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2009 Section 4: Criminal Law Institute of Bill of Rights Law at the William & Mary Law School
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Copyright c 2009 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview V. CRIMINAL
In This Section:
New Case: 08-876 Black v. United States
Synopsis and Questions Presented p. 178
"Conrad Black's Anti-Fraud Case Will Go to Supreme Court" p. 184 David G. Savage
"Convictions of Black, 3 Other Execs Upheld" p. 185 Mary Wisniewski
"Judges Appear Cool to Black Appeal" p. 186 Susan Chandler
"Media Tycoon Begins Term in Federal Prison" p. 187 Stephen Hudak
"Unbowed Black Gets 6 1/2 Years" p. 189 David Savage
"Dark Day for Lord Black" p. 192 Ameet Sachdev, David Greising and Susan Chandler
"Lord Black Is Indicted by U.S." p. 195 Geraldine Fabrikant
"DOJ May Rein in Use of 'Honest Services' Statute" p. 198 Lynne Marek
New Case: 08-1196 Weyhrauch v. United States
Synopsis and Questions Presented p. 201
"Supreme Court Takes Weyhrauch Mail-Fraud Question" p. 207 Erika Bolstad
"Court OKs Weyhrauch Evidence" p. 208 Lisa Demer and Richard Mauer
"Corruption Trials Divided; Kott's Hearing Continues, but Weyhrauch's Stalls on Federal Appeal" p. 210 Richard Mauer and Lisa Demer
176 "Indictment: Weyhrauch Sought Work with VECO" p. 212 Pat Forgery
New Case: 08-1224 United States v. Comstock
Synopsis and Questions Presented p. 213
"Supreme Court to Review Sex Offender Law" p. 221 Warren Richey
"Release of Sex Offenders Delayed" p. 223 Lyle Denniston
"4th Circuit Strikes Down Indefinite Lock-up of Those Tagged 'Sexually Dangerous"' p. 225 Pamela A. McLean
"8th Circuit Says Adam Walsh Act Constitutional" p. 227 Angela Riley
"4th Circuit Got It Right in Comstock" p. 229 Corey Rayburn Yung
"U.S. Plans to Detain Worst Sex Offenders" p. 232 USA Today
"New Law Designed to Provide More Protection for Children" p. 234 Sonya Kimbrell
New Case: 07-11191 Briscoe v. Virginia
Synopsis and Questions Presented p. 236
"Analysis: Is Melendez-Diaz Already Endangered?" p. 251 Lyle Denniston
"U.S. Supreme Court to Hear Virginia Confrontation Case" p. 253 Alan Cooper
"Requiring Accused to Demand Presence of Analyst Doesn't Deny Confrontation Right" p. 254 US Law Week
"AG Candidate Wants Special Session After Supreme Court Ruling" p. 256 Associated Press
177 Black v. United States
08-876
Ruling Below: United States v. Black, 530 F.3d 596 (7th Cir. 2008).
Because the defendants deprived their employer of honest services by paying themselves phony management fees disguised as compensation for covenants not to compete, the alleged inducement in the form of money from a third party (anticipation that Canadian government would not treat compensation as taxable income) is no defense to the charge of honest services fraud under 18 U.S.C. § 1346. The defendants forfeited objection to jury instruction, which required only finding that they deliberately failed to render honest services and did so to obtain private gain, by opposing the government's request at trial that jury be required to make separate findings on money or property fraud and honest services fraud.
Questions Presented: (1) Does 18 U.S.C. § 1346 apply to the conduct of a private individual whose alleged "scheme to defraud" did not contemplate economic or other property harm to a private party to whom honest services were owed? (2) May court of appeals avoid review of prejudicial instructional error by retroactively imposing onerous preservation requirement not found in federal rules?
UNITED STATES, Plaintiff-Appellee, V. Conrad M. BLACK, John A. Boultbee, and Mark S. Kipnis, Defendants-Appellants.
United States Court of Appeals for the Seventh Circuit
Decided June 25, 2008
[Excerpt: some footnotes and citations omitted]
POSNER, Circuit Judge a covenant not to compete, but the payment was never approved by Hollinger's audit [A jury convicted Black and three co- board, nor was it ever disclosed to the defendants of mail and wire fraud in shareholders. In fact, the payments were violation of 18 U.S.C. § 1341 and Black of made directly to the defendants, who were obstruction of justice in violation of 18 not entitled to any payment. U.S.C. § 1512(c). The defendants were senior executives at Hollinger International, The Court then declines to discuss a second, which was essentially controlled by Black equally compelling fraud count, stating that through Ravelson, a Canadian company it is not necessary to the outcome of the controlled by Black. case.]
The defendants set up a $5.5 million The evidence established a conventional payment from another company disguised as fraud, that is, a theft of money or other
178 property from Hollinger by So if the jury found such a misappropriation. misrepresentations and misleading this would mean that the defendants, having omissions amounting to fraud, in violation both deprived their employer of its right to of 18 U.S.C. § 1341. But the jury was also their honest services and obtained noney instructed that it could convict the from it as a result, were guilty of both types defendants upon proof that they had of fraud. Nothing is more common than for schemed to deprive Hollinger and its the same conduct to violate more than one shareholders "of their intangible right to the criminal statute. But the section 1346 honest services of the corporate officers, instruction, which we quoted, did not require directors or controlling share-holders of that the jury find that the defendants had Hollinger," provided the objective of the taken any money or property from scheme was "private gain." That instruction Hollinger; all it had to find to support a is the focus of the appeals. conviction for honest services fraud was that the defendants had deliberately failed to Section 1346 of the federal criminal code, render honest services to Hollinger and had added in 1988 in order to overrule McNally done so to obtain a private gain. The v. United States, 483 U.S. 350 (1987), defendants do not deny that they sought a defines "scheme or artifice to defraud" in private gain. But they presented evidence section 1341 to include a scheme or artifice that it was intended to be a gain purely at the to "deprive another of the intangible right of expense of the Canadian government. They honest services." The defendants do not argue that for the statute to be violated, the deny that Hollinger was entitled to their private gain must be at the expense of the honest services. They were senior executives persons (or other entities) to whom the of Hollinger and owed the corporation defendants owed their honest services-a fiduciary obligations, implying duties of group not argued to include the Canadian loyalty and candor. It is not as if Black had government. merely been using his power as controlling shareholder to elect a rubber-stamp board of They are making a no harm-no foul directors or to approve a merger favorable to argument, and such arguments usually fare him at the expense of the minority badly in criminal cases. Suppose your shareholders. He was acting in his capacity employer owes you $100 but balks at as the CEO of Hollinger when he ordered paying, so you help yourself to the money Kipnis to draft the covenants not to compete from the cash register. That is theft, even and when he duped the audit committee and though if the employer really owes you the submitted a false 10-K. On his own theory, money you have not harmed him. You are the fees that he collected, which the jury was punishable because you are not entitled to entitled to find were never owed to him, take the law into your own hands. were management fees rather than Harmlessness is rarely a defense to a dividends. The defendants' unauthorized criminal charge; if you embezzle money appropriation of $5.5 million belonging to a from your employer and replace it (with subsidiary of Hollinger was a misuse of interest!) before the embezzlement is their positions in Hollinger for private gain, detected, you still are guilty of which is just the kind of conduct that we embezzlement. said in United States v. Bloom, 149 F.3d at 655-57 (7th Cir. 1998), was the essence of The application of this principle to honest honest services fraud. services mail and wire fraud is straight-
179 forward. As explained in United States v. purchase supplies from the principal of the Orshurn, section 1346 was added "to deal person who bribed him. The buyer has with people who took cash from third parties deprived his employer (the department (via bribes or kickbacks). United States v. store) of his honest services, and has done so Holzer, 816 F.2d 304 (7th Cir. 1987), for private gain, but he has conferred no supplies a good example. Judge Holzer benefit on a third party. Judges who accept accepted bribes from litigants. What he took bribes invariably argue that they didn't from his employer, the state's judicial allow the bribes to influence their decisions. system, was the honest adjudication service But a judge who accepts bribes deprives the that the public thought it was purchasing in judiciary of his honest services even if, as exchange for his salary." Similarly, if the contended by Francis Bacon, the most defendants in this case deprived their famous of corrupt judges, he does nothing employer, Hollinger, of the honest services for the person who bribed him. Such a case they owed it, the fact that the inducement does not differ materially from that of the was the anticipation of money from a third "honest" recipient of a bribe-the recipient party (the anticipated tax benefit) is no who, committed to honor among thieves, defense. performs his side of the illegal bargain.
This case is different from those we have Notice, too, how honest services fraud cited because Canada was not bribing the bleeds into money or property fraud. In the defendants with the offer of a tax benefit. procurement case, the eagerness of the But the distinction is unrelated to anything seller's agent to make a sale might enable in the text or purpose of section 1346. The the purchasing agent to negotiate a better grant of a tax benefit is a purposive act, price, to the financial benefit of his which confers a benefit on the grantor just as employer; instead he takes the "better price" a voluntary transfer of money or property to in the form of a bribe. In this case, had the him does; in fact it is a voluntary transfer of defendants disclosed to Hollinger's audit money. The defendants do not argue that committee and board of directors that the they were trying to defraud Canada; they recharacterization of management fees argue that their recharacterization of would net the defendants a higher after-tax management fees as compensation for income, the committee or the board might granting covenants not to compete was have decided that this increase in the value proper under Canadian tax law, even if the of the fees to them warranted a reduction in receipt of the payments violated American the size of the fees. If $10 in tax-free income law. Canada, they contend in effect, was is worth $15 to the recipient in taxed willing to "pay" the defendants in the form income, the employer who learns about the of a tax benefit in order to advance Canadian tax break may require the employee to policy. accept in tax-free income less than $15 in taxed income. And if the defendants were trying to defraud Canada, that augmentation of their This is not to say that every corporate wrongdoing would not help their case. employee must advise his employer of his Suppose a third party gives a bribe to a tax status. But the defendants had a duty of buyer for a department store, and the buyer candor in the conflict-of-interest situation in pockets the bribe but does not carry out his which they found themselves. Instead of side of the bargain, which was that he would coming clean they caused their corporation
180 to make false filings with the SEC, and they subject to it; it is an issue on which the did so for their private gain. Such conduct is courts of appeals are divided. But giving an bound to get a corporation into trouble with instruction that omits a qualification the third party and the SEC. required to make it unambiguously correct is different from submitting a case to a jury on Even if our analysis of honest services fraud an erroneous theory of criminal liability. is wrong, the defendants cannot prevail. The prosecution did not ask the jury to There is no doubt that the defendants convict the defendants because their private received money from APC and very little gain was at Canada's expense. The doubt that they deprived Hollinger of their government's honest services theory was honest services; whether they also got (or straightforward. It was that the defendants hoped to get) a tax break from the Canadian had abused their positions with Hollinger to government was not an issue at trial, as the line their pockets with phony management defendants acknowledged, albeit back- fees disguised as compensation for handedly, when they said in their reply brief covenants not to compete. Had the jury in this court that the theory "that defendants believed that the payments for the covenants ,misused' their positions at [Hollinger] for not to compete were actually management personal gain in the form of Canadian tax fees owed the defendants, as the defendants benefits" was "the very theory the argued, it would have acquitted them. government propounded up to the eve of trial" (emphasis added). It was not the If the jury had been given a special verdict government's theory at trial. that separated the two types of fraud, and had indicated on the verdict that the The defendants point out that Yates v. defendants were not guilty of an honest United States, 354 U.S. 298 (1957), held services fraud, the challenge to the that if the instructions permit the jury to instruction would be moot. The defendants convict of a nonexistent crime, the fact that were not required to request a special they also permit it to convict of a genuine verdict. But there is a wrinkle in this case crime will not save a conviction declared in that shows they forfeited their objection to a general verdict. That is different from a the instruction: the government requested a case in which two correct theories of verdict that would require the jury to make illegality are presented in the instructions separate findings on money or property and there is sufficient evidence to convict fraud and on honest services fraud. The only on one; the jury is assumed to have defendants objected-they wanted a general followed the instruction on the verdict. In effect, they wanted to reserve the government's burden of proof and therefore right to make the kind of challenge they are to have rejected the insufficiently supported mounting in this court. theory. But a jury that is given an illegal instruction cannot be assumed not to have They are reduced to arguing that the judge followed it, since juries are neither after receiving the verdict should have told authorized nor competent to make the jury to determine whether it had found judgments of law. both a money or property fraud and an honest services fraud. That procedure was An error in jury instructions is subject to the tentatively approved by the Third Circuit in harmless error doctrine. Submitting an United States v. Riccobene, 709 F.2d 214, illegal theory to the jury may or may not be 228 n. 19 (3d Cir. 1983), although that court
181 has since made clear that it is better to give defendant's simple lack of mental effort, or the jurors the interrogatories on the same lack of curiosity, which would not support form as the verdict. Questioning the jurors an ostrich instruction." United States v. after they have handed down their verdict is Carrillo, 435 F.3d 767, 780 (7th Cir. 2006). not a good procedure and certainly not one It is the distinction between willful that a district judge is required to employ;, ignorance and ordinary ignorance. nor has the Third Circuit so suggested. The defendants' proposal could if adopted create The defendants argue that either they knew a nightmare in which the jury renders a they were taking money that they were not general verdict; the jurors are polled and entitled to, or they were entitled to it; there think they're about to be released from their is no middle ground. But there is. term of indentured servitude-here four Remember that the defendants received the months-and be free to get on with their payments in question not from Hollinger but lives; and then they are told they must take from APC, which the evidence showed did an exam so that the judges and lawyers can not owe them any management fees. If you know exactly how they evaluated the receive a check in the mail for $1 million various theories presented to them in the that you have no reason to think you're instructions. Must they resume entitled to, you cannot just deposit it and deliberations? And if they disagree, what when prosecuted for theft say you didn't then-an Allen charge? know you weren't entitled to the money- that it might have been a random gift from an eccentric billionaire. You would have strongly suspected that you weren't entitled Three more issues need to be discussed. The to the money and you would therefore have first is whether an "ostrich" instruction a duty to investigate. By shutting your eyes should have been given.... you tacitly confessed your all-but-certain knowledge that you were stealing the An ostrich instruction tells the jury that to money. suspect that you are committing a crime and then take steps to avoid confirming the The defendants argue that the judge gave an suspicion is the equivalent of intending to inadequate limiting instruction with respect commit the crime. Suppose you think to the jury's use of the false filings with the you've rented your house to a drug gang, but SEC. The instruction, although correct, was to avoid confirming your supposition you abrupt: "You have heard evidence in this make sure not to drive near the house, where case regarding the disclosures of non- you might observe signs of drug activity. competition payments in Hollinger That would be the equivalent of knowledge International's quarterly and annual reports that you had rented the house to the gang. It and proxy statements in 2001 and 2002. The would be a case of physical avoidance of defendants in this case are not charged with confirmation of one's suspicions but there is securities fraud." It was important for the also psychological avoidance, which is the jury to understand that it could use the false type alleged here and which requires the filings to infer that the defendants had been jury's "distinguishing between a defendant's trying to conceal their receipt of the mental effort of cutting off curiosity, which payments but that the filings themselves would support an ostrich instruction, and a were not charged as crimes.
182 The defendants proposed a misleading If one party submits an instruction that is instruction as an alternative. It substituted accurate but could be made clearer, and the for the second sentence ("The defendants in other party submits a misleading instruction, this case are not charged with securities the judge can go with the first instruction. fraud") the following: -The defendants are Not that the cases require "that a submitted not charged with making false or misleading charge be technically perfect to alert the statements in these filings, and you may not court to the need for a particular charge." conclude that a defendant is guilty of mail or Bueno v. City of Donna, 714 F.2d 484, 490 wire fraud based on any alleged false (5th Cir. 1983). But given the number and statements or omissions in any of these skill of the defendants' lawyers, the filings." The defendants were "charged," in misleading character of their proposed the sense of accused, of making false instruction cannot be regarded as a merely statements in these filings. And the jury was "technical" failing, as opposed to an effort to entitled to base a judgment of guilt "on any mislead. Nor was the judge's instruction alleged false statements or omissions in any erroneous; it was merely terse. of these filings," provided that the false statement or omission was material to the alleged mail or wire fraud. At argument, the lawyer who had proposed the instruction told us at first that he had made other, oral submissions as well. But when reminded The defendants raise some other points in that he had said in his brief that he had their 161 pages of briefs, but none that has "proposed a series of limiting instructions, sufficient merit to require discussion. The culminating with this request for the final judgments are charge"-the proposed instruction that we quoted-he backed off. AFFIRMED.
183 "Conrad Black's Anti-Fraud Case Will Go to Supreme Court"
Los Angeles Times May 18, 2009 David G. Savage
Reporting from Washington-The Supreme Congress expanded the anti-fraud law in Court announced Monday that it would hear 1988 to combat public corruption. Usually, a an appeal from jailed newspaper executive fraud involves a scheme to deprive someone Conrad Black, who contends he was of their money or property, but the expanded wrongly convicted under a broadly worded law said it was a fraud to "deprive another anti-fraud law that makes it a crime to of the intangible right of honest services." deprive someone of "honest services." The law is aimed at officials who engage in kickback schemes to benefit themselves or Black, a Canadian-born historian and media their friends. In recent years, this law has magnate, was prosecuted in Chicago for been a favorite tool of prosecutors because it allegedly skimming more than $5.5 million permits prosecutions for questionable from Hollinger International and the schemes that do not necessarily result in a Chicago Sun-Times to finance a lavish loss to the government or a business. lifestyle. Black said the money was a "management fee," but prosecutors said it Last year, Robert Sorich, an aide to Chicago had not been approved by Hollinger's board. Mayor Richard Daley, and two other former city officials who were convicted in a A jury convicted him in 2007 on three patronage hiring scheme raised the same counts of mail fraud and one count of issue in an appeal to the high court. Their obstruction of justice, and he was sentenced appeals were turned away earlier this year, to 6 1/2 years in prison in central Florida. but Justice Antonin Scalia dissented and said the court should act to clarify the law. In his appeal on Black's behalf, Washington lawyer Miguel Estrada pointed out that his Estrada cited Scalia's dissent in his appeal. client had been acquitted of charges that he Last month, U.S. Solicitor General Elena treated his company as his "personal piggy Kagan urged the court to reject the appeal. bank," but was convicted of fraud on the Black and his codefendants "had abused grounds that he deprived the company and their positions with Hollinger to line their its shareholders of his "honest services." pockets with phony management fees," she said. But on Monday, the court issued a one- Estrada said this "vaguely worded criminal line order saying it had agreed to hear the prohibition" allows prosecutors to charge case of Conrad Black vs. the United States corporate executives and public officials during the fall. with crimes, even without proving they wrongly took money for themselves. If the court were to rule for Black and broadly reject the notion of "honest "This was not fraud in the old-fashioned services" fraud, it could allow persons who sense of the ten. If the court agrees, he have already been convicted under this law would be at least entitled to a new trial," to file a writ of habeas corpus to reopen their Estrada said. cases.
184 "Convictions of Black, 3 Other Execs Upheld"
Chicago Sun-Times June 26, 2008 Mary Wisniewski
Former media baron Conrad Black engaged A. Boultbee of Canada and Mark S. Kipnis in a "conventional fraud," a federal appeals of Northbrook. court said Wednesday in upholding the convictions of Black and three other former "The court found clear evidence that all four Hollinger International executives. defendants engaged in a brazen, multi- million-dollar corporate fraud scheme," U.S. All had been found guilty last summer of Attorney Patrick Fitzgerald said. cheating the newspaper company, whose holdings include the Chicago Sun-Times, Black's attorney, Andrew Frey, called the out of $6.1 million. decision "very disappointing" and said, "We are carefully studying our options." A three-judge panel of the 7th U.S. Circuit Court of Appeals unanimously rejected Cyrus Freidheim Jr., Sun-Times Media defense claims that the prosecution unfairly Group Click for Enhanced Coverage criminalized sophisticated business Linking Searches's chief executive officer, transactions that gave the defendants money said, "We're pleased that it happened as they'd earned. quickly as it did and as decisively."
Besides Black, now serving his 6 1/2-year The company plans to proceed with $500 prison term in Florida, the judges upheld the million in civil claims against the convicted convictions of Peter Y. Atkinson and John defendants and others.
185 "Judges Appear Cool to Black Appeal"
Chicago Tribune June 6, 2008 Susan Chandler
Conrad Black s hopes of getting his criminal Frey told the judges that Black believed his convictions overturned were dimmed files had already been copied and turned Thursday as his attorney received a highly over to federal authorities by his attorneys. skeptical reception from a panel of three "Did the Justice Department go through the judges at the 7th U.S. Circuit Court of documents?" Posner asked Frey. The answer Appeals. was no.
Andrew Frey, the attorney handling Black's Black was found guilty in July of defrauding appeal, made little headway as he tried to Hollinger International and obstructing argue that Black and other former Hollinger justice after a four-month trial. The jury International Inc. executives didn't steal acquitted him on nine other counts. Black, a from the Chicago-based media company conservative press baron who bought the when they carved out individual non- Chicago Sun-Times in 1994, was sentenced competition payments for themselves from to 6 1/2 years in prison. He began serving the proceeds of newspaper sales around the his sentence in early March and was not country. allowed to attend the appeal's oral arguments. In the case of a $5.5 million payment, Frey said the money was owed to the Canadian In a Thursday morning e-mail to the executives anyway as "management fees" Tribune, Black expressed optimism about and therefore Hollinger International the outcome. "If it has been essentially shareholders were not hurt. decided on the written arguments, I can't imagine us not doing well, as we waxed the U.S. Appeals Judge Richard Posner, one of floor with them in the briefs and replies. But the court's most forceful jurists, didn't I have been astonished at the miscarriages of appear to be buying it. There was no point in justice that have occurred already, so it debating arcane legal points, he said, when should be approached with caution." "the bulk of the evidence [in the Hollinger case] has to do with pretty naked fraud." As the hearing ended Frey asked the judges to allow Black to go free on bond until their Posner also was resistant to Frey's final decision is reached, which could be contention that Black never intended to months away. obstruct justice when he removed boxes from his Toronto office 10 days before he Outside the courtroom Frey didn't want to was to be evicted. A Canadian court order offer an opinion of how the hearing went. prohibited the removal of documents "It's in the lap of the gods," he said. "We'll without the permission of a special monitor. see what happens."
186 "Media Tycoon Begins Term in Federal Prison"
Orlando Sentinel March 4, 2008 Stephen Hudak
COLEMAN-Disgraced media mogul -But he firmly believes he has done nothing Conrad Black surrendered Monday to unlawful, which makes it difficult to have to authorities at the federal prison complex suffer even one day of imprisonment." here to begin serving a 6 1/2-year sentence on charges he illegally siphoned money A Canadian-born business tycoon, Black from his international newspaper empire. once headed a sprawling newspaper empire that included The Daily Telegraph of Black, 63, a member of Britain's House of London, the Jerusalem Post and the Chicago Lords and an acclaimed biographer of Sun-Times. Franklin Roosevelt and Richard Nixon, officially became inmate number 18330-424 He often dined with heads of state, business at 12:49 p.m., said Felicia Ponce, a U.S. executives and rock stars. Bureau of Prisons spokeswoman in Washington, D.C. But at the Coleman correctional complex, he will be among 7,447 inmates required to His incarceration has attracted international dish grub, scrub toilets or perform other attention, particularly from news agencies in menial tasks for 12 to 40 cents an hour. He Canada and Great Britain where he is known could eventually win a job in the prison's as Lord Black. law and leisure libraries, where he could tutor other inmates, Ponce said. Convicted of fraud and obstructing justice, the high-profile Black was placed in the She said Black will be treated no differently low-security prison in Coleman, located 50 than other inmates at the complex's low- miles northwest of Orlando and a three-hour security unit, which houses 1,995 prisoners. drive from his home in Palm Beach. He will wear the standard-issue uniform: a khaki, button-down shirt with collar and Ponce said federal inmates are generally khaki pants. housed in facilities within 500 miles of home, a courtesy to the prisoner's family. Ponce said Black's day will begin at 6 a.m. and end no later than 11:30 p.m., when The media baron, who has maintained his cellblock lights are turned out. He will have innocence, remains convinced he will be a cellmate in one of the prison's 7-by-8-foot, vindicated, said his appellate lawyer, double-bunk cubicles. Andrew L. Frey of New York. Federal prisoners at Coleman can exercise "He is a strong person, and I am confident on a jogging track and in a recreation yard, that he will soldier through this," Frey said but there are "no spas, no tennis courts, no in an e-mail to the Orlando Sentinel. golf courses," Ponce said. A federal jury in Illinois convicted Black of defrauding shareholders of Hollinger
187 International Inc., once among the world's was found guilty of pirating $6.1 million largest newspaper-holding companies. The from the Chicago-based newspaper group largest papers-with the exception of the now known as the Sun-Times Media Group Sun-Times-have since been sold. Inc. Black, who led Hollinger for eight years as both chairman and chief executive officer.
188 "Unbowed Black Gets 6 1/2 Years"
Chicago Tribune December 11, 2007 Ameet Sachdev
Two dramatic questions loomed over the While he refrained from asserting his Chicago federal courtroom Monday when innocence, he concluded, to no one's former press tycoon Conrad Black arrived surprise, without apologizing for his actions for sentencing. that led to the conviction or admitting criminal wrongdoing. How much time would Black, the jet-setting executive and author, face in federal prison It was up to the judge to have the last word, for his role in the looting of the Chicago making a personal observation that both Sun-Times' parent company? And, given his Black's supporters and detractors have record as an outspoken and at times strident asked themselves as well. defender of his innocence, what would he say to the judge? -I frankly cannot understand how somebody of your stature, on top of the media empire The day provided surprises on both counts. you were on top of, can engage in the conduct you did and put everything at risk, U.S. District Judge Amy St. Eve sentenced including your reputation and integrity," St. Black to 6 1/2 years in prison, rejecting a Eve said. government bid for a stiffer sentence of about 20 years, which would have had the Indeed, the former chairman and chief practical effect of sending the 63-year-old to executive of Hollinger, once one of the prison for the remainder of his life. Black largest newspaper companies in the world, is also was fined $125,000 and has to forfeit going to prison for stealing $6.1 million $6.1 million in ill-gotten gains, but not his from shareholders and obstructing justice by home in Palm Beach, Fla., and other assets removing 13 boxes of documents from his prosecutors had requested. Toronto office after he was warned not to do so. When it came time to make his comments, Black was uncharacteristically brief and at The amount of the theft is a fraction of times even contrite-in his own way. Black Black's wealth at his peak about a decade expressed "profound regret" for the huge ago when he was a globe-trotting media financial losses that shareholders of baron leading a life of luxury among the Chicago-based Hollinger International Inc. upper echelons of society, spending time in suffered after he left the company in 2004. the company of such people as Henry Kissinger and Elton John and taking on the He also apologized for the medical problems British title Lord Black of Crossharbour. that have beset him, his family and his co- defendants since the corporate saga began But now all that's left of that empire, which four years ago. once included holdings in the U.S., Canada,
189 Great Britain and Israel, is the Sun-Times government, calling the evidence "flimsy" and a group of suburban papers. The stock and even referring to the team of federal of the company, now known as the Sun- prosecutors as "Nazis." He has maintained Times Media Group Inc., trades at about $1, his innocence since his conviction in July, down from a high of $20.35 in 2004. saying he was acquitted of nine of the 13 weighed down by a circulation scandal charges against him. He recently told one under Black's watch and nearly $200 British interviewer that he has done million in legal fees it spent defending Black "absolutely nothing wrong." and other former Hollinger executives. "Mr. Black. even today, has refused to One shareholder, in addressing the court acknowledge the point behind his being here Monday as a victim, urged the judge to today was his own greed and his own make an example out of Black, for looking disdain for rule of law," Assistant U.S. Atty. out for himself instead of investors and Eric Sussman, the lead prosecutor, told the employees. judge at the sentencing hearing.
"This didn't have to happen," said Eugene In his comments to the court, Black was Fox, managing director of Cardinal Capital quick to point out that he "never once Management LLC in Greenwich, Conn. uttered one disrespectful word about this "[Black] had many opportunities along the court, your honor, the jurors or the process." way to make different choices." He plans to appeal.
Black's stunning downfall began about four When asked whether he was satisfied with years ago when other shareholders started the length of the sentence, U.S. Atty. Patrick asking questions about payments Black and J. Fitzgerald told The Associated Press: "Mr. other executives had received following Black is going to prison a convicted felon, sales of Hollinger newspapers. At the time, convicted of fraud. So we proved the case. Black dismissed the complaints as "an The bottom line is Mr. Black will do 6 1/2 epidemic of shareholder idiocy." years in jail. That's a serious amount of time." Ultimately, the grumbling led to an independent board inquiry and criminal St. Eve apparently was unfazed by Black's allegations that Black and his cohorts had lack of remorse. She made several favorable looted the company of about $32 million rulings on his behalf before deciding on a through a scheme in which they disguised 78-month term. She took a conservative bonuses to themselves as payments not to estimate of the damage from Black's fraud, compete with the new owners of its deciding he was responsible for $6.1 million newspapers. Some of these "non-compete" in losses and not $32 million as the payments were not disclosed to shareholders prosecutors had suggested. or even Hollinger's audit committee. St. Eve also based her decision on more Black, a native of Canada who gave up his lenient sentencing guidelines in effect when citizenship when he became a British lord, the fraud occurred, instead of the rules in was forced to resign from the company he place now. Finally, the judge said there built and controlled. Since his indictment in should not be a big discrepancy between 2005, Black has heaped scorn on the Black's sentence and the 29 months his
190 deputy, F. David Radler, is expected to A jury also had found Black's co- receive when he is sentenced on Dec. 17. defendants, Peter Atkinson, John Boultbee She described Black and Radler equally and Mark Kipnis, guilty of three counts of culpable. Radler pleaded guilty to one count fraud. Atkinson, 60. a former executive vice of fraud before the trial and testified against president, was sentenced to two years in Black in court. prison. Boultbee, 64, the former chief financial officer, received 27 months. The judge gave Black three months to get Kipnis, 60, the corporate counsel based in his affairs in order before he must report to Chicago, will not serve time. The judge prison on March 3. She suggested he serve sentenced him to five years of probation in his time at the prison camp at Eglin Air part because Kipnis did not receive any non- Force Base in Florida. compete payments.
191 "Dark Day for Lord Black"
Chicago Tribune July 14, 2007 Ameet Sachdev, David Greising and Susan Chandler
Unmoved by testimony about a jet-setting entertained global movers and shakers at lifestyle at company expense but certain that parties, some funded with Chicago-based Hollinger International Inc. had been Hollinger's money. pilfered, a federal jury on Friday found press baron Conrad Black guilty of the lesser but The verdict also culminates a saga that first still serious charges of obstruction of justice unfolded four years ago, at the height of the and three counts of mail fraud. scandals over lax corporate governance in the wake of wrongdoing at Enron Corp., With Black's former business partner F. Tyco Inc. and other companies. David Radler serving as a star witness against him, prosecutors had accused Black, Black's hold over Hollinger began to 62, of masterminding a racketeering unravel when a little-known shareholder, the conspiracy that allegedly plundered more investment firm Tweedy, Browne Co., than $60 million from Hollinger, owner of complained publicly about millions of the Chicago Sun-Times, the London Daily dollars that Black and other top Hollinger Telegraph and other newspapers. executives personally received as part of the company's sale of dozens of newspapers in The jury in its verdict found that Black the U.S. and Canada. illegally had taken a relatively modest $2.9 million. On the strength of a videotape that Black was ousted as Hollinger's chief showed Black personally removing 13 boxes executive in 2003, along with Radler, then from his Toronto office in the middle of the president of the company now known as government's fraud investigation, the jury Sun-Times Media Group Inc. Black was also ruled that Black had impeded the fired as chairman in January 2004. Soon investigation. after, a task force headed by former Securities and Exchange Commission Black's conviction marks the stunning Chairman Richard Breeden issued a scathing downfall of one of Canada's most prominent report, calling the conduct of Black and businessmen, who used the power of the Radler at Hollinger a "corporate press to become an international celebrity kleptocracy." known as much for his right-wing views as his high-wattage living. Black, who gave up his Canadian citizenship in order to become a British lord, showed no Born to wealth in Canada, Black parlayed a visible reaction to the verdict Friday and tidy investment in a group of community will appear in court Thursday to learn from newspapers into a media empire with U.S. District Judge Amy St. Eve if he may holdings in the U.S., Great Britain, Israel leave the country. and Canada. Black recruited such luminaries as Henry Kissinger and former Illinois Gov. He faces a maximum of 35 years in prison, a James R. Thompson to his board, and he maximum penalty of $1 million and possible
192 forfeiture of property. Prosecutors estimate those payments were not disclosed to Black's sentence may range from 15 to 20 shareholders or even to Iollinger's audit years. committee.
The jury in Chicago also found Black's But defense lawyers argued that such non- three co-defendants guilty of three counts compete payments are legitimate and each of mail fraud. They are attorney Mark customary in newspaper deals, a claim the Kipnis, 59, of Northbrook; former Hollinger jury appeared to find credible in some Chief Financial Officer John Boultbee, 64, instances. of Victoria, British Columbia; and former Executive Vice President Peter Atkinson, Juror Tina Kadisak, a beautician, in an 60, of Oakville, Ontario. Each faces up to 15 interview at her Woodridge home, said the years in prison and fines of up to $750,000. jury carefully followed the evidence and was All three were released on bond. unswayed by testimony about Black's opulent lifestyle. All defendants are expected to appeal the verdicts. Prosecutors estimate sentencing "The things we felt we could convict on ranges of 7 to 10 years for Boultbee, were things we could link up and see Atkinson and Kipnis. The mixed verdict set obvious proof of," Kadisak said. "On some off a debate among prosecution and defense counts [prosecutors] just couldn't do that." lawyers about the meaning of the jury's verdict. The guilty verdicts for all four defendants stemmed from charges they received $5.5 "If you're going to take liberties and break million in bogus non-compete agreements the law with other peoples' money, there are with a Hollinger subsidiary-essentially going to be consequences," U.S. Attorney agreeing not to compete with themselves. Patrick Fitzgerald said. The third guilty count arose from $600,000 in payments fraudulently attached to the sale Yet after a four-month trial and 12 days of of community newspapers. deliberation, the jury found insufficient evidence to convict Black of the most After the verdict, government lawyers sweeping charges of the indictment, sought to have Black immediately placed in including racketeering. custody as a flight risk.
The government had sought convictions on But Black's defense lawyers vowed their 42 separate charges in the 16-count Canadian client would remain in the U.S. to indictment, claiming Black, Radler and the avoid being jailed prior to his sentencing others engaged in a scheme to pocket hearing Nov. 30. They also argued that St. millions of dollars from the sale of dozens of Eve should allow a reduction in the bond Hollinger newspapers. Black has pledged: the $20 million of equity he has in his home in Palm Beach and In the deals, Black and Radler personally proceeds from the $8.5 million sale of a reaped millions in payments from the buyers New York apartment. of the newspapers. In exchange, the Hollinger executives promised not to Well-known Chicago defense lawyer compete against the new owners. Some of Edward Genson ticked off the names of the
193 transactions on which the jury found no Still, the evidence connected to that count wrongdoing: CanWest, Horizon and suggests no more than $3 million was at Community Newspaper Holdings. stake.
Genson also noted that the jurors found Black, dressed in a tan suit and powder blue nothing wrong with Hollinger's allegedly shirt, sat stoically in the courtroom after the below-market sale of the New York verdict as lawyers argued about his apartment to Black. The jury also did not immediate fate. buy the prosecution's allegation that Black illegally charged Hollinger for a lavish St. Eve declined to rule immediately on birthday party for his wife, Barbara Amiel Black's motion to have his bond reduced Black. and be allowed to travel outside the U.S.
"He was convicted of the two monetarily John Hueston, a prosecutor in the Enron lowest amounts in the case," Genson said. case now in private practice in Los Angeles, said prosecutors gambled unsuccessfully Edward Greenspan, the Canadian lawyer that jurors would be outraged by testimony who led Black's defense at trial, told about Black's wealthy, globe-trotting reporters the government's effort to put lifestyle, including lengthy testimony about Black in jail for as long as 20 years is off a trip to Bora Bora on the corporate jet. base given the conviction on relatively narrow charges. "When we were indicted Peter Henning, a law professor at Wayne the allegation was $90 million in loss. Now State University, thinks Black will be the lost amount for Conrad Black alone is sentenced far more harshly than his co- $2.9 million. We intend to appeal and there defendants because of his obstruction are viable legal issues," Greenspan said. conviction and his outspoken contempt for the prosecution: "Calling the prosecutors U.S. Atty. Fitzgerald insisted that because Nazis doesn't put him in a good position." Black and his co-defendants were convicted of the first, most sweeping count in the Even so, Greenspan argued in an interview indictment, the judge at sentencing could that he was pleased with the mixed verdict. find them culpable of taking as much as $30 "This was vindication for Conrad Black," he million from Hollinger. said.
194 "Lord Black Is Indicted by U.S."
New York Ti7mes November 18, 2005 Geraldine Fabrikant
Conrad M. Black, once a major force in The indictment detailed a plan to defraud business, political and social circles in Hollinger International by diverting $51.8 Manhattan and London, was indicted in million in 2000 from its multibillion-dollar Chicago yesterday on charges that he and sale of assets to CanWest Global three former colleagues stole $51.8 million Communications. It contended that the from Hollinger International, the giant defendants engaged in a series of secret and international newspaper publisher he helped misleading transactions that funneled create. payments to themselves disguised as noncompetition fees or as a "management The 11-count indictment charged that Lord breakup fee" to Ravelston, a company Black, 61, and his co-defendants worked out controlled by Lord Black. a plan to divert funds to themselves and misused corporate money, citing such It also charged that Lord Black and one of instances as he and his wife taking a private the others indicted misused corporate funds jet to Bora Bora and $40,000 he spent to in the South Pacific vacation and when the cover much of the cost of a lavish birthday company paid for two apartments on Park party for his wife. Avenue in Manhattan.
Patrick J. Fitzgerald, the U.S. attorney who "This is the sort of thing," said Mr. announced the indictment by a federal grand Fitzgerald, a national figure from his role in jury, said yesterday: "If you worked at a the C.I.A. leak case, "that in the words of bank and you wanted to spend $40,000 on Mr. Black is simply unacceptable." The yourself, you should ask someone other than defendants, he continued, "lined their you. Failing to do so when there was a legal pockets" by taking money from shareholders obligation to do so is a fraud." for themselves.
Lord Black was accused of wire fraud and "Part of the fraud," Mr. Fitzgerald said, mail fraud, charges that carry penalties of up "was basically to defraud innocent to 40 years in prison and fines up to $2 shareholders." million. A British citizen, Lord Black has been spending time in Canada. An arrest Yesterday's indictments were the latest in a warrant has been issued for Lord Black, and succession of charges in the last few years there were reports last night that he was against once-highflying chief executives believed to be in Canada. But Mr. Fitzgerald accused of betraying investors. These have said he could not comment on his included L. Dennis Kozlowski of Tyco whereabouts, adding: "He will end up International, John J. Rigas of Adelphia needing to appear in front of a judge in Communications and Bernard J. Ebbers of Chicago. We think he should be extradited." WorldCom.
195 But perhaps none of those executives sought apartment and having lunch with prominent as much political and social recognition as friends. did Lord Black, whose publishing empire included The Chicago Sun-Times, The Those charged along with him yesterday Jerusalem Post and The Daily Telegraph of were John A. Boultbee, a former chief London. financial officer of Hollinger International; Peter Atkinson, an executive vice president Lord Black and his wife, the conservative of Hollinger International; and Mark Kipnis, newspaper columnist Barbara Amiel, held a former vice president of Hollinger annual gatherings at the Bilderberg Group, International. Ravelston was also charged; where a variety of leading political figures its principal asset was its controlling interest assembled, including Margaret Thatcher; in Hollinger Inc. Richard N. Perle, a high Defense Department official in the Reagan Yesterday, Lord Black's Toronto lawyer, administration and early adviser to the Bush Edward Greenspan, issued a statement administration; and a former French saying, "Conrad Black asserts his innocence president. Valery Giscard dEstaing. without qualification."
But Lord Black has been under siege for two A lawyer for Mr. Boultbee, Donald Jack, years, since the Hollinger International said his client would "vigorously defend the board dismissed him as chief executive in charges against him and is confident of the 2003, asserting that he and others took $32 outcome.- million in unauthorized "noncompete payments" associated with the sale of Lawyers for the two others accused did not smaller newspapers. return calls seeking comment.
Lord Black has continued to fight back, In August, indictments charged the former aggressively challenging the accusations and Hollinger International president and seeking to retain power through Hollinger publisher, F. David Radler, and Mr. Kipnis Inc., the holding company for Hollinger with a scheme to divert more than $32 International. In the last year, he tried million from the American-based newspaper without success to take Hollinger Inc. holding company through a complex series private. of unauthorized payments. Mr. Kipnis pleaded not guilty, but Mr. Radler, a Indeed, the indictment came as he was longtime close associate of Lord Black, trying to regain his social standing in the agreed to cooperate with the authorities. United States, in Toronto where he now lives, and in London. In January he The charges related to the noncompetition reportedly told guests at Donald J. Trump's payments were laid out in 2004 by a special Palm Beach wedding: "Don't write me off. I committee established by the board and led am about to become a corporate-governance by Richard C. Breeden, a former chairman counterterrorist." of the Securities and Exchange Commission. Those payments were the subjects of a And last summer, there were newspaper subsequent suit by the S.E.C.; that suit is reports that he was looking for a new pending.
196 Yesterday, Mr. Breeden said that "this Mr. Boultbee faces a maximum penalty of indictment is focused on a limited number of 40 years in prison and fines of $2 million. transactions, and will enable prosecutors to Mr. Kipnis is risking up to 45 years and focus a trial on a manageable set of issues." $2.25 million in fines. Mr. Atkinson faces Despite Lord Black's determination to fight up to 30 years and fines up to $1.5 million. the charges, Mr. Breeden was optimistic And Ravelston could face fines of $3.5 about the government's case. million.
"He can fight it," he said of Lord Black, The indictment contends that all four "but the facts are there. His is a situation, cheated public shareholders in the United unlike others, where there is a mass of States and Canada, as well as Canadian tax evidence concerning what took place." authorities.
197 "DOJ May Rein in Use of 'Honest Services' Statute"
National Law Journal June 15, 2009 Lynne Marek
A key weapon in the arsenal of U.S. services they are due. It's typically used to Attorney Patrick Fitzgerald and his shore up other fraud counts, but increasingly prosecutors in Chicago has been a section of has been used as a primary count as well. the federal anti-fraud statute that makes it a crime to deprive citizens or corporate Orwig, who didn't recall using the charge shareholders of "honest services." when he was a U.S. attorney, said he thinks the section has been "over-used." It was the It's been used to convict dozens of state and lead charge lodged by U.S. attorney offices local government officials, as well as against 79 suspects in fiscal year 2007, up newspaper magnate Conrad Black and from 63 in 2005 and 28 in 2000. (The former Gov. George Ryan of Illinois. Justice Department doesn't consistently Fitzgerald cited the honest services in the track it as a secondary charge.) April indictment of another ex-Illinois governor, Rod Blagojevich. AGGRESSIVE USE
But the U.S. Supreme Court's May decision Fitzgerald, the special counsel who won a to review Black's 2007 conviction may put conviction against vice presidential aide I. the brakes on the honest services provision. Lewis Libby Jr., so far is bucking the usual The U.S. Department of Justice is likely to turnover for U.S. attorneys and is extending rein in use of the provision, 18 U.S.C. 1346, his eight-year stint in Chicago from the until the high court rules on Black's appeal Republican Bush administration into the next term, former federal prosecutors say. Democratic Obama administration. "Anytime that there's a high-profile review of a conviction, the department tends to just Former federal prosecutors-turned-criminal stop in its tracks, and this is a very high- defense lawyers in the Northern District of profile review," said Matt Orwig, a partner Illinois said they believe Fitzgerald's office and criminal defense attorney in the Dallas has been among the most aggressive in office of Sonnenschein Nath & Rosenthal using the honest services charge. Although and former U.S. attorney for the Eastern statistics show that his office used the law District of Texas. "There's going to have to only twice in fiscal year 2007 as a lead be some very careful analysis of how charge, the office has often used the statute they've approached these cases in the past." as a secondary allegation in cases targeting Illinois and Chicago officials for political Using the honest services section of the corruption. fraud statute allows prosecutors to charge defendants with robbing a general group of "The Northern District has argued for an people, such as shareholders of a public aggressive interpretation of this statute on company or residents of a state or city, of many occasions," said Robert Kent, a the honest fiduciary duties or government partner in the Chicago office of Baker &
198 McKenzie who was formerly chief of the The defendants argue that the Supreme complex fraud section in the U.S. attorney's Court may very well overturn their three office there. mail fraud convictions. Black's counsel contends that he would then have to be The office has met with success, posting an retried on the only other outstanding charge overall conviction rate for fiscal year 2008 against him, an obstruction of justice charge, of 96%, compared to the national rate of because of the "highly inflammatory 92%. Randall Sambom, a spokesman for the evidence" presented in support of the fraud office, declined to comment on use of the counts. charge or the Black case. In the case, prosecutors charged Black and The criminal defense lawyers said the his fellow executives from Hollinger Supreme Court is likely to focus on the International Inc., publisher of the Chicago second question presented by the Black Sun-Times and other newspapers, with fraud petitioners: whether the law "applies to the for pocketing money from bogus conduct of a private individual whose noncompete agreements drawn up when the alleged 'scheme to defraud' did not company was selling off its smaller contemplate economic or other property newspapers in the 1990s. harm to the private party to whom honest services were owed." Prosecutors argued that millions of dollars should have gone to shareholders of the Black's Supreme Court counsel, Miguel company. Black was convicted by a jury on Estrada of the Washington office of Gibson, four of the 13 counts against him. Dunn & Crutcher. didn't return calls seeking comment, but argued in the petition that the U.S. attorney's offices will pursue "honest "vagueness" of Section 1346 and differing services" infractions much more carefully appellate courts' interpretation of the law while Black's case is pending before the call out for Supreme Court clarification. high court to avoid having cases overturned in the future, the criminal defense lawyers Solicitor General Elena Kagan contends in said. Prosecutors are more likely to use it to response that the law is clear: The shore up other charges or avoid it altogether, government need not show that a defendant they said. "It's likely to mean that intended to deprive a victim of property or prosecutors will only use it in the money, and the appellate courts differ only circumstances that every court agrees it slightly in determining whether a given would work-that way they'll have some honest services fraud is "material." level of confidence no matter what happens," Kent said. "At this point, it would The court's decision to grant certiorari in the be risky to do anything else." Black case led to a release from prison of one of Black's three co-defendants, John In cases such as the one against Blagojevich, Boultbee, and Black may resubmit a request which includes a host of other criminal for release in the Northern District of Illinois charges, anticipation of the Supreme Court's after Justice John Paul Stevens denied his decision on Black is unlikely to make a request for release on bail on June 11. difference, the lawyers said.
199 A SCALIA DISSENT violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit Justice Antonin Scalia in February dissented of local officials, state legislators, and when the Supreme Court declined to grant corporate CEOs who engage in any manner certiorari in another honest services of unappealing or ethically questionable conviction case against a top aide to conduct," Scalia wrote. Chicago Mayor Richard Daley, also prosecuted by Fitzgerald's office. In his At the core of the issue is the notion that dissent, he said that not taking the case would-be defendants have a right of due allowed "the current chaos" in application of process that provides clarity in the laws that the statute to prevail. Now it seems Scalia they are expected to obey, said criminal has managed to win over three additional defense attorneys. justices on the honest services issue with respect to the Black case. This isn't the first time that the Court has wrestled with the statute. In its 1987 ruling "They need some sharper definition," said in McNally v US., the Supreme Court Mark Rotert, a Chicago criminal defense dismissed prosecutors' and courts' widely attorney at Stetler & Duffy and a former held view that the mail fraud statute could federal prosecutor who was once chief of the be used to fight public corruption and major crimes division in Chicago's U.S. misconduct on the basis that citizens had an attorney's office. "There are some real 'intangible right' to good government. questions about . . . the appropriate reach of Congress the following year enacted the the criminal statute." honest services section to revive the practice of prosecuting under that right. Scalia in his dissent regarding the case of Daley aide Robert Sorich said that the "The confusion arises in part from the fact circuits are clearly divided on how to that the law appears to apply differently to interpret the honest services section. The public officials and private individuals," said U.S. Court of Appeals for the 5th Circuit has John Cline, a partner in Jones Day's San held that the statute criminalizes only the Francisco office who represented Sorich in unlawful deprivation of services, though his appeal. "It will be interesting to see if the other courts have disagreed with that, he Supreme Court tries to develop a unified stated. The 7th Circuit has read the statute to standard for the two types of cases." prohibit the abuse of a post for private gain, while some circuits don't see such a gain as Some attorneys expect the high court to rule part of the crime, he said. narrowly on the application of the law to private individuals, such as corporate "Without some coherent limiting principle chieftains like Black and avoid weighing in to define what the 'intangible right of honest on circumstances related to public officials, services' is, whence it derives, and how it is at least for now.
200 Weyhrauch v. United States
08-1196
Ruling Below: United States v I'eyhrauch, 548 F.3d 1237 (9th Cir. 2008).
