Wednesday, January 29, 2003


Mickey and the Oracle

This week’s I Ching question comes from Joyce Park, who writes with pride “Having been born in the only country with I Ching symbols on the flag, I’m game!” (That’s South Korea, for those of you who were wondering.)

Her question is:

“Will the media companies seek a further extension of copyright law by 2019?”

Generally speaking one shouldn’t ask the I Ching questions that one already knows the answers to ;-). But what the heck, perhaps the Book of Changes has some additional wisdom to share with us.

I consulted the Book of Changes, and I received hexagram 13 (Fellowship with People), line 3 moving.

Here is the text:

Nine in the third place:

Hiding armed troops in the thicket,
He climbs the high hill.
Yet for three years he does not rise up.

The commentaries on the line read:

In the third line, the group’s unity has been compromised by mistrust. The participants have developed divergent interests and goals. Cooperation has given way to competition. Each person has his own secret ambitions and seeks to dominate the others. Hence the text says, “[h]iding armed troops in the thicket.” Moreover, knowing his or her own mental reservations, each person suspects the others of having similar designs, for when people are no longer trustworthy, they no longer trust anyone else. Each person begins to spy on the others, hoping to catch them in their duplicity. And all of the remarks and actions of others, however innocent, can be interpreted as signs of impending betrayal or ambush. Cycles of mutual distrust and alienation grow. As a result, the group can make no progress.

You must break the cycle of mistrust before it becomes too pronounced. Reexamine your goals and your hopes for the group. Secrecy must give way to open discussion. A new agreement on the goals and aims of the fellowship must be forged in light of changed circumstances so that trust can be reestablished and bonds of loyalty renewed. If the participants can recognize that they are indeed working on a joint enterprise, they will be able to live with disagreements about how to proceed.

The theme of this line is the mistrust generated when people try to grab everything for themselves. Then they spread distrust and antagonism in society, and destroy the common bonds that make successful cooperation possible. For someone like me, who thinks that our culture is a common product that we all share in and benefit from, the message is quite clear. Media companies are in the business of maximizing profits, so they will probably try to grab as much as they can, but this is not necessarily a good thing. Rather, we have to come to a new bargain about culture in the digital age that will allow media stakeholders to make a living but will also benefit society as a whole. The current path we are traveling– which simply encourages companies to push for greater and greater control over media products with less and less concern about the public domain-- does not accomplish this.

At the same time, people who want freer access to media products (and I count myself in this group) must behave responsibly and give media companies reasons to trust that they will not be taken unfair advantage of. They should work toward positive legal and technical solutions that help establish and enforce a new social bargain about culture. It's important to understand that the current policies of media companies seeking expansive intellectual property protections and control over consumers are not simply motivated by the desire to make money; they are also motivated by the fear and uncertainty produced by the disruptive effects of new digital technologies. Only a new bargain that respects the interests of all will prove stable and produce beneficial cooperation in the long run.

If you have a question you would like posed to the I Ching, please send it along by e-mail. I’ll pick a question every week or so and publish the results online. Please don’t ask questions you wouldn’t want generally discussed in public. And please don’t ask about stock tips; the Oracle has been warned more than once about the rules against insider trading.

Tuesday, January 28, 2003


Is the DMCA Unconstitutional After Eldred v. Reno, Part II

In an earlier post, I explained why the Supreme Court's decision in Eldred v. Reno placed the constitutionality of the Digital Millenium Copyright Act in doubt. Guy Pessach, one of the fellows at my center, the Information Society Project, has offered yet another reason why the DMCA is unconstitutional. Eldred assumes that Congress can extend the length of copyrights, as long as Congress does not try to create copyrights of indefinite or perpetual duration. In this sense, Eldred still holds that Congressional power is limited. However, the DMCA has no time limit. It makes it a crime to interfere with copyright management schemes even after the material protected passes into the public domain. If Congress has power to pass the DMCA, it is not under the Copyright Clause.

We can take Guy's argument one step further. The first amendment objection to the DMCA is that by restricting access to fair use, Congress has created a new property right that allows copyright owners to do an end run around fair use, effectively shrinking the public domain. In addition it extends that property right to prohibit the use and dissemination of technologies that would protect fair use and vindicate fair use rights. In like fashion, one can also argue that the DMCA creates new property rights that allows people the right to do an end run around the limited times requirement. Because this “alters the traditional contours of copyright protection,” it violates the First Amendment, even though Congress would be perfectly free under Eldred to extend the copyright term by a specific and determinate amount.

Saturday, January 25, 2003


Roe v. Wade as a Lightning Rod

My op-ed on Roe and the Republican party's coalition appears in today's New York Times.

The Times, like most newspapers, gives you only about 700 words to make your argument, so I thought I’d add a few additional explanations about three important points that the op-ed raises. The first is how judicial review affects political coallitions, the second is how the Supreme Court diverts political heat onto itself, and the third is the special place of religion as a divisive issue in politics. These three ideas are analytically distinct, but they all apply to Roe, and for lack of space, they all had to be explained together in the op-ed. I'd like to separate them out in this post.

1. Judicial Review and Party Coalitions. The basic idea that shifting policy agendas shifts party coalitions is nothing new. The classic explanation of how judicial review preserves or destroys party coalitions by shifting policy agendas was made by Mark Graber in his article "The Nonmajoritarian Difficulty," published in 1993, and the basic idea about how shifting policy agendas fractures political coalitions was explained by William H. Riker in his book The Art of Political Manipulation (1986). Both used the Supreme Court’s decision in Dred Scott v. Sandford as an example, and Graber showed how the same logic applied to Roe.

The basic idea is this: Through its exercise of judicial review, the Supreme Court can either keep party coalitions together or it can fracture them. Roe is an example of the former, Dred Scott is an example of the latter. Both involve striking down statutes, but the issue is not really whether the Court strikes down something or upholds it. It is whether the decision keeps the party system together or blows it apart. Roe helps keeps the contemporary party system together, Dred Scott blew the party system of its day apart.

