Every semester, I always like to share this story from the New York Times in 1900 about the constitutional law exam at the Harvard Law School that caused a student to die from "overstudy":
And if you're curious, this is the exam:
Before my LWB242 Constitutional Law students start panic, rest assured one of my exams has never resulted in a student dying from "overstudy" ... yet.
Hat tip: Josh Blackman's Blog.
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My colleague John Pyke raised an interesting question with me by email tonight; namely, whether one of the organistions that would be investigated as part of the proposed Royal Commission into institutional child sexual abuse, would bring a constitutional challenge arguing that the Commonwealth doesn't have the constitutional power to set up such an inquiry. Following the High Court's decision in Williams v Commonwealth earlier this year, I think such a challenge would certainly be arguable. That said, for public relations reasons alone, I can't see any organisation actually being willing to bring such a challenge.
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Parliament House Canberra, Australia (Photo credit: Wikipedia)
The news that Peter Slipper has stood aside as Federal Parliamentary Speaker amid allegations that he misused taxpayer-funded Cabcharges (as well as that he sexually harassed a staffer), has created an unprecedent constitutional situation surrounding the office of the Speaker.
This is the statement Slipper released saying that it is appropriate for him to stand aside while the criminal allegation against him is resolved:
Some allegations have been made against me by Mr James Ashby. I emphatically deny these allegations.
The allegations include both a claim of criminal behaviour and a claim under civil law.
Any allegation of criminal behaviour is grave and should be dealt with in a manner that shows appropriate regard to the integrity of our democratic institutions and to precedent.
As such, I believe it is appropriate for me to stand aside as Speaker while this criminal allegation is resolved.
The allegation is incorrect, and once it is clear they are untrue I shall return to the Speakership...
In relation to the civil matter there will be an appropriate process that will resolve the matter in due course.
Mr Slipper says Deputy Speaker Anna Burke will act as Speaker while he stands aside.
Given that numbers on the floor of Parliament at the moment are so finely balanced, it is important to determine what it means for the Speaker "stand aside" constitutionally and in terms of parliamentary practice. In particular, now that Mr Speaker has stood aside as Speaker, will he able to speak and vote on matters before the Parliament, or is he required to stand aside from the business of the House of Representatives?
What makes this situation so unusual, is that there is no provision for "standing aside" in the Constitution. However, it must be assumed that standing aside does not mean he has resigned as Speaker, and constitutionally he must still be considered to be the Speaker. As such, he surely cannot be entitled to sit on the backbench and vote on matters before the House of Representatives.
(The only alternative here would be if "standing aside" meant he does not preside during debate but that he resumes the chair during a vote, allowing him to exercise the casting vote in the Government's favour. However, that would seem to be a farcical situation that surely could not be countenanced by the Government or the Opposition.)
The House of Representatives Standing Orders support this conclusion as they operate on the assumption that the Speaker will simply not be present in the House when the Acting Speaker, Deputy Speaker or Second Deputy Speaker. Standing Order 3(d) provides:
The power to exercise a casting vote (standing order 135) is reserved for the Speaker, Acting Speaker, Deputy Speaker or Second Deputy Speaker.
This does mean, of course, mean that if the Deputy Speaker, Anna Burke, is acting, the casting vote will be exercised in the Government's favour.
That said, it is worth noting that the House of Representatives Practice (5th edition) observe that Speakers have spoken in the past but only on Bills that particularly affect parliamentary administration (see page 176), and in the days when they had committee of the whole with a Chair of Committees in the Chair, some Speakers have voted in committee (see page 185). Both of these situations are quite different from the situation of having a Speaker who has decided to "stand aside".
In conclusion, I think it would be totally inconsistent with the position and office of the Speaker, to allow Slipper to simply return to the backbench and speak and vote on all matters before House. Indeed, such a situation would make a mockery of the office. It seems to me that Slipper has to stand aside from all business before the House of Representatives.
Of course, if Slipper decided to formally resign as Speaker, it would be a very different situation and he would be entitled to sit on the backbench and vote on matters before the House.
What this means for the Government is that there will effectively be 149 members of Parliament able to participate in debate and votes. Malcolm Farr looks at the numbers:
If Independent Andrew Wilkie supports the Government, it will have 75 vote in the House of Representatives to the Coalition’s 73. Without Mr Wilkie, the numbers will be 74-74 each.
This is based on the Government continuing to have the backing of cross bench independents Tony Windsor and Rob Oakeshott, and Green MP Adam Bandt.
In the case of a tied ballot the acting Speaker, Anna Burke, would have the casting vote and it is accepted practice that she would vote for the stats quo, and not against the Government on a confidence motion.
Things are likely going to get very interesting for the Government indeed. Fortunately, Parliament is now not sitting now until Tuesday 8 May, which gives everyone a few weeks to resolve the constitutional and political issues surrounding this situation.
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Brisbane Central MP Grace Grace at Labour Day on 7 May 2007, Fortitude Valley and Bowen Hills, Brisbane, Queensland, Australia. (Photo credit: Wikipedia)
Over the past few days, several members of the Legislative Assembly in Queensland who lost their seat in the election on Saturday expressed an interest in running in the upcoming local government elections. In particular, Grace Grace, who had been the Labor member for Brisbane Central, was hoping to nominate for the Central Ward in the Brisbane City Council election, and Rob Messenger, who had been the Independent member for Burnett, was hoping to nominate for Lord Mayor of Bundaberg. However, both were apparently told yesterday that they could not stand for local government until results in the state poll are officially declared by the Electoral Commission later this week. Having looked at the relevant legislation this morning, this seems to me to be plainly wrong.
I assume the Electoral Commission reached this conclusion based on s 155 of both the Local Government Act 2005 and the City of Brisbane Act 2010, which provide the following:
155 Disqualification because of other high office
(1) A person can not be a councillor while the person is a government member.
(2) A government member is—
(a) a member of a Parliament of the Commonwealth or a State (including Queensland); or
(b) a councillor of a local government of another State.
(3) A person automatically stops being a councillor when the person becomes—
(a) a government member; or
(b) a candidate for election as a member of the Legislative Assembly.
However, s 26(3) of the Local Government Electoral Act 2011 makes it clear that members of the Legislative Assembly are able to nominate for local government as long as they resign on becoming a candidate:
(3) To remove any doubt, it is declared that, a person is not disqualified from being nominated as a candidate, or for appointment, as a councillor only because the person is amember of the Legislative Assembly or a local government employee.
Example—A person who is a member of the Legislative Assembly may nominate as a candidate for election as a councillor but must resign on becoming a candidate.
Therefore, as long as Grace Grace, Rob Messenger and anyone else resign from the Legislative Assembly before becoming a candidate, they are able to run in the upcoming local government elections. I am not aware of anything that would prevent them from resigning today.
(I have posted this very quickly to get the relevant law part of the conversation. It is possible I have overlooked something. I can also explain my legal reasoning in considerably more detail if necessary.)
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Tonight I was on The Drum ABC News 24 discussing the news of the day, including Clive Palmer, a constitutional challenge to the mining tax, celebrity diplomancy and US politics:
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Image via Wikipedia
I have a piece up at The Conversation on the High Court's decision in Wotton v Queensland:
When a prisoner has served their time, it’s difficult to understand why they would be stopped from engaging in public debate or communicating with the media. But a new precedent has been set by the High Court with serious implications for freedom of speech.
The court found against a Palm Island man, Lex Patrick Wotton, who was charged with inciting in a riot on Palm Island following the death in police custody of Mulrunji Doomadgee. He was convicted, and on his release his parole conditions stated he was not allowed to speak to the media and needed to gain permission before he could attend public meetings on Palm Island. Wotton challenged the constitutional validity of the laws underpinning these conditions in the High Court.
This case highlights how limited Australia’s constitutional protection of free speech is, and how restricted our legal rights really are.
Read the full piece here.
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The US Bill of Rights Institute has created a short, engaging video for Bill of Rights Day on the constitutional principle of the rule of law.
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The Australian Financial Review this morning has a good feature story on the High Court of Australia:
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Earlier tonight I posted to this blog Jessie Taylor's excellent summary of what happened to the Malaysia Solution in the High Court this evening. She has now graciously given me permission to repost the "legalspeak bit" of her summary as well.
