A Round Tuit (36)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

A few months back, the Viacom v. YouTube litigation featured in one of these Round Tuit posts. The matter has now come to a conclusion of sorts, with YouTube and its parent, Google, claiming a decisive and well-deserved victory this past week. Andrew Raff reported the result:

In granting summary judgment for YouTube in Viacom v. YouTube, Judge Louis Stanton found that YouTube complied with the notice and takedown requirements set out in the DMCA [Digital Millennium Copyright Act] §512(c) Safe Harbor provision. By promptly taking down infringing works upon notice by the copyright owners, YouTube acted as service provider is required to in order to qualify for §512(c) safe harbor protection.

A general knowledge that users may be using the site to upload copyrighted material does not itself lead to liability under the safe harbor. "General knowledge that infringement is 'ubiquitous' does not impose a duty on the service provider to monitor or search its service for infringements." After all, how is a host supposed to affirmatively distinguish 3rd party works uploaded with consent from ones uploaded as infringements or others uploaded as fair use without notice from the copyright owner?

The ruling distinguishes YouTube from P2P services like Grokster and Limewire: YouTube was found to be prompt at complying with DMCA notices by promptly taking down infringing works.

As Evan Brown related, the court's focus was properly on the mechanics of the Safe Harbor and takedown processes:

Simply stated, the DMCA protects online service providers from liability for copyright infringement arising from content uploaded by end users if a number of conditions are met. Among those conditions are that the service provider “not have actual knowledge that the material or an activity using the material on the system or network is infringing,” or in the absence of such actual knowledge, “is not aware of facts or circumstances from which infringing activity is apparent.”

The major issue in the case was whether YouTube met these conditions of “non-knowledge” (that’s my term, not the court’s) so that it could be in the DMCA safe harbor. Viacom argued that the infringement was so pervasive on YouTube that the site should have been aware of the infringement and thus not in the safe harbor. YouTube of course argued otherwise.

Annsley Merelle Ward was one happy IPKitten after the summary judgment was granted:

The IPKat is incredibly impressed with what a glowing report this summary judgment seems to have been for YouTube and Google’s activities. Google and YouTube are obviously delighted.

....

Considering the mass of documents that Viacom had disclosed which seemingly evidenced YouTube’s own uploading of infringing content, the IPKat wonders why little hay was made of these documents.

....

So following this decision, the take home lesson for copyright owners wanting to get infringing material off YouTube or any other service provider's site is to draft your DMCA notice with a high degree of specificity and to actively police websites for your copyright works. For service providers, know nothing - but once you do, act fast.

Also very understandably pleased by the ruling was Google, whose General Counsel, Kent Walker, wrote:

This is an important victory not just for us, but also for the billions of people around the world who use the web to communicate and share experiences with each other. We’re excited about this decision and look forward to renewing our focus on supporting the incredible variety of ideas and expression that billions of people post and watch on YouTube every day around the world.

Super! Now give us back our damned "Hitler reacts to..." videos.

Less pleased by the outcome was Viacom General Counsel Michael Fricklas:

We are disappointed with the judge's ruling, but confident we will win on appeal.

....

YouTube and Google demonstrated that required tools to limit piracy aren't impossible to find or even that difficult to implement – they fixed the problem of rampant piracy on YouTube after Viacom filed this lawsuit.

Before that, however, YouTube and Google stole hundreds of thousands of video clips from artists and content creators, including Viacom, building a substantial business that was sold for billions of dollars. We believe that should not be allowed by law or common sense.

This case has always been about whether intentional theft of copyrighted works is permitted under existing law and we always knew that the critical underlying issue would need to be addressed by courts at the appellate levels. Today's decision accelerates our opportunity to do so.

Perhaps until things are sorted with the Downfall folks our new YouTube meme could be "Fricklas reacts to..." videos? I'll script the first one — "Fricklas reacts to England's humiliating exit from the World Cup" — in a nod to Viacom's co-plaintiff, the English Premier League:

This World Cup has always been about whether England needs to rebuild its national side, rethinking its approach to international play, and we always knew that the critical underlying issue would need to be addressed in the peace-and-quiet of a plane ride home from South Africa. Germany's ability to score on us at will accelerates our opportunity to do so.

Eric Goldman, who's followed the litigation closely throughout its long history, summed-up the impact of the decision:

The Viacom v. YouTube case has been noteworthy for numerous reasons. It involves the cherished Internet brands YouTube and Google, it's been going on forever (see my initial blog post on Viacom's complaint from March 2007), and it's generated lots of water cooler talk (see the salacious details from the parties' summary judgment motions).

Now, the case is also noteworthy because it hands YouTube a clean and decisive win on the DMCA 512(c) safe harbor. The ruling basically says that the current industry standard practices of notice-and-takedown for user-caused copyright infringement satisfies the safe harbor. Although this seems like an uncontroversial result when stated like that, the reality is that copyright owners have repeatedly angled to get a better deal than Congress gave them in 512. This case will squelch many of those copyright owner requests to force service providers to go beyond current industry-standard practices. Of course, we have to see how the opinion fares on appeal.

The opinion stays above the fray and avoids most of the messy facts from the parties' voyeuristic filings earlier this year. On the decisive question of what constitutes YouTube's actual knowledge or red flags awareness of infringement, the court immediately turns to the legislative history. Fortunately for YouTube, the legislative history is replete with defense-favorable statements.

Kurt Opsahl noted that the YouTube win protects responsible players under the current DMCA scheme, but that the struggle — even aside from Viacom's forthcoming appeal — is not yet done:

Without the DMCA safe harbors, sites like YouTube, eBay, Blogger, Wikipedia, and Flickr simply wouldn't exist. Where online platforms for free expression are concerned, it's unavoidable that some users will (knowingly or unknowingly) upload infringing material. The DMCA safe harbors give service providers like YouTube a strong incentive to remove content upon receipt of a takedown notice (Viacom sent 100,000 notices to YouTube in one day; virtually all the videos were gone by the next business day). In exchange, those service providers are shielded from copyright infringement liability.

So today's ruling, while a big win for YouTube, is hardly groundbreaking. It simply reconfirms what lawyers for Internet companies have been telling their clients for years, based on the plain language of the DMCA safe harbors. Of course, the fight is hardly over—Viacom has already vowed to appeal. Moreover, you can be sure that reversing this ruling and re-writing the DMCA safe harbors will be high on Hollywood's list of items for the Obama Administration's "comprehensive review" of copyright law, announced just yesterday.

Others also considered future copyright battlegrounds. Some suggested that the YouTube decision's reliance on prompt takedowns would lead to an overemphasis on takedowns at the expense of fair use reviews; Mike Masnick discussed the fair use problem and found cause for concern but not for panic:

[It was suggested] that those of us cheering on this ruling may now be disappointed because this ruling might lead to more bogus takedowns. Basically, the judge pointed out that Google's quick response in taking down content as soon as it received takedown notices helped give it safe harbor protections. However, many people (including us here at Techdirt) have, at times, complained about Google responding to takedowns (or content ID matches) way too quickly and not taking fair use or if it was a legitimate claim into account. The suggestion, then, is that to make sure they're covered by these safe harbors, companies may follow Google's lead and be quick with the takedown. On top of that, since the ruling reminds copyright holders that the law puts (as it always has) the burden on them to alert a service provider of infringement, they expect this ruling will lead to greater and greater takedown notices.

I have to say that I find this argument entirely unconvincing for a simple reason: to most in the tech industry, this ruling didn't change a damn thing. The judge effectively said that the DMCA says exactly what most here believed it said all along: if you get a DMCA notice, you probably should take down the content pretty quickly to avoid liability. You can leave it up, but you risk opening yourself up to liability, so for all intents and purposes, most service providers are very quick to pull down content. On top of that, most content companies that fear these sorts of things have already been pretty aggressive on the takedown front, so I don't see why they'd become any more aggressive. They're already doing all they can.

Randy Picker extrapolated from the Viacom-YouTube online video dispute to other technologies which has been gaining steam of late — electronic and print-on-demand books; Picker noted that the division between storage and "public performance" of content is an important one and companies which blur the lines between the two must tread carefully:

Consider a hypothetical. An online service provider offers backup storage for its customers. Customers copy files to a centralized server to protect against a local hard drive failure. Some customers upload files that infringe the rights of copyright holders, as might occur, for example, if a customer scanned an entire book so that it could have an electronic copy of the book. Assume such scanning to be infringing though I do understand that some contend that such full-scale digitization might be fair use under some circumstances.

The service provider notices that through its customers uploads it has amassed a very nice collection of digitized books. It decides to go into the print-on-demand business: customers check to see if a copy of the book is stored centrally and if so the service provider print outs a copy on demand and overnights it to the customer. Are these printed books protected by the storage safe harbor in section 512(c)?