Before Dred Scott, the Democratic Party was amazingly successful at winning the Presidency. It did so because it was a coalition of Southern Democrats who were devoted to the preservation and spread of slavery, and Northern Democrats, who cared less about the issue. Instead, they dealt with the question through a series of compromises. Democrats in the North instead pushed for the idea of popular sovereignty. Each state and, more importantly, each territory could decide for itself whether it wanted to be free or slave. Dred Scott made this position impossible, because it held that Congress could not ban slavery in the territories, and that slaveowners had the right to bring slaves into the territories. This split the Democratic Party in two, destroying its chances at winning the presidency. As a result, Abraham Lincoln won the White House. Unable to accept the Republican Party’s control, South Carolina seceded, beginning the Civil War.

From the standpoint of the Democrats, Dred Scott was a terrible blunder because the Supreme Court made it impossible to form a working majority within the Democratic Party. On the other hand, if you think that slavery would never have been resolved peacefully, it was probably better that the Court wreck the coalition and get on with the War. In the casebook that Paul Brest, Sandy Levinson, Akhil Amar, and I edit, we have this to say about the timing issue:

If one objects to Taney's opinion on the grounds that it hastened war, consider that a decision freeing Dred Scott would surely have generated intense opposition by the already secession-prone Southerners, who might not have waited until 1860-61 to attempt secession. Consider also that the North might not have won a war begun in 1857, especially because of its lack of military preparedness and the fact that its Commander-in-Chief would have been the feckless James Buchannan rather than Abraham Lincoln. Is this a good reason to support the result in Dred Scott--that it bought the North valuable time? Or is your view that justice, i.e., the repudiation of slavery, should be done (and, indeed, is required by the Constitution) though the heavens (or, at least, the Union) fall?

Another recent example of how Supreme Court decisions affect coalition formation is affirmative action. The Democratic party includes African Americans, Latinos and white liberals who strongly support affirmative action, and moderates who are iffy on affirmative action. In this case, its possible that by applying strict scrutiny to affirmative action programs, the conservative Justices in the Supreme Court are actually keeping some people in the Democratic Party, because they limit how far the left wing of the party can push for affirmative action. The logic is very similar to that in Roe, with the parties reversed. If Croson and Adarand were overruled, it might not work to the advantage of the Democrats.

But the issue on the table right now is not overturning those decisions; It is extending them by overruling Bakke. That shifts the political agenda in a different direction than overruling Croson and Adarand, because it means less affirmative action, not more. If Bakke were overturned, and Croson and Adarand applied to university admissions, you might get more movement toward the Democrats than movement away from them.

2. Judicial Review and the Supreme Court as Lightning Rod. A different idea in the piece is that the Supreme Court can act as a lightning rod, taking heat from the political process and onto itself. The best recent example of this would be Judge Richard Posner’s argument about the 2000 Election. Even if the decision in Bush v. Gore didn’t make much sense as a matter of legal argument, Posner argues, it had the beneficial effect of resolving the disputed election and preventing riots in the streets. If Posner is right on his facts, I think this is an excellent example of how the Supreme Court can act as a lightning rod. I’ve argued in a recent article that Posner is wrong on the facts; there were no riots in the streets, and there were unlikely to be riots in the streets. The Democrats did not suggest that they would take no prisoners if they lost. (Ironically the party that was most likely to threaten civil disorder if they lost was the Republican Party, and since they are the law and order party we know they would never do a thing like that. :-) ). Therefore, it was unnecessary for the Supreme Court to act as a lightning rod to resolve the election, and it should not have done so. Still, it is true that two years after the 2000 election the bitterness about the election is largely sublimated in the general public, so perhaps Posner is right, although I’ve also argued that the memory of the election may still come back to haunt the Bush Presidency, like Poe’s tell tale heart. Only time will tell.

3. Religion as a Coalition Busting Issue. The final point the piece makes is that certain types of issues tend to be coalition busting and diffusing them by shifting the grounds of political agendas helps working majorities form; by contrast, other issues are less threatening to coalition building and controversies are less problematic for democratic politics. Slavery was one such divisive, coalition busting issue. I tend to think that religion is another, at least in contemporary America. This is not an argument against the recognition of religious argument in the public sphere, which I support. Rather it is an argument for certain types of decisions about religious liberty that help religious and secular people inhabit the same political space and belong to the same political party. One interesting feature of American politics is that although religion has played a central role in the development of American values, the political parties have usually been quite polyglot. The Democrats, for example, contained both Southern Baptists and urban Catholics. One reason why I support some types of changes in the current doctrines of religious liberty and not others is because of how they affect the everyday practice of politics. I hope to say more about that later.

Friday, January 24, 2003


Roe and Human Cloning

In an earlier post, I explained that I did not think that Roe v. Wade would be likely to be overturned, although it was quite possible that future Republican judicial appointments would chip away at it severely.

The long run future of Roe as a precedent, however, does not simply concern abortion but also new reproductive technologies like cloning. Congress is currently considering legislation that would ban human cloning. Roe is important to this debate, because it is relevant to the constitutionality of any legislation affecting cloning.

Roe builds on Eisenstadt v. Baird, which tells us that “[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child..” It also builds on Skinner v. Oklahoma, which held that the state could not sterilize convicts for certain crimes because the right to procreate is fundamental.

Proponents of cloning could use Skinner, Eisenstadt and Roe to defend the right to clone. They would use Roe in two different ways.

Prospective parents wish to create new children through cloning. This is the decision whether or not to bear a child. It does not matter whether the method of producing a child is traditional, so the argument goes, because in vitro fertilization does not use traditional methods, and it should equally be protected by Skinner, Roe and Eisenstadt. Especially for couples who cannot have children any other way, the right to clone is constitutionally protected. And even for those who could produce children the old fashioned way but choose not to, Roe still protects that choice.