These are her notes of the proceedings before Justice Hayne this evening:
Serious questions (as put by the plaintiffs):
- Statutory obligation s 256 Migration Act to afford to a person in detention all reasonable facilities for the access to legal advice relating to their detention. This has not been complied with despite repeated requests from plaintiffs. In docs they have also said they fear persecution in Malaysia. So Ps argue they are entitled to have reasonable facilities made available.
Submits that HH use a low threshold - HH states that "serious question to be tried" is a low threshold.
- S 189(3) - ministers refusal / failure to invoke s 46A. 189(3) is a discretionary power. Such a discretion should ordinarily be exercised in accordance with rules of procedural fairness. Also relevant considerations ie health, security reasons etc. This has not occurred - there has been no discretionary judgement exercised by an officer.
- Third - offshore process - legality of process. It appears from the precedent that anyone not an unaccompanied minor will be removed unequivocally. M61/M69
- Fourth- s198A(3) confers discretion on the minister. On general principles this should be conditioned by principles of nat justice. (3)(a)(i)-(iv) list jurisdictional facts which minister must be satisfied of. Existence of those facts is capable of being reviewed. ie Malaysia arrangement is a "political statement" and is not enforceable. According to agreement the country must comply with min human right standards. This agreement demonstrates that people are given a months income and maybe housing then left to own devices. Whether capable of satisfying stat criteria?? Subs (1) discretion on officer - conditioned by proc fairness & relevant consideration, including fear of persecution for religious reasons in Malaysia.
The trial of these questions will be completely frustrated if they are removed.
Grounds for believing stat provs not satisfied - Malaysia not a sig to cat, ref conv.
HH- question re 198A is are i-iv jurisdictional facts or simply observations???? ***This is the major issue considered by HH this evening.
Donoghue for defendants:
Argues that the 198A criteria are not jurisdictional facts but simply require common sense judgment. - McKerracher J in Sadiqi
Hayne J: BHP v Balfour. Identified ministerial power as "fact finding". Held: Minister could not find a fact if common sense would not make the same finding.
Hayne J mentions Australia's duty to abide its international obligations as being an analogous question.
Ds argue that every judge asked this question has decided that they are NOT jurisdictional questions.
Submits that these are not jnl facts and if they are not, there is no question to be tried. If they are not, reference to legally enforceable protection does not arise.
Hayne J disagrees. Questions counsel- is it legally enforceable protection or protection in fact supported by legal obligation?
D: open to court to evaluate whether criteria declared to have been met have actually been met.
Ds reject argument that if Malaysia not compliant with human rights norms, minister is constrained from sending people there.
D submits that minister bound by proc fairness prior to making a declaration re a country is not valid. That submission fails to have regard to stat context of s198A.
On questioning by HH, Submits that no issue relating to possible persecution in malaysia for a convention reason.
Only issue on balance of convenience is substantial financial and non financial costs - delay: estimated $100,000 per day for staff costs and $120,000 per week for cost of charter.
Hayne: do you accept that removal will defeat the claim entirely?
D - I think that is so.
Hayne: is the declaration registrable? D: no because it's not a legislative instrument. But don't have instructions on that.
Hayne J: if it is the subject of the act it may be s 12 of legislative instruments act kicks in.
Plaintiffs' reply:
At least 2 interpretations of "the minister may declare":
One is that i-iv are jurisdictional facts
The other is the formation of a state of satisfaction by the minister.
D has argued that on basis of 2 single justice decisions they say nothing to be tried.
Jurisdictional facts - for opponent to say that ministers satisfaction is not reviewable is large indeed. Migration Act replete with explicit limitations on review. And 75(v) cannot be taken away. IS reviewable.
Submits that Mckerracher in Sadiqi was obiter.
Seeking interlocutory relief:
Inj stopping removal
Inj requiring cth to afford reasonable chance to get legal advice
Hayne J does not believe it necessary to grant the second stem of the relief, because s 265 obliges the minister to do so.
Hayne J: expresses no view on the merit of the arguments put before him tonight, but cannot say that they are without merit. The plaintiffs should have the limited relief they seek. "Their claims should not be defeated by their removal from Australia if I cannot say those claims are hopeless". Injunction granted to 4.15 tomorrow or further order, and the matter will return before Hayne J at 2.15 tomorrow for further argument.
This summary was first posted to Facebook.
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In a Facebook note, Jessie Taylor posted a summary of what happened to the Malaysia Solution in the High Court tonight:
At 8pm tonight, Justice Kenneth Hayne of the High Court granted limited interlocutory (interim) relief (an injunction) to 41 plaintiffs who are people who risk being removed to Malaysia under the Malaysia solution. They are citizens of Afghanistan and Pakistan. A number of them (around 6) are children.
At the outset, Hayne J suggested that he should consider granting interlocutory relief to 4.15 tomorrow so the matter come back before him for further argument at 2.15 tomorrow.
Debbie Mortimer SC for the Plaintiffs stated that there were 16 plaintiffs scheduled for removal tomorrow at 11.30am. There has been no decision made in respect of other plaintiffs.
In order to get interlocutory relief (in this case an injunction), the applicant must prove that there is "a serious question to be tried" and that it is favourable "on the balance of convenience" that the relief sought be granted.
Counsel for the defendants (the Minister for Immigration and the Commonwealth of Australia) stated that they did not wish to put any arguments on balance of convenience, other than the fact that it costs a lot of money to delay the transport of asylum seekers to Malaysia.
So the issue was really "is there a serious question to be tried"?^ (see below for the serious questions as put by the plaintiffs and outline of argument and questioning from the bench)
There was a period of argument about that, during which Hayne J put both counsel through their paces.
In the end, the Plaintiffs were seeking two strands of interlocutory relief:
1. an injunction stopping removal to Malaysia
2. an injunction requiring the Commonwealth to afford the asylum seekers a reasonable chance to get legal advice
Hayne J did not believe it necessary to grant the second stem of the relief, because s 265 obliges the Minister to do so.
But he did grant the first strand of relief, saying that "[the asylum seekers'] claims should not be defeated by their removal from Australia if I cannot say those claims are hopeless"
His Honour expressed no view on the merit of the arguments put before him tonight, but could not say that they are without merit. His Honour stated that the plaintiffs should have the limited relief they seek.
So there is now an injunction in place stopping removal to Malaysia until 4.15 tomorrow (or further order), and the matter will return before Hayne J at 2.15 tomorrow for further argument.
Read Jessie's summary of the complex legal issues here. You can also follow Jessie on Twitter here.
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Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week. This week we discussed the Libyan no-fly zone, Prince William's visit to Australia, Ross Garnaut's comments on the government's proposed carbon tax, the New York Times paywall and Chris Lilley's new project Angry Boys:
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I have another piece online at The Drum today, Is Election 2010 heading to the courts?:
Tight elections all over the world almost inevitably end up in the courts. And it's looking increasingly likely that the recent federal election will be no different.
With the election result precariously poised and able to fall into the hands of one party or another with even the gentlest push, the protagonists are pursuing every possible avenue to securing government.
One avenue has been to re-read the Constitution to try and find any previously forgotten or overlooked provision that may tip the balance one way or the other. So far this has involved a few faux constitutional issues being thrown into the mix.
The most notable constitutional rumour that had swirled around political and public circles over the past few days had been that Wyatt Roy was not qualified to be a member of the House of Representatives.
On the face of it, it is easy to see how so many people made this mistake. Section 34 of the Constitution does indeed say a member of the House of Representatives "must be the full age of twenty-one years".
However, section 34 also begins with these words, "Until the Parliament otherwise provides", which gives the Commonwealth the power to legislate whatever qualifications they like. And indeed, the Commonwealth has done just that. Section 163 of the Commonwealth Electoral Act 1918 provides that a person who "has reached the age of 18 years" is qualified to be elected as a member of the House of Representatives.
More recently, it has been suggested that several successful candidates could face a constitutional challenge because they were local councillors when nominated. While this challenge will most likely be dismissed, it does raise some interesting issues.
Read the rest here.
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Yesterday I had a piece published on The Drum about the Constitution and a hung Parliament:
From around 10pm on Saturday night, political wonks and tragics, as well campaign staffers and journalists alike, dusted off their copy of the Constitution (or simply downloaded the iPhone app - yes there really is an app for that) to see what, if any guidance, it gave about would happen in the event of a hung Parliament.