I assume that the answer to that is no. The fact that part of your business may be protected by section 512(c) doesn’t insulate any other aspect of your business from potential charges of copyright infringement. Indeed, I assume that the YouTube district court agrees with me on this as it is crystal clear in stating that to the extent that YouTube’s activities go beyond the scope of storage and “allied functions” then normal principles of copyright infringement apply and YouTube is outside the safe harbor of section 512(c).

As the current Supreme Court term wound to a close this past week, a flurry of major decisions were handed-down. I'll focus on three of the more anticipated ones — Skilling v. U.S., concerning "honest services" prosecutions, Bilski v. Kappos, concerning business process and software patents, and McDonald v. City of Chicago, concerning the applicability of the Heller-construed Second Amendment to the states.

Lyle Denniston reported the decision in Skilling:

For nearly a quarter of a century, federal prosecutors pursuing corruption cases — involving public officials and those in private life — have had a broadly worded criminal law available, and they have used it both creatively and expansively. On Thursday, the Supreme Court, while refusing to strike down the law under the Constitution, pared it down to what the majority called its “solid core”: the law may be used only to prosecute bribery or kickbacks. The Court suggested that Congress may want to try to expand the law’s reach, but warned the lawmakers to approach that prospect with constitutional hesitation.

...

[T]he construction those Justices put on the law was that it criminalizes “bribes and kickbacks — and nothing more.”

The majority thus rejected Justice Department arguments that the law should also be available for prosecuting for “self-dealing” — that is, taking some action that gives one personal gain, without disclosing that fact — or going after conflicts-of-interest. Reading the law as covering anything but bribes and kickbacks, the Court ruled, would raise constitutional questions about enacting a vague law that did not give people clear warning of what was forbidden. (Near the end of the main opinion, the Court in a footnote suggested that, if Congress were to try to add new crimes under the “honest services” law, it would “leave many questions unanswered,” so the lawmakers should proceed with “particular care.”)

Christine Hurt noted that the decision seems, on its surface at least, to be a personal win for Skilling:

[T]he Court does not hold the statute unconstitutionally void, protesting that its job is to "avoid constitutional difficulties by [adopting a limiting interpretation] if such a construction is fairly possible." The Court reasons that citizens have at least always been on notice that section 1346 criminalizes bribery and kickback schemes, so it therefore holds that the statute stands, but criminalizes only bribery and kickback schemes. Good news for Skilling, though, as he did not participate in any bribery or kickback scheme.

Tom Kirkendall pointed-out that though he's won a battle, Skilling can yet lose the war:

[D]espite his resounding Supreme Court victory, Skilling’s legal battles are not over. But slowly the truth about Enron and Skilling’s role there is emerging from the cloud of prejudice under which he was tried, both in court and in the mainstream media.

The truth about Enron is that no massive conspiracy existed. In reality, Skilling and the late Ken Lay were not intending to mislead anyone and that the company was simply a highly-leveraged, trust-based business with a relatively low credit rating and a booming trading operation. Although there is nothing inherently wrong with such a business model, it turned out it to be the wrong one to survive amidst choppy post-bubble, post-9/11 conditions when the markets were spooked by revelations of the embezzlement of millions of dollars by Fastow and a few of his minions.

That Jeff Skilling did not predict that Enron would fail under those conditions does not make him a criminal. Unlike his main accusers Fastow and Ben Glisan, Skilling didn't embezzle a dime from Enron. Did he tirelessly advocate this highly-leveraged but innovative company that was dealing with difficult market conditions during 2001? You bet. But since when is it a crime for a CEO to be optimistic -- even overly-optimistic -- about his company?

Scott Greenfield was critical of the robes' determination that the notoriously vague "honest services" law could be fairly and Constitutionally construed to cover just bribery and kickback schemes:

Nowhere in the statute is "honest services" defined to be bribes and kickbacks, and indeed, no prosecutor ever said so. Sure, they were included within the confines, but it covered so much more. Anything that, in the eyes of a prosecutor, could be rhetorically argued to meet a jury's approval as the way a corporate executive or officer should act or decide would fit the bill. It could convert the executive suite to a convent, where its inhabitants were expected to take oaths of poverty, chastity and obedience. Their lives would be dedicated to their corporate god, and they would have to satisfy the dogma of their prosecutor priests.

The Supremes fixed that. They gussied up the law by limiting it to two things, bribes and kickbacks.

....

Defining words is part of the Supreme Court's job. But it usually involves only trimming the edges, not a full color and mullet cut. Had Congress meant honest services to mean only bribes and kickbacks, it would have said so. These are not unfamiliar words to Congress, a number of whose members have some intimate familiarity with them. No one really suspects that Congress intended the law to be limited to those two instances; Congress criminalized an idea rather than any specific acts. That was its purpose.

....

A properly drafted criminal law should provide no risk that it be stretched out of shape. The citizenry deserve laws that have fully defined parameters, where they can tell if they've committed a crime rather than find out afterwards that conduct that appeared to be lawful can be twisted to fit.

John Wallbillich observed:

Apparently a white collar conviction requires a crime to have been committed.

....

I recall years ago getting an annual form letter from Mr. Skilling’s former boss, Kenneth Lay. Mr. Lay informed all counterparties that Enron was committed to ethical business conduct, and that any concerns should be reported to their compliance department. At the time I believe there were a few hundred staff members working on compliance.

Enron had very good compliance training videos, too.

Bad Lawyer has little regard for Skilling and his former colleagues, but he's glad that this exceedingly-overbroad prosecutorial tool has finally been reined-in:

Readers of Bad Lawyer know that I am no fan of these greedy, materialistic bastards.... But I do not understand, as a matter of justice, how a person can be aggressively prosecuted with every particle of probative dirt piled on a guy, under the guise of proving a violation of what turns out to be a vague and invalid law, charge, indictment. How is the taint of that prosecution not prejudicial as it relates to all the other charges. If I say, Joe Flabeetz is a dirty rotten thieving bastard and he violated such-and-such vague prohibition against dirty rotten thieving bastards, how are the legitimate charges that Flabeetz took money from the petty cash drawer not prejudicially affected by the vague and invalid prohibition. When we do this as a justice system aren't we in effect saying: "never mind?" Sounds like a violation of fundamental notions of fairness to me.

Larry Ribstein suggested that the central problem in "honest services" law is whether and where to draw the line between mis-, mal-, and non-feasance considered as simply an agency cost and that treated as a criminal offense:

Whether you call it bribery or serious loafing, it’s all agency costs. Particularly since there is no coherent federal law of fiduciary duties – it’s all state law – Congress can’t assume that the courts will have any idea what it’s talking about when talks about “honest services.”

....

The Court avoided a serious earthquake by holding that the statute could be interpreted to support the bulk of honest services prosecutions involving bribery and kickback allegations.

As a result of this approach, prosecutors will still be able to use the honest services statute in future cases. However, one hopes that this case, plus revelations of what I’ve called “the real backdating scandal,” will throw a dose of cold water on the whole enterprise of criminalizing agency costs.

Stephen Bainbridge agreed, writing:

The validity of criminalizing agency costs is really a matter for the legislature.

Instead, the Court took the cases to address the honest services statute's vagueness. The statute nowhere defines what it means by "honest services." Two decades of judicial opinions have failed to articulate clear boundaries for the statute. Almost everybody agrees that bribes and kickbacks are covered by the statute. beyond those clear violations, however, there was great uncertainty.

Today, a divided SCOTUS took a hatchet to the honest services statute, using Skilling's case as the vehicle. The opinion held that the statute was not unconstitutionally vague on its face. Instead, as limited to the core set of cases that the pre-McNally case law had criminalized and which Congress intended to restore by passing the statute. Accordingly, the statute properly could be applied to fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived.

The decision in the Bilski v. Kappos patent matter had been pending for some time; considering the unusual length of time the opinions were in the works, it was suspected that retiring Justice Stevens would write the majority opinion and that it would strike-down or severely curtail "business method" and software patents which do not meet the "machine-or-transformation" test. Anticipating such a result, John Duffy wondered why the petitioners, whose chances for success he rated at "as close to zero as can be imagined", did not seek to dismiss ahead of Monday's decision date:

Kenny Rogers’ hit song The Gambler provides some wise strategic advice, valid not only in cards and but also in law and perhaps in life generally: If “fold ’em” is an option, sometimes it is the best one. Supreme Court Rule 46 on “Dismissing Cases” provides petitioners in Supreme Court cases the opportunity to “fold ’em,” and in the days remaining before the Supreme Court delivers an opinion in its Bilski v. Kappos case, the most puzzling question in the case has become this: Why won’t the petititoners in Bilski fold?

From the perspective of the petitioners, the case for seeking dismissal seems overwhelmingly strong. In the months since the oral argument in Bilski, every Justice save Justice Stevens has delivered an opinion from the set of cases argued in the November sitting. Bilski remains the only case not decided from that sitting. Because only one case remains undecided and only one Justice has yet to deliver an opinion from that month, there is widespread agreement among those familiar with Supreme Court practice that Justice Stevens is writing the Court’s opinion in Bilski. Thus, the petitioners are now reduced to hoping that Justice Stevens, who once argued in dissent that all software should be outside patentable subject matter, will author an opinion that will be more pro-patent than the positions taken by all but one of the Federal Circuit judges.

