an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
All signs seem to indicate that we are going to war with Iraq, very soon. I’m all for disarming Saddam, but I’ve long been a skeptic of the Bush policy toward Iraq, thinking that it’s a dangerous gamble that will plunge us into a series of armed conflicts for a long time to come. That’s why at one point I called Bush
the most dangerous person on earth.
Bush has played his hand pretty well up to now– his speech to the United Nations on September 12th brilliantly challenged the U.N. to get behind him, and he has managed to get grudging acquiescence, if not wholesale support from the U.N. But it has become quite clear, to me at least, that he means to attack whether or not anybody else is with him. And that’s the dangerous element in the game he is playing.
Saddam is no choirboy: he’s a brutal, ruthless tyrant, and, all other things being equal, it would be a good thing for us to rid the world of brutal ruthless tyrants, and if we can’t get rid of this character, we need to disarm him.
The major problem, as I see it, is that we really don’t know how long the war will last, how many people will be killed and dislocated, how many refugees we will create, how many lives we will shorten through sickness and famine, whether we will destabilize other regimes in the Middle East, and whether America’s enemies will use our preoccupation to gain advantages elsewhere in the world (think about North Korea, for example).
In addition we don’t know whether we will be stuck in an ongoing military occupation of two states with predominantly Muslim populations, first Afghanistan and now Iraq. The more Muslim states we end up occupying, the more convinced other Muslims will be that we are essentially imperialists and do not act in the best interests of Islam. Believe me, that can’t be a good thing.
And then there’s the little problem of Osama bin Laden, who is still at large. Americans tend to get mixed up about who their enemies are; apparently lots of people polled actually think that Iraqis were involved in 9-11. They weren’t. And spending all our time on Iraq distracts us from a little thing called the War on Terrorism. Perhaps it’s good politically for President Bush and Karl Rove to engage in this little bait and switch game, but I don’t think it’s necessarily good for the country’s long term strategic interests.
Faced with uncertainty, one nevertheless must decide. And decision about the right strategy must come soon, because as the months drag on, weather conditions are less amenable to an American-led assault, and the cost of keeping large numbers of troops poised for battle will become prohibitive.
So in order to resolve this question, I did what any sane person would do.
I asked the I Ching.
For those of you unfamiliar with the I Ching (or Book of Changes), it is a Bronze Age Diviner’s manual used by the Zhou Dynasty Kings in ancient China, which was later reinterpreted into a profound work of ethical philosophy and made into one of the Confucian Classics. One consults it by asking a question and then using a random method (like tossing coins or dividing yarrow stalks) to point to a place in the text that provides an answer.
The I Ching does not predict the future. All it does is give you something to chew on, stimulate your unconscious mind. There is absolutely no evidence that randomly throwing coins predicts future events. But reading selected passages from the book itself is quite good at shaking up your accustomed patterns of thought. And sometimes it can be eerily on point, in part because the reader brings his or her own unconscious thoughts and desires to the reading of a text that is by nature ambiguous and subject to multiple interpretations. (Note and shameless self-promotion. I’ve just published a new translation of the I Ching with commentaries, called "The Laws of Change." All quotations are taken from this version).
So I asked the I Ching, “What will happen if the United States attacks Iraq?” And this is what I got. Seriously. I am not making this up.
Hexagram 24 (Fu, Return), line 6 moving:
Six at the top:
Returning in confusion.
There is blunder and disaster.
If one sends armies marching,
In the end one will suffer a great defeat,
With misfortune for the country's ruler.
For ten years
It will not be possible to start out again.
Here is the commentary on the line:
“Returning in confusion” means missing the right time for return. The confusion is internal; it stems from a misunderstanding of the outside world. Obstinacy and bad judgment lead a person to mischaracterize the situation and hence to miss opportunities for reform. Hence the text says “blunder and disaster,” meaning both misfortune from external causes and from one’s ignorance or mistake in dealing with the situation. The text analogizes the situation to warfare. In conducting a campaign timing is essential. If one delays attacking when one should move forward or attacks at the wrong time, the result is certain defeat. The ruler wastes lives and resources and must wait “ten years”-- metaphorically the length of a complete cycle-- for circumstances to improve.
Either through stubbornness or neglect, you have refused to see that change was necessary. As a result you have missed the opportunity to make a turn for the better. If you try to strike out boldly now you will simply make things worse. Instead you must be patient and wait until a new opportunity presents itself.
Woooooh! Sounds pretty bad for the U.S. and for Bush if we attack.
But here’s the thing about oracles. They always have multiple meanings. Who’s to say that the “country’s ruler” isn’t Saddam? Those of you who know the famous story of King Croesus remember that he asked the Oracle at Delphi whether he should cross the Halys river and attack the Persian army. The Oracle is said to have responded, "If Croesus crosses the Halys, a great power will be destroyed." Thinking this referred to the Persian empire, Croesus crossed the river and attacked. Unfortunately, his own great army was annihilated. The oracle, it seems, would have been right either way.
So putting aside the question of prediction, which a random coin toss, I once again emphasize, cannot decide, we might ask whether we can draw any ethical or practical lessons from the text.
There is one lesson we might draw. The theme of this hexagram is the need for reform and for returning to the right path after a long period of strife and confusion. We may be looking at this crisis the wrong way. For the President and most of his advisors, the issue is simple: Saddam is a threat, or may soon become one. We need to strike at him preemptively, whether with our friends or standing alone. Too much is at stake not to act.
However, it may be that attacking Saddam directly is not the best way to disarm him or get rid of him. We do not yet understand everything that is going on in this situation, and we may be confused about what is in our best interests and the world’s. If we wait a bit longer, we may build a case that isolates Saddam in the world community and makes our unilateral action unnecessary. The great military strategist Sun Tzu once said that the greatest general is one who never has to go to war. Such a general arranges his alliances and shapes the terrain of battle so effectively that his foes dare not attack him, but instead act according to his wishes because they have no better strategic alternative.