The federal statute defining honest services fraud, 18 U.S.C. § 1346, establishes a uniform federal standard for honest services that governs every public official, and thus the government need not prove independent violation of state law to sustain honest services fraud conviction. The defendant's alleged conduct falls comfortably within the two categories long recognized as the core of honest services fraud: (a) taking bribe or otherwise being paid for decision while purporting to be exercising independent discretion, and (b) nondisclosure of material information.
Question Presented: To convict a state official for depriving the public of its right to the defendant's honest services through nondisclosure of material information, in violation of mail- fraud statute (18 U.S.C. §§ 1341 and 1346), must the government prove that the defendant violated disclosure duty imposed by state law?
UNITED STATES of America, Plaintiff-Appellant, V. Bruce WEYHRAUCH, Defendant-Appellee.
United States Court of Appeals for the Ninth Circuit
Decided November 26, 2008
[Excerpt: some footnotes and citations omitted]
FISHER, Circuit Judge: I. BACKGROUND
This is an interlocutory appeal by the Defendant Bruce Weyhrauch, a lawyer, was government of the district court's pretrial a member of the Alaska House of order excluding evidence from a mail fraud Representatives in 2006 while Alaska's prosecution. It presents a matter of first legislature was considering legislation that impression in this circuit-whether a federal would alter how the state taxed oil honest services mail fraud prosecution under production. According to the criminal 18 U.S.C. §§ 1341 and 1346 requires proof indictment against him, VECO Corp., an oil that the conduct at issue also violated an field services company, took an active applicable state law. . . . On the merits, we interest in the legislature's reconsideration disagree with the district court that a state of the oil tax, and two of its executives had a law violation is required, and thus reverse series of contacts with Weyhrauch regarding the court's order excluding certain evidence the pending legislation. The indictment from trial. alleges that Weyhrauch solicited, by mail,
201 telephone and personal contact, future legal The district court found that the proffered work from VECO in exchange for voting on evidence related only to duties to disclose a the oil tax legislation as VECO instructed conflict of interest that might be imposed by and taking other actions favorable to VECO state law, and that state law did not require in Weyhrauch's capacity as state legislator, Weyhrauch to disclose the conflict of such as maneuvering the legislation and interest he faced in discharging his duties reporting information about proposed while negotiating for future employment changes to the legislation to the VECO with a company affected by pending executives. The indictment does not allege legislation. The government argued that the that Weyhrauch received any compensation evidence should nonetheless be admitted or benefits from VECO or its executives because proof that a legislator knowingly during this period, but alleges facts concealed a conflict of interest may be used suggesting that Weyhrauch took the actions to support an honest services fraud favorable to VECO on the understanding conviction even if state law does not require that VECO would hire him in the future to disclosure of the conflict of interest. provide legal services to the company. Recognizing an absence of Ninth Circuit precedent and a split among the other Count VII of the indictment charges circuits on this issue, the district court Weyhrauch with devising "a scheme and adopted the approach outlined by the Fifth artifice to defraud and deprive the State of Circuit in United States v. Brumley, and Alaska of its intangible right to [his] honest concluded that "any duty to disclose services . . . performed free from deceit, sufficient to support the mail and wire fraud self-dealing, bias, and concealment" and charges here must be a duty imposed by attempting to execute the scheme by mailing state law." Accordingly, on September 4, his resume to VECO ("the honest services 2007, the district court granted Weyhrauch's charge"). Before trial, the parties filed cross- motion, denied the government's motion and motions regarding the admission or excluded the proffered evidence. The next exclusion of evidence related to the honest day, September 5, the government initiated services charge. Specifically, the this interlocutory appeal of the district government proposed to introduce: (1) court's ruling. legislative ethics publications containing excerpts of various Alaska state statutes II. STANDARD OF REVIEW addressing conflicts of interest and disclosure requirements; (2) evidence that We review a district court's ruling excluding members of the Alaska State Legislature evidence for abuse of discretion. "The customarily acknowledge the existence of district court abuses its discretion when its conflicts of interests on the floor of the evidentiary rulings are based on an Legislature, and that Weyhrauch never erroneous view of the law or a clearly disclosed he was negotiating for erroneous assessment of the facts." United employment with VECO; (3) a description States v. Nguyen. of the ethics training Weyhrauch had received; and (4) evidence that Weyhrauch served on the Legislature's Select Committee on Ethics.
202 IV. HONEST SERVICES MAIL FRAUD services" in § 1346, thereby creating some confusion over the reach of the mail fraud Accepting our jurisdiction under 18 U.S.C. statute. Because the statute's plain language § 373 1, we address whether the district court is inconclusive, we turn for guidance in properly excluded the government's construing the statute to our pre-McNally proffered evidence. Weyhrauch was indicted case law and any relevant post-M1IcNally under 18 U.S.C. § 1341, which criminalizes decisions, and then consider pre- and post- the use of the postal services in carrying out McNally decisions from our sister circuits. a "scheme or artifice to defraud, or for obtaining money or property by means of The district court accurately observed that false or fraudulent pretenses, we have not considered what § 1346 representations, or promises." Before 1987, requires of public officials and that our sister we and other courts interpreted § 1341 as circuits have expressed divergent views on covering schemes to defraud another not just the proper meaning of "honest services" for of money and property, but also of public officials. The Fifth Circuit has "intangible rights," including the right of adopted the so-called "state law limiting citizens to have public officials perform principle," which requires the government to their duties honestly. In 1987, the Supreme prove that a public official violated an Court rejected the intangible rights theory of independent state law to support an honest mail fraud, holding: services mail fraud conviction. The Third Circuit has adopted a similar rule requiring Rather than construe [§ 1341] in a the government to prove the public official manner that leaves its outer violated a fiduciary duty specifically boundaries ambiguous and involves established by state or federal law. the Federal Government in setting standards of disclosure and good The majority of circuits, however, have held government for local and state that the meaning of "honest services" is officials, we read § 1341 as limited governed by a uniform federal standard in scope to the protection of property inherent in § 1346, although they have not rights. If Congress desires to go uniformly defined the contours of that further it must speak more clearly standard. The Seventh Circuit has read than it has. § 1346 to require public officials to breach a fiduciary duty with an intent to reap private McNally v. United States, 483 U.S. at 360 gain to support an honest services mail fraud (1987). conviction, and the First Circuit has suggested that the official's misconduct Shortly thereafter, Congress in 1988 chose must involve more than a mere conflict of to "speak more clearly" by enacting 18 interest to support a conviction. Finally, U.S.C. § 1346, specifying that for the several circuits have read into § 1346 the purposes of the mail, wire and bank fraud requirement that a public official's breach of statutes, "the term 'scheme or artifice to duty must be material and accompanied by defraud' includes a scheme or artifice to fraudulent intent. In essence, our sister deprive another of the intangible right of circuits have construed the meaning of honest services." Unfortunately, Congress "honest services" in ways that limit, to did not define the concept of "honest differing degrees, the reach of § 1346 into
203 state and local public affairs. the ethical standards for their own public officials. One concern is that a literal reading of § 1346 might give federal prosecutors Nonetheless, we decline to adopt the state unwarranted influence over state and local law limiting principle. As an initial matter, public ethics standards. This is particularly our pre-McNally decisions do not support relevant in light of the Supreme Court's the conclusion that the federal fraud statutes admonition that "unless Congress conveys derive their content solely from state law. In its purpose clearly, it will not be deemed to United States v. Bohonus, we explained that have significantly changed the federal-state the basis for prosecuting public officials for balance in the prosecution of crimes." Other honest services fraud rests on "the valid considerations are (1) the need to give deprivation of the public's right to honest public officials fair notice of the conduct and faithful government." This broad that would subject them to the federal fraud characterization of the duty, without statutes' serious criminal penalties; (2) a reference to any underlying state law duty, desire to establishfirm boundaries lest every suggests that public officials' duty of dishonest act by public officials lead to honesty is uniform rather than variable by federal criminal liability; and (3) the state. We were less equivocal in United potential for selective enforcement against States v. Louderman, holding that "state law public officials, many of whom engage in is irrelevant in determining whether a certain partisan political activity. course of conduct is violative of the wire fraud statute." Although Louderman is not The Fifth Circuit's state law limiting directly on point because it involved a principle, which the district court adopted, traditional wire fraud prosecution rather than addresses all of these concerns. It limits how an honest services mail fraud prosecution, much control federal prosecutors have over our refusal to define the federal fraud state public affairs by restricting federal statutes based on the contours of state law criminal liability to conduct prohibited by informs our decision here. In short, we have the states themselves and sets a clear outer never limited the reach of the federal fraud limit to the reach of the federal statute by statutes only to conduct that violates state tying liability to violations of specific state law. statutes, thereby allaying concerns over fair notice. Moreover, to the extent the honest We also cannot find any basis in the text or services doctrine is intended to ensure public legislative history of § 1346 revealing that officials act ethically, elected state officials Congress intended to condition the meaning are accountable to their constituencies, who of "honest services" on state law. Because can punish dishonest or unethical conduct laws governing official conduct differ from directly at the ballot box, and nonelected state to state, conditioning mail fraud state officials may be subject to state ethics convictions on state law means that conduct laws, which can be strengthened through the in one state might violate the mail fraud democratic process. Thus, because the statute, whereas identical conduct in a federal criminal statutes are not the only neighboring state would not. Congress has remedy for dishonest conduct not proscribed given no indication it intended the by state law, there is some degree of logic in criminality of official conduct under federal reserving to the states exclusive control over law to depend on geography. Moreover,
204 although the Supreme Court has warned priorities is not improperly influenced by against interpreting the mail fraud statute to personal motivations of state policymakers allow federal prosecutors to intrude into and regulators, and the happenstance of areas traditionally governed by state law whether state laxw prohibits particular absent a clear showing that Congress conduct should not control Congress' ability intended to do so, Congress demonstrated a to protect federal interests through the clear intent to reinstate the line of pre- federal fraud statutes, which are predicated McNally honest services cases when it on valid federal constitutional authority to enacted § 1346. Because pre-McNally regulate the mails. honest services fraud cases generally did not Having rejected the state law limiting require state law to create the duty of principle, we next consider the appropriate honesty that public officials owe the public contours of honest services fraud. Our pre- and the plain language of the statute does McNally cases recognized two core not refer to state law, we cannot infer that categories of conduct by public officials that Congress intended to import a state law other courts have found sufficient to support limitation into § 1346. an honest services conviction: (1) taking a bribe or otherwise being paid for a decision Finally, federal action based on a valid while purporting to be exercising constitutional grant of authority is not independent discretion and (2) nondisclosure improper simply because it intrudes on state of material information. Post-McNally interests. Congress has a legitimate public honest services fraud cases from constitutional basis for preventing public other circuits have generally fallen into one officials from using the mails to perpetrate of those two categories. The post-McNally fraud, so the federal interest in establishing a decisions from our sister circuits confirm uniform standard of conduct for public our view in Bohonus that conduct on par officials merits equal consideration. That with bribery and nondisclosure of material interest is not limited to preventing information lies at the heart of public honest individuals from using the mails as a tool in services fraud. Notably, both categories of a fraudulent scheme. States often regulate misconduct undermine transparency in the industries that are national and international legislative process and other governmental in scope and that the federal government functions. Because public officials may also regulates under concurrent legitimately disagree over which of the constitutional authority, including the many competing interests in society deserve financial services, transportation, support from the state, without transparency communications, oil, gas and timber the public cannot evaluate the motivations of industries. State regulations of these public officials who are purporting to act for industries can have national or international the common good to determine whether they implications, so the federal government may are in fact acting for their own benefit. Thus, wish to prevent state action in these areas the two core categories of misconduct from being improperly influenced. supporting public honest services fraud Similarly, state laws that affect economic ensure transparency, without which the development within a state can influence the public cannot determine whether public federal budget, reduce federal tax receipts officials are living up to their duty of and broadly affect the national economy. In honesty. We are persuaded that Congress' short, Congress has a legitimate interest in intent in reinstating the honest services ensuring that state action affecting federal doctrine after McNally was to bring at least
205 the two core categories of official V. CONCLUSION misconduct within the reach of § 1346. We hold that 18 U.S.C. § 1346 establishes a Here, Weyhrauch allegedly voted and took uniform standard for "honest services" that other official actions on legislation at the governs every public official and that the direction of VICO -while engaged in government does not need to prove an undisclosed negotiations for future legal independent violation of state law to sustain work from VECO. These allegations an honest services fraud conviction. Because describe an undisclosed conflict of interest the district court excluded the evidence and could also support an inference of a quid based, in part, on its conclusion that the pro quo arrangement to vote for the oil tax government had to prove that state law legislation in exchange for future imposed an affirmative duty on Weyhrauch remuneration in the form of legal work. to disclose a conflict of interest, we reverse. Because Weyhrauch's alleged conduct falls The government did not appeal the district comfortably within the two categories long court's ruling that the proffered evidence recognized as the core of honest services relates only to state law, and we express no fraud, we need not define the outer limits of opinion whether the proffered evidence is public honest services fraud in this case. relevant to proving the government's case Accordingly, the government may proceed under the standard v e have announced and on its theory that Weyhrauch committed leave that determination to the district honest services fraud by failing to disclose a court's sound judgment. conflict of interest or by taking official actions with the expectation that he would receive future legal work for doing so. REVERSED and REMANDED.
206 "Supreme Court Takes Weyhrauch Mail-Fraud Question"
Anchorage Daily News June 29, 2009 Erika Bolstad
WASHINGTON-The U.S. Supreme Court His lawyer, Doug Pope, said that he thought on Monday agreed to hear an appeal by the Supreme Court's decision to hear the former Alaska Rep. Bruce Weyhrauch that matter at issue dealt a "serious blow to the prosecutors shouldn't be allowed to say he government's case." cheated Alaska's citizens when he secretly sought work from the oil-field service "We have felt that all the way along that it company Veco during the 2006 legislative was a very weak case that was depending on session. a theory that, if it was taken away, was a case that many prosecutors would look at it In accepting Weyhrauch's pretrial review, and say, 'This isn't worth pursuing,"' Pope the court said it will look at one specific said. area: whether prosecutors must prove Weyhrauch violated a state disclosure law to Prosecutors said Weyhrauch should have convict him on federal mail fraud statutes. disclosed his conflict of interest. Weyhrauch The federal law makes it illegal for public said he didn't have to. officials to use the mails to defraud the public out of their honest services. The 9th Circuit judges reasoned that even if a state has weak ethics laws, that is no Weyhrauch, awaiting trial on federal reason for its citizens to be deprived of the corruption charges, asked the Supreme honest services of their public officials. Court to overturn an appeals court decision that directly applied the federal mail fraud Weyhrauch acknowledged that two other statute to his case. At issue is one count in U.S. circuit courts had made similar rulings, Weyhrauch's 2007 indictment where he is but said that another two had a different accused of mail fraud for seeking post- standard: They required a state law violation session work from Veco at the same time before the mail fraud statute could be used Veco was pushing back on an oil-tax bill in in a criminal case. 2006. Weyhrauch argued that because his conduct was legal under state law, it Weyhrauch asked the Supreme Court to shouldn't be illegal under the federal mail clear up the "confusion" between the fraud statute. His argument prevailed in U.S. different circuits-which the court agreed to District Court. Prosecutors appealed to the on Monday. The court did not set a date for 9th U.S. Circuit Court of Appeals and won. arguments.
207 "Court OKs Weyhrauch Evidence"
Anchorage Dail), News November 27, 2008 Lisa Demer and Richard Mauer
Federal prosecutors can go forward with the have a right to the honest services of their corruption case against former state Rep. public officials, free from secret conflicts of Bruce Weyhrauch using evidence that he interest, regardless of the limits of the law in failed to disclose his efforts to get a job with any particular state. Veco Corp., under an appeal court ruling issued Wednesday. "Accordingly, the government may proceed on its theory that Weyhrauch committed The 9th U.S. Circuit Court of Appeals sided honest services fraud by failing to disclose a with prosecutors, who had appealed a ruling conflict of interest or by taking official excluding such evidence. The case likely is actions with the expectation that he would headed back to Anchorage for trial. receive future legal work for doing so," the judges said. Efforts to reach Weyhrauch's attorney, Doug Pope, and federal prosecutors The panel noted that Sedwick's ruling didn't Wednesday afternoon were unsuccessful. come out of the blue. Without guidance from the San-Francisco-based 9th Circuit, Weyhrauch, a Juneau Republican, was the Anchorage judge turned to a decision out indicted in May 2007 along with former of the 5th Circuit, in New Orleans, that House Speaker Pete Kott over efforts by "limits how much control federal Veco and its chief executive, Bill Allen, to prosecutors have over state public affairs by pass tax legislation favored by the oil restricting federal criminal liability to industry. Weyhrauch, a lawyer in private conduct prohibited by the states life, was trying to get legal work from Veco, themselves," the decision said. and his job-seeking effort got tangled up in Veco's lobbying for the oil-tax deal. But other appeals courts have ruled differently. The federal government has Just before the trial, U.S. District Court reason to be interested in what state Judge John Sedwick ruled that federal lawmakers do, the 9th Circuit panel said. prosecutors couldn't use his failure to For instance, some industries regulated by disclose his job-seeking as evidence to prove states, including oil, are national in scope. he defrauded Alaskans of honest services because state law didn't clearly require such "Congress has a legitimate interest in a disclosure. The government appealed and ensuring that state action affecting federal Kott went on alone to trial in September priorities is not improperly influenced by 2007. He was convicted on three of four personal motivations of state policymakers corruption counts against him. He is in and regulators," the panel wrote. prison and is appealing the convictions. Public officials have a broad duty to be In its Weyhrauch decision, a three-judge honest, even when there's not a specific panel of the 9th Circuit said that all citizens state law telling them how to proceed, the
208 judges found. There's no hint in the federal that Weyhrauch never revealed he was law that Congress wanted geography to negotiating for a Veco job; a description of define what behavior is criminal, the panel ethics training that Weyhrauch received; and wrote. information that Wevhrauch served on the Select Committee on Legislative Ethics. Other appeals courts generally have found two kinds of misconduct that amounts to the On another issue, the judges had harsh crime called "honest services fraud"-taking words for the prosecution over a procedural a bribe while pretending to be independent matter. and failing to disclose material information, according to the opinion. It took the government three tries before it complied with a law that requires a U.S. "Because public officials may legitimately attorney to certify that a pretrial appeal is disagree over which of the many competing being made for legitimate reasons and not interests in society deserve support from the just to delay the trial. Because the federal state, without transparency the public cannot prosecution of Alaska political corruption evaluate the motivations of public officials cases is being managed by the U.S. Justice who are purporting to act for the common Department's Public Integrity Section, there good to determine whether they are in fact wasn't a U.S. attorney in charge and the acting for their own benefit," the 9th Circuit appeal was not certified properly. panel said. Ultimately, U.S. Attorney General Michael The evidence at issue relates to one of four Mukasey authorized it, a year after the fact. charges against Weyhrauch. He also is charged with bribery, conspiracy and "We will excuse the government's attempted extortion. confusion and allow it to supplement the record with the Attorney General's For the honest services fraud charge, certification," the panel said. prosecutors want to present evidence that includes: legislative ethics publications However, the judges threatened to reject addressing conflicts of interest and government appeals if prosecutors fail to disclosure; testimony that lawmakers comply with that law: "We will not be so typically disclose conflicts on the floor and forgiving in the future."
209 "Corruption Trials Divided; Kott's Hearing Continues, but Weyhrauch's Stalls on Federal Appeal"
inchorage Daily Ne's September 6, 2007 Richard Mauer and Lisa Demer
A federal judge Wednesday ordered separate were duty-bound to report they were seeking trials for two former Republican legislators employment with Veco, the politically to allow jury selection for one to move active oil-field service company, in 2006, forward while the government appeals an when they were voting on oil-tax legislation earlier ruling favoring the other. heavily lobbied by Veco's chair, Bill Allen. Sedwick held that state law had no such The decision on the one-time co-defendants requirement. means the bribery, extortion, fraud and conspiracy case against Pete Kott, the In the Wednesday morning hearing, Marsh former House speaker, will go ahead with told Sedwick the government still had ample opening arguments scheduled for Monday. evidence against Kott and was prepared to Jury selection started at midmorning go to trial. But for Weyhrauch, a lawyer who Wednesday and will continue today. never landed the Veco job, the evidence is crucial, Marsh said. But the trial of Bruce Weyhrauch, a former representative from Juneau, will await the At issue is whether Weyhrauch used mail outcome of the government's bid to the 9th fraud to cheat Alaskans of honest services as U.S. Circuit Court of Appeals in San a state legislator. Pope said Weyhrauch did Francisco, and perhaps longer. Weyhrauch's nothing wrong in sending a personal attorney, Doug Pope, said he'd try to take advertisement for legal services to Veco. the case to the U.S. Supreme Court if the 9th Circuit reverses the decision in Anchorage. With the trial set to begin, expenses for lawyers and the court adding up, and U.S. District Judge John Sedwick made his potential jurors cooling their heels, Marsh ruling on separating the trials in a hastily proposed that Sedwick revisit a request called hearing that began at 8 a.m. made in August by Weyhrauch's attorneys Wednesday, just before jury selection was to to split the trial. At the time, Pope argued begin. With more than 80 potential jurors that the stronger evidence against Kott could from around Southcentral Alaska cloistered prejudice the jury against his client. The in a meeting room across the lobby and government opposed the motion then, and down a hall, Nicholas Marsh, a trial attorney the judge kept the defendants together. from the Justice Department's Public Integrity Section, told Sedwick that his But now, Pope told Sedwick, the situation superiors in Washington agreed that an has changed. He was fully prepared to go to appeal of an earlier ruling was justified. trial. It would be an undue financial and emotional burden on Weyhrauch and his They are challenging a ruling by Sedwick on family to delay any longer. He argued the Tuesday that said the government couldn't government's points of appeal were thin and present evidence that Weyhrauch and Kott unlikely to succeed.
210 But Sedwick said federal appeals courts knowledge of the now-smaller case. The around the country were split on the lawyers on both sides introduced disclosure issue, while the all-important 9th themselves, and so did Kott, who Circuit, governing courts in Alaska, "hasn't represented Eagle River in the House. spoken." Sedwick said he followed a line of reasoning adopted by the 5th Circuit in New "I'm Pete Kott, and I'm the defendant in the Orleans. case," he said, smiling at the packed room of jurors. Jim Wendt, Kott's attorney, opposed the split, mainly because he had prepared a case Most of those with strong opinions already theory and line of questioning for witnesses had been weeded out through written based on having a co-defendant. The questionnaires. government agreed to delay opening arguments until Monday, and promised to Sedwick, and sometimes the lawyers, asked tell him by Friday whether Allen and former detailed questions of about half those Veco vice president Rick Smith would be remaining on Wednesday to determine called to testify and to reveal the whether any were too biased to be fair jurors approximate place in the trial they would or had other reasons not to serve. take the stand. One had just landed her first full-time job in Following a 90-minute recess to review the a year, so she was allowed to go home. A law and rulings in related cases, Sedwick couple of people had medical issues. One is called the parties back to his courtroom and leaving Alaska this month. Another is announced he would split up the co- married to a former contract manager at BP defendants so the government could pursue and socialized with Allen. All left the the appeal. He said the government clearly courtroom. had that right. Some were close calls. One man told the After packing up boxes of documents on a judge he thought he could be fair "for the cart and clearing the courthouse, Pope most part." When Sedwick pressed him, he stopped to talk with reporters and expressed said part of him struggled with the politics outrage at the government. He said of oil in Alaska. The judge sent him home. prosecutors realized late in the pretrial phase that their case was weak and responded by While a number of the prospective jurors inventing a new case theory that relied on an had a general idea that the matter before improper application of federal law. them was a bribery case, some said they didn't pay attention to politics. Others He said Weyhrauch's day in court may be followed the political corruption cases delayed for more than a year by the appeal. closely. Some told the judge they were most interested in trouble faced by U.S. Sen. Ted Marsh said it would be inappropriate to Stevens and his son, former state Senate comment on Pope's out-of-court criticism. President Ben Stevens. Neither has been charged with a crime, but Ben Stevens is Back in the courtroom, potential jurors accused of being part of a conspiracy that began filing in to be questioned about their included Kott, Weyhrauch, Allen and Smith.
211 "Indictment: Weyhrauch Sought Work with VECO"
Juneau Empire May 6, 2007 Pat Forgey
While the Alaska Legislature was discussing Weyhrauch did not collect any money, the an oil tax bill worth billions to the state, indictment said. It alleges Kott took federal prosecutors allege former Rep. Bruce numerous cash payments, sometimes hidden Weyhrauch, R-Juneau, called Bill Allen, as payments to Kott's hardwood flooring CEO of VECO Corp., an oil field services business. company and influential player in state politics. The indictment quotes two VECO executives discussing the gas pipeline Weyhrauch told Allen that he wanted to legislation, and why Kott would support the discuss a "mutually beneficial relationship," company's position. according to the seven-count indictment filed against Weyhrauch and former Rep. "We got more money in Pete Kott than he Pete Kott, R-Anchorage. can even think about," executives said, according to the indictment. VECO was not named in the indictment, but it issued a press release late Friday How prosecutors know of the comments is acknowledging it was the company alluded not explained, but the indictment makes to by prosecutors. numerous references to private conversations that took place in a VECO That relationship allegedly involved suite at the Baranof Hotel in Juneau, as well Weyhrauch soliciting lucrative legal work as phone conversations, suggesting after he was no longer a representative in electronic surveillance. exchange for his support for a lower tax rate that the oil companies wanted. At one point, the indictment says Kott told the company's CEO that "I had to cheat, He and Kott also backed a natural gas steal, beg, borrow and lie," to support the pipeline deal supported by Gov. Frank company's positions. Murkowski and the state's big oil producers. The CEO responded, "I own your ass," Later, Weyhrauch and Kott also worked according to the indictment. together to get a special session of the Legislature to adjourn early and avoid a vote The indictment also recounts a conversation on legislation the oil companies opposed. in which VECO executives discussed Weyhrauch's financial struggles and how to Weyhrauch and Kott pleaded not guilty "stall a bit" and string him out with the Friday, but were unavailable for comment. prospect of future legal work.
212 United States v. Comstock
08-1224
Ruling Below: United States v. Comstock, 551 F.3d 274 (4th Cir. 2009).
Graydon Comstock and several other convicted sex offenders in North Carolina were less than a month away from finishing their prison sentences for federal sex offenses when they were found to be "sexually dangerous" under 18 U.S.C. §4248. They were then committed to a medium security facility after the completion of their sentences. The sex offenders challenged the statute, authorizing their commitment as an unconstitutional assertion of power by Congress. The Government claimed that the statute was within Congress's power under both the Commerce Clause and the Necessary and Proper Clause. The district court agreed with the sex offenders and struck down the statute. The Fourth Circuit affirmed.
Question Presented: Did Congress act within its constitutional powers, under the Commerce Clause or Necessary and Proper Clause, in enacting 18 U.S.C. §4248, which allows the federal government to commit persons believed to be "sexually dangerous" after they have already served their terms for prior sexual offenses?
UNITED STATES OF AMERICA, Petitioner-Appellant,
Graydon Earl COMSTOCK, Jr., Respondent-Appellee.
United States Court of Appeals for the Fourth Circuit
Decided January 8, 2009
[Excerpt: some footnotes and citations omitted]
DIANA GRIBBON MOTZ, Circuit Judge: states. The Government now appeals.
This case presents the question of whether a We are the first appellate court to address newly-enacted federal statute-18 U.S.C. this question, but the issue has divided trial § 4248 (2006)-lies within Congress's courts across the nation. power. Section 4248 purports to allow the federal government to place in indefinite Two fundamental principles guide our civil commitment "sexually dangerous" inquiry. On one hand, respect for the persons, granting the federal government legislative branch demands that we afford unprecedented authority over civil congressional enactments a "presumption of commitment-an area long controlled by the constitutionality." United States v. states. The district court held that § 4248 Morrison, 529 U.S. 598, 607. But on the exceeds the limits of congressional power other, we must invalidate an act of Congress and intrudes on the powers reserved to the on a "plain showing" that Congress has
213 exceeded its constitutional authority. certify that a person within federal custody is "sexually dangerous." Such a After carefully considering the certification, when filed with the district Government's arguments, we conclude, for court in the jurisdiction in wxhich the federal the reasons set forth below. that § 4248 does government holds a person, automatically indeed lie beyond the scope of Congress's stays that person's release from prison. In authority. The Constitution does not the cases at issue here, this stay has empower the federal government to confine extended federal confinement well past the a person solely because of asserted "sexual end of any prison term. Thus, pursuant to dangerousness" when the Government need § 4248, the federal government has civilly not allege (let alone prove) that this confined former federal prisoners without "dangerousness" violates any federal law. proof that they have committed any new We therefore affirm the judgment of the offense. Moreover, § 4248 empowers the district court. Attorney General to prolong federal detention in this manner without presenting I. evidence or making any preliminary showing; the statute only requires that the A. certification contain an allegation of dangerousness. Congress enacted § 4248 as part of the Adam Walsh Child Protection and Safety The statute defines a "sexually dangerous Act of 2006 ("the Act"). With the aim of person" to be one who "has engaged or "protect[ing] children from sexual attempted to engage in sexually violent exploitation and violent crime," a Senate conduct or child molestation and who is sponsor described the Act as "the most sexually dangerous to others," and who comprehensive child crimes and protection suffers from a severe mental illness such bill in our Nation's history." 152 Cong. Rec. that he would "have serious difficulty in S8012 (daily ed. July 20, 2006) (statement refraining from sexually violent conduct or of Sen. Hatch). Among other measures, the child molestation if released." 18 U.S.C. Act creates a National Sex Offender § 4247(a)(5)-(6) (2006). However, neither Registry, increases punishments for a variety ''sexually violent conduct" nor "child of federal crimes against children, and molestation" are terms defined by the strengthens existing child pornography statute. prohibitions. None of these provisions of the Act is challenged here. After the Attorney General files the certification, § 4248 directs the district court The only portion of the Act at issue here, to adjudicate a person's alleged sexual § 4248, authorizes the federal government to dangerousness. If the district court finds the civilly commit, in a federal facility, any person to be sexually dangerous by clear and "sexually dangerous" person "in the convincing evidence, the court must commit custody" of the Bureau of Prisons-even the person to federal custody. Only then after that person has completed his entire does § 4248 direct the Attorney General to prison sentence. 18 U.S.C. § 4248(a), (d) make "all reasonable efforts" to transfer (2006). To initiate commitment under responsibility for the person to an § 4248, the Attorney General need only appropriate state authority. Unless and until
214 a state assumes this responsibility, § 4248 the Constitution grants Congress the authorizes federal confinement for as long as authority to enact § 4248. the person remains "sexually dangerous." II. B. In the exercise of their general police and Graydon Comstock, who filed the first of parens patriae powers, the states have long these consolidated challenges to § 4248, controlled the civil commitment of the pled guilty to receipt of child pornography mentally ill. Unlike the states, the federal in violation of 18 U.S.C. § 2252(a)(2) government has no general police or parens (2006). Six days prior to the end of his 37- patriae power. month prison sentence, the Attorney General certified Comstock as a sexually dangerous Nonetheless, in the statute at issue here, person, staying his release from prison. Congress purports to grant the federal More than two years later, Comstock government broad civil commitment remains confined in the medium security authority. This raises a substantial Federal Correctional Institution at Butner, constitutional question because the North Carolina ("FCI-Butner"). Constitution requires that a specific enumerated power support every statute The cases of Markis Revland, Thomas enacted by Congress. The Government does Matherly, and Marvin Vigil followed a not argue to the contrary. similar course, with the Government certifying each man for federal commitment Yet the Government attempts to defend the less than one month before he completed his validity of § 4248 largely by direct reliance full prison term. In fact, the Government on the Necessary and Proper Clause. But certified Vigil for civil commitment on the that provision, by itself, creates no very same day that he had completed his 96- constitutional power; rather, it merely month term of imprisonment. Like permits Congress "[t]o make all Laws which Comstock, each of these men remains in shall be necessary and proper for carrying federal custody at FCI-Butner more than two into Execution . .. all . .. Powers vested by years after the expiration of his prison term. this Constitution in the Government of the United States . . ." Thus, to sustain § 4248 As part of each certification, the under the Necessary and Proper Clause, the Government petitioned for a hearing to Government must show that the statute is determine whether the named person necessary to achieve ends within Congress's qualified as "sexually dangerous" under enumeratedpowers. § 4248. In each case, the named person then moved to dismiss, contending that § 4248 Perhaps implicitly recognizing this violates the Constitution. The district court deficiency in its Necessary and Proper agreed and held that § 4248's civil Clause arguments, the Government also commitment scheme could not withstand relies (albeit briefly) on the Commerce constitutional scrutiny. Clause. Unlike the Necessary and Proper Clause, the Commerce Clause does vest With this background in mind, we turn to Congress with enumerated constitutional the question presented in this case: whether power. Clearly, if we can uphold § 4248 as a
215 valid exercise of Congress' Commerce the Government suggest that § 4248 targets Clause powers, the statute lies within the channels of interstate commerce or congressional authority. Accordingly, persons and things in interstate commerce. consistent with the "presumption of Therefore, we can uphold § 4248 under the constitutionality," Morrison, 529 U.S. at Commerce Clause only if it regulates 607, that we afford every federal statute, we activities that -substantially affect" interstate begin our analysis by addressing this commerce. question. Morrison forecloses any such argument. A. Indeed, § 4248 bears striking similarities to the VAWA provision struck down in The Commerce Clause empowers Congress Morrison. First, like VAWA, § 4248 "[tlo regulate Commerce . . . among the provides a civil remedy aimed at the several States." U.S. Const. art. I, § 8, cl. 3. prevention of noneconomic sexual violence. The Morrison Court's rationale for rejecting Recent Supreme Court precedent provides Commerce Clause authority for such a substantial assistance in resolving the statute applies with equal force here: question of whether the Commerce Clause authorizes § 4248. First, in United States v. The regulation and punishment of Lopez, the Court held that the Gun-Free intrastate violence . . has always School Zones Act (GFSZA) of 1990, which been the province of the States. made possession of a firearm in a school Indeed, we can think of no better zone a federal crime, exceeded Congress's example of the police power, which Commerce Clause power because it the Founders denied the National regulated neither commercial nor interstate Government and reposed in the activity. Then, in Morrison, the Court States, than the suppression of imposed further limits on Congress's violent crime and vindication of its Commerce Clause power, holding victims. unconstitutional a provision of the Violence Against Women Act (VAWA) that created a Second, the target of the statute challenged federal civil remedy for noneconomic sexual here (sexual dangerousness)-no less than violence, because such crimes do not the target of the statute invalidated in substantially affect interstate commerce. Morrison (gender-motivated violence)-is "not, in any sense of the phrase, economic In these cases, the Court identified three activity." Like the gender-motivated specific areas that Congress could regulate violence banned in Morrison, sexual pursuant to its Commerce Clause power: (1) dangerousness does not substantially affect the channels of interstate commerce, (2) interstate commerce. Indeed, unlike instrumentalities of or persons and things in Morrison, the record here does not even interstate commerce, and (3) activities that contain any legislative findings to the "substantially affect" interstate commerce. contrary. Like the statutes at issue in Lopez and Morrison, the statute challenged here, Supreme Court precedent thus compels the § 4248, contains no jurisdictional conclusion that § 4248 does not constitute a requirement limiting its application to valid exercise by Congress of its Commerce commercial or interstate activities. Nor does Clause power. To construe § 4248 as within
216 such power would encroach on the police relies on a restatement provision setting and parens patriae powers reserved to the forth common law principles on the sovereign states, conflating "what is truly responsibilities of custodians. In essence, the national and what is truly local." Government argues that because it may constitutionally imprison persons who Federal commitment of 'sexually dangerous violate federal criminal law. it can continue persons" may well be-like the suppression to confine such persons-even after they of guns in schools or the redress of gender- have served their sentences-if it believes motivated violence-a sound proposal as a them to be "sexually dangerous." matter of social policy. But policy justifications do not create congressional This argument must fail. Of course, authority. Hence § 4248 lies beyond Congress may establish and run a federal Congress's Commerce Clause authority. The penal system, as necessary and proper to the Government's apparent reluctance to rely on Article I power (usually the Commerce the Commerce Clause is thus Clause) relied on to enact federal criminal understandable. statutes. And, consistent with its role in maintaining a penal system, the federal B. government possesses broad powers over persons during their prison sentences. But What is less understandable is the these powers are far removed from the Government's heavy reliance on the indefinite civil commitment of persons after Necessary and Proper Clause, standing the expiration of their prison terms, based alone, as a source of congressional power. solely on possible future actions that the Of course, as the Government contends at federal government lacks power to regulate length, the Necessary and Proper Clause directly. reaches broadly, but it does so only to effectuate powers specifically enumerated in The fact of previously lawful federal the Constitution. The Necessary and Proper custody simply does not, in itself, provide Clause simply does not-in and of itself- Congress with any authority to regulate create any Congressional power. Ordinarily, future conduct that occurs outside of the this would end our discussion of the prison walls. For example, although the Necessary and Proper Clause. But because Government may regulate assaults occurring the Government's defense of § 4248 relies in federal prisons, the Government cannot almost exclusively on that Clause, we criminalize all assaults committed by former briefly address each of its specific federal prisoners. As the district court arguments on this point. explained:
1. The fact of legitimate custody . . . does not establish Congressional The Government's principal argument is authority to provide for the that its ability to establish and maintain a commitment of a person after a "federal criminal justice and penal system" person has completed a sentence for somehow renders § 4248 necessary and a federal crime, i.e., when the power proper and thus constitutional. The to prosecute federal offenses is Government cites no precedent in support of exhausted, when that person has not this novel theory. Instead, the Government committed any misconduct while in
217 custody, and where there has been no commitment is necessary and proper showing that the person is likely to to the exercise of some specific engage in conduct that Congress, as federal authority. Congress may not, opposed to the states, actually has however, authorize commitment the authority to criminalize. simply to protect the general welfare Comstock, 507 F Supp. 2d at 551. of the community at large.
2. Id. at I10 (emphasis added). Applying this test, Perry upheld the constitutionality of the The Government next contends that § 4248 Bail Reform Act of 1984, which authorizes constitutes a necessary and proper exercise pretrial detention only if a court finds a of its power to prevent "sex-related crimes." likelihood that the detainee will, if released, Brief of Appellant at 36. But the federal commit one of four specific federal offenses. government simply has no power to broadly The Bail Reform Act therefore contained a regulate all sex-related crimes, as § 4248 clear connection between the pretrial purports to do. detentions and the Government's interest in preventing federal crime. Consistent with Congress's limited powers, federal statutes regulating sex crimes are In contrast, § 4248 contains no such limited in number and breadth, specifically connection: it does not refer to any federal requiring a connection to interstate crime, let alone require the Government to commerce, or limiting their scope to the demonstrate that a person presents a risk of territorial jurisdiction of the United States. committing a specific federal crime. Indeed, In contrast, § 4248 targets "sexual under § 4248, the federal government may dangerousness" generally, without any commit a person even though he has never requirement that this undefined danger relate been convicted by any court-state or to conduct that the federal government may federal-of any crime of sexual violence. constitutionally regulate. Because most Section 4248 only requires that the crimes of sexual violence violate state and Government demonstrate that an individual not federal law, many commitments under in United States custody is "sexually § 4248 would prevent conduct prohibited dangerous," which encompasses any only by state law. Section 4248 thus sweeps "sexually violent conduct"-regardless of far too broadly to be a valid effort to prevent whether state or federal law criminalizes this federal criminal activity. conduct.
The principal case on which the Government At its core, the Government's argument relies for its argument to the contrary, attempts to "pile inference upon inference" United States v. Perry, 788 F.2d 100 (3d Cir. so as to "convert congressional authority 1986), actually offers it no support. Notably, under the Commerce Clause to a general at the outset, the Perry court recognized (as police power of the sort retained by the the Government fails to here) that a specific, States." Lopez, 514 U.S. at 567. Were we to enumerated federal power must support a accept the Government's logic, Congress federal civil commitment: could authorize the civil commitment of a person on a showing that he posed a general [T]he federal government may resort risk of any sexually violent conduct, even to civil commitment when such though not all, or even most, of this potential
218 conduct violated federal law. This argument federal civil commitment of persons-like would convert the federal government's Comstock, Matherly, Vigil, and Revland- limited power to criminalize narrow forms who have stood trial, been convicted, and of sexual violence into the general power to fully served all federal prison sentences. regulate all sexual violence, including acts Accordingly, because no federal prosecution which violate no criminal statute. has been frustrated here, we cannot sustain Congressional power does not reach so far. § 4248 under Greenwood.
3. III.
Finally, the Government maintains that the For these reasons, we can only conclude that Necessary and Proper Clause justifies § the district court correctly held § 4248 4248 because it retains the "power to unconstitutional. The challengers have made prosecute" all persons in its custody charged a "plain showing" that, in enacting § 4248, with criminal offenses. But the Government Congress exceeded its constitutional has already charged, tried, and convicted authority. Comstock, Matherly, Vigil, and Revland of all alleged federal crimes; it retains no Our holding, however, does not require that power to prosecute them. the Government's legitimate policy concerns go unaddressed. If the federal government Greenwood v. United States, 350 U.S. 366 has serious concerns about the (1956), on which the Government heavily dangerousness of a person due to be released relies, does not suggest, let alone hold, to the from federal prison, it can notify state contrary. Rather, Greenwood simply authorities, who may use their well-settled upholds a statute that permits the federal police and parens patriae powers to pursue civil commitment of a person charged with civil commitment under state law. federal crimes but found incompetent to stand trial. To prevent "frustrat[ion]" of Moreover, if the relevant state authorities federal prosecutions in such cases, prove reluctant to take charge of such Greenwood authorizes the commitment of persons, the Government is not without these incompetent individuals, reasoning recourse. The federal government may, for that they might someday regain competence example, wield its spending power to and so be able to stand trial. Furthermore, encourage state action by providing funding the statute upheld in Greenwood requires the to state institutions for this purpose. But Attorney General to determine that "suitable Congress's perceived need for the sort of arrangements for State custody and care of civil commitment statute at issue here does the person are not available" before the not create constitutional power where none federal government can undertake any exists. Congress must instead seek commitment. 18 U.S.C. § 4246(a) (2006). alternative, constitutional means of achieving what may well be commendable In sum, Greenwood only approved the objectives. federal civil commitment of persons who had been charged with federal crimes but The power claimed by § 4248-forcible, found incompetent to stand trial, and for indefinite civil commitment-is among the whom no state would take custody. most severe wielded by any government. Greenwood certainly did not approve the The Framers, distrustful of such authority,
219 reposed such broad powers in the states, exercise of Congress's authority under the limiting the national government to specific Commerce Clause or any other provision of and enumerated powers. -[T]hat those limits the Constitution. For these reasons, we may not be mistaken, or forgotten. the affirm the judgment of the district court. constitution is wvritten." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). Section 4248 thus cannot be sustained as an AFFIRMED
220 "Supreme Court to Review Sex Offender Law"
7he Christian Science Monitor June 22, 2009 Warren Richey
The US Supreme Court has agreed to decide The case, which the high court will hear in the constitutionality of a law that allows the the fall, is significant legally because it tests federal government to indefinitely detain a the breadth of federal power under the person deemed -sexually dangerous," even Constitution's necessary and proper clause. after that person has finished serving a full The Obama administration is currently prison sentence. considering enacting a legal regime to indefinitely detain Al Qaeda terror suspects The issue arises in the case of a man who currently at Guantdnamo who can't be put has been confined to a North Carolina on trial but who are deemed too dangerous federal prison for more than two years after to be released. completing his three-year sentence for receiving child pornography. The man, In May, a panel of the St. Louis-based Graydon Earl Comstock, has no firm release Eighth Circuit Court of Appeals upheld the date. same provision of the Child Protection and Safety Act. That court ruled that Congress In January, a federal appeals court panel had the authority under the necessary and declared the law unconstitutional. "The proper clause to provide for civil Constitution does not empower the federal commitment as a means of preventing future government to confine a person solely sex crimes. because of asserted 'sexual dangerousness' when the government need not allege (let In contrast, the Fourth Circuit concluded alone prove) that this 'dangerousness' that the law is not a "necessary and proper" violates any federal law," wrote Judge Diana function of the federal government because Gribbon Motz of the Fourth Circuit Court of the job of policing violent sexual attacks Appeals based in Richmond. belongs to state and local law enforcement agencies. The provision in question was passed as part of the Adam Walsh Child Protection and The North Carolina case involves inmates Safety Act of 2006. It authorizes the being held at the Federal Correctional attorney general to seek the court-ordered, Complex at Butner, N.C. Since the law open-ended civil commitment of any passed, the federal government has sought to "sexually dangerous person" already in US indefinitely detain 95 individuals it deemed custody. "sexually dangerous," 77 of whom are housed at Butner. The measure is controversial in part because it relies on anticipation of future "Congress could reasonably determine that dangerousness to society, rather than actual it is 'appropriate'-and therefore 'necessary or planned violations of law. and proper' under [the 1819 landmark
221 decision McCulloch v. Maryland]-to because it allows the government to protect private persons from sexually imprison someone potentially for life using a dangerous, mentally ill persons whom the relaxed burden of proof rather than the federal government has taken into its beyond-a-reasonable-doubt standard custody," writes Solicitor General Elena required for a criminal conviction and jail Kagen. term.
Mr. Comstock's lawyer, Jane Pearce, an lIThis law] expands federal civil assistant federal public defender in Raleigh, commitment into an area never before argues that the law exceeds Congress's contemplated by the federal government, legislative authority under the necessary and an area that has historically been the proper clause. In addition, she says the province of the states," Ms. Pearce writes in statute violates due process protections her brief.
222 "Release of Sex Offenders Delayed"
SCOTUS Blog April 3, 2009 Lyle Denniston
Chief Justice John G. Roberts, Jr., put on Under the Act, government officials certify hold on Friday a federal appeals court ruling such an inmate as "sexually dangerous," and that the federal government contended ask a federal judge to order commitment. would lead to the early release of "the great Once the government files such a request, majority" of "sexually dangerous" inmates release of the inmate is delayed until court- now held in federal prison. In a brief order, ordered review procedures are completed. the Chief Justice said there was "a presumption of constitutionality" of the If the judge agrees that the individual meets 2006 federal law that the Fourth Circuit the dangerousness definition, a commitment Court struck down. He thus blocked order must be issued. If such an individual temporarily the Circuit Court ruling, until cannot be placed in a state facility, they the Justices act on a new government appeal must remain in federal custody until no filed Friday (U.S. v. Comstock, et al., 08- longer "sexually dangerous." 1224). The constitutionality of that regime was Roberts took little time to act. The Justice challenged by five inmates facing Department in the morning asked for a delay commitment in federal court in North of the appeals court decision, but also sought Carolina. The federal Bureau of Prisons an "immediate, interim" stay while its facility for most of those who have been request was awaiting the Chief Justice's certified as "sexually dangerous" is at reaction. Roberts, without seeking a Butner, N.C., in the Fourth Circuit's area. response from the challengers to the federal A federal judge, Senior District Judge W. law, by late afternoon issued his order fully Earl Britt of Raleigh, dismissed the staying the Circuit Court. commitment proceedings for each of them.
The law at issue is the Adam Walsh Child The Fourth Circuit, in its ruling against the Protection and Safety Act, described by one Act's validity, found that Congress did not of its Senate sponsors as "the most have the constitutional authority to create a comprehensive child crimes and protection regime involving "unprecedented [federal] bill in our nation's history." It was named authority over civil commitment - an area for a child who died in a brutal crime long controlled by the states." The Court attributed to a sex offender. commented: "The Constitution does not empower the federal government to confine In a ruling on Jan. 8, the Fourth Circuit a person solely because of asserted 'sexual nullified the part of the Act that allows the dangerousness' when the government need government to put in indefinite civil not allege (let alone prove) that this commitment federal prisoners who have 'dangerousness' violates any federal law." been found mentally incompetent to stand trial, or have had criminal charges dismissed That was the only part of the new federal because of their mental condition. law that was at issue.
223 The Fourth Circuit was the first appeals lower court decision, the Justice Department court to rule on the Act's constitutionality; (in application 08A863) said that the release that issue, however, has divided federal of inmates at Butner could have come as District Courts across the country. The early as next Tuesday. The application Supreme Court, in rulings in 1997 and 2002, argued: -The court of appeals has held had upheld state legislation on commitment unconstitutional on its face an important Act of sexually violent predator acts. The of Congress that was passed to protect the federal government contended in the case public from mentally ill and sexually involving the 2006 federal law that Congress dangerous persons held in federal custody." was following the Supreme Court's lead, but challengers contended that the broad The stay of the Circuit Court ruling, the commitment scheme of that law differed Chief Justice's order said, will last "pending significantly from what the Justices had the disposition of the petition for a writ of upheld. certiorari," and would remain in effect if review is granted, but otherwise would In asking the Chief Justice to postpone the terminate.
