to give God thanks "as a people". Based upon "national tradition", this should be resolved in "favor of the majority."
Impact:
First off, let me strongly encourage you to read both the majority and dissenting opinions in this case, as they indicate almost perfectly one thing hanging in the balance with another Court appointment - the principle of neutrality between church and state. The majority agrees with this principle; the dissent believes the wish of the majority to "give God thanks and supplication as a people" should be honored, and thus the ability of government to in essence promote religion (at least monotheistic religions) should be preserved. It is fitting that in the middle of the majority and dissenting opinions is a concurrence by O'Connor, as her replacement will determine the future of the neutrality principle.
As far as the actual opinion goes, this Ten Commandments case is more important than Van Orden right now, mainly because the opinion in Van Orden was merely a non-binding plurality opinion. It will have broader application because of its clear re-affirmance of the neutrality principle and the ability to look to government's "purpose" - an important application, to be sure, though one that will last perhaps only another term.
Van Orden v. Perry (5-4; Rehnquist writing for a plurality; Scalia, Breyer, and Thomas concurring; Stevens, O'Connor, and Souter dissenting)
[Topic: First Amendment/Establishment Clause]
Background and Opinion:
Ten Commandments case #2. This one involved a 6-foot high monolith inscribed with the Ten Commandments which was placed outside the Texas State Capitol with several other monuments commemorating the "people, ideals, and events that compose Texan identity." The monument had been a gift from the Fraternal Order of the Eagles about 40 years ago, and the site selected based upon a recommendation of the state organization maintaining the State Capitol grounds. Van Orden, a lawyer from the area, brought a challenge against the monument based upon Establishment Clause grounds. The federal District Court held that the monument was not in violation of the Establishment Clause because the state had a "valid secular purpose" in placing the monument there, and the Fifth Circuit affirmed.
On appeal to the Supreme court, the Court affirmed. A plurality opinion (not a majority opinion) was written by Rehnquist, stressing that while the Court has a responsibility to maintain a division between church and state, it cannot hostility towards religion by disabling the government from recognizing America's religious heritage. Simply having religious content or promoting a religious message is not in itself violative of the Establishment Clause. The majority stressed that the Establishment/Free Exercise Clause test established in Lemon v. Kurtzman (requiring government action to have a secular religious purpose, to not advance or inhibit religion, and avoid "excessive entanglement with religion") does not work in this case because the Texas monument was "passive". In other words, the monument was not nearly as "in your face" (my words, not the Court's) as the Ten Commandments in the Kentucky courthouse or the Commandments placed in a Kentucky schoolroom (struck down in a pervious case).
Other Opinions:
Scalia wrote a short concurrence expressing his wish for the Court to recognize that it is constitutional for the government to favor religion generally or to "honor God through public prayer or acknowledgement."
Thomas also wrote a concurrence expressing "no doubt" that based upon the original understanding of the Establishment Clause, the Texas monument is constitutional.
Breyer joined the judgment of the court only (not Rehnquist's plurality opinion), and offered an opinion of his own. In it, he stressed that the purpose of the First Amendment's religion clauses is to "assure the fullest possible scope of religious liberty and tolerance for all." However, this does not mean that government has an obligation to purge public displays of religion completely. The line separating what is constitutional and not requires case-by-case analysis in the difficult cases, such as this. What is important is how the religiously-based object is used, and in this particular case, Breyer concluded that the Ten Commandments were used to convey the secular messages of history and proper standards of social conduct. This is unlike McCreary County, where it was clear that the Commandments were used for religious purposes. In short, though, was this very close case comes down to is that the Texas display was unlikely to cause divisiveness in practice.
Stevens (with Ginsburg) dissented. He stressed that the sole purpose of displaying the Ten Commandments was to display a religious message. Such a display clearly is in violation of the Establishment Clause and the neutrality principle - any of the "secular purposes" cited by the plurality and Breyer could have been done without reference to the overtly religious Commandments (I AM the LORD thy God, etc.). Stevens also noted that the "historical" understanding that Rehnquist, et al would like to impose on Establishment Clause jurisprudence would necessarily mean that Congress could only promote Christian messages, not all "monothestic" religions as they claim (the point being that following the "historical understanding" would be very contrary to religious pluralism).
O'Connor also dissented, citing her McCreary County dissent and agreeing with most of Souter's dissent.