My advice would be to wait, not because waiting is not acting, but because waiting is the best method of acting, the best way of reforming ourselves and our own ways of thinking. Right now, when so much hangs in the balance, we need to avoid a mindset in which war is inevitable. We need flexibility and imagination. For once we cry havoc and let slip the dogs of war, they will not easily be recalled. And we may have hell to pay for many years to come.
Is the Digital Millennium Copyright Act Unconstitutional under Eldred v. Ashcroft?
In an earlier post, I strongly criticized the Supreme Court’s First Amendment analysis in Eldred, arguing that the first amendment issues were not well thought out and that the Court seemed so preoccupied with the Copyright Clause that it dismissed the First Amendment issues as an afterthought. But anyone who understands the important connections between the free speech principle and the public domain should also understand that there is no way you can resolve the First Amendment issues in the case simply, or without making new law, and if you don’t pay careful attention to the larger picture, even what appear to be the simplest and most uncomplicated statements of law will have all sorts of unintended side effects.
As a lawyer and legal scholar, it’s my job, when confronted with decisions I don’t particularly agree with, to make lemonade out of lemons-- to see how the court’s reasoning might apply to future cases in ways I do approve of. And after thinking about Eldred’s First Amendment analysis, it seems to me that the Supremes have made new law that puts the DMCA into question.
The key holding of Eldred is that “when ... Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” The reason for this is that fair use and idea/expression provide “built-in free speech safeguards,” which “are generally adequate to address” the problem that copyright makes reproducing certain speech illegal. Slip Op. at 31. According to Justice Ginsburg, alteration of time limits in the CTEA does not “alter the traditional contours of copyright protection,” presumably because “limited monopolies are compatible with free speech principles” Slip Op., at 28, as long as they are limited and as long as the traditional contours of fair use and idea/expression distinctions remain in place. It’s unclear whether Ginsburg means to say that any copyright term extension short of perpetuity would raise no first amendment issues, as long as fair use and idea/expression are not touched, or whether she is just saying that the CTEA isn’t a very significant extension in the larger scheme of things. But either way, she does seem to rest first amendment protection on two other elements of copyright law: fair use and idea/expression.
Well, what happens if Congress decides to “alter the traditional contours of copyright protection,” by greatly restricting fair use, or begins to offer protection to ideas in the guise of protecting mere expression? In that case, “further First Amendment scrutiny” would be necessary. If Ginsburg does not mean this, then its hard to see what her argument amounts to other than a blank check to Congress to rewrite copyright law any way it wants.
And that brings us to the DMCA. As many people know, the Digital Millenium Copyright Act creates a new species of intellectual property protection, sometimes called “paracopyright,” that protects not copying itself but the creation of various devices and technologies that might be used to facilitate copying by circumventing copyright management devices. The DMCA prohibits the distribution of technologies that circumvent copyright management devices, and the Second Circuit has held that it reaches even linking to sites where such technologies may be found. Moreover, the DMCA protects copyright management devices from circumvention even if these devices are employed deliberately to prevent people from using copyrighted materials in ways completely consistent with fair use.
Does the DMCA “alter the traditional contours of copyright protection”? Yes, it does, in two respects. First, it creates a new property right that allows copyright owners to do an end run around fair use, effectively shrinking the public domain. Second, it extends that property right to prohibit the use and dissemination of technologies that would protect fair use and vindicate fair use rights. Congress has exceeded the traditional boundaries of copyright protection, superimposing a new form of intellectual property protection that undermines the “built-in free speech safeguards” crucial to the holding in Eldred. Hence, under the logic of Eldred, the DMCA is constitutionally suspect.
Three caveats about this argument.
First, do I think that the Supremes understood the consequences of what they were doing when they wrote the words “traditional contours of copyright protection”? No, because as far as I can tell, they are pretty much clueless about the interface between first amendment law and intellectual property and how that interface has been affected by the new information technologies. I specifically include Justice Ginsburg in this, even though she is related to one of the foremost copyright scholars in the United States. By defending extended terms on the theory that fair use and idea/expression were effectively held constant, they opened themselves up to the argument that fair use and idea/expression have not been held constant, and that they won’t be held constant in the digital age. That’s why I think they were clueless. But they said it, and now we have to live with what they said, and for those of us who think the DMCA is a bad statute, Eldred creates a new argument for its repeal or for a constitutional challenge.
Second, as Bill Clinton would say, it all depends on what you mean by the word “traditional.” If the notion of “traditional” has any teeth to it, paracopyright is not traditional. If you say there is long tradition of giving media interests anything they want in the copyright field no matter what, then I guess paracopyright is as traditional as any other form of politically sanctioned protection of corporate interests. A more plausible response, I think, is that the idea of “traditional copyright protections” is a bad test for the digital age. It can't be the right way to assess the first amendment values at stake, and it’s as short sighted as the notion that only traditional public forums– streets and parks– deserve first amendment protection in an age of television, cable, and the Internet. But that’s an argument for why Eldred was wrongly decided in the first place.
Third, the fact that the DMCA is subject to first amendment scrutiny under this argument does not mean that it necessarily falls. But I think there is a strong argument that if you take seriously the logic of Eldred, it must fall. Copyright has both temporal aspects-- length of copyright term-- and horizontal aspects– scope of rights at any one point in time. Ginsburg’s opinion suggests that you can expand copyright protection temporally as long as you don’t mess with the horizontal aspects that preserve free speech interests. Congress clearly did mess with those horizontal aspects in the DMCA, and so, under the logic of Eldred, it infringed on the “built-in free speech safeguards” of copyright law.
John Rosenberg has been kind enough to comment on a few of my posts on racial equality. He is especially puzzled by my claim that the ten percent solution is not colorblind because it is specifically designed to help blacks and Latinos.
Under [Balkin's] approach, no policy is colorblind if its purpose and effect primarily benefits minorities. Forget about the Texas Plan. Forget about affirmative action in its original sense of outreach and taking affirmative steps to insure that no person is disadvantaged because of race. They're small potatoes. Welfare? It's unconstitutional if its proponents were aware that it disproportionately benefits blacks, let alone supported it in part for that reason. Indeed, on Balkin's logic, the Civil Rights Act of 1964 and all the other civil rights laws are discriminatory!