All of a sudden Twitter became rife with self-taught constitutional law experts, proclaiming that the Queen will decide who forms Australia's next Government (she won't) and that Wyatt Roy isn't qualified to be a Member of Parliament (he is).
What did become apparent to everyone who desperately started flicking through the Constitution is that it doesn't explicitly set out what happens in the event of a hung Parliament. Indeed, some observed that the Constitution doesn't even mention the existence of the Prime Minister.
While both of these facts may seem confusing or even troubling to many, those more familiar with the peculiarities of our constitutional system know that there are unwritten conventions that underpin the day-to-day operation of the Constitution.
It is those constitutional conventions that will govern what happens next, as both Labor and the Coalition begin the process of trying to form the next Government of Australia.
Read the rest here.
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I read in the Sydney Morning Herald this morning that rugby league officials fear the Federal Government will introduce legislation to effectively stop rugby league from playing matches for two months if Australia wins its bid to host the soccer World Cup in 2018 or 2022. Read that story here. As this seems to create a few different political, economic and even constitutional issues, I recorded a short ipadio podcast on the topic:
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Last night I was a guest on Nick Hodge's Ustream show, atNickHodge, where we discussed the Australian Constitution:
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Ben Kremer (who blogs at Lawfont) has created an iPhone and iPod Touch application that contains the text of the Australian Constitution. You can download the free application at the iTunes Store here.
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I am currently in Canberra to attend the thirteenth annual Public Law Weekend held by the Centre for International and Public Law at the ANU College of Law on Friday 31 October and Saturday 1 November. You can download the program here. I had hoped to live blog and Twitter the event but unfortunately I can't access the internet in the auditorium. However, I hope to be able to post a summary of the Weekend in the next few days.
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Over at The Volokh Conspiracy Neil Netanel has been guest blogging on his new book Copyright's Paradox. Here are some of his posts:
For anyone interested in the tension between copyright law and free speech these posts are essential reading.
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Daniel Solove asks why is there no stare decisis for methods of interpretation?:
The judiciary adheres to stare decisis for many principles of law, but it seems to allow a free-for-all when it comes to interpretative method. Interpretative method (for both the Constitution as well as statutes) is left to the discretion of each individual judge or justice. So one judge might be an originalist, another might be a textualist, and yet another might adhere to the "living constitution." On the Supreme Court, for example, its institutional opinions -- those of the majority -- seem to shift from one interpretative method to another depending upon which justice authors that opinion. Why isn't the method of constitutional or statutory interpretation governed by stare decisis?
Stare decisis is justified based on the need for stability and consistency in the law. We frequently hear lofty pronouncements by courts about the great value of precedent. But these same values that underpin and justify stare decisis seemingly also apply to interpretative method. Wouldn't constitutional law be more stable and consistent if all the justices were to adhere to stare decisis about what method (originalism, textualism, etc.) should be used to interpret the Constitution? Why not bind justices in this way?
Of course, if methods of interpretation don't matter in the end, if cases are just decided on ideology and interpretative methods and theories are just elaborate window-dressing, then my question doesn't matter all that much. But if these methods do carry some influence or weight, if they do matter at all, then why do they remain so unsettled? Why not bind them with stare decisis? Perhaps justices might feel too constrained. If Justice Thomas couldn't be an originalist because of stare decisis, would this impinge upon his own individual prerogative, his unique judicial style? But stare decisis is about constraining justices based on what past justices have decided. So why not bind justices in this manner?
Is there a good argument for why stare decisis should not apply to interpretative method?
Read more here.
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This week on Thursday 1 May I'll be participating in a Roundtable Seminar on Reforming the Constitution at Parliament House in Canberra. This is the media release:
Committee roundtable to discuss constitutional reform
Federal-State relations, a constitutional preamble and issues of citizenship will be on the agenda at a roundtable on constitutional reform on Thursday 1 May 2008 at Parliament House, Canberra.Chair of the House of Representative’s Legal and Constitutional Affairs Committee, Mark Dreyfus QC, said the aim of the roundtable is to explore the current debates surrounding constitutional reform.
“The need for reform of the Australian Constitution is a persistent theme in academic, political and public debate, and some good ideas were produced by the governance group at the 2020 summit last weekend,” Mr Dreyfus said. “The Committee is hoping to build on some of these ideas through the roundtable, giving us a clearer idea on areas in which change is feasible in the near future“.
Issues to be discussed on the day include:
- the process for amending the constitution;
- election terms and qualifications of parliamentarians;
- federal-state relations in relation to constitutional powers; and
- the inclusion of a constitutional preamble.
As well as the Committee Members, participants will include Professor Larissa Behrendt, Peter Black, Professor Tony Blackshield, Professor Hilary Charlesworth, Professor Greg Craven, Professor David Flint AM, Peter Hanks QC, Professor Michael Lavarch, Professor Kim Rubenstein, Professor Cheryl Saunders, Ms Khatija Thomas, Ms Anne Twomey, Professor George Williams, and Professor Leslie Zines.
The roundtable will be held in Committee Room 1R4, 1st floor, Parliament House, Canberra on Thursday 1 May 2008 from 9.00am - 5.05pm.
Members of the public are welcome to attend the roundtable discussions, or listen to the broadcast on FM 97.1 in Parliament House, and via webcast on the APH website: http://webcast.aph.gov.au/livebroadcasting/
More details, including the Roundtable program and the focus questions that will be guide the discussion, is available here. If you have any thoughts on these issues or the focus questions, let me know by leaving a comment or send me an email: p2.black@qut.edu.au.
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The High Court today handed down a rare unanimous joint judgment dismissing Telstra's constitutional challenge to the ACCC. Read the judgment here. This is how The Australian summarised the decision:
THE High Court of Australia today threw out Telstra's constitutional challenge against the competition watchdog's powers to set prices for access to its networks by rivals.
Telstra launched the challenge in January 2007, after the Australian Competition and Consumer Commission ruled that the telco should give its rivals access to certain parts of its network for $3.20 a month.
"The telecommunications access regime set out in the Trade Practices Act did not amount to an acquisition of Telstra's property," the High Court said in its judgment.
The decision was unanimous and the court ordered Telstra to pay costs.
Shares in Telstra fell 1.3 per cent to $4.49 in early trade, as the benchmark S&P/ASX200 index gained 0.5 per cent.
Telstra had claimed that the ACCC's actions force it to give rivals access to its network, which it believed breached the Constitution.
The Constitution prevents the Government from taking property without providing "just" compensation.
"The rights in Telstra's assets were rights to use the assets in connection with the provision of telecommunications services, but those rights were always subject to a statutory access scheme which permitted other carriers to use the assets," the court said.
"Telstra had always owned and operated the assets within a regulatory regime by which other carriers have the right to connect their facilities to Telstra's network and to obtain access to Telstra services."
The challenge required the court to rule that the Trade Practices Act was in breach of the Constitution because it gave the ACCC price-setting powers.
Read more here.
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Techdirt reminds us that the apparent tension in the US between copyright law and free speech is unlikely to be resolved by the courts any time soon:
While the Supreme Court has been gleefully taking on more and more cases concerning patent law, it seems that it's not yet ready to revisit some important discussions around copyright law, since the Eldred case back in 2003. Late last year, we updated you on a few cases that have used the specific wording of the Eldred decision to argue that recent copyright law changes were violations of the First Amendment. In Eldred, the Supreme Court had ruled that it was only a First Amendment issue if changes in the law changed the "traditional contours of copyright protection." It's that clause that some other cases have been challenging lately. As we noted in that last post, there appeared to be a split among the different circuit courts concerning whether recent copyright changes did, in fact, change the traditional contours of copyright protection. That, it seemed, was actually a good thing, because different circuits with different readings is the sort of thing that attracts the Supreme Court's interest.
Unfortunately, it appears that the Supreme Court just isn't all that interested yet. Larry Lessig has the update, where he notes that the Supreme Court has refused to take the case so far ... As Lessig notes, this is far from over, but it appears that the Supreme Court won't be settling this matter any time soon, which is a bit unfortunate.
Read more here.