But there’s more. Not only do petitioners have no realistic hope of winning anything in the case, they also have much to lose by persisting in the appeal.

When on Monday the Bilski decision was delivered, it mystified more than a few. Instead of a broad defeat of patents — like the ones in Bilski — which do not meet the stringent "machine-or-transformation" test, the ruling invalidated Bilski's patents as excessively abstract but also held that "machine-or-transformation" was not the only game in town; Ashby Jones reported:

To many followers, the outcome wasn’t all that surprising. The U.S. Court of Appeals for the Federal Circuit had earlier struck down the patent, and many saw the Supreme Court’s decision to review the decision as reflecting a desire to push the bar even higher on business-method patents, perhaps relegating them to the dustbin forever.

But that didn’t happen. On Monday, the Court ruled that the method at issue was too abstract to be patented. But ratcheted back the ruling of the Federal Circuit, possibly making business-method patents easier to receive than they were before.

Dennis Crouch summarized the results:

In the decision, the Supreme Court affirmed that Bilski’s risk-management method was not the type of innovation that may be patented. However, rather than using the Federal Circuit's "machine-or-transformation test", the court simply relied on prior precedent to find the claimed method unpatentably abstract.

....

In general, the opinion offers no clarity or aid for those tasked with determining whether a particular innovation falls within Section 101. The opinion provides no new lines to be avoided. Rather, the outcome from the decision might be best stated as "business as usual."

....

Although the court expressly refused to rule on the patentability of software, it appears that software will largely remain patentable. At minimum, the decision would bar any categorical exclusion of software patents. The court neither endorsed nor rejected the Federal Circuit's past interpretations of Section 101 -- Noting that "nothing in today’s opinion should be read as endorsing interpretations of §101 that the Court of Appeals for the Federal Circuit has used in the past.

....

Although the majority opinion refused to define the term process, it did write that the machine-or-transformation test developed by the Federal Circuit does not define what is (and is not) a patentable process. Rather, the Court held that the machine-or-transformation offers "a useful and important clue, an investigative tool, for determining whether some claimed inventions are processes under §101. The machine-or-transformation test is not the sole test for deciding whether an invention is a patent-eligible process." As a "clue," the machine-or-transformation test likely correlates with the existence of patentable subject matter. However, some patent claims that fail the test will still be patentable and other patent claims that pass the test will still be ineligible.

Notwithstanding the somewhat inconclusive results in Bilski, Crouch noted that the "useful-concrete-and-tangible-result" test described in the State Street decision has now been rejected by a clear majority of judges and justices at the Federal Circuit and SCOTUS:

Cumulatively, this means that the broadest notion of patentable subject matter as represented by State Street is not the law. Although not "the test" it appears that the USPTO will continue to use the machine-or-transformation test as a "tool" for determining whether particular process claims fit within Section 101.

Looking at the messy result in the case (which he summarized as "We don’t like what you came up with, but we can’t come up with anything. Try something else, and we’ll let you know what we think about that."), Gerald Magliocca speculated that Justice Stevens had been composing the sort of broad opinion observers had anticipated, but "lost his majority somewhere along the way". Joe Mullin shared his suspicions:

In the last batch of opinions to which he will ever contribute, retiring U.S. Supreme Court Justice John Paul Stevens fell one vote shy in his goal of moving methods of doing business outside the scope of the country’s patent system. And he marked the occasion by weighing in with a concurring opinion that reads an awful lot like a dissent.

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In his minority opinion, Stevens argued that business-method patents are overly broad grants of monopoly rights, likely to stifle innovation and harm competition. Patents on business methods are patents on business itself," he wrote. "Therefore, unlike virtually every other category of patents, they are by their very nature likely to depress the dynamism of the market."

In the end, however, his argument couldn’t carry the day.

"It looks like Stevens could not garner five votes and got dumped from the majority," says Ed Reines, a patent litigator in Weil Gotshal's Silicon Valley office.

The ruling, Reines says, won’t create any major changes in patent law, except to encourage the Federal Circuit "to develop limiting doctrines" that apply to novel and non-obvious subject matter vigorously—especially when it comes to business-method patents. The net result, he says, is that Federal Circuit judges will be able to create their own tests and limits without "trying to read the tea leaves in Supreme Court law."

Brett Trout discussed whether the "Gordian Knot" of post-State Street business method patents remained tied:

While the Federal Circuit, and the rest of the world, were looking for a new test for the patentability of business method claims, the Supreme Court stopped short of offering any new rule or guidance. Noting that because Bilski’s claim was unpatentable under prior rulings as an abstract idea, there was no reason for the Supreme Court to further define what may or may not constitute patentable business methods. Justice Kennedy noted that Benson, Flook, and Diehr provided the necessary “guideposts” as to what constitutes a patentable process under 35 U.S.C. §101. The majority went on to note that nothing in the Bilski opinion should be read as endorsing State Street or any of the Federal Circuit’s past interpretations of §101. Basically, business as usual.

....

The ruling in Bilski did not upset the apple cart one way or the other. The ruling will invalidate very few, if any, existing patents. It will also not invite a deluge of patent applications on abstract ideas.

At the Groklaw blog, there was some disappointment that the patent law tangle remained stubbornly knotted after Bilski:

I think the State Street and AT&T interpretations of Section 101 by the Federal Circuit just got tossed overboard...

Not everyone on the court agrees in all particulars. So it's complicated, and obviously not all we hoped for. But it's encouraging in some respects as to the future. What is clear is that the "machine or transformation test," while useful, is not the *sole* test for eligibility to obtain a patent.

....

What they did is pull back some from the lower court's decision slightly. They don't get the tech, I'm afraid. And they believed the BSA, which in my view is a mistake. And they think patents are a good thing. They didn't specifically address software patentability. They passed on that question. So, this will require more work, later cases. But I find it significant that they searched for a *limiting* principle, even if not ruling today on certain categories, like software patents. They did not say everything under the sun is patentable. And they are clearly aware that patents can get out of control to the point where they hinder, rather than foster, innovation. Have we seen that before in a Supreme Court opinion? They seem to think they are describing a future problem, though, not one already happening, as far as chilling innovation. That is already happening in software development, particularly for Free and Open Source software development. Presumably future cases may open opportunities to further explain the problem.

Michael Barclay was also unenthusiastic:

By watering down the CAFC’s [Court of Appeals for the Federal Circuit] “machine-or-transformation” test, the Supreme Court regrettably failed to provide guidance in the future about business method patents. For example, suppose a patent claim is not clearly unpatentable as just an abstract idea, but it does fail the now-optional “machine-or-transformation” test. When will such a claim be patentable? The Court did not answer that question, or provide details about how to apply its “abstract idea” test.

In short, the ruling has done little to clean up the mess the CAFC helped created in 1998, when it decided State Street Bank & Trust Co. v. Signature Financial Group, and opened the doors to patents for novel methods of doing business. That ruling knocked patent law loose from its historical moorings and injected patents into business areas where they were neither needed nor wanted. The results had been nothing short of disastrous: a flood of patent applications for services like arbitration, tax-planning, legal counseling, charity fundraising, and even a “system for toilet reservations.” In its Bilski opinion, the CAFC tried to fix the problem by effectively overruling State Street. Yesterday’s ruling eroded the CAFC’s limits on process patents, and thus missed an opportunity to fix some of the problems with those patents.

With all of the speculation amongst the patent bar and legal academics about how the Bilski decision would be implemented in practice, Vincent LoTempio provided some insight into how it will be used within the USPTO; he summarized the Bilski guidance sent Monday from Robert W. Bahr, Acting Associate Commissioner for Patent Examination Policy, to his patent examiners.

In McDonald v. City of Chicago, the Court considered whether the Second Amendment right to keep and bear arms, which was determined in the recent Heller decision to be a personal right precluding absolute prohibitions of handgun possession in the home, is incorporated by either the Due Process or Privileges or Immunities clauses of the Fourteenth Amendment and thus applicable to the various states. For ease of reference if you're scoring at home, the Second Amendment provides:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Fourteenth Amendment provides in Section One:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As usual, Lyle Denniston provided the best summary of the close decision in McDonald:

Five members of the Supreme Court on Monday assured state, county and city officials not to worry: the new decision protecting a “right to keep and bear arms” against government action at any level — local, state or national — “does not imperil every law regulating firearms.” But the Court majority did not have any assurances for judges at every level, that they will be spared the duty of ruling on many forms of gun regulation that a legislature, county board, or city council has chosen to enact. And the Court gave those judges very little guidance, in its ruling in McDonald, et al., v. Chicago, on how they are to analyze those laws.

The Court did not even rule on the constitutionality of the one law that was at issue — a handgun ban in Chicago — nor did it tell the Seventh Circuit Court what constitutional standard to apply in judging that law when the case returns there. That particular law’s fate, like that of so many others around the nation, now must await a new round in court.