Souter completed the long train of separate opinions with a dissent. Stressing the neutrality principle, Souter noted that this display promoted a religious message in violation of the Establishment Clause. Souter also criticized the plurality opinion for claiming that the posting of the Ten Commandments was any more "passive" than their posting on a schoolhouse wall.
Impact:
Not much right now, simply because there was no majority opinion here. When O'Connor's replacement is installed, though, this plurality may become a majority. In the meantime, I admit to some difficulty with these Ten Commandment cases - I expected to unequivocally disagree with the placement of the Commandments in both cases. However...Breyer's concurrence does raise a good point. If the (perhaps slightly) more passive Texas display is unconstitutional, I'm not sure how the Ten Commandments on the Supreme Court frieze is constitutional, or how the "In God We Trust" on the dollar bill is constitutional. And perhaps they are not, but as a practical matter it doesn't seem like these are a huge deal. I'm conflicted, but I might actually side with Breyer on this one (disclosure: I am a practicing Catholic, which may alter my viewpoint on this - so I'd be interested to hear from atheists and non-Judeo-Christians about these latter examples).
National Cable v. Brand X Internet Services (6-3; Thomas writing for the majority; Stevens concurring; Scalia dissenting)
[Topic: Statutory Construction]
Background and Opinion:
Under the Federal Communication Act, all "telecommunications service" providers are subject to mandatory common-carrier regulations. These regulations include providing "reasonable" rates for customers, systems interconnection with other communications networks, and contributions to the federal "universal service" fund. The FCC had determined that cable companies selling broadband Internet services were exempt from these regulations. Upon Supreme Court review, the question became whether the FCC's interpretation was valid under Chevron v. NRDC, which held that the Court will defer to an agency's interpretation of ambiguities in statutes under their jurisdiction as long as the interpretation is "reasonable." (Chevron is probably the most widely cited Supreme Court case of all time, by the way).
The majority, Justice Thomas writing, held that it was reasonable (in contrast to the Ninth Circuit below). The majority rejected the claim that the FCC's interpretation was inconsistent with its past practice. Further, the majority disagreed with the Ninth Circuit's conclusion that the Chevron rule shouldn't apply to the FCC's interpretation because it conflicted with a previous Ninth Circuit decision. Thomas stated that a previous court decision trumps an agency interpretation only when the court's interpretation "follows from the unambiguous terms of the statute and leaves no room for agency interpretation." Because this was not the case, and the FCC's interpretation was "reasonable", the Court upheld the FCC's interpretation of broadband services as not a "telecommunications service."
Other Opinions:
Stevens wrote a short concurrence stating that the majority's decision, while applicable to a decision by a Court of Appeals, may not be applicable when it is the Supreme Court doing the interpreting.
Breyer also concurred, responding to Scalia's dissent in this case.
Scalia (with Souter and Ginsburg) dissented. His concern was two-fold: first, the FCC's reading of the Communications Act was "implausible" and thus not entitled to Chevron deference. Most of his dissent focused on why this was so. Secondly, however, Scalia expressed concern that the majority's opinion meant that judicial decisions would now be subject to reversal by Executive officers (i.e. agency officials). According to Scalia, once a court interpret interprets a statute, that's it - a future agency decision re-interpreting the same statute in a contrary way will not be given deference.
Impact:
As a practical matter, this is a huge victory for the broadband industry (and probably eventually for phone companies as well), which now can escape current government regulation. Another deregulatory coup for Republicans. As a legal matter, the decision is also important. Thomas' majority opinion means that agency interpretation may receive even greater deference than before - even if a court has already interpreted the very same statutory provision.
Bell v. Thompson (5-4; Kennedy writing for the majority; Breyer dissenting)
[Topic: Death Penalty/Civil Procedure]
Background and Opinion:
This case presented an unusual set of facts. Gregory Thompson, after abducting and murdering a woman, was convicted and sentenced to death. Thompson eventually filed a habeas petition, claiming ineffective assistance of counsel based upon his counsel's lack of investigation into his mental health. The petition was denied by the federal District Court. As an appeal was pending in front of the Sixth Circuit, Thompson requested that the court supplement its record with a report from a Dr. Sultan, who had conducted tests on Thompson and concluded that he had suffered from mental illness at the time of the killing. The Sixth Circuit nevertheless denied the habeas petition in a divided opinion without looking at the report. The Supreme Court then denied certiorari.