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An interesting article on access to digital media as a First Amendment Right:
Travis, Hannibal, "Of Blogs, eBooks, and Broadband: Access to Digital Media as a First Amendment Right" . Hofstra Law Review, Vol. 35, p. 1519, 2007 Available at SSRN: http://ssrn.com/abstract=1025474
Abstract: In an information society, wealth and power are increasingly linked to access to knowledge and control over telecommunications media. Struggles over access to digital media in particular are presenting uniquely contentious First Amendment problems. The creation of about 200 million blogs worldwide has triggered legal action and legislative reform aimed at alleged trademark infringement by bloggers and cybersquatters. Authors and publishers seek expanded rights to curtail unauthorized digital uses for which they are not being compensated, and have sued Google for digitizing and indexing tens of millions of the world's books and periodicals. Finally, Google, Yahoo!, Microsoft, and other Internet and e-commerce firms are trying to beat back plans by the nation's cable and telephone companies to finance upgrades to their networks by levying discriminatory fees on search engines, as well as on Internet content providers and aggregators. Internet users have often been on the losing side of these controversies, as the economic model increasingly adopted by the Supreme Court is that in order to reward corporations for collecting or disseminating information, its free flow in print and electronic form must often be impeded, and its cost to the user increased. This model threatens to empower broadband companies, copyright holders, and trademark owners to restrict the right of the public to utilize digital media for purposes of free speech.
This Article argues that digital media such as the broadband Internet, the World Wide Web, and the blogosphere should be at least as free as the press was at the time that the First Amendment was ratified in 1791. In other words, bloggers could not be enjoined or fined for tarnishing the trademarks or goodwill of their employers or other corporations, for trademark law did not prohibit trademark dilution or other non-competitive uses in 1791. Similarly, Web sites and search engines such as Google could not be restrained from digitizing, indexing, and providing short previews of books and periodicals, for copyright law in 1791 permitted abridgements, adaptations, reviews, and other value-added uses of copyrighted work. Finally, the cable and telephone companies would not be at liberty to levy discriminatory access fees upon digital media outlets, for their ability to monopolize local telecommunications networks is a legacy of anticompetitive state and federal exclusion of new entrants over the past century in violation of the First Amendment. The framers of the First Amendment would no more have countenanced an attempt by Congress and the federal courts to allow private entities enjoying the fruits of past official monopolies to restrain the freedom of speech over an essential facility such as the Internet than they would have endorsed the creation of a series of local book publishing or newspaper monopolies. The framers presumed that information would flow freely and cheaply to citizens and consumers, enabling them to ascertain their true interests without difficulty, and to make decisions accordingly. As Congress considered ratifying the First Amendment, Madison declared that by it the liberty of the press is expressly declared to be beyond the reach of this Government. The Supreme Court has construed most of the other amendments in the Bill of Rights to provide at least as much protection against infringement as existed under the common law in 1791.
Opponents of net neutrality requirements have opined that the First Amendment rights of corporate owners of telecommunications infrastructure should trump the First Amendment rights of individual speakers and users of telecommunications media. Under this view, the foremost free speech interests on the Internet are those of broadband infrastructure owners, rather than the senders and recipients of Internet speech such as Web content, blogs, eBooks, or online videos. This line of argument misconceives both the distinctive character of the Internet and the purposes for which the First Amendment was enacted. The Internet and its principal applications such as the World Wide Web grew as rapidly as they did because they were designed to be open, flexible, and uninhibited by gatekeeper control. The high degree of concentration in the broadband market, the inability of many consumers to switch broadband carriers, and plans by broadband providers to discriminate among different sources of Internet content combine to threaten the Internet as an open, decentralized, low-cost communications platform. The First Amendment is not offended by regulations designed to ensure that firms awarded local telecommunications monopolies by the government exercise their power to restrict mass communication in a manner consistent with the public interest. The overriding purpose of the First Amendment is to ensure that readers, listeners, and viewers of public debates obtain access to a wide variety of facts and opinions so as to be able to discern the truth as best they can. Even privileging the speaker's perspective, surely the First Amendment interests of the creators, editors, and aggregators of Web sites, blogs, and online videos - rather than the supposed speech interests of the owners of the wires along which content travels - should prevail in the event of a conflict.
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From CNN:
The Supreme Court refused Tuesday to hear an appeal from poet Amiri Baraka, whose controversial poem about the September 11, 2001, terrorist attacks led to the elimination of an honorary post he held as New Jersey's poet laureate.
The justices declined without comment to intervene in Baraka's lawsuit against current and former state officials who he says retaliated against him for his public reading of "Somebody Blew Up America."
At issue was whether state officials had "legislative immunity" from such suits, even when they targeted an individual for special treatment, as Baraka alleges.
Baraka, a self-described "poet icon and revolutionary political activist" was named poet laureate in 2002 by then-Gov. James McGreevey, on the recommendation of the state's Council for the Arts. The post was designed to encourage poetry by having the honoree stage at least two public readings a year. The honorarium paid $10,000 a year for a two-year term.
Two months after his appointment, Baraka -- a longtime resident of New Jersey -- read the poem in question before a local arts festival.
Among the poem's lines:
"Who knew the World Trade Center was gonna get bombed
"Who told 4000 Israeli workers at the Twin Towers
"To stay home that day
"Why did Sharon stay away?"
State officials were outraged, but under the law, McGreevey could not fire the poet from his appointed post. Baraka refused the governor's request to resign, saying his work was neither anti-Semitic nor racist.
McGreevey then supported eliminating the poet laureate position, which the Legislature did in July 2003.
State officials denied the poet's claims that they "commenced a concerted campaign" to target Baraka, who turned 73 last week. Much of the case turned on specific things McGreevey and other officials may or may not have done.
In an open letter after the vote, Baraka called it a "confirmation of the ignorance, corruption, racism, and criminal disregard for the U.S. Constitution."
Baraka's Web site refers to the case, saying, "The recital of the poem 'that mattered' engaged the poet warrior in a battle royal with the very governor of New Jersey and with a legion of detractors demanding his resignation as the state's poet laureate because of "Somebody Blew Up America's" provocatively poetic inquiry (in a few lines of the poem) about who knew beforehand about the New York City World Trade Center bombings in 2001."
In its 2-1 ruling in March, the 3rd U.S. Circuit Court of Appeals concluded, "Baraka, like any person, was free to speak his views. But he had no protected legal interest in the maintenance of the position of poet laureate of New Jersey."
The judges also said, "Baraka's vague references to the conduct of the unknown defendants [state officials] are insufficient to constitute allegations" made by him that he was personally targeted for reprisal.
The case is Baraka v. McGreevey (07-79).
Read more here.
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Anyone interested in constitutional law should an insightful article by Professor Cheryl Saunders on comparative constitutional law. Here is the abstract:
Cheryl Saunders, "The Use and Misuse of Comparative Constitutional Law" Indiana Journal of Global Legal Studies, Vol. 13, 2006 U of Melbourne Legal Studies Research Paper No. 274
Abstract: http://ssrn.com/abstract=1025775
Abstract: This article examines the extent and nature of the use of foreign law in constitutional adjudication in common law systems outside the United States, with special reference to Australia. Demonstrating that the courts of other common law jurisdictions use foreign law readily, naturally, and for a variety of purposes, the article reaches two broad conclusions. The first is that, as a generalization, other common law countries do not share the concern about the legitimacy of reference to comparative case law that manifests itself in the United States. The second is that, as a consequence, other common law countries necessarily share with the United States an interest in the methodology of comparative constitutional law, in order to avoid its misuse. Throughout the article, a series of three decisions handed down by the High Court of Australia over the course of the 1990s, dealing with the implied constitutional freedom of political communication, is used as a case study, to give the arguments context and greater substance.
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Columbia Law School Professor Michael Dorf asks does the First Amendment in the US protect highly offensive speech at a funeral and directed at the deceased?
Last week, a federal jury in Maryland ordered the Westboro Baptist Church, its leader Fred Phelps, and several other church members, to pay $10.9 million in compensatory and punitive damages to Albert Snyder, the father of a Marine who was killed in Iraq. Snyder sued after the defendants displayed extremely offensive signs near the site of his son's funeral, and posted defamatory messages about him on their website.