What the Court’s assurance aimed to do was to forecast that opponents of gun control will not win every time. But it had no authority to prevent many such battles from arising in the lower courts. It is fair to speculate that, after decades of frustration that the Second Amendment had not limited state and local power to pass gun laws, there is a pent-up demand to use it now that it is newly available as a high-powered legal weapon against such legislation. Judges, in short, are about to learn what legislators have long known: given the passionate support that exists for gun rights, virtually any attempt to curb them produces a pitched battle. The dueling of lobbyists will now be replicated by dueling attorneys.

Even before the ink was dry on the opinions, Douglas Berman was considering McDonald's impact on gun rights claims by criminal defendants:

Now that the Supreme Court has clarified that the Second Amendment applies to the states, there are likely a significant number state criminal defendants who will now start urging state courts to decide that the Second Amendment should block some state prosecutions based on gun possession and use. And the many divisions in the McDonald opinion probably ensures that lower courts will be divided when ruling on these issues.

Berman was a bit puzzled, however, by some of the dicta he found in Justice Alito's opinion:

[T]oward the end of his opinion, Justice Alito in dicta "repeats [Heller's] assurances" that the Court's Second Amendment rulings do "not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons'." Slip op. at 39-40. But doesn't this dicta essentially connote that the Second Amendment really is going to exist as "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees"?

Eugene Volokh analyzed McDonald's effect on the standard of review applicable to gun control statutes:

Courts shouldn’t simply ask whether right-to-bear-arms claims should be subject to “strict scrutiny,” “intermediate scrutiny,” an “undue burden” test, or any other unitary test. Rather, as with other constitutional rights, courts should recognize that there are four different categories of justifications for a restriction on the right to bear arms:

1. Limited Scope: A restriction might not be covered by the constitutional text, the original meaning of the text, the traditional understanding of the text’s scope, the background legal principles establishing who is entitled to various rights, or the categorical exceptions set forth by binding precedent (such as Heller’s statement that bans on gun possession by felons, bans on concealed carry, and several other kinds of gun controls are constitutional).
2. Slight Burden: A restriction might only slightly interfere with rightholders’ ability to get the benefits that the right secures, and thus might be a burden that doesn’t rise to the level of unconstitutionally “infring[ing]” the right.
3. Reducing Danger: A restriction might reduce various dangers (in the case of arms possession, chiefly the dangers of crime and injury) so much that the court concludes that even a substantial burden is justified.
4. Government as Proprietor: The government might have special power stemming from its authority as proprietor, employer, or subsidizer to control behavior on its property or behavior by recipients of its property.

But this having been said, the “reducing danger” justifications are indeed often evaluated under intermediate or strict scrutiny, and some lower federal courts dealing with Second Amendment challenges after Heller have indeed applied these standards of review. And while McDonald doesn’t purport to discuss what standard of review courts should apply, it might still affect the matter.

In a subsequent post, Volokh suggested that criminal defense lawyers in Louisiana and Oregon might leverage the McDonald decision to attack the holding in Apodaca v. Oregon that the Sixth Amendment's unanimous verdicts requirement is not applicable through the Fourteenth Amendment:

[N]ow, there’s a fresh precedent pretty solidly condemning the Apodaca approach of incorporating a right against the states, but only partly. Justice Thomas is especially on the record against selective incorporation generally, but the other four conservatives are on the record against partly incorporating a clause in a way that leaves it less applicable to states than to the federal government. And even the McDonald dissenters might be willing to revisit Apodaca; only Justice Stevens generally supported a partial-incorporation approach in McDonald, and he will now be off the Court.

Scott Greenfield foresaw decades of battles over states' and cities' attempts to re-regulate firearms ownership in the wake of Heller and McDonald:

McDonald did one thing only, holding that the right enunciated in Heller applies to the states. As with the mystery paragraph of Heller, the Court reiterated that the decision doesn't preclude regulation and limitation. This leaves open the next hundred years of piecemeal litigation over each and every inch of imaginative legislation to see where the line is drawn. We're so far away right now that we can't even see the line, no less know what the line precludes.

....

More decisions needed to flesh out the right mean more years before anybody really understands what can and can't be done.

If the City and State of New York were miraculously inclined to embrace the concept, however, the best one could hope for, given what the Supremes have offered up to now, is an onerous application/registration process for ownership of a non-automatic handgun or rifle within the home (only) for the purpose of self-defense by sane, competent and trained people over the age of 21, without any prior felony, and possibly serious misdemeanor, conviction, restraining order, and maybe open investigation.

The process would be prolonged and expensive, and would require proof of insurance for the weapon, which would again be expensive. While applicants would not be required to show special need to possess a weapon for self -defense, they might be required to provide verifiable proof of everything they've ever done in their life from birth to the day of application. In triplicate.

In other words, don't expect any rush on guns any time soon. And that's assuming the powers to accede to the 2nd amendment. They won't. They will fight it every inch of the way. Given the Supreme Court's apparent inclination to parse out the details as if the cost is paid from Scalia's pocket personally, it could take forever before all the questions are answered.

Though the complete future of gun regulation at the state and local levels can't yet be known, Matthew Scarola offered an admirable overview of Heller's and McDonald's effects. Adam Winkler, however, predicted that the effect of McDonald won't be as pronounced as some have suggested:

From the perspective of gun rights, however, that isn’t as big a change as it may seem at first. Forty-two states already guarantee individuals the right to have guns in their state constitutions. McDonald extends that right to the remaining eight outliers. None of those eight states, however, ever tried to completely ban gun ownership and qualified individuals can lawfully obtain guns in every one. The Second Amendment now applies more broadly, but gun rights more generally were secure long before this decision.

Jon Lowy also wrote that McDonald will have little short-term effect on gun regulations:

The fact is, the McDonald v. Chicago case will likely have a very limited impact. The Court reaffirmed the narrow contours of the Second Amendment right recognized in District of Columbia v. Heller, again holding only “that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense.” As a result, bans on handguns in the home are no longer permitted. But the bans in Chicago and Oak Park at issue in McDonald were the last of their kind in the nation. There are no more gun-ban dominoes to fall in subsequent litigation.

Jack Balkin joined the chorus of academics who foresee little practical effect in the McDonald ruling:

McDonald v. Chicago is a very long opinion, and quite interesting theoretically, but its practical effect is likely to be fairly small. The vast majority of states already have guarantees of a right to bear arms. The case is remanded for further proceedings. The Chicago ordinance, which bans handguns in the home, is likely to be held unconstitutional under Heller. However, the big issues really have yet to be decided. Moreover, McDonald goes out of its way to restate language in Heller suggesting that a range of traditional limits on firearms will be unaffected by an individual right to keep firearms for self-defense in the home. Since most states already apply a reasonableness test for gun regulations, and uphold many different types of gun control laws, it's likely that the federal courts will be not be much more protective. McDonald, like Heller, is a symbolic opinion more than a revolution in the practical effects of the law.

Ilya Somin was singing for the other side, but with a note of caution:

Today is a big victory for gun rights and a bigger one for liberty. The Court correctly decided that state actions violating the right to keep and bear arms are no more valid than those taken by the federal government. But it could not have been otherwise: the Fourteenth Amendment, coming on the heels of the Civil War, says clearly that never again would the Constitution tolerate state oppressions and that all individuals possess certain fundamental rights. And it is equally clear that the right to keep and bear arms is one of those deeply rooted fundamental rights, not least because the Framers thought so highly of it as to enumerate it in the Second Amendment.

....

[A]s we celebrate the belated recognition of a precious right – the one that allows us to protect all the others – we must be shocked and saddened to see four Justices (including Sotomayor, who at her confirmation hearings suggested she would do otherwise) standing for the proposition that states can violate this right at will, checked by nothing more than the political process. This is a nation of laws, not men – a republic not a pure democracy – and thus it is disconcerting to see, as we do time and time again with this Court, that the only thing separating us from rule by a crude majoritarian impulse is one vote.

In particular, Justice Thomas' concurring opinion, with its discussion of the Privileges or Immunities clause, was analyzed and applauded by many. Ashby Jones asked whether his concurrence is Thomas' "finest hour":

So you’ve never heard of the Privileges or Immunities Clause? We’re not surprised. The clause was largely neutered in a set of cases decided in 1873.

....

Commentators on the right and left urged the Supreme Court to reverse the 1873 cases and safeguard the right to bear arms through the Privileges or Immunities Clause. Such a move could have opened an avenue for individuals to claim new rights, some which might have pleased liberals, others which might have pleased conservatives.

Those arguing for resuscitation of the Privilege or Immunities Clause pinned their hopes on Justice Antonin Scalia and Justice Clarence Thomas, both known for their “originalist” approach to constitutional interpretation.