John’s onto something big here, although he is a bit confused about what my position is. For the record, I support race conscious affirmative action on a number of grounds, and I also think that laws designed with the purpose and effect of helping minorities achieve equal opportunity can be constitutional even if they make overt racial classifications. I don’t think that they are necessarily unconstitutional or illegal race discrimination. Moreover, I do not think that laws that benefit blacks and Latinos should be treated with the same degree of scrutiny as laws that preserve the superior socioeconomic status of whites in American society. Nevertheless, I believe that all overt racial classifications should be viewed with some degree of scrutiny because racial classifications often have undesirable side effects and sometimes are not the best way to achieve the goals of equality and equal opportunity.
Now back to John’s comment. John is conflating two different issues. One issue is what test has to be met for government action to be unconstitutional race discrimination. This is the question of what makes discrimination “on the basis of” race. For example does the law have to say the magic words, or can facially neutral laws also be discriminatory. If so, under what test? Is a showing of disproportionate impact necessary? Is some showing of invidious purpose necessary in addition to racially disproportionate impact? If so, what is the necessary level of mens rea? Is it neglience, foreseeability, knowledge, purpose, specific intent, or something else? All of these are possible ways of fleshing out the test of what is discrimination “on the basis of” race. There is no inherently right answer to which test you use, and the courts are not consistent in the ways that they articulate the test. (If you don’t believe me on this one John, let’s take it up in another post.)
The second issue is whether the rules concerning discrimination are symmetical: That is whether a law that burdens (or helps) whites is just as unconstitutional as a law that burdens (or helps) blacks, or whether a different standard of review applies for race conscious affirmative action designed to help minorites.
You can have lots of different combinations of views. You can be in favor of symmetry and insist that only overt racial classfications that say the magic words violate the antidiscrimination principle. You can believe in assymetry but require that the statute or policy has to say the magic words. You can be in favor of symmetry and hold that facially neutral statutes which merely have foreseeable effects on racial groups violate the antidiscrimination principle. Or you can hold that view about facially netural policies and also believe in assymetry. The ways you can articulate your favorite version of the antidiscrimination principle are endless. In short, there isn’t one single antidiscrimination principle, there are lots of them, and although most people don’t realize it, they often have different ones for different areas of social life. (More on that, too, in a later post).
Existing Supreme Court doctrine insists on symmetry, in the sense that both discriminations against whites and against blacks are treated with strict scrutiny-- narrowly tailored to promote a compelling state interest with no less restrictive alternatives. This is the holding of Adarand. People who support colorblindness have varying views on what is discrimination “on the basis” of race, but all of them claim to support symmetry. Indeed, some people think that colorblindness is identical with symmetry across races. Adherences of colorblindness can differ on what is discrimination “on the basis of” race, but they can’t abandon the symmetry principle and still be adherents of colorblindness.
But-- and here’s the point-- in practice, almost nobody really is in favor of symmetry, because everybody understands that being black or Latino puts you in a very different social situation than being white in the United States. Even Adarand itself doesn’t really enforce symmetry. The law in Adarand made facial racial classifications which were clearly designed to help minorities in construction contracts. The Court argued that strict scrutiny applied regardless of whether whites or minorities were discriminated against, and then remanded to the lower courts for further hearings on whether the test of strict scrutiny was met. If the law in Adarand had created explicit classifications in favor of whites with a purpose of promoting whites in construction contracts, the Court would not have remanded the case to the lower courts for further hearings. It would simply have struck the statute down on its face. That’s because even the Justices who are most opposed to affirmative action understand the difference between a welcome mat and a no trespassing sign.
John says he just can’t believe my claim that “no policy is colorblind if its purpose and effect [is] primarily [to] benefit minorities.” But that’s because he’s confusing the issue of symmetry with the issue of what is “on the basis of.” Substitute the word “whites” for “minorities,” and you get the sentence “no policy is colorblind if its purpose and effect [is] primarily [to] benefit whites.” Doesn’t sound so crazy now, does it? That’s exactly what former Jim Crow states did after Brown. They passed facially neutral laws like freedom of choice plans whose purpose and effect was to keep blacks segregated in inferior schools. Even Washington v. Davis, which many liberals criticize, assumes that if a law can be shown to have the purpose and effect of discriminating against a racial group, it violates equal protection.
Our actual practices and our sense of what is fair just do not conform to the principle of symmetry. There is lots of dispute among conservatives and liberals about whether symmetry should apply to overt racial classifications, but when we move to facially neutral laws, most conservatives and liberals tend to accept assymetry, even though, as I've argued it's really not consistent with colorblindness. As John's post points out, legislatures often use facially neutral laws to benefit disadvantaged groups and say so publicly. The fig leaf of facial neutrality is invoked to justify the law, but legislators are permitted to say in public that it’s designed to help disadvantaged minorities. That practice, however, is *not* symmetrical among the races. Legislators do not justify facially neutral laws on the grounds that they are specifically designed to help white people. They don't because it's a sure fire invitation to a lawsuit and because they would be thought racist, and rightly so.
Why aren't our practices with respect to facially neutral laws symmetrical? Because most people understand that it’s fair to help out disadvantaged groups through facially neutral laws, but that whites don’t need as much help, and to go around saying that white people are oppressed in the United States and then to try to help them through the disguise of a facially neutral law sounds just a bit too much like the Jim Crow South.
What about the Civil Rights Act of 1964, then? It’s a terrific question, and it cracks the case for colorblindness wide open, because it brings us to the issue of baselines. John argues that laws like the 1964 Civil Rights Act that guarantee blacks equal opportunity clearly are designed to help them, so doesn’t that make them race conscious? Well, if your baseline is a world in which everyone has the right to refuse service to anyone they don’t like, and the right to hire and fire anyone they don’t like, yes, it does. The law is altering common law rules of contract and property for the explicit purpose of benefitting black people.