224 "4th Circuit Strikes Down Indefinite Lock-up of Those Tagged 'Sexually Dangerous'
The American LawiYer January 13, 2009 Pamela A. McLean
The 4th U.S. Circuit Court of Appeals has under civil commitments less than a month struck down as unconstitutional a 2006 law before the release from their prison terms that allowed the federal government to place and each has been held more than two added under indefinite lock-up anyone considered years, according to the court. "sexually dangerous" even beyond the end of prison sentences. The conservative 4th The Federal Public Defender's office will Circuit became the first federal appellate not comment on the decision, said Elizabeth court to weigh in on the constitutionality of Luck, spokeswoman for the office. the Adam Walsh Child Protection and Safety Act, striking down the civil The ruling does not affect other terms of the commitment of five men held years beyond Adam Walsh Act, including creation of a their completed prison terms. national sex offender registry, increased punishment for crimes against children and The 4th Circuit panel held that Congress stronger prohibitions against child exceeded its power in violation of the pornography. Referring to prior U.S. Constitution's commerce clause by creating Supreme Court rulings that struck down a national program to impose civil harsher punishment for guns near school commitment of sexually dangerous grounds and violence aimed at women, the defendants, a power generally reserved for panel stated, "Federal commitment of states. U.S. v. Comstock, 2009 WL 42476 .sexually dangerous persons' may well be- (4th Cir. Jan. 8, 2009). like the suppression of guns in schools or the redress of gender-motivated violence-a The Justice Department did not immediately sound proposal as a matter of social policy. comment on the case. But policy justifications do not create a constitutional authority." The case strikes down civil commitment in five combined cases of prisoners held at the While the federal government enjoys broad federal Butner prison hospital facility in power during imprisonment of defendants, North Carolina, including Graydon "these powers are far removed from the Comstock, sentenced to three years for indefinite civil commitment of persons after receipt of child pornography. Prosecutors the expiration of their prison terms, based blocked his release six days prior to his solely on possible future actions that the release, and he has been held two added federal government lacks power to regulate years. directly," wrote Judge Diana Gribbon Motz.
Others included Markis Revland, Shane She called the civil commitment authority Catron, Thomas Matherly and Marvin Vigil. "among the most severe wielded by any In each case the men were ordered held government."
225 The decision points out that federal commitment proceedings for those federal prosecutors still have the option of asking prisoners considered "sexually dangerous," state authorities to invoke state civil in those states with civil commitment laws.
226 "8th Circuit Says Adam Walsh Act Constitutional"
Missouri Lawyers Weekly May 15, 2009 Angela Riley
The 8th U.S. Circuit Court of Appeals has unconstitutional because neither the upheld the constitutionality of a law Commerce Clause nor the Necessary and allowing for the civil commitment of a Proper Clause of the Constitution authorized -sexually dangerous person." its enactment. They also argued the section's enactment encroached on the powers The decision directly conflicts with a awarded to the states under the 10th previous 4th Circuit ruling, which said Amendment. Section 4248 of The Adam Walsh Child Protection and Safety Act was The district court agreed, and Tom's motion unconstitutional. The Adam Walsh Act was to dismiss was granted. enacted in 2006 and named after the son of -America's Most Wanted" host John Walsh. The issue before the 8th Circuit was one of Adam was kidnapped in 1981 and later first impression. No district court in the 8th found murdered. The act encompasses a Circuit has addressed The Adam Walsh wide number of issues designed to protect Act's civil commitment procedures, said children from sexual exploitation and Tom's attorney, Kate Menendez, of the violent crimes. The act created a national Federal Defender's Office of Minnesota. sex offender registry, instituted new policies Mendendez also said the office has not seen on how often sex offenders must update another case involving federal civil their whereabouts and created civil commitments under the act since Tom's. commitment procedures. On appeal, the government argued that In the 8th Circuit case, Roger Dean Tom Section 4248 was needed for the operation pleaded guilty to one count of sexual abuse of the federal prison and criminal justice of a minor. He was sentenced to 120 months systems, as well as to prevent federal in prison and housed in the Federal Medical crimes. Center in Rochester, Minn. He was scheduled to be released in October 2006, In making its decision, the 8th Circuit but his release was stayed after the United looked at the Supreme Court's decision in States filed a petition alleging a Rochester Greenwood v. U.S., which determined that mental health staff member had examined Congress was authorized by the Necessary Tom and determined that he is a sexually and Proper Clause to enact legislation dangerous person. The Adam Walsh Act authorizing a civil commitment of a person requires the district court to stay a release incompetent to stand trial. pending a hearing determining whether the person is sexually dangerous. The appeals court applied the same reasoning in Tom's case. Tom's attorneys at the Federal Defender's "We conclude that Congress having been Office of Minnesota moved to dismiss the empowered by the Commerce Clause to proceeding, arguing that Section 4248 was criminalize and punish the conduct of which
227 Tom is guilty, has the ancillary authority issue have split on the statute's under the Necessary and Proper Clause to constitutionality. District courts in provide for his civil commitment so that he Massachusetts and North Carolina said it may be prevented from its commission in was unconstitutional while district courts in the first place," Judge Diane E. Murphy Hawaii, Massachusetts and Oklahoma said it wrote for the court. was.
The court also noted that many, if not most, The government has appealed the decision sex offenders are housed outside of their in the Comstock case to the U.S. Supreme home state or the state in which they were Court. While the court has yet to accept convicted. It is not unreasonable to assume transfer. it has granted a stay on the release that upon release, the sex offenders will of the inmate. travel outside of the state of their incarceration, the court said. Menendez said that the Federal Defender's Office plans on appealing the court's The court remanded the decision to the decision and that the issue would be a good district court for a hearing to determine if one for the Supreme Court to rule on. Tom is a sexually dangerous person. "It does seem like there are a lot of contrary The 4th U.S. Circuit Court of Appeals has opinions about the constitutional issues and been the only other appellate court to not the specific facts," she said. "There address Section 4248's constitutionality. might not be other circuits that weigh on this The court concluded in U.S. v. Comstock, particular issue for a long time because these that the provision was unconstitutional cases are brought where these prisoners are because it "neither regulated economic located at-not where their case originated. activity nor activities substantially affecting There are only sexual predator treatment interstate commerce and was therefore programs in prisons in certain parts of the beyond the reach of the Commerce Clause." country." It also rejected the government's arguments the Necessary and Proper Clause could Messages left to the U.S. Department of authorize the legislation. Justice were not returned.
Other district courts that have addressed the The case is US. v. Tom, 08-2345.
228 "4th Circuit Got It Right in Comstock"
Sex Crimes Blog January 8, 2009 Corey Rayburn Yung
(In the interest of full disclosure, I did help jurisdictional limitation in the civil out in a very minor way in the Comstock commitment section. Given the lack of appeal, so I'm not a wholly disinterested Congressional findings and jurisdictional spectator in this case.) statement, Congress was basically thumbing its nose at Morrison (which also concerned The Fourth Circuit issued a unanimous and federal authority over sexual violence). very noteworthy AWA opinion today in a case that I have blogged about a few times Eugene Volokh has chimed in and he is a before. In U.S. v. Comstock, the Fourth little more critical of the opinion. From his Circuit affirmed the district court judgment post: that 18 U.S.C. 4248 of the Adam Walsh Act was unconstitutional because the federal At the same time, presumably civil government lacks the authority to enact the commitment of sexual offenders is provision. Section 4248 concerns the civil aimed at preventing repeat sexual commitment of sex offenders after offenses. (Let's set aside whether incarceration. This is from the opinion: such civil commitment after the end of a sentence may sometimes deny After carefully considering the people liberty in violation of the Due Government's arguments, we Process Clause; that's an issue conclude, for the reasons set forth unrelated to the federal power below, that § 4248 does indeed lie question, since it would apply beyond the scope of Congress's equally to states.) And presumably authority. The Constitution does not someone who committed a federal empower the federal government to sex crime (e.g., possession or confine a person solely because of trafficking of child pornography) is asserted "sexual dangerousness" pretty likely to commit another crime when the Government need not of much the same variety-which allege (let alone prove) that this will likely be a federal crime-and "dangerousness" violates any federal not just some other random state sex law. We therefore affirm the crime. If the Commerce Clause judgment of the district court. power to regulate commerce authorizes Congress to ban I have been arguing for quite some time that commerce in child pornography, and certain portions of the AWA are unlawful the Necessary and Proper Clause exercises of congressional power under the therefore authorizes Congress to ban Commerce Clause so I'm extremely happy even private possession of child to finally see a federal appellate court reach pornography, then it's hard to see a similar conclusion. I think the case against why the Necessary and Proper 4248 is stronger than that against SORNA Clause wouldn't authorize continued provisions because there simply was no detention of people who have shown
229 a willingness to commit such federal dangerous. I think that's right, but crimes. how does it fit the panel's decision? After all, the person is not guilty. so This was certainly the government's Congress can't appeal to its power to position, but I just don't know how you can punish federal criminals (just as the reconcile such reasoning with the holding in people in this case can't be further Morrison. The Necessary and Proper Clause criminally punished, since their alone can never provide a basis for federal terms are up). True, we worry that jurisdiction. It needs another jurisdictional this insane person will commit hook, in this case the Commerce Clause. At another crime, but under the panel's the time of civil commitment, the prisoner reasoning, that might well be a state (or in many cases under 4248, the former crime. So must Congress release prisoner) has no connection to interstate such people unless it gets a state to commerce. He or she may have at the time agree to take custody of them? of the original conviction, but that time has Perhaps that's the right answer, since long since passed. Volokh argues that Congress lacks the enumerated prevention of future sex crimes might be power to detain them-but I'm sufficient, but that rationale was explicitly skeptical that this is so. rejected in Morrison. Even if you believe these particular persons are of a higher risk I think the initial decision to send someone than the hypothetical tort defendants under to a civil facility based upon a finding of VAWA, that risk seems unrelated to a basis insanity is clearly tied to the Commerce for federal jurisdiction. Volokh's argument Clause in the same way a criminal sentence similarly is in conflict with Lopez. Why would be. That jurisdictional hook exists couldn't the Necessary and Proper Clause based upon the original crime. I think the have provided sufficient basis for preventing tougher issue is the decision to release or not guns from being possessed near schools release someone from a civil facility upon since such possession could well increase completion of their treatment. Such cases the risk of gun violence toward children? seem somewhat analogous to the 4248 provisions. However, I think there is a Volokh then takes his argument in a strong argument for the Necessary and different direction (which was not in the Proper Clause in the insanity case because a briefing that I remember) that presents more decision on further treatment or release difficulty than his initial claim: simply must be made-it is "necessary." In contrast, the 4248 commitment is a wholly One way of thinking about it might separate procedure that bears no relation to be to think about the historically the original conviction (as proven by the fact established practice of civil that the government has attempted to use the commitment of people found not procedure for persons not convicted for sex guilty by reason of insanity. If offenses). someone is tried for a federal crime and found insane, he won't be Volokh concludes by stating that this case is imprisoned for the crime-since he's likely headed to the USSC. I'm not so sure. not criminally guilty-but he will be First, there will almost certainly not be a locked up in a mental hospital so circuit split on this issue simply because long as he is thought to be almost all of the cases of this type go
230 through the same district in North Carolina simply by showing that Congress as that is the site of the only appropriate might have had some "rational" federal facility. (Edit: As noted in the reason for believing that one of these comments, there is at least one other facility two conclusions is correct. And by so the possibility of a circuit split is certainly -rational," the Court means merely present. I think it is much more likely now that there is some possibility, even if that the case will go to the USSC). Second, a very remote one, that Congress' since this provision affects so few people, putative reasoning might be sound. I'm not sure it is worth USSC time. Ultimately, I think the USSC is likely to Unfortunately, the Comstock take up a SORNA case instead simply decision dismisses Raich in a brief because there is a much tougher legal issue footnote that ignores most of the (since a jurisdictional limitation exists) and a considerations discussed here. The far larger number of people are affected by Fourth Circuit does rely heavily on the statute (500,000+). Either way, it is the Court's two earlier Commerce about time for the Court to clean up the Clause decisions in United States v. Commerce Clause mess after Raich, so I Lopez and United States v. Morrison, hope they look at one of the AWA but essentially ignores the way in provisions. which Raich greatly undercuts those precedents by virtually confining Update: Illya Somin, also at Volokh them to their facts. I discuss the Conspiracy, has added his thoughts as well. impact of Raich on Lopez and Somin, as exhibited in our previous debates Morrison in my article linked above; about different provisions of the AWA, see also this excellent piece by co- takes a very broad view of "economic conspirator Jonathan Adler. activity" as defined by Raich. Notably, the government did not defend his position in its I continue to think that Somin overestimates briefs in Comstock. In fact, the government the degree to which courts will adopt such banked heavily on the Necessary and Proper an expansive position as to the definition of Clause argument that was well-captured by "economic activity." Even in cases where Volokh's post. From Somin's post: courts have upheld other provisions of the AWA (specifically, SORNA), they have Finally, Raich restored the so-called most often done so under the 2nd Lopez "rational basis" test for judicial prong. It isn't clear how rational basis review of Commerce Clause cases. applies in such cases. The government In plain English, that means that the briefing in Comstock was confused as to government doesn't have to actually which prong they felt justified 4248, so the prove that Section 4248 regulates rational basis discussion was not really "economic activity" or that it is part played out. Hence, the 4th Circuit's of a broader regulatory scheme. dismissal of Raich in a footnote seems Rather, the government can win appropriate.
231 "U.S. Plans to Detain Worst Sex Offenders"
USA Today December 14, 2006
The Justice Department is planning to detain Dennis Doren, a Wisconsin psychologist and an undetermined number of violent sex a consultant to the Bureau of Prisons, says offenders after they have completed their U.S. authorities are reviewing the federal prison sentences as part of a program backgrounds of imprisoned sex offenders to aimed at protecting children, U.S. Attorney determine who might pose a threat if they General Alberto Gonzales says. were released.
The initiative, modeled after controversial -They are looking at lots of cases." "civil commitmenft laws in 18 states that have kept more than 2,000 sex offenders Civil commitment programs for sex locked up after they have served their offenders have passed legal muster on the sentences, will identify federal inmates who state level because courts have viewed them authorities think would pose a threat if they as being similar to laws that allow open- were released without treatment. ended confinements of mentally ill criminals until they are deemed well enough to return It's unclear how officials would decide to society. which offenders should be held past their sentences. The potential impact on the For years, authorities from Virginia to federal prison system could be significant: Washington state have detained sex Of the system's 190,000 inmates, 11,000 are offenders well past their release dates and sex offenders. kept them in state treatment facilities. Typically, civil trials determine whether "We're working with the Bureau of Prisons offenders should stay in custody past their to see how we implement" the plan, sentences, be released or submit to a form of Gonzales said in an interview. "It's an monitoring similar to parole. ongoing project." Since 2003, 41 sex offenders have been Civil commitment laws, which survived a committed to indefinite terms of treatment in U.S. Supreme Court challenge in 1997, have Virginia. In Minnesota, 342 offenders have been one of the most extreme measures been detained since 1994. states have used to clamp down on repeat sex offenders. This year, the federal Of the more than 2,000 sex offenders who government won authority to pursue such a have been committed across the nation, only strategy with the passage of the Adam about 10 percent have been released after Walsh Child Protection and Safety Act. achieving an acceptable level of rehabilitation, Doren says. "Congress has been creative," Gonzales told federal prosecutors during a recent gathering Civil rights advocates have blasted in Washington. "They've given us the right commitment programs, saying they unfairly to pursue (civil commitments) and others extend punishments beyond sentences levied like it, and we are going to." by judges and juries.
232 "This is merely camouflage for lifetime Criminal Defense Lawyers' sex offender sentences for some offenses," says William policy task force. "It's hard to consider this Buckman of the National Association of a rational criminal justice strategy."
233 "New Law Designed to Provide More Protection for Children"
Baton Rouge Advocate August 14, 2006 Sonya Kimbrell
Federal officials say a law recently passed Megan's Law was named after Megan by the Congress and signed by President Kanka, a 7-year-old New Jersey girl who Bush gives teeth to efforts to investigate and was raped and murdered in 1994 by a prosecute crimes involving sexual neighbor with a history of being a child-sex exploitation of children. predator.
"This is just one piece of a larger effort," Louisiana passed a law in 1997 authorizing U.S. Attorney David Dugas said of the a central registry of sex offenders Adam Walsh Child Protection and Safety maintained by the Bureau of Criminal Act, which President George W. Bush Investigation. Information is available signed into law in late July. online by parish and includes photographs of the offenders, the offenders' addresses, The Adam Walsh Act is part of an effort physical descriptions, known aliases and the called Project Safe Childhood, an initiative nature of their crimes. There are more than launched earlier this year by the U.S. 7,000 individuals registered on Louisiana's Department of Justice. The project's mission registry. is to combat technology-related sexual- exploitation crimes against children. The The Adam Walsh Act specifies that initiative is based on Project Safe registration information include name, Neighborhoods, a national program started Social Security number, address, license in 2001 to reduce gun crime. plate information and automobile description, physical description, criminal Both initiatives coordinate federal, state, history, photo, finger and palm prints, and a local and tribal law enforcement as well as DNA sample. prosecutors, community leaders and nonprofit agencies in each federal judicial The lack of a national database has made it district. There are several points in the law easy for sex offenders to move to another that give broader federal authority, but the state and not register in their new location, most significant change is the federal Dugas said. database of sex offenders. The Adam Walsh Act also targets sex Registration requirements vary by state. offenders who use technology such as the Though Megan's Law, a federal law, Internet to entice children or to distribute requires states to release information to the child pornography. public about convicted sex offenders, the law does not require active notification nor "Strangers can get into a home through the does it specify how the information is to be Internet; sexual predators have more access released. to children via the Internet," Dugas said.
234 In August 2005, a California man was Cybercrimes Task Force and Internet indicted on federal charges for luring a 13- Crimes Against Children Task Force. year-old Zachary girl to Texas for sex. They allegedly met in an Internet chat room. "*The cooperation has been good, but this gives statutory power to track these people," "That happened right here. That crime Jenkins said of the new law. couldn't have happened without the Internet," Dugas said. The Adam Walsh Act designates the U.S. Marshals Service as the lead agency to track Already, said Dugas and Baton Rouge U.S. fugitive felons who fail to register when Marshal Carey Jenkins, there have been they move. many coordinated efforts among local, state and federal officials in tracking sex A news release from the U.S. Marshals said offenders. Joining those efforts have been unregistered sex offenders will be a priority local agents with the FBI, the Louisiana for deputy U.S. marshals nationwide.
235 Briscoe v. Virginia
07-11191
Ruling Below: Magruder v. Virginia, 275 Va. 283, 657 S.E.2d 113 (Va. 2008).
Virginia's state statutory scheme provides that a certificate of forensic laboratory analysis may be entered into evidence at a criminal trial without testimony from the technician who prepared the report unless the defendant calls the analyst to testify as an adverse witness. Defendants argue that this procedure violates their Sixth Amendment right of confrontation.
Question Presented: If the state allows the prosecutor to introduce a certificate of forensic laboratory analysis without presenting testimony of the analyst who prepared the certificate, does the state avoid violating the confrontation clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?
Michael Ricardo Magruder V. Commonwealth of Virginia;
Sheldon A. Cypress V. Commonwealth of Virginia;
Mark A. BRISCOE V. Commonwealth of VIRGINIA
Supreme Court of Virginia
Decided February 29, 2008
[Excerpt: some footnotes and citations omitted]
OPINION BY Justice CYNTHIA D. Confrontation Clause of the Sixth KINSER. Amendment. Because the procedure provided in Code § 19.2-187.1 adequately In each of these appeals, the defendant protects a criminal defendant's rights under claims that the admission into evidence, the Confrontation Clause and because the pursuant to Code § 19.2-187, of a certificate defendants in these appeals failed to utilize of analysis in the absence of testimony at that procedure, we conclude that they trial from the person who performed the waived the challenges under the particular analysis and prepared the Confrontation Clause to the admissibility of certificate violated his rights under the the certificates of analysis. We will therefore
236 affirm the judgments of the Court of the City of Chesapeake for possession of Appeals upholding the various convictions cocaine wvith the intent to distribute, haxing at issue. previously committed the offense of distribution or possession with the intent to 1. REILEVANT FACTS AND distribute, in violation of Code § 18.2- PROCEEDINGS 248(C). At a bench trial, the Commonwealth moved to admit the certificate of analysis Although these appeals involve a common into evidence. Cypress objected, arguing dispositive question of law, which we that under the holding in Crawford the review de novo, Torloni v. Commonwealth, certificate fell into a core class of 274 Va. 261, 267 (2007), their facts and testimonial evidence and was therefore procedural histories differ. Therefore, we inadmissible in the absence of testimony will first summarize the relevant facts of from the person who performed the analysis each case and then analyze the dispositive of the seized substance. The circuit court issue that the appeals share. The appeal by overruled the objection, holding that "the Mark A. Briscoe involves one additional scientific results stated in the certificate of issue that we will address separately analysis are not testimonial statements as following the analysis of the dispositive that term is defined or described in issue. Crawford v. Washington."
Cypress did not call the forensic analyst as a witness and presented no evidence. The B. Cypress v. Commonwealth circuit court convicted Cypress of possession of cocaine with the intent to Sheldon A. Cypress was a passenger in an distribute, second or subsequent offense, and automobile being driven by his cousin when sentenced him to imprisonment for 15 years, a trooper with the Virginia State Police with 10 years suspended, and a fine of stopped the vehicle because of its $1,000. improperly tinted windows. The driver consented to a search of the vehicle. During The Court of Appeals denied Cypress' that search, the trooper found, among other appeal in an unpublished per curiam order. things, two plastic bags-one under the Citing its decision in Brooks, the Court of driver's seat and one under the passenger's Appeals stated: "assuming a certificate of seat--each containing a "chunky white analysis constitutes testimonial evidence substance" that the trooper suspected was under Crawford, a defendant's confrontation crack cocaine. Subsequent forensic testing at rights are nonetheless protected by the the Department of Forensic Science revealed procedures provided by Code §§ 19.2-187 that the substance was cocaine, totaling 60.5 and 19.2-187.1." The Court of Appeals, grams. A certificate of analysis reporting however, held that Cypress waived his right those results bore the signature of the to confront the forensic analyst who forensic analyst who conducted the testing prepared the certificate of analysis because and included an attestation that she had he did not utilize the procedure set forth in performed the analysis. Code § 19.2-187.1. For the reasons stated in the January 3, 2007 order, a three-judge Cypress was indicted in the Circuit Court of panel of the Court of Appeals also denied
237 the petition for appeal. Now on appeal to The police submitted the items of suspected this Court, Cypress raises two assignments cocaine to the Department of Criminal oferror: Justice Services, Division of Forensic Science, for testing. In two certificates of 1. The trial court erred by allowing analysis, a forensic analyst reported that the into evidence the certificate of confiscated substances were "solid material" analysis over Defendant's objection cocaine totaling 36.578 grams. The that its introduction violated his certificates also contained the analyst's Sixth Amendment Confrontation signature and attestation that she performed Clause rights as articulated in the analyses and that the certificates Craiiford v. Washington and its accurately reflected the results of those progeny; the trial court erred by analyses. finding Cypress guilty of possession with intent to distribute cocaine Briscoe was indicted in the Circuit Court of where the only evidence that he the City of Alexandria for possession with possessed cocaine came from this the intent to distribute cocaine, in violation drug certificate which should have of Code § 18.2-248(C), unlawful been excluded from evidence[.] transportation of cocaine into the Commonwealth with the intent to distribute, II. The Court of Appeals erred by in violation of Code § 18.2-248.01, and ruling that Defendant waived his conspiracy to distribute cocaine, in violation Confrontation Clause rights by of Code §§ 18.2-248 and 18.2-256. During a declining to subpoena the chemist bench trial, the Commonwealth sought to who prepared the certificate and this admit into evidence the two certificates of ruling impermissibly, and analysis. Briscoe objected, arguing that their unconstitutionally, required admission, without the forensic analyst Defendant to take affirmative steps present to testify, violated his confrontation to safeguard his Confrontation rights under the Sixth Amendment. Relying Clause rights[.] on the decision in Crawford, Briscoe asserted that the certificates were testimonial C. Briscoe v. Commonwealth because they contained solemn declarations or affirmations that the Commonwealth Police officers with the City of Alexandria sought to use in order to establish an Police Department executed a search element of the charged offenses. Briscoe warrant for the apartment of Mark A. also claimed that the procedure provided in Briscoe. During the search, the officers Code § 19.2-187.1 permitting a defendant to seized suspected cocaine scattered about in call a forensic analyst as an adverse witness the apartment's kitchen area, as well as two does not protect his confrontation rights and scales, a razor blade, a 100-gram weight, a actually imposes an unconstitutional box of plastic sandwich bags, and a plate. affirmative step that he must take in order to Many of these items appeared to have assert his Sixth Amendment right of deposits of drug residue on them. In a search confrontation. of Briscoe's person. the police seized a white, rock-like substance wrapped in The circuit court overruled Briscoe's plastic from the pocket of his shorts. objection, holding that the procedure in
238 Code § 19.2-187.1 preserved his right to to confront and cross-examine cross-examine the forensic analyst. In adverse witnesses was not violated response to the circuit court's ruling, Briscoe by the admission of the certificates further argued that the statutory right to call of drug analysis into evidence. the forensic analyst as an adverse witness does not satisfy his constitutional right to II. ANALYSIS confront the Commonwealth's witness and also impermissibly shifts the burden to A. Confrontalion Clause produce evidence to a criminal defendant. The circuit court did not change its ruling. The dispositive issue before us is whether the procedure set forth in Code § 19.2-187.1 Briscoe did not call the forensic analyst to adequately protects a criminal defendant's testify and presented no evidence. The rights under the Confrontation Clause of the circuit court convicted Briscoe of possession Sixth Amendment, and if so, whether with the intent to distribute cocaine and Magruder, Cypress, and Briscoe transportation of cocaine into the (collectively, the defendants) waived their Commonwealth with the intent to distribute. Confrontation Clause challenges to the The court sentenced Briscoe to a total of 20 admissibility of the respective certificates of years of incarceration, with all but 5 years analysis by failing to utilize that procedure. and 8 months suspended. Before resolving that issue, we first turn to the decision of the Supreme Court of the The Court of Appeals denied Briscoe's United States in Crawford v. Washington, appeal in an unpublished per curiam order. since the defendants relied on it in claiming Assuming, without deciding, that the that admission into evidence of the certificates of analysis constituted certificates of analysis violated their "testimonial" evidence under Crawford, the confrontation rights. Prior to that decision, Court of Appeals held that Briscoe's right to the Confrontation Clause had not been confront the forensic analyst was protected construed to bar the admission of an by the procedure provided in Code § 19.2- unavailable witness' hearsay statement 187.1. The court further held that, by failing against a criminal defendant if the statement to follow that statutory procedure, Briscoe bore sufficient "indicia of reliability" either waived his constitutional right to confront by falling within a "firmly rooted hearsay the forensic analyst who prepared the exception" or by "a showing of certificates. Briscoe sought review of the particularized guarantees of Court of Appeals per curiam order, and a trustworthiness." Ohio v. Roberts, 448 U.S. three-judge panel denied that petition for 56, 66 (1980). In Crawford, the Supreme appeal for the reasons stated in the January Court rejected the Roberts analysis and held 18, 2007 order. that "[w]here testimonial evidence is at issue, . . . the Sixth Amendment demands On appeal to this Court, Briscoe raises this what the common law required: assignment of error with regard to the unavailability [of the witness] and a prior certificates of analysis: opportunity for cross-examination." 541 U.S. at 68. I. The Court of Appeals erred in upholding the trial court's finding Now, under Crawford, the question whether that Defendant's constitutional right admission of a hearsay statement against a
239 criminal defendant violates the The accused in any hearing or trial in Confrontation Clause turns on whether the which a certificate of analysis is statement is "testimonial" in nature. The admitted into evidence pursuant to Supreme Court declined to provide a § 19.2-187 or § 19.2-187.01 shall comprehensive definition of the term have the right to call the person "testimonial" in Crawfbrd, but it did state performing such analysis or that the term "applies at a minimum to prior examination or involved in the chain testimony at a preliminary hearing, before a of custody as a witness therein, and grand jury, or at a former trial; and to police examine him in the same manner as interrogations." 541 U.S. at 68. if he had been called as an adverse witness. Such witness shall be In these appeals, it is not necessary to decide summoned and appear at the cost of whether a certificate of analysis is the Commonwealth. Code § 19.2- "testimonial." Even if we assume the 187.1. certificates in the cases at bar are testimonial, the decision in Crawford did not In each of the cases before us, the Court of address the issues before us, i.e., whether a Appeals relied on its decision in Brooks to prescribed statutory demand procedure hold that the defendants waived their right to adequately protects a criminal defendant's confront the forensic analysts who prepared rights under the Confrontation Clause and the certificates of analysis admitted into whether failure to follow that procedure evidence at their respective trials because waives the right to confront a particular they failed to utilize the statutory procedure witness. available to them. In Brooks, the accused objected to the introduction of certificates of We now begin our analysis by examining analysis into evidence on the basis that "the the two relevant statutes, Code §§ 19.2-187 Commonwealth's failure to call the forensic and 19.2-187.1. The first statute permits a scientist who tested the substances denied certificate of analysis, when "duly attested" him his constitutional right to confrontation by the "person performing an analysis or under Crawford" 49 Va. App. at 158. The examination" in certain laboratories, to be Court of Appeals rejected that argument, admitted into evidence "[i]n any hearing or holding that "Code § 19.2-187.1 sets out a trial of any criminal offense . . . as evidence reasonable procedure to be followed in order of the facts therein stated and the results of for a defendant to exercise his right to the analysis or examination referred to confront a particular limited class of therein." Code § 19.2-187. The only proviso scientific witnesses at trial and that a is the requirement that the certificate of defendant's failure to follow this procedure analysis be "filed with the clerk of the court amounts to a waiver of the constitutional hearing the case at least seven days prior to right to confront such witnesses." Id. at 164- the hearing or trial." Id The second statute, 65. Code § 19.2-187.1, establishes a procedure that presents an accused with the Noting that an accused can voluntarily opportunity to question the person waive the right of confrontation and that performing the analysis or examination as an reasonable requirements may be attached to adverse witness. That statute states: the assertion of federal constitutional rights,
240 the Court of Appeals reasoned that, in light statute does not provide any notice that of the decision in Crauiford,**Code §§ 19.2- failure to utilize its provisions will 187 and 19.2-187.1[ ] are merely a request automatically waive the right to confront the to the defendant to stipulate to the forensic analyst; (3) the statute does not admissibility of the contents of any properly insure that a waiver of the Sixth Amendment filed certificates of analysis" and that when right to confront the forensic analyst is an accused "waits until trial to assert his knowing, voluntary, and intelligent; (4) the right to cross-examine the analyst who statute by its terms addresses the order of prepared a particular certificate, he accepts proof and impermissibly requires an accused the request to stipulate and waives his right to present evidence in order to preserve to confront that witness." Id at 167. confrontation rights; and (5) the statute Continuing, the Court of Appeals explained allows an accused to cross-examine the that, if an accused does not wish to accept forensic analyst only after a certificate of the requested stipulation, "Code § 19.2- analysis has already been admitted into 187.1 provides the mechanism by which he evidence. may reject the request and have the analyst summoned to appear at trial at the cost of The Confrontation Clause of the Sixth the Commonwealth in order to be subject to Amendment to the Constitution of the cross-examination." Brooks, 49 Va.App. at United States provides that, "[i]n all 167-68. criminal prosecutions, the accused shall enjoy the right ... to be confronted with the Finally, the Court of Appeals held that the witnesses against him." U.S. Const. amend. argument claiming the procedure in Code VI. This guarantee is enforced against the § 19.2-187.1 unconstitutionally places the states through the Fourteenth Amendment. burden on an accused to present evidence in The Confrontation Clause secures the order to exercise his confrontation rights "literal right to 'confront' the witness at the was not before it because the defendant did time of trial." California v'. Green, 399 U.S. not summon the forensic analyst or ask the 149, 157 (1970). "The substance of the Commonwealth to do so. Thus, according to constitutional protection is . . seeing the the Court of Appeals, the trial court never witness face to face, and . . . subjecting him had the occasion to rule on any challenge to the ordeal of a cross-examination." regarding the order of proof. Mattox v. United States, 156 U.S. 237, 244.
The defendants here assert that Brooks was The right to confront "(1) insures that the wrongly decided and argue that they did not witness will give his statements under oath . waive their Sixth Amendment right to (2) forces the witness to submit to cross- confront the forensic analysts by failing to examination .. . ; [and] (3) permits the jury call those persons as adverse witnesses that is to decide the defendant's fate to under the provisions of Code § 19.2-187.1. observe the demeanor of the witness in According to the defendants, the procedure making his statement." Green, 399 U.S. at provided in Code § 19.2-187.1 does not 158. "The combined effect of these elements adequately protect the Sixth Amendment of confrontation-physical presence, oath, right of confrontation for several reasons: cross-examination, and observation of (1) the statute requires an accused to take demeanor by the trier of fact-serves the impermissible affirmative steps to secure the purposes of the Confrontation Clause by right to confront the forensic analyst; (2) the ensuring that evidence admitted against an
241 accused is reliable and subject to the action by the defendant is necessary to make rigorous adversarial testing that is the norm them active in his or her case," Tajlor v. of Anglo-American criminal proceedings." Illinois, 484 U.S. 400, 410 (1988), "the right khnryland v. Craig, 497 U.S. 836, 846 to confront and to cross-examine is not (1990). absolute and may, in appropriate cases, bow to accommodate other legitimate interests in With this understanding of the the criminal trial process." Chambers v. Confrontation Clause, the question whether Mississippi, 410 U.S. 284, 295 (1973). For the procedure provided in Code § 19.2-187.1 example, " 'trial judges retain wide latitude' adequately protects a criminal defendant's to limit reasonably a criminal defendant's right to confront the forensic analyst turns right to cross-examine a witness 'based on on whether the statute supplies the concerns about, among other things, "elements of confrontation-physical harassment, prejudice, confusion of the presence, oath, cross-examination, and issues, the witness' safety, or interrogation observation of demeanor by the trier of that is repetitive or only marginally fact." Craig, 497 U.S. at 846. We conclude relevant.' " Michigan v. Lucas, 500 U.S. that it does. Pursuant to Code § 19.2-187.1, 145, 149 (1991). Even after Crawford, the the defendants could have insured the Confrontation Clause does not bar the physical presence of the forensic analysts at admission of testimonial hearsay statements trial by issuing summons for their if the declarant is unavailable, so long as the appearance at the Commonwealth's cost, or accused had a prior opportunity to cross- asking the trial court or Commonwealth to examine the witness. 541 U.S. at 68. do so. At trial, the defendants could have called the forensic analysts as witnesses, Moreover, "[a] state procedural rule which placed them under oath, and questioned forbids the raising of federal questions at them as adverse witnesses, meaning the late stages in the case, or by any other than a defendants could have cross-examined them. prescribed method, has been recognized as a The trier of fact would then have had the valid exercise of state power." Williams v. opportunity to observe the demeanor of the Georgia, 349 U.S. 375, 382-83 (1955). witnesses. In short, if the defendants had Virginia has adopted several provisions that utilized the procedure provided in Code require criminal defendants to take certain § 19.2-187.1, they would have had the procedural steps in order to exercise or opportunity to cross-examine the forensic vindicate a myriad of constitutional rights. analysts. Contrary to the defendants' Pursuant to Code § 19.2-266.2, an accused position, the Confrontation Clause does not must file a written motion to suppress insure that opportunity before a certificate of evidence allegedly obtained in violation of analysis is admitted into evidence. the Fourth, Fifth, or Sixth Amendments no later that seven days before trial. Failure to Nevertheless, the defendants argue that this follow this statutory requirement results in a statutory procedure impermissibly burdens waiver of an accused's constitutional the exercise of their right under the challenge to the admissibility of the Confrontation Clause by requiring them to evidence. Schmitt v. Commonwealth, 262 take certain affirmative steps in order to Va. 127, 145-46 (2001). Similarly, the assert that right. While "[m]ost . . . Sixth provisions of Code § 18.2-67.7 impose Amendment rights arise automatically on notice-and-hearing requirements in order to the initiation of the adversary process and no introduce evidence concerning a victim's
242 past sexual conduct with a person other than precluded from utilizing the procedure the accused. Such requirements are not provided in Code § 19.2-187.1 or that the unconstitutional but "serve[ ] legitimate procedure was unduly burdensome. state interests in protecting against surprise, harassment, and undue delay." Lucas, 500 The defendants do, however, claim that the U.S. at 152-53. statutory procedure. by its terms, shifts the burden of producing evidence and requires a An accused must also. upon request of the criminal defendant to call the forensic Commonwealth, disclose whether he intends analyst in order to exercise his right to to introduce evidence to establish an alibi. confront that witness. This argument is not Rule 3A:11(c)(2). In Williams v. Florida, cognizable under the Confrontation Clause. 399 U.S. 78 (1970), the Supreme Court held Instead, it raises due process concerns that that a similar alibi-notice rule did not violate are not properly before us in these appeals. the Fifth Amendment. The Court observed Because the defendants did not avail that the rule, "[a]t most . . . only compelled themselves of the opportunity to require the [the defendant] to accelerate the timing of presence of a particular forensic analyst at his disclosure, forcing him to divulge at an trial, they were never in the position of earlier date information that the [defendant] being forced, over their objection, to call a from the beginning planned to divulge at forensic analyst as a witness. In other words, trial." Id. at 85, 90. no defendant said to the respective circuit court, "the forensic analyst is here to testify "The test is whether the defendant has had 'a but the Commonwealth must first call the reasonable opportunity to have the issue as witness." Like the situation in Brooks, "the to the claimed right heard and determined by trial court never had occasion to address the the state court.' " Michel v. Louisiana, 350 proper order of proof." 49 Va.App. at 168. U.S. 91, 93. The provisions of Code § 19.2- 187.1 pass this test. We agree with the Finally, it is undisputed that a criminal holding of the Court of Appeals in Brooks: defendant can waive the right to "Code § 19.2-187.1 sets out a reasonable confrontation. The decision in Crawford did procedure to be followed in order for a not alter that fact. Hinojos-Mendoza, 169 defendant to exercise his right to confront a P.3d at 668. Indeed, a criminal defendant particular limited class of scientific can waive a panoply of constitutional rights. witnesses at trial." 49 Va.App. at 164. The defendants, however, contend that any Legislatures may pass laws waiver of confrontation rights cannot be regulating, within reasonable limits, presumed from a silent record and that, the mode in which rights secured to given the absence of any notice of a waiver the subject by bills of right and in Code § 19.2-187.1, they did not constitutions shall be enjoyed, and if knowingly, intelligently, and voluntarily the subject neglects to comply with waive their Sixth Amendment right to these regulations he thereby waives confront the forensic analysts. This Court, his constitutional privileges. however, has never held that the record, in all circumstances, must affirmatively reveal State v. Berg, 237 Iowa 356 (Iowa 1946). that a criminal defendant personally waived Furthermore, nothing in the records before his right to confrontation. In Bilokur v. us suggest that any defendant was somehow Commonwealth, 221 Va. 467, 474 (1980),
243 we concluded that a defendant's "silence given effect as to what arguments to was tantamount to assent" that an pursue, what evidentiary objections incriminating extrajudicial statement would to raise, and what agreements to be admitted by stipulation. Id We held "that conclude regarding the admission of the defendant, acting through counsel, evidence. Absent a demonstration of waived his right to invoke the constitutional ineffectiveness, counsel's word on guarantee of confrontation." Id. such matters is the last. Id. at 114-15. We recognize that [w]aiver is ordinarily an intentional relinquishment or abandonment The provisions of Code §§ 19.2-187 and of a known right or privilege." Allen v. 19.2-187.1 adequately inform a criminal Commoni'ealth, 252 Va. 105, 111 (1996). defendant of the consequences of the failure "What suffices for waiver depends on the to exercise the right to have a forensic nature of the right at issue." New York v. analyst present at trial for cross- Hill, 528 U.S. 110, 114 (2000). As the examination. Pursuant to Code § 19.2-187, a Supreme Court explained: "duly attested" certificate of analysis that has been timely filed with the appropriate "Whether the defendant must clerk of court is "admissible in evidence as participate personally in the waiver; evidence of the facts therein stated and the whether certain procedures are results of the analysis or examination required for waiver; and whether the referred to therein." The provisions of Code defendant's choice must be § 19.2-187.1 then inform a criminal particularly informed or voluntary, defendant about what steps to take in order all depend on the right at stake." to secure the physical presence of the United States v. Olano, 507 U.S. forensic analyst and subject that person to an 725, 733 (1993). For certain oath, cross-examination, and a credibility fundamental rights, the defendant determination by the trier of fact-the must personally make an informed elements of confrontation. Once the forensic waiver. For other rights, however, analyst appears at trial for cross- waiver may be effected by action of examination, any Confrontation Clause counsel. "Although there are basic problem disappears. rights that the attorney cannot waive without the fully informed and Based on the provisions of Code §§ 19.2- publicly acknowledged consent of 187 and 19.2-187.1, no criminal defendant the client, the lawyer has-and must can seriously contend that he is not on notice have-full authority to manage the that a certificate of analysis will be admitted conduct of the trial." Taylor v. into evidence without testimony from the Illinois, 484 U.S. 400 (1988). As to person who performed the analysis unless he many decisions pertaining to the utilizes the procedure provided in Code conduct of the trial, the defendant is § 19.2-187.1. Failure to use the statutory "deemed bound by the acts of his procedure obviously waives the opportunity lawyer-agent and is considered to to confront the forensic analyst. have 'notice of all facts, notice of Additionally, "everyone is conclusively which can be charged upon the presumed to know the law-that is, he is attorney.' " Link v. Wabash R. Co., estopped from denying such knowledge." 370 U.S. 626, 634 (1962). Thus, King v. Empire Collieries Co., 148 Va. 585, decisions by counsel are generally 590 (1927). Thus, we reject not only the
244 defendants' contention that the statutes need not deny a defendant the opportunity to to contain an explicit notice outlining the cross-examine the technician, but simply consequences of failing to utilize the requires that the defendant decide prior to procedure set forth in Code § 19.2-187.1, trial whether he will conduct a cross- but also the assertion that their waiver of examination. The statute provides the confrontation rights was not voluntary, opportunity for confrontation-only the intelligent, and knowing. Confrontation timing of the defendant's decision is Clause rights are waived every day in this changed." Id at 668. Commonwealth when a criminal defendant's attorney chooses not to object to the The court further noted that when "a admission of hearsay evidence or stipulates defendant chooses not to take advantage of to the admission of evidence. We have never the opportunity to cross-examine a witness, required, nor should we, that the record the defendant has not been denied his affirmatively reflect a defendant's knowing, constitutional right to confrontation." Id. voluntary, and intelligent agreement to such Thus, the court held that, "where a waivers. defendant . . . is represented by counsel, the failure to comply with the statutory Thus, we hold that the procedure in Code prerequisites . . . waives the defendant's § 19.2-187.1 adequately safeguards a right to confront the witness just as the criminal defendant's rights under the decision to forgo cross-examination at trial Confrontation Clause and that the would waive that right." Id. at 670. defendants' failure in these cases to utilize that procedure waived their right to be We recognize that some courts have reached confronted with the forensic analysts, i.e., to contrary conclusions, but we are not enjoy the elements of confrontation. Other persuaded by their rationales. courts have reached similar conclusions. For example, in Hinojos-Mendoza, the court Therefore, we hold that the Court of Appeals addressed a Colorado statute that makes did not err in affirming the judgments of the "[a]ny report . . . of the criminalistics circuit courts admitting into evidence the laboratory" admissible into evidence "'in respective certificates of analysis at issue in the same manner and with the same force these appeals. and effect as if the employee or technician . . . had testified in person." 169 P.3d at 665. The court noted that pursuant to the * * * statute, "[a]ny party may request that such employee or technician testify in person at a criminal trial on behalf of the state . . . by III. CONCLUSION notifying the witness and other party at least ten days before the date of such criminal For these reasons, we will affirm the trial." Id. Failure to make a timely request judgment of the Court of Appeals in each of was held to amount to a waiver of the right these appeals. to confront the technician. In concluding that the statute does not run afoul of the Confrontation Clause, the court explained Record No. 070762 - AFFIRMED. that the statutory procedure "for ensuring the Record No. 070815 AFFIRMED. presence of the lab technician at trial does Record No. 070817 AFFIRMED.
245 DISSENT In Crawford, the Supreme Court held that the Sixth Amendment forbids the admission JUSTICE KEENAN, with whom CHIEF in a criminal trial of "testimonial" hearsay JUSTICE HASSELL and JUSTICE statements made against an accused by a KOONTZ join, dissenting. witness who does not testify at the trial, unless the witness is unavailable or the Today the majority holds that a defendant's defendant had a prior opportunity to cross- failure to exercise a statutory right under examine that witness. At the defendant's Code § 19.2-187.1 results in the forfeiture of criminal trial in Crawford, the trial court his Sixth Amendment right "to be admitted in evidence a tape-recorded confronted with the witnesses against him." statement that the defendant's wife made to In my view, this analysis confuses the police officers during a police investigation waiver of a statutory right with the waiver of of the crime for which the defendant was a constitutional right. Because the charged. The Supreme Court held that the certificates of analysis at issue were defendant's confrontation rights were "testimonial" hearsay, within the meaning of violated by admission of his wife's tape- Davis v. Washington, 547 U.S. 813 (2006), recorded statement because the statement and Crawford v. Washington, 541 U.S. 36 was "testimonial" in nature and the wife did (2004), their admission into evidence under not testify at trial. Although the Supreme Code § 19.2-187 in the prosecution's cases Court in Crawford declined to provide a in the absence of supporting testimony from comprehensive definition of the term certificates' authors, violated the "testimonial," the Court indicated that some defendants' Confrontation Clause rights. statements would always be categorized as Thus, I disagree with the majority's holding "testimonial," including ex parte testimony that Code § 19.2-187.1 preserves a given at a preliminary hearing and defendant's Confrontation Clause rights, or statements taken by police officers during that a defendant's failure to exercise rights the course of a police interrogation. accorded under that statute results in the surrender of Confrontation Clause rights. In Davis, the Supreme Court revisited the definition of "testimonial" hearsay. The I. "TESTIMONIAL" CHARACTER OF Court held that: EVIDENCE Statements are nontestimonial when I would hold that the certificates of analysis made in the course of police are "testimonial" hearsay based on the interrogation under circumstances Supreme Court's analysis of that term in objectively indicating that the Davis and Crawford In particular, the primary purpose of the interrogation analysis in Davis instructs us to examine the is to enable police assistance to meet purpose for which a non-testifying witness an ongoing emergency. They are initially made the statements that were later testimonial when the circumstances introduced in evidence at a criminal trial, objectively indicate that there is no and to inquire whether the person making such ongoing emergency, and that the hearsay statements was "testifying" and the primary purpose of the "acting as a witness." See Davis, 547 U.S. at interrogation is to establish or prove 828. past events potentially relevant to
246 later criminal prosecution. 547 U.S. because the certificate describes the at 822. scientist's procedures and conclusions concerning the material submitted for In Davis, the Court considered two separate analysis. The holding in Davis further situations in which the statements of a reinforces the "testimonial" nature of a witness, who did not testify at trial, were certificate of analysis, because the certificate admitted in evidence concerning a is created "to establish or prove past events defendant's illegal conduct. In the first potentially relevant to later criminal situation, the Court held that statements prosecution." See Davis, 547 U.S. at 822. A made to law enforcement personnel during a forensic scientist prepares the certificates in "911" emergency telephone call were not these cases for the purpose of proving a "testimonial" in nature because the purpose critical element of a criminal offense, of the statements was to elicit assistance namely, that the chemical sample submitted during an ongoing emergency. The Court for analysis is an illegal substance. In the reasoned that the speaker was not "acting as parlance of Davis, the certificates of analysis a witness" or "testifying" because, unlike a in the present cases functioned as "an witness, she was describing events "as they obvious substitute for live testimony," were actually happening, rather than because the Commonwealth introduced describ[ing] past events." Id. at 827-28. them in lieu of the scientists' testimony, and otherwise would have been required to The second situation in Davis concerned establish the illegal nature of the substances statements recorded in an affidavit obtained by presenting actual testimony from the by police following a domestic dispute. The scientists themselves. Court concluded that these statements were "testimonial" in character because the Applying additional rationale employed by declarant's purpose in making the the Supreme Court in Davis, I also observe statements was not to describe an ongoing that the forensic scientists' analyses were emergency situation, but to supply not performed under circumstances of an information in a police investigation about emergency or contemporaneously with the past criminal conduct. The Court concluded commission of the crimes, but were that the statements were "inherently accomplished well after the criminal events testimonial" because they were "an obvious had transpired. In fact, the scientists substitute for live testimony," and they did prepared the certificates in response to "precisely what a witness does on direct police investigations. examination." 547 US. at 829-30. Moreover, the certificates fall into the Based on the holdings in Davis and category of "formalized testimonial Crawford, I would conclude that a materials, such as affidavits," which the certificate of drug analysis, in function, "acts Supreme Court in Crawford included in its as a witness" against an accused. Much like examples of the types of statements that any other expert witness, the scientist would be considered testimonial. The preparing a certificate of analysis does so certificates contain a "solemn declaration or based on a factual foundation supplied from affirmation" by the forensic scientists who past events. Thus, the certificate admitted prepared them, in conformance with the under Code § 19.2-187.1 functions in the requirement of Code § 19.2-187 that such same manner as expert witness testimony certificates be "duly attested" before being
247 admitted in evidence. See ('raiiAgrd 541 the rigorous adversarial testing that is the U.S. at 51. norm of Anglo-American criminal proceedings." State v. Craig, 497 U.S. 836, Based on the holdings in Dav'is and 846 (1990). Craulord, I would conclude that the certificates of analysis admitted in evidence This Court consistently has recognized that in the present cases served to "bear in criminal trials, the Confrontation Clause testimony" against the defendants and, preserves for a defendant the right to cross- therefore, were "testimonial" evidence examine prosecution witnesses. The within the meaning of those holdings. I opportunity for effective cross-examination would further conclude that the defendants of prosecution witnesses, however, in these cases had a Sixth Amendment right presupposes that a defendant has an to be confronted with the testimony of the opportunity to cross-examine those forensic scientists who prepared the witnesses during the prosecution's case. certificates, because the Commonwealth Thus, preservation of the Sixth Amendment failed to demonstrate that the scientists were confrontation right requires that the unavailable or that the defendants had a prosecution call a defendant's accusers as prior opportunity to cross-examine them. witnesses to actively confront the defendant.