But Roe is important in another way too. The decision to clone is also the decision to end the life of embryos, because it is likely under current technologies that some number of embryos will be discarded in the process of cloning. (And some fetuses may be discarded in the process too, if the results go awry later in the process.). But, the advocates of cloning might say, that is ok because of Roe v. Wade.

To be sure, the proponents of cloning might argue, the right to clone is not absolute. The state may impose requirements, even stringent requirements, to ensure that the children produced are healthy, and to avoid damage to the gestational mother who carries the cloned baby. But the basic choice whether to use cloning or not, these proponents would say, is beyond the state’s power. The state may not prohibit cloning because it thinks it immoral; it may only legislate to protect health and safety of the DNA donors, the cloned baby, and the gestational mother.

That’s how Roe might be used in a very simple argument for cloning. (I think the argument could be improved with a bit more effort, but that's a first cut). Could Roe v. Wade also be used in an argument against cloning? You bet.

First, opponents of cloning might point out that Roe is premised on the notion of forced motherhood. Women who get pregnant are subject to the social stigma of putting a child up for adoption, and so they will keep the baby and this will completely change their lives. But the prohibition on cloning has nothing to do with forced motherhood. Prohibiting the creation of human clones forces no woman to become a mother against her will.

Second, Roe is really a case (and should have been originally viewed as a case) about women’s equality. Abortion rights are necessary for women to be equal citizens in American society. But human cloning doesn’t substantially contribute to women’s equal citizenship. The inability to clone babies does not subordinate women. Indeed, one could argue in precisely the opposite direction: Cloning will lead to selection of boys over girls, or the selection of traits that will reinforce stereotypes that undermine women’s equality.

Third, Roe is premised on the idea that in order to guarantee women’s liberty and equality, a painful choice must be made to end the life of the fetus. But in the case of cloning, the discarded embryos (or fetuses) are not discarded in order to keep women from forced motherhood. The balance between liberty rights and the life of the embryos or fetuses is completely different in the case of cloning, and therefore should tip the balance against the procedure.

Now these three arguments don’t make Roe *necessary* to the case against cloning. They show that the case against cloning is entirely consistent with the principles behind Roe. But they do so by interpreting Roe as a case about forced motherhood and women’s equality.

This is ironic for two reasons. First, the forced motherhood/equal citizenship argument is the interpretation that feminists and liberal constitutional scholars have been pressing on the courts for years. Second, it is also the interpretation that has been most powerfullly resisted by pro-life forces, who tend to see Roe as a misguided application of a right to privacy that they don’t accept in the first place, and who tend to regard feminist and liberal arguments about abortion as destructive of family values.

But every argument, if invoked often enough in enough different contexts, eventually becomes useful to a different group of people. This is what I call the principle of “ideological drift.” It turns out that the best arguments for not extending Roe to the case of human cloning are based on liberal and feminist justifications for Roe. That doesn’t mean that pro-life forces need to become liberals or feminists. But it does mean that changing contexts may reveal some wisdom in arguments they have rejected for years.

The converse, I think, is also true. As new reproductive technologies like cloning develop, people on the left who are concerned about equality and social hierarchy will increasingly see the value in pro-life arguments about the misuse and abuse of human life. As Mr. Huxley says, it's a brave new world, folks, and that world will surely upend the political certainties of the past all across the political spectrum.

Thursday, January 23, 2003


War in a time of uncertainty

In a recent e-mail Gary Haubold, responding to my post on the coming war with Iraq, takes issue with my reasons for caution:

Here’s what I said:

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).

Here’s Gary’s concern:

Thinking back over every war the United States has fought over the past 200+ years, I can't identify one war that would have been supportable under your framework. Did you really mean to write that the U.S. shouldn't fight any war, because the consequences are so extreme and unknowable?

Gary reads me as saying we should never go to war in conditions of uncertainty. Of course, that’s not my position. One always goes to war in conditions of uncertainty. But before going to war, you must ask: How many casualties are likely to your people and to the other side, and what collateral consequences will occur? How will this affect your strategic situation, five, ten, twenty years from now? While the war with one enemy is going on, what will your other enemies do in response while you are preoccupied? If you do manage to win, how long will you have to occupy your former enemy’s country? How much will the occupation cost? What new wars and conflicts will your occupation provoke? If you don’t ask these sorts of questions, you are just being foolish. This is exactly what the great military strategist Sun Tzu said two thousand years ago. He who reduces uncertainty before going into battle wins, he who embraces uncertaintly loses. That is what I meant by my previous post. The problem is that right now we are not reducing uncertainty. We are embracing it.

There is some evidence that the war with Iraq will not be as painless or quick as the President hopes, but put that aside. Even if the war is painless and quick, as I hope it will be, there is good reason to think that the occupation following the war will be particularly difficult and complicated. Jim Fallows has offered a good summary of the problems, and I recommend it to Gary and to anyone else who is interested. I don’t think one can make a decision about going to war without taking these issues into account. I fear that the Bush Administration is not being sufficiently realistic about these issues. I think there is a lot of wishful thinking going on about about American invulnerability, and about America's ability to remake Iraq any way it wants.

At one point Fallows interviews Merrill McPeak, a retired Air Force General who is dubious about a preemptive strike:

There is an even larger realm of imagination [necessary to understanding the costs of war], McPeak suggested to me. It involves the chain of events a war can set off. Wars change history in ways no one can foresee. The Egyptians who planned to attack Israel in 1967 could not imagine how profoundly what became the Six Day War would change the map and politics of the Middle East. After its lightning victory Israel seized neighboring territory, especially on the West Bank of the Jordan River, that is still at the heart of disputes with the Palestinians. Fifty years before, no one who had accurately foreseen what World War I would bring could have rationally decided to let combat begin. The war meant the collapse of three empires, the Ottoman, the Austro-Hungarian, and the Russian; the cresting of another, the British; the eventual rise of Hitler in Germany and Mussolini in Italy; and the drawing of strange new borders from the eastern Mediterranean to the Persian Gulf, which now define the battlegrounds of the Middle East. Probably not even the United States would have found the war an attractive bargain, even though the U.S. rise to dominance began with the wounds Britain suffered in those years.