Indeed, this *is* the argument (made in 1964) that the Civil Rights Act does not guarantee equal rights but rather creates “special rights” for black people. It is the argument made in 1883 in the Civil Rights Cases that the Civil Rights Act of 1875, which outlawed public accommodation discrimination (an ancestor of Title II of the Civil Rights Act of 1964) was unconstitutional because it made blacks, in Justice Bradley's words, “the special favorite of the laws.” Today opponents of gay rights laws say they give gays and lesbians “special rights” because these opponents work from a baseline in which its ok to refuse to deal with someone whose sexual practices they find morally offensive.
To reject the claim that antidiscrimination laws are “special rights,” you have to start by rejecting the fairness of the common law rules of property and contract. You have to say that those rules are defective in some way, and that without antidiscrimination laws, you actually have an economic system that, although it looks nominally equal to all, is actually unfair to blacks. That view, I should point out, was not generally accepted until the Civil Rights Movement, and it still has not been generally accepted with respect to gays and lesbians. (One can always hope, however).
What’s the lesson here? The lesson is that our sense of what is colorblind and what is race conscious is not fixed; it is continually subject to change and social contestation. It depends on a baseline of expectations about what’s fair and what’s not fair in American society. Advocates of colorblindness tend to miss this point, because they tend to assume that there’s a single legal form, or a single moral principle that can be called “colorblind,” and deviations from it constitute discrimination. But there isn’t, and the more you study the history of how the rhetoric of colorblindness has actually been deployed in history, the more you will see that this is the case. What “colorblindness” is today is an amalgam of different assumptions about what constitutes discrimination “on the basis of” race and what forms of asymmetry one is willing to recognize and not recognize. (The history of the rhetoric of colorblindness, by the way, is really interesting, and I hope to provide some of it in another post).
Mickey in Chains, Part II, or Why the Court Got It Wrong in Eldred v. Ashcroft
Most people, I suspect, are going to be interested in the Copyright Clause issues in Eldred v. Ashcroft. However, because I'm a First Amendment scholar, I want to focus particularly on the first amendment arguments the Supreme Court made. They appear in Section III of the Eldred opinion, and to my mind, they are just as important as the rest of the opinion, because the Court couldn't affirm the D.C. Circuit without addressing the First Amendment question.
I’m a big fan of Ruth Bader Ginsburg, who has fought the good fight countless times, but in this case I think she has done a terrible job of discussing the First Amendment values at stake in copyright law. The discussion in Eldred is very short and it’s wholly inadequate. My guess is that the Court was so focused on the copyright clause question that it gave short shrift to the First Amendment issues. (Indeed, as I recall, Ted Olsen wasn’t even asked a question about the plaintiff’s First Amendment argument). That’s a shame. As Justice Breyer points out in his dissent, to decide this case correctly, you have to understand how copyright law interacts with first amendment values, and, in particular how copyright law contributes to the creation of a robust, diverse sphere of public discourse about art, politics, and public issues. If you make copyright too strong, you shrink the public sphere and damage public discussion. That's just what the Court has allowed Congress to do in this badly reasoned and terribly shortsighted opinion.
In fact, I think that the First Amendment claims in Eldred v. Ashcroft were in some ways stronger than the copyright claims. The Court obviously disagrees. But in the process, it has created some very bad law in the first amendment area, effectively insulating a whole host of copyright expansions from first amendment scrutiny.
Ginsburg argues that there is no conflict between free speech and copyright terms because the“copyright scheme ... incorporates its own speech-protective purposes and safeguards.” She begins by noting that “The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles.”
This argument proves both too much and too little. It proves too much because the First Amendment was ratified at a time when lots of laws against libel, blasphemy, and indecency (judged by 1791 standards) were thought to be consistent with the First Amendment. Indeed, Congress passed the Alien and Sedition Acts only seven years later. If Ginsburg’s argument is correct, most of contemporary First Amendment law is wrong. The argument proves too little because the length of the copyright monopoly at the time of the Founding was much much shorter than it is today, and the modern doctrines that have expanded the scope of copyright protection did not exist in the 1790's. The fact that some degree of copyright monopoly was thought compatible with the First Amendment does not demonstrate that any degree of monopoly, no matter how large or extensive, would have been thought compatible.
Following this makeweight argument, she gets to the real point, arguing that the idea/expression distinction and fair use are “built-in First Amendment accommodations” that are adequate to preserve first amendment values.
The problem with this argument is that the scope of fair use has been greatly contracted by years of judicial rulings and legislation like the Digital Millenium Copyright Act (DMCA). The expansion of derivative rights and the proliferation of new forms of copyright protection have shrunk the built-in first amendment protections Ginsburg speaks about. The idea/expression distinction also has proved to be highly manipulable and a shaky source of protection for free speech.
What Ginsburg overlooks is that the limitation of copyright terms is also a central and important built-in feature of copyright law that protects free speech values. The legal brouhaha over Alice Randall’s “Wind Done Gone” would never have occurred but for the length of the copyright protections for “Gone With the Wind” and the ever- expanding doctrines of derivative rights that give copyright holders control over derivative works. One can protect free speech values either through fair use, the idea/expression distinction or limited terms. To that extent, Ginsburg is surely correct. But the problem is that in the past half century, all three of these protections have been steadily contracting. The reason is not difficult to understand: Media organizations have been able to make more and more money through distribution of media products and have therefore influenced courts and legislatures to ramp up property protections in order to maximize their profits, without regard for the long-term effects on public discourse. It’s a classic public choice story, in which concentrated economic interests are better able to obtain rent seeking legal rules than diffuse interests among the general public.
Normally, rent-seeking in ordinary social and economic legislation doesn’t violate the Constitution. But laws shrinking the public domain and expanding IP protection affect free speech values, for the obvious reason that copyright gives people a state enforced right to stop other people from speaking in ways they object to. Hence there is a Carolene Products problem: Ordinary processes of democratic legislation are likely to lead to increased propertization and a smaller and smaller public domain, and this tendency is unlikely to be repealed through ordinary legislative processes. Hence a more searching scrutiny is called for to protect 1st amendment values.