Nearly everyone in the United States--regardless of their religious views or their views about the war in Iraq--can come together in reviling the defendants' message. The Westboro Baptists believe that God is punishing America for tolerating homosexuality by killing our troops fighting overseas. Thus, the defendants have traveled around the country with signs like the ones they displayed near the site of Matt Snyder's funeral: "Thank God for Dead Soldiers" and "God Hates Fags."
The defendants claim that the civil verdict against them violates their First
Amendment rights and have vowed to appeal. In this column, I will assess the merits of their First Amendment argument. I conclude that efforts to restrict protesters at funerals survive constitutional scrutiny, and thus that the recent verdict may well pass muster under constitutional review.
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Professor Leslie Zines has posted to SSRN an examination of the High Court's constitutional decisions during 2006. Three factors are considered, namely federalism, original intent, and policies, values and consequences. Download the paper here.
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USA Today has a detailed feature story on whether the US Supreme Court may enter the debate on indecency standards on US television:
The dirty words that started the ruckus were fleeting, but their consequences for television have been long-lasting.At the December 2002 Billboard Music Awards, Cher waved her "Lifetime Achievement" trophy and said, "People have been telling me I'm on the way out every year, right? So (expletive) 'em." At the Golden Globes the next month, U2 lead singer Bono accepted an award by saying, "This is really, really (expletive) brilliant." At another Billboard Awards in 2003, TV star Nicole Richie used expletives as she joked about removing cow manure from a purse.
As the Federal Communications Commission was reviewing viewer complaints about the incidents, Janet Jackson's breast was exposed during a Super Bowl halftime show on Feb. 1, 2004. The next month, the FCC, in an unprecedented move, said that even a one-time use of vulgarities associated with "sexual and excretory functions" violated indecency standards. It cited NBC for Bono's remarks, then Fox Television for those by Cher and Richie.
The FCC's stance has inspired a legal battle — now on the Supreme Court's doorstep — over how rigorously the government can police what's on TV.
The larger questions surrounding the dispute: As broadcast TV pushes the limits of sexual content to compete against its racier and unregulated cable competitors, should an occasional expletive be allowed? Or can the FCC completely stamp out what it views as verbal smut on broadcast television, in the name of family-friendly programming?
The Supreme Court soon will decide whether to wade into the dispute and, for the first time since 1978, dictate indecency rules for the airwaves. No matter what the court does in the case pitting Fox against the FCC, the battle could lead to new standards for broadcast networks.
Already, the FCC's tough stance could be changing what Americans see on live TV ...
Read more here. What is arguably most concerning about this trend is the potential chilling effect on what can currently be shown on US television. Again, from USA Today's report:
The last time the Supreme Court reviewed the FCC's power to curb indecency, in 1978, it rejected a First Amendment challenge to limiting the hours that broadcasters could air "indecent" material.
The 1978 case arose over a New York City radio station's airing of comic George Carlin's "seven dirty words" monologue.
Carlin repeated seven words that referred to various sexual and excretory functions during a 12-minute routine that aired at 2 p.m. on Pacifica Foundation's FM station.
The court upheld the FCC's policy sanctioning the broadcast because it occurred between 6 a.m. and 10 p.m., when indecency is forbidden for radio and broadcast television.
In its decision, the court said it was not ruling on the broadcast of "an occasional expletive."
Today, the FCC's tougher approach casts uncertainty across network programming.
Read more here.
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Duncan Riley at TechCrunch reports on a potentially controversial decision from the Sixth Circuit for the US Court of Appeals:
Creators of porn websites have been set free of onerous confirmation of age record keeping laws, after the Unites States Court of Appeals found that the law requiring the keeping of these records was unconstitutional.
Previously, porn websites hosted in the United States had to keep records confirming that all performers shown on their sites were of a legal age. More recently there has been some suggestion that these requirements would be extended to all sites showing porn, potentially destroying sites such as YouPorn.com and Pornotube.com (both NSFW) who rely on user generated content and therefore would not have access to records.
A majority ruling of the Appeals Court found that “the purpose, and the legislative history of the statute make clear that Congress was concerned with all child pornography and considered record keeping important in battling all of it, without respect to the creator’s motivation” in that it impedes free speech rights.
Law.com notes that “the decision is a significant First Amendment ruling that directly implicates the controversial subjects of legal adult pornography and illegal child pornography.”
Read more here. Techdirt's Mike Masnick also chimes in:
Just last week, Wired had an article looking at how a particular section of law regulating adult content could potentially hurt the growth of "user generated" porn sites. The law in question required any "publisher" of adult content to obtain and permanently keep records proving that the "performers" in question were of legal age. Obviously, the goal here is to prevent child porn -- but many felt that such a rule was incredibly burdensome on those who were producing legitimate adult content, and it was even worse for "user generated" sites that would now require such information from every participant. Now, Slashdot points out that the Sixth Circuit Court of Appeals has found the law to be unconstitutional, as it violates the First Amendment. ... The full ruling (pdf) is an interesting read, but the crux of the argument is that while preventing child porn is a noble goal, if it ends up putting a burden on plenty of legitimate expression, then it's a clear First Amendment violation. Many people may not think this is a big deal, as they don't care for adult content or don't have any problem with having it heavily regulated -- but as the court notes, the right for people to remain anonymous is an important part of the First Amendment. Weakening that right -- even if for a reasonable end goal -- starts you down a slippery slope.
Read more here.
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Although I and many others think Stephen Colbert's intention to run for President in South Carolina not only very funny but inspired marketing, a couple of US bloggers have begun to consider the legal implications of that decision on Comedy Central (and therefore Viacom) insofar as compliance with US campaign finance laws. The issue turns on whether Viacom is able to rely on the media exemption for Colbert promoting his candidacy on The Colbert Report.
Rick Hasen of the Election Law Blog summarises the issue succinctly:
Here's the relevant law. A corporation cannot fund the express advocacy of a candidate for federal office out of its treasury funds. So General Motors could not run a newspaper ad saying "Vote for Colbert for President." The same rule applies to labor unions. The funding has to come from its political action committee.
But there's an exemption in the law for "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate."
Read more of his analysis here. Hasen is leaning to the conclusion that the exemption doesn't apply, but Allison Haye, blogging at Sketpic's Eye, thinks the exemption would apply. Read Haye's analysis here.
In any event Lost Remote is reporting that Comedy Central is taking Colbert's bid seriously:
Well, at least serious enough to have the lawyers look into it. Meanwhile today, Colbert has surpassed the 1 million friends mark on his “1,000,000 Strong For Stephen T. Colbert” Facebook group. So who’s behind this strategic effort to engage potential voters? A 16-year-old high school student named Raj. Now there’s even a poll suggesting that Colbert could be a presidential frontrunner in a month. What is this, Man of the Year?
Read more here.
And there even polls suggesting that he is making an impact, as Editor & Publisher reports:
Less than a week ago, shortly after he announced for president, Stephen Colbert was favored by only a little more than 2% of Democrats as the favorite for the nomination. Now, a Rasmussen Report national telephone survey has found that he gains 13% of voters in a matchup with Rudy Giuliani and Sen. Hillary Clinton.
With former Sen. Fred Thompson substituted for Giuliani, the host of Comedy Central's Colbert Report still got 12%.
If he keeps gaining over 10% a week, Colbert should be leading the field before November is out.
Rasmussen explained, "Colbert does particularly well with the younger voters most likely to be watching his show and therefore most aware of his myriad presidential-like qualities. In the match-up with Giuliani and Clinton, Colbert draws 28% of likely voters aged 18-29. He draws 31% of that cohort when his foes are Thompson and Clinton. In both match-ups, Colbert has more support with young voters than the GOP candidate."
Warning to other candidates: The poll was taken Oct. 19-21 -- mainly completed before Colbert's breakout appearance on "Meet the Press."
...Another Huffington Post commenter asked, "They're including him in the polls???" But a third observed: "I know that Colbert's candidacy is a joke, but the fact remains that he is the only "candidate" to directly confront George Bush and the media elite. I think that's why he is gaining support. Even though he is a comedian, he has heart, brains and courage. That separates him from the rest of the pack."
Read more here.
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Timed to coincide with the release of Justice Clarence Thomas’s autobiography, the First Amendment Center has published an online symposium concerning Justice Thomas’s First Amendment jurisprudence. Read it here.