What General McPeak is talking about here is exactly what I had in mind when I spoke about the uncertainties of war, and the unintended consequences that war can bring. To my mind, those uncertainties should not be taken as lightly as Gary seems to do. Good generals and good political leaders never take them lightly.

And there is another issue that goes beyond mere strategy. It is the question of how much new evil we will unleash on the world through our use of force. We often talk as if once we know that our cause is a just one, the deaths, the sickness, the famine, the refugees, the dislocations caused by war don’t really count or aren’t our concern. I think that is wrong. Whenever we exercise our power we affect others, and we are morally responsible for what we do. The more evil we cause in the world through our military action, the greater must be the showing that it is counterbalanced by the good we will accomplish. If we do not take this into account when we go to war, we are not living up to our own ideals. The deaths of Iraqis are the deaths of fellow human beings. The refugees we will create are fellow human beings. The children who will die of malnutrition and disease both during and after the war are fellow human beings. That is why Sun Tzu said that the best general is one that never has to fight. He recognized that when you go to war, you destroy-- often in unpredictable ways that can quickly spin out of control. And such destruction is to be avoided unless there is no other way. War is a necessary evil. When it is necessary it must be pursued vigorously, without apology; but when a necessary evil is not necessary it is just plain evil.

Most Americans I listen to today who talk about the war with Iraq do not seem to worry much about the evils that others will suffer. They worry only about American casualties. I think this is short-sighted. The evil we do today, even for the best of reasons, will live on, spreading its effects throughout the globe, and coming back to haunt us in unexpected ways. War is the most serious business of the state, posing the ultimate question of life or death. It should not be treated carelessly or cavalierly. I fear that is precisely what we are about to do.

Wednesday, January 22, 2003


More Puzzles about Colorblindness

The bright Yale Law students who run The Kitchen Cabinet offer a possible solution to the problem posed by my previous post in which I asked whether George H.W. Bush's nomination of Clarence Thomas to replace Thurgood Marshall violated the colorblindness principle currently at issue in the debate over affirmative action. They make the following argument:

[P]residents are "allowed" to consider a whole host of things in making judicial nominations that we wouldn't consider relevant or appropriate in an undergraduate-admissions context -- whether the president trusts and respects the candidate, whether they have personal rapport, whether the candidate stands a decent chance of being confirmed or of serving for many years, etc.

I'd consider a different set of personal characteristics in drawing up a list of invitees to a dinner party than I would in deciding whom I'd let join my Richard Posner fan club. Do I need a "principle" to do that, other than "they're two different things?"

. . . . The president's nomination of Supreme Court Justices is, at bottom, his personal choice. Ideally, we'd like his choice to reflect some national or party consensus about the kind of person we want on the Court, but if the president wants to ignore what everyone else thinks and draw a name out of a hat, he can. He's under no obligation to explain how he chose. There's no question of what's "allowed" and what's not; that's just the way the process works. (Of course, the Senate confirmation process provides a check on presidential idiosyncrasy.)

But because the University of Michigan is a public school, its admissions officers are acting as agents of the citizens of Michigan to allocate the limited seats in the class. No one believes that the criteria for that allocation should be left up to the personal whims of individual admissions officers; therefore, it's appropriate to ask what they are "allowed" to consider.

This leads to a number of interesting questions.

(1) Is the difference between the President and the University of Michigan admissions committee that the members of the admissions committee are acting as agents of the state while the President of the United States is not? That is, is the problem a failure of state action?

(2) Is the difference that when the President picks a Justice of the Supreme Court, it is essentially like choosing whom to invite to a dinner party, a purely "private" choice with no recognizable public consequences, while the choice of the entering class at the University of Michigan is a public choice with clear public consequences?

(3) Is the difference that in order to carry out his duties the President needs people around him he can trust and feel comfortable with, whereas the Michigan admissions committee doesn't have to trust or feel comfortable with the class they admit?

Suppose that the local sheriff in a small town in my home state of Missouri says: "When I pick deputies, I have to pick people I feel comfortable with, because they are the ones who will be watching my back if we get into trouble. I need people I can trust. The public safety is at stake. And I just have to tell you, I just don't feel comfortable with women or black people." Does this violate the colorblindness principle? Would it violate Title VII of the Civil Rights Act of 1964? Now suppose the Commander-in-Chief and says, "You know, I just don't trust black advisors. They are shiftless and lazy." Does this violate the colorblindness principle?

(4) Finally, suppose the President, when asked why he chose a particular person as a Justice, responds, "Well, he's white and I think that only white people should be Supreme Court Justices." Does this decision by the head of the Executive Branch of the federal government violate the colorblindness principle? Does it fall outside the ambit of the colorblindness principle as long as the President keeps quiet about his reasons? (This would be a sort of "don't ask / don't tell" solution to the problem.). If so, is this answer consistent with Washington v. Davis, which holds that facially neutral government practices violate the Equal Protection Clause if they are secretly motivated by a racial animus?

So what's the point of all these questions? Is it just to make advocates of colorblindness look silly? No, that's not the purpose. Rather, my goal is to make the following points about antidiscrimination law.

First, "colorblindness" is a provisional principle of equality, it is not equality itself. Second, although the principle seems clear and determinate, on closer inspection, it turns out that it is enormously complex and indeterminate. The concept of colorblindness cannot be implemented without a series of decisions about what constitutes actionable discrimination "on the basis of" race. Third, what sorts of private or state action are seen as properly falling within the ambit of the colorblindness principle shifts over time in response to social contestation. Some practices that previously were never considered as violations of colorblindness later become seen as paradigmatic violations, and vice versa

This fact leads to all sorts of ironies. For example, the same day the President denounced the Michigan plan, an action which was widely applauded by advocates of colorblindness, he advocated Texas's Ten Percent plan (which as I've explained in a previous post, is not colorblind). The next day he announced that he would push for increased funding for historically black colleges, which is also not really a colorblind decision. One assumes that he did this without any sense of contradiction.