Ginsburg, however, considers and rejects the argument that heightened or medium scrutiny should apply.
The plaintiffs argued that at the very least the Court should apply the medium scrutiny of cases like Turner Broadcasting System, Inc. v. FCC, because Turner is a case where the Court had to balance the free speech rights of broadcasters against the free speech rights of cable companies who would be forced to carry their programming. Ginsburg rejects the analogy, arguing that Turner
bears little on copyright. The statute at issue in Turner required cable operators to carry and transmit broadcast stations through their proprietary cable systems. Those “must-carry” provisions, we explained, implicated “the heart of the First Amendment,” namely, “the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” ... The CTEA, in contrast, does not oblige anyone to reproduce another’s speech against the carrier’s will. Instead, it protects authors’ original expression from unrestricted exploitation. Protection of that order does not raise the free speech concerns present when the government compels or burdens the communication of particular facts or ideas. The First Amendment securely protects the freedom to make–or decline to make–one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.
It’s certainly true that the CTEA isn’t a statute about must carry regulations. But that’s not really the point of the argument. Turner Broadcasting says that when Congress tries to limit the speech of cable companies in order to encourage a more diverse set of views in broadcasting, the Court has to apply at least some level of scrutiny to protect free speech rights, and even more if the restriction is based on viewpoint. Well, that’s what copyright is all about: restricting speech that replicates what someone else has said, uses too much of it, or produces a derivative work, in order to promote more transformative uses in the long run.
It’s just not true that copyright laws do not “burden the communication of particular facts or ideas.” Just ask Alice Randall. Just ask the folks who create fan fiction web sites. And it’s just not true that the First Amendment “bears less heavily when speakers assert the right to make other people’s speeches.” Sometimes the best way to express your point is through using the words of others, or through annotating, commenting and expanding on the words of others. During the first year anniversary of the 9-11 attacks, people read aloud the Gettysburg Address– which last time I checked was somebody else’s speech-- and they did so because they believed that it was the best way to convey what they felt at the time. The more restrictive the scope of fair use, the greater the scope of derivative works, the more ideas merge into expression, and the longer the terms of copyright, the more first amendment values are going to be strangled.
Ginsburg concludes by suggesting that
To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them. We recognize that the D. C. Circuit spoke too broadly when it declared copyrights “categorically immune from challenges under the First Amendment.”... But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.
There’s the rule of the case: When Congress has not “altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” But the very question to be decided is whether Congress has altered the traditional contours of copyright protection in passing the CTEA, especially given how expanded terms interact with fair use and idea/expression doctrines. Copyright law today is much more expansive in its protections than it was in 1800, or even 1976. The “traditional contours” Ginsburg speaks about have not stayed fixed, but have continually been changing in ways that benefit media organizations and limit the speech of others. Ginsburg’s facile statement neglects this point. The more that Congress and the courts contract the public domain *horizontally*– through expansion of derivative rights and contraction of fair use– the more courts need to watch out for contraction of the public domain *vertically,* through expanding the length of copyright terms. One cannot protect first amendment rights adequately unless one pays attention to the larger picture.
The best argument for why the Court shouldn’t apply first amendment scrutiny to copyright terms is that courts aren’t very good at drawing lines. If 50 years is ok, why not 70? But it’s perfectly ok for courts to say that the justifications offered for a particular piece of legislation are not sufficient. Breyer does a pretty good job of this in his dissenting opinion. And the Court has to draw lines in time, place, and manner cases all the time. For example, in Turner Broadcasting itself, the Court was faced with a statute that required must carry of certain numbers of channels. Under the medium scrutiny test of Turner, at some point, requiring cable companies to carry too many channels would violate the First Amendment, but too few would be ok from the standpoint of free speech. So the argument against judicial review is much less strong that it first appears when you actually look at what Courts actually do in first amendment cases. That is especially so when, as Breyer points out, the present discounted value of the term extension approaches the vanishing point, and the legislation looks like nothing more than a land grab for big media organizations. If the incentives for creation produced by the latest copyright extension are really that small, it’s not that difficult to conclude that the cost to freedom of expression has got to be greater.
In the Court’s eagerness to get rid of the first amendment claims in this case, it has created truly bad law that will cause problems for freedom of expression for many years to come. This is simply a disastrous opinion for free speech, and the Court should be ashamed of the shoddy job it’s done in this case.
President Bush has decided to weigh in on the side of the plaintiffs in the Michigan affirmative action case now before the U.S. Supreme Court, and is widely expected to tout Texas' "Ten Percent Solution" as an alternative to race-conscious affirmative action.
In response to the Hopwood decision, which barred the University of Texas from using race as a factor in law school admissions, the Texas Legislature passed a bill providing that Texas students in the top ten percent of their graduating high school classes shall be admitted automatically to any Texas state university for college education without consideration of standardized test scores. See Tex. Educ. Code Ann. § 51.803(a). The "Ten Percent Plan" trades on the fact that students in Texas attend ethnically segregated schools; the Legislature hoped that it would compensate in part for the predicted loss in minority enrollments that would occur when diversity-based affirmative action plans were no longer permissible.
The ten percent plan has its share of problems. First, it doesn't work in states that are not strongly de facto segregated in secondary education. Second, it does little to promote diversity in graduate and professional schools. One can try to award spots in graduate and professional schools to students from traditionally black colleges, but ultimately the effect is not the same as occurs in college admissions.
These two problems suggest why the plan may not maintain diversity. But the third problem is quite different. It is that it the Ten Percent solution isn't really consistent with the colorblind philosophy that many opponents of race-conscious remedies claim to support.
The Ten Percent solution is not in fact colorblind, and it is inconsistent with the political, moral and constitutional arguments for colorblindness generally offered by opponents of race-conscious affirmative action. Indeed, support for such a plan among opponents of affirmative action reveals the basic problem with colorblindness as a theory of equality: Colorblindness taken seriously leads to unpalatable results that most Americans would reject as undesireable, unequal, and unfair.