II. VIOLATION OF CONFRONTATION Code § 19.2-187 forces a defendant to CLAUSE RIGHTS relinquish his right "to be confronted"' in the prosecution's case in chief, because the I would further hold that the defendants' statute permits a timely-filed certificate of Confrontation Clause rights were violated analysis to be admitted automatically in the when the certificates of analysis were absence of testimony from the scientist who admitted in evidence under Code § 19.2- prepared the certificate. That statute allows 187. The Confrontation Clause is worded in admission of the certificate irrespective the passive, rather than in the active, voice. whether a defendant chooses to call the Thus, under that constitutional guarantee, an forensic scientist to testify in his own case accused enjoys the right "to be confronted"' under the provisions of Code § 19.2-187.1. by the prosecution with the witnesses Thus, I would conclude that a Confrontation against him. Clause violation occurred in the present cases because the defendants were not able As the majority correctly observes, the Sixth to subject the contents of the certificates of Amendment confrontation right has long analysis to adversarial scrutiny before the been held to include a defendant's prosecution concluded its cases in chief. "opportunity for effective cross- examination." This opportunity is "one of 1II. WAIVER INAPPLICABLE the safe-guards essential to a fair trial," and is "a right long deemed so essential for the The provisions of Code § 19.2-187.1 did not due protection of life and liberty that it is remedy this Confrontation Clause violation. guarded against legislative and judicial That section provides a criminal defendant action by provisions in the Constitution." the statutory right to call the forensic Pointer, 380 U.S. at 404. The Confrontation scientist who prepared a certificate of Clause "ensure[s] that evidence admitted analysis as a witness in the defendant's own against an accused is reliable and subject to case. Thus, Code § 19.2-187.1 merely
248 provides a criminal defendant the require a defendant to take an affirmative opportunity to seek evidence in his favor by action to preserve this right. While a questioning the scientist \\ho prepared the defendant's failure to act under Code § 19.2- certificate that has already been admitted in 187.1 may constitute a waiver of his evidence against him. statutory right under that Code section to call the forensic scientist in the defendant's The majority asserts, however, that the case, the fact that he chooses not to exercise present cases are analogous to other this statutory right is insufficient to establish situations in which we have held that a waiver of his separate constitutional criminal defendants are required to take confrontation right that is guaranteed to him "certain procedural steps" in order to throughout his criminal trial. A defendant preserve their constitutional rights. In my cannot waive a right that he has already been opinion, this argument misconstrues the very denied. The extent of a defendant's waiver nature of Code § 19.2-187.1. No "procedural of a right under Code § 19.2-187.1 step" under Code § 19.2-187.1 will preserve necessarily is limited to rights he possesses a defendant's Sixth Amendment under the statute. Thus, the defendants in confrontation right, because that section these cases could not have waived under merely establishes a separate, statutory right Code § 19.2-187.1 rights that had already for a defendant to call the forensic scientist been denied by operation of Code § 19.2- as a witness in a defendant's own case. 187. Thus, Code § 19.2-187.1 does not impact a defendant's Sixth Amendment right "to be Even if the majority were correct, however, confronted" by the witnesses against him, that Code § 19.2-187.1 offers a defendant because the statute cannot revive a the protection of a confrontation right, the defendant's right to be confronted by the record does not support a conclusion that prosecution with the scientist's evidence. these defendants waived that right. A waiver of a constitutional right requires a clear The majority seeks to avoid this dilemma by showing that there was an "intentional stating that the defendants failed to raise a relinquishment or abandonment of a known due process challenge alleging that Code right or privilege." Barber, 390 U.S. at 725 § 19.2-187.1 impermissibly shifted the (1996). The record fails to establish a burden of producing evidence to the "knowing and intelligent" waiver under defendants, which is a claim not cognizable Code § 19.2-187.1 because that Code under the Sixth Amendment. This argument, section does not provide a defendant with however, is unavailing because the majority notice that if he fails to avail himself of the confuses the issue whether a defendant may statute's provisions, he waives his Sixth be required to produce evidence in a Amendment right. This Court should not criminal trial with the issue whether the presume a defendant's waiver of his statutory mechanism at issue in this case, Confrontation Clause rights from a silent which requires a defendant to produce record. evidence, is capable of preserving his Confrontation Clause rights. I would hold that a constitutional application of Code § 19.2-187 requires that if the A defendant's constitutional right to be prosecution wishes to introduce in evidence confronted with the witnesses against him a certificate of analysis contemplated by arises automatically, and the state may not Code § 19.2-187, the prosecution must
249 obtain from a defendant a stipulation affirmative waivers or stipulations in the regarding the admissibility of the contents of cases before us, and the forensic scientists that certificate, or an affirmative waiver by a did not testify regarding the contents of the defendant of his Confrontation Clause rights certificates in the prosecution's cases in regarding the certificate. In the absence of chief, I would hold that the certificates of such a stipulation or affirmative waiver, the analysis in these cases were admitted in Sixth Amendment requires that the violation of the defendants' Confrontation prosecution call in its case in chief the Clause rights. Therefore, I would reverse the forensic scientist who prepared the defendants' convictions and remand the certificate to present this "testimonial" cases for new trials, if the Commonwealth evidence. Because there were no such be so advised.
250 "Analysis: Is Melendez-Diaz Already Endangered?"
The Scoius Blog June 29, 2009 Lyle Deniston
A fascinating possibility emerged Monday little else to suggest why the Court afternoon as the Supreme Court closed its announced Monday that, next Term, it will Term: Judge Sonia Sotomayor, if confirmed review the case of Briscoe, et al., v. Virginia as a Justice, may hold the deciding vote on (07-11191). Here is the question raised in the future of a controversial ruling that the the Briscoe petition, filed in May of last present Court issued just last Thursday: the year by University of Michigan law ruling in Melendez-Diaz v. Massachusetts professor Richard D. Friedman: (07-591). "If a state allows a prosecutor to introduce a A strongly worded dissent in that case made certificate of a forensic laboratory analysis, it clear that four Justices would not soon be without presenting the testimony of the reconciled to that decision-a ruling that analyst who prepared the certificate, does they argued would result in "a distortion of the state avoid violating the Confrontation the criminal justice system." Clause of the Sixth Amendment by providing that the accused has a right to call The ruling, made under the Constitution's the analyst as his own witness?" Confrontation Clause, requires the prosecution, if it plans to present a lab report If one reads the majority opinion in as evidence in a criminal trial, to make the Melendez-Diaz, the Court appears to have analyst who prepared it available for on- decided that issue already: it is not enough, demand cross-examination by defense the Court said last week, to allow the counsel. The decision came on a 5-4 vote. accused to call the lab technician as a defense witness; the prosecution must have If it were possible to pick up a fifth vote, the technician available for cross- could the dissenters from that case then lead examination, if the accused wishes to invoke the Court to reconsider-or least narrow that right under the Sixth Amendment. considerably-the decision in Melendez- Diaz? Perhaps; one of the five in the The Court clearly had been holding the majority was Justice David H. Souter, who Briscoe case until it decided Melendez-Diaz, retired on Monday. There is, it would seem, and then, according to the electronic docket, at least a chance that his designated scheduled it for consideration at the final successor, Judge Sotomayor, would not be Conference Monday, in the wake of prepared to embrace Melendez-Diaz, at least Melendez-Diaz. If normal procedures had without some restriction on its scope; she been followed, Justice Antonin Scalia, the has a record on criminal law issues that author of the Melendez-Diaz, would have appears to be somewhat more prosecution- prepared a memo on what to do with oriented than Justice Souter's has been. Briscoe-ordinarily, recommending that it simply be denied, or that it be vacated and This is speculation, of course, but there is sent back for reconsideration. Indeed, the
251 reconsideration alternative was ordered by procedure, he surrenders his right to the Court in five other cases that the Court confront and cross-examine the report's had been holding for Melendez-Diaz. author. The petition wxas granted in the second Instead, the Court-or at least four round of the Court's orders Monday, Justices-voted to grant review in Briscoe, disposing of remaining cases before the and set the Court on the path to full review summer recess began. next Term. It would be no surprise whatsoever if the state of Virginia-or some It is a rare thing, of course, for the Court to of the amici in support-would use Justice reconsider a decision so soon after it has Anthony M. Kennedy's rhetoric from the been decided. But it is not unprecedented, dissent last Thursday to assail Melendez- and the rhetorical and logical assertiveness Diaz, and to suggest that, if it is not to be of the Melendez-Diaz dissent certainly raises overruled outright, it should be made easier the chance that the decision's life as a to get around-as in requiring the accused's precedent, at least as it fully emerged, may lawyer to summon the technician to the be shortened. stand as his own witness. Along with Justices Scalia and Souter, the The Virginia law that is at issue in the case majority in Melendez-Diaz included Justices requires an accused to call as a defense Ruth Bader Ginsburg, John Paul Stevens witness the technician who prepared a lab and Clarence Thomas. Joining Kennedy in report that is being used as evidence dissent were Chief Justice John G. Roberts, supporting guilt. The state Supreme Court Jr., and Justices Samuel A. Alito, Jr., and ruled that, if an accused does not follow that Stephen G. Breyer.
252 "U.S. Supreme Court to Hear Virginia Confrontation Case"
l irginiaLanyer 's W1'eekly June 29, 2009 Alan Cooper
The remand of the Supreme Court of SCOTUSblog.com that the dissenters in Virginia's ruling in Magruder v. Melendez-Diaz may be setting up a quick Commonwealth appeared to be the most reversal of the case. It was decided 5-4, and likely result of the U.S. Supreme Court's Justice David Souter, one of the five, is ruling on Thursday on the application of the leaving the court. His likely successor, Confrontation Clause to lab reports. Judge Sonia Sotomayor, could side with the justice who dissented in the Massachusetts The U.S. Supreme Court said, in essence, case, Denniston says. that an affidavit by a lab technician is no substitute for a live technician in court but The alliance to rewrite the court's described a constitutionally acceptable Confrontation Clause jurisprudence differs procedure for presenting the testimony by from the high court's predictable division. affidavit unless the defense insists on a Three members usually considered part of personal appearance. the court's liberal wing-Souter, John Paul Stevens and Ruth Bader Ginsburg-joined At first glance, Virginia's system appeared conservatives Antonin Scalia and Clarence to be short of the standard set by the court. Thomas, while the liberal Stephen G. Breyer sided with conservatives John G. Roberts But on the last day of its term today, the Jr., Samuel A. Alito Jr. and Anthony M. high court agreed to hear Magruder, now Kennedy in dissent. styled Briscoe v. Virginia, Record No. 07- 11191, because Magruder, the first of three The Virginia attorney general's office has a defendants in separate cases decided by the less conspiratorial view of the situation. "In Virginia Supreme Court, did not appeal. Melendez-Diaz, the Court signaled its approval of 'notice-and-demand' statutes. The grant of certiorari was especially The next logical step in the Court's surprising because the U.S. Supreme Court jurisprudence is to decide which 'notice- remanded cases to courts in Ohio and and-demand' statutes are permissible, and California for consideration in light of the which are not. We did not expect a remand Thursday opinion, Melendez-Diaz v. in light of Melendez-Diaz, because the Massachusetts. Supreme Court of Virginia expressly declined to hold whether certificates of Veteran Supreme Court observer and analyst analysis were testimonial-the core holding Lyle Denniston speculates on of Melendez-Diaz."
253 "Requiring Accused to Demand Presence of Analyst Doesn't Deny Confrontation Right"
US Law Wieek March 25, 2008
A Virginia statute that authorizes the defendants did not call the analysts to the admission of laboratory analysis certificates stand. The trial judges rejected the in criminal trials without the supporting defendants' confrontation clause objections testimony of the preparer unless the accused and admitted the certificates. The defendants requests that the analyst be called to testify all were convicted and the state intermediate at state expense does not violate defendants' appellate court upheld the convictions. Sixth Amendment right of confrontation, the Virginia Supreme Court held Feb. 29 Waiver of Confrontation
The court found no constitutional problem The state Supreme Court, in an opinion by with requiring defendants affirmatively to Justice Cynthia D. Kinser, affirmed, ruling ask for an analyst's presence or with that the scheme for admitting the analysis inferring a waiver from their failure to do so. certificates does not run afoul of Crawford and that the defendants' failure to invoke the Craiford v. Washington established that statutory protections waived their out-of-court testimonial statements by a confrontation rights. person who does not testify may be admitted only if the declarant is unavailable and the At the outset, the court noted that Crawford defendant has had a prior opportunity to did not address whether the right of cross-examine him or her. confrontation can be waived. Citing with approval the lower appellate court's decision Under Va. Code Ann. § 19.2-187, a in Brooks v. Commonwealth, it concluded certificate containing the findings of lab both that the right can be voluntarily waived analysis of forensic evidence is admissible at and that reasonable requirements may be trial if the person who performed the placed on defendants' exercise of it. The analysis has duly attested to it. Subsection court decided that it does not place an 187.1 provides that, when such a certificate unreasonable burden on the defense to is admitted, the accused 'shall have the right require it simply to call an analyst to the to call the person performing such analysis stand and cross-examine him or her. or examination or involved in the chain of custody as a witness therein, and examine The procedure provided by Section 19.2- him in the same manner as if he had been 187.1 adequately safeguards an accused's called as an adverse witness," at the cost of Sixth Amendment rights, the court said, by the state. providing the essential elements of confrontation-physical presence, oath, In the consolidated cases before the Virginia cross-examination, and observation of high court, each defendant was charged with demeanor by the trier of fact. a drug offense and the state offered into evidence at trial a drug analysis certificate The court rejected the defendants' argument compliant with the state rule. The that the statutory scheme impermissiblN
254 burdens their confrontation rights by confrontation against the witness who would requiring them to take the affirmative step of establish the stipulated fact. calling an analyst to testify. It pointed out that defendants must jump through The provisions of Virginia's forensic procedural hoops to vindicate a broad array evidence rules provide adequate notice of of constitutional rights. the consequences of not calling the analyst to testify, the court said, and it concluded For instance, it noted, defendants must file a that "[f]ailure to use the statutory procedures motion within a certain time frame to obviously waives the opportunity to suppress evidence that has been confront the forensic analyst." unconstitutionally obtained, they must disclose in advance that they plan to pursue A number of courts from other jurisdictions an alibi defense, and they must provide have come to the same conclusion with notice they intend to introduce evidence of a respect to similar statutory procedures. victim's prior sexual conduct. Justice Barbara Milano Keenan, joined by The court added that the defendants' Chief Justice Leroy Rountree Hassell Sr. argument that the statutory procedure and Justice Lawrence L. Koontz Jr. in unconstitutionally shifts the burden of dissent, accused the majority of confusing producing evidence to the defense -is not the waiver of a statutory right with waiver of cognizable under the confrontation clause." a constitutional right. Pointing to the And because they did not avail themselves confrontation clause's use of the passive of the chance to call an analyst, the court phrase "to be confronted," Keenan argued decided that any due process argument was that "[a] defendant's constitutional right to not properly before it. be confronted with the witnesses against him arises automatically, and the state may not Affirmative Waiver Unnecessary require a defendant to take an affirmative action to preserve this right." In any event, Finally, the court explained, there is no she contended, the statute's failure to require dispute that the right to confrontation, like that a defendant be notified that he will myriad other constitutional rights, can be waive his Sixth Amendment right by waived. The defendants argued that a neglecting to avail himself of the procedure knowing and conscious waiver cannot be renders any purported waiver invalid. presumed from a silent record. Joseph R. Winston, Clement & Wheatley, However, the court responded that it "has Danville, Va., represented the lead never held that the record, in all defendant. Stephen R. McCullough, Virginia circumstances, must affirmatively reveal Solicitor General's Office, Richmond, Va., that a criminal defendant personally waived and Alice T. Armstrong and Eugene his right to confrontation." It noted, for Murphy, Virginia Attorney General's example, that a defendant who stipulates to Office, Richmond, represented the evidence effectively relinquishes the right of commonwealth.
255 "AG Candidate Wants Special Session After Supreme Court Ruling"
Issociated Press July 10, 2009
Virginia's Republican candidate for attorney He wrote that "there is a need to act quickly general said Friday that the General to avoid very significant problems once Assembly should hold a special session to some ongoing cases start to run up against deal with a U.S. Supreme Court ruling that speedy trial limitations as a result of he said could cripple the state's criminal continuances that are currently being justice system. requested and granted" because of the ruling. Ken Cuccinelli said some prosecutors are suspending drug and drunken driving Kaine spokesman Gordon Hickey said it's prosecutions because of last month's too early to convene a special session. decision in a Massachusetts case. In that 5-4 ruling, the court said prosecutors must make -The governor is well aware of this issue," forensic scientists available for defense Hickey said. "Certainly legislation would be cross-examination about lab reports on one solution, but let's not leap to that before drugs and other trial evidence. we give it a little thought. The governor's legal team is looking at other ways to fix it." The ruling raises questions about a Virginia law that puts the onus on defendants to The General Assembly also could call itself subpoena scientists if they wish to challenge into special session if two-thirds of the the accuracy of lab reports. Defendants who members of both houses make written fail to take such action in a timely manner requests to the governor. waive their rights under the Constitution's Confrontation Clause, according to the Louisa County Commonwealth's Attorney Virginia statute. Tom Garrett said prosecutors across the state support a special session. The U.S. Supreme Court has agreed to review Virginia's law, but Cuccinelli-a "You'd be hard-pressed to find a state senator from Fairfax County-said the commonwealth's attorney who isn't in legislature should go ahead and change it support of it," he said, adding that the rather than wait for a potentially damaging problems are too urgent to follow the usual ruling. procedure and take up the matter at the next regular session in January. "If we lose that case, there's going to be a lot of remands for new trials," Cuccinelli "I can't wait until July 1, 2010, for a new said in a telephone interview. "That's going law to take effect," he said. to be a sudden workload hit." Garrett said his relatively small jurisdiction Cuccinelli sent a letter to Gov. Timothy M. has "dozens and dozens" of cases that could Kaine, urging him to call a special session. be affected by the ruling. He said one
256 cocaine case in Louisa already has been because many cases involve multiple pieces dismissed because the forensic analyst was of evidence. not present. Fixing the state's law would not be difficult, Garrett said the state Department of Forensic Garrett said. He said the statute could be Science simply doesn't have the manpower amended to require the state to subpoena the to have its examiners running all over the scientists and give the defense a deadline for state to testify. About 160 employees stating whether they want them to appear. conducting casework handled nearly 60,000 The justices signaled in their ruling that such cases last year, the department says. The "notice and demand" statutes in three states number of tests would be even higher are constitutional, Garrett said.
257 VI. FIRST AMENDMENT
In This Section:
Rearguinent: 08-205 Citizens United v. F.E.C
Synopsis and Question Presented p. 261
"Court Appears Poised to Rewrite Spending Rules" p. 267 Adam Liptak
"High Court Hears Arguments over Anti-Clinton Film" p. 269 Joan Biskupic
"The Supreme Court Reviews Hillary: The Movie" p. 271 Dahlia Lithwick
"Hillary: The Movie to Get a Supreme Court Review" p. 274 David G. Savage
"Now Showing: Hilary: The Movie and Election-Law Gripes" p. 276 Warren Richey
"Campaign '08: Advertising; Makers of Anti-Clinton Film Lose Ruling" p. 279 The Associated Press
"Some Who Fight for McCain Are Fighting Against McCain-Feingold" p. 280 Matthew Mosk and Robert Barnes
"Citizens United: Did the Supreme Court Ask for a Briefing to Cure an Incurable Defect?" p. 282 Rick Hasen
"Justices Restrict Corporate Gifts for Politicians" p. 285 Linda Greenhouse
"Justices Uphold Campaign Finance Law" p. 288 Charles Lane
New Case: 08-769 United States v. Stevens
Synopsis and Question Presented p. 292
"Animal Cruelty Law Draws U.S. High Court Review in Speech Case" p. 305 Greg Stohr
258 "No Crime to Depict Animal Cruelty, Court Rules" p. 307 David G. Savage
"Dogfighting Underworld Stretches Through Western Pennsylvania" p. 309 Torsten Ove
"Authorities out to Crush Animal Snuff Films" p. 311 Martin Kasindorf
"They're Perverted, but Are They Protected?" p. 313 Jessica Reaves
New Case: 08-472 Salazar v. Buono
Synopsis and Questions Presented p. 3 14
"Cross Display Draws U.S. Supreme Court Review in Test for Obama" p. 323 Greg Stohr
"Intriguing Issues About Religion" p. 325 Lyle Denniston
"High Noon at Sunrise Rock" p. 327 Christopher Levenick
"Veterans Fight to Be Remembered" p. 329 Jennifer Grisham
"Supreme Court Agrees to Hear Mojave Cross Case" p. 331 David G. Savage
"Desert Cross May Lead to Landmark Church-State Ruling" p. 333 David G. Savage
"9th Circuit Topples Mojave Desert Cross" p. 335 The Associated Press
"Judge Orders Cross Removed from Mojave National Preserve" p. 336 Kurt Repanshek
"Critics Say the Park Service Is Letting Religion and Politics Affect Its Policies" p. 338 Michael Janofsky
"Lawmaker Seeks Land Swap to Let Mojave Cross Stand" p. 341 Julie Cart
259 "Context Is Key to Sorting out Commandments Rulings" p. 343 Tony Mauro
New Case: 08-103 Reed Elsevier, Inc. v. Aluchnick
Synopsis and Question Presented p. 346
-Court to Rule on Copyright Settlement" p. 359 Lyle Denniston
"Supreme Court to Revisit a Case on Breach of Copyright" p. 361 Adam Liptak
"Tasini Parties Ask Supreme Court to Overturn Settlement Rejection" p. 362 Andrew R. Albanese
"Second Circuit Holds Copyright Class Action Claims Must Be Based on Registered Copyright" p. 363 Andrew Ungberg
"Appeals Court Voids Agreement to Pay Freelancers for Work Published on the Web" Richard Prez-Pefia p. 364
"Righting a Wrong Against Writers" p. 366 Shannon P. Duffy
"Copyright Developments You Should Know About" p. 368 Leonard D. DuBoff
"Did Second Circuit Eviscerate Copyright Class Actions?" p. 372 Peter L. Simmons and Mitchell Epner
260 Citizens United v. F.E.C.
08-205
Ruling Below: Citizens United ix.FE.C., 530 F Supp. 2d 274 (D.D.C. 2008)
The district court ruled that § 201 of the 2002 Bipartisan Campaign Reform Act (BCRA) applied to ads promoting the documentary Hillary: the Movie. The ads should have included disclosures as required by BCRA to comply with federal election law. The ads and movie are considered "electioneering communications" because they are susceptible to no other interpretation than to inform the electorate that Hillary Clinton is unfit for office.
Questions Presented: (1) Were all as-applied challenges to disclosure requirements (reporting and disclaimers) imposed on "electioneering communications" by BCRA resolved by McConnell's statement that it was upholding disclosure requirements against facial challenge "'for the entire range of electioneering communications' set forth in the statute"? (2) Do BCRA's disclosure requirements impose unconstitutional burden when applied to electioneering communications protected from prohibition by appeal-to-vote test, FEC v. Wis. Right to Life (WRTL If), because such communications are protected "political speech," not regulable "campaign speech," in that they are not "unambiguously related to the campaign of a particular federal candidate," Buckley v. Valeo, 424 U.S. 1 (1976), or because disclosure requirements fail strict scrutiny when so applied? (3) Does WRTL II's appeal-to-vote test require clear plea for action to vote for or against candidate, so that communication lacking such clear plea for action is not subject to electioneering communication prohibition, 2 U.S.C. § 441b? (4) Is a broadcast feature-length documentary movie that is sold on DVD, shown in theaters, and accompanied by compendium book to be treated as broadcast "ads" at issue in McConnell, or is a movie not subject to regulation as electioneering communication?
CITIZENS UNITED, Plaintiff, V. FEDERAL ELECTION COMMISSION, Defendant.
United States District Court, District of Colombia
Decided January 15, 2008
[Excerpt: some footnotes and citations omitted]
PER CURIAM. enforcing provisions of the Bipartisan Campaign Reform Act of 2002 ("BCRA"), For the reasons that follow we deny Citizens with respect to Citizens' advertisements for United's ("Citizens") motions for a a movie-Hillary: The Movie-and its preliminary injunction to enjoin the Federal distribution of The Movie through cable TV Election Commission ("FEC") from video on-demand.
261 I. the opportunity pending resolution of the current litigation because, according to Citizens United is a nonprofit membership Citizens, the broadcast would be banned corporation, tax-exempt under Internal under BCRA and, even if this were not so, Revenue Code § 501(c)(4). Citizens the broadcast would require Citizens to produced a movie titled Hillary: The Movie. disclose certain information and make The Movie focuses on Senator Hillary certain statements as described below. Rodham Clinton's "Senate record, her White House record during President Bill Clinton's BCRA amended the Federal Election presidency, . . . her presidential bid," and Campaign Act of 1971 ("FECA"). Passed in includes "express opinions on whether she 2002, it represented "the most recent federal would make a good president." Citizens enactment designed to purge national plans to distribute The Movie in January or politics of what was conceived to be the February 2008 through theaters, video on- pernicious influence of 'big money' demand ("VOD") broadcasts, and DVD campaign contributions." McConnell v. sales. Citizens notified the court on January FEC. BCRA introduced a new system for 7, 2008, that it had released The Movie for regulating what it termed "electioneering "public sale and exhibition." The Movie's communications." Under BCRA § 201, an release date coincides with the dates when "'electioneering communication" is: many states will hold primary elections or party caucuses. Senator Clinton is a any broadcast, cable, or satellite presidential candidate in those states. communication which- Citizens intends to fund at least three television advertisements-two 10-second (I) refers to a clearly identified advertisements, "Wait" and "Pants," and one candidate for Federal office; 30-second advertisement, "Questions" to coincide with the release of its movie. The (LI) is made within- advertisements promote The Movie and direct viewers to The Movie's website for (aa) 60 days before a general, more information about the film and how to special, or runoff election for the see or purchase it. If Senator Clinton office sought by the candidate; or becomes the Democratic presidential nominee, Citizens plans to broadcast the (bb) 30 days before a primary or three advertisements and possibly other preference election, or a convention advertisements within 30 days before the or caucus of a political party that has Democratic National Committee Convention authority to nominate a candidate, and within 60 days before the November for the office sought by the general election-both periods are within candidate. ... BCRA's definition of an electioneering communication. Citizens has elected not to For presidential candidates, the broadcast its advertisements pending communication must also be capable resolution of this litigation. It has entered of being received by 50,000 or more into negotiations to broadcast The Movie persons. Citizens recognizes that through the "Political Movies" component under this statutory definition, both of a new nationwide VOD channel, its advertisements and a VOD "Elections '08," but has decided to forego broadcast of The Movie would be
262 electioneering communications. the merits, 2) that it would suffer irreparable Electioneering communications are injury if the injunction is not granted, 3) that subject to a host of restrictions an injunction would not substantially injure imposed by BCRA. Three are other interested parties, and 4) that the relevant here: § 203, § 201, and public interest would be furthered by the § 311. Section 203 prevents injunction." Granting injunctive relief is an corporations and labor unions from "extraordinary and drastic remedy," and it is funding electioneering the movant's obligation to justify. "by a communications out of their general clear showing," the court's use of such a treasury funds, unless the measure. communication is made to its stockholders or members, to get out A. the vote, or to solicit donations for a segregated corporate fund for We will analyze first Citizens' likelihood of political purposes. 2 U.S.C. prevailing on the merits of its claims § 441b(b)(2). This provision does not regarding The Movie. In McConnell, the bar electioneering communications Supreme Court upheld § 203 on its face, paid for out of a segregated fund that rejecting claims that the financing of receives donations only from "electioneering communications" stockholders, executives and their constituting express advocacy or its families. Any electioneering functional equivalent were within the communication that is not prohibited protection of the First Amendment. is subject to the disclosure McConnell did not, however, "purport to requirements of § 201 and the resolve future as-applied challenges." FEC disclaimer requirements of § 311, v. Wis. Right to Life, Inc., ("WRTL"). The which are set out in part II.B. Chief Justice's opinion in WRTL stated that an advertisement could not be considered Citizens' complaint, filed on December 13, the functional equivalent of express 2007, contains two major claims: (1) that advocacy unless it "is susceptible of no § 203's prohibition of corporate reasonable interpretation other than as an disbursements for electioneering appeal to vote for or against a specific communications violates the First candidate." To promote the objectivity of Amendment on its face and as applied to this analysis, courts are to disregard The Movie and to the 30-second contextual evidence of the corporation's advertisement "Questions"; and (2) that intent in running an advertisement. BCRA § 201 requiring disclosure and § 311 requiring disclaimers are unconstitutional as Citizens wants us to enjoin the operation of applied to Citizens' three advertisements BCRA § 203 as a facially unconstitutional (and to The Movie, if Citizens broadcasts it burden on the First Amendment right to in a manner that does not violate § 203). freedom of speech. The theory is that with respect to § 203, WRTL narrowed II. McConnell to such an extent that it "left the door open to facial invalidation based on the The court will not issue a preliminary sort of circumstances that have now arisen." injunction unless the movant shows that it For Citizens to prevail on this claim, we has "1) a substantial likelihood of success on would have to overrule McConnell, which is
263 to say that Citizens has no chance of against her. The Movie is thus the functional prevailing. Only the Supreme Court may equivalent of express advocacy. As such, it overrule its decisions. The lower courts are falls within the holding of McConnell bound to follow them. sustaining, as against the First Amendment, § 203 insofar as it bars corporations from With respect to Citizens's as-applied claims funding electioneering communications that regarding The Movie, the first question constitute the functional equivalent of under Chief Justice Roberts' WR TL express advocacy. There is no substantial opinion-and as it turns out, the last likelihood that Citizens will prevail on its question-is whether the film is express as-applied challenge with respect to The advocacy or its functional equivalent. If it is, Movie. McConnell makes it likely that Citizens would not win on the merits of its claim that B. the First Amendment permits it to broadcast the movie within the electioneering Citizens' proposed advertisements present a communications period as currently funded. different picture. The FEC agrees that Citizens contends that The Movie is issue Citizens may broadcast the advertisements speech and, as it stated in oral argument, that because they fall within the safe harbor of issue speech is any speech that does not the FEC's prohibition regulations expressly say how a viewer should vote. The implementing HJRTL. They did not advocate trouble is that the controlling opinion in Senator Clinton's election or defeat; instead, WRTL stands for no such thing. Instead, if they proposed a commercial transaction- the speech cannot be interpreted as anything buy the DVD of The Movie. Although other than an appeal to vote for or against a Citizens may therefore run the candidate, it will not be considered genuine advertisements, it complains that issue speech even if it does not expressly requirements of § 201 and § 311 of BCRA, advocate the candidate's election or defeat. 2 U.S.C. §§ 434(f)(2), 441 d, impose on it burdens that violate the First Amendment. The Movie does not focus on legislative issues. The Movie references the election Section 201 is a disclosure provision and Senator Clinton's candidacy, and it takes requiring that any corporation spending a position on her character, qualifications, more than $10,000 in a calendar year to and fitness for office. Dick Morris, one produce or air electioneering political commentator featured in The communications must file a report with the Movie, has described the film as really FEC that includes-among other things- "giv[ing] people the flavor and an the names and addresses of anyone who understanding of why she should not be contributed $1,000 or more in aggregate to President." After viewing The Movie and the corporation for the purpose of furthering examining the 73-page script at length, the electioneering communications. Section 311 court finds Mr. Morris's description to be is a disclaimer provision. For advertisements accurate. The Movie is susceptible of no not authorized by a candidate or her political other interpretation than to inform the committee, the statement " is electorate that Senator Clinton is unfit for responsible for the content of this office, that the United States would be a advertising" must be spoken during the dangerous place in a President Hillary advertisement and must appear in text on- Clinton world, and that viewers should vote screen for at least four seconds during the
264 advertisement. In addition, such protected, as ifRTL holds. We know that the advertisements are required to include the Supreme Court has not adopted that line as a name, address, and phone number or web ground for holding the disclosure and address of the organization behind the disclaimer provisions unconstitutional, and advertisement. it is not for us to do so today. And we know as well that in the past the Supreme Court Citizens thinks that § 201 and § 311 are has written approvingly of disclosure unconstitutional because its advertisements provisions triggered by political speech even do not constitute express advocacy or the though the speech itself was constitutionally functional equivalent of express advocacy. protected under the First Amendment. The argument is that the Supreme Court's WVR TL decision narrowed the The McConnell Court did suggest one constitutionally permissible scope of what circumstance in which the requirement to could be considered an electioneering disclose donors might be unconstitutional communication. Under Citizens' reading of as-applied-if disclosure would lead to WRTL, anything that is not express reprisals and thus "impose an advocacy or not "susceptible of [a] unconstitutional burden on the freedom to reasonable interpretation other than as an associate in support of a particular cause." appeal to vote for or against a specific To this, the Court added that the plaintiff candidate" cannot be constitutionally must show a "reasonable probability that the regulated by Congress under BCRA. compelled disclosure of . . . contributors' names will subject them to threats, We do not believe WRTL went so far. The harassment, or reprisals." Citizens' only issue in the case was whether speech memorandum in support of its motion states that did not constitute the functional that there may be reprisals, but it has equivalent of express advocacy could be presented no evidence to back up this bald banned during the relevant pre-election assertion. In that respect, Citizens is thus in period. Although McConnell upheld the a similar position as the parties in § 203 prohibition on its face, the Court left McConnell who made the same assertion but open the issue that was presented in WRTL, presented no specific evidentiary support. reserving it for decision on an as-applied basis. In contrast, when the McConnell We therefore hold that Citizens has not Court sustained the disclosure provision of established the requisite probability of § 201 and the disclaimer provision of § 311, prevailing on the merits of its arguments it did so for the "entire range of against the disclosure and disclaimer electioneering communications" set forth in provisions-§ 201 and § 311, respectively. the statute. Citizens' advertisements obviously are within that range. C.
Although Citizens styles its argument as an Citizens tells us that without a preliminary as-applied challenge, it offers only one injunction it will not be able to broadcast distinction between its advertisements and The Movie, that it will have to disclose the the mine-run of speech that constitutes identity of its contributors to the FEC if it electioneering communication under BCRA. runs the advertisements, and that some The distinction, so goes the argument, is that portion of the time it purchased for the Citizens' speech is constitutionally advertisements would be consumed by the
265 disclaimers BCRA requires. If Citizens had preliminary relief, we cannot say that made more of a showing that it had a chance enjoining enforcement of the BCRA of prevailing in this court on the merits, provisions at issue would serve the public these kinds of harms might have warranted interest in view of the Supreme Court's preliminary relief. But in the face of determination that the provisions assist the McConnell's ruling that the disclosure and public in making informed decisions, limit disclaimer provisions are constitutional and the coercive effect of corporate speech, and that the restriction on corporate speech assist the FEC in enforcing contribution advocating the defeat of a candidate does limits. not violate the First Amendment, Citizens is unable to raise "questions going to the merits so serious, substantial, difficult and Citizens' motion for preliminary injunction doubtful, as to make them a fair ground for with respect to the § 203 Prohibition as litigation and thus for more deliberate applied to "Questions" shall be DENIED as investigation." moot as set forth in footnote 9 and shall be DENIED with respect to all other claims. A As to the remaining factors governing separate order shall issue this date.
266 "Court Appears Poised to Rewrite Spending Rules"
New York Times June 30, 2009 Adam Liptak
WASHINGTON-A Supreme Court case year while Mrs. Clinton, now the secretary concerning a quirky documentary critical of of state, was seeking the Democratic Hillary Rodham Clinton may result in a presidential nomination. The film was major overhaul of rules governing campaign produced by Citizens United, a conservative spending by corporations, the court signaled advocacy group that is a nonprofit Monday. corporation.
Rather than deciding the case, the only one The McCain-Feingold law bans the the justices left unresolved before leaving broadcast, cable or satellite transmission of for their summer break, the court asked for "electioneering communications" paid for more briefs and a second argument, to be by corporations in the 30 days before a held on Sept. 9, almost a month before the presidential primary and in the 60 days start of the next term. before a general election.
The parties were asked to offer their views The law, as narrowed by a 2007 Supreme on whether the court should overrule a 1990 Court decision, applies to communications decision, Austin v. Michigan Chamber of "susceptible to no reasonable interpretation Commerce, which upheld restrictions on other than as an appeal to vote for or against corporate spending to support or oppose a specific candidate." It also requires spoken political candidates, and part of McConnell and written disclaimers in the film and ads v. Federal Election Commission, the 2003 for it, along with the disclosure of decision that upheld the central provisions of contributors' names. the McCain-Feingold campaign finance law. Citizens United lost a suit against the "The court is poised to reverse longstanding Federal Election Commission last year and precedents concerning the rights of then withdrew plans to show its corporations to participate in politics," said documentary on a cable video-on-demand Nathaniel Persily, a law professor at service and to broadcast television Columbia. "The only reason to ask for advertisements for it. But the film was reargument on this is if they're going to shown in theaters in six cities, and it remains overturn Austin and McConnell." available on DVD and online.
If Judge Sonia Sotomayor, President Several justices seemed sympathetic to the Obama's Supreme Court nominee, is group's position that its First Amendment confirmed by the Senate by then, the case rights had been violated when the case was will be the first one she hears. argued in March. The government said Congress had the power to ban political The case involves Hillary: The Movie, a books, signs and Internet videos as long as slashing political documentary released last they were paid for by corporations and
267 distributed not long before an election. the court's attitude to campaign finance laws. The court could have ruled in tavor of Citizens United in relatively narrow ways. The Roberts court has struck dowx n every Its decision to set the case down for campaign finance regulation to reach it, and reargument suggests that it is considering a it seems to have a majority prepared to do much broader ruling, one that may allow more. Indeed, last year, in Federal Election unlimited spending from corporate treasuries Commission v. Davis, Justice Alito, writing for television advertisements and other for the majority, said leveling the electoral communications to support or oppose playing field was not a matter for the courts candidates. or constitutional.
The Austin decision said campaign speech The Davis case struck down the financed by corporations was suspect. "The "millionaire's amendment," which raised the corrosive and distorting effects of immense donor limits for rivals of rich politicians aggregations of wealth that are accumulated who finance their own campaigns. with the help of the corporate form," Justice Thurgood Marshall wrote for the majority in In his opinion, Justice Alito cited Justice 1990, "have little or no correlation to the Anthony M. Kennedy's dissent in the Austin public's support for the corporation's case. "The notion that the go-vernment has a political ideas." legitimate interest in restricting the quantity of speech to equalize the relative influence Shifts in court personnel since then, of speakers on elections," Justice Kennedy particularly the replacement of Justice wrote in the passage cited by Justice Alito, Sandra Day O'Connor by Justice Samuel A. is "antithetical to the First Amendment." Alito Jr. in 2006, have substantially altered
268 "High Court Hears Arguments over Anti-Clinton Film"
USA Today March 25, 2009 Joan Biskupic
WASH[NGTON-The Supreme Court whether, if the majority finds corporate appeared open to vigorous arguments campaign limits do not cover the feature- Tuesday that federal campaign-finance law length movie, "then the whole statute wrongly limits corporate-funded messages (barring corporate-funded broadcasts) in political elections. should fall."
Theodore Olson, representing the producers There was no obvious consensus among a of a 90-minute movie highly critical of majority of the nine justices on the potential former Democratic presidential contender loosening of limits on corporate money. Hillary Rodham Clinton, told the justices that the First Amendment freedom to The law at issue bars TV or radio ads participate in the political process -Is being financed with corporate or labor union smothered by one of the most complicated, money that refer to a candidate for federal expensive and incomprehensible regulatory office 30 days before a primary or 60 days regimes ever invented." before a general election.
Olson specifically protested a provision of Olson contended the movie, produced partly the 2002 Bipartisan Campaign Reform Act with corporate contributions, differs from that kept Citizens United, a conservative the usual 60-second ads that Congress group that produced the film, from targeted. He characterized it as a distributing Hillary: The Movie through a documentary about Clinton, now secretary video-on-demand program in early 2008. of State.
More significantly, Olson asked the court to Deputy U.S. Solicitor General Malcolm reverse long-standing cases allowing Stewart countered that "the film repeatedly government to restrict campaign spending criticizes Hillary Clinton's character and by corporations and unions because of the integrity" and said Congress aimed to curb potentially corruptive aspect of big-money electioneering regardless of a message's interests. length.
The justices' comments, along with their He noted that the law applies to any recent pattern of increasingly scrutinizing "broadcast, cable or satellite laws that limit corporate-funded political communication" before an election. speech, suggested that Citizens United would prevail. Yet it was not clear how Chief Justice John Roberts was skeptical of broadly the justices might rule and affect Stewart's argument. "So if Wal-Mart airs an money in elections. advertisement that says, 'We have candidate action figures for sale, come buy them,' that Justice Anthony Kennedy questioned counts as an electioneering
269 communication? " prohibited campaign ad.
Stew,\art said it could. He also said Congress -Doesn't this one fall into campaign might be able to bar corporate spending to advocacy?" Souter said, referring to publish and publicize a campaign book quotations in the movie that say, She will before an election. lie about anything. She is deceitful. She is ruthless, cunning. dishonest. . .' This The four liberal justices, including David sounds to me like campaign advocacy." Souter, seemed ready to view the movie as a
270 "The Supreme Court Reviews Hillary: The Movie"
Slate March 24, 2009 Dahlia Lithwick
Hillary: The Mowie: The critics rave. constraints of McCain-Feingold, the film could not be financed by corporate treasuries "This film, which I saw -it is not a musical or broadcast within 30 days of a primary or comedy. " 60 days of a general election. The federal court of appeals agreed with the FEC, -Justice Stephen Breyer finding that the movie could be interpreted as nothing but an effort to "inform the "As Justice Breyer said, it's not a musical electorate that Senator Clinton is unfit for comedy. " office." Citizens United appealed.
Justice David Souter The question for the high court in Citizens United v. Federal Election Commission is In 2008, a conservative group called whether the film is more like a 90-minute Citizens United produced Hillary: The version of one of those swift-boat ads or Movie, a 90-minute documentary in which more like The Federalist-core political Hillary Clinton, then seeking the Democratic speech that warrants the highest level of presidential nomination, is variously constitutional protection. At oral argument described as "deceitful," "ruthless," and this morning, the government-seemingly "cunning," as well as "dishonest," unafraid of the latter comparison-takes the "reckless," a "congenital liar," and "not position that in the right circumstances, even qualified as commander in chief." For books can be banned under campaign ideological balance, Dick Morris says that finance laws. And that's when the justices "Hillary is the closest thing we have in start hyperventilating. America to a European socialist." The movie did not expressly urge voters to vote Former Bush administration Solicitor against her. It simply implied that friends General Ted Olson represents Citizens don't let friends vote for evil people. United, and because the justices had just screened the virulently anti-Clinton film, his Citizens United released the film in six claims that the movie simply "informs and theaters and on DVD, actions not subject to educates" the public about important issues federal regulation. But when they sought to are generally met by stony silence. Nobody distribute the film by paying $1.2 million to really thinks it is an episode of 60 Minutes. sell it through a video-on-demand service, Olson does get the bunch hopping when he the Federal Election Commission contended characterizes McCain-Feingold as "one of that the film was no different from the kind the most complicated, expensive, and of "electioneering communication" incomprehensible regulatory regimes ever regulated under the McCain-Feingold invented by the administrative state." Olson campaign finance law. That was the 2002 notes that the Reporters Committee for statute that tried to limit the influence of big Freedom of the Press (which he accidentally money on elections. If subject to the calls "the Reporters Committee for the Right
271 to Life") filed a brief on his side of the case has to hear these cases. A tetchy John Paul urging that the Hillary movie "is Stevens snaps: "And maybe those cases indistinguishable from other news-media presented more difficult issues than this commentary." (Disclosure: I am on the one!" steering committee of the Reporters Committee for Freedom of the Press; I am Note to Olson: Don't tell the justices they still wait-listed for Reporters Committee for are too stupid to understand McCain- the Right to Life.) Feingold.
Several of the justices seem bothered by Deputy Solicitor General Malcolm Stewart Olson's claim that Hillary did not represent rises to argue the case for the FEC. His job electioneering. "'This sounds to me like is to persuade the court that they can and campaign advocacy," insists Justice David should ban 90-minute attack ads. But when Souter. Justice Ruth Bader Ginsburg adds, Justice Samuel Alito asks whether the "If that isn't an appeal to voters, I can't government-if it can regulate imagine what is." To which Olson replies documentaries-might also regulate a book that the film is merely "a long discussion of containing "express advocacy" prior to an the record, qualifications, history, and election, Stewart agrees that it might. conduct of someone who is in the political arena, a person who already holds public "That's pretty incredible," splutters Alito. office, who now holds a different public "You think that if-if a book was published, office, who, yes, at that point, Justice Souter, a campaign biography that was the was running for office." But Justice functional equivalent of express advocacy, Anthony Kennedy observes that a 90-minute that could be banned?" Not banned, clarifies attack ad is pretty much by definition more Stewart. Congress could just "prohibit the potent than a 30-second one: "'[I]f we take use of corporate treasury funds" to publish this as a beginning point-that a short, 30- it. Oh, Malcolm Stewart. Malcolm Stewart. second campaign ad can be regulated-you With your Macbeth-y first name and your want me to write an opinion and say, well, if Macbeth-ier last name. You did not just say it's 90 minutes, then that's different. It the government might engage in a teensy seems to me that you can make the argument little bit of judicious, narrowly tailored that 90 minutes is much more powerful in book-banning, did you? support or in opposition to a candidate." At this point, a horrified Anthony Kennedy Olson seems to be of the view that a good gets even paler than his usual pale self: "Is it way to peel off five votes at the court is by the Kindle where you can read a book? I berating the justices about the general take it that's from a satellite. So the existing twirliness of the campaign finance laws, as statute would probably prohibit that under evidenced by the fact that "since 2003, this your view? . . . If this Kindle device where court has issued something close to 500 you can read a book which is campaign pages of opinions . . . and 22 separate advocacy, within the 60- to 30-day period, if opinions from the Justices of this Court it comes from a satellite, it can be prohibited attempting to figure out what this statute under the Constitution and perhaps under means." A defensive Chief Justice John this statute?" Again Stewart clarifies that it Roberts observes that the statute gives the wouldn't be banned, but a corporation could court "mandatory appellate jurisdiction"-it be barred from using its general treasury
272 funds to publish such a book and would be court. But it's too late. Now Souter looks required to publish it through a PAC. The even paler than Kennedy. chief justice seeks to clarify that this would be so even in a 500-page book with only one For the past few years, the Roberts court has sentence that contained express advocacy. been slowly chipping away at McCain- Stewart cheerfully agrees. The chief justice Feingold. wvith Justices Roberts and Alito wonders whether this would apply even "to tapping on the brakes as Kennedy, Scalia, a sign held up in Lafayette Park saying vote and Thomas revved the motor. But it seems for so-and-so." Stewart doesn't quite say no. to me that all this talk of book banning and government regulation of signs in Lafayette Justice Breyer keeps trying to shake Stewart Park is a pretty good way to get all five of over his head-like an Etch A Sketch-to them in the mood to run down yet more erase the noxious image of government- restrictions on political advertising. And sponsored book banning and get him to stop maybe even back up and do it again. chatting about issues that are not before the
273 "Hillary: The Movie to Get a Supreme Court Review"
Los Angeles Times November 15, 2008 David G. Savage
The Supreme Court voted Friday to hear an In recent years, the court has been closely election-related case that will decide split on cases involving money, politics and whether a politically charged film-in this the 1st Amendment. Since the arrival of case Hillary: The Movie-can be regulated Chief Justice John G. Roberts Jr. and Justice as a campaign ad. Samuel A. Alito Jr., the court has shifted toward the view that the campaign laws The justices said they would hear an appeal violate the free-speech rights of political from a conservative group that had sought to groups. advertise its anti-Clinton documentary as the New York senator competed for the "The 1st Amendment requires us to err on Democratic presidential nomination. the side of protecting political speech," Roberts said last year in a case involving a The Federal Election Commission said the Wisconsin anti-abortion group that had group could not broadcast the film on broadcast ads critical of Sen. Russell D. television or air ads close to the election Feingold (D-Wis.) without running afoul of campaign funding laws. Indiana attorney James Bopp Jr. represented the Wisconsin anti-abortion group. This The McCain-Feingold Act forbids year, he represented Citizens United, the corporate-funded broadcast ads that attack a group that made Hillary: The Movie. candidate within a month of a primary or general election. The law also requires The 90-minute film was made by David N. political groups to disclose who paid for the Bossie, a former congressional staffer who ads. was a relentless investigator of the Clintons during the 1990s. The movie includes But lawyers for Citizens United, the interviews with Ann Coulter, Newt Gingrich conservative group, say limits on "core and Dick Morris. political speech rights" are unconstitutional. The group planned to show the film in The court also said Friday that it would hear selected theaters and distribute it on DVD. a West Virginia case that has highlighted the That was not affected by the campaign role of big money in state high court justice funding laws. races. But the group also planned to run radio and TV ads promoting the film and hoped to broadcast the documentary on television. Both appeals were before the U.S. Supreme Court for weeks, but justices waited until Those issues were subject to the McCain- after the Nov. 4 election to vote to take them Feingold Act because they were broadcasts up.