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Via Michael Geist: IP Watch posts a open letter to the WIPO Secretary General that demonstrate the enormity of the problems at the UN institution.
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John Quiggin posed an interesting question last week on the constitutionality of the Northern Territory National Emergency Response Act 2007 (Cth):
One of the striking features of the government’s intervention in Aboriginal communities, embodied in the Northern Territory National Emergency Response Act 2007 was how rapidly the ostensible motive of intervening to tackle social problems, most notably child abuse, was swallowed by the ideological push to refashion property rights, taking over land owned by Aboriginal communities, with the presumed goal of turning it into individualised private property
A question that’s come up a couple of times and to which I haven’t seen an answer is how this squares with the Constitutional requirement for “just terms” in acquisition of land and other property, and also the statutory requirements of the Lands Acquisition Act (unless these have been overridden by the latest legislation). Is there anyone with a legal background who can comment on this?
At Club Troppo, Ken Parish has posted an excellent and comprehensive response to John's question. Read it here.
While I agree with Ken's constitutional analysis, some of the comments on both Club Troppo and John Quiggin's blog about what this means for the rights (or lack of thereof) of residents of the territories - in contrast to the rights of residents of the States - are forgetting two important aspects of s 51(xxxi) of the Constitution.
First, the Commonwealth Executive enjoys a power to acquire property unencumbered by the requirements of just terms (see Johnston Fear and Kigham & The Offset Printing Co v Commonwealth (1943) 67 CLR 314); although this seems to be limited to national emergencies and some would argue that this intervention is in response to a national emergency) or wartime (see Clunies Ross v Commonwealth (1984) 155 CLR 193 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).
Second, s 51(xxxi) does not appy the States; that is, the States can acquire property compulsorily without providing just terms (see Pye v Renshaw (1951) 84 CLR 58). Furthermore, in Durham Holdings Pty Ltd v New South Wales (2000) 205 CLR 399, the High Court held there was no "deeply rooted right" to receive compensation for property acquired under State legislation.
I make these two points simply because I think it is worth remembering them when discussing the constitutional issue, as distinct from the policy or political aspects to this debate.
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The author of The Utube Blog, Professor Edward Lee, has an interesting article on free speech, copyright and Web 2.0:
Lee, Edward, "Freedom of the Press 2.0" (August 2007). Ohio State Public Law Working Paper No. 97 Available at SSRN: http://ssrn.com/abstract=1008877
Abstract: In today's digital age, copyright law is changing. It now attempts to regulate machines. Over the past twenty years, and particularly with the advent of the Internet, copyright holders have increasingly invoked copyright law to regulate directly - indeed, even to prohibit - the manufacture and sale of technology that facilitates the mass dissemination of expressive works. Although the concerns of copyright holders about the ease of digital copying are understandable, the expansion of copyright law to regulate - and, in some cases, to prohibit -technologies raises a troubling question. Can the government regulate under copyright law technologies that facilitate the dissemination of speech, consistent with the First Amendment? If so, are there any limits to what the government can do? Or does copyright law have constitutional carte blanche to regulate technologies, without any First Amendment scrutiny? Because copyright law, dating back to the first Copyright Act of 1790, traditionally refrained from regulating technologies directly, these questions were scarcely considered before. But, today, these questions have vital importance as copyright law and other laws proposed in service of copyright holders contemplate even greater regulation of emerging technologies that are revolutionizing the ability of individuals to create expressive content on the Internet, in the “Web 2.0” culture of user-created content. However, despite their importance, these questions have escaped attention in legal scholarship. This Article attempts to answer these questions by tracing the historical development of the “freedom of the press” that led to the Framers' inclusion of the concept in the First Amendment. My core thesis is twofold: (i) the Framers understood the freedom of the press as the freedom of the printing press - a speech technology - to be free of intrusive governmental regulation, including restrictions on technology imposed under copyright law; and (ii) today, the Sony safe harbor operates as a “First Amendment safeguard” within copyright law that is designed to protect the freedom of the press and the development of speech technologies. All future attempts by Congress to regulate speech technologies under copyright law must answer to the Free Press Clause or the Sony safe harbor.
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FindLaw columnist, attorney, and author Julie HIlden discusses the idea of "torture porn," frequently invoked in relation to recent movies such as "Hostel II" and "Captivity." Hilden argues that, from a free speech perspective, it's unfortunate that the recent tendency to equate depictions of sex and violence in movies -- as the phrase "torture porn" does -- has sparked a crackdown on depictions of violence, rather than relaxing the regulation of depictions of sex. She also contends that if one looks more carefully at movies like "Hostel" and "Hostel II," they are hardly promoting violence; indeed, their strong heroes and heroines fight against violence, and the villains who use violence are depicted as weak and pathetic. Finally, she questions whether the "clean" violence of shoot-'em-ups should be preferred over the more realistically gory violence of such films.
Read it here.
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Although the following excerpt from a recent High Court transcript has already been noted by several bloggers (including Legal Eagle and Atticus), I thought it was worth reproducing again.
By way of background, the High Court case was Roach v Electoral Commissioner & Anor, a challenge to the validity of certain provisions of the Commonwealth Electoral Act 1918, specifically those that prohibit sentenced prisoners from voting.
MR MERKEL: ... I was going to say under section 93(8AA) the amending legislation defines “sentence of imprisonment”. That is at page 7. This was also a significant amendment because prior to this amendment there was a question about whether home detention or parole would be caught by the disqualification. So this amendment made it clear that you had to be in detention on a full-time basis. So that is in the extrinsic materials. So there was no question if someone on parole or on home detention would not be caught by the disqualification and that comes out as a result of that definition.
Can I take your Honours next to Part VIII of the Act starting at page 122 dealing with - - -
KIRBY J: So Paris Hilton would now be disqualified, but last week for a short time she would have been entitled to vote?
MR MERKEL: Yes, your Honour, and she would have been entitled if she were in Australia and an Australian citizen to be standing here unburdened by the five-year point at least.
KIRBY J: I just wanted you to know that I follow these things.
Read the rest of the transcript here, here and here.
If you are interested in the substantive matters raised by this case, The Law Report on ABC Radio National had a good discussion of the case this week. You can read the transcript or download the audio here.
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This post on Concurring Opinions made me realise how different the free speech culture in Australia is compared with America:
The Pennsylvania Supreme Court, in a recent decision -- Commonwealth v. Long, --- A.2d ----, 2007 WL 1574157 (Pa. 2007) -- concluded that the First Amendment requires public disclosure of jurors' names. This is an issue that the U.S. Supreme Court has not yet addressed. According to the court:
First, with respect to the value of openness in criminal trials, a trial by jury and public access to criminal trials serve the same function-ensuring the fairness of the judicial process. From the earliest days of this country, it was believed that the jury was the best way to assure a fair trial. See The Federalist No. 83, at 545 (Alexander Hamilton) (The Modern Library ed.) (“[The jury trial] is a valuable check on corruption”). Likewise, public scrutiny of the criminal justice system enhances the quality and safeguards the integrity of the factfinding process, “with benefits to both the defendant and to society as a whole.” Openness also fosters an appearance of fairness, which increases public respect for the criminal justice system as a whole. “And in the broadest terms, public access to criminal trials permits the public to participate in and serves as a check upon the judicial process-an essential component in our structure of self government.”
Read it here. It may be protected speech in America, but revealing the identity of a juror in Australia would be a criminal offence ...
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It's not often I get to scoop David Starkoff, but here is an amusing moment in the High Court from oral argument in Santos Limited v Chaffey:
MR BENNETT: We would submit that that is simply something that is so far from the concept of acquisition of property, even though that may be its apparent affect on a particular person, that it is outside the prohibition. To argue to the contrary and to say that one looks only at the effect on the particular person, is to pick up – there is only one case I know which picks up that argument and that of course is The Castle where it was argued that the nature of one’s home was such that it was something the acquisition of which was in a different category because of its significance to the owner. The argument succeeded in that case, but the case is not generally regarded as authoritative for that proposition. Those, your Honours, are the submissions for the Attorney-General.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Walker?
(Hat tip: Ryan.)