There is no question that the Ten Percent solution is a race conscious remedy. The avowed purpose of the Ten Percent solution is to increase minority enrollments at Texas state universities. If race-consciousness means taking race into account in government decisionmaking, the ten percent plan is clearly race conscious.
One might object that colorblindness merely means that the policy may not mention race on its face or make explicitly racial categories. But that undermines the moral case for colorblindness, making it only a fig leaf for otherwise unconstitutional motivation. The Supreme Court has wisely never adopted this view. It matters not whether the language of the plan is facially neutral if a racially discriminatory purpose for enacting the policy can be shown. Consider a state policy that was neutral on its face but could be shown to have been put in place specifically to increase the number of whites attending Texas state universities. Under Croson and Adarand, goverment policies that discriminate against whites must be viewed with the same degree of suspicion as policies that discriminate against blacks. If a purpose to increase white enrollments could be found, the policy would be unconstitutional under Washington v. Davis. By the same logic, so would a policy whose deliberate purpose was to increase black and Latino enrollments.
One might object to this line of reasoning as follows: The Ten percent solution does not discriminate *against* whites, it only discriminates *in favor of* blacks and Latinos. In support of this argument, one might cite the Feeney case, which says that discrimination must be because of rather than in spite of the effects on a particular group. But such an argument will be unavailing, for one could then argue that policies specifically designed to increase white enrollments were constitutional because they were not discrimination against blacks and Latinos, but only in favor of whites.
I would submit that the Ten percent solution is attractive to many people precisely because it *does* take race into account, and leads to a predictable supply of minority candidates without formally saying the magic words in the language of the statute. And it is more palatable because it organizes the method of selection at the group level rather than at the individual level. Because it is predictable that the top students at de facto segregated schools will be black or Latino, it is unnecessary to take their individual race into account in admitting them. This preserves the illusion that everyone is treated as an individual, not as a member of a group, and is treated the same regardless of their race. But that illusion is only made possible by fixing the rules of the game beforehand with a deliberate eye to the predicted racial balance of the incoming class. You can call this a lot of things, but colorblind is not one of them.
The Supreme Court has decided Eldred v. Ashcroft, which, by a vote of 7-2, upholds the Sony Bono Act. You can get the opinions from Lawmeme, the Information Society Project's blog on Internet issues, here.
I helped write a constitutional law professors' amicus brief on the First Amendment issues, and I'll have more to say about the first amendment questions-- which were quite poorly addressed in the majority opinon-- later on.
Roe and the Party System– Or, Why Hasn’t Roe v. Wade Already Been Overruled?
This is the second in a series of posts on the thirtieth anniversary of the Supreme Court’s decision in Roe v. Wade.
I left off my last post by pointing out that Roe v. Wade helped produce the contemporary Republican Party. The Republican Party has had great success since 1968 in winning Presidential elections, and hence in appointing judges. For example, as I like to point out to my students, the Democrats didn’t get a single Supreme Court appointment between 1967 (which Thurgood Marshall replaced Tom C. Clark) and 1994, when Clinton nominated Ruth Bader Ginsburg. Think about that-- 27 years of Republican Supreme appointments. This has had an effect on constitutional doctrine in a number of areas, including, most importantly criminal procedure. But it has not been sufficient to get rid of Roe v. Wade.
Given Republican dominance on the Supreme Court, what explains the fact that Roe v. Wade is still standing?
The answer to this question is quite complicated, and involves a number of different factors, all of which revolve around the party system in the United States.
(1) The first factor is the changing nature of the Republican Party and of the background assumptions of American politics. We must to remember that the Republican Party of 1969 was not the same as the Republican Party of 2003. In 1968, the Republicans retook the White House at the apex of Democratic liberalism. The Congress was still heavily controlled by Democrats, and liberal ideas were still very much dominant. As a result, mainstream Republicans routinely took positions that today seem quite moderate, if not outright liberal. It was not until the 1976 convention that the Reagan forces began their ascent towards remaking the Republican Party in their own image, although Reagan does not capture the nomination until 1980.
Nixon had won the Presidency because George Wallace helped break apart the Democratic coalition that produced a landslide in 1964. The liberal Democrats in Congress hated Nixon and believed that he had not deserved to win. Because Nixon had run in 1968 against the Warren Court, Democrats were determined not to allow him to appoint new Justices who were too conservative. Indeed, the political science literature indicates that when the President is of one party and the Senate is controlled by another, Supreme Court appointments tend to be more moderate. Given that the Dems were on the warpath because of the close 1968 election this factor was particularly relevant. The Democrats beat back two of Nixon’s earlier appointments, Haynesworth and Carswell, sending a strong signal that Nixon would have considerable difficulty in appointing a strongly conservative candidate.
The first successful Republican appointments to the Supreme Court following the 1968 election reflect these political realities. Burger and Blackmun replace Warren and Fortas, clearly a move to the right. However, Burger and Blackmun were not movement conservatives in the modern sense, and actually proved quite moderate on some issues. Burger, after all, wrote Griggs v. Duke Power, which interpreted Title VII to reach disparate impact in addition to disparate treatment. He also created the Establishment Clause test in Lemon v. Kurtzman, the bete noir of today’s religious conservatives. Burger and Blackmun were reliably conservative on criminal procedure, but Burger joined Roe and Blackmun, of course, wrote the majority opinion in Roe.
Lewis Powell, who replaced Hugo Black, was also a comparative moderate by today’s standards. He also joined Roe and generally was a supporter of the basic abortion right. The only true movement conservative was William Rehnquist, who was the original “stealth” Justice, appointed as a virtual unknown. Gerald Ford’s single Supreme Court appointment, John Paul Stevens, was a Republican moderate who proved to be a reliable vote for abortion rights.
(2) Second, it’s important to recognize that the Republican Party had not become dominated by pro-life forces until Reagan. In fact, in the 1976 election the Republican Gerald Ford was probably more of a pro-choice candidate than the Democrat Jimmy Carter, an evangelical and born again Christian. Carter was in fact pro-life in 1976, but mostly kept quiet about it. Plenty of politicians in both parties supported abortion rights in 1973, and support was particularly strong among educated elites. It’s not surprising, then that of the five Republican appointments during the Nixon and Ford Administrations, four of those (Burger, Blackmun, Powell, and Stevens) supported the basic right in Roe.