274 that attacked a candidate just prior to the with a disclaimer and disclosure of its primary election contests. donors. Bopp renewed his appeal in the Supreme Court, and insisted the rules In January, a three-judge panel of the U.S. requiring the disclosure of donors should be district court in Washington agreed with the thrown out. FEC that Hillary: The Movie was akin to a campaign ad and could not be broadcast on He said Friday he was pleased the justices TV. voted to hear Citizens United vs. FEC. The case is expected to be heard in February. It told -the electorate that Sen. Clinton is unfit for office . . . and that viewers should Bopp said in a statement: "The notion that a vote against her," the court said. feature-length movie can be banned is a return to the days of government censorship The court did say that the group could run and book-burnings." TV ads that mentioned the film-but only
275 "Now Showing: Hillary: The Movie and Election-Law Gripes"
ChristianScience Monitor February 1, 2008 Warren Richey
To many supporters of President Bush, purchase the DVD, not defeat a particular Michael Moore's 2004 documentary presidential candidate. So they sued in Fahrenheit 9/11 was a blatant attempt to use federal court in Washington, D.C.- -and lost. factual distortions, conspiracy theories, and irreverent wit to undermine the reelection of In an appeal to the U.S. Supreme Court, the a sitting president. group's lawyer, James Bopp, argues that the three ads are not "electioneering The film's popularity did not go unnoticed communications" advocating the election or among Republicans. Now, with the 2008 defeat of a particular candidate. The ads are presidential primaries well under way, a simply an effort to inform potential viewers Washington-based conservative advocacy about a political documentary. For the FEC group has produced its own political to impose disclosure and disclaimer documentary. It's called Hillary: The Movie. requirements is an unconstitutional infringement of free speech, Mr. Bopp says. There's just one problem. Without extensive broadcast advertising, few people will see it. Judges say election rules apply
"I could have the movie in hundreds of Last week, a three-judge district court panel theaters. I just can't let anyone know it is rejected Bopp's argument. It found that there by advertising it," complains executive Hillary: The Movie is the functional producer David Bossie. "I can't purchase ad equivalent of the kind of corporate-funded time on television or radio stations." campaign attacks that election laws are designed to prevent. The panel also ruled Hillary: The Movie premiered Jan. 16 in that even though the advertisements about Washington. It is being screened in select the film did not themselves amount to cities, including showings in San Diego on political attacks, the FEC was still within its Feb. I and Santa Ana, Calif., on Feb. 2. But power to impose disclosure and disclaimer because of its hard edge and timely political requirements on the ads. subject matter, the Federal Election Commission has put restrictions on three That's the issue Bopp is presenting to the broadcast advertisements promoting the Supreme Court. The justices are scheduled movie. Under campaign-finance regulations, to discuss whether to take the case on an ads for the film must include a political expedited basis during their Feb. 15 disclaimer and the film's financial backers conference. must be disclosed to the FEC and the public. "I just don't see how the Federal Election The group, Citizens United, objects to the Commission has the authority to use preconditions. Its leaders say they are just campaign-finance rules to regulate trying to get people to see their movie or advertising that is not related to campaigns,"
276 Bopp said in a phone interview. now."
The First Amendment lawyer is a prominent Under FEC rules, the movie producers must opponent of the 2002 campaign-finance include a four-second disclaimer stating that reform law cosponsored by Sens. John the message was paid for by Citizens United McCain (R) of Arizona and Russ Feingold and is not affiliated with any candidate or (D) of Wisconsin. Last year, Bopp candidate's committee. persuaded a majority of justices to scale back rules in the McCain-Feingold law "What that does is it tells the people governing "issue advertising." Analysts see watching that it is a political ad," says the latest lawsuit as a bid to extend that Bossie, who is also president of Citizens holding. United. But the ads aren't about politics, he says. Rather, they are about trying to drum "The law is clearly being tested, and I think up business for a movie. [Bopp's] assumption is that this court now is going to be more sympathetic to these The three-judge panel watched the 90- challenges," says Washington lawyer Robert minute film and studied its 73-page script. Bauer, an election law expert. But it is not The judges concluded: "The Movie is clear, Mr. Bauer adds, that the Supreme susceptible of no other interpretation than to Court will agree to hear the case. inform the electorate that Senator Clinton is unfit for office, that the United States would The market is now be a dangerous place in a President Hillary Clinton world, and that viewers should vote Time is short, according to Mr. Bossie. The against her." market for a political documentary is directly linked to elections, he says, and that Bossie defends his work. "Our job is to market disappears when the elections are inform and educate the American people and over. "We are harmed every minute the that is what we do in this film," he says. court isn't hearing this case," he says. A former congressional investigator, Bossie The three ads in question can be viewed on says his efforts were partly inspired by www.hillarythemovie.com. One of the 10- Fahrenheit 9/11. But he says he is more second ads depicts an interview with faithful to facts than was Mr. Moore. conservative firebrand Ann Coulter. "Documentaries are a new art form for politics. It is a new delivery device for The narrator speaks: "First a kind word political issues," Bossie says. "I recognized about Hillary Clinton." that in 2004 when Michael Moore's film had enormous impact. I didn't like its impact, I Ms. Coulter quips: "She looks good in a didn't agree with the film . . . however, I pants suit." recognized the power of film."
The narrator: "Now a movie about How did Fahrenheit9/11 advertise? everything else." The screen flashes photos of Senator Clinton. Ads for Fahrenheit 9/11 ran into similar problems at the FEC. Moore removed any The narrator: "Hillary: The Movie, on DVD mention of Mr. Bush from ads airing close
277 to the election to avoid running afoul of the and win this battle," Bossie says, "because if law. "That's impossible for Citizens United Hillary Clinton is not the Democratic because the name of the movie is Hillay nominee we will have an Obama movie out The Movi'," says Bopp. "You can't say [in this summer." an ad], 'Go see a movie, we just can't say the name of it."' Asked about Sen. Barack Obama's squeaky- clean image, Bossie laughs. "Don't worry, "We want to fight this [Supreme Court case] I'll have plenty to make a movie."
278 "Campaign '08: Advertising; Makers of Anti-Clinton Film Lose Ruling"
Los Angeles Times January 16, 2008 From The Associated Press
A conservative group must abide by office, that the United States would be a campaign finance laws if it wants to run ads dangerous place in a President Hillary promoting its anti-Hillary Rodham Clinton Clinton world, and that viewers should vote movie, a federal court ruled Tuesday. against her," the court wrote in its unanimous ruling. Citizens United had hoped to run the television advertisements in key election A similar issue surfaced in 2004, when states during peak primary season. The court Citizens United sought to keep filmmaker ruling means the group must either keep its Michael Moore from advertising Fahrenheit ads off TV or attach a disclaimer and 9/11 in the run-up to the presidential disclose its donors. election. The Federal Election Commission dismissed the complaint after Moore said he Lawyers for the group had argued that its had no plans to run the ads during election 90-minute Hillary: The Movie was no season. different from documentaries seen on news shows 60 Minutes and Nova. That prompted The ads include clips from the movie, skepticism and, at one point, laughter from including one in which Dick Morris-a the judges during a hearing last week. former advisor to President Clinton who is now a critic of the Clintons-says the Campaign regulations prohibit corporations senator is "the closest thing we have in and unions from paying for ads that run America to a European socialist." close to elections and identify candidates. Citizens United argued that the Challenges to campaign finance regulations advertisements promoted the movie and are considered by a three-judge panel of should be treated as commercial speech as district and appellate judges in Washington. opposed to advocacy against the Democratic During last week's hearing, Citizens United New York senator. drew the most criticism from the panel's two Republican nominees-U.S. District Judge A three-judge panel disagreed. Royce C. Lamberth and Judge A. Raymond Randolph, an appellate judge. U.S. District The film does not address legislative issues Judge Richard W. Roberts was a nominee of and was produced solely "to inform the President Clinton. electorate that Sen. Clinton is unfit for
279 "Some Who Fight for McCain Are Fighting Against McCain-Feingold"
The Wtashington Post March 5, 2008 Matthew Mosk and Robert Barnes
Some of the same conservative activists who McCain's legislation, he will also work to have recently signed on to Sen. John deliver McCain to the White House. McCain's presidential campaign are also still hard at work trying to undo his most "if you want to participate in politics, you famous legislative accomplishment. have to be prepared to deal in a world in which there are imperfect choices," Bopp To date, these grudging McCain supporters said. have mounted four Supreme Court challenges and others in lower courts to Some opponents of the law are still dismantle the landmark 2002 law known as weighing whether they will support McCain. McCain-Feingold. The legislation, by David Keating, a longtime conservative McCain and Sen. Russell Feingold (D-Wis.), activist who wants McCain-Feingold made broad changes in federal political overturned, last week called a McCain fundraising. Conservative activists have presidency "a scary thought." He said attacked it since its passage as an McCain's candidacy looks only narrowly infringement on free speech. more palatable than that of his Democratic opponents. Now, with McCain the apparent Republican nominee, these same activists have said they The McCain-Feingold legislation, known will support McCain but have no intention formally as the Bipartisan Campaign of dropping their challenges to the Reform Act, infuriated conservative fundraising law. Their determination to undo Republicans because of its ban on "soft McCain's legislation speaks to the deep fault money"-unlimited contributions from lines that divide the Republican base from wealthy donors that were funneled through McCain-and to the challenges McCain political parties and into the hands of faces in winning them over. political candidates. The law also limited the ability of special-interest groups to David Norcross, a former Republican circumvent contribution limits by buying National Committee general counsel and their own ads on behalf of candidates or lobbyist who backed Mitt Romney earlier, against their opponents. said he would support McCain "100 percent" while still trying to erase McCain's While McCain and other advocates campaign finance law from the books. considered the ban crucial, opponents contended that the measure trampled on free "Whether he's the nominee, the president or speech. whatever, those of us who have been in the trenches are not about to back off," he said. Norcross, a trustee with the James Madison Center, which spent more than $1 million James Bopp Jr., an RNC member from last year challenging the law, said efforts to Indiana and early Romney supporter, said erase McCain's "pernicious" legislation are that while he continues to challenge gaining momentum. Multiple lawsuits are
280 making their way to the Supreme Court, and Fred Wertheimer, who heads the watchdog two challenges are pending. Bopp is the group Democracy 21, an architect of center's general counsel. McCain-Feingold, said he recognizes that with the changes in the court's makeup, new The Supreme Court has already ruled in two challenges are likely. But he said he took previous challenges. In 2003, the court solace in the fact that no one has yet upheld key elements of McCain-Feingold as challenged the legislation's core provision- constitutional. But President Bush has since the soft-money ban. replaced two justices. When the second case reached the court last year, Chief Justice Even that may change, said Bopp, who has John G. Roberts Jr. rendered an opinion that, handled many of the challenges, including by most readings, knocked a critical peg the pending disclosure case. Bopp said he from the law. believes the soft-money ban is "fraught with the same problems that the rest of the law is Roberts's ruling said corporate- or union- fraught with, which is its breadth." financed "issue ads" prohibited by McCain's legislation were no longer totally off-limits. Bopp said he agreed to support McCain after the Arizona senator promised to appoint "Discussion of issues cannot be suppressed strict-constructionist judges who are faithful simply because the issues may also be to the First Amendment. pertinent in an election," Roberts wrote. "Where the First Amendment is implicated, Since McCain's emergence as the likely the tie goes to the speaker, not the censor." Republican nominee, he has faced pressure from Bopp and others to clarify his vision Election law expert Edward B. Foley, a law for future Supreme Court appointments and professor at Ohio State University, said the mollify concerns that campaign finance case exposed vulnerabilities in McCain- would become a litmus test for judicial Feingold. Bush's replacement of Justice appointments. Sandra Day O'Connor-the key fifth vote in swatting away the first court challenge- McCain was put on the defensive by with Justice Samuel A. Alito Jr. has conservative columnists who said the "absolutely" changed the court's view of the senator in a private meeting had questioned law, he said. whether Alito was too openly conservative. McCain, who supported Alito's One matter that will be argued before the confirmation, denied making the statement. court in April challenges what is sometimes He told the Federalist Society he would called the "Millionaires Amendment," a "insist" on judicial nominees such as provision that loosens fundraising Roberts and Alito, who are "faithful to the restrictions for candidates running against Constitution" and "had a record that wealthy, self-financed opponents. demonstrated that fidelity."
The court should announce soon whether it Foley called the comment ironic in the will also hear the case brought by the context of McCain's campaign finance makers of Hillary: The Movie who want to legislation. "It occurred to me that might eliminate a provision requiring groups that contribute to the undoing of his legislative finance campaign-related advertising to legacy." disclose donor names.
281 "Citizens United: Did the Supreme Court Ask for a Briefing to Cure an Incurable Defect?"
Electionlawblog.org June 30, 2009 Rick Ilasen
As I noted, the parties in this case have been cannot cure this defect: If an issue wvas not asked to address the question: "Should the raised below or fairly presented in the Court overrule either or both Austin v. jurisdictional statement, the Court should Michigan Chamber of Commerce, 494 U.S. not decide it. I expect that his argument will 652 (1990), and the part of McConnell v. surely figure prominently in any dissent Federal Election Comm'n, 540 U.S. 93 from a majority opinion overruling Austin, (2003), that addresses the facial validity of McConnell, or both. Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. s441b ... It is hard to imagine any other reason why the Court ordered this supplemental briefing It is an odd formulation, but the reason for now, rather than decide the case (and, the formulation may have to do with the contrary to Mickey, I think if CJ Roberts issue I've alluded to yesterday, whether the and Justice Alito just wanted to expand the question of overruling either case is properly MCFL exemption, they likely could have before the Court. From my review below, it gotten some liberal votes for that, and would appears that neither of these questions is not have needed to set the case for briefing properly before the Court. on a nuclear-type issue).
This may shed more light on why the case The rest of this post provides the details on was reset for argument in September. why these questions are not properly before Perhaps the five conservatives circulated a the Court. When the case began, a three- draft overruling either Austin, McConnell or judge court denied Citizens United's request both, and the would-be dissenters made the for a preliminary injunction barring FEC argument that the question was not properly enforcement of section 203. 530 F.Supp.3d before the Court. If that's true, it would 274 (D.D.C. 2008). On Citizens United's make overruling these cases even more facial challenge to the law, the court audacious, leading to charges of construed it as an attack on McConnell and conservative "judicial activism." held that it was without power to overrule McConnell, as it was bound by Supreme If this theory is right, the full briefing Court precedent. The initial opinion makes ordered by the Court may have been ordered no mention of an attack on Austin. Citizens with the intent to provide some cover for the United appealed the denial of the overreaching. Supplement briefing will give preliminary injunction to the Supreme the parties a chance to fully brief the Court, which dismissed the appeal. 128 S.Ct. argument now. Nonetheless-and tellingly 1732. The three-judge court then granted the Court did not ask for supplemental summary judgment for the FEC, in a single briefing on the question whether the issue of paragraph opinion concluding: "Based on overruling McConnell and Austin is properly the reasoning of our prior opinion, we find before the Court-supplemental briefing that the Federal Election Commission is
282 entitled to judgment as a matter of law." abandoned that claim, and the district 2008 WL 2788753 (D.D.C. July 18, 2008). court ultimately ordered dismissal of The Supreme Court agreed to hear an appeal the relevant count pursuant to the of the summary judgment decision, 129 parties' stipulation. See p. 10, supra. S.Ct. 594 (2008). In addition, appellant's jurisdictional statement presented only "an as- After the case got to the Supreme Court, CU applied challenge to *** BCRA s changed lawyers (from Jim Bopp to Ted 203." J.S. 5. In setting out the Olson) and changed strategy, mounting an substantial federal questions that it attack on Austin. It comes in an odd way, as believed warranted plenary review, part of what it styles an "as applied" appellant identified a dispute over challenge to McConnell. It notes that the application of WRTL and a McConnell is an "apparent extension" of question about whether Section 203 Austin and then offers reasons for Austin to can be applied to a "feature-length be overruled (see around pages 30-31). documentary movie." J.S. i, 24-28. No issue as to the continuing vitality The government's brief gives this argument of Austin was either "set out" in the the back of its hand. The government begins questions presented or "fairly by noting that that: "Acceptance of included therein." Sup. Ct. R. 14.1(a) appellant's argument [to overrule Austin] (rule for certiorari petitions), 18.3 would effectively invalidate not only BCRA (applying Rule 14 to jurisdictional Section 203, but also 2 U.S.C. 441b's statements). prohibition on the use of corporate treasury funds for express advocacy, as well as any In any event, this case presents none state-law analogues. Notably, appellant does of the considerations that might not ask this Court to reconsider McConnell's support a departure from this Court's holding that, if corporate spending on customary fidelity to precedent. express advocacy in candidate elections may Austin has been relied on by the be regulated, so may corporate spending that other branches of the federal is the functional equivalent of express government, especially in crafting advocacy. Cf. WRTL, 127 S. Ct. at 2686 BCRA; by this Court, which applied (Scalia, J., concurring in part and concurring Austin in upholding that statute, see in the judgment) (advocating, as "modest McConnell, 540 U.S. at 203, 205 medicine," the overruling of only (explaining that none of the plaintiffs McConnell's comparatively recent holding in that case, which included as to nonexpress advocacy). Rather, appellant, challenged the correctness appellant seeks to invalidate both forms of of Austin's holding); and by regulation." legislatures and courts considering state and local campaign-finance The government then states: measures. In short, "Congress' power to prohibit corporations and Appellant's argument is not properly unions from using funds in their before the Court. Although appellant treasuries to finance advertisements previously sought to have BCRA expressly advocating the election or Section 203 declared facially defeat of candidates in federal unconstitutional, see J.A. 24a, it later elections has been firmly embedded
283 in our law." McConnell, 540 U.S. at Court's consistent "respect for the 203. 'legislative judgment that the special characteristics of the corporate Appellant makes virtually no effort structure require particularly careful to explain why Austin should be regulation.~' McConnell, 540 U.S. at overruled under "the doctrine of 205 (quoting National Right to Work stare decisis or the Court's cases Conm., 459 U.S. at 209-2 10). elaborating on the circumstances in Indeed, neither the Court nor the which it is appropriate to reconsider dissenters in Davis suggested that a prior constitutional decision." there was any inconsistency between Randall v. Sorrell, 548 U.S. 230, 263 that decision and the prior ruling in (2006) (Alito, J., concurring in part Austin. and concurring in the judgment). Appellant devotes less than two Appellant also relies (Br. 30) on pages of its 58-page brief (Br. 30-3 1) Bellotti, which was decided 12 years to this issue, and it identifies no before Austin. But the Court in relevant new evidence or other Bellotti, while invalidating state-law intervening development that was restrictions on the use of corporate unavailable to the Court when Austin funds to influence ballot-question was decided. That "incomplete referenda, explained that its presentation" is "reason enough to "consideration of a corporation's refuse" appellant's extraordinary right to speak on issues of general request to overrule Austin, and as a public interest implies no consequence the relevant holding of comparable right in the quite McConnell as well. Randall, 548 different context of participation in a U.S. at 263 (Alito, J., concurring in political campaign for election to part and concurring in the judgment). public office." 435 U.S. at 788 n.26. The Court further observed that In arguing that Austin was "wrongly "Congress might well be able to decided" (Br. 30), appellant relies in demonstrate the existence of a part on this Court's subsequent danger or apparent corruption in decision in Davis v. FEC, 128 S. Ct. independent expenditures by 2759 (2008). That ruling, however, corporations to influence candidate invalidated statutory conditions elections." Ibid. Far from providing a placed on a wealthy individual's basis for overruling Austin, the expenditure of personal funds in decision in Bellotti anticipated the support of his own candidacy. See id. rationale on which, the Austin Court at 2766-2767, 2770-2774. The case later relied. therefore did not implicate this
284 "Justices Restrict Corporate Gifts For Politicians"
New York Times March 28. 1990 Linda Greenhouse
The Supreme Court today upheld the power Justice Thurgood Marshall said the state had of the Federal and state governments to a "compelling rationale" for placing limits restrict corporate involvement in political on "the corrosive and distorting effects of campaigns. immense aggregations of wealth that are accumulated with the help of the corporate The Court, which had previously made clear form." that corporations might be prohibited from giving their own funds directly to political Right to Political Expression candidates, held that they could also be barred from spending those funds The Michigan Chamber of Commerce, independently, as with newspaper which challenged the Michigan law, argued advertisements, on candidates' behalf. that the right of its member companies to political expression was not adequately The 6-to-3 decision leaves corporations free protected by the alternative of setting up to make political expenditures through their political action committees. political action committees, which raise money from stockholders and corporate Under both state and Federal law, these officials. committees are strictly limited in the contributors from whom they can raise A Bitterly Divided Court money and in the amounts they can spend. The organization's 8,000 members sought But the Court, bitterly divided over the the right to spend ordinary corporate funds scope of First Amendment protection for in the political arena. political expression by corporations, upheld provisions of a Michigan campaign finance Previous decisions by the Court have upheld law prohibiting corporations from spending limits on direct contributions to candidates money from their own treasuries. Federal but have applied a different analysis to election law and the laws of 20 other states spending that is not directed by the have similar prohibitions. campaign.
The decision today was the first time the Recent Decisions Cited Court has upheld a prohibition on the independent expenditure of funds for The Court has ruled that such expenditures political campaigns-that is, spending made by individuals are an aspect of political independently of a candidate's organization. speech that cannot be barred under the First Amendment. But the Court had not directly A Federal appeals court ruled in 1988 that confronted the question of independent the Michigan prohibition violated the First expenditures by corporations. Amendment's guarantee of free speech. In his opinion overturning that ruling today, Some previous opinions had indicated that
285 limits on corporate political spending would Ideological Lines Blurred be upheld. But in a recent series of decisions dealing with "corporate speech," the Court As in earlier disputes over campaign has accorded corporations a substantial financing, this case, Austin v. Michigan measure of First Amendment protection State Chamber of Commerce, No. 88-1569, without indicating what distinctions it might blurred the usual ideological lines both on ultimately find between the rights of the Court and among the groups that filed individuals and the rights of corporations. briefs expressing their views.
So today's decision was significant, beyond Chief Justice William H. Rehnquist joined the realm of campaign finance, in Justice Marshall's majority opinion, as did announcing an apparent stopping point for Justices William J. Brennan Jr., Harry A. the corporate speech doctrine. Blackmun, Byron R. White and John Paul Stevens. Chief Justice Rehnquist did not Strong Dissenting Opinions write a separate opinion, but in earlier cases he has supported strong state regulation of That aspect of the decision drew strong corporations. dissenting opinions. In a dissent joined by Justices Sandra Day O'Connor and Antonin Common Cause, a public affairs lobby that Scalia, Justice Anthony M. Kennedy said: has pressed for campaign financing "The Court's hostility to the corporate form restrictions, and the Federal Election used by the speaker in this case and its Commission filed briefs in support of the assertion that corporate wealth is the evil to Michigan law. be regulated is far too imprecise to justify the most severe restriction on political The Michigan Chamber of Commerce was speech ever sanctioned by this Court." supported by a wide array of organizations, including the American Civil Liberties Justice Scalia wrote a separate dissenting Union, which has long viewed most opinion. He read portions of it from the campaign financing restrictions as bench this morning, a step that Justices take unconstitutional, and the American Medical only rarely to emphasize the depth of their Association. The National Organization for conviction that the majority has erred. Woman, Planned Parenthood and the National Right to Work Committee were He said the Court had failed to justify among the nonprofit corporations submitting permitting restrictions on corporate spending a joint brief in support of the Chamber of that it had refused to permit on political Commerce. spending by individuals. Regulation Dates to 1907 "The fact that corporations amass large treasuries," Justice Scalia said, is "not Federal limits on political spending by sufficient justification for the suppression of corporations date to a 1907 law, the Tillman political speech unless one thinks it would Act, passed at a time of growing concern be lawful to prohibit men and women whose about the ability of railroads and other big net worth is above a certain figure from companies to buy influence in the political endorsing political candidates." process. While regulation has ebbed and
286 flowed since then, it was not until today that Justice Brennan, who wrote the opinion in constitutional doubts about limits on the Massachusetts case, filed a separate corporate political spending were resolved. concurring opinion today, noting that the earlier ruling was intended to apply only to a Three years ago the Court invalidated the small category of corporations. Federal campaign spending limits as applied to a small Massachusetts anti-abortion The Michigan Chamber of Commerce filed group, ruling that the group's First a lawsuit challenging the state law in 1985. Amendment right to advocate its views The organization wanted to buy advertising publicly outweighed the Government's endorsing a candidate in a state legislative interest in regulating its political election but, fearing prosecution, went to expenditures. Federal District Court seeking a ruling that the law was unconstitutional. The court The United States Court of Appeals for the upheld the law in 1986 and was in turn Sixth Circuit, which struck down the reversed by the Court of Appeals. Michigan law, based its decision largely on that Supreme Court ruling, Federal Election Besides Michigan, the other states that Commission v. Massachusells Citizens for prohibit direct corporate campaign spending Life. But in his opinion today, Justice are Alabama, Connecticut, Iowa, Kentucky, Marshall said the decision in the Minnesota, Mississippi, Montana, New Massachusetts case was limited to Hampshire, New York, North Carolina, organizations that, while organized as North Dakota, Ohio, Oklahoma, corporations, were distinguished by their Pennsylvania, South Dakota, Tennessee, "narrow political focus" and lack of Texas, West Virginia, Wisconsin and connections to the world of business. Wyoming.
287 "Justices Uphold Campaign Finance Law"
ffashington Post December 1 1, 2003 Charles Lane
The Supreme Court endorsed the key formally known as the Bipartisan Campaign provisions of the McCain-Feingold Reform Act (BCRA) and its signing by campaign finance law yesterday, issuing a President Bush. strong affirmation of Congress's authority to regulate the flow of money in politics. Yesterday's ruling, delivered on an expedited basis after the justices returned Rejecting opponents' claims that McCain- early from their summer recess in September Feingold stifles free speech, a slender but to hear oral argument in the case, removed emphatic five-justice majority upheld both lingering uncertainty about the impact of the law's ban on "soft money"-unregulated McCain-Feingold on the 2004 presidential donations to the parties from wealthy election campaign, ensuring that virtually individuals, corporations and unions-and the entire law will remain in force through its new rules limiting campaign-season next year-and beyond. political advertising. So strongly did the majority back the law The majority ruled that both parts of the that the main opinion often echoed not only statute were appropriately designed to the reasoning but also the language of the combat a widespread and well-founded law's sponsors, Sens. John McCain (R- perception that large donors exercise undue Ariz.) and Russell Feingold (D-Wis.) and influence over government. Reps. Martin T. Meehan (D-Mass.) and Christopher Shays (R-Conn.). The majority's main opinion, written by Justices John Paul Stevens and Sandra Day Stevens and O'Connor wrote of the need to O'Connor, said the law effectively confronts "plug the soft money loophole" in existing "the danger that officeholders will decide campaign law, of pernicious "sham issue issues not on the merits or the desires of advocacy" paid for by shadowy donors and their constituencies, but according to the of the parties' "peddling" access to federal wishes of those who have made large lawmakers. financial contributions valued by the officeholder." In the face of these problems, the BCRA was a "modest" law that would have "only a The court's surprisingly unambiguous marginal impact on political speech," the reading of a dizzyingly complex statute majority ruled. crowned a movement for campaign finance change that had been energized both by Stevens and O'Connor noted that "in allegations of favoritism by the Clinton considering Congress' most recent effort to White House toward soft-money donors and confine the ill effects of aggregated wealth by the Enron Corp. scandal surrounding the on our political system," the majority was current Bush administration. The movement "under no illusion that BCRA will be the culminated last year in passage of what is last congressional statement on the matter.
288 Money, like water, will always find an advertising, dissemination of illegally outlet. What problems wNill arise, and how intercepted communications and sexually Congress will respond, are concerns for explicit cable programming would smile another day. In the main we uphold BCRA's with favor upon a law that cuts to the heart two principal, complementary features: the of what the First Amendment is meant to control of soft money and the regulation of protect: the right to criticize the electioneering communications." government."
Stevens and O'Connor were joined by Whereas the majority said it was showing Justices David H. Souter, Ruth Bader "proper deference" to Congress's judgment Ginsburg and Stephen G. Breyer. "in an area in which it enjoys particular expertise," the dissenters turned that "This opinion represents a landmark victory argument on its head, arguing that Congress for the American people in the effort to had enacted McCain-Feingold largely reform their political system," McCain, because it stacks the political deck in favor Feingold, Meehan and Shays said in a of incumbents. statement. In upholding McCain-Feingold's ban on the Through it all, the law has been opposed by parties' raising and spending of soft money, lawmakers and interest groups, from Sen. the court also backed a ban on state parties' Mitch McConnell (R-Ky.) on the right to the using soft money to fund activities that are AFL-CIO labor federation on the left. They ostensibly directed to voter registration or argue that its restrictions on the free flow of state campaigns but also influence federal cash will stifle the free flow of political elections; a prohibition on national and state ideas that money pays for. parties' funneling soft money to tax-exempt organizations that engage in campaign "We believe the Court has moved in a activity; and regulations on federal and state deeply troubling direction that could chill candidates and officeholders' use of soft important and worthwhile public expression money in connection with certain election- and activity," the AFL-CIO said in a related activities. statement. These provisions were consistent with the In the end, those concerns were shared by court's ruling in its last landmark campaign only four members of the court: Chief decision, the 1976 Buckley v. Valeo case, Justice William H. Rehnquist and Justices which upheld limitations on political Antonin Scalia, Anthony M. Kennedy and contributions, the majority ruled. They were Clarence Thomas. indeed necessary if those limitations were to have any meaning, the majority ruled. "This is a sad day for the freedom of speech," Scalia wrote in a dissenting "The main goal of the [soft-money ban] is opinion. Ticking off a list of recent free- modest," Stevens and O'Connor wrote. "In speech decisions by the court, Scalia added: large part, it simply effects a return to the "Who could have imagined that the same scheme that was approved in Buckley and Court which, within the past four years, has that was subverted by" subsequent sternly disapproved of restrictions upon ... interpretations of the law by the Federal virtual child pornography, tobacco Election Commission. The FEC permitted
289 political parties to fund federal campaigns definition in the past, but yesterday the court with a combination of soft money and "hard said the McCain-Feingold definition was money," cash raised in accordance with consistent with Buckley. disclosure rules and contribution limits. Stevens and O'Connor wrote that "although This part of the decision had been widely the . . . advertisements do not urge the expected by legal analysts. More innovative viewer to vote for or against a candidate in legally, however, was the majority's so many words, they are no less clearly conclusion that McCain-Feingold's intended to influence the election." limitations on "issue ads" pass constitutional muster. The majority brushed aside concerns that the provision would sweep too broadly and The statute defines a new category of discourage genuine discussion of issues as "electioneering communications"- well as disguised campaign ads. basically, television and radio ads that mention a federal candidate during the run- The vote on this point showed the pivotal up to a primary or general election. role in the case of two justices, Rehnquist and O'Connor. It then requires such communications to be paid for only with money raised and spent in The chief justice had supported a Michigan accordance with federal disclosure rules and ban on corporate-sponsored campaign ads in limitations on individual donations. a 1990 case-an act that had led McCain- Feingold advocates to speculate he would No soft money could be used to pay for the vote with them this time. ads. Instead, corporations, unions or interest groups would have to set up federally But Rehnquist, who had indicated during regulated political action committees and oral argument in September that he was pay for the ads through those. reconsidering his 1990 vote, dissented on the issue ad provision yesterday. This part of McCain-Feingold was meant to overcome Buckley, which had said that the His vote was offset, however, by O'Connor, government could regulate the financing who had dissented in the 1990 case, yet only of ads that "expressly advocated" the supported the issue ad provision yesterday. election or defeat of a candidate through the use of "vote for," "vote against" or similar In his dissenting opinion, Kennedy called direct language. the provision "a new and serious intrusion on speech." McCain-Feingold advocates said that this part of Buckley had turned into a huge The court also upheld provisions of the law loophole that permitted often unaccountable that require election ads to identify the groups to sponsor "sham issue ads" in the candidate or other person who sponsors waning days of a campaign that were them and that require broadcasters to keep obviously aimed at candidates. publicly available records of all requests to purchase broadcast time for political Federal appeals courts and the Supreme communications. Court had hewed to the "express advocacy"
290 The vote was 8 to I on the first of those that permit candidates running against provisions, with Thomas dissenting. The wealthy opponents to receive campaign vote was 5 to 4 on the second, with the same money in larger chunks than otherwise justices in the majority as on the soft-money permitted. That issue would have to be ban and issue-ad provisions. litigated in another case.
By a 6 to 3 vote, with Stevens, Ginsburg and There were only two minor exceptions to the Breyer dissenting, the court let stand a courtfs ruling that McCain-Feingold is provision that offers cheaper air time to constitutional. candidates who pledge not to use "attack ads" against their opponents. The court By a vote of 9 to 0, the court struck down a could not rule on the provision, Rehnquist provision that would have required political wrote, because McConnell, who had sued to parties to choose between making unlimited stop it, would not be subject to it until his independent expenditures or limited reelection campaign in 2008. coordinated expenditures in support of their nominees. And by a 9 to 0 vote, the court upheld provisions of McCain-Feingold that raised And, also unanimously, the court struck the maximum allowable campaign donations down a provision that would have prohibited and indexed them for inflation. By the same minors from donating to parties or vote, it ruled that opponents lacked standing campaigns. to challenge the "millionaire's provisions"
291 United States v. Stevens
08-769
Ruling Below: UnitedStates v. Stevens, 533 F.3d 218 (3rd Cir. 2008)
Respondent sold videos of pit bulls engaged in dogfights and attacks on other animals. le was prosecuted and found guilty of violating a federal law prohibiting the creation or sale of videos depicting cruelty against animals. The law was designed to combat the sale of so-called "crush videos," which depict women stepping on and torturing small animals, appealing to a very specific sexual fetish. Stevens challenged his conviction on First Amendment grounds in the Third Circuit. The Third Circuit reversed Stevens's conviction.
Question Presented: Is 18 U.S.C. § 48's ban on the creation and distribution of depictions of animal cruelty valid under the Free Speech Clause of the First Amendment?
UNITED STATES of America, Petitioner, V. Robert J. STEVENS, Respondent.
Third Circuit Filed July 18, 2008
[Excerpt: some footnotes and citations omitted]
SMITH, Circuit Judge. selling depictions of animal cruelty with the intention of placing them in interstate The Supreme Court has not recognized a commerce, violating 18 U.S.C. § 48. The new category of speech that is unprotected charges arose out of an investigation by by the First Amendment in over twenty-five federal and Pennsylvania law enforcement years. Nonetheless, in this case the agents who discovered Stevens selling the Government invites this Court to take just videos out of his Virginia residence. such a step in order to uphold the constitutionality of 18 U.S.C. § 48 and to Stevens moved to dismiss his case on the affirm Robert Stevens' conviction. For the basis that § 48 violated his free speech reasons that follow, we decline the rights, but the District Court denied his Government's invitation. Moreover, because motion. Stevens was convicted on each of we agree with Stevens that 18 U.S.C. § 48 is the three counts in the indictment.] an unconstitutional infringement on free speech rights guaranteed by the First II. Amendment, we will vacate his conviction. Stevens' case is the first prosecution in the I. nation under § 48 to proceed to trial, and this appeal represents the first substantive [Stevens was indicted in 2004 for knowingly constitutional evaluation of the statute by a
292 federal appellate court. the harm it would address, by reducing cruelty to animals, "so outweighs the [The court quotes the language from § 48.] expressive interest, if any, at stake, that the materials [prohibited by § 481 may be Resort here to some legislative history is prohibited as a class." The Report instructive, not as a device to help us minimizes the expressive interest of any construe or interpret the statute, but rather to speech prohibited by the statute because demonstrate the statute's breadth as written "[b]y the very terms of the statute, material compared to what may originally have been depicting cruelty to animals that has serious intended. The legislative history for § 48 utility -whether it be religious, political, indicates that the primary conduct that scientific, educational, journalistic, historic, Congress sought to address through its or artistic-falls outside the reach of the passage was the creation, sale, or possession statute." of -crush videos." [The court defines crush videos as fetish videos depicting women III. inflicting torture on animals. The Government does not allege that These videos never show the woman's face Stevens participated in the interstate and make it difficult to prove jurisdiction in transport of "crush videos." Nor does the state-law claims or that the acts occurred Government allege that the videos Stevens within state statute of limitations. sold contained prurient material. The Government also concedes that § 48 The discussions in the House and Senate constitutes a content-based restriction on focused on § 48 as a tool to eliminate the speech. Nonetheless, the Government argues crush videos.] that the type of speech regulated by § 48 falls outside First Amendment protection. Yet, the government interests identified in By doing so, the Government asks us to the House Committee Report in support of create a new category of unprotected speech. § 48 do not focus on crush videos. The . . . As shown below, the statute cannot primary interest identified there is the withstand [a] heightened level of scrutiny. federal government's interest in "regulating the treatment of animals." Similarly, the [The court condemns animal cruelty, but House Report states that the Government states that § 48 is not a prohibition of animal has an interest in discouraging individuals cruelty.] Rather, § 48 prohibits the creation, from becoming desensitized to animal sale, or possession of a depiction of animal violence generally, because that may serve cruelty. That regulating a depiction has First to deter future antisocial behavior toward Amendment implications is obvious. We human beings. begin, then, with the Government's contention that the depictions of animal This broader focus on animal cruelty is cruelty restricted by 18 U.S.C. § 48 qualify consistent with the text of § 48 and it is also as categorically unprotected speech. reflected in the House Report's discussion of why the speech that § 48 targets should be A. § 48 Regulates Protected Speech deemed outside the protection of the First Amendment. The Report concedes that § 48 It has been two and a half decades since the is a content-based restriction, but states that Supreme Court last declared an entire
293 category of speech unprotected. See New 2. Child pornography is "intrinsically York v. Ferber, 458 US 747 (1982) related to the sexual abuse of (holding that child pornography depicting children in at least two ways. First, actual children is not protected speech). the materials produced are a Other types of speech that are categorically permanent record of the children's unprotected include: fighting words, threats, participation and the harm to the speech that imminently incites illegal child is exacerbated by their activity, and obscenity. The common theme circulation. Second, the distribution among these cases is that the speech at issue network for child pornography must constitutes a grave threat to human beings be closed in order to control the or, in the case of obscenity, appeals to the production of child pornography. prurient interest. The Court explained that the production of child pornography is a The Government acknowledges that the "low-profile, clandestine industry" speech at issue in this case does not fall and that the "most expeditious if not under one of the traditionally unprotected the only practical method of law classes. The Government argues, however, enforcement may be to dry up the that these categories may be supplemented. market for this material" by That, in itself, is an unassailable proposition. punishing its use. But, we disagree with the suggestion that the speech at issue here can appropriately be 3. "The advertising and selling of added on the extremely narrow class of child pornography provide an speech that is unprotected. Out of these economic motive for and are thus an categories, only Ferber is even remotely integral part of the production" of similar to the type of speech regulated by child pornography. § 48. Recognizing this difficulty, the Government attempts to analogize between 4. The possibility that there would be the depiction of animal cruelty and the any material of value that would be depiction of child pornography. That attempt prohibited under the category of simply cannot carry the day. child pornography is "exceedingly modest, if not de minimis."
5. Banning full categories of speech [In Ferber, the Supreme Court upheld a is an accepted approach in First New York statute banning child Amendment law and is therefore pornography,] holding that the statute was appropriate in this instance. constitutional because child pornography, whether obscene or not, is unprotected by Without guidance from the Supreme Court, the First Amendment. In reaching that a lower federal court should hesitate before conclusion, the Court cited five factors extending the logic of Ferber to other types favoring the creation of a new category of of speech. The reasoning that supports unprotected speech: Ferber has never been used to create whole categories of unprotected speech outside of 1. The State has a "compelling" the child pornography context. Furthermore, interest in "safeguarding the physical Ferber appears to be on the margin of the well-being of a minor." Supreme Court's unprotected speech
294 jurisprudence. Part of what locates child Three reasons give us pause to conclude that pornography on the margin as an un- "preventing cruelty to animals" rises to a protected speech category is the conflation compelling government interest that trumps of the underlying act with its depiction. By an individual's free speech rights. First, the criminalizing the depiction itself, "[c]hild Supreme Court has suggested that the kind pornography law has collapsed the of government interest at issue in § 48 is not 'speech/action' distinction that occupies a compelling. The Supreme Court in Lukumi central role in First Amendment law[,]" and held that city ordinances that outlawed "is the only place in First Amendment law animal sacrifices could not be upheld based where the Supreme Court has accepted the on the city's assertion that protecting idea that we can constitutionally criminalize animals was a compelling government the depiction of a crime." Child interest. The Government contends that pornography contrasts with other categories Lukumi is inapplicable to a compelling of unprotected speech that share a much government interest analysis. closer nexus between speech and an unlawful action that proximately results from the unprotected speech. For these reasons, we are unwilling to extend the When we consider Lukumi along with the rationale of Ferber beyond the regulation of fact that the Supreme Court has not child pornography without express direction expanded the extremely limited number of from the Supreme Court. unprotected speech categories in a generation, the only conclusion we are left Even assuming that Ferber may, in limited with is that we-as a lower federal court- circumstances and without Supreme Court should not create a new category when the guidance, be applied to other categories of Supreme Court has hinted at its hesitancy to speech, 18 U.S.C. § 48 does not qualify for do so on this same topic. such treatment. The Court cited five bases in Ferber for upholding the anti-child Second, while the Supreme Court has not pornography law. The reasoning does not always been crystal clear as to what translate well to the animal cruelty realm. constitutes a compelling interest in free We address the five-factor rationale in its speech cases, it rarely finds such an interest entirety, although the first factor is the most for content-based restrictions. When it has important because, under Ferber, if the done so, the interest has-without Government's interest is not compelling, exception-related to the well-being of then this type of statute necessarily violates human beings, not animals. When looking at the First Amendment. these cases, as well as the interests at issue in the unprotected speech categories, it is 1. First Ferber Factor difficult to see how § 48 serves a compelling interest that represents "a government The compelling government interest inquiry objective of surpassing importance." at issue here overlaps with the strict scrutiny analysis discussed presently. No matter how appealing the cause of the animal protection is to our sensibilities we hesitate-in the Similarly, and even more fatal to the First Amendment context-to elevate it to Government's position, because the statute the status of a compelling interest. does not regulate the underlying act of
295 animal cruelty-which must be a crime is meaningless when evaluating § 48 as under state or federal law in order to trigger written. By its term, the statute applies § 48-we can see no persuasive argument without regard to whether the identities of that such a statute serves a compelling individuals in a depiction, or the location of government interest. While the statute at a depiction's production, are obscured. issue in Ferber also prohibited the distribution of the depiction of sexual The Government also argues that § 48 performances by children under the age of indirectly serves to deter future animal 16, the Supreme Court went to great lengths cruelty and other antisocial behavior by to cabin its discussion of the depiction/act discouraging individuals from becoming conflation because of the special role that desensitized to animal violence. As support children play in our society. Preventing for its position, the Government approvingly cruelty to animals, although an exceedingly cited the House Committee Report, which worthy goal, simply does not implicate cited research that -suggest[ed] that violent interests of the same magnitude as acts committed by humans may be the result protecting children from physical and of a long pattern of perpetrating abuse, psychological harm. which 'often begins with the torture and killing of animals."' Third, there is not a sufficient link between § 48 and the interest in "preventing cruelty to animals." . . . Section 48 does nothing to regulate the underlying conduct that is We read this passage to mean that, by already illegal under state laws. Rather, it broadly prohibiting these depictions of regulates only the depiction of the conduct. animal cruelty, the drafters of the House Committee Report believed that fewer In order to serve the purported compelling individuals will see and make such government interest of preventing animal depictions and therefore not be subject to cruelty, the regulation of these depictions this desensitization. must somehow aid in the prevention of cruelty to animals. With this depiction/act This reasoning is insufficient to override distinction in mind, it seems appropriate to First Amendment protections for content- recast the compelling government interest as based speech restrictions. The Supreme "preventing cruelty to animals that state and Court has rejected a similar argument in the federal statutes directly regulating animal context of virtual child pornography. . . . cruelty under-enforce." The House When balanced against First Amendment Committee Report for § 48 stated that the rights, the "mere tendency of speech to statute targeted the depiction rather than the encourage unlawful acts is not a sufficient act because under-enforcement of state reason for banning it." . . . animal cruelty laws is a particular problem in the crush video industry. The Report For these reasons, we fail to see how 18 approvingly cited witnesses who testified to U.S.C. § 48 serves a compelling government this effect. Consistent with these findings, interest. the Government states that "as a practical matter, it is nearly impossible to identify the 2. Second Ferber Factor persons involved in the acts of cruelty or the place where the acts occurred." While this The second factor in the Ferber rationale, justification is plausible for crush videos, it that child pornography is "intrinsically
296 related to the sexual abuse of children," is a restricted by the Act by pointing to the similarly weak position for the Government exceptions clause of 18 U.S.C. § 48(b). to rely upon in this case. In Ferber, the Section (b) states that the Act "does not Court reasoned that child pornography apply to any depiction that has serious should be banned, in part, because the religious, political, scientific, educational, pornographic material continues to harm the journalistic, historical, or artistic value." . . . children involved even after the abuse has taken place. While animals are sentient The exceptions clause cannot on its own creatures worthy of human kindness and constitutionalize § 48. The exceptions clause human care, one cannot seriously contend in this case is a variation of the third prong that the animals themselves suffer of the Miller obscenity test. This prong asks continuing harm by having their images out "whether the work, taken as a whole, lacks in the marketplace.... serious literary, artistic, political, or scientific value." Miller v. California, 413 3. Third Ferber Factor US.15, 24 (1973)....
Both the second and third Ferber factors This type of exceptions clause has not been assert that the distribution network for child applied in non-prurient unprotected speech pornography must be closed so that the cases, and taking it out of this context production of child pornography will ignores the essential framework of the decrease. This drying-up-the-market theory, Miller test. Congress and the Government based on decreasing production, is would have the statute operate in such a way potentially apt in the animal cruelty context. as to permit the restriction of otherwise However, there is no empirical evidence in constitutional speech so long as part of the the record to confirm that the theory is valid statute allows for an exception for speech in this circumstance. Indeed, the fact that that has "serious value." The problem with most dog fights are conducted at live venues this view is twofold. First, outside of and produce significant gambling revenue patently offensive speech that appeals to the suggests that the production of tapes such as prurient interest, the First Amendment does those at issue in this case does not serve as not require speech to have serious value in the primary economic motive for the order for it to fall under the First underlying animal cruelty the Government Amendment umbrella. What this view purports to target. Moreover, standing alone overlooks is the great spectrum between this factor sweeps so broadly it should not speech utterly without social value and high be deployed to justify extracting an entire value speech. Second, if the mere appendage category of speech from First Amendment of an exceptions clause serves to protections. Restriction of the depiction of constitutionalize § 48, it is difficult to almost any activity can work to dry up, or at imagine what category of speech the least restrain, the activity's market. Government could not regulate through similar statutory engineering. That is not a 4. Fourth Ferber Factor road down which this Court is willing to proceed. The fourth Ferber factor is that the value of the prohibited speech is "exceedingly In sum, the speech restricted by 18 U.S.C. modest, if not de minimis." The Government § 48 is protected by the First Amendment. finds support for the low value of the speech The attempted analogy to Ferber fails
297 because of the inherent differences between necessarily informs the "compelling children and animals. Those profound government interest" analysis. The stated differences require no further explication governmental interest in 18 U.S.C. § 48 is to here. "prevent cruelty to animals." Taking federalism concerns into account, the B. § 48 Cannot Survive Heightened Scrutiny interest stated in this manner is too broad. Absent demonstration of the requisite Because the speech encompassed by § 48 impact on commerce which is absent on this does not qualify as unprotected speech, it record, Congress does not have the must survive a heightened form of scrutiny. constitutional authority to pass the types of A content-based restriction on speech is animal cruelty statutes that are seen in the "presumed invalid," and the Government fifty states and the District of Columbia. It is bears the burden of showing its for this reason that we have suggested that constitutionality. One scholar notes that "a the compelling government interest should majority of the Court has never sustained a be redefined as "preventing cruelty to regulation that was strictly scrutinized for animals that state and federal statutes content discrimination reasons." directly regulating animal cruelty under- enforce." And once this reformulation of the We have already shown why § 48 does not interest targeted by § 48 is accepted, we do serve a compelling government interest, thus not see how a sound argument can be made failing strict scrutiny. Because of the that the Free Speech Clause is outweighed peculiarities of this statute, though, we by a statute whose primary purpose is to aid briefly discuss the relationship between § 48 in the enforcement of an already and the strict scrutiny analysis. The Supreme comprehensive state and federal anti-animal- Court's free speech jurisprudence regarding cruelty regime. Conversely, if we agree with content-based restrictions on speech in the the Government that the compelling first instance appears simple to apply. First, government interest is "preventing cruelty to is the speech protected or unprotected? If the animals," then we do not see how a sound speech is unprotected, then Congress can argument can be made that § 48 is narrowly regulate fairly easily. If the speech is tailored and uses the least restrictive means. protected, does the statute survive strict scrutiny? In practice, as pointed out The Supreme Court routinely strikes down previously, this heightened level of scrutiny content-based restrictions on speech on the nearly always results in the statute being narrow tailoring/least restrictive means invalidated. At the risk of complicating this prong of strict scrutiny. Accepting for a parsimonious two-tiered structure, we note moment that Government's interest is that federalism concerns illustrate the "preventing cruelty to animals," then § 48 is difficulties with the strict scrutiny analysis. not narrowly tailored.