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Lawrence Lessig and others have called on the Republican National Committee and the Democratic National Committee to eliminate unnecessary regulation of political speech. From the Lessig blog:
While many rightly and fairly struggle over genuinely difficult copyright questions, it has been the strategy of some of us to push for solutions to obvious problems first. The place of copyright in political debate is one such obvious problem. Technology has exploded the opportunity for people to comment upon, and spread political speech. Democracy is all about encouraging citizens to participate in that debate. And all of us, whether Democrats or Republicans, should push to remove unnecessary burdens to that participation.
Unfortunately, however, the uncertainty about the scope of copyright regulation is increasingly one such burden on Internet political speech. This next political cycle will see an explosion of citizen generated political content. Some of that speech will be crafted from clips taken from the Presidential debates. Some of that will be fantastically valuable and important. Yet as the law is right now, it is extremely difficult for an ordinary citizen to understand the boundaries of “fair use,” or the limits to copyright law. It is likewise difficult for companies such as YouTube, or Blip.tv. Indeed, it is even difficult for a skilled practitioner. That uncertainty, if not checked, could produce a cloud over much of this political speech, as sites and universities don’t know how much is too much. It will certainly create a temptation by some politicians to invoke copyright law to block particularly effective speech critical of them.
Some friends (old and new) and I are therefore calling upon both major political parties to make this problem go away. Not by changing the law, or by supporting some expensive and time consuming litigation. But instead, by simply promising to require of any network broadcasting Presidential debates (at least) that they license the debates freely after they are initially broadcast — either by putting the debates into the public domain, or by permitting anyone to use or remix the contents of those debates, for any reason whatsoever, so long as there is attribution back to any purported copyright holder. (CC-BY)
I am confident that I won’t like much of what this freedom will engender. But if that were a legitimate reason to regulate political speech, this would be a very different world. We should all, regardless of our political persuasion, be encouraging a wide ranging debate about our political future. And we all need to hear more from those with whom we disagree.
I am also hopeful that those typically on the other side of the many debates that we have had about copyright will recognize this proposal as one that strengthens copyright. The last thing a copyright system designed to produce incentives for authors and artists needs is to complicate judgments about “fair use” by accommodating speech that needs no real copyright protection at all. There is incentive enough for politicians to debate, and opportunity enough for broadcasters to carry those debates. We don’t need to add the complexity of a lawyer driven speech regulation into this mix.
Thanks to everyone who signed and helped to get others to sign. Please call the RNC/DNC to add your view.
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Writing for FindLaw's Writ, Marci Hamilton discusses the oral argument before the US Supreme Court in the so-called "Bong Hits 4 Jesus" case:
On Monday, March 19, the United States Supreme Court heard oral argument in Morse v. Frederick, the case in which a student was suspended from school for unfurling a banner with the words "Bong Hits 4 Jesus" on an Olympic parade route. The route was across the street from his school; the incident occurred during the school day; and the student was standing with his fellow students at the time. He was not making either a political or a religious statement. Apparently, the phrase was borrowed from a bumper sticker and the student's goal was to get his picture in the newspaper. He obviously succeeded on the newspaper goal - for this case has gotten coverage nationwide -- but his First Amendment challenge seems to me to have less merit. (Readers should contrast Julie Hilden's two-part column on the case, written after it was decided by the Ninth Circuit, which reaches rather different conclusions.)
The U.S. Court of Appeals for the Ninth Circuit held that the student's speech was protected, and the principal was personally liable in the case, which was brought under a federal statute that allows awards of damages for violations of constitutional rights.
The problem with that decision, however, is that it exists in a land of little oxygen, far removed from the reality of high school, where if adults give students an inch to misbehave, they will take a mile, and where bids for attention like this one hardly need encouragement. One can only hope that the Supreme Court will offer a more realistic ruling, grounded in high-school realities.
Read the rest here.
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Two interesting academic papers that you may like read ...
First, up Professor Briffault (who taught me US campaign finance law at Columbia) on gerrymandering:
Briffault, Richard , "Defining the Constitutional Question in Partisan Gerrymandering" . Cornell Journal of Law and Public Policy, Vol. 14, p. 397, 2005 Available at SSRN: http://ssrn.com/abstract=943446
Abstract: In Vieth v. Jubelirer, a narrow majority of the Supreme Court determined that, at least for the moment, partisan gerrymandering is nonjusticiable. Yet, strikingly, all nine members of the Court also agreed that, justiciable or not, partisan gerrymanders raise a constitutional question, and some gerrymanders are unconstitutional. However, the Court gave little attention to just why gerrymandering might be unconstitutional.
The justices bounced back and forth between justiciability and the standards for proving gerrymandering without considering what constitutional harm gerrymandering poses.
This Article considers the question of why partisan gerrymandering might be unconstitutional. It finds four constitutional arguments against gerrymandering in judicial opinions and the academic literature: (i) vote dilution in violation of the equal protection clause; (ii) burdening of political association in violation of the first amendment; (iii) frustration of the competitiveness necessary for democratic elections; and (iv) excessive pursuit of partisan or individual legislator self-interest.
The Article contends that the first three arguments are likely to fail, in part because the theories they rely on are ultimately in tension with the use of districting to elect legislators. The fourth argument comes closest to capturing the constitutional harm posed by gerrymandering while remaining consistent with the use of districting. Of course, the fourth argument implicates the manageability concern that gives force to the argument against justiciability. Yet, the experience with Shaw v. Reno claims alleging excessive use of race in districting, suggests that the excessive partisanship/self-interest theory of partisan gerrymandering may also be judicially manageable - if the Court concludes that the harm posed by gerrymandering is serious enough to justify judicial intervention.
And next, Timothy Zick looks at privacy and wireless public spaces in this cleverly titled paper:
Zick, Timothy, "Clouds, Cameras, and Computers: The First Amendment and Networked Public Places" . Florida Law Review, Vol. 59, p. 1, 2007 Available at SSRN: http://ssrn.com/abstract=956160
Abstract: Public places are becoming highly networked environments. Municipalities are draping wireless clouds over vast public spaces, facilitating always-on internet connectivity. Surveillance cameras are now a pervasive presence in many public places. The people who gather in public and use public spaces are wearing and carrying ever more sophisticated computing devices. An integrated grid of networked connectivity is being built into traditional bricks-and-mortar public places. This Article examines the First Amendment implications of the progression toward networked public places. Wireless clouds will raise substantial property, public forum, and privacy issues. The networking of public places will also challenge traditional notions of public versus private expression. As Web access becomes ubiquitous and expression increasingly mobile, public citizens will be more captive to expression than ever before. New forms of virtual harassment, stalking, and other potentially harmful expression will appear. Public protests will also be affected by the networking of public places. Spontaneous gatherings will be made easier; but so too will official and unofficial surveillance of public protests and displays. Speaker and group identity - and perhaps eventually even speakers' thoughts - may be discovered, undermining protection for expressive anonymity. Finally, an army of citizen-journalists will roam public places, reporting on events from the field and posting content on the Web in real time. These citizen-journalists may seek to claim the mantle of the press. As serious as these issues are, the author argues that the stakes are actually much higher. Drawing upon scholarship in urban geography and sociology, the Article shows how public spatial networking will affect the critical identity, participation, and transparency functions of public places. It will influence who speaks, where they may communicate, and what they will say. It will render speakers more knowable to authorities, but in many cases less knowable to one another. People will increasingly interact with devices in public, rather than with one another. Speech regulation will be less transparent. The Article concludes with some modest proposals for resisting, or at least neutralizing, the negative First Amendment effects associated with spatial networking.
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David Starkoff raises a forgotten, but potentially important, right in the Australian Constitution:
With the Prime Minister announcement yesterday of a grand plan to effectively take over administration of the Murray–Darling Basin (PM’s National Press Club address, ABC, The Age, The Sydney Morning Herald, The Australian), not to mention The Courier-Mail’s ongoing reporting of south-east Queensland’s dire water situation, there’s one thing no one has mentioned even in passing.
One of the few individual rights conferred by the Australian Constitution is a right (strictly, a Hohfeldian immunity) in relation to water. Section 100 reads:
The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.
Of course, this is only a restriction on the Commonwealth’s legislative power (not the States’), and only allows “reasonable use”, which will vary depending on the circumstances. However, for one of the few individual rights in the Constitution, I find it surprising that it hasn’t been considered more often.
David then looks at a couple of cases that have considered s 100. Read his post here.