But Justice Scalia on Monday opted, along with Justices Alito and Kennedy and Chief Justice Roberts, to use the Due Process Clause. ...Justice Scalia, in a concurrence, “acknowledged misgivings about using the due process clause to apply Bill of Rights protections to the states” but went along with it “’since straightforward application of settled doctrine suffices to decide it.’”

But in a separate concurrence, Justice Thomas boldly went where no justice has gone before: to the arms of the Privileges or Immunities Clause. He wrote:

[T]he text of the Privileges or Immunities Clause . . . command[s] that “[n]o State shall . . . abridge” the rights of United States citizens . . . the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.

The rationale didn’t carry the day, but many legal commentators were thrilled by Justice Thomas’s concurrence. “He’s sticking with the text of the Constitution,” said Georgetown law professor Randy Barnett, to the Law Blog. “At the same time, nobody voices disagreement with Justice Thomas. And that’s because they can’t.”

Nelson Lund wrote:

The most interesting aspect of the decision is Justice Thomas’ concurrence, which rejects the plurality’s reliance on the judicial fiction of substantive due process. Thomas relies instead on the original meaning of the Privileges or Immunities Clause. His opinion is scholarly and judicious, and it cements his standing as the only Justice who is more than a half-hearted originalist. Thomas confines himself to the issue presented, which involves only the right to keep and bear arms, and explains why stare decisis should not foreclose an originalist approach in this case. With appropriate judicial restraint, he declines to decide in advance exactly what implications his analysis may carry with respect to substantive due process precedents involving other provisions of the Bill of Rights.

Randy Barnett added that Thomas' opinion had resurrected the Privileges or Immunities clause:

Decades of academic research that has lead to a remarkable consensus among constitutional scholars that The Slaughter-House Cases was wrongly decided have now been vindicated. Only a remarkably tepid and barely defended assertion of stare decisis by Justice Alito now stands in the way of a complete restoration of the “lost” Privileges or Immunities Clause at the heart of Section One of the Fourteenth Amendment. Not that this will happen overnight.

Josh Blackman considered where the long-lost Privileges or Immunities clause goes from the Thomas concurrence in McDonald:

[T]he Court could have ruled on narrower grounds. They could have said the privileges or immunities clause only protects enumerated rights. Or they could have ruled on broader grounds, and said the privileges or immunities clause protects nothing. Instead, they did neither. They argued that the petitioner failed to address their concerns, scholars are conflicted, and precedents stand in their way.

The exact same argument could have been made about DC v. Heller. Petitioner did not address concerns about bans on the exact scope of gun control regulations. There had been decades of debate among scholars about the history of the second amendment. And the Court reversed over a century of precedents.

But if the Supreme Court wishes to give the Privileges or Immunities Clause more teeth in the future, I hardly see this opinion as standing in the way.

Though a long-anticipated ruling concerning the Public Company Accounting Oversight Board (PCAOB) was less-than-exciting, Stephen Bainbridge found a passing quote from Chief Justice Roberts worth a take-away:

One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders. The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.

Granted, it's not exactly William Wallace's speech before the Battle of Stirling from Braveheart. It's not even President Whitmore's dawn speech on July 4th from Independence Day. But it's not bad. Not bad at all.

Inspiring? Certainly, but for my money you can't beat this from Dan Hull:

Get off your knees. Lead.

Stop whimpering, groveling, and apologetically asking employees to do their jobs.

Make yours moxie. It's your business, and your rules. Get off your knees. Demand things first of yourself--and then of others. (1) What are you doing this week at your firm? (2) What are your employees doing for you and your partners this week? (3) What did you all do together for customers, buyers and clients?

It's time for lawyers and other service providers to lead. At your shop, refuse to be a slave to lawyer-centric and employees-first popular cultures. Stop whimpering, groveling, and apologetically asking employees to do their jobs. Don't bargain with them. Show them. Lead.

Somewhat less inspiring are the results of a recent C-SPAN poll, which revealed how little Americans really understand about the functions of the Supreme Court. Elie Mystal found that those results revealed "America's ongoing stupidity about the Judicial Branch". Noting that Americans by-and-large can't name a single Supreme Court decision other than Roe v. Wade and have no clue why Elena Kagan is spending a lot of time on Capitol Hill this week, Mystal was most dismayed that those polled thought that the SCOTUS deals frequently with hot-button issues like abortion and Affirmative Action:

The Supreme Court hasn’t heard a major affirmative action case since, what, Michigan? Bollinger came down in 2003. The Supreme Court hasn’t heard a landmark abortion case since Planned Parenthood — in 1992! (Maybe I’ll give you Carhart — that was in 2007.)

Surely the Court doesn’t deal with abortion “most often.” How can we be this uninformed?

And yet, with nary a clue about what the Court does, the cases they hear, or even who sits on the freaking bench, 48% of the people think the Court is doing a better job of serving the public’s interests than the other branches of government.

The general cluelessness about the highest court in the land came as no surprise to Tom Goldstein:

Ideologues on both the left and right, as well as the public generally, frequently repeat their own received wisdoms that the Supreme Court is an easily categorized institution and that the Justices are committedly “liberal” or “conservative,” with Justice Kennedy as the lone swing vote. Liberals and conservatives also consistently accuse their opposites of being “activists,” a point vividly on display in the Senators’ opening statements in the Kagan confirmation hearings. The just-completed Term proves, I think, that those generalizations are often misleading or outright wrong.

....

Start with the Court’s ideological divide. Although some cases are decided five to four, that’s no more than twenty percent of the docket this Term (we’re running the final numbers now). Roughly half the decisions are nine to zero. Only slightly more than one in ten cases involved the narrow liberal-conservative divide (fewer, if we don’t include cases in which we presume Justice Sotomayor would have voted with the left had she not been recused).

Though the Term ended (as it often does) with decisions decided along ideological lines, other five-to-four decisions that intuitively might have been decided on an ideological basis during the course of the Term were instead resolved by totally unpredictable alignments.

....

I admit that the nuance and diversity among the Justices’ views, and varied directions of their decisions, was more apparent to me this Term than in any other that I can remember. It’s worth pausing to consider why that might be true. In addition to the fact that much depends on the precise mix of cases that happen to be reviewed, this may illustrate the point often made by the Justices that a change in the Court’s composition has unexpected consequences. Justice Sotomayor was appointed last year, of course, after the relatively recent confirmations of the Chief Justice and Justice Alito. Before that, it had been more than a decade since the last change in membership. In that earlier period, now well behind the Court, the Justices had settled into a fairly regular pattern of votes in significant cases.

Speaking of changes in Court personnel, you'll note that despite the mammoth size of this week's Round Tuit, there's hardly a mention of the Kagan confirmation hearings. Meh. Something's got to give and if you want to know all about "Lady Kaga" and her poker-faced confirmation performance, I can't beat the day-by-day coverage you get from David Lat and Elie Mystal over at Above the Law (see here, here, here, and here for first and second day liveblogs).

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., TechShout.com, Wikipedia, and Paris Odds n Ends Thrift Store.

"Wow, Fred's really put on weight since Blawg Review #70, but Babs hasn't changed a bit since Blawg Review #23!"

Dave Gulbransen is pushing forty years old and is feeling nostalgic on the occasion of his fifth Blawg Review — Blawg Review #270. He presents — in epilepsy-inducing Netscape/GeoCities brilliance, no less — a "where are they now" survey of legal blogs and bloggers linked in his previous four Blawg Reviews. Highlights include posts considering the FTC's "penalty" against Twitter, rent-a-cops on the beat, and the United States as a police state. Kevin Underhill hosts next week's Blawg Review at his Lowering the Bar blog.

TGIS: Thank God It's Schadenfreude! (275)

This week's joy in the misfortune of others comes courtesy of United Press International (from Wednesday, June 23; link good at time of posting):

Police in Australia said two men dubbed "dumb and dumber" by investigators shot each other with an air rifle to see whether it would hurt.

Horsham police said the two 34-year-old men decided to have a "bit of fun" after drinking beer Sunday and decided to shoot each other with the air rifle to see whether the shots "would penetrate their skin or it would hurt," The Australian reported Wednesday.

Police said the two men shot each other at about 5:30 p.m. and apparently believed they had escaped injury until two days later when they were hospitalized with pain and had pellets surgically removed from their legs and buttocks.

[Previous TGIS]

A Round Tuit (35)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

We're into the final weeks of the Supreme Court term, wherein each year the robes release a flurry of decisions on matters great and small. The much-anticipated Bilski decision didn't arrive this week but a number of others did, including key rulings which affect privacy and personal liberty interests.

City of Ontario v. Quon was anticipated — quite apprehensively by many — to set the tone for the Court's privacy and Fourth Amendment jurisprudence in our fast-changing age of mobile messaging, smartphones, and always-on interconnectedness. When the decision was handed down this week, however, the Court was unanimous in ruling against Quon but was unexpectedly measured in its holdings. The facts of the case — briefly, these involved personal messages sent by a government employee using a government-issued communications device — tended to limit the scope of the Court's ruling, as did the justices' recognition that the rapid pace of change counsels a measured approach to privacy issues vis-à-vis new devices and technologies.