It didn't stop there. Right after the Court denied certiorari, Thompson filed a motion with the Sixth Circuit seeking to extend the stay of its official mandate, which the court granted. The stay was to last until the Supreme Court disposed of Thompson's petition for rehearing. The Court did deny the petition, but the Sixth Circuit never issued the mandate, as required under a Rule of Appellate Procedure. Rather, five months after the Supreme Court denied Thompson's petition for rehearing, the Sixth Circuit reversed its own previous order. The delay was because one of the judges on the Sixth Circuit had spent countless hours reviewing the documents in the Thompson case (this after the Sixth Circuit already denied Thompson's habeas petition), eventually concluding that Thompson really had been mentally ill.
The Court, Kennedy writing, held that the Circuit Court's delay in issuing the mandate was an "abuse of discretion." This was mainly because of the time period of the delay - five months after the Court disposed of Thompson's petition for rehearing. Further, the Sixth Circuit had never given notice to any party that it was reconsidering its previous opinion. In short, the Sixth Circuit's actions represented an "extraordinary departure from standard appellate procedures."
Other Opinions:
Breyer (joined by ) dissented, arguing that the Sixth Circuit was well within its discretion to withhold its mandate when it became clear (thanks to the work of that one judge) that a serious miscarriage of justice would occur if Thompson was put to death without further review of the Sultan report.
Impact:
Whenever life and death is involved, as with this case, it is difficult to say that a case has a "limited effect." So let me phrase it this way - Bell does not have much of a long-term legal impact. The determination that a lower court "abused its discretion" in a case like this is fact-specific, so the legal import is limited largely to the unusual facts presented in this case.
Castle Rock v. Gonzales (7-2; Scalia writing for the majority; Souter concurring, Stevens dissenting)
[Topic: Procedural Due Process]
Background and Opinion:
Jessica Gonzales obtained a restraining order in Colorado commanding her husband to stay away from her and her three children. Nevertheless, the children disappeared on day, and Jessica suspected that the husband had taken them. She called the police several times, but the police department decided to do nothing about it. Early the next morning, her husband showed up at a police station and starting shooting, and was killed by police. The police found her daughters in the back of his truck, murdered.
These disturbing facts became part of a lawsuit Gonzales filed against the town, in which she claimed that the town violated the Due Process Clause because the police department had an "official policy" of failing to respond properly to complaints about restraining order violations. The question presented was whether a state-law restraining order is a "protected property interest" for the purpose of having the police enforce it when they have probable cause that it has been violated. The District Court rejected this claim, but the Tenth Circuit reversed, holding that Gonzales did have a valid procedural due process claim.
On appeal to the Supreme Court, the Tenth Circuit was reversed. Scalia, writing for the majority, noted that the procedural component of the Due Process Clause does not protect everything that might be a "benefit"; rather, it must be a protected "entitlement." Something that may be granted or taken away by the discretion of government officials, like this restraining order, is not a "protected entitlement." Finally, because Gonzales could not point to any common-law or contractual right to the restraining order, there can be no basis for concluding that she had a constitutional right to the restraining order.
Other Opinions:
Souter (with Breyer) concurred, stressing that the state does not "create a property right merely by ordaining beneficial procedure unconnected to some articulable substantive guarantee."
Stevens (with Ginsburg) dissented. She argued that the Court should have deferred to the Tenth Circuit's holding, since past Court policy defers in cases where the lower federal court is interpreting law of one of the states in its jurisdiction. As much of the analysis centers upon whether or not Colorado domestic relations law provides a protected property interest in the restraining order, the Court probably should have certified the question to the Colorado Supreme Court, rather than taking it upon themselves. Further, given that Colorado statutes have largely eliminated the discretion of governmental officials to take away a restraining order, the conclusion that the order is a protected interest is quite reasonable.
Impact:
This case was a pretty big deal for domestic violence prevention advocates, who are undoubtedly disappointed by this decision. Nevertheless, my guess is that a few states will respond to this decision by explicitly providing in their criminal law statutes that restraining orders are protected interests that the police are under an obligation to heed. Other states, I'm sure, will be glad that the Court ruled as they did, since a contrary ruling may have opened the door for greater litigation against local governments for the non-action of their police forces.