But back to Clarence Thomas, and the point of my original post: The category of Presidential appointments that take race as one factor in the overall political calculation is a good example of the sort of race conscious state action that is generally not recognized as falling within the ambit of the colorblindness principle-- that is, unless the President is stupid enough to make an issue of it. George H.W. Bush did that when he said at the press conference announcing Thomas as his pick that race had nothing to do with his selection, and that Thomas was simply the most qualified candidate. Thomas is an intelligent man, and has proven to be a very interesting Justice, but it was simply not true that in 1991 he was the most qualified individual for the job, and everybody knew it. When a politician says what George H.W. Bush said, he's just begging for people to call him on what he did. If a President said publicly that he would not hire a black person as a close advisor, that would also cause people to shift their notion of how the colorblindness principle should be implemented. What was before simply swept under the rug or ignored would then become an issue of social contestation.

Advocates of colorblindness often assume that they and not their opponents have moral clarity on their side. Nothing could be further from the truth. The more you know about the history and implementation of the colorblindness principle in American antidiscrimination law, the more you come to realize that the concept of colorblindness is not as clearcut as it seems.


Is Clarence Thomas Constitutional?

Suppose it could be shown that one factor in George H.W. Bush's nomination of Justice Clarence Thomas in 1991 was that Thomas was black. (I realize that this is difficult to believe, but bear with me). Suppose that Bush said to himself, "When Thurgood Marshall retires, I need to fill his seat with another African-American and Thomas is the most conservative African-American I can find with the requisite experience in law and necessary degree of legal talent." In 1991 there were more qualified and experienced legal scholars, particularly among conservatives. But Thomas met at least the minimum requirements of legal skill and experience, and he was African American, and therefore more likely (at least judged ex ante) to win confirmation.

Some questions for the class:

(1) Was the nomination of Clarence Thomas consistent with the principle of colorblindness?

(2) If the answer to question (1) is no, did George H.W. Bush violate his oath of office to uphold the Constitution when he nominated Thomas?

(3) If the answer to question (2) is no, then what principle allows presidents to take race as one factor among many in nominating Supreme Court Justices but does not allow the University of Michigan to take race as one factor among many in selecting a student body?

(4) Suppose that the reason why Presidents or other executive officials may take race into account in nominating judges and Justices, or in selecting cabinet members or National Security Advisors is that these are political appointments and that one is permitted to use race to secure political support. Is this practice consistent with the Supreme Court's statement that using race in government decisionmaking should be subjected to strict scrutiny because it is divisive and reinforces racial identities, and fosters the racial division of American society?

(5) Is the use of race as one factor in Presidential appointments in order to please potential voters more or less praiseworthy than the use of race to produce a diverse student body from which students might learn from each other?


Fortune Smiles

The Raving Atheist has just declared me "Godidiot of the Week" for a recent post that uses the I Ching to discuss the war on Iraq.

I'm so proud.....

For an encore, I invite my readers (both of you) to suggest other questions for me to pose to the Oracle of Change. If I receive enough questions, I will cast the hexagrams and provide commentary on a regular basis. All questions must be serious and of the sort you would be willing to have openly discussed in public. Please do not ask questions of the form: "Hey Jack, why are you such a stupid git?" as I think you already know the answer.


Colorblindness and Common Law Rights

John Rosenberg’s very interesting set of responses to my previous posts on colorblindness lead me to offer an additional point about colorblindness and baselines.

In a previous post, I pointed out that one’s sense of what constitutes “equal rights” and what constitutes “special rights” for a group depends on the baseline of expectations. I pointed out that Justice Bradley struck down the Civil Rights Act of 1875 because he thought that antidiscrimination laws made black people “the special favorite of the laws.” I also pointed out that if one takes the common law as the baseline of fairness, antidiscrimination laws do in fact shift power from whites to blacks, and that is why many whites opposed them. The common law rules of property and contract, after all, make no distinction based on race; these rules apply to blacks and whites alike, and in this sense they are colorblind. In order to see the Civil Rights Act of 1964 as fair one has to believe that the common law rules of contract and property, although formally neutral as between blacks and whites, are simply unfair when operating against the background of racial stratification in the United States.

John disagrees and says that I am “simply wrong” about this. He replies:

Neither the majority who passed the Civil Rights Act nor those who today defend its attempt to legislate neutral colorblindness "reject the fairness of the common law rules of property and contract."

With all due respect to John, I just don’t think this can be right. Suppose we got rid of the Civil Rights Act of 1964 and returned to the common law rules. Those rules include the right to refuse to contract with others for any reason, including their race. In at-will employment contracts the common law also gives employers the right to fire an employee at will because of their race. Similarly, under the common law rules one was permitted to rent or sell to refuse to rent or sell real property because of race.

Common law rules regarding inns and some places of public accommodation were somewhat different: traditionally, the innkeeper could not refuse service. Apparently in many southern states that common law rule was different-- it did not apply to restaurants and hotels; instead the restaurant or hotel owner had the right to eject people he did not want to serve using the common law rules of trespass. In any case, even where a place of public accommodation could not refuse service to a willing customer, there was no requirement at common law that the facilities had to be integrated. At common law, one could have separate drinking fountains for whites and blacks, and require blacks to sit at the back of the bus, as long as they were allowed on the bus in the first place.

Now the people who fought for the Civil Rights Act of 1964 wanted to change this state of affairs, in which private employers could refuse to hire people because of their race and could fire at will employees because of their race. They also wanted to desegregate privately owned bus lines and dismantle segregation in other places of public accommodation. In short, they wanted to prevent white businessmen from exercising their common law rights.