In fact, the only two dissenters in Roe were Rehnquist, a statist conservative, and Byron White, a Kennedy Democrat who was put on the Court to defend national power against state power, protect black civil rights, and defer to legislatures in social and economic legislation. That’s pretty much what he did throughout his career. Note as well that if the New Deal Democrat Hugo Black had remained on the Court for two more years, he would probably have voted the same way that Rehnquist did.
Only after Reagan’s election in 1980 did the Republican Party become a recognizably pro-life party. Reagan’s appointments reflect both his strong political values and the political realities of his time. Reagan’s appointments primarily reflected his interest in state’s rights and federalism and his opposition to affirmative action, and his three appointments (O’Connor, Scalia, and Kennedy) have been fairly reliable on those issues. In 1982, Reagan’s popularity was not as strong as we remember it today; His choice of O’Connor, the first woman Justice, was designed to reduce opposition and signal that he would not necessarily appoint the most doctrinaire conservatives available. After the 1984 landslide, Republicans controlled both the Presidency and the Senate, and it is not surprising that during this period Reagan made his two most conservative appointments– appointing Antonin Scalia as Associate Justice, and elevating Rehnquist to Chief Justice. The Republicans lost the Senate in 1986, and the Iran Contra scandal weakened Reagan politically. This is one reason why Robert Bork, who was not particularly more conservative than Antonin Scalia, failed to win confirmation, and Reagan was forced to settle for the more moderate Anthony Kennedy. Kennedy has proven to be reliably conservative on federalism and affirmative action, but it seems clear that Bork would not have voted the same way on many first amendment and gay rights issues.
George H.W. Bush’s appointments also reflect Democratic control of the Senate. Souter was a stealth Justice, and Thomas almost failed to gain confirmation. Souter is often regarded as a mistake, but in fact, it seems clear in hindsight that Bush knew exactly what he was doing by appointing one pro-choice and one-pro life justice, as I will make clear in a moment.
(3) Why Republican Presidents like Roe. The contemporary Republican coalition brings together religious and social conservatives opposed to abortion with libertarians, economic conservatives, and suburbanites who may be quite moderate on abortion rights or even strongly pro-choice. In order to keep this coalition together, the Republican Party cannot have the power to make pre-viability abortion a crime either at the state or the national level. As long as pre-viability abortions are protected by Roe, that issue is off the table. What is on the table are issues where abortion regulation seems more sensible both to moderates and conservatives: restrictions on abortions for minors without parental consent, restrictions on late term abortions, restrictions on partial birth abortions, informed consent requirements, and withdrawal of federal funding for abortions.
If Roe were ever overturned, the issue of putting women and doctors in jail for performing pre-viability abortions would once again be on the table. Religious conservatives would inevitably push for much stricter regulations than moderates could stomach. The result would split the Republican coalition in half. On the other hand, with Roe on the books, the Republicans have the best of both worlds. Religious and social conservatives can fulminate against Roe all they want and moderates and libertarians are not scared off because they believe that the core holding of Roe is safe. (Note as well that this logic applies particularly to the Supreme Court and not to the lower courts. Lower court judges can be strongly pro-life, because at most they can chip away at Roe but not overrule it.).
One of the ironies of Ronald Reagan’s great skill in forming a winning coalition for the Republican Party is that it is actually in the interests of Republican presidents never to appoint a mix of Justices who will overturn Roe v. Wade. They can cut back on Roe, and even hollow it out– some people think that is exactly what the Casey opinion does– but they cannot overrule the opinion, or else they will hand the Democrats the best wedge issue they’ve had in years. From this standpoint, Souter, Kennedy, and O’Connor are every bit as important to the preservation of the Republican Party’s electoral chances as Rehnquist, Scalia, and Thomas.
This puts the 1992 Casey opinion in a very different light. Many people were surprised that three Reagan-Bush appointees reaffirmed Roe. But it seems quite clear, in hindsight, that the Justices realized that the political reaction to overruling Roe in 1992 would be quite significant. This is reflected in the joint opinion’s argument that overruling Roe would appear politically motivated or unduly influenced by politics. Ironically, the failure to overturn Roe in 1992 could also be interpreted in the same way.
What does this mean for future Supreme Court appointments? My guess is that George W. Bush will be just as canny as his father was. He will replace Chief Justice Rehnquist with an equally pro-life Justice, because that preserves the balance of power. But I don’t think he will replace O’Connor or Stevens with a Justice who would vote to overturn Roe. It’s true that even without O’Connor’s vote there are still technically five votes to uphold Roe, but Kennedy is wobbly on the issue, as judged from the late term abortion case, Stenberg v. Carhart.
Does all of this mean that the Democrats should take a fall and invite a series of pro-life appointments? If they were truly Machiavellian, I suppose they should. But I doubt they will adopt this strategy precisely because their base already fears that Congressional Democrats don’t stand up enough for core Democratic positions. And pro-life Justices are likely to be quite conservative on many other issues that Democrats care about. So my guess is that Roe will be with us for a fairly long time. It will be cut back, weakened, and enervated in countless ways, but it probably will stick around.
One thing that could significantly change the political stakes of Roe, interestingly, is not abortion. It is the policy issues posed by new forms of genetic technology, which I will discuss in a future post.
One way of understanding Roe’s place in contemporary constitutional law is by comparing it with an equally famous case, Brown v. Board of Education. Today every judicial nominee is presumed to support Brown, although nominees may differ on issues like busing or affirmative action. If asked, no judicial nominee would hesitate to state that he or she supports the decision in Brown v. Board of Education; indeed, failure to make ritual obeisance to Brown would pose a serious obstacle to any nominee’s chances at confirmation. Trent Lott had to resign as Senate Majority Leader because his comments about Strom Thurmond merely hinted that racial segregation wasn’t all that bad. By contrast, federal judicial nominees are usually coached to avoid answering questions about Roe v. Wade and abortion rights on the grounds that such issues may come before them as judges. Yet the fact that issues of race relations law may also come up before them is apparently irrelevant to their ability to endorse Brown.