W. Scott Blackmer offered a good capsule summary of the decision:

The Court noted that any reasonable privacy expectations were probably limited by the city’s Computer Policy, which stated (as do the policies of many employers) that users “should have no expectations of privacy or confidentiality” when using city computers. A subsequent memo made it clear that this policy extended as well to communications devices furnished by the city. Quon argued that this policy was modified by his superior’s subsequent verbal assurance that there would be no audit as long as officers paid for excess text usage. The Court declined to make a finding on that argument, assuming for purposes of the decision that Quon had some reasonable expectation of privacy. But the Court ruled that the city’s search of message content was reasonable because it was undertaken for a work-related purpose and used measures that were not excessively intrusive in the circumstances. And because the employer’s search was reasonable, the other parties who sent messages to Quon could not prevail on their argument that the review of message content violated their own Fourth Amendment rights.

Blackmer noted that only Justice Scalia urged the Court to broaden its opinion to address the privacy expectations of non-government employees; though Scalia's brethren declined to do so, Blackmer suggested that private employers would be well-advised to clearly-define a communications policy for employer-issued devices and to consistently apply that policy to avoid the complications raised by the City of Ontario's mixed messages to Quon.

Kashmir Hill culled two passages in Justice Kennedy's opinion for the Court, expressing the majority's reluctance to decide too much in Quon:

Justice Kennedy was very hesitant about the scope of today’s decision. He wrote:

Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.

That sounds like a cry for help to me. “Please, Congress, update the law!”

....

Finally, Kennedy tries to warn people not to overestimate the meaning of the Court’s decision today:

A broad holding concerning employees’ privacy expecta tions vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on nar rower grounds…

Prudence coun sels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.

Lyle Denniston also emphasized the limited nature of the decision:

It is important to stress that the part of the privacy equation that was at issue in the Quon case is a claim of privacy against government intrusion into personal exchanges — that is, whether the Fourth Amendment’s guarantees of privacy from government officials and agencies are to apply to the electronic communications of public employees. (The Fourth Amendment does not deal with questions of privacy for texting workers in the private sector, but how the courts deal with Fourth Amendment issues in this realm may well have an influence on managements in their dealings with texting workers in private offices and factories.)

The Court’s Quon decision permits government supervisors to examine the private texting of their employees but only if the following conditions have been met: the cell phone must be provided by the agency itself, the worker must have been told in advance that any messages they send on that equipment would be subject to auditing by management, the examination of the transcripts must be for a work-related purposes — such as determining whether the device was being used wrongly — and not to gather evidence of criminal wrongdoing, the review of the transcripts must be based on some grounds to suggest misuse, and management would be wise before looking at transcripts to delete messages sent when the worker was off duty. In checking up on workers’ use, the Court added, management need not use the “least intrusive” method of review.

Those, the Court made clear in the opinion written by Justice Anthony M. Kennedy, are the essential ingredients of a government intrusion into texting by workers that will satisfy the Court’s prior Fourth Amendment “controlling precedents.”

Ethan Ackerman and Eric Goldman viewed the opinion as so limited and tied to the facts of the case that it offers little utility in future matters. Ackerman wrote:

I noted with some surprise in December 2009 when the Court granted certiorari, and wondered whether this was a good or bad thing for online privacy. The glass half-full or half-empty quandary remains after the court's narrow opinion.

Goldman shared Ackerman's confusion over the Court's intentions:

[A]fter seeing the opinions, it remains baffling why the court granted cert in this case. The only obvious reason is that the Supreme Court felt like it had to fix the 9th Circuit’s mistakes, as it yet again reversed the 9th Circuit (like that wasn’t entirely predictable). Otherwise, the opinions are so limited to the facts of the case that they provide almost no value to anyone other than the litigants. That seems like a real lost opportunity for an appellate court with discretionary appeals.

Glass-half-full or half-empty, opportunity lost or no, Kevin Bankston wrote that Quon offered "hopeful signs" for employees of non-government entities:

Instead of finding no Fourth Amendment privacy protection in text messages, the Court instead assumed without deciding that there was a Fourth Amendment expectation of privacy in the text messages, but that the City's search of the text messages was reasonable under the Fourth Amendment because it was work-related. In doing so, the Court applied but did not expand its previous rulings on the limits of privacy in government workplaces.

Meanwhile, in explaining why it cautiously chose not to answer the expectation of privacy question, the Court... seemed to preview how it would eventually address the question of whether we have a Fourth Amendment interest in the text messages stored by our cell phone and pager providers, and, by extension, in emails stored by our email providers, IMs stored by our instant messaging providers, and voicemails stored by our phone providers.

Rather than automatically concluding that communications stored with third party providers are entitled to no Fourth Amendment protection at all — the rule that the Department of Justice has urged in email privacy cases such as Warshak v. U.S. — the Court made clear it would instead cautiously make such decisions based on society's privacy expectations and its level of reliance on new communications technologies....

In his opinion, Justice Kennedy wrote, "Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification." From this intriguing dicta, Douglas Berman considered a possible future direction in sentencing jurisprudence:

[I]t is not too much of a stretch to contend in these modern technological times that access to the internet (and maybe even access to a Facebook or Twitter account) is now "essential means or necessary instruments for self-expression, even self-identification." But... sex offenders these days often face release conditions that fully or significantly restrict their access to the internet and/or social networking websites. I suspect that this classic Justce Kennedy line from Quon might find its way into a few efforts in lower courts to attack limits placed on some offenders' use of modern means of digital communation.

Another narrow ruling has more troubling implications for First Amendment speech protections. In short, Humanitarian Law Project concerned an organization sought to train members of designated terrorist organizations to pursue their objectives by non-violent means. While this certainly seems a worthy objective, the activists were concerned that their trainings would run afoul of an anti-terror law prohibiting the provision of "material support" to designated terrorist organizations. The Court determined that the group's training and advocacy could be considered "material support" within the meaning of the statue (which provides for various types of support, including "training", "expert advice", and other assistance) and that, as applied, the statute did not violate the First Amendment.

Mike Sacks noted that the decision broke a recent string of decisions supporting a broader First Amendment and further noted the curious acquiescence of the liberal Justice Stevens in the opinion:

This opinion comes on the heels of two prior cases in which the Court came out with robust pronouncements of First Amendment freedoms. In Citizens United, Justice Kennedy wrote for the conservative bloc striking down significant portions of the McCain-Feingold campaign finance reform act as violating the First Amendment. In United States v. Stevens, the Chief Justice wrote for an eight-justice majority deeming unconstitutional a federal statute that criminalized depictions of animal cruelty.

The case’s national security element may have colored the conservative bloc’s opinion, but it does not account for the votes of Justices Stevens and Kennedy, both authors of landmark cases striking down former President George W. Bush’s enemy combatant policies in Guantanamo Bay.

....

Indeed, today’s case displays Stevens’s deep precedent-bound pragmatism. He not only signed onto an opinion that cited a case from which he dissented, but he also continued his less-than-absolute take on the First Amendment while also showing that he is not an unyielding civil libertarian when it comes to the war on terror.

Rick Pildes characterized the decision as a deferential one which respected cooperative law-making between the Executive and Legislative branches:

Today's decision... involves one area in which Congress and the Executive Branch worked together, over many years, to create a legal regime that makes it a crime to "knowingly provid[e] material support or resources to a foreign terrorist organization," and that fills in the definitional details. And the 6-3 decision powerfully confirms that the Court, as it has throughout its history, will give a good deal of weight to factual findings and informed judgments of the other two branches, when they act in concert.

This deference theme is, indeed, the central one that runs throughout the Court's analysis of the specific statutory terms and First Amendment issues. And it has implications for all other terrorism policies issues, including issues Congress has not confronted in all these years, such as how to structure the ongoing detention regime that currently exists at GTMO, or potential issues that might be looming, such as how the Court might respond were Congress to define the boundaries of the "public safety" exception to Miranda.

As was the case with the Quon decision, the Court emphasized that its ruling in Humanitarian Law Project was a very narrow one; Lyle Denniston discussed the Chief Justice's opinion, Justice Stevens' agreement, and the other Court liberals' reservations:

Chief Justice John G. Roberts, Jr., who wrote the majority opinion, sought to emphasize how narrow the ruling was, even while making it unmistakably clear that the Court was quite willing to defer to the political branches — Congress and the Executive Branch — on what they decide needs to be done to protect the U.S. from terrorism. Thus, the main opinion moved back and forth between stress on its narrow scope, and an acceptance that even benign actions can be interpreted as helping to advance the dangerous goals of listed organizations.