Now I take it that John believes that these practices were odious. But they were protected by common law rules of contract and property. People who engaged in this practices were simply doing what the common law allowed them to do. So in what sense can he be claiming that these rules are fair?

Whether John recognizes it or not, the Civil Rights Act of 1964 modified the common law baseline of expectations about fair treatment and replaced it with a new one. Under this new regime you could refuse to serve a person because they were not wearing a shirt or shoes, but you could not refuse to serve them because they were black. You could fire at-will employees or refuse to promote employees because they were too short, or too loud, but not because of their race. From now on, racial motivations were now treated differently from all other motivations. Not surprisingly, this change in baselines worked to the advantage of blacks. Antidiscrimination laws are in derogation of common law notions of freedom, and that is why many conservatives opposed them when they were first proposed, arguing that they gave minorities special rights. The same debate is playing out now with respect to gay rights. I hope that the objection that gay rights are special rights is eventually rejected too, and for much the same reasons.

Congressional power to prohibit discrimination. John makes one other rather technical point that I think is worth commenting on. He argues that, contrary to my view, Congress shouldn't be able to pass civil rights legislation prohibiting purely private discrimination through its powers to enforce the 14th Amendment. The reason is that this would require overturning the 1883 Civil Rights Cases, and would also abolish the state action requirement. (The Fourteenth Amendment says that "no state" shall deny equal protection of the laws.)

I've written on this issue at length, and won't repeat all my arguments here. But I do want to point out three things. First, the state action requirement is analytically separate from the scope of Congress's power to prohibit discrimination. Courts might only be able to reach unconstitutional state action, but Congress might have much broader powers under the Fourteenth Amendment to proscribe and prevent violations of civil rights. Second the state action requirement by its own terms does not apply to Congress's powers to enforce the Citizenship Clause. Third, the 1871 and 1875 Civil Rights Acts, which were drafted and enacted by many of the same people who drafted and passed the Fourteenth Amendment, did reach private discrimination. That is the strongest possible evidence that the Civil Rights Cases of 1883 are inconsistent with original understanding of Congress's powers under the Fourteenth Amendment. (I'm not an originalist, but for those who think that original understanding matters, this is a powerful argument). Moreover, as historians of Reconstruction have pointed out, the result in the Civil Rights Cases appears to reflect not the original understanding but the changed racial politics of the Compromise of 1876, in which Northern whites ended Reconstruction and basically acquiesced to Southern white domination of their black populations. The history shows that the motivations behind limiting Congress's power to pass civil rights laws in the Civil Rights Cases were racist, even though the purported justification was states rights (sound familiar?). The Supreme Court has ratified and extended the result of the Civil Rights Cases in United States v. Morrison. But I don't think that case was correctly decided either, and I think it's a disgrace that it relied on the Civil Rights Cases to limit Congressional power to pass new civil rights legislation.

Tuesday, January 21, 2003


The Secret History of Colorblindness, Part II

This is the second of two posts on the history of the concept of colorblindness. In the first installment, I explained why colorblindness is inconsistent with the original understandings behind the Fourteenth Amendment. Although this is not a problem for me, it is a problem for originalists who support colorblindness. In today’s post, I discuss how the idea of a colorblind Constitution arose, and explain how it was actually premised on the continuing social inequality of the races.

As I noted previously, most of the Framers of the Fourteenth Amendment believed in a distinction between civil, political and social equality. Civil equality included the the right to make contracts, own property, sue and be sued, give evidence in courts, enjoy freedom of speech and religious liberty. Political equality included the right to vote, hold office, and serve on juries. Social equality meant equal status in society, and concerned social comingling and intermarriage. The Fourteenth Amendment was understood to guarantee blacks civil, but not political or social equality. It was not a guarantee of colorblindness. When people said that the Fourteenth Amendment made all races equal before the law, it meant only that they were civilly equally, not politically or socially. They were equal in their “civil rights,” that is, their right to make contracts and hold property, sue and be sued in court, but not in any other respect.

Furthermore by “civil rights” people in the nineteenth century did not mean that *private* parties could not discriminate on the basis of race, (that is a twentieth century conception of “civil rights”) but rather that the *state* could not limit the power of blacks to contract or hold property. When we read nineteenth century political and legal arguments we have to keep this special meaning of “civil rights” and “equal before the law” in mind.

II. Justice Harlan and the Origins of the “Colorblind Constitution.”

In fact, the rhetoric of colorblindness does not emerge in Supreme Court doctrines until Justice Harlan’s famous dissent in Plessy v. Ferguson. Plessy upheld a Louisiana law that required segregated railway carriages. The court conceded that the Fourteenth Amendment made blacks and whites equal before the law-- for that is what civil equality meant. The right to sit next to whites, however, was a matter of social equality, and was not guaranteed by the Fourteenth Amendment. Similarly, a decade before Plessy, in Pace v. Alabama, the Supreme Court upheld a ban on interracial marriage, arguing that blacks and whites were equally forbidden to marry each other. The point was that marriage, like social intermingling, was an issue of social, not political or civil equality. In this respect neither Pace v. Alabama nor Plessy v. Ferguson are inconsistent with the original understanding of the Fourteenth Amendment.

Justice Harlan’s dissent in Plessy has been championed by contemporary defenders of colorblindness, often without fully realizing what Harlan was saying. Justice Harlan’s objection to the majority in Plessy was not that the Fourteenth Amendment guaranteed social equality. He had, after all, joined in the opinion in Pace v. Alabama. Rather, he argued that the Louisiana law violated aspects of civil equality. Social equality was irrelevant. When blacks sat next to whites, this did not make them social equals, and they were unlikely ever to be so. All that colorblindness meant to Harlan was civil equality, which to him was the same thing as “equality before the law.” So civil equality and colorblindness were completely consistent with racism in social organization. Indeed, before Harlan makes his famous statement about colorblindness, he has this to say:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.