The subsequent course of American politics partly explains these differences. The result in Brown was effectively ratified by Congress ten years later in the Civil Rights Act of 1964, due to the success of the Civil Rights Movement. (We also should not forget the imperatives of national foreign policy. Competing with the Soviet Union in the eyes of the Third World, Jim Crow was an embarrassment to the United States, and many foreign policy elites were only too happy to see it abolished.) Indeed, the Civil Rights Act of 1964 went even further than Brown in several respects. It prohibited both public and private discrimination, and it made enforcement of school desegregation efforts practical for the first time by threatening to withhold federal funding from schools that remained segregated.
Compliance with the Act’s ban on private discrimination in employment and public accommodations was far smoother than anyone had a right to expect, and the threat of loss of federal funding coaxed reluctant school boards in the South to begin a process of school desegregation that, in time, made parts of the South, not the North, the most desegregated areas in the country. Moreover, because members of both parties were crucial to passage of the 1964 Civil Rights Act, both parties had a stake in the legitimacy of Brown. The Civil Rights Act of 1964, in the words of Archibald Cox, made “Brown more fully law,” and led to the eventual canonization of Brown v. Board of Education that no politician could criticize and no judicial nominee could openly oppose.
Instead, people with more conservative views on race relations adopted a different strategy to articulate their values. While supporting the basic idea of racial equality in Brown, they focused on the remedial aspects of desegregation, opposing busing and other remedial measures designed to integrate schools. They raised institutional objections to desegregation, objecting to federal interference with state’s rights and judicial interference with legislative prerogatives. They interpreted Brown and the Civil Rights movement as a commitment to colorblindness, which justified their opposition to affirmative action and other race conscious remedies, while insisting that government policies that had a predictable and foreseeably disproportionate impact on racial minorities but did not make overt racial classifications did not offend the colorblindness principle. Finally, conservative politicians, following rhetorical strategies pioneered by Richard Nixon and George Wallace, accepted the basic constitutional principle of Brown while playing on racial prejudices through so-called “wedge” issues like busing, crime and welfare.
In short, after the Civil Rights Act, the political debate would be framed within the parameters set by Brown, rather than as a debate over the legitimacy of Brown itself. In important ways the Supreme Court itself promoted this result, because its most controversial desegregation decisions following Brown spoke in terms of remedies. That made it possible for critics of busing to insist that they supported the original decision in Brown but simply disagreed about the best way to enforce it.
The story of Roe v. Wade would be very different. Critics of abortion rights have not simply contented themselves with accepting Roe's legitimacy while seeking to limit it or even undermine it indirectly, although some moderates, to be sure, have adopted precisely this strategy. Rather, many politicians to this day continue to argue that Roe v. Wade was wrongly decided and should be overturned. The debate over abortion rights has not occurred merely within the framework set by Roe but has continually put the very legitimacy of the decision into question. As a result, recent debates about judicial nominations have often focused, directly or indirectly, on the continued vitality and authority of Roe.
One of the reasons why the judicial politics of Roe and Brown turned out so differently concerns social movements and their relationship to political parties. Brown occurred at the very beginning of the Civil Rights Movement, and was ratified popularly shortly before the movement’s peak. Roe, on the other hand, is the product of a groundswell of popular support for women’s rights-- remember, the decision came only one year after Congress submitted the Equal Rights Amendment to the states-- and it helped energize conservative social movements that opposed both the ERA and Roe itself. The political coalitions that form the contemporary Republican Party are due in part to Roe and its aftermath, and from 1980 onward the Republican Party platform has opposed Roe in one form or another. At the margins at least, the decision in Roe helped make Ronald Reagan president, and it helped the contemporary Republican Party define itself.
With one major political party strongly in favor of abortion rights (the Democrats), and the other major political party strongly influenced by opponents of abortion (the Republicans), it was highly unlikely that Roe would become a framework of consensus in the way that Brown did. Moreover, unlike Brown, Roe served no obvious foreign policy goals of the United States. Finally, supporters of abortion rights were not able unequivocally to claim the moral high ground in the same way that supporters of racial equality could. To the contrary, opponents of abortion continued to insist that they, and not supporters held the moral high ground. In race relations, by contrast, conservatives eventually embraced Brown and insisted that they held the moral high ground when they advocated colorblindness as the true principle behind Brown and the Civil Rights Movement.
I’m putting together a conference to commemorate the 30th anniversary of Roe v. Wade, which will be held on January 31st, 2003, from 10:30am to 5:30pm at Yale Law School. Yale Law Women, a student organization, will be co-sponsoring. The actual 30th anniversary takes place on January 22d, but that’s right in the middle of exam period here at Yale Law School, so I moved it forward to the first week of classes.
I’ve gathered together nine prominent constitutional scholars and asked them to rewrite the opinion in Roe v. Wade (and the companion case of Doe v. Bolton, which struck down Georgia’s abortion law), using only materials available as of January 22d, 1973. The opinions will be read at a mock Supreme Court starting at 1:30pm at the conference. I’ll play the role of Chief Justice, although I won’t be wearing gold stripes like Rehnquist does.
The all-start cast includes my colleagues Akhil Amar, Jed Rubenfeld and Reva Siegel from Yale, Mark Tushnet and Robin West from Georgetown, Anita Allen-Castellitto from Penn, Jeffrey Rosen from G.W. (and The New Republic), and Michael Stokes Paulsen from Minnesota. I’ll be gathering the opinions together and publishing them as a book entitled, appropriately enough, “What Roe v. Wade Should Have Said.” Cass Sunstein of the University of Chicago will also be contributing an opinion to the collection, although he won’t be able to attend the conference. I’ll also be writing a long (around 70 page) introduction to the book, describing the political and legal history of Roe and analyzing the opinions.