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The Washington Post reports on the US Supreme Court agreeing to review the campaign finance laws:
The Supreme Court agreed yesterday to revisit the landmark 2002 legislation overhauling the nation's campaign finance laws, moving to settle the role of campaign spending by corporations, unions and special interest groups in time for the 2008 presidential primaries.
It would be the first time the court has reviewed the McCain-Feingold law of 2002 since justices ruled 5 to 4 three years ago that the act was constitutional. Since then, Justice Sandra Day O'Connor, who was in the majority, has been replaced by Justice Samuel A. Alito Jr.
At issue in the case is the question of whether so-called issue advocacy ads paid for by the general funds of special interest groups and broadcast in the period before a federal election may mention specific candidates. A three-judge panel in Washington last month overturned that prohibition, which is one of the key provisions of the law known formally as the Bipartisan Campaign Reform Act.
Read more here. The cases are Federal Election Commission v. Wisconsin Right to Life (05-969) and McCain, et al., v. Wisconsin Right to Life (06-970), and SCOTUS Blog has the FEC's appeal is here, the appeal of McCain, et al. is here, and Wisconsin Right to Life's response is here.
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A look at copyright limits following Eldred v Ashcroft:
Shipley, David E., "Congressional Authority Over Intellectual Property Policy After Eldred v. Ashcroft: Deference, Empty Limitations and Risks to the Public Domain" . UGA Legal Studies Research Paper No. 06-011 Available at SSRN: http://ssrn.com/abstract=943470
Abstract: It is appropriate to ask whether there are any meaningful limits on the Supreme Court's deference to Congress in setting intellectual property policy after Eldred v. Ashcroft given the Court's statements about the authority of Congress under the Copyright Clause, its treatment of several prior statements on intellectual property policy and the Court's general reluctance to strike down legislation. Does Congress enjoy a carte blanche to legislate on intellectual property matters? Has the Court backed away from its posture regarding copyright law expressed in Feist to return to a relationship with Congress on copyright policy that is deferential to the point of servility?
The answer to these questions might be "yes." The Supreme Court's deference to Congress coupled with its reliance on the unbroken history of congressional practices granting term extensions and statements regarding differences between the patent and copyright monopolies have been of critical importance in recent decisions upholding legislation that provides for the restoration of copyright protection for certain works by foreign authors that had entered the public domain. Another court, relying heavily on Eldred, upheld the Copyright Renewal Act and the Berne Convention Implementation Act as well as CTEA. Appropriate deference to Congress also played an important role in several decisions interpreting anti-bootlegging legislation. The lower courts are split on whether this statute violates the Copyright Clause's "limited times" and "writings" limitations, and over whether it can be upheld under the Commerce Clause or the Treaty Power.
This article discusses several post-Eldred decisions, the expansive authority of Congress under the Copyright Clause, the meaning of the clause's limitations in the face of the Court's deference to congress, and the significant risk of encroachment on the public domain resulting from Congress' exercise of its power under the Copyright Clause. The post-Eldred decisions show that it may not be necessary for Congress to turn to the Commerce Clause or the Treaty Power in order to enact legislation that avoids limitations in the Copyright Clause. Given Congress' exercise of general legislative powers, the Court's deference to Congress' judgment in exercising its power under the Copyright Clause and its historic reluctance to strike down intellectual property legislation, the clause's limitations on congressional authority are becoming meaningless and this puts the public domain at risk.
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he Pocket Part: A Companion to The Yale Law Journal raises a intriguing concept:
Long a whipping boy of progressive law professors, the infamous decision in Bush v. Gore is facing judges who have to try to make sense of it in the context of the new wave of election-law litigation. And the first question they have to confront is whether they should be making sense of Bush v. Gore at all. For Bush v. Gore notoriously announced that “[o]ur consideration is limited to the present circumstances,” a line which some legal academics likened to a ticket good for one day only, or a self-destruct mechanism: after the President was chosen, the case blew up. Was the Supreme Court really trying to signal that Bush v. Gore should have no precedential value?
(References omitted; my emphasis added.)
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The High Court's Public Information Officer has released a two-page summary of the WorkChoices decision. Read it here.
Note the summary really only provides some background to the challenge and outlines the basis of the States challenge. It does not summarise the majority's reasoning.
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The High Court in a 5-2 decision has upheld the Government's WorkChoices legislation. Read it here.
There is a five judge joint judgment from Chief Justice Gleeson and Justices Gummow, Hayne, Heydon and Crennan upholding the legislation in its entirety
Interestingly, Justice Kirby dissents holding that "This Court should declare the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) invalid in its entirety under the Constitution", as does Justice Callinan. Justice Callinan concludes that "The validation of the legislation would constitute an unacceptable distortion of the federal balance intended by the founders".
The judgment is 400 A4 pages in length and contains 1127 footnotes.
I plan to read the judgment in its entirety before posting a summary or any comments or analysis - so it may take me some time!
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The High Court will on Tuesday morning (14 November) deliver its crucial decision on the States' and unions' constitutional challenge to the Work Choices legislation.
The court's full seven-member bench reserved its decision on May 11, after hearing argument over five days in Canberra.
The judgment will be handed down at 10.15am, in Canberra.
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I've come across a couple of interesting articles in the past few days, including one very strange one (can you pick it?).
First, a look at intellectual property and antitrust law, focusing on Microsoft:
First, Harry, "Microsoft and the Evolution of the Intellectual Property Concept" . Wisconsin Law Review, 2006 Available at SSRN: http://ssrn.com/abstract=936230
Here is the abstract:
In the old economy of railroads and electric power companies, the public utility concept was frequently employed to justify monopoly as natural, to turn state granted privileges into property rights, and to immunize business practices from antitrust enforcement. In the new economy of information industries, a similar concept is now evolving, one which we can call the intellectual property concept. Built vaguely around intellectual property law, the new intellectual property concept turns out to be remarkably similar in its rhetoric and economics to the old public utility concept. And, like the public utility concept, the desired effect of the intellectual property concept is to provide an immunity from antitrust law.
This article explores the evolution of this new intellectual property concept, describing the concept through the lens of two antitrust prosecutions brought against the Microsoft Corporation - perhaps the paradigm new economy firm - and showing how the intellectual property concept might properly be used in cases raising a conflict between intellectual property rights and antitrust. The article begins by examining the role that intellectual property issues played in the liability and remedy phases of the monopolization case that the Department of Justice and the states brought against Microsoft. The second part of the article discusses the more central role that intellectual property issues are playing in the proceeding that the European Commission brought under Article 82 of the EC Treaty. The third part of the article, drawing on the experience in these two cases as well as on our past experience with applying antitrust to regulated industries, suggests five specific principles for applying an evolved intellectual property concept to antitrust cases and shows how those principles could have been applied in several recent court of appeals' decisions.
Second, constitutional law haikus:
Chen, Jim, Farber, Daniel A. and Grantmore, Gil, "Constitutional Law Haiku" . Constitutional Commentary, Vol. 18, p. 481, 2001 Available at SSRN: http://ssrn.com/abstract=928784
Here is a sample:
These con law haiku
Tell law with style and rhythm.
Download and enjoy.
Third, a consideration of data privacy in India call centres:
Bali, Vinita, "Data Privacy, Data Piracy: Can India Provide Adequate Protection for Electronically Transferred Data?" . Santa Clara University School of Law Legal Studies Research Paper No. 06-10 Available at SSRN: http://ssrn.com/abstract=932679
Here is the abstract:
As the wave of outsourcing to India swells, there is growing concern about the inadequacies of the India legal system in protecting data being transferred to it from other nations for the purpose of processing. India has a smattering of laws that scantily address the issue of data privacy. Under pressure from the business processing industry in India, as well as from the European Union and other nations, it is but a matter of time before India adopts a slate of laws that address the issue of data protection. Once these laws are enacted, the main issue that remains is whether the Indian judicial system, rife with inefficiencies, delays and backlog, can prosecute breaches of data privacy in such a manner as to be an effective punitive and compensatory mechanism, or deterrent against future violations.
This paper recommends that India adopt a system of specialized courts to address matters related to cyber infringement, including data privacy. Drawing from the experience of specialized courts in alternate jurisdictions, specifically Thailand, the US and Italy, this paper recommends specific features of a specialized 'Cyber Infringement Court' system in India.
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