Only after Harlan establishes his belief in white social supremacy and black social inferiority does he make his famous claim that the Constitution is colorblind. And in light of the distinction between civil, political, and social equality, this famous passage has a very different meaning to it than most people think it does:

But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

(emphasis added)

Remember that for Harlan being equal “in the eyes of the law” means only civil equality, not social equality. Blacks will be social inferiors for all time, and that’s perfectly fine, and is even to be expected, as long as they have equal rights to make contracts, sue and be sued, and so on. (Remember also that the equal right to make contracts does *not* mean that private persons may not discriminate on the basis of race in making contracts. It means only that the state may not put restrictions on blacks’ rights to contract that it does not also put on contracting by whites).

But what about the mingling of races in railway carriages? Isn’t that an attempt to enforce social equality? Harlan has a ready answer, which, once again, puts the notion of colorblindness in a very different light:

social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot-box in order to exercise the high privilege of voting.

That is, just because a black person gets to vote, or serve on a jury, or sit next to a white person in a railway carriage doesn’t make them social equals of whites. Colorblindness, Harlan insists, is perfectly consistent with blacks being social inferiors forever.

And to clinch the argument, Harlan notes that the Chinese, who in his view rank even lower than blacks, can sit in railway carriages with whites:

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race.

What do we learn from all this? When the idea of colorblindness was first introduced into American constitutional discourse by Justice Harlan, it did not represent a full grant of equality to blacks. Rather, it was a grant of basic economic rights to blacks while preserving a sphere of private choice or discrimination in which blacks would remain socially inferior to whites. Colorblindness did not permit the state to deny blacks the right to earn a living or own property on terms different from whites, but neither did it permit interference in the private sphere of private association. Whatever social stratification resulted from purely private choices was not the law’s business. Regardless of what happened in the private sphere, black and white were still "equal before the law."

This vision of colorblindess was central to conservative opposition to the Civil Right Act of 1964. Both Strom Thurmond and Ronald Reagan opposed the Civil Rights Act of 1964 on the grounds that it interfered with private association, private property, and private contract. Both Thurmond and Reagan could claim that they believed in colorblindness in Harlan’s terms, for in many aspects of Jim Crow the state was not denying blacks the right to contract or hold property. Rather, private citizens were refusing blacks the right to sit at lunch counters or ride on privately owned busses.

The idea of colorblindness was reformulated in light of the victory of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Conservatives who previously opposed it now accepted it, and their ideological descendents reinterpreted colorblindness as now applying to (some) private action as well as public. Many conservatives assume that the Civil Rights Movement was just a call for colorblindness, but this is incorrect. Colorblindness is only one theme in the rhetoric of the Civil Rights Movement, and indeed, it may not have been the dominant one. Martin Luther King's famous “I Have a Dream” speech is remembered today for its line about colorblindness, but that was because it was most palatable to White America. What King actually said in that speech was this:

There are those who are asking the devotees of civil rights, "When will you be satisfied?" we can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. We cannot be satisfied as long as the Negro's basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.

In fact, the Civil Rights Movement had a much thicker, more substantive view of equality than the formal notion of equality generally associated with contemporary colorblindness rhetoric, which usually finds nothing constitutionally troubling about wide disparities in effects on blacks and whites unless there is overt racial classification or proof of deliberate intent to harm. In this way, colorblindness can actually be employed to preserve the racial status quo, and that is not what King was about. The Civil Rights Movement was about practical freedom, the right to adequate jobs and housing, among other things, not simply about formal equality between the races. We must remember that the full title of the March on Washington was the March on Washington for Jobs and Freedom. (Note which one comes first in the title).

It is no accident that the rhetoric of colorblindness was selected from the many strands of argument that the Civil Rights Movement made and was championed by whites who were deeply concerned about how far the movement might go. When conservatives insist on colorblindness today, they are picking out that portion of the rhetoric of the Civil Rights Movement that is most hospitable to their ideology, but their views are not identical to those of the Civil Rights Movement.

The notion of colorblindness championed by conservatives today insists that governments (and some private employers and landlords) may not make decisions on the basis of race. But that requirement plays out against the background of continuing socioeconomic disparities between blacks and whites. Nevertheless, according to the modern notion of colorblindness, the continued socioeconomc disparity between blacks and whites is completely consistent with blacks and whites being equal before the law, because such disparities are the result of a private sphere of individual choice and social interaction. By contrast, attempting to remedy the socioeconomic disadvantage of minorities through race conscious remedies is impermissible “social engineering,” which disturbs the natural outcome of impersonal market forces that reflect private choices.

Thus, if we examine how the rhetoric of colorblindness has actually been invoked by whites from Justice Harlan forward, we will see that it always has carried with it the acceptance of social inequalities between blacks and whites that are explained and justified as the result of a private sphere of social interaction. The boundaries of public and private shift over time, but the notion that blacks and whites are not socially equal and cannot be made so by law remains a constant theme. Put another way, those forms of social stratification that a colorblind system of law does not reach are by definition not law’s fault, for by definition a colorblind law treats everyone as an individual, and therefore as equal before the law. That statement that could have been made by Justice Harlan in 1896, or by advocates of colorblindness today.


More on Roe and Politics

Tony Mauro has an article on Roe v. Wade that discusses the January 31st conference I am running at Yale Law School, and has comments from several law professors (including yours truly) on Roe after 30 years. In keeping with my earlier post on the subject, I pointed out that you cannot understand the survival of Roe without recognizing how it interacts with the party system. Roe stabilizes the political system and existing party coalltions. Get rid of it, and you throw all the cards up into the air, or to vary the metaphor, the house comes crashing down. As Clint Eastwood might say, "Do ya feel lucky today, punk?"

Sunday, January 19, 2003


The Secret History of Colorblindness, Part I

This is the first of two posts on the history of the concept of colorblindness in American Constitutional law. In the first installment, I discuss the original understandings behind the Fourteenth Amendment, and explain why the concept of colorblindness actually conflicts with the original understanding. In the second installment, I will discuss how the idea of a colorblind Constitution arose, and explain how it was premised on the continuing social inequality of the races.