The problem lies in defining the compelling First, with respect to the reach of the government interest when Congress does not Commerce Clause, § 48 does not prohibit have the constitutional power to regulate an any depictions-including crush videos- area that has traditionally been governed by that are made solely for personal rather than state statutes. When federalism concerns interstate commercial use. . . . Accordingly, arise, the "least restrictive means" analysis if we accept that the government interest
298 served by § 48 is to prevent animal cruelty, it is often difficult to determine when and the statute is-by its very terms-under- wNhere such fights occur for purposes of the inclusiVe. statute of limitations and other enforcement matters. At least with respect to the videos at . . If the government interest is to prevent issue in this case. we find the Government's acts of animal cruelty, the statute's argument empirically inaccurate. It is true criminalization of depictions that were legal that in the first video, "Pick-A-Winna," in the geographic region where they were much of the footage is old, but the faces of produced makes § 48 overinclusive. the individuals involved are sometimes quite clear. In the second video, "Japan Pit Third, the second Ferber factor implicitly Fights," the fights take place in Japan, where addressed the fit between regulating the dog fighting is apparently legal and depiction of a behavior with preventing that prosecution of those individuals for those behavior. Specifically, the Supreme Court particular acts of animal cruelty could not be stated that "the distribution network for pursued. The third video, "Catch Dogs," child pornography must be closed if the primarily features footage of dogs hunting production of material which requires the and subduing wild hogs and being trained to sexual exploitation of children is to be do so. This video gives the name and effectively controlled." To the extent that address of a catch dog supplier, and also this aspect of the intrinsic relationship takes the viewer on several hunting trips between banned speech and the harm to be with these dogs. There is no effort to prevented applies to § 48, it applies to a conceal any of the faces of the people in the lesser degree, and the arguments by the video, and Stevens at several points Government in support of this analogy fall mentions their names and the location of the flat. The Government first asserts that, as is hunts. In short, the research and empirical true in the case of child pornography, the evidence in the record before us simply does actors and producers of crush videos and not support the notion that banning other speech banned by § 48-i.e., the depictions of animal cruelty is a necessary perpetrators of the underlying acts of animal or even particularly effective means of cruelty-are very difficult to find and prosecuting the underlying acts of animal prosecute for those underlying acts. This is cruelty. Much less is it the "most true as to crush videos because the only expeditious" or the "only practical method" person typically onscreen is the "actress," of prosecuting such acts, as is the case and only her legs or feet are typically within the realm of child pornography and shown. However, as demonstrated by child sexual abuse. Stevens' prosecution, crush videos constitute only a portion of the speech For these reason, § 48 is not narrowly banned by the terms of § 48. Prosecution of tailored using the least restrictive means. this sliver of the speech covered by § 48 could not, by itself, justify banning all of the IV. speech covered by the statute. "When the Government restricts speech, the As to dog fighting, the Government argues Government bears the burden of proving the that the camera typically focuses on the constitutionality of its actions." The dogs, with their "handlers" being shown Government has not met this burden. mostly from the waist or elbows down, and Therefore, we will strike down 18 U.S.C.
299 § 48 as constitutionally infirm because it Justice Brennan, in his concurrence in constitutes an impermissible infringement Ferber, isolated the salient features: "[T]he on free speech. In light of this conclusion, limited classes of speech. the suppression of we will vacate Robert Stevens' conviction. which does not raise serious First Amendment concerns, have two attributes. DISSENT They are of exceedingly 'slight social value,' and the State has a compelling COWEN, Circuit Judge, dissenting with interest in their regulation." These whom FUENTES and FISHER, Circuit statements establish the constitutional floor: Judges join for speech to be unprotected, at a bare minimum, its value must be plainly The majority today declares that the outweighed by the Government's asserted Government can have no compelling interest interest. The speech in this case shares those in protecting animals from intentional and repeatedly emphasized features. wanton acts of physical harm, and in doing so invalidates as unconstitutional a federal 1. statute targeting the distribution and trafficking of depictions of these senseless We agree with the Government that its acts of animal cruelty. Because we cannot interest in preventing animal cruelty is agree, in light of the overwhelming body of compelling. The importance of this interest law across the nation aimed at eradicating is readily apparent from the expansive animal abuse, that the Government's interest regulatory framework that has been in ensuring the humane treatment of animals developed by state and federal legislatures to is anything less than of paramount address the problem. These laws serve to importance, and because we conclude the protect not only the animals, but also the speech prohibited by 18 U.S.C. §48 to be of individuals who would commit the cruelty, such minimal socially redeeming value that and more generally, the morals of society. its restriction may be affected consistent with the First Amendment, we respectfully Our nation's aversion to animal cruelty is dissent. deep-seated. [The dissenting judges recounted the history of anti-animal cruelty I. laws in America.] The fact that many states have taken the additional step of empowering local humane societies to directly enforce anti-cruelty laws further a. highlights the ardor with which our society seeks to prevent cruelty. In discussing the contours of permissible content-based regulations, the Supreme [The dissenting judges discuss laws enacted Court has explained speech may be to protect animals, arguing that the large restricted when its "utterances are no body of law shows that the government has essential part of any exposition of ideas, and a compelling interest in protecting animals.] are of such slight social value as a step to truth that any benefit that may be derived Our nation has extended solicitude to from them is clearly outweighed by the animals from an early date, and has now social interest in order and morality." . . . established a rich tapestry of laws protecting
300 animals from the cruelty we so abhor. This government's interests in doing the same to interest has nested itself so deeply into the a subordinate level; the means through core of our society-because the interest which Congress seeks to advance these protects the animals themsevles, humans, interests-that is, pursuant to its Commerce and public mores-that it warrants being Clause authority-has no bearing on the labeled compelling. uncontroversial propositions that the interests implicated are nevertheless ones of Notwithstanding the majority's assertion, the most paramount order.... the Supreme Court in no way suggested to the contrary in Church of the Lukumi Babalu Nor do we find that section 48 is sufficiently Aye, Incorporated v. City! of Hialeah. . . . underinclusive as to undercut the [T]he ordinances there failed not because Government's claim of significance of its preventing cruelty to animals was not a interest. Where the allegedly ignored evils sufficiently paramount interest to be deemed are at the fringes of Congress's legislative compelling; rather. the Court found that the authority, that section 48 does not ordinances were so riddled with exceptions criminalize the personal possession of exempting all other killings except those depictions of animal cruelty or the intrastate practiced by Santeria adherents betrayed that trafficking of such materials does not render the real rationale behind the prohibitions it impermissibly under-inclusive. On the was an unconstitutional suppression of contrary, Congress could have reasonably religion. Indeed, Justice Blackmun was decided to focus its attention on purely explicit in rejecting the majority's instant interstate conduct, lest enforcement efforts characterization of the decision. . . . Thus, be hampered by costly constitutional Lukumi does not contradict our conclusion litigation. This is especially so in light of the that preventing animal cruelty is a indication that the materials Congress compelling interest. sought to prohibit "were almost exclusively distributed for sale through interstate or Furthermore, insofar as we understand the foreign commerce." We thus find no under- majority to suggest that Congress cannot inclusion in section 48 sufficient to cast have a compelling interest to advance a goal doubt on the Government's asserted interest when the subject of the regulation is not here. directly within its constitutional sphere of legislative authority, we must disagree with 2. this novel proposition. A congressional act may certainly significantly advance a Next, we find that the depictions of animal governmental interest of paramount cruelty prohibited by section 48 also satisfy significance, whether or not it does so the second part of the fundamental First directly. For example, Congress has sought Amendment balancing inquiry because they to protect children from physical harm by have little or no social value. This is criminalizing the distribution of child guaranteed by the very terms of the statute, pornography, and to ensure the public's which excepts speech that has "serious health and general welfare by enacting laws religious, political, scientific, educational, proscribing narcotics trafficking. That the journalistic, historical, or artistic value" states have already comprehensively from its reach. While this exception removes criminalized child abuse and drug the possibility of the statute reaching serious distribution in no way relegates the federal works, we consider it unlikely that visual
301 depictions of animal cruelty will often pornography and the sexual abuse of constitute an important and necessary part of children.... a literary performance, a scientific or educational work, or political discourse. Nor The speech at issue here is also intrinsically do we see any reason why. if some serious related to the underlying crime of animal work were to demand a depiction of animal cruelty. most clearly because its creation is cruelty, either the cruelty or the animal also predicated on a violation of criminal could not be simulated.... law. Implicated by the depictions at hand is not the mere prospect of future crime, nor is the instant proscription premised on society's disapproval of the views of the b. underlying depictions.... We do not quarrel with the majority's statement that it would We read Ferber, at its core, to stand for the be difficult to directly analogize this narrow proposition that a category of speech ongoing psychological harm suffered by may be constitutionally restricted where it child abuse victims to that of animals. depicts-and thus necessarily requires-the However, even a cursory consideration of intentional infliction of physical harm on a well-documented circumstances surrounding class of especially vulnerable victims in animal abuse, such as those present in the violation of law, where the distribution of dogfighting context, counsels toward the such depictions spurs their production but conclusion that the harms suffered by laws prohibiting the underlying acts are abused animals also extend far beyond that woefully under-enforced, and where the directly resulting from the single abusive act speech's social value is so de minimis as to depicted. Indeed, dogs that are forced to be outweighed by the important fight are commonly the subjects of brutality governmental goal of protecting the victims. and cruelty for the entire span of their lives. We find that the depictions of animal cruelty . . . In addition, law enforcement officials proscribed by section 48 possesses these face similar difficulties in prosectuing the essential attributes. creation of animal cruelty depictions as they do in policing child pornography, and In Ferber, the Supreme Court justified the Congress could have thus reasonably prohibition of child pornography based on concluded that targeting the distributors four grounds: [The dissenting judges list the would be the most effective way of drying four Ferber factors.] We elaborate each of up the animal-cruelty depictions market.... these four parts below and detail how depictions of animal cruelty implicate the Third, the Supreme Court held in Ferber same interests. that the advertising and sale of child pornography must be targeted since they First ... we find preventing animal cruelty "provide an economic motive for and are to also be a governmental interest of the thus an integral part of the production of most paramount importance. such materials." . ..
Second, the Supreme Court explained that These factors are self-evidently present in child pornography was an unprotected form the instant case. As discussed, substantial of speech because of the intrinsic obstacles exist in effectively detecting and relationship between the distribution of child prosecuting those directly involved in the
302 creation of animal cruelty depictions. overbroad. . . . As the Supreme Court Furthermore, the record here amply recently emphasized: "In order to maintain demonstrates that thriving market exists for an appropriate balance, we have vigorously depictions of animal cruelty.... enforced the requirement that a statute's overbreadth be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep." Courts Fourth, the Supreme Court justified its should invalidate a statute on overbreadth restriction in Ferber on the fact that the grounds only when the law "reaches a value of child pornography is de minimis. substantial number of impermissible [The dissenting judges conclude that applications." . . . There is no such depictions of animal cruelty are of de substantial overbreadth here. minimis value and § 48 excludes any work that might have value] . . . The Government may legitimately endeavor to quash the entire industry in all The speech at issue in this case possesses the its manifestations. Furthermore, because the essential attributes of unprotected speech difficulty in determining where or when the identified generally in Chaplinsk and of underlying acts of animal cruelty occurred child pornography as discussed in Ferber. was part of Congress's motivation for To reiterate, the Government has a enacting section 48 in the first place, compelling interest in eradicating animal excepting depictions that occurred at a time cruelty, depictions of animal cruelty are or in a place where the conduct was not intrinsically related to the underlying animal illegal would essentially gut the instant cruelty, the market for videos of animal statute. cruelty incentivizes the commission of acts of animal cruelty, and such depictions are of Stevens also argues that the statute is de minimis value. In reaching this decision, overbroad because it reaches individuals however, we emphasize that we have before who took no part in the underlying conduct. us, not a statute broadly purporting to ban all This argument is likewise foreclosed by depictions of criminal acts, but merely one Ferber, where the Court ruled that it was prohibiting depictions of a narrow subclass permissible for the government to annihilate of depraved acts committed against an the child pornography market at all levels, uniquely vulnerable and helpless class of which included penalizing distributors. victims. As such, we deem it unlikely that Similarly, for the Government to extinguish our ruling as to the constitutionality of the the market for depictions of animal cruelty, latter would have broad negative it must be allowed to attack its most visible repercussions to First Amendment freedoms. apparatus-the commercial distribution Accordingly, because Congress may network. proscribe depictions of animal cruelty without running afoul of the First Stevens's final argument that the statute is Amendment, we would reject Stevens's overbroad because it could extend to challenge to the constitutional validity of 18 technical violations of hunting and fishing U.S.C. § 48. statutes is also unpersuasive. . ..
II. Turning to the statute at hand, we are unable to imagine circumstances that would have to Section 48 is also not unconstitutionally coalesce for such a video to come within the
303 reaches of section 48, especially in light of can we disagree with our majority its exceptions clause. In short, there is colleagues that judicial power in this realm simply no "realistic danger" that the of constitutional law is one that should be challenged statute will deter such depictions. wielded sparingly, and then only with great Moreover, even if technical violations were deliberation and care. However, we know of to slip through the section 48(b) bulwark, we no principle that lower courts should refrain are confident that they would amount to no from developing our nation's free speech more than a "tiny fraction" of the depictions jurisprudence and decline to analogize and subject to the statute, which thus may "be apply the Supreme Court's precedents in this cured through case-by-case analysis of the area without first receiving the express fact situations to which its sanctions, permission to do so. In the absence of a assertedly, may not be applied." Supreme Court pronouncement to the Accordingly, section 48 is not substantially contrary, and in light of the unique overbroad. circumstances before us, we believe our determination-that the depictions of animal Ill. cruelty prohibited by 18 U.S.C. § 48 are not protected by the Constitution-both Finally, Stevens contends that the statute is faithfully discharges our judicial obligation unconstitutionally vague. ... to duly advance the law's development when appropriate to do so, and comports Stevens's primary argument, that the statute with the Supreme Court's articulation of the is necessarily vague because the definition limits of the First Amendment's protections of "depiction of animal cruelty" is as set forth in Chaplinsky and Ferber. predicated on state law is unavailing. A federal statute is not rendered In conclusion, 18 U.S.C. § 48 significantly unconstitutionally vague merely because it advances the Government's compelling incorporates state law; to the contrary, such interest in protecting animals from wanton is a legitimate drafting technique frequently acts of cruelty, and the depictions it utilized by Congress. ... prohibits are of such minimal social value as to render this narrow category of speech outside the scope of the First Amendment. Furthermore, the statute is neither IV. substantially overbroad nor un- constitutionally vague. Thus, we would hold To be sure, we are not insensitive to the that section 48 is a valid congressional act, concerns implicated when a federal court and would therefore AFFIRM Stevens's declares an entire category of speech outside conviction. the purview of the First Amendment. Nor
304 "Animal Cruelty Law Draws U.S. High Court Review in Speech Case"
Bloomberg April 20, 2009 Greg Stohr
The U.S. Supreme Court will consider Law Voided reviving a federal criminal law aimed at videos that show animal cruelty, agreeing to The Philadelphia-based appeals court struck review a federal appeals court's conclusion down the law on a 10-3 vote, saying the that the measure infringes speech rights. Constitution generally "does not require speech to have serious value in order for it The court will hear a government appeal in to fall under the First Amendment the case of a Virginia man who was umbrella." The court rejected the analogy to sentenced to three years and one month in child pornography, pointing to "the inherent prison for selling videos that depict pit bulls differences between children and animals." fighting each other and attacking other animals. The lower court overturned the The man challenging the law, Robert J. sentence. Stevens, describes himself as a 69-year-old book author and documentary film producer The dispute centers on a 1999 law aimed who specializes in promoting pit bulls. primarily at "crush videos," which show women crushing small animals with their Stevens says his small business sells feet in a manner that some people find educational material about the breed, sexually arousing. Although the law has yet including a video that documents the use of to be applied in a crush-video case, the pit bulls to help hunters catch prey. The government has pressed at least three video shows a Japanese pit bull fight, a prosecutions in other contexts. scene that Stevens says is used to distinguish dogs trained for hunting from those trained The Justice Department in its appeal likened for fighting. animal cruelty to child pornography, which the Supreme Court has said doesn't qualify Stevens was indicted after law enforcement as speech protected by the Constitution. officials bought three videos from him through the mail. The Justice Department "Depictions of the intentional infliction of said in its appeal that Steven's videos suffering on vulnerable creatures plays no "include scenes of savage and bloody dog essential role in the expression of ideas," the fights and of pit bulls viciously attacking appeal contended. other animals."
The law covers interstate, commercial The government didn't allege that Stevens trafficking in depictions of animal cruelty. took part in any acts of cruelty, a fact he The measure contains an exception for items says is constitutionally crucial. that have "serious religious, political, scientific, educational, journalistic, historical "While the government may well have a or artistic value." significant interest in combating acts of
305 animal cruelty, it has not established a have laws banning animal cruelty. compelling interest in prohibiting speech- visual or aural depictions-about such The court will consider the case during its conduct," Stevens argued. 2009-10 term, which starts in October. The case is United States v. Stevens, 08-769. All 50 states and the District of Columbia
306 "No Crime to Depict Animal Cruelty, Court Rules"
Los Angeles Times July 18, 2008 David G. Savage
In a setback for the animal-rights movement, videos were made. a U.S. appeals court struck down on free- speech grounds Friday a federal law that The law also was designed to stop so-called made it a crime to sell videos of dogs "crush videos." According to a fighting and other acts of animal cruelty. congressional report cited by the court, these were said to be "depictions of women All 50 U.S. states have laws against the inflicting torture (on animals) with their bare abuse of animals, the appeals court said, but feet or while wearing high-heeled shoes. "a depiction of animal cruelty" is protected The cries and squeals of the animals, by the First Amendment. obviously in great pain, can also be heard in the videos." The ruling overturns a Virginia man's conviction, the nation's first under the law. The law itself spoke broadly. It called for up Robert J. Stevens of Pittsville, Va., to five years in prison for anyone who advertised and sold two videos of pit bulls "creates, sells or possesses a depiction of fighting each other and a third showing the animal cruelty" for the purpose of making pit bulls attacking hogs and wild boars. money. This includes the showing of a "living animal" being "maimed, mutilated, He sold the videos to prosecutors in tortured, wounded or killed." Pittsburgh, was prosecuted, convicted and given three years in prison. Usually, videos and photographs are protected as free speech, even if they show In Friday's decision, the appeals court in illegal or abhorrent conduct. But in 1982, Philadelphia, by a 10-3 vote, said it was not the Supreme Court made an exception for prepared to recognize a new category of child pornography. It ruled that sexual speech that is unprotected by the First depictions of children could be prosecuted Amendment. as a crime, despite the First Amendment. This was the only way to stamp out such Acts of cruelty to animals "warrant strong abuse of children, the high court said. legal sanctions," the appeals court said, but it ruled unconstitutional the effort to Government lawyers said the animal-cruelty criminalize for-profit depictions of animal law should be upheld on the same basis. It cruelty. was needed to stop the abuse of animals for profit, they said. Congress passed the law in 1999 in hopes of stamping out the trade in animal-cruelty The appeals court disagreed, however. videos. Because the videos rarely showed "Preventing cruelty to animals, although an persons who could be identified, state exceedingly worthy goal, simply does not prosecutors often could not prove where the implicate interests of the same magnitude as
307 protecting children from physical and animals from wanton acts of cruelty." psychological harm," wrote Judge Brooks Smith of the 3rd U.S. Circuit Court of The Justice Department had no reaction Appeals. Friday to the ruling. Normally, however, the government appeals to the Supreme Court The three dissenters said the law should when a federal law is struck down as have been upheld so as to help in "protecting unconstitutional.
308 "Dogfighting Underworld Stretches Through Western Pennsylvania"9
Pittsburgh Post-Gazette August 28, 2007 Torsten Ove
NFL star Michael Vick's guilty plea may In buying treadmills, steroids and other have raised news media awareness of items related to the industry, undercover dogfighting, but police, prosecutors and troopers also came across a device made of humane officers have long battled this plastic pipe rigged with an extension cord bloody underworld. and alligator clips used to electrocute dogs.
In Western Pennsylvania, as elsewhere, the The following year, police arrested men subculture attracts a range of enthusiasts, from Verona, Jeannette and Bedford and from urban gangsters reveling in the my- three others from McKeesport, including dog-is-tougher-than-your-dog ethos to two brothers. They all pleaded guilty to purists who regard the blood sport as animal cruelty for their roles in staging legitimate, lucrative competition. dogfights, supplying equipment or drugs, or handling promotion. Kathy Hecker, humane officer for Animal Friends in Ohio Township, has described the In 2004, the second phase of that Pittsburgh region as a "hotbed" of investigation culminated in the arrest of two dogfighting. out-of-state men who ran the Sporting Dog Journal, a national underground magazine One sign of dogfighting's growth is the devoted to ranking dogs and promoting increasing number of pit bulls arriving at her fights across the country. shelter and others. Agents filed animal cruelty charges against Much of the fighting seems to have shifted James J. Fricchione, then 34, of Westtown, away from the city, where pit bulls have N.Y., and John -Jack" Kelly, then 80, of been associated with drug dealers protecting Jefferson, Ga., the owner and editor, their turf, to more remote areas like Fayette respectively, of the journal. and Greene counties. The attorney general's office said the case Arrests are not particularly high here, police was the largest of its kind ever brought in say. But there have been some significant Pennsylvania and shut down a major conduit cases in recent years, including the first that fed illegal betting. federal prosecution in the United States for the sale of dogfighting videos. In another dubious distinction, the region became the focal point of a unique case in The most prominent local case started in U.S. District Court which sent a Virginia 2001, when state troopers began infiltrating man to federal prison in 2005 for selling a six-county dogfighting network in which dogfighting videos here. wagering reached $50,000 a bout and injured animals were sometimes killed. Robert J. Stevens, 67, of Pittsville, Va., was
309 the first person to go to trial under a 1999 videos in the Sporting Dog Journal and sold law that prohibits the sale of depictions of tapes to undercover agents. animal cruelty. Mr. Stevens sold "Pick-A-Winna" and The statute was originally motivated by a "Japan Pit Fights," both of which feature movement in California to ban "crush dogs mauling each other in a ring, complete videos," in which women wearing spike with handlers, spectators and voice-over heels and short skirts slowly crush small narration. animals to death for the sexual gratification of foot fetishists. A judge sent Mr. Stevens to prison for 37 months and ordered him not to associate All states ban cruelty to animals, but no laws with dogfighting anymore. made distribution of videos showing cruelty illegal until then-President Clinton signed "I'm through with pit bulls," he promised. the law. But as the Michael Vick case shows, lots of Mr. Stevens and his wife, Julie, advertised others are not.
310 "Authorities Out to Crush Animal Snuff Films"
US.1 Today August 27, 1999 Martin Kasindorf
The two snippets of videotape played in footage shown in court Thursday, Gary criminal court here Thursday were not for Thomason, 47, of Long Beach, is being the squeamish. The scenes came from a one- sought on an arrest warrant. The video is hour commercial tape produced for a kinky similar to 21 others hawked at prices up to worldwide Internet trade in what devotees $90 on Thomason's Web site, prosecutors call "crush videos." Titled "The 'Tails' of say. Charlie's Ankles," the tape first shows a woman stomping a squeaking mouse with Thomason allegedly is one of four known her high-heeled pumps. U.S.-based producers of crush videos.
The other segment introduced as evidence American-made animal snuff films typically shows the same deep-voiced woman, show scantily dressed women stomping rats, wearing short shorts, torturing a white mice, hamsters or insects. But Tom mouse with nudges from open-toed shoes Connors, deputy district attorney of Ventura with 6-inch heels. The woman taunts the County, Calif., says he has downloaded mouse. "You're going to listen, and you're photos from overseas Web sites showing the going to die my way," she says. Then she killing of kittens, puppies and monkeys. crushes the mouse's head underfoot. Devotees buy nearly $1 million worth of the Diane Chaffin, 35, the star of the production, tapes every year, Connors says. Mexico, wore a lime-green jail uniform at the Brazil, Britain, and Japan are among other defense table. Municipal Court Judge R. production and distribution centers, he says. Bruce Minto denied a defense motion to reduce three felony charges of animal The charges against Chaffin and Thomason cruelty to misdemeanors "because of the mark the second U.S. crush video maliciousness involved." Instead, he ordered investigation to result in police action. In the La Puente, Calif., woman held for trial. May 1998, Long Island authorities charged Arrested two weeks ago, she remains in Thomas Capriola, 28, with animal cruelty custody and has pleaded innocent. for allegedly taping spike-heeled women killing rabbits, guinea pigs, mice, rats, Crush videos have emerged from turtles and snakes. Capriola will go on trial underground whispers to become the focus Sept. 28. of police investigations and outcries from national animal-rights organizations. Crush videos incense Hollywood's celebrity Proposed federal legislation that would animal-rights activists. The Doris Day clamp down on the sadistic filmmakers will Animal League is taking the lead in get a hearing before a House committee in supporting a bill introduced in Congress in October. May by Rep. Elton Gallegly, R-Calif. The bill would make it a crime for anyone to The alleged producer of the stomach-turning offer any "depiction of animal cruelty" for
311 sale in interstate commerce. If convicted, a Nobody should profit from the killing of person could face up to five years' "hamsters or any domestic pet," Vilencia imprisonment. says. But "mice and rats might be a gray area. We have a love-hate relationship with Soon, there could be something even worse mice and rats. If you're an apartment owner than animal crush tapes, Connors worries. in Los Angeles and you don't kill rats, "We have some stills of a baby doll they're you'll get fined." crushing," he says. "So our feeling is that in time, like all perversions, buyers will get Gallegly sees no allowable distinctions. desensitized and it'll get to be a baby. It's a "Even if you are killing vermin, there's still sick world." a humane way to do it," he says.
That forecast is "nonsense," says former In most states, animal cruelty laws crush-video maker Jeff Vilencia, of criminalize the conduct often shown on the Lakewood, Calif. Vilencia says recent videos. But Gallegly says federal legislation publicity forced his Squish Productions out is needed because local authorities of the business of selling insect-crushing essentially must catch someone in the midst videos through adult magazines. of videotaping to prove that the cruelty took place within the criminal statute of The desire to see women stomping tiny limitations period. creatures is "a very focused, specific fetish" among 2,000 men at most, and they're "It's difficult to get to the actual uninterested in seeing babies killed, Vilencia perpetrators," he says. "The most effective says. Vilencia blames the accessibility of the way of stopping this trade is by getting to Internet for putting the spotlight on a the people who are distributing this product decades-old underground practice. and making a profit."
312 "They're Perverted, but Are They Protected?"
Time October 1, 1999 Jessica Reaves
Members of Congress have a pretty "It's not surprising to me at all that these extensive exposure to all things sordid, but movies are making it into Congressional most of them were probably not prepared for hearings," he says. what they heard and saw this week. "The animal-rights movement is gaining a On Thursday, the House Judiciary lot of momentum in the U.S., and they've Committee's crime panel heard testimony got enormous support in Congress." from animal-rights activists pushing for criminal penalties for traffickers of animal But there is one obstacle the backers of the "squish" or "crush" movies. bill may not be able to jump over.
According to the Associated Press, the films, "This is a classic First Amendment which feature the graphic torture and death situation," says Time senior reporter Alain of animals, are part of what one witness Sanders. called a multimillion-dollar, worldwide industry. "The problem with the law the animal-rights advocates are proposing is that it's almost "It's time to stop this windfall," said Rep. impossible to target only the evil you want Elton Gallegly (R-Ca.), the sponsor of the to suppress." bill that would make it illegal to create, sell or possess any depiction of cruelty to You run the risk, says Sanders, of animals. eliminating other forms of expression: for example, documentaries about bullfights or The laws would be enforced, one California cockfights, or movies in which cruelty to deputy district attorney explained, in much animals is simulated for legitimate purposes the same way as those criminalizing the but not actually carried out. traffic of child pornography. Sanders doubts this case is Supreme Court With all the well-funded causes filling up material, but even if it did end up on the their hearing rooms, will Congress take the Justices' docket, there's little chance of a proliferation of animal crush films ruling against free speech. seriously? "The First Amendment," he says, "is the Time senior writer Frederic Golden thinks most closely guarded Amendment in the so. Supreme Court."
313 Salazar v. Buono
08-472
Ruling Below: Buono v. Kempthorne, 527 F.3d 758 (9th Cir. 2008)
Frank Buono, a former National Park Service employee and Roman Catholic, sued to have a Latin cross removed from a prominent outcropping of rock in the Mojave National Preserve. The district court found that the cross violated the Establishment Clause of the First Amendment and ordered an injunction prohibiting the display of the cross.
In response to litigation of this matter, Congress passed several pieces of legislation to protect the cross and prevent its removal. Once the district court issued the injunction barring display of the cross, Congress effected a transfer of the land upon which the cross sits to a private party. The district court found that the federal government's transfer to a veterans' group, via statute, of that small parcel of land violated the prior injunction against the display of the cross.
Questions Presented: (1) Does respondent have standing to maintain this action when he has no objection to the public display of a cross, but instead is offended that public land on which the cross is located is not also a forum on which other persons might display other symbols? (2) Even assuming respondent has standing, did the court of appeals err in refusing to give effect to the act of Congress providing for the transfer of the land to private hands?
Frank BUONO, Plaintiff-Appellee,
V. Dirk KEMPTHORNE, Secretary of the Interior, in his official capacity; Jonathan B. Jarvis, Regional Director, Pacific West Region, National Park Service, Department of the Interior, in his official capacity; Dennis Schramm, Superintendent, Mojave National Preserve, National Park Service, Department of the Interior, in his official capacity, Defendants-Appellants.
United States Court of Appeals for the Ninth Circuit
Decided May 14, 2008
[Excerpt: some footnotes and citations omitted]
McKEOWN, Circuit Judge: including the land where the cross is situated-violates the Establishment Clause A Latin cross sits atop a prominent rock of the United States Constitution. We outcropping known as "Sunrise Rock" in the affirmed the district court's judgment Mojave National Preserve ("Preserve"). Our permanently enjoining the government court previously held that the presence of "from permitting the display of the Latin the cross in the Preserve-which consists of cross in the area of Sunrise Rock in the more than 90 percent federally-owned land, Mojave National Preserve."
314 During the pendency of the first appeal, Sunrise Rock is between five and eight feet Congress enacted a statute directing that the tall and is constructed out of four-inch land on which the cross is situated be diameter metal pipes painted white. It is a transferred to a priv ate organization in Latin cross, meaning that it has two arms, exchange for a parcel of privately-owned one horizontal and one vertical, at right land located elsewhere in the Preserve. That angles to one another. It is undisputed that land exchange is already in progress and "[t]he Latin cross is the preeminent symbol would leave a little donut hole of land with a of Christianity. It is exclusively a Christian cross in the midst of a vast federal preserve. symbol, and not a symbol of any other The issue we address today is whether the religion." Buono 1, 212 F Supp. 2d at 1205. land exchange violates the district court's permanent injunction. We conclude that it Historic records reflect that a wooden cross does, and affirm the district court's order was built on that location as early as 1934 permanently enjoining the government from by the Veterans of Foreign Wars ("VFW") effectuating the land exchange and ordering as a memorial to veterans who died in World the government to comply with the original War I. Photographs depict the wooden cross injunction. and signs near it stating: "The Cross, Erected in Memory of the Dead of All BACKGROUND Wars," and "Erected 1934 by Members of Veterans of Foreign [sic] Wars, Death I. THE MOJAVE NATIONAL Valley post 2884." The wooden signs are no PRESERVE longer present, and the original wooden cross, which is no longer standing, has been The Preserve encompasses approximately replaced by private parties several times 1.6 million acres, or 2,500 square miles, of since 1934. The cross has been an primarily federally-owned land in the intermittent gathering place for Easter Mojave Desert, located in Southeastern religious services since as early as 1935, and California. In 1994, the Bureau of Land regularly since 1984. Management ("BLM") transferred the land to the National Park Service ("NPS"); both The current version of the cross was built by the BLM and the NPS are federal agencies Henry Sandoz, a local resident, sometime in under the Department of the Interior 1998. When NPS investigated the history of ("DOI"). Within the Preserve, the cross, Sandoz explained that he drilled approximately 86,000 acres of land are holes into Sunrise Rock to bolt the cross in privately owned and 43,000 acres belong to place, making it difficult to remove. Sandoz the State of California. Thus, slightly more did not receive a permit from NPS to than 90 percent of the land in the Preserve is construct the cross. federally owned. The Preserve is a "unit of the National Park System" and is given Following Buono I's injunction against "statutory protection as a national preserve." display of the cross, the cross has been The Preserve is under NPS jurisdiction and covered by a plywood box. When authority. uncovered, the cross is visible from vehicles traveling on Cima Road, which passes II. THE CROSS through the Preserve, from a distance of approximately 100 yards away. No sign The current incarnation of the cross atop indicates that the cross was or is intended to
315 act as a memorial for war veterans. A. BUONO I
Ill. LITIGATION OVER THE CROSS Frank Buono filed suit in March 2001 AND THE CONGRESSIONAL against the Secretary of the DOI, the RESPONSE Regional Director of NPS, and the Superintendent of the Preserve (collectively, The current controversy surrounding the "NPS" or "Defendants"). The district court cross surfaced in 1999, when NPS received concluded that the presence of the cross in a request from an individual seeking to build the Preserve violates the Establishment a "stupa" (a dome-shaped Buddhist shrine) Clause. In July 2002, the court entered a on a rock outcropping at a trailhead located permanent injunction ordering that the near the cross. NPS denied that request, "Defendants, their employees, agents, and citing 36 C.F.R § 2.62(a) as prohibiting the those in active concert with Defendants, are installation of a memorial without hereby permanently restrained and enjoined authorization. A handwritten note on the from permitting display of the Latin cross in denial letter warns that "[a]ny attempt to the area of Sunrise Rock in the Mojave erect a stupa will be in violation of Federal National Preserve." Law and subject you to citation and/or arrest." The letter also indicates that B. DESIGNATION OF THE CROSS AS "[c]urrently there is a cross on [a] rock A NATIONAL MEMORIAL outcrop located on National Park Service lands... . It is our intention to have the cross In January 2002, while this matter was removed." pending in district court, Congress passed a defense appropriations bill, which included a In 1999, NPS undertook a study of the section designating the Sunrise Rock cross history of the cross. NPS determined that as a "national memorial." neither the cross nor the property on which it is situated qualifies for inclusion in the National Register of Historic Places. Specifically, NPS recognized that the cross The cross is designated the "White Cross itself "has been replaced many times and the World War I Memorial." plaque that once accompanied it (even though it is not known if it is original) has NPS is statutorily charged with "the been removed." Also, the property does not supervision, management, and control of the qualify as an historical site because, among several national parks and national other things, "the site is used for religious monuments." National "memorials" fall purposes as well as commemoration." within the broader category of national ''monuments." Following the announcement by NPS of its intention to remove the cross, the United In October 2002, less than three months States Congress passed a series of laws, after the district court's injunction, in described below, to preserve the Sunrise legislation aimed at the Sunrise Rock cross, Rock cross. The first piece of legislation, Congress passed a defense appropriations enacted in December 2000, provided that no bill that included a provision barring the use government funds could be used to remove of federal funds "to dismantle national the cross.
316 memorials commemorating United States makes it no less likely that the participation in World War I." Sunrise Rock cross will project a message of government C. BUONO II AND PASSAGE OF § 8121 endorsement. . . . Nor does the remote location of Sunrise Rock The government appealed the district court's make a difference. That the Sunrise order and injunction. In September 2003, Rock cross is not near a government one month after oral argument before a building is insignificant-neither panel of our court but before a decision was the SCSC cross. What is issued, Congress enacted another defense significant is that the Sunrise Rock appropriations bill that included a land cross, like the SCSC cross, sits on exchange agreement regarding the Sunrise public park land. National parklands Rock cross. and preserves embody the notion of government oinership as much as urban parkland, and the remote location of Sunrise Rock does In June 2004, in affirming the district court's nothing to detract from that notion. permanent injunction, we held that the presence of the cross in the Preserve violates We also held that a reasonable observer, the Establishment Clause, agreeing with the even wxithout knowing whether Sunrise district court that this case is "squarely Rock is federally owned, would believe-or controlled" by Separation of Church and at least suspect-that the cross rests on State Committee v. City of Eugene, public land because of the vast size of the ("SCSC"). In SCSC, we reasoned that the Preserve, more than 90 percent of which is presence of a cross on city land, even where federally owned. A reasonably informed it bore a plaque dedicating the cross as a war observer aware of the history of the Sunrise memorial to veterans, violated the Rock cross would know not only that the Establishment Clause because "the presence cross was erected by private individuals of the cross may reasonably be perceived as (which the government argued favored its governmental endorsement of Christianity." view), but also that Congress has taken various measures to preserve the cross, i.e., The government's several attempts to designating it a war memorial, prohibiting distinguish SCSC were not persuasive. For use of federal funds to remove it, and example, we held that it was "of no denying similar access for a Buddhist shrine. moment" that the cross in SCSC was significantly taller, located in an urban area, Acknowledging the passage of § 8121 while or illuminated during certain holidays: the appeal was pending, we addressed the government's challenge that § 8121 Though not illuminated, the cross rendered the appeal moot or would soon do here is bolted to a rock outcropping so. We rejected the government's mootness rising fifteen to twenty feet above challenge for two reasons: First, we held that grade and is visible to vehicles on the case was not moot because the land the adjacent road from a hundred transfer had not yet taken effect. Second, yards away. Even if the shorter because "[m]ere voluntary cessation of height of the Sunrise Rock cross allegedly illegal conduct does not moot a means that it is visible to fewer case," we held that even if the land transfer people than was the SCSC cross, this had taken effect, the government still had
317 not carried its heavy burden to show STANDARD OF REVIEW mootness. Even if the land were transferred under § 8121 (a), it mai revert to the We review for abuse of discretion the government under § 8121(e), or as provided district court's order enforcing its prior in other statutes. In particular, we noted that injunction. A district court abuses its 16 U.S.C. § 431 authorizes relinquishment discretion in this regard if "it bases its of lands containing "national monuments" to decision on an erroneous legal standard or the federal government, and 16 U.S.C. on clearly erroneous findings of fact." § 410aaa-56 authorizes the Department of the Interior to "acquire all lands and interest ANALYSIS in lands within the boundary of the [Mojave] preserve by donation, purchase, or In the district court, Buono advanced two exchange." alternative arguments challenging the land exchange under § 8121. First, Buono argued D. BUONO III that the land exchange is an attempt to evade the permanent injunction. Alternatively, he Despite the injunction against display of the argued that the land exchange itself violates cross in the Preserve, the government began the Establishment Clause because it is an moving forward with the mechanics of the improper governmental endorsement of land exchange under § 8121. Buono then religion. The district court's holding is moved to enforce the district court's prior grounded only on the first basis, i.e., that the injunction, or modify it to prohibit the land land exchange is a sham transaction with the exchange as a violation of the Establishment purpose of permitting continued display of Clause. In April 2005, the district court the cross in violation of the permanent granted Buono's motion to enforce the injunction. On appeal, the government injunction, and denied as moot the request to contends that § 8121 was a bona fide amend the permanent injunction. According attempt by Congress to comply with the to the district court, "the transfer of the injunction. The government also argues that Preserve land containing the Latin Cross because it was not given the opportunity to which as [a] sectarian war memorial carries fully effectuate the transfer, there are an inherently religious message and creates unknown facts that render this controversy an appearance of honoring only those "unripe" for judicial review. servicemen of that particular religion is an attempt by the government to evade the permanent injunction enjoining the display [The Court concludes that the issue is ripe of the Latin Cross atop Sunrise Rock." The for judicial review.] district court deemed the exchange "invalid" and permanently enjoined the government "from implementing the provisions of Section 8121 of Public Law 108-87" and II. VIOLATION OF THE PERMANENT ordered the government "to comply INJUNCTION forthwith with the judgment and permanent injunction entered by th[e] court on July 24, We next address whether the district court 2002." It is that decision that the abused its discretion in concluding that government now appeals. "transfer of the Preserve land containing the
318 Latin Cross, which 'as [a] sectarian war The property "shall revert- to memorial carries an inherently religious government ownership if "it is no message and creates an appearance of longer being maintained as a war honoring only those servicemen of that memorial." particular religion' . is an attempt by the government to evade the permanent The government retains various rights of injunction enjoining the display of the Latin control over the cross and the property. NPS Cross atop Sunset Rock." is granted statutory powers of "supervision, management, and control" of national A. GOVERNMENT ACTION memorials. Thus, NPS's general supervisory and managerial responsibilities with respect to the cross remain, despite a land transfer.
1. CONTINUING GOVERNMENT In addition, § 8121(a) expressly reserves OVERSIGHT AND CONTROL OVER NPS's management responsibilities under THE CROSS AND PRESERVE § 8137. Section 8137 not only designates the PROPERTY cross a national memorial, but provides for $10,000 in funds for NPS to acquire and Although Congress sought to transfer the install replicas of the original plaque and property to the VFW, a private entity, the cross located at the site. The district court various statutes, when read as a package, found that these provisions gave the evince continuing government control. The government an easement or license over the following summary highlights that control: subject property for this particular purpose. Such an easement or license reflects ongoing NPS retains overall management and control over the property requiring supervision of the Preserve. compliance with constitutional requirements on that land. NPS is responsible for "the supervision, management, and The district court also focused on the control" of national memorials. significance of the government's retention of a reversionary interest in the property The "five-foot-tall white cross" in under § 8121(e). As in Hampton and Eaton, the Mojave National Preserve is the reversionary clause in § 8121(e) results designated as a "national memorial." in ongoing government control over the subject property, even after the transfer. The transfer of land to the VFW is conditioned on the VFW's Although the government argues that maintenance of the conveyed reversionary interests are run-of-the mill property as a memorial to World clauses in contracts with the government, War I veterans. the commonality of such clauses does not The Secretary must carry out its diminish their power or effect. The fact duties under § 8137, which provides remains that the government has an $10,000 for NPS to acquire and automatic reversionary interest in the install replicas of the original cross property if it determines that the property is and plaque. no longer being used as a "war memorial,"
319 which, at this juncture, is the cross itself. public. Rather, § 8121 directs that the land be transferred to the VFW, the organization As it did with respect to ripeness, the that originally installed a cross on Sunrise government argues that the court must await Rock some years ago and desires the exercise of the rev ersionary interest before continued presence of the current cross in determining whether it is a real factor in the Preserve. The private land being government control over the property. We exchanged for the federal property is owned reiterate the import of the reversionary by the Sandozes, who constructed the interest; it shows the government's ongoing present cross and who have actively sought control over the property and that the parties to keep the cross on Sunrise Rock. will conduct themselves in the shadow of that control. The courts in Hampton and The government argues that, of all parties, Eaton found dispositive the ongoing control the VFW is the "logical purchaser" because resulting from the reversionary interest; their it originally erected the cross at the site more analysis is persuasive here. than seventy years ago. The government cites Marshfield and another Seventh Circuit Based on the government's ongoing case, Mercier v. FraternalOrder of Eagles. supervisory, maintenance and oversight In both cases, the respective courts upheld responsibilities with respect to the cross and the sale of property to a private party the property, coupled with the reversionary without an open market bidding process for interest, the district court found that the the land. government retains important property rights in, and "will continue to exercise substantial Although neither the exclusion of other control over," the property on which Sunrise purchasers, nor the fact that Congress acted Rock is located, even after the land outside the scope of normal agency exchange. The government has failed to procedures for disposing of federal park land show that this determination is either clearly is dispositive, both acts demonstrate the erroneous or an abuse of discretion. government's unusual involvement in this transaction. These facts, coupled with the 2. METHOD FOR EFFECTUATING government's selection of beneficiaries of THE LAND EXCHANGE the land exchange who have a significant interest and personal investment in Next, we examine the method of sale by preserving the cross that has been ordered which § 8121 transfers the property to a removed, provide additional evidence that private buyer outside the normal NPS the government is seeking to circumvent the procedures for transfer of parklands. The injunction in this case. We see no basis to Secretary of DOI is authorized to exchange upset the district court's conclusion that the federal land for non-federal land under its VFW was a straw purchaser. jurisdiction. In this case, however, the decision to exchange the land was made by 3. HISTORY OF THE Congress and authorized by a provision GOVERNMENT'S PRESERVATION buried in an appropriations bill. The EFFORTS government did not hold a hearing before enacting such exchange. Nor did the Finally, the government's long-standing government open bidding to the general efforts to preserve and maintain the cross
320 atop Sunrise Rock lead us to the undeniable of the governmental responses aimed at conclusion that the government's purpose in preserving the cross, as well as ongoing this case is to evade the injunction and keep legislative authorizations. In that context, it the cross in place. In brief, wvhen litigation does not matter whether DOI has exercised was first threatened against NPS, Congress its powers to obtain such replicas; the banned the use of government funds to important fact is that Congress directed that remove the cross (§ 133). the first step in it do so- further showing its intent to forestalling inevitable enforcement of a preserve and maintain the cross. federal injunction. After litigation commenced, Congress designated the cross We agree with the district court that the and adjoining Preserve property as a government engaged in "herculean efforts" national memorial commemorating World to preserve the cross atop Sunrise Rock. We War I. Congress also appropriated up to also agree that "the proposed transfer of the $10,000 for NPS to acquire replicas of the subject property can only be viewed as an original cross and plaque at the site, once attempt to keep the Latin Cross atop Sunrise more trying to bolster the presence of the Rock without actually curing the continuing cross. Once the district court enjoined Establishment Clause violation." display of the cross in Buono I, Congress again prohibited the use of federal funds to B. CONTINUING GOVERNMENTAL remove any World War I memorials (which, ENDORSEMENT OF RELIGION obviously, includes the cross); and, while the appeal was pending in Buono II, Our inquiry into a purported cure of an Congress enacted § 8121, directing the Establishment Clause violation must also transfer of the subject property to a private analyze whether the improper governmental organization. but maintaining effective endorsement of religion has ceased. Because government control over the memorial and of the procedural posture of this case, we the use of that property. have necessarily already considered that question. We previously held that the The government does not contest these presence of the cross in the Preserve violates legislative responses to various stages of the the Establishment Clause. litigation in this case, or their purpose aimed at preserving the cross. Rather, the We also concluded that a reasonable government attempts to diminish their observer aware of the history of the cross importance. For example, the government would know of the government's attempts to argues that § 8137(c), which earmarks funds preserve it and the denial of access to other for the replica plaque and cross, was passed religious symbols. Even a less informed before the district court's injunction and that reasonable observer would perceive after the injunction, DOI has taken no action governmental endorsement of the message, to acquire the replicas. While this may be given that "[n]ational parklands and true, when Congress enacted § 8121, it preserves embody the notion of government specifically incorporated the Secretary's ownership," that the Sunrise Rock area is duty to carry out the responsibilities set out used as a public campground, and finally. in § 8137; Congress did not repeal the because of "the ratio of publicly-owned to funding provisions, or any other provision privately-owned land in the Preserve." permitting ongoing government control. The funding provisions offer historical evidence Nothing in the present posture of the case
321 alters those earlier conclusions. Under the that the district court applied erroneous legal statutory dictates and terms that presently standards. Finally, the district court's stand, carving out a tiny parcel of property decision does not reflect any clear error of in the midst of this vast Preserve-like a judgment. donut hole with the cross atop it-will do nothing to minimize the impermissible The district court did not abuse its discretion governmental endorsement. Nor does the in enjoining the government from proposed land exchange under § 8121 end proceeding with the land exchange under 16 the improper government action. Such a U.S.C. § 8121 and ordering the government transfer cannot be validly executed without to otherwise comply with its prior injunction running afoul of the injunction. that it not permit the display of the Sunrise Rock cross in the Preserve. In sum, the government has not shown the district court's factual findings to be clearly AFFIRMED. erroneous. Nor has the government shown
322 "Cross Display Draws U.S. Supreme Court Review in Test for Obama"
Blooniburg February 23, 2009 Greg Stohr
The U.S. Supreme Court will consider the the transfer of the land on which the cross fate of a cross erected as a war memorial on sits to a private citizen. The cross, currently federal land in a case that calls upon the covered by a plywood box because of the Obama administration to take a stance on litigation, is perched on a rock outcropping the role of religion in public life. about 100 yards away from a road in the southern California park. The justices today said they will review a federal appeals court decision that would A cross has been on the site since 1934, force removal of the cross, located in the when the private Veterans of Foreign Wars Mojave National Preserve in California, as a erected a wooden version and a plaque as a violation of the constitutional ban on memorial to fallen troops. government establishment of religion. Bush administration lawyers appealed the ruling Cross Replaced in October. The cross has been replaced several times. The dispute, which the justices will consider The current version, which isn't during the nine-month term starting in accompanied by a plaque, is made of white October, will be the first Supreme Court pipes and is between five and eight feet religion fight to confront the new high. administration. Solicitor general nominee Elena Kagan must decide whether to adopt A federal judge ruled that the cross, as a the Bush administration's defense of the Christian symbol, unconstitutionally cross or to shift positions and perhaps even promoted religion. Congress responded in withdraw the government's appeal. 2004 by enacting a law that directed the Interior Department to transfer about an acre "There's no question the Obama of land to the Veterans of Foreign Wars in administration will change the perspective," exchange for a privately owned plot nearby. said Marci Hamilton, a professor at Yeshiva University's Cardozo School of Law in New The San Francisco-based 9th U.S. Circuit York. She said that, even if the new Court of Appeals ultimately agreed that the administration presses ahead with the cross display was unconstitutional. The appeal, "they don't have to put everything court also said the 2004 law was an into it." improper effort to circumvent the order to remove the cross. The Bush appeal contends that Frank Buono, the Oregon resident objecting to the The Bush administration appeal called the cross, lacks legal "standing" to sue. The 2004 law "an eminently sensible and appeal also argues that Congress resolved constitutionally permissible way of any constitutional problems by authorizing resolving any establishment clause
323 problem." at the site. The National Park Service in 1999 refused a request from a person who Ongoing Role wanted to erect a Buddhist memorial near the cross. Buono, represented by the American Civil Liberties Union, said in court papers that the The Supreme Court in 2007 limited the transfer wouldn't eliminate the power of taxpayers to challenge government government's involvement with the cross. actions as unconstitutionally promoting He points to provisions that would keep the religion, throwing out a suit aimed at cross's designation as a national monument President George W. Bush's faith-based and would require the return of the land to initiatives office. That case divided the court the government if the war memorial isn't along ideological grounds, with Chief maintained. Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Buono, a Roman Catholic, also argued in his Anthony Kennedy forming the majority. court filing that the government had a 'history of favoritism" toward Christianity The case is Salazar v. Buono, 08-472.