The fact Justice John Paul Stevens, who has written some of the Court’s strongest opinions rejecting government claims to power over terrorism, joined without quibble in the Roberts opinion supported the notion that it was narrow. (Stevens, no doubt, also was attracted to an opinion that applied the most rigorous test of the government power to control speech — that is, it must satisfy “strict scrutiny” — to a law designed to protect national security.) But the fact that the Court’s other liberal-leaning Justices filed a strongly worded dissent — and Justice Stephen G. Breyer took the somewhat unusual step of orally reciting the dissent from the bench — supported the appearance that the Court had gone quite far to allow criminalizing of speech activity in this realm of the law.

Whether the majority are sincere in their belief that theirs is a limited opinion or whether Justice Breyer and others are correct that this decision opens the door to more direct governmental intrusion on traditional First Amendment protections remains to be seen. Norm Pattis suspected that Breyer is correct and the Humanitarian Law Project decision has started the Court down another slippery slope:

Those looking for a bright line through this dark wood of error should focus on what appears to be the test for distinguishing material support from mere support. "The statute reaches only material support coordinated with or under the direction or a designated foreign terrorist organization," Roberts wrote. Presumably, work done in support of a terrorist group but neither coordinated with the group nor directed by the group remains protected by the First Amendment.

This is a mighty thin line. The Court's sub rosa importation of the independent contractor/employeedistinction will no doubt prove troublesome in cases to come. How do we determine when a person supporting a group is working independently or under the control of the group? While that question might be easy to determine, the question of when a supporter's activities are coordianted by a prohibited group is of necessity a far murkier issue.

At its core, the Humanitarian Law Project decision disturbs because of its reliance on the slippery slope sort of argument that justifies any assertion of government power. Although the plaintiffs in this case argued that their purpose was merely to teach groups how to petition the United Nations, Congress and other bodies for relief, the majority held that these services, which translate easily into money, are so fungible that they might free up resources for violent uses. What's more, diplomatic efforts might become time-buying ruses bent to the service of terrorist intent. All cows, Hegel once observed, look alike in the gray twilight of evening.

The dissent shreds this reasoning, and suggests that whatever deference the Court should give to findings by Congress and the Executive branch about the practices of terrorist organizations, the right to advocate for peaceable change is a core Constitutional value of ancient and venerable lineage. Frankly, I think the dissent has the better argument. Once the slippery slope analogy is adopted, there is no stopping the slide into tyranny. Consider what has become the Fourth Amendment's "reasonableness" requirement as to searches and seizures.

In a series of posts, Eugene Volokh explored areas of First Amendment law affected by the Humanitarian Law Project majority's finding that the content-based speech restrictions at issue passed the "Strict Scrutiny" test; Volokh noted that the ruling is, thus far, unique:

This decision is... the only non-overruled majority opinion upholding a content-based speech restriction under strict scrutiny. Or at least this is so if the Court’s inquiry into whether the law is “necessary to further” “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order” is another way of asking whether the law is narrowly tailored to a compelling government interest. I’m inclined to say that this is indeed so — especially since the Court’s precedents call for strict scrutiny of content-based speech restrictions — though the dissent reasonably notes that the majority is not entirely clear on this.

So what does this mean? Does it suggest that other content-based speech restrictions will be more easily upheld in the future? I think it’s possible, but not very likely, because of the Court’s repeated insistence that the law doesn’t apply to independent advocacy, and only covers speech controlled by or coordinated with the group.

Volokh explained in another post why the Court's emphasis on protected independent advocacy, whether it assists named terror groups or undermines the government's anti-terror objectives indirectly, is meaningful:

[I]f f one really takes seriously the Court’s assertion — which has often been made in other cases — that content-based speech restrictions are constitutional if they are “narrowly tailored to serve a compelling state interest,” all this speech, including the independent advocacy, could be criminalized.


But this can’t be so, it seems to me — which is why the majority (1) took pains on several occasions to note that the law didn’t apply to independent advocacy, (2) said that “In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations,” and (3) stressed that, “Finally, and most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.” We Americans must have the right to try to persuade our fellow citizens, and our government, that our government is on the wrong side in various foreign policy controversies, that groups that the government says are bad guys are actually good guys (or at least less bad than the really bad guys), or that we should change our policies about which kinds of support to the bad guys are barred and which are allowed. To do that, we need to be able to make arguments defending or even praising those groups, even when such arguments help designated foreign terrorist organizations, and thus interfere with “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order.”

If I’m right, then this means that in this situation speech can’t be restricted even when the restriction is indeed necessary to serve a compelling government interest.

Other posts in Volokh's series are available here and here.

Our justice system is an adversarial one. Though "adversarial" is generally taken to mean a contention of testimony and evidence rather than personalities, it can become a very personal matter from time-to-time. It's not uncommon for one side's counsel to accuse the other side's witnesses of misrepresentation of facts or outright fabrication of testimony. For criminal defense attorneys, making such accusations is an essential part of their role, as they attempt wherever and whenever possible to sway witnesses, inject uncertainty, or disprove false testimony. In law school, we learned that this process is known as "cross-examination".

Perhaps he missed that day in school or has forgotten either defense counsel's proper function or his own in the years since, but Judge Gregory Galler, a District judge in the Minneapolis, Minnesota area, displayed an embarrassing lack of understanding of things this past week. Briefly, during a recent trial, defense attorney David McCormick confronted a testifying police officer on the stand during cross-examination; some reports said that McCormick questioned the officer whether his testimony was designed in part to "cover his own ass", while other reports merely noted that the questioning suggested that the officer had been less than truthful in his testimony. Whatever was said, the judge was offended and ordered McCormick to write an apology for "impugning the officer's integrity".

Understandably, there was a widespread outcry over this perversion of the criminal justice process. For his part, the judge was vague about what had been ordered (he admitted only that he "might have" ordered the apology, though he later extended his deadline "indefinitely" and attempted to recharacterize his order as being directed at the mild expletive allegedly used by counsel) and expressed surprise that his order had caused such a stir. Though trial errors are certainly common enough, this one struck a chord in the blawgosphere both for its extraordinary cluelessness and for the fact that it exposed the uneven nature of the criminal justice system and courts' treatment of police and defense witnesses.

Scott Greenfield for one was unsurprised at the judge's partiality; instead, he expressed his dismay (with tongue in cheek) that McCormick had not done even more to earn the judge's ire:

Judge Galler was outraged, apparently, by McCormick's "suggestion" that the officer was being less than truthful. I, on the other hand, am outraged that McCormick didn't make the officer cry on the stand, admitting wholesale fabrication and complicity in the kidnapping of the Lindbergh baby. It's a perspective thing.

One might suspect that Galler, whether in his experience as a lawyer before being measured for the robe, or perhaps during luncheon discussions with other jurists over the virtue of sobriety, was made aware of both the purpose of cross-examination, as well as the duty of a defense lawyer. Both would suggest that challenging the credibility of a police officer is, well, kinda what we do.

Was the officer lying? Who knows. It's certainly not beyond the pale for McCormick, who for some odd reason may be more inclined to believe his client's view of events rather than the officer's, to question the officer's veracity. Even if he didn't believe in the innocence of his client, McCormick's job requires (yes, requires) him to seek to undermine the officer's credibility if possible. That's what we do. We test the veracity of the police under withering cross-examination, should that be strategically advisable.

Ken at the Popehat blog also took a good-natured swipe at McCormick:

Who the hell does he think he is? Mister, that officer is the thin blue line between you and utter anarchy that would make Mad Max look like a direct-to-video Strawberry Shortcake movie. When Wigmore said that cross-examination was the greatest legal engine ever invented for discovery of truth, he certainly didn’t mean to suggest that upstart lawyers ought to question the veracity of police officers. The idea!

Bobby Frederick was one of many who disagreed with Judge Galler; no less an authority than Justice Byron White supports his position:

The first thing, for those not familiar with the obligations of defense counsel, is that it is the defense lawyer's job to question the integrity of witnesses during cross examination. My experience, contrary to what the public wants to believe, is that police officers will lie on the stand. If I am calling him or her a liar in front of the jury, odds are I may be right. But what if the officer is being completely truthful? Consider the words of Justice White in U.S. v. Wade (1967):

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

Bad Lawyer noted that this incident sheds some light onto a common situation — judges protecting police witnesses who testify frequently in their courts:

This may seem silly or trivial but this story sheds light on a common problem in small law situations--often times the police seem like they are "clients" of the court.

This is because the elected or selected judges of these small courts continually see the same law enforcement representatives as witnessed in their courtrooms. I have seen Judges consciously, or I'd rather like to think, unconsciously--begin to view themselves as friends or even as colleagues of the law enforcement officers who appear regularly before them. These judges may even have formed an opinion as to the officer's credibility or reputation based on observing the officer testify in previous matters. If the judge is in an elected position alienating the police is not a politic move as far as the judge is concerned. So you get a "captured" and less than independent judiciary. Net result, really aggressive cross-examinations designed to challenge the sweetheart relationship between witness and judge.