Many people in the affirmative action debate assume that the Fourteenth Amendment and its guarantee of equal protection of the laws were originally intended to enforce a colorblind Constitution. This is incorrect.

The original understanding of the Fourteenth Amendment specifically rejected colorblindness, and the same Congress that adopted the Fourteenth Amendment also adopted a number of race conscious remedial measures.

This fact is an embarrassment both to the theory of colorblindness and to the theory of original understanding. It is a particular embarrassment to those Justices on the Supreme Court-- like Justices Scalia and Thomas-- who insist that affirmative action is unconstitutional and who simultaneously argue that the Constitution must be interpreted according to the original understanding of the Framers.

My own view is that appeals to original understanding are only one of many permissible modalities of constitutional interpretation, including text, history, precedent, structure, ethos, and consequences. Arguments from original understanding have no greater legitimacy than other forms of constitutional argument, and in certain areas of constitutional law– like civil rights, civil liberties and the scope of national power-- originalist arguments are often particularly unconvincing and even perverse.

Nevertheless, there are many people who claim that arguments from original meaning have greater legitimacy than other forms of argument, or (like Judge Robert Bork) even go so far as to say that they must be the touchstone of all legitimate constitutional interpretation. Ironically, many people in this camp also believe that the Constitution requires colorblindness. The purpose of the following post is to suggest that one cannot hold both views simultaneously.

Indeed, my experience has been that people tend to invoke originalist arguments only when it produces constitutional results they like and they tend not to mention originalist arguments when they prove embarrassing. If I have the time, I hope to do a series on originalism in constitutional argument, but for the moment I want to focus only on the issue of colorblindness and original understanding.

I. The original understanding behind the Fourteenth Amendment.

The view of most of the framers of the Fourteenth Amendment was that it guaranteed only civil equality, but not political or social equality. Civil equality referred to the right to make contracts, own property, sue and be sued, give evidence in courts, enjoy freedom of speech and religious liberty. Political equality meant the right to vote, hold office, and serve on juries. Social equality was the most amorphous term of all. Generally it meant that one was of the same social rank in society. This was demonstrated, for example, through social comingling or marriage between families. The classic question of social equality was whether blacks and whites had the right to intermarry.

The division of citizenship rights into civil, political and social is the tripartite theory of citizenship, and it was the view that dominated the debates over the Fourteenth Amendment. Although the most radical elements of the Republican Party wanted full equality for blacks, most of the Framers of the Fourteenth Amendment were not willing to go that far. In particular, they were unwilling to give blacks the right to vote and they most certainly did not want to prohibit bans on miscegenation. The best evidence that the Fourteenth Amendment was not intended to be colorblind is the fact that it was necessary to pass a Fifteenth Amendment in 1870 specifically granting blacks the right to vote. (Indeed, section 2 of the Fourteenth Amendment assumed that some states might deny blacks the vote, and required that they would lose a proportionate share of House representation as a consequence.).

In fact, the Framers of the Fourteenth Amendment chose to speak of "privileges and immunities" and "equal protection" rather than colorblindness because they were worried that a colorblindness rule would give blacks the vote: As Andrew Kull writes in his book The Colorblind Constitution:"[T]he evidence shows that an open-ended promise of equality was added to the Constitution because to its moderate proponents it meant less, not more, than the rule of nondiscrimination that was the rejected radical alternative."

Thus the original understanding of the Fourteenth Amendment offered blacks considerably less than a colorblind notion of equality. But the original understanding also rejected colorblindness in a different way. The same Congress that passed the Fourteenth Amendment also passed a number of bills that gave relief money and educational benefits to “colored persons.” That is, the Reconstruction Congress that passed the Fourteenth Amendment enaged in a considerable amount of what we would today label race conscious affirmative action. One might defend the legislation on the grounds that these benefits were purely remedial and directed only at those who had suffered from slavery. But in fact these bills made no distinction between free blacks and former slaves.

The Framers of the Fourteenth Amendment offered welfare relief and special educational benefits to indigent blacks whether or not they were the victims of discrimination, or, at the very least, without requiring any showing of previous discrimination. Moreover, they did not abide by any of the restrictions that the modern Supreme Court has set down in affirmative action cases: In almost every case the body (Congress) that created the race-conscious program was not the governmental unit that previously discriminated against the recipients of the program. Nor did Congress make detailed findings of its previous discriminatory acts against blacks, as the current Court requires. All of this suggests that the current Court's rejection of programs that remedy general societal discrimination is unsupported by the original understanding of the Fourteenth Amendment.

One possible way of distinguishing the acts of Congress from the meaning of the Fourteenth Amendment is that the Fourteenth Amendment’s guarantee of equal protection did not apply to the National Government. However, if you buy that line of argument, it follows that the Adarand case, which restricts federal affirmative action plans, is inconsistent with the original understanding. And that should be quite embarrassing for Justices Scalia and Thomas, who supported the result in Adarand and who have repeatedly insisted in other areas of constitutional interpretation that they are bound by the original understandings of the Framers. The fact that neither Scalia or Thomas has ever confronted the history of the Framers of the Fourteenth Amendment in any of their opinions on race and racial equality is, to say the least, interesting, and tends to undermine confidence in the principled nature of their attachment to the concept of originalism.

Saturday, January 18, 2003


Should We Go To War?

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.

Friday, January 17, 2003


Great minds....

Copyright theorist Siva Vaidhyanathan has posted a fine article on Salon criticizing Eldred v. Ashcroft that also notes the tension between Ginsburg's arguments in Eldred and the DMCA.


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.

Thursday, January 16, 2003


All the News That's Fit to Blog

The New York Times has a nice story on Glenn Reynolds, of Instapundit. Congrats, Glenn! Maybe someday the New York Times will have the same number of readers that you do.


Obscured Vision about Colorblindness?

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.

He writes:

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).

Wednesday, January 15, 2003


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.

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