324 "Intriguing Issues About Religion"
SCOTUSblog February 23, 2009 Lyle Denniston
The Supreme Court has given itself two Both of those fundamental questions are at choices to resolve a decade-old controversy issue in the case of Salazar (Interior over a Christian cross that stands on an Secretary) v. Buono (08-372). The case isolated acre in the desert, amid the vast 1.6 involves a 74-year-old war memorial in the million acres of the Mojave National form of a Christian cross (several times Preserve in San Bernardino County in replaced). It is made of white metal pipes, southeastern California. Either one is likely and stands at about five feet on Sunrise to be of considerable importance, in the Rock, a granite outcropping rising from the ongoing national dispute over placing desert floor. It is in a remote part of the huge religious symbols on public property-a Preserve, but it is clearly visible to those dispute that regularly returns to the Court. who approach it on a nearby road. There is nothing near it except rock, weeds and some The Court can end the controversy by ruling cactus. that the only challenger to the cross had no right to file his case. That seems, on the The controversy over its presence there has surface, to be a somewhat mundane issue of been an active issue since 1999; several court procedure. It is, however, a question of times, Congress has stepped in to save the deep consequence for those who oppose cross. religious symbols. That's because the underlying question is: What kind of harm Ten years ago, a Utah man, a National Park must such an opponent show before being Service retiree, asked permission to put up a allowed to seek a remedy in court? Buddhist shrine near the cross. The Park Service said no, and indicated it would take Or, the Court can decide whether Congress, down the cross. The American Civil stubbornly defending such a religious Liberties Union pressed the Service to do so, symbol's place on public property, can get but then Congress stepped in amid protests around the constitutional question by simply from one of its members and local officials. transferring the site to a private buyer, thus Ultimately, after several other measures did leaving the symbol intact where it is. That not succeed, Congress in 2004 ordered a outcome of the case likely will have wide one-acre site including the cross swapped impact on a variety of statutes and other for a five-acre parcel of privately owned monuments with religious themes that stand land, elsewhere in the Preserve. on government property, in cemeteries, parks and elsewhere. Many tributes to war That action was taken while the Ninth veterans, for example, use religious imagery. Circuit Court was considering a case filed Several veterans' groups, in fact, told the by another former Park Service official, Court in this case that "without action by Frank Buono, who lives in Oregon but once this Court, countless veterans memorials worked at the Preserve and returns from will perish." time to time for visits. He is a Roman
325 Catholic, and does not object to a cross contention that Buono had no injury, and being on public land. But he does say he is thus no right to sue, that would be the end of offended if a cross is allowed on the case. But, in reaching that conclusion, government property, when the site is not the Court presumably will make some new open to other displays, including, perhaps, law, clarifying the injury component of emblems of other religions. "standing" to challenge religion in the public square. The Interior Secretary-now Ken Salazar. in the new Obama Cabinet-is pursuing the If, however, the Court finds Buono was government appeal, continuing the case properly allowed into court, it would then originally taken to the Court by his decide whether the tactic chosen by predecessor, Secretary Dirk Kempthorne. Congress-a giveaway, or trade, of a site The government petition seeks to have containing a religious display-cures any Buono's challenge dismissed, first on the constitutional problem. The Court, in this argument that he had no right to sue (no particular case, however, is not confronted "standing," in Article III terms). Buono's with a simple disposal of the property into claim of injury, it contends, is not a religious private hands. Even while ordering the problem at all. Rather, it says, it is an transfer, Congress officially designated the "ideological objection that public lands on one acre plot with the cross as "a national which crosses are displayed should also be memorial commemorating United States public fora on which other persons may participation in World War I and honoring display other symbols." the American veterans of that war."
Salazar's lawyers argue that Buono has only This, according to Buono's lawyers, brings a "policy disagreement," and the Court has into play a federal law requiring the never allowed a lawsuit based on the National Park Service to regulate national Constitution's religious clauses for such a parks, monuments, and reservations, complaint. Since Buono has no "spiritual whether on federal or private land. That is stake" in the placement of the cross on enough to make the cross a continuing national lands, it asserts, he is suffering no object of the government's care and injury the courts can remedy. concern, making its presence still a constitutional problem, his lawyers assert. Buono's lawyers contend that the Court's precedents only require evidence of "direct "If Congress had wanted to limit the NPS's and unwelcome contact with a government- jurisdiction to national monuments or sponsored religious display or practice." memorials on federal lands, it could have That, they say, is Buono's objection, and his done so, as it has done in other statutes," resulting injury. It is not an "abstract, they say. generalized objection," the response contends. The case will come up for argument some time in the Court's next Term, starting If the Court were to accept the government Oct. 5.
326 "High Noon at Sunrise Rock"
W1'all Street Journal May 27, 2005 Christopher Levenick
Just west of the California-Nevada border, Wars were struck down in April. Defenders II miles south of the freeway that connects of the memorial hope to appeal, but their San Diego with Las Vegas, a small hill rises options are narrowing. above the sunbaked floor of the Mojave Desert. Atop that hill stands a six-foot cross, The ACLU, however, has made out quite fashioned out of four-inch-diameter steel nicely. Not only has it prevailed in the pipe. That dusty hilltop and its lonely courts to date, but it has managed to pocket marker just might become the scene of the $63,000. Owing to a quirk in civil-rights most significant church-state controversy law, the taxpayer once again ended up since last year's fight over the Pledge of paying the ACLU for pressing a highly Allegiance. controversial church-state lawsuit.
In 1934, a gritty prospector named J. Riley The Civil Rights Attorney's Fees Award Act Bembry gathered a couple of his fellow of 1976 specifies that anyone bringing an World War I veterans at Sunrise Rock. even partly successful civil-rights suit may Together they erected the cross, in honor of have the defendant pay all legal fees for both their fallen comrades. The memorial has parties, a discretionary award that is been privately maintained ever since, with routinely granted. Such fee-reversals are not small groups still occasionally meeting to permitted to successful defendants. remember the nation's veterans. Congress meant for the law to help citizens with little or no money, but since then A wrinkle developed in 1994, when the wealthy and powerful organizations have federal government declared the surrounding perverted that intention. They use the area a national preserve. With the cross now specter of massive attorney fees to force located on newly public land, the memorial their secularist agenda on small school soon caught the attention of the American districts, cash-strapped municipalities and, Civil Liberties Union. Working with Frank now, veterans' memorials. According to Buono, a retired park ranger turned Rees Lloyd, a former ACLU staff lawyer, professional activist, the ACLU demanded such litigation is "manifestly in terrorem," that the National Park Service tear down the intended to terrify defendants into settling cross. out of court.
Mr. Buono insists that his seeing the And what if the defendants don't knuckle monument ("two to four times a year") under? For advocacy groups that use staff or violates his civil rights. A federal district volunteer lawyers as plaintiffs' counsel, the court found in his favor, and the decision result is pure gravy. If they lose their cases, was subsequently upheld by the Ninth they have lost no money. If they win, Circuit. Last-ditch attempts to deed Sunrise defendants pay attorney's fees at the private Rock over to the local Veterans of Foreign sector's market rate, which the advocacy
327 groups can keep for themselves. If Buono v. Norton stands, the distance between the cross at Sunrise Rock and the Working to amend the Attorney's Fees headstones at Arlington National Cemetery Award Act is Rep. John Hostettler, a will have effectively disappeared. It is only a Republican from Indiana. Yesterday, he matter of time until someone visits that field reintroduced the Public Expression of of heroes and takes offense at all the Religion Act, under which plaintiffs could religious symbols inscribed in marble. Then still ask the courts to prevent governmental the courts vill have a hard time devising a endorsement of religion-but could no principle by which those thousands of longer soak the public for the privilege of crosses on federal land are not as being sued. unconstitutional as the one in the desert.
By eliminating the financial incentives for Undoing the unholy mess the courts have advocacy groups to take on trivial church- made of the Establishment Clause will be state cases, the measure would actually help the work of many years. In the meantime, restore the civil-rights law to its intended Congress should at least deter those who purpose. Equally important, it would signal would rather destroy veterans' memorials that Congress is exercising its duty to than allow them any religious symbols correct the judicial branch when it goes whatsoever. As Memorial Day approaches, astray of the Constitution. Such is clearly the swatting their hand from the taxpayer's case here. pocket is a good place to start.
328 "Veterans Fight to Be Remembered"
Reuters: Liberty Legal Institute May 21, 2009 Jennifer Grisham
WASHINGTON-Today, days before "A story untold is a story forgotten," said Memorial Day-Liberty Legal Institute Joe Davis, public affairs director for the joins five veterans groups, representing over VFW. "We must tell the story of our four million veterans, to ask the U.S. veterans and fallen heroes, and we must Supreme Court to save the Mojave Desert keep this veterans memorial." Veterans Memorial from being torn down by the ACLU, the subject of Salazar v. Buono Henry and Wanda Sandoz, current and to be heard in The High Court's 2009-2010 longtime caretakers of the memorial agree: term. The coalition is launching a major "If they were to tear down the memorial campaign to draw attention to the case: which has been there for 75 years, I would www.Dont'l'earMeDown.com. lose faith in our government," said Wanda Sandoz. Henry agreed, "It would be sad. It "Our nation is only as secure as we would be so sad." The Sandoz's have been remember those who have given their lives caring for the memorial since 1984 when for the freedom that we now have," said they promised their friend Rily Bembrey, a Kelly Shackelford, chief counsel of Liberty WWI veteran, on his death bed, that they Legal Institute and attorney for the veterans would look after the monument. Bembrey groups. "The issue of saving this veterans was one of many veterans who erected the memorial is something nearly every memorial after relocating to the desert after American will be interested in." the war to find physical and emotional healing. The seven-foot-tall memorial cross, erected in 1934 by World War I veterans as a war "If the plaintiff is so offended by the memorial to honor all fallen soldiers, stands possibility of seeing this memorial cross in in the midst of the 1.6 million-acre Mojave the desert, will he be offended when he Preserve. The legal case arose when a drives by Arlington National Cemetery?" former National Park Service (NPS) asked Jim Sims, National Senior Vice employee living in Oregon sued for the Commander of the Military Order of the memorial's removal. Purple Heart. "It's our opinion that this case is not about a single memorial cross, it is a Following attempts by Congress to larger issue of honoring veterans who served designate the memorial as a national and sacrificed for our country." memorial and to transfer the land to the VFW, the District Court and Ninth Circuit The American Legion is also concerned Court both ruled that the memorial is about the fate of the memorial. "If you don't unconstitutional and must be removed. The think this is not the first domino in a series, court also ordered the memorial covered you're not paying attention," said Mark with a plywood box until the U.S. Supreme Seavey, Assistant National Legislative Court ruling. Director for The Legion. "The cross is
329 emblematic of sacrifice, not religion." the veterans were involved, Pleasant Grove City v. Summuni, which dealt with donated This case is part of a larger trend of assaults monuments on public property, was resolved on war memorials with religious imagery in the Supreme Court earlier this year. and all displays with religious symbolism on public property. In addition to the lawsuit Liberty Legal Institute is a legal against the Mojave Desert War Memorial, organization committed to the defense of the ACLU is suing for the removal of the religious freedoms and First Amendment Mount Soledad Memorial (Paulson v. rights and is often before the U.S. Supreme Abdelnour, et al.). A related case in which Court.
330 "Supreme Court Agrees to Hear Mojave Cross Case"
L.A. Times February 24, 2009 David G. Savage
In a case that could reshape the doctrine of erected by the Veterans of Foreign Wars in separation of church and state, the Supreme 1934 and was originally maintained as a war Court agreed Monday to decide whether a memorial by the National Park Service. cross to honor fallen soldiers can stand in a national preserve in California. The American Civil Liberties Union objected to the cross and filed a suit on The case will give the Roberts court its first behalf of Frank Buono, a Catholic and chance to rule directly on the 1st former Park Service employee. The suit Amendment's ban on "an establishment of noted that the government had denied a religion." request to have a Buddhist shrine erected near the cross. In the last two decades, the justices have been closely divided on whether religious Two years ago, the U.S. 9th Circuit Court of symbols, such as the Ten Commandments or Appeals ruled for the ACLU and declared a depiction of Christ's birth, can be the cross an "impermissible governmental displayed on public property. endorsement of religion."
Four years ago, then-Justice Sandra Day Congress had intervened to save the cross. It O'Connor cast a fifth and deciding vote ordered the Interior Department to transfer against the display of the Ten to the VFW one acre of land where the cross Commandments in a Kentucky courthouse. stood. The 9th Circuit judges were She said such a public display of a religious unswayed, however. message violated the 1st Amendment because it amounted to a government Bush administration lawyers appealed to the endorsement of religion. Supreme Court last fall and said the "seriously misguided decision" would In dissent, the court's conservatives said require the government "to tear down a religious displays on public land generally cross that has stood without incident for 70 do not violate the 1st Amendment, since no years as a memorial to fallen service one is forced to listen to a religious message members." or participate in a religious event. The government also questioned Buono's A year later, O'Connor retired and was standing to challenge the cross, since he replaced by Justice Samuel A. Alito Jr., lives in Oregon and suffers no obvious harm President Bush's second appointee, who because of the Mojave cross. could form a new majority on religion. In a friend-of-the-court brief, the VFW, At issue is an eight-foot-tall cross in the American Legion and other veterans groups Mojave National Preserve in San Bernardino said the 9th Circuit's ruling, if allowed to County. A smaller wooden cross was first stand, could trigger legal challenges to the
331 display of crosses at Arlington National charge of defending the presence of the Cemetery and elsewhere. cross. Monday saw the return of Justice Ruth Bader Ginsburg. She had surgery for The court said it had voted to hear the case, pancreatic cancer on Feb. 5, but as now relabeled Salazar vs. Buono. promised, she was back on the bench when Arguments will be heard in October, and the court resumed hearing oral arguments. Obama administration lawyers will be in Lab tests said her cancer was in a very early stage and had not spread.
332 "Desert Cross May Lead to Landmark Church-State Ruling"
The Los Angeles Times October 22, 2008 David G. Savage
A long-running dispute over a cross in the Establishment Clause is violated only if the Mojave National Preserve in Southern government literally establishes a church or California may give the Supreme Court a coerces religious participation," said chance to shift the law on church-state Chemerinsky, who argued one of the Ten separation. Bush administration lawyers Commandments cases before the high court. urged the justices last week to take up the "Now, I think there are five." case and to reverse a series of rulings that would "require the government to tear down The Mojave cross is in a remote location on a cross that has stood without incident for 70 federal land in San Bernardino County, near years as a memorial to fallen service the border with Nevada. It dates to 1934, members." when the Veterans of Foreign Wars erected a wooden cross atop an outcropping known The appeal may be well timed. For two as Sunrise Rock. decades, the court has been closely divided over the presence of religious displays- Since then, the cross has been replaced such as a Christmas tree, the Ten several times. The current cross-two white Commandments or a cross-on public metal pipes welded together-stands less property. than 8 feet high, but can be seen from Cima Road, about 11 miles south of Interstate 15. Three years ago, the justices were evenly split in a pair of cases involving the Ten The dispute over the cross arose in 1999, Commandments. They upheld, 5 to 4, a when the National Park Service considered granite monument on the grounds of the and rejected a request to put a dome-shaped Texas state capitol, but struck down a Buddhist shrine at a nearby trail head. similar display inside a courthouse in Afterward, the park service said it planned Kentucky in another 5-4 ruling. to remove the cross.
Soon afterward, Justice Sandra Day But Congress intervened, blocking the O'Connor, who said both displays were agency from taking down the cross. In 2001, unconstitutional, retired. She was replaced Frank Buono, a retired park service by Justice Samuel A. Alito Jr. employee, sued the park service with the help of the American Civil Liberties Union "I think the court is poised for a major chapter in Southern California. Buono, a change as to the Establishment Clause," said Roman Catholic, alleged that the cross was UC Irvine Law Dean Erwin Chemerinsky, an unconstitutional religious display on referring to the 1st Amendment's ban on "an public land. establishment of religion."
"Under Chief Justice [William H.] A federal judge and the U.S. 9th Circuit Rehnquist, there were four votes to say the Court of Appeals ruled for Buono, saying
333 the cross must be removed. But Congress who cannot show that they have suffered an intervened again and told the Interior "actual injury" of some sort. A ruling in Department to give the VFW the acre of favor of the government on the standing land under the cross. issue could have a broad impact, as it would be hard for any objectors to prove that a Undaunted, the 9th Circuit struck that down religious symbol on government property too, saying it "would leave a little doughnut had caused them a true injury. hole of land with a cross in the midst of a vast federal preserve." A "reasonable The two sides also disagree over who is observer would perceive" this as a violating the essence of the Ist Amendment. "government endorsement of religion," the The ACLU and the 9th Circuit said the park ruling said. service should not show a "preference" for Christianity over Buddhism by allowing a U.S. Solicitor General Gregory G. Garre symbol of one while forbidding the other. urged the high court to review the 9th But the Bush administration's lawyer Circuit's decision, saying it was wrong for at countered by saying the court's order to tear least two reasons: First, Buono, the park down the cross could be seen as service employee, did not have standing to "demonstrating hostility toward religion." sue over the display of the cross, and second, Congress had solved the problem by Next month, ACLU lawyers will file a brief giving the land to a private group. urging the court to turn away the government's appeal. A decision on whether Chief Justice John G. Roberts Jr. has been to take up the issue may come in December skeptical of according standing to litigants or January.
334 "9th Circuit Topples Mojave Desert Cross"
The Associated Press June 8, 2004
A federal appeals court ruled yesterday that Peter Eliasberg, an ACLU attorney. an 8-foot cross in the Mojave National Preserve is an unconstitutional government The park service did not return calls seeking endorsement of religion. comment yesterday on whether it would ask the 9th Circuit to reconsider, appeal to the Ruling 3-0 in Biono v. Norton, the 9th U.S. Supreme Court or drop its appeals and Circuit Court of Appeals upheld a lower remove the cross. court that had ruled against the cross, which has become both a war memorial and a place Sixty years after the cross was constructed, of worship at a Southern California desert Congress in 1994 declared the 1.6 million- site known as Sunrise Rock. acre area, which is covered with Joshua trees, a national preserve under the National The case was brought by the American Civil Park Service's jurisdiction. Liberties Union on behalf of a retired National Park Service employee who The park service, however, defended the objected to the religious symbolism of the cross in court, saying the outcropping it rests steel-pipe structure, which sits about 10 on was being transferred to a local Veterans miles south of Interstate 15 between Las of Foreign Wars post in exchange for five Vegas and Barstow. acres of privately held land near the preserve, which is in San Bernardino The cross, the subject of constant attack by County. vandals, was constructed in 1934 by a group of World War I veterans. According to a Congress has also declared the site a war plaque they placed nearby, the cross was memorial. intended as a memorial, but has since attracted Christian worshipers. The government told the court that the pending land transfer made the case moot. The cross has been covered by a heavy tarp after a federal judge in Riverside sided with But the appeals court said the transfer could the ACLU in 2002, ruling that the "primary take years, meaning that the cross was still effect of the presence of the cross" was to on public land. Judge Alex Kozinski, a "advance religion." Reagan appointee, said that, even if the land was transferred, the cross may still be a The San Francisco-based appeals court, government endorsement of religion. however, did not indicate whether the cross must be immediately removed or whether it In ruling against the government, Kozinski can remain covered pending new appeals. noted that the park service has not opened the cross site to other permanent displays, "We think this opinion makes it clear that religious or not. In 1999, the park service the government has an obligation to take rejected an application for a monument to down the cross as soon as possible," said Buddha near the cross.
335 "Judge Orders Cross Removed from Mojave National Preserve"
National Parks Traveller September 8, 2007 Kurt Repanshek
A federaljudge has ruled that this cross atop Sunrise Rock in Mojave National Preserve must be removed NPS Photo.
Brace yourself, I'm about to delve into one Frank Buono, a former National Park of those public conversation taboos. You Service assistant superintendent at the know, you don't talk sex, politics, or preserve, filed a lawsuit, supported by the religion in public. American Civil Liberties Union, to have the cross removed. But at times I find the debates spurred by symbols fascinating. And. of course. Court papers from an earlier stage in the religious symbols seem to spur the most case noted that Buono was "deeply offended debates. The one I want to focus on involves by the display of a Latin Cross on Mojave National Preserve, where a federal government-owned property," reads a story judge has ruled that a cross can no longer from the San BernardinoSun. stand atop Sunrise Rock. Look at the picture. Are you "deeply The cross, a simple unadorned one, dates to offended" by the cross? 1934, when a wooden one was raised in honor of Americans who died during World In her ruling, Judge M. Margaret McKeown War I. It later was replaced by a more held that the cross's location within the enduring metal cross. As you look at it, it national preserve is an unconstitutional seems like a simple tribute. And yet in 2001 federal endorsement of Christianity.
336 This case has me wondering if there's a general? point when a symbol, religious or otherwise, becomes more a part of our country's As these cases reflect, there are no quick, history, of our social fabric, our culture, than clearcut answers to these questions. Judges it does a symbol of what it wxas initially seemingly have different standards when viewed as? weighing the merits of the cases before them. Across the country, different segments Beyond that, will this ruling lead the Park of our population hold different values. Service to remove any and all symbols or structures located within its properties that Where do you draw the line? How do you can be construed as religious? Should it decide what should be allowed, and what prohibit any and all religious services? should not? Should the parks be so aseptic of some segments of America's culture? Why did the judge in this case rule against How do you decide which symbols are the federal government, and yet back in offensive and which are not? If the cross in 2000 a court dismissed a lawsuit claiming question were taken down and replaced by a the federal government was endorsing a monument, would that be OK? Native American religion by restricting access to Rainbow Bridge at Rainbow Religion long has played a role in this Bridge National Monument? country's evolution. The Founding Fathers were pious men, the explorers who opened Of course, in the Rainbow Bridge case the up the West often talked of the majesty "He" court held that the couple that brought the created. Even John Muir referred to God in lawsuit had suffered no personal injury and his writings about nature: so had no standing. But what personal injury did Mr. Buono suffer in the Mojave Preserve In God's wildness lies the hope of matter? the world-the great fresh unblighted, unredeemed wilderness. Look elsewhere in the park system. The The galling harness of civilization Park Service earlier this year designated a drops off, and wounds heal ere we synagogue designed by Frank Lloyd Wright are aware. John of the Mountains, as a National Historic Landmark. Could (1938) page 317. someone argue that means the government endorses Judaism? I've long viewed myself as a secularist, and certainly don't want to see crosses and other At Devil's Tower National Monument in symbols, religious or otherwise, sprouting Wyoming, conflicts arise when Native on hills and mountaintops across the park Americans want to hold ceremonies at the system. And yet, are there times when you tower and ask that climbing be restricted. wonder whether we go too far in striving to be politically correct? And then there's the Christian Ministry In the National Parks, which holds non- Frankly, perhaps it would have been best if denominational services every Sunday the judge in the Mojave case simply ruled during the summer in more than 35 national that the cross did not belong in the preserve, parks. By permitting these services, does the regardless of whether it had any religious Park Service tacitly endorse religion in connotations.
337 "Critics Say the Park Service Is Letting Religion and Politics Affect Its Policies"
The Neii York Times January 18, 2004 Michael Janofsky
To halt the removal of a cross placed in the even in the face of arguments that the Mojave National Preserve almost 70 years establishment clause of the First ago to commemorate World War I veterans, Amendment, which safeguards the a Republican lawmaker from California has separation of church and state, is being proposed swapping the land it sits on with a violated. private group. "What this shows," said Jeff Ruch, The National Park Service recently ordered executive director of the alliance, Public the return of plaques bearing biblical verses Employees for Environmental that had hung in Grand Canyon National Responsibility, "is that Christian Park for more than 30 years before they fundamentalists and morally conservative were taken down last summer. The Park groups have a special entree with the Service also approved selling a book at the decision makers at the Park Service and the Grand Canyon that suggests the canyon was White House." created in six days several thousand years ago. A spokesman for the Park Service, Dave Barna, denied that decisions made in these And here at the Lincoln Memorial, an eight- recent cases reflected political motives, minute film that shows historical events at insisting that political appointees have the memorial, including demonstrations for sought advice from career employees in civil rights, abortion rights and gay rights, is resolving problems. "These are a few being revised by the Park Service to add unrelated issues that have been put together four minutes of more politically neutral just to criticize this administration," said Mr. events. Barna, who has worked for the Park Service for eight years. While the Park Service says these are unrelated incidents, reflecting no Even so, in all but the case involving the overarching political policy, a national cross, a senior political appointee at the Park alliance of public environmental workers Service has influenced the resolution of the says the efforts are evidence of a new dispute, fueling at least the impression that program of "faith-based parks" promoted by political considerations could have played a the Bush administration with the strong part in the decision. support of conservative groups. At the Grand Canyon, three plaques quoting The apparent trend, the alliance says, has psalms had been hanging on buildings at the resulted in a willingness by Republican South Rim since the plaques were given to appointees now in senior positions in the the park in the late 1960s by the Evangelical Park Service to resolve disputes by Sisterhood of Mary, a Christian group protecting religious or conservative content, founded in Germany during World
338 War II. book remain on the same shelves with books that offer evolutionary explanations of how Maureen Oltrogge, a Grand Canyon the park formed. About 300 copies have spokeswoman, said that a handful of visitors been sold, Ms. Oltrogge said, and more have each year complain about them, but that it been ordered. was not until the American Civil Liberties Union inquired last February that officials at But the book's presence clearly troubles the canyon sought counsel from regional some Park Service employees. As Mr. Barna Park Service officials in Denver and a Park said, "We're still struggling with it." Service lawyer in Santa Fe, N.M. Those discussions led to a decision last July by the When the controversy arose at the Grand Grand Canyon superintendent, Joe Alston, Canyon, a copy of the book was sent to Park to take the plaques down. Service officials in Washington for review. This month, the Alliance Defense Fund, a Within a few weeks, however, complaints conservative law firm that specializes in over his ruling had reached Washington, First Amendment issues and is representing prompting the Park Service's deputy Mr. Vail, threatened to sue the Interior director, Donald W. Murphy, to ask the Department if the book did not receive "the Sisterhood to return the plaques so they same treatment as books on the same topic could be displayed again. from differing viewpoints." Mr. Barna said that Mr. Vail's book had not led senior In a letter to the Sisterhood last July, Mr. officials to ask for a change in policy. They Murphy said he regretted that "further legal have determined, he said, that the book can analysis and policy review did not take remain on sale as an alternative theory to place" before the plaques were removed and Grand Canyon history-but one that the apologized for any inconvenience. He said Park Service does not necessarily support. he would like to "return to the historical situation that had been in place" while the The film at the Lincoln Memorial has been department conducted a more shown for nearly a decade. But because so comprehensive examination of the issue. many of the events held there have been large protests sponsored by liberal groups, Mr. Barna said the issue was still under they tend to dominate the presentation. Last review. year, Mr. Barna said, several conservative groups complained that the film reflected "a The other matter, involving a coffee-table leftist political agenda," leading to a book that promotes a creationist view of the decision by Fran P. Mainella, the Park Grand Canyon, has been resolved-at least Service's director, to order the film for now. After the book, "Grand Canyon: A lengthened to include events like the gulf Different View" (2003, Master Books), by war victory parade in 1991 and tape of every Tom Vail, a river guide and evangelical president since the memorial opened in Christian who leads religious-oriented 1922. excursions, first appeared on shelves at the park's six bookstores last summer, a park A dispute over the Mojave Desert cross employee raised objections. That led to a arose when a former Park Service employee, review by several members of the Grand Frank Buono, objected to the presence of a Canyon staff, who recommended that the religious symbol on federal land. After Mr.
339 Buono and the American Civil Liberties With the case now before the Ninth Circuit Union tried repeatedly to have it taken Court of Appeals, Mr. Lewis succeeded in down, Congress passed a measure in getting a provision into the 2004 defense December 2000, sponsored by appropriations bill that could resolve the Representative Jerry Lewis, a 13-term dispute by trading the acre around the cross Republican from California, that prohibited for land owned by a private veterans group spending money on its removal. A year in Barstow, Calif. later, the cross was designated a National Memorial, giving it federal protection. The government now claims that the land transfer, which could take several years, Mr. Buono then sued the Park Service and makes the litigation moot. Not so, say Mr. won, with a federal judge in Riverside, Buono's lawyers, who argue that the Calif., ordering the government to remove designation of the cross as a memorial keeps the cross. Rather than comply, the Park it in federal hands-and should keep the Service appealed. court case alive.
340 "Lawmaker Seeks Land Swap to Let Mojave Cross Stand"
The Los Angeles Times October 18, 2002 Julie Cart
A 5-foot cross that has been a fixture in the within the preserve. Mojave National Preserve for 68 years and the subject of intensive removal efforts is The exchange would allow local residents to now included in a proposed legislative land continue to gather for Easter sunrise services exchange that would redraw the park or other religious worship because the boundary to place the cross in private hands. ceremonies would take place on private land and satisfy the constitutional requirement for The white cross stands on a rocky slope separation of church and state. called Sunrise Rock, about 11 miles south of Interstate 15 near the Nevada border. Critics say the land swap is an effort to circumvent the July ruling of a federal judge The Bush administration is backing the who ordered the cross to be taken down. The efforts of Rep. Jerry Lewis (R-Redlands) to Park Service has not complied. preserve the cross, which is fashioned out of metal pipe and was erected in 1934 to honor "It's truly amazing that what is a clear-cut World War I veterans. The issue of a constitutional issue could engender the permanent religious symbol on the remote depth of legislative enactment and amount desert site has been simmering for three of effort that has gone into saving this years. The American Civil Liberties Union cross," said Frank Buono, a former deputy has sued to have the cross taken down. superintendent at the Mojave National Preserve now retired from the Park Service. Lewis has successfully interceded twice It was Buono who notified the Southern before. First, he presented a bill to prohibit California ACLU after determining that the the Park Service from using federal money cross was on public land. to remove the cross. Buono said he defends citizens' rights to Then he inserted language in the 2002 worship and he supports the idea of a defense appropriations bill that declared the veterans' memorial, as long as it is site a national memorial. nonsectarian.
The latest attempt is part of a massive "The issue, as a federal judge has ruled, is federal lands bill introduced last week in the the permanent placement of the cross-a House of Representatives. religious symbol-on public land," Buono said. Lewis' provision calls for one acre around the cross to be given to the Barstow Lewis' spokesman, Jim Specht, said the Veterans of Foreign Wars post in exchange congressman had acted on behalf of for five acres of land that would be donated constituents who oppose changes to the by a private landowner who owns property cross site. Lewis regards the cross as a war
341 memorial, rather than a religious symbol, Henry Sandoz has been taking care of the Specht said. cross since 1983, fulfilling a promise he made to a dying veteran. Sandoz, a retired Park officials have tried to be sensitive to mine employee who lives nearby, said he residents who love the site even though, has re-erected the cross more than 18 times officials say, the remote area is seldom in 20 years, as the elements and vandals visited. have had their way with the isolated site.
"People out here feel very strongly about it, The cross began life as two wooden planks and we wanted to work with them to find a and is now made of sturdy iron pipes welded resolution," said Mojave's chief ranger, together and sunk into concrete. Sean McGuiness. "Taking it down wasn't a high priority for us." According to Joe McGuire, quartermaster of the Barstow VFW post, the Barstow area- Religious symbols are not unknown on with its cluster of military bases-is a mecca national parkland. The Chapel of for military retirees. McGuire said he could Transfiguration is a major draw at Grand envision a tradition of decorating the site on Tetons National Park in Wyoming. But, to Memorial Day. be allowed, the structure or site must be found to have historical significance. "We look forward to having it," he said.
In the case of the Mojave cross, a Park The ACLU's case is still pending. The Park Service study found no historical merit in Service has not appealed the judge's ruling the site, which has changed significantly but has asked for a clarification. The judge since the cross was first erected. has not yet responded.
342 "Context is Key to Sorting out Commandments Rulings"
First Amiendment Center June 28, 2005 Tony Mauro
There are only 10 commandments, but it upholding the Texas display, includes a took the Supreme Court 138 pages of panoramic photo of the Capitol grounds that opinion to decide whether displays of those shows the Ten Commandments monument commandments belong on public property. as a sliver of granite that can barely be And in spite of the verbiage, it all boiled picked out among an assortment of other down to the views of one justice: Stephen memorials and lampposts. But dissenting Breyer. Justice John Paul Stevens, who said flatly that the message of the memorial is that The Supreme Court splintered yesterday on "this state endorses the divine code of the the issue in Van Orden v. Perry and Judeo-Christian code," included a very McCreary County v. ACLU, virtually different photo in which the face of the guaranteeing further litigation. The justices memorial, etched with the words of the Ten said a Ten Commandments monument on Commandments, almost fills the frame, with the Capitol grounds in Austin, Texas, could none of its surroundings visible. stay where it has been since 1961. But the Ten Commandments displays in two county For Breyer, the wide-range photo courthouses in Kentucky, put up in 1999 demonstrated one part of the crucial context. with unabashed pro-Christian intent, had to "The physical setting of the monument," he come down. wrote, "suggests little or nothing of the sacred... . The setting does not readily lend How to reconcile the two decisions? At the itself to meditation or any other religious strictly numerical level, the answer is activity. But it does provide a context of Breyer. He was the only justice in the history and moral ideals." majority in both 5-4 cases. Breyer was also swayed by the fact that the But beyond that, Duke University law monument had stood unchallenged since it professor Erwin Chemerinsky put it best was placed there in 1961. It took a homeless yesterday: "Context is everything." lawyer named Thomas Van Orden, who Chemerinsky argued before the high court often passed the monument on his way to against the Texas monument, and lost. the state law library, to take offense and take Chemerinsky was pleased to have won the the state to court. "Those 40 years suggest vote of O'Connor, who has voted on both more strongly than can any set of formulaic sides of the church-state divide, but sorry to tests that few individuals, whatever their have lost Breyer, the deciding vote. system of beliefs, are likely to have understood the monument as amounting, in Indeed, context was the driving force in the any significantly detrimental way, to a Court's decisions, and nothing made that government effort to favor a particular clearer than the color photographs that were religious sect," wrote Breyer. included in the Court's opinions in the Texas case. Breyer's concurring opinion, In dissent, Justice David Souter said the 40-
343 year quiescence had no importance in he read from the bench, Scalia wrote, "What deciding this establishment-clause case. Past distinguishes the rule of law from the potential challengers might have been dictatorship of a shifting Supreme Court deterred by financial and social majority is the absolutely indispensable considerations, he said. "Suing a state over requirement that judicial opinions be religion puts nothing in a plaintiffs pocket grounded in consistently applied principle. and can take a great deal out, and even with That is what prevents judges from ruling volunteer litigators to supply time and now this way, now that-thumbs up or energy, the risk of social ostracism can be thumbs down-as their personal preferences powerfully deterrent." dictate."
But Breyer's view held sway. And, just as So why does the Court sometimes embrace he was willing to let the monument stand, so government neutrality toward religion and too Breyer was content to let other sleeping sometimes not? A lack of courage, Scalia dogs lie: the Court's own precedents, said. "I suggest it is the instinct for self- contradictory as they may be at times. preservation, and the recognition that the Reviewing those precedents, Breyer said, Court ... cannot go too far down the road of "The Court has found no single mechanical an enforced neutrality that contradicts both formula that can accurately draw the historical fact and current practice without constitutional line in every case. losing all that sustains it: the willingness of the people to accept its interpretation of the The so-called Lemon test, which appeared to Constitution as definitive, in preference to survive yesterday's decisions, can explain the contrary interpretation of the some of the Court's judgments but not democratically elected branches." others, Breyer said, because it is so hard to draw the line. Legislatures may open their But Justice Sandra Day O'Connor had a sessions with prayers, the Court has said, but more principled explanation that seemed to public school football players may not. drive her own surprisingly strong stance against the Ten Commandment displays in The Texas monument, like other cases the Texas as well as Kentucky. Maintaining a Court has faced, was "borderline," Breyer sometimes wandering boundary between said. "And in such cases, I see no test- church and state, she seemed to say, is the related substitute for the exercise of legal key to avoiding the religious strife that judgment. . . . That judgment is not a besets many parts of the world. personal judgment. Rather, as in all constitutional cases, it must reflect and "At a time when we see around the world remain faithful to the underlying purposes of the violent consequences of the assumption the Clauses, and it must take account of of religious authority by government, context and consequences measured in light Americans may count themselves fortunate: of those purposes." Our regard for constitutional boundaries has protected us from similar travails, while Breyer's celebration of nuance and seeming allowing private religious exercise to contradiction was unacceptable to Justice flourish," O'Connor wrote. "Those who Antonin Scalia, who wants clear principles would renegotiate the boundaries between to be applied without exception. In his angry church and state must therefore answer a dissent in the Kentucky case, some of which difficult question: Why would we trade a
344 system that has served us so well for one In short, the justices needed only to look up that has served others so poorly?" and to the left of their own chamber to see the paradigm example of what passes muster And in a seeming response to Scalia's as of yesterday: the sculpted frieze of Moses repeated reference to the widespread public holding the tablets, standing for the last 70 acceptance of the Ten Commandments and years in a row of other lawgivers. other acknowledgements of God, O'Connor added, -It is true that many Americans find "We do not forget, and in this litigation have the Commandments in accord with their frequently been reminded, that our own personal beliefs. But we do not count heads courtroom frieze was deliberately designed before enforcing the First Amendment." in the exercise of governmental authority so as to include the figure of Moses holding So at the end of the day, what is the Court's tablets exhibiting a portion of the Hebrew verdict on the Ten Commandments? text of the later, secularly phrased Displays with long and benign histories Commandments," wrote Justice David seem OK; the thousands of Ten Souter for the majority in the Kentucky case. Commandments memorials like Austin's "In the company of 17 other lawgivers, most that were placed across the country will not of them secular figures, there is no risk that be uprooted. But those displays that are new Moses would strike an observer as evidence and sectarian-driven are vulnerable to legal that the National Government was violating attack. neutrality in religion."
345 Reed Elsevier Inc. v. Muchnick
08-103
Ruling Below: In re Literary Works in Electronic DatabasesCopyright Litig., 509 F.3d 116 (2nd Cir. 2007)
In the 2001 Supreme Court case of New York Times Co. v. Tasini, freelance authors brought suit against publishers, alleging that their copyrights were infringed when versions of their works were published in electronic form. While §201(c) of the Copyright Act extends privileges to reproductions of the copyrighted works, the authors argued that the provision did not include electronic versions. The Supreme Court agreed. This case was part of the litigation that followed the Tasini decision. In In re: Literary Works in Electronic Databases Copyright Litigation, the parties were seeking District Court approval for a settlement reached between freelance authors and electronic database publishers. However, the Plaintiff class includes a large population of freelance authors whose copyrights are unregistered, leading the court to question their jurisdiction. The 2nd Circuit found that the District Court did not have jurisdiction to approve the settlement, and the parties appealed.
Question Presented: Does 17 U.S.C. § 411(a) restrict subject matter jurisdiction of federal courts over copyright infringement actions?
IN RE: LITERARY WORKS IN ELECTRONIC DATABASES COPYRIGHT LITIGATION. Irvin Muchnick, Abraham Zale Znik, Charles Schwartz, Jack Sands, Todd Pitock, Judith Stacey, Judith Trotsky, Christopher Goodrich, Kathy Glicken and Anita Bartholomew, Objectors-Appellants, V. Thomson Corporation, Dialog Corporation, Gale Group, Inc., West Publishing Company, Inc., Dow Jones & Company, Inc., Dow Jones Reuters Business Interactive, LLC, Knight Ridder Inc., Knight Ridder Digital, Mediastream, Inc., Newsbank, Inc., Proquest Company, Reed Elsevier Inc., Union-Tribune Publishing Company, New York Times Company, Copley Press, Inc., Ebsco Industries, Inc. and Participating Publisher Tribune Company, Defendants-Appellees, Michael Castleman Inc., E.L. Doctorow, Tom Dunkel, Andrea Dworkin, Jay Feldman, James Gleick, Ronald Hayman, Robert Lacey, Ruth Laney, Paula McDonald, P/K Associates, Inc., Letty Cottin Pogrebin, Gerald Posner, Miriam Raftery, Ronald M. Schwartz, Mary Sherman, Donald Spoto, Robert E. Treuhaft and Jessica L. Treuhaft Trust, Robin Vaughan, Robley Wilson, Marie Winn, National Writers Union, The Authors Guild, Inc. and American Society of Journalists and Authors, Plaintiffs-Appellees, Edward Roeder, Appellant.
United States Court of Appeals for the Second Circuit
Decided November 29. 2007
346 Ixcerpt: some footnotes and citations omitted]
STRAUB, CircuitJudge: BACKGROUND
This class action copyright litigation arises In Nei York Times Co. v. Tasini, the from the unauthorized electronic Supreme Court held that §201(c) of the reproduction of various written works. Copyright Act does not permit publishers to Named plaintiffs and class members consist reproduce freelance works electronically mainly of freelance writers who contracted when they lack specific authorization to do with publishers to author the works for so. Tasini effectively requires publishers publication in print media, and retained the wishing to electronically reproduce written copyrights in those works. The contracts did works to obtain a separate license to do so. not grant the publishers the right to Shortly after the Court decided Tasini, three electronically reproduce those works or preexisting class action infringement suits, license them for electronic reproduction by which had been suspended pending the others. But the publishers did so anyway. decision, were activated and consolidated in Plaintiffs then brought this class action on the Southern District of New York. A the theory that such electronic reproduction fourth, nearly identical action was infringed their copyrights. After years of coordinated with that consolidated action. negotiations, class and defense counsel Together, these claims comprise the instant finally agreed on a settlement. Following litigation. lengthy motion practice, the District Court for the Southern District of New York In this case there are basically two kinds of certified a class and approved the settlement. plaintiffs: individual authors and trade We review that order and judgment on this groups representing authors. Defendants appeal. also fall into two classes: companies that publish original electronic content, such as The overwhelming majority of claims within the New York Times Co., and companies the certified class arise from the that operate databases that license content infringement of unregistered copyrights. We from publishers, such as Thomson have held, albeit outside the class action Corporation, the owner of Westlaw. context, that district courts lack statutory subject matter jurisdiction over infringement The named plaintiffs, and the class members claims arising from unregistered copyrights. they purport to represent, produced written The District Court never specifically works for certain defendants on a freelance addressed this potential jurisdictional flaw. basis. Based on their copyrights in those The precise issue on appeal is whether the freelance works, plaintiffs assert claims for District Court had jurisdiction to certify a two types of infringement. They first claim class consisting of claims arising from the that publishers, such as the New York Times infringement of unregistered copyrights and Co., infringed their copyrights. This to approve a settlement with respect to those infringement allegedly occurred when the claims. We hold that it did not. We therefore publishers licensed the articles for print vacate its order and judgment and remand publication only but also reproduced the the case for proceedings consistent with this articles in their electronic databases. Since opinion. the publishers needed but never received a
347 license for this second, electronic their works, defendants noted that this reproduction, plaintiffs allege that it jurisdictional failure likely affected more constitutes infringement. than 99 percent of the claims at issue.
Plaintiffs next claim that the electronic database services infringed their copyrights. This infringement allegedly occurred when those companies licensed the articles from Having reached an agreement, plaintiffs and the publishers and then reproduced the defendants moved the District Court for articles in their own electronic databases. class certification and settlement approval. Because the publishers never possessed the Objectors opposed the motion on the right to electronically reproduce the articles, ground, inter alia, that the settlement was plaintiffs urge, the publishers could not inadequate and unfair to Category C grant any license for electronic reproduction. claimants because they were paid little and Thus, any such license that the publishers singled out for reduction if the total claims sold to the aggregators and databases was exceeded $18 million. Objectors also legally ineffective. Consequently, according maintained that the disparate treatment of to plaintiffs, the electronic reproduction by Category C claimants illustrates that named the databases is unauthorized and infringing. plaintiffs, who each possess at least some registered copyrights, did not adequately Since Tasini established the basic soundness represent those absent class members who of plaintiffs' liability theory, the District possess only unregistered copyrights. Court swiftly referred the parties to mediation. Before the mediator, defendants Defendants responded that Category C contended that this litigation possessed scant claimants were adequately represented and settlement value because the District Court treated fairly because their claims were could never certify the vast majority of the essentially worthless. In justifying the C- claims for inclusion in any proposed class. reduction, defendants renewed their Defendants noted that section 411(a) of the jurisdictional argument, urging that Copyright Act provides that "no action for Category C claims mainly concerned "works infringement of the copyright in any United in which [the] copyright had never been States work shall be instituted until registered, and which were not, therefore, preregistration or registration of the within the court's subject matter copyright claim has been made in jurisdiction." Somewhat similarly, plaintiffs accordance with this title." 17 US.C. § maintained that "freelance authors typically 411(a) (emphases in defendants' mediation did not register their works and thus lacked submission). "That rule," defendants wrote, standing to bring an infringement action." "whose language could hardly be clearer, precludes the certification of any class After prolonged proceedings, the District respecting works in which a copyright has Court granted final class certification and not been registered." Defendants then cited final settlement approval in September of authority for the proposition that the District 2005. The District Court never considered Court "lacks jurisdiction . . . to certify a whether it had jurisdiction to certify a class class covering any unregistered works." consisting mostly of claims arising from Citing survey evidence showing that unregistered copyrights, or to approve a freelancers register less than one percent of settlement resolving those claims.