As Lord Acton famously opined, "Power tends to corrupt, and absolute power corrupts absolutely." The authority judges enjoy in the confines of their own courtrooms is considerable, if not yet absolute, and the capacity of some judges to act like petty tyrants is disheartening, even when such tyranny is arguably employed with some benevolent aim. Matt Brown related an example:

I imagine that what I saw was her version of tough love. She sentenced him leniently overall, so I think she was probably just hoping to scare him straight. I’m sure she thought her abuse, which she condescendingly heaped on this man who was a decade or more her senior, was for his own good. I wasn’t impressed.

....

The judge wasted her anger. The guy’s a repeat offender, but look at the offenses. Didn’t she think for one second that it was ridiculous making an example out of a guy who took a cactus and tried to enter his own shed? He’s already at least a two-time felon. Although it’s for dumb reasons, employers probably don’t care. He’s going away for a relatively long time. Her scolding had no real effect.

I never like it when she goes off on defendants. At best, it plays to the worst in those who watch. It appeals to our desire to shame and ostracize others. I don’t believe for a second that it’s for their good; it’s because it makes us feel better about ourselves in some sick way.

If we lived in a place where laws and punishment had any rational relationship to morality or what offenders actually deserve, maybe there might be someplace in the courts system for something like what I saw. I still doubt it. Sadly, we don’t live in such a place.

Scott Greenfield added his criticism for those judges who abuse their authority in this manner, even where it's meant as "tough love":

One of the virtues expected of a judge is a judicial temperament. The ability to restrain oneself despite possessing awesome power, to speak calmly, rationally, politely to all before the court. This includes the defendant. This includes sentence.

....

Judges think of this as an act of courage on their part. It's ridiculous. It takes no courage for a judge to ridicule and demean a defendant who can do nothing to stop her. It's an abuse of power, nothing more.

A judge who gets off on abusing a defendant at sentence isn't showing tough love, but that they have no business wielding the power they possess. Whether or not the defendant's crime is unforgivable, so too is the judge's abuse of power.

For all our discussion of criminal justice matters, relatively few of us have seen the inside of a prison facility, let alone the inside of a prison cell. Gideon has, and wrote an outstanding post this week to give us the benefit of his experience:

I didn’t have the courage to ask my escort to have them close the cell door for a minute, locking me in. It was nauseating and claustrophobic enough as it is. Maybe I was having a panic attack, or maybe the air in there was dead, like the spirits of the men that inhabit these cells, but I thought I was going to faint.

I willed myself to stand there, though, for a minute. To look around at the bare walls, the bare desk, the dirty toilet and imagine someone “living” there.

I even briefly closed my eyes and tried to picture myself there, day in and day out, for months, which turned into years, which turned into decades.

Would I survive? How does anyone? Would I give up and stop bathing, shaving, eating? Would I maintain my sanity or would I quickly decompensate? How long would it be before I’d want to kill myself?

....

Parole has got to be a sham. There’s no way that a group of 3 or 4 “regular folks” can decide whether one inmate is worthy of release over another. How can anyone better themselves in those conditions? Is there any choice but to give in to the atmosphere? The aura of despair, rejection and failure? How can we reasonably expect a person to prove to us on the outside that they’re worthy of a shot, when we give them no chance at redemption?

Parole hearings last 30-40 minutes. In that time, the board will try to determine who the person is that is sitting before them, what they’ve done to “change” and whether they’ll reoffend. It’s a crock of shit. It has to be.

....

There is so much wrong with our criminal justice system: the way we treat inmates, the disparate sentencing of minorities and whites, the witchhunts of sex offenders. Yet there is nothing that you or I can change about this. And that’s a pity. Fear has won and will always win. Stereotyping still rules the day and will do so for eons to come. We are wonderful at recognizing the heterogeneity of those close to us and the homogeneity of everyone else.

Lots of people have lost faith in the goodness of the human spirit and have forgotten that man, at his core, is a fallible being. But he is not his actions; rather he is how he responds to them.

....

No doubt those in jail have transgressed against our social and moral code. But we, on the outside, have abused that code and disfigured it beyond recognition. Just as those in jail may be responsible for pain and suffering and loss of human life, so are we.

Jamison Koeehlr, who very helpfully reminded me this week that there are two "E"s in his surname but unhelpfully neglected to advise as to their arrangement, wrestled with a dilemma many new legal bloggers have faced — whether or how to incorporate client experiences and information without betraying confidences, compromising the attorney-client relationship, or running afoul of ethics rules. Noting that Scott Greenfield has drawn a clear line and will not share "war stories" in his blog, Koehler considered whether a more moderate approach could nonetheless be acceptable both ethically and professionally:

The question is not whether to betray client confidences. That one is easy — it’s an absolutely no-no – and would include situations, as Scott Greenfield has cautioned, in which something a client told the lawyer in the context of the attorney-client relationship could unconsciously seep into the blogger’s entry.

The question is also not whether a client reading a blog would recognize him/herself in an entry and feel embarrassed by it. This would violate, among other things, the lawyer’s duty of loyalty to the client.

....

Finally, the question is not even about usurping ownership of a case.... In most situations, the cases do belong to our clients. They are their cases to write about. They are also their cases NOT to write about.

No. The answer to these questions is pretty clear.

At the same time, recognizing that the specifics of a case can often make a blog entry come alive, the question I have struggled with is the extent to which there may be circumstances in which we can write about clients without violating any ethical or moral duties to the clients, without violating their trust. In other words, can we have our cake and eat it too?

....

[W]riting about composite or fictionalized clients is another matter.

....

Through the careful use of some creative license... the blurring of both details and timeframe, and the jumbling of identities, we can draw from our experiences with real-life cases and clients without compromising either the interests of those clients or our ethical duties to them. Even if in the end the composite client exists only in the mind of the blogger who created him, the story is no less interesting, no less illuminating. These clients don’t exist; and yet they do.

Greenfield replied that in reality, the "composite or fictionalized clients" approach Koehler described may be too fine a line for lawyers to walk; moreover, he suggested, it's unnecessary to take that risk or impose that risk on clients:

Confidences can be revealed directly, as when we write about a particular case or client. Yet, we reveal something with everything we write. We reveal something about ourselves, whether it's our analytical ability, our emotional state, our sense of humor or our humanity (or lack thereof). We reveal things we don't intend to reveal. It's difficult, sometimes impossible, to realize how our thoughts appear through our words. We reveal our impressions, biases, strategies, frustrations.

Blawgers sometimes believe that they are adept at making their point while disclosing nothing. Sometimes it's true. Sometimes it's not. The problem, unfortunately, is that our self-assessment of what we disclose through our writing isn't necessarily accurate. I speak only for myself here, but I do not trust my ability to know that I've given nothing away. And I think I'm fairly good at it, as these things go.

To that end, we need to consider why we need to take the risk. If we write for fun, then there is no comparison between our desire to enjoy blawging and a client's dependence on our confidentiality and discretion. Our fun is never worth the chance of doing harm to our client. Even inadvertent harm.

For those who blawg for profit, the rationale is even less availing. To use writing for mercenary purposes, running the risk that something we might write will inure to the detriment of our client, is inexcusable. We can't take comfort in accidental error, or even benign neglect. The self-promoter is selling his confidences for the next fee. There is no excuse for this.

....

My views on the subject of confidentiality are likely more harsh than those of your grievance committee or bar association. But then, their concern is limited to whether you've gone over the line and committed a sanctionable violation of a disciplinary rule. My point is that we, whether playing pundits on social media or just using social media to compensate for our lack of dear friends in the real world, have no excuse for going anywhere near that line.

Neither our pleasure nor profit is a good reason to risk harm to our clients. Not cause harm, but merely take the chance. There are so many other things to write about, so very many interesting and fascinating things to engage our minds and words. There is no reason why we do anything that might present a risk to a client.

Before now, Tim Kevan's BabyBarista blog has always been presented from the viewpoint of its eponymous protagonist; this week, however, BabyB found a kindred spirit of sorts in Charon QC's Matt Muttley, Managing Partner of Muttley Dastardley LLP. In a guest post, Muttley delivered instructions to BabyB for some new standard form contracts provisions:

Counsel is asked to ensure that there is sufficient obfuscation built into the wording of the clause – to tax even the brightest lawyers and, of course, the judge should we be unfortunate to be placed in the position of a judge determining our client’s freedom to contract as he pleases.

....

We have noted from your blog your preparedness to be duplicitous and, frankly, nakedly greedy and venal. The Partners admire such qualities in counsel and I would hope that you are able to live up to these standards in the advice you tender. Fail and TopFirst will be invited to step up to the bar you failed to reach. I trust that I make myself clear and that these instructions are also clear?

Happily, as Charon QC reported, this is but the first of many such collaborations between Kevan and himself and between their fictional creations, BabyB and Muttley:

We plan to involve my entirely fictional law firm Muttley Dastardly LLP with Babybarista from time to time.... Although the idea to do this was unfuelled by Rioja… I cannot lie. I was serendipitously overrefreshed when I wrote the instructions to counsel.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Wikipedia, The Chronicles of Jessica, and Paris Odds n Ends Thrift Store.