348 Objectors appealed, again challenging the general grant of original jurisdiction over settlement's fairness and the adequacy of ..all civil actions arising under the named plaintiffs- representation. Prior to Constitution, laws, or treaties of the United oral argument, we became concerned that States." Section 1338 more specifically the District Court and the parties had passed grants district courts original jurisdiction over a nettlesome jurisdictional question. over "any civil action arising under any Act We ordered the parties to submit letter briefs of Congress relating to . . copyrights." "addressing the issue of whether the District Court had subject matter jurisdiction over But these provisions are not necessarily the claims concerning the infringement of end of the matter. Congress may supplement unregistered copyrights." In re Literary or limit these basic provisions with Works in Elec. Databases Copyright Litig., additional requirements "expressed in a No. 05-5943-cv (2d Cir. Jan. 31, 2007). separate statutory section from jurisdictional Those submissions were timely filed and we grants." Barnhart v. Peabody Coal Co., 537 further questioned the parties at oral U.S. 149, 159-60 n.6, (2003). Section 411(a) argument. of the Copyright Act, which regulates a district court's authority to adjudicate a DISCUSSION copyright claim, is one such additional provision. It provides that "no action for We review de novo whether the District infringement of the copyright in any United Court had subject matter jurisdiction. In the States work shall be instituted until following sections, we first ask whether the preregistration or registration of the Copyright Act's registration requirement is copyright claim has been made in jurisdictional and then ask whether each accordance with this title." 17 US.C. § claim within the class must satisfy that 411(a). requirement. We answer both questions affirmatively. Since most of the claims Whether this requirement is jurisdictional is within this purported class do not satisfy the not up for debate in this Circuit. On two registration requirement, we also analyze recent occasions, we have squarely held that whether the supplemental jurisdiction it is. statute, 28 U.S.C. § 1367, remedies that jurisdictional defect. We conclude that it We are far from alone in this regard; there is does not. Based on those determinations, we widespread agreement among the circuits ultimately hold that the District Court lacked that section 411(a) is jurisdictional. jurisdiction to certify the instant class or approve the settlement. Given our own binding precedent, not to mention the persuasive authority of our I. The Copyright Act's Registration sister circuits, we again conclude that Requirement Is Jurisdictional section 411(a)'s registration requirement limits a district court's subject matter Federal district courts possess only limited jurisdiction to claims arising from registered jurisdiction, which Congress regulates by copyrights only. statute. In a copyright action, a district court initially derives its jurisdiction from two The parties advance several arguments that sources: 28 U.S.C. §§ 1331 and 1338. effectively ask us to overrule our holdings in Section 1331 provides district courts with a Morris and Well-Made. The short answer to
349 these arguments is that this panel simply In similar vein, defendants also point out cannot overrule a prior panel's holding. that other courts have enjoined the Nevertheless, for the sake of completeness infringement of unregistered copyrights we explain why these arguments fail. when at least one of the plaintiff's copyrights-in-suit was registered. This is The parties first urge that section 411(a) is another, although more limited, variation on jurisdictional in a very minimal sense. They the theme that where one of the plaintiffs claim that if a plaintiff brings a single claim claims arises from a registered copyright, based on a registered copyright, the district section 411(a) vests jurisdiction over any court acquires jurisdiction over any and all related infringement claim. There are several related copyright claims, even if those other problems with this argument. claims arise from unregistered copyrights. Defendants contend that "§ 411(a) is merely First, we have never held that a district court the plaintiffs ticket to court," that once may enjoin the infringement of unregistered stamped, allows him to raise all sorts of copyrights so long as the underlying action claims arising from unregistered copyrights. arises from a registered copyright held by Although defendants are not necessarily the same party. Second, even if injunctive bound by earlier arguments, their current relief against infringement of an tack cuts against their position before the unregistered copyright is available, that mediator and the District Court, where they relief is properly limited to situations, as broadly maintained that "works in which were found to exist in Olan Mills and [the] copyright had never been registered . . . Pacific and Southern Co., where a defendant were not . . . within the court's subject has engaged in a pattern of infringement of a matter jurisdiction." plaintiffs registered copyrights and can be expected to continue to infringe new Anyway, our holding in Well-Made shuts copyrighted material emanating in the future the door on this line of argument. There, the from the plaintiff. That sort of prophylactic plaintiff brought two infringement claims: relief furthers the purposes of the Copyright one based on the infringement of its Act generally and does not undermine the registered copyright in a 20-inch doll, the intended effect of section 411(a). To the other based on the infringement of its extent that Perfect 10, Inc. suggests a unregistered copyright in a derivative 48- broader exception, we decline to follow it. inch doll. The district court decided the first In any event, defendants' position calls for claim on the merits but dismissed the second an exception vastly broader than is found in claim for lack of jurisdiction. We affirmed any case by asking us to rule that on both scores. We specifically upheld the registration of one party's copyright would dismissal, for lack of jurisdiction, of the somehow provide jurisdiction over claims claim based on the unregistered copyright stemming from the unregistered copyrights even though the plaintiff had paired that of many other parties. We decline to do so. claim with a related claim stemming from the registered copyright in the 20-inch doll. In addition to the parties' arguments, we Thus, the existence of a claim based on a have considered whether the Supreme registered copyright does not bring within a Court's recent decision in Eberhart v. district court's jurisdiction all related claims United States, 546 U.S. 12, (2005) (per stemming from unregistered copyrights. curiam), "casts doubt" on Morris and Well-
350 Made; if so, we may reconsider our holdings must decide whether each claim within the in those cases. We conclude that Eberhart certified class must satisfy that requirement. does not undermine our holdings in Morris The parties urge that jurisdiction is proper so and Well-Made. long as the named plaintiffs' works were registered. Based upon the named plaintiffs' In Eberhart,the Supreme Court held that the registrations, the parties maintain, the seven-day time limit for moving under District Court had jurisdiction to certify a Federal Rule of Criminal Procedure 33 was class containing thousands of claims arising not jurisdictional. The Court underscored the from unregistered copyrights. We disagree. "critical difference between a rule governing subject-matter jurisdiction and an inflexible Initially, we note that the class action claim-processing rule," and slotted Rule certification device, Federal Rule of Civil 33's time limit within the latter category. Procedure 23, does not offer any alternative 546 U.S. at 13. source of jurisdiction in the class action context. We therefore must look to the A key difference between section 411(a) and language of section 411(a), as well as any Rule 33 renders Eberhart inapplicable. Rule applicable case law, to determine how the 33 merely sets forth a time limit for moving registration requirement applies in the class in a case that undoubtedly already falls action context. within the district courts subject matter jurisdiction. The rule is nothing more than Again, section 411(a) provides, in relevant an "'emphatic time prescription[] in [a] part, that "no action for infringement of the rule[] of court"' that regulates motion copyright in any United States work shall be practice within a jurisdictionally-sound instituted until preregistration or registration cause of action-namely, a prosecution for a of the copyright claim has been made in violation of federal law. Id. at 18. By accordance with this title." 17 U.S.C. § contrast, section 411(a) creates a statutory 411(a) (emphasis added). The question, as condition precedent to the suit itself. In so we see it, is whether the phrase "the doing, it "delineat[es] the classes of cases copyright claim" refers to all the claims . . . falling within a court's adjudicatory within the class or only those claims of the authority."' Id. at 19. Given that named plaintiffs. fundamental difference between Rule 33 and section 411(a), Eberhart's holding does not On the literal level, the language is not cast doubt on Morris and Well-Made. dispositive. The phrase "the copyright claim" does not require, or even tend For these reasons, we conclude that section toward, one reading. But case law does 411 (a)'s registration requirement is a provide some useful guidance as to how we jurisdictional prerequisite to a copyright should interpret that phrase. To begin with, infringement suit. we have applied Article III's jurisdictional requirements to each member of a class. II. Each Claim within the Certified Class Since statutory and constitutional Must Satisfy Section 411(a)'s Registration jurisdictional requirements are equally Requirement binding, the same approach should hold here. Having established that section 411(a) imposes a jurisdictional requirement, we And case law indicates that it does. In Zahn,
351 the Supreme Court considered whether the approach in Califano v. Yamasaki., There, diversity statute, 28 U.S.C. § 1332, requires the Court held that section 205(g) of the each class member to satisfy the amount-in- Social Security Act permits social security controversy requirement. The Court held claimants to seek relief via the class action that the phrase "matter in controversy- in device. But the Court carefully reiterated § 1332(a) refers to each class member's that each class member must meet the claim and therefore requires each claim to jurisdictional requirements of section satisfy the statute's amount-in-controversy 205(g). Stating the proposition more requirement. In so holding, the Court generally, the Court wrote, "Where the reasoned that Rule 23 does not authorize one district court has jurisdiction over the claim plaintiff to "ride on another's coattails." 414 of each individual member of the class, Rule US.. at 301 (internal quotation marks 23 provides a procedure by which the court omitted). In order to alter this result, may exercise that jurisdiction over the Congress needed to pass, and did pass, a various individual claims in a single new statute, 28 U.S.C. § 1367, which we proceeding." 442 US. at 701. analyze in the next section. We see no reason to interpret or apply the Two years later, in Weinberger v. Salfi, the jurisdictional requirement of section 411(a) Court addressed whether a district court any differently. In light of these precedents, properly certified a class of Social Security we hold that the phrase "the copyright claimants who asserted that they had been claim" in section 411(a) refers to each claim denied benefits wrongfully. Like the within a purported class, and thus requires Copyright Act, the Social Security Act that each class member's claim arise from a contains a provision limiting jurisdiction registered copyright. Only when each claim over social security claims: section 205(g) of satisfies that jurisdictional prerequisite may the Social Security Act, which grants subject the district court utilize Rule 23 to "exercise matter jurisdiction over only "final" [its] jurisdiction over the various individual decisions of the Secretary. In determining claims in a single proceeding." Id. whether the district court had jurisdiction to certify the class in Weinberger, the Supreme III. The Supplemental Jurisdiction Court applied this finality requirement to all Statute Does Not Apply Here the claims within the class. It concluded that the named plaintiffs' claims satisfied the [The Court addresses the possibility that the finality requirement but that claims of absent supplemental jurisdiction statute might class members did not. Given this statutory provide an alternate source of jurisdiction. jurisdictional defect, "the District Court was They conclude that it does not, holding that without jurisdiction over so much of the the text of the statute would not apply to complaint as concerns the class, and it jurisdictionally-deficient federal claims should have entered an appropriate order of asserted together with another, dismissal." 422 US. at 763. Weinberger jurisdictionally-proper claim.] thus supports the proposition that when a statute imposes a jurisdictional requirement, each member of a putative class must satisfy that requirement. CONCLUSION
Four years later, the Court reaffirmed this Because the District Court lacked
352 jurisdiction to certify the class and approve (personal jurisdiction) falling within a the settlement agreement, we VACATE and court's adjudicatory authority." Eberhart, REMAND for proceedings consistent with 5-16 US at 16 (internal quotation marks this opinion omitted). Then, in Arbaugh v. Y&H Corp., the Court applied Eberhart and Kontrick to a VACATED, REMANDED. statute, concluding that the employee- numerosity requirement of Title VII, 42 DISSENT U.S.C. § 2000e(b), is not jurisdictional, noting that "the 15-employee threshold JOHN M. WALKER, JR., Circuit Judge, appears in a separate provision that 'does dissenting: not speak in jurisdictional terms or refer in any way to the jurisdiction of the district The majority insists that the copyright- courts,'" 546 US. at 515. Finally, and most registration requirement, 17 U.S.C. § 411(a), recently, in Bowles v. Russell, the Supreme presents a "jurisdictional" bar to this class- Court determined that 28 U.S.C. § 2107(a), action settlement. To be sure, in the past we which explicitly provides that in a civil have labeled the copyright-registration action "no appeal shall bring any judgment requirement as "jurisdictional," at least with . . . before a court of appeals for review respect to an action for damages. The unless notice of appeal is filed[] within Supreme Court, however, in Eberhart v. thirty days" of entry of judgment, is United States, urged us to more carefully jurisdictional. The Court emphasized the distinguish between true jurisdictional bars jurisdictional significance "of the fact that a and claim-processing rules that may be time limitation is set forth in a statute," 127 waived and to revisit our use of the S. Ct. at 2364, and noted that § 2107(a) "jurisdiction" label in that light. Following admits of no exception. that instruction and bearing in mind the underlying purpose of 17 U.S.C. § 411(a), as As will be explained, I think that § 411(a) is well as our recent holding that not all more like the employee-numerosity members of a settlement-only class need to requirement in Arbaugh than it is like possess a valid cause of action under the § 2107(a) in Bowles. Moreover, because applicable law, leads me to conclude that the Congress passed § 411(a) to facilitate the fact that some of the otherwise presumably enforcement of copyrights, I conclude that valid copyrights have not been registered is compliance with § 411(a) is a mandatory an insufficient basis for undoing this class- prerequisite to the accrual of a cause of action settlement. action for damages, but not a prerequisite to the possession of constitutional standing. In Kontrick v. Ryan, and Eberhart, the Thus this suit falls within the ambit of our Supreme Court held that even "emphatic" holding in Denney v. Deutsche Bank A.G., time prescriptions in the rules of court are that not all members of a settlement-only not necessarily "jurisdictional," Kontrick, class must possess a valid cause of action 540 US at 454. It explained, "[c]larity under the applicable law at the time of would be facilitated . . . if courts and settlement. litigants use the label 'jurisdictional' not for claim-processing rules, but only for Plaintiffs are a class of mostly freelance prescriptions delineating the classes of cases authors whose work has been reproduced (subject matter jurisdiction) and the persons without their consent in defendants'
353 electronic databases. An individual it." 17 US.C. § 501(b) (emphasis added). infringement suit for damages requires that the plaintiffs copyright be registered; yet As we have emphasized, the distinction few members of the class hold registered between a rights-creating statute and an copyrights in their work. Of course, should enforcement mechanism is an important any wish to sue individually, the formality one: we typically consider the latter a claim- of prior registration could be met. After processing rule within the meaning of several years of intense negotiation, and Eberhart. For instance, in Richardson v. prior to trial (and hence without registration Goord, 347 F.3d 431 (2d Cir. 2003) (per of many of the copyrights held by class curiam), we concluded that the exhaustion members), plaintiffs and defendants reached requirement of the Prison Litigation Reform the comprehensive settlement that is the Act ("PLRA") is a claim-processing rule subject of this appeal. The majority vacates because exhaustion is not "essential to the that settlement on the basis that the district existence of the claim . . . and therefore to court lacked jurisdiction over the class the presence of an Article III case or because most of its members have not controversy," id at 434 (internal quotation registered their copyrights. For the reasons marks and citation omitted). Similarly, that follow, I respectfully dissent. registration is not essential to the existence of a copyright claim or, as is discussed 1. Jurisdiction and Section 411(a) below in Part II, to the presence of an Article III case or controversy. Section Section 411(a) of Title 17 provides that "no 411(a) provides that even if registration has action for infringement of the copyright in been refused by the Copyright Office, "the any United States work shall be instituted applicant is entitled to institute an action for until preregistration or registration of the infringement if notice thereof, with a copy copyright claim has been made in of the complaint, is served on the Register of accordance with this title." I turn first to the Copyrights. . . . [T]he Register's failure to text of § 411(a) and ask whether it speaks in become a party shall not deprive the court of "jurisdictional" terms. It does not. jurisdiction to determine that issue." 17 US.C. § 411(a). Thus, the registration Section 411(a) does not, by its terms, requirement appears simply to be a provide the copyright holder with any of the procedural or "administrative sticks in his bundle of rights. prerequisite[]," Boos, 201 F.3d at 183, to ensure that the "deposit, application, and fee Indeed, it is addressed to the copyright . . . have been delivered to the Copyright holder, not the courts, and it simply sets Office in proper form," 17 U.S.C. § 411(a). forth a prerequisite to suit-namely, And failure to comply with an registration. Furthermore, as 17 U.S.C. administrative prerequisite "would not § 501(b) makes clear, § 411(a) speaks not to deprive district courts of jurisdiction." Boos, rights but to the means of their vindication. 201 F.3d at 183. Indeed, under § 411(a), It stipulates, "[tihe legal or beneficial owner district courts' jurisdiction is not disturbed of an exclusive right under a copyright is by the denial of registration or by the entitled, subject to the requirements of Register's failure, in that event, to become a section 411, to institute an action for any party to the litigation. infringement of that particular right committed while he or she is the owner of Second, the legislative history of Title 17
354 confirms that § 411(a) does not create rights register. but is rather like the enforcement mechanisms or claim-processing rules in Third, § 411(a) is riddled with Kontrick, Eberhart, and Arbaugh. jurisdictionally recognized exceptions. For instance, courts routinely permit plaintiffs to Congress passed § 411(a) to implement a file suit before applying for a copyright or policy preference that courts, before they while the Copyright Office is considering process a copyright claim, should consider their application. The general exception that the views of the Copyright Office, whose allows post-suit registration is particularly duty is to determine whether "'the material telling because "[iut has long been the case deposited constitutes copyrightable subject that 'the jurisdiction of the court depends matter and the other legal and formal upon the state of things at the time of the requirements of [Title 17] have been met."' action brought."' Grupo Dataflux v. Atlas H.R. Rep. No. 94-1476, at 156. Indeed, Global Group, 541 U.S. 567, 571, (2004). "[tihe Copyright Office certificate of registration is prima facie evidence of the Moreover, as the majority notes, several facts stated therein. This has generally been circuits have seen fit to enjoin the held to mean prima facie proof of ownership infringement of an unregistered copyright. and validity." Novelty Textile Mills, Inc. v. These circuits have reasoned that, by the Joan Fabrics Corp., 558 F2d 1090, 1092 very language of 17 U.S.C. § 502(a), "[t]he n.1 (2d Cir. 1977) (citation omitted). In this power to grant injunctive relief is not limited respect, § 411(a) is like other statutory to registered copyrights, or even to those exhaustion requirements, which are copyrights which give rise to an designed to permit agencies to pass first on infringement action." Olan Mills, 23 F.3d at contested questions, the resolution of which 134. Permitting district courts to enjoin the requires a certain quantum of expertise, and infringement of unregistered copyrights is most such exhaustion requirements are not not only consistent with § 502(a), but also jurisdictional. Furthermore, because this suit gives meaning to § 408(a)'s provision that was settled before trial, the views of the "registration is not a condition of copyright Copyright Office are unhelpful; the protection," and to the congressional policy copyright registration requirement only of making available the additional remedies serves its statutory purpose when a cause is of statutory damages and attorney's fees to litigated, not settled. those who register.
The legislative history of the Copyright Act Finally, it is evident that § 411(a) is not a also suggests that registration, rather than definitive limitation on the court's power, being a prerequisite to federal jurisdiction, is characteristic of a jurisdictional provision, a prerequisite to certain remedies-namely from § 411(a)'s explicit exception of foreign statutory damages and attorney's fees. works from its reach. The history of this Registration furthers the important policy exception further counsels concluding that behind copyright of disclosing works and § 411(a), unlike jurisdictional provisions, is making them part of the public domain. But not meant to be inflexible. In discussing because registration is not required for possible ways to amend the Copyright Act copyright protection, the Copyright Act to bring it into compliance with the Berne provides the additional remedies of statutory Convention, the Senate Judiciary Committee damages and attorney s fees as incentives to argued that because:
355 [r]egistration . . . [while] not, which is always required, and statutory technically speaking, a condition for standing, which is not required of all the existence of copyright . . is, members of a settlement-only class. Uor however, a precondition for the instance, in Lerner v. Fleet Bank, N.A., a exercise of any of the . . . rights RICO class action, we held that RICO conferred by copyright, . . . [the] standing was not "jurisdictional," at least in metaphysical distinction between the the class-action context. We explained that existence of a right to prevent "plaintiffs' lack of statutory standing does unauthorized use of a copyrighted not divest the district court of original work, and the exercise of that right, jurisdiction over the . . . action." 318 F.3d [should not be] maintain[ed]. at 130. And we went on to conclude that the district court could exercise supplemental Although the House did not endorse the jurisdiction over plaintiffs' state-law claims Senate's view, Congress as a whole was able despite the fact that certain members of the to reach consensus on an amendment to the plaintiff class lacked RICO standing. We Act only because it deemed § 411(a) a emphasized that RICO standing was "formality," and the Berne Convention did "sufficiently intertwined with the merits," not forbid signatories from "'impos[ing] Lerner, 318 F.3d at 128, and thus not [formalities] ... on works first published in jurisdictional. its own territory."' La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d Drawing such a distinction between 1195, 1206 & n.11 (10th Cir. 2005). constitutional standing, the absence of which deprives the court of authority to redress Taken together, § 411(a)'s language, harm to that plaintiff, and statutory standing, legislative history, jurisdictional exceptions, the absence of which may be waived, makes and exception for foreign works strongly particular sense in the settlement context. indicate that the registration requirement is We have, for example, approved the more akin to a claim-processing rule than a settlement of mass-tort lawsuits involving jurisdictional prerequisite. plaintiffs who have been exposed to toxic substances and therefore run the risk of II. Constitutional Standing in the Class- incurring actionable injuries at some point in Action Context and Section 411(a) the future-but who, while they may have constitutional standing, surely could not This appeal concerns the pre-trial settlement survive a motion to dismiss for failure to of a class action. Whether or not § 411(a) is state a claim were they to bring their case to a claim-processing rule, compliance with its trial. And I am not disposed to undo such requirements is not necessary for a copyright settlements because certain class members plaintiff to have constitutional standing. may not, at the moment of settlement, Indeed, as the Seventh Circuit has aptly possess the statutory cause of action that explained, it is hard to see how the filing of they could have in the future and could then an administrative claim could ever be the litigate. prerequisite to asserting constitutional injury. A plaintiff alleging copyright infringement must show ownership of a valid copyright And, in the class-action context, there is a and copying by the defendant, the distinction between constitutional standing, registration requirement, and resulting
356 opinion of the Copyright Office., bear upon Corp., and Morris v. Business Concepts, the validity of the copyright and its Inc.,-that attach the "jurisdictional" label ownership and thus "go[] to the merits of the to § 411(a). I have already sought to explain action," cf. Lerner, 318 F3d at 129. But a why we should reconsider our too-facile use plaintiff alleging copyright infringement has of the jurisdictional label in the wake of suffered an injury-in-fact whether or not he Eberhart. I now explain why those cases, in has registered his copyright. As the Eighth any event, offer only equivocal support. Circuit has explained, "infringement itself is not conditioned upon registration of the The plaintiff in Well-Made Toy, for instance, copyright." Olan Mills, 23 F.3d at 1349. manufactured two similar rag dolls, differing Thus, all members of the plaintiff class- principally in their size. Although it whether or not they have registered their registered a copyright in only the smaller of copyrights-have been injured by the two dolls, Well-Made Toy sought defendants if we assume the truth of damages from the defendant based on the plaintiffs' allegations. defendant's alleged reproduction of the larger of the two dolls. In concluding that The other two requirements of Article III Well-Made Toy could not maintain such a standing-an injury that is traceable to the suit, we distinguished Streetwise Maps, Inc. challenged action and redressable by a v. VanDam, Inc. In Streetwise Maps, while favorable decision-are also satisfied in this the plaintiff had registered a copyright in case. Plaintiffs' injuries are a direct result of only the second of two maps it published (as defendants' infringement and would be in Well-Made Toy), the second map redressed by an award of damages for their incorporated the substance of the first map economic losses. Plaintiffs therefore have (unlike the dolls in Well-Made Toy); and standing in the constitutional sense. thus, we concluded, the "registration certificate [for the second map]... suffice[d] Finally, as I noted in Part I, claim- to permit [the plaintiff] to maintain an action processing rules are not essential to the for infringement based on defendants' presence of an Article III case or infringement [of its unregistered copyright controversy, Richardson, 347 F3d at 434. in the first map]." 159 F.3d at 747. The That plaintiffs have established an Article III difference between Well-Made Toy and case or controversy regardless of whether Streetwise Maps was a matter of logic, not they have registered is further support for locution: "Because a derivative work is the conclusion that § 411(a)'s registration cumulative of the earlier work, it is logical requirement is a claim-processing rule rather that the registration of the derivative work than a jurisdictional prerequisite, and that would relate back to include the original plaintiffs' settlement should not be work, while registration of the original disturbed. material would not carry forward to new, derivative material." Murray Hill Publ'ns v. III. Well-Made Toy, Morris, and ABC Commc'ns, Inc., 264 F.3d 622, 632 Weinberger Are Distinguishable (6th Cir. 2001) (emphasis added).
In concluding that § 411(a) is Morris v. Business Concepts, Inc. is equally "'jurisdictional," the majority relies on two unhelpful to the majority. In that case, while decisions of our court-Well-Made Toy we did say that "subject matter jurisdiction Manufacturing Corp. v. Goffa International was lacking because the registration
357 requirement of § 411(a) was not satisfied," and medicare claims through an 259 F3d at 72. we also asserted, without administrative process and precludes federal mentioning -jurisdiction," that "proper courts from exercising general federal registration is a prerequisite to an action for question jurisdiction over such claims. The infringement," id. at 68. Thus, Morris is Court explained, "it is the Social Security hardly a beacon of clarity. Act which provides both the standing and the substantive basis for the presentation of The majority likewise relies upon th[e] constitutional contentions." Weinberger i. Salfi, 422 U.S. 749 (1975), to WJ1einberger, 422 U.S. at 760-61 (emphasis support its contention that each member of a added); But, as I have already explained, in settlement-only class must satisfy the this case, constitutional injury does not 'jurisdictional" requisites to a suit under the depend upon compliance with § 411(a): Copyright Act-including as it so happens, whether or not they have registered their § 411(a). But the majority misses the point: copyrights, all members of the class in this Weinberger supports the conclusion that the case have suffered sufficient injury to satisfy essential question is whether compliance Article III. with a statutory exhaustion requirement is necessary for plaintiffs to have For the foregoing reasons, I would not constitutional standing. And, indeed, in dismiss the settlement on jurisdictional Weinberger it was. Weinberger involved 42 grounds. I respectfully dissent. U.S.C. § 405(g), a provision of the Social Security Act that channels social security DISSENTING
358 "Court to Rule on Copyright Settlement"
SCOTUSblog March 2, 2009 Lyle Denniston
After examining the case multiple times, the jurisdiction over the lawsuit, and thus had no Supreme Court agreed on Monday to rule on authority to approve the settlement. Some the scope of federal court authority to decide 99 percent of the claims covered by the cases involving copyright infringement, settlement were by creators of unregistered when the claims have been settled. The works. A group of publishing companies Court limited its review to a question it had then took the issue on to the Supreme Court, composed: "Does 17 USC 411 (a) restrict arguing that the nullification of the the subject matter jurisdiction of the federal settlement contradicted the Supreme Court's courts over copyright infringement actions?" decision in 2001 in New York Times, et al., The case is Reed Elsevier, et al., v. v. Tasini, et al. Muchnick, et al. (08-103). It was the only case granted Monday.
As stated, the question appears to be a The copyright case the Court added to its variation on the first question raised by the docket for decision at its next Term had petition: "Whether the usual power of lower been pending at the Court since before the courts to approve a comprehensive Term opened. It was listed ten times for settlement releasing claims that would be consideration at the Justices' private outside the courts' subject matter Conferences, leading finally to Monday's jurisdiction to adjudicate, confirmed in order. Matushita Elec. Indus. Co. v. Epstein, 516 U.S. 367 (1996), was eliminated in The provision at issue in the case, part of the copyright infringement actions by 17 USC Copyright Act of 1976, says that "No action 411 (a)." for infringement of the copyright in any United States work shall be instituted until As a practical matter, the case involves . . . registration of the copyright claim has whether the courts had authority to scuttle been made in accordance with this title." an $18 million, nationwide settlement of Congress adopted that clause to assure that copyright infringement claims that authors courts, in dealing with infringement claims, made when their free-lance articles or would have a chance to consider the views photos in major publications were made of the U.S. Copyright Office, which decides freely available in those publishers' whether a work may qualify for copyright electronic databases. This was a class-action protection. lawsuit. The Second Circuit, in its decision in the A District Court had approved the Elsevier case, ruled that when a class action settlement, but the Second Circuit Court involving copyright infringement claims is ruled that the federal law limiting copyright before the court, every member of the class lawsuits to those who have registered their must have registered the work before suing. works meant that the District Court had no Since many of the authors involved in this
359 case had not done so, the class had no right jurisdictional question. It thus did not accept to sue, the Circuit Court said, so the District for review a second question, testing Court had no authority to approve the whether the Second Circuit had ignored the settlement. Supreme Court's Tasini opinion seeming to encourage settlement of the copyright claims The Court's grant was limited to the at issue.
360 "Supreme Court to Revisit a Case on Breach of Copyright"
The New York Times March 3, 2009 Adam Liptak
WASHINGTON-The Supreme Court In November 2007, a divided three-judge agreed on Monday to revisit a case it panel of the United States Court of Appeals decided eight years ago in favor of freelance for the Second Circuit, in New York, writers who said that newspapers and declined to approve the settlement, saying it magazines had committed copyright did not have jurisdiction over the claims of infringement by making their contributions the second group of authors. available on electronic databases. The question for the Supreme Court this In that 2001 decision, Nei' York Times time is whether courts may approve global Company v. Tasini, the Supreme Court class action settlements that include claims seemed to contemplate and even encourage they would not have had jurisdiction to a settlement of the case, saying that the decide. parties "may enter into an agreement allowing continued electronic reproduction Many authors supported the settlement, but of the authors' works." some objected. The objectors said that authors who had not registered their works After the Tasini decision, many freelance were treated unfairly because their share works were removed from online databases. would be reduced if there was not enough Most publishers these days require freelance money to go around. writers to sign contracts granting both print and online rights. But all concerned urged the court to hear the case, Reed Elsevier v. Muchnick, No. 08- In an effort to settle the original copyright 103. infringement claims, authors, publishers and database companies undertook four years of A brief for one group of authors said that what they said were intensive, complex and most freelance writers "will not spend $35 costly negotiations. In the end, the or $45 to register a year's worth of works" defendants agreed to pay $18 million for a to bring a lawsuit over "articles they sold global settlement of all claims in four class years ago for $50 or $100." actions to two groups of authors-those who had registered copyrights in their works and "With no comprehensive settlement in those who had not. place," the brief added, "the publishers and databases will have no choice but to search The second group was by far the more for and delete whole swaths of freelance numerous. But the federal copyright law works from their digital archives, or risk allows suits claiming copyright infringement repetitive litigation over the same dispute only after works are registered. the parties sought to settle in this case."
361 "Tasini Parties Ask Supreme Court to Overturn Settlement Rejection"
Librar' JournalAcademic Newswire July 8, 2008 Andrew R. Albanese, Contributing Editor
Parties to the Tasini v. Aew York Tines case the [Second Circuit] addressed in its ruling," recently filed a petition for certiorari, objector Irv Muchnick told the LJ Academic meaning they will ask the U.S. Supreme Newswire in an interview last year. "In fact, Court to reverse a November 2007 decision we all argued against it when the Second by the Second Circuit that rejected a Circuit asked for a briefing on it." proposed settlement. In a surprise decision, the Second Circuit rejected the settlement If left to stand, the current ruling would proposal last year, ruling that the federal leave both parties in legal limbo, Muchnick courts could not approve payments of claims explained, with publishers unable to get the to those holding unregistered copyrights. If "complete peace" they seek, and with the Supreme Court agrees to hear the appeal, unregistered claimants unable to settle the Justices will see a rare sight: both parties through a class-action. "I think the current to the case will argue to reverse the lower ruling is terribly inconvenient and inefficient court ruling. The deadline for the parties to for all concerned, as well as for information file their petitions is August 13, 2008. consumers and for society," Muchnick added. "A failure to reverse would mean not Although a group of "objectors" still only that this settlement is rejected but also opposes the settlement terms put forth, and that no other settlement could include would like to see the settlement fail, all unregistered claims." parties agree that the Second Circuit ruling rejecting the case, which essentially leaves That would mean that some publishers freelancers with unregistered copyrights would likely remove articles by unregistered with no standing to resolve their writers from their databases rather than complaints-was wrong. "Neither the "face a potential wave of lawsuits even appellants (objectors) nor the appellees greater than they might have budgeted to (defendants plus plaintiffs) raised the issue handle earlier," Muchnick noted.
362 "Second Circuit Holds Copyright Class Action Claims Must Be Based on Registered Copyright"
JOLT digest December 4, 2007 Andre\w Ungberg- -Edited by Wen Bu
On November 29, the Court of Appeals for nature of § 411(a), treating it as a the Second Circuit vacated and remanded a jurisdictional bar when in reality it is a decision of the District Court for the claim-processing rule. Relying on Eberhart Southern District of New York to certify a v. United States,, 546 U.S. 12 (2005) and a class of freelance authors and accept a series of other Supreme Court decisions to settlement of their copyright infringement define the distinction, he argued that claims. The claims arose from unauthorized § 411(a) is more like claim-processing rules reproduction of the authors' works on than a jurisdictional bar because the rule Internet sites and web databases. primarily allows consideration of the Copyright Office's views on the validity of a The Second Circuit vacated the district copyright (which is not at issue in a court's ruling on jurisdictional grounds. settlement), is a prerequisite only to Citing Section 411(a) of the Copyright Act, particular remedies, and is limited through a which provides that claims will not be number of recognized exceptions. instituted until preregistration or registration of the copyright claim has been made, the He stated that as Congress passed the Act to court held that the district court lacked facilitate the enforcement of copyrights, the jurisdiction over the claims raised by the statute makes registration a prerequisite to majority of the class members, who had not recover damages, but not all members of a registered their works. The court held that settlement-only class need to hold registered because § 411(a) requires each class copyrights for the court to have jurisdiction member's claims to be based on a registered over their claims. copyright, the district court lacked the authority to both certify the class and accept Interestingly, Judge Walker and Judge any settlement. Winter are possible members of the plaintiff class but declined to recuse themselves, Judge Walker dissented, arguing that the issuing a separate opinion explaining their majority fundamentally misunderstood the non-recusal.
363 "Appeals Court Voids Agreement to Pay Freelancers for Work Published on the Web"
Neiw York Times November 30, 2007 Richard Perez-Pefia
A federal appeals court yesterday threw out The suit named major publishers and archive a hard-fought agreement between publishers services, including the Thomson and freelance writers to pay the writers for Corporation, The New York Times electronic reproduction of their work. Company, Dow Jones & Company, the LexisNexis unit of the Reed Elsevier Group In a 2-to-i decision, an appellate panel ruled and the Tribune Company. that the courts had no jurisdiction over the copyright dispute and that a lower court After years of negotiation, the companies erred in accepting the writers' lawsuit and and the writers reached a settlement in approving the settlement. March 2005, which the judge approved. It provided for mostly modest payments to People on both sides of the dispute said it freelancers, and capped the publishers' was unclear what would happen next- payout at $18 million. whether the decision would be appealed, a new suit filed, or a new agreement But yesterday, the United States Court of negotiated. Appeals for the Second Circuit in Manhattan voided the settlement. "The decision is an outrage, and I hope it's appealable to the Supreme Court," said In his decision, Judge Chester J. Straub Gerard Colby, president of the National wrote that federal copyright law allows Writers Union, and a plaintiff. claims for damages only by writers who have registered their work with the United In 2001, the United States Supreme Court States Copyright Office. The vast majority ruled that digital reproduction of newspaper, of freelancers did not register, so he said the magazine and other articles without the courts had no jurisdiction over their writers' permission violated their disputes, and the case should not have been copyrights. Publishers removed such articles approved as a class-action suit. from their digital archives and began requiring freelancers to explicitly cede He noted that the defendants had themselves electronic rights to their work. made similar arguments before settling and stated that they settled the case out of "the But that did not resolve claims for monetary desire to achieve global peace in the damages for the earlier violations. In Federal publishing industry." District Court in Manhattan, Judge George B. Daniels allowed a class-action suit by The settlement had recognized the gap in writers and their organizations; without that standing, providing higher payments for crucial step, each writer determined to win writers who had registered their work with payment would have had to sue individually. the copyright office.
364 Judge Ralph K. Winter joined in the registration requirement was a malleable majority. In a dissenting opinion, Chief procedural rule for processing a legal claim, Judge John M. Walker argued that the not a strict limit on the court's jurisdiction.
365 "Righting a Wrong Against Writers"
The Legal Intelligencer April 4, 2005 Shannon P. Duffy
A federal judge has granted preliminary preliminary approval of the settlement, approval of an $18 million settlement in a clearing the way for the lawyers to spend $1 class-action suit on behalf of thousands of million from the settlement fund to notify freelance writers who sold literary works to the class. newspapers and magazines and whose works later appeared in electronic databases The settlement also provides that the without their consent. plaintiffs' lawyers-Boni, along with co- lead counsel Diane Rice of Ilosie Frost Lead plaintiffs' lawyer Michael J. Boni of Large & McArthur and A.J. De Bartolomeo Kohn Swift & Graf in Philadelphia said the of Girard Gibbs & De Bartolomeo, both in settlement is believed to be the largest San Francisco-may petition for up to $4.4 copyright class-action settlement in history. million in attorney fees.
"This is a terrific result for the freelancers," Several prominent authors served as named said Boni. "This settlement will finally plaintiffs in the suit, including E.L. provide payment to thousands of freelance Doctorow, Lettie Cotton Pogrebin, James authors who woke up one day and found Gleick and Derrick Bell. The Authors Guild, their works being sold on electronic the National Writers Union, and the databases without their permission." American Society of Journalists and Authors also joined as co-plaintiffs. Under the terms of the proposed settlement, publishers including the New York Times, According to court papers, it was industry Time Inc., and the Wall Street Journal, and practice for years for freelance authors to database companies including Dow Jones sell their works to publications without a Interactive, Knight-Ridder, Lexis-Nexis, written contract. Customarily, for a fee paid Proquest and West Group agreed to pay to the author, the author granted to the writers up to $1,500 for stories in which the publisher the first right to publish the work writers had registered a copyright. in a specified edition of the newspaper or magazine, but in all other respects the author Writers who failed to register their retained copyright ownership to the work. copyrights will receive up to $60 per article. The amount paid will depend on a number In the 1980s and early 1990s, when of factors, including whether the writer electronic databases such as LEXIS/NEXIS registered the copyright, the original fee came into existence, print publishers entered paid for the article, the year it was published into license agreements authorizing the and whether the writer permits the future use databases to copy and sell the first text (or of the article in the databases. portions) of the publications, including articles written by freelance contributors. U.S. District Judge George M. Daniels of the Southern District of New York granted But the print publications typically did not
366 obtain the freelance authors written damages if the case proceeded to trial. permission for this subsequent publication of their works on the electronic databases. According to court papers, the settlement was struck after extensive negotiations In the suit, captioned In re Literary Works mediated by attorney Kenneth R. Feinberg in Electronic Databases Copyright of The Feinberg Group in Washington, D.C. Litigation, a group of freelance writers alleged that the databases and print Feinberg, a former federal prosecutor in publications violated their copyrights in the New York who served as the special master electronically reproduced works. of the federal Sept. 11th Victim Compensation Fund, now focuses his In the settlement, the defendants denied any practice on negotiated resolutions of wrongdoing or liability, and denied that any complex legal disputes. member of the class would be entitled to
367 "Copyright Developments You Should Know About"
Interface, IV'olwne 5, Issue 6 October 2005 Leonard D. DuBoff
In 2001, the United States Supreme Court In the 1980s and 1990s, when electronic handed down one of the most significant communication emerged, many publishers, copyright cases it had decided in decades. such as those involved in the Tasini and In that case, New York Times Co. v. Tasini, Literary Works cases, either created the Supreme Court confirmed what many of electronic databases themselves or entered the lower courts had earlier stated, namely, into arrangements with electronic publishers that the copyright laws of the United States to have articles included in electronic do apply in cyberspace. It also attempted to databases. When the authors whose works clarify some of the rules with respect to this were involved learned that their materials form of new technology and to establish were being made available online without guidelines for the future. The Supreme their consent, the litigation began. In the Court then remanded the case to the original Tasini case, several freelance authors sued trial court for adjudication based on the new the New York Times Co., Newsday. Inc., rules. and Time, Inc., for those publishers' licensing of electronic rights to Lexis-Nexis Shortly before the Supreme Court's and University Microfilms International. pronouncement, a number of prominent authors (including Derrick Bell, E. L. It was the authors' position that the Doctorow, Lettie Cotton Pogrebin, and publishers had acquired only the right to James Gleick), as well as the American first publication for their articles in a Society of Journalists and Authors, the tangible newspaper or periodical, and, since Authors Guild, and the National Writers all other rights were retained by the author, Union, filed a class action against numerous publication online without the authors' publishers and database companies, permission was unauthorized. The including the New York Times, Time, Inc., publishers argued that the electronic the Wall Street Journal, Dow Jones publication of the articles was simply a Interactive, Knight-Ridder, Lexis-Nexis, "revision" of the original collective works, Proquest, and West Group for copyright expressly permitted by the U.S. Copyright infringement, based on facts similar to those Act. in the Tasini case. In both this case, In re Literary Works in Electronic Databases The Supreme Court agreed with the authors' Copyright Litigation, and the Tasini case, it position. The Court made it clear that was noted that it was typical for independent publishing online is not merely a "revision" writers to sell their articles to publishers since the articles were not published in the without a written agreement. Customarily, it same context and noted that the databases was argued, the arrangement was for the offered individual articles rather than intact publisher to have only first publication periodicals. rights for the article, whereas all other rights were retained by the author. The Supreme Court's approval of
368 republication of an article when the was scanned, showing the page numbers, republication is in the same context was photographs, and advertisements exactly as recently relied on by the United States Court they had appeared in the original magazine. of Appeals for the Second Circuit in another landmark case, Faulkner v. National Presumably based on the holding in Tasini, Geographic Enterprises, Inc. In this case, the District Court for the Southern District many authors and photographers whose of New York recently gave preliminary works appeared in National Geographic approval for a settlement of between $10 magazines over the years filed suit against and $18 million to be paid to the authors the publisher alleging that it infringed their involved in the Literary Works case, which copyrights when it distributed a collection of involved articles that were not reproduced CDs containing the entire collection of exactly as they had originally appeared. The National Geographic magazines from 1888 actual amount to be paid depends on a to 1996. It was the position of the number of factors, including copyright complainants that republication of their registration, the original fee paid, the year copyrighted works in electronic form published, and whether the writer permits without permission was an infringement. future electronic publication. This position had, in fact, previously been upheld by the United States Court of There is a host of lessons to be learned from Appeals for the Eleventh Circuit in these cases by writers and photographers, as Greenberg v. National Geographic Society, well as publishers. The first-and perhaps in which the magazine was held liable for most important-is that the publishing copyright infringement. landscape is in flux. Arrangements with publishers are subject to interpretation by The Second Circuit distinguished the earlier the courts, but the rules in effect today may Eleventh Circuit case, however, because it very well change tomorrow. It is for this predated the Supreme Court's reason that authors, photographers, and pronouncement in Tasini and was apparently publishers should reduce their agreements to inconsistent with the Supreme Court's writing. It is also important to have those position on electronic publishing. It is now agreements reviewed by attorneys who have clear that at least in the area covered by the experience with intellectual property so that Second Circuit (which includes New York, ambiguities can be avoided, since an Connecticut, and Vermont), republication of ambiguous written contract may be even the works in a different medium is more problematic than an oral contract. permissible so long as that republication is in context (i.e., the entire newspaper or It is also important for those involved in periodical). In this case, the court noted that communication arts to recognize the fact the National Geographic reproduction of the that the World Wide Web and electronic articles preserved the context and was, in publishing are established in today's fact, similar to reproduction on microfiche, publishing world, but it is difficult to predict which the Supreme Court had expressly what will come next. Unlike its approved as a simple legal conversion from predecessors, the 1976 Congress recognized one medium to another. The National that the world was in technological Geographic articles appeared exactly as they expansion and that new media were had within each issue; the entire magazine inevitable when it revised the copyright law
369 to include language that would deal with much profit, and it is rarely possible to media which was "now known or later prove with particularity that the copyright dev eloped." owner was deprived of profit because of the infringement. As a result, recovery of actual Publishers are generally sensitive to this damages is often far less than the cost the fact., and it is quite common for ther to use copyright owner incurs in litigating the case. the broad language of the statute in their If, therefore, costs and attorneys' fees are publishing agreements. Writers and not recoverable, then copyright owners will photographers are also beginning to find it economically impractical to redress recognize the importance of having written an infringement. Even the other remedies agreements for their works that anticipate available, namely, an order to prevent future future uses. infringement and an order to have the infringing works destroyed, will likely not Another issue that was significant in the provide the copyright owner with the Literary Works settlement was copyright financial incentive to redress the wrong. registration. The settlement approved by the Court in Literary Works distinguished the Copyright registration is by no means amounts available for the settling author by, difficult. The forms are available online among other things, whether the works were from the Copyright Office at registered. Those writers whose works were www.copyright.gov. By downloading a registered before the infringing acts form, filling it out. depositing two of the occurred were entitled to a greater amount best copies of the work when published of the $18 million settlement than were the (only one copy is required if unpublished), authors whose works had not been and paying a $30 registration fee, the work registered. In fact, the amount available for will be registered in due course. As of the registered works was up to 25 times more date of this writing, the turnaround time for than that for unregistered works. copyright registration is approximately eight months, though an expedited registration can Many writers and photographers do not be obtained by paying an additional $580. timely register their works. It seems to be For this additional $580, a registration will their position that the cost of registration be accomplished within two weeks. Given need not be incurred since the statute the significant additional cost for expediting provides copyright protection without the registration, copyright owners generally registration. While this is true, it is expedite registrations only when it is somewhat shortsighted because any important to do so for purposes of litigation. infringer of a work that is not registered will not be liable for statutory damages or The Copyright Office has been sensitive to attorneys' fees. The law provides that those the financial stress that registration imposes infringers will be liable only for the on many creative people. It was for this copyright owner's actual damages, that is, reason that in the year 2001, a regulation the copyright owner's losses resulting from was adopted that permitted photographers the copyright or the infringer's profits, the ability, in some circumstances, to whichever is greater. register groups of photographs with a single application, single filing fee, and a single Unfortunately, most infringements are deposit. If photographs in a group are all by discovered when the infringer has not earned the same photographer, the copyright
370 claimant is the same for all photographs and recently announced a retreat from this liberal the photographs are published in the same program with regard to the number of calendar year, then a photographer can images that can be registered with one register that group of photographs with one application. Under the new rule, if the application. The savings could be enormous photographer identifies the date of for a prolific photographer. publication for each photograph in the group on a continuation sheet, the application may At the same time, rules for deposits for include no more than 50 continuation sheets unpublished collections of photographs were and no more than 750 photographs. This is liberalized. The following variety of deposit likely to work a hardship on many options were made available for those photographers. Concerned individuals registering either published or unpublished should write their representatives in groups of photographs: CD-ROMS, DVD- Congress to express their displeasure with ROMS, unmounted prints measuring at least the Copyright Office's recent change. three inches by three inches but not exceeding 20 inches by 24 inches, contact Creative people are continuously stretching sheets, slides with single or multiple (up to and exploring new dimensions of their 36) images, the format in which the creativity. This is important for professional photographs were published (e.g., growth and is beneficial for cultural growth newspaper and magazine clippings), as well. Despite the fact that all benefit from photocopies clearing depicting the expanded creativity, it is essential not to lose photographs or videos clearly depicting the sight of the necessity of written agreements photographs. that spell out the rights, obligations, and limitations of the arrangements between the Unfortunately, the Copyright Office has parties.
371 "Did Second Circuit Eviscerate Copyright Class Actions?"
New York Law .Journal January 15, 2008 Peter L. Simmons and Mitchell Epner
Six years after the U.S. Supreme Court held is frequently a disputed issue. If, as the in New York Times v. Tasini, 533 U.S.483 Second Circuit said, the district courts (2001), that freelance writers do not cannot adjudicate claims involving implicitly convey rights to electronic copyrights not properly registered, does reproduction of their works when they Literary Works represent a turning point in license their materials to newspapers and the viability of copyright class actions? other publishers for print media, a group of Under an extreme reading of the case, copyright holders seeking to vindicate those defendants might now be able to cut off Tasini rights was poised finally to recover class claims early merely by raising a some money in a negotiated class action jurisdictional challenge predicated on the settlement that was approved by the U.S. failure to prove registrations for each work District Court for the Southern District of in the class. In all likelihood, the decision New York. probably does not represent such a break with precedent. But it does highlight some But the U.S. Court of Appeals for the of the hazards of pleading and settlement Second Circuit threw out the entire structuring that could become land mines, as settlement and held that the district court they did here, if not properly navigated. lacked jurisdiction even to entertain the claims of most of the class members, even Disconnect Between Rights and Remedies though the rights being asserted were the very ones that the Supreme Court had ruled At the core of the Copyright Act, there is a were, in fact, protectible. tension between when a copyright is created and when a copyright holder may bring an The Second Circuit, in a split decision, action to enforce that copyright. concluded that most of the class had a right without a remedy. Even though the Section 102 of the Copyright Act provides copyright interests were, on the face of that "[c]opyright protection subsists . . . in things, valid and infringed, because the original works of authorship fixed in any majority of the works for which damages tangible medium of expression. . were claimed were never registered with the However, s411(a) of the Copyright Act Copyright Office, the class was not entitled provides that "no action for infringement of to sue for-and the district court was the copyright in any United States work powerless to approve a settlement requiring shall be instituted until preregistration or payment of-damages with respect to those registration of the copyright claim has been unregistered works. made in accordance with this title." In other words, although s102 provides that the Yet copyright infringement class actions are copyright exists, and can be infringed, from quite common, and ownership, validity and the moment an author places an original valid recordation of the asserted copyrights work on paper (or any other tangible
372 medium), s41 1(a) disables the copyright holder from suing to enforce that copyright until it has been registered. Literary Works Settlement
Following that interdiction, the Second Following years of litigation, the parties Circuit seems to hold that district courts reached a settlement that provided for the cannot approve class-action settlements that payment of between $10 million and $18 adjudicate claims involving unregistered million by the defendants. The parties copyrights. Yet in reality, writers and sought and obtained certification of a publishers routinely litigate in class actions settlement class which, like so many others, the alleged infringement of their works, was predicated on copyright ownership, and particularly when electronic mass which did not explicitly state whether class distribution (including online file-sharing members had registered their copyrights. services) is involved. Where the parties appear to have outsmarted And whether those works have been themselves was in dividing the so-called properly registered is frequently an issue in "subject works," the works for which claims dispute. For example, the defendants in the were being settled, into three groups based Napster, Grokster and Streamcast class- upon whether and when each work had been action litigations each raised as an registered with the Copyright Office. affirmative defense the claimed lack of valid "Category A" works were defined as subject copyright registrations for the copyrighted works "properly registered as an individual works allegedly unlawfully disseminated work with the U.S. Copyright Office in time over those services. Nevertheless, classes to be eligible for statutory damages under 17 were certified in each of those cases; and, in U.S.C. s412(2)." "Category B" works were each case, membership in the class is defined as subject works "properly predicated on ownership or control of a registered before Dec. 31, 2002, but not in copyrighted musical that had been made time to be eligible for statutory damages available without permission through the under 17 U.S.C. s412(2)." "Category C" challenged service, and not on whether the works were defined as "all other Subject infringed work was the subject of a valid Works." registration. Moreover, settlement agreements were reached and approved by The settlement agreement provided varying the courts in those cases that resulted in amounts of damages to the three categories payments being made to the plaintiffs of subject works, with Category A (timely despite the challenge to whether the works registered) works obtaining the greatest were properly registered, or registered at all. recovery, Category B works (those not registered in time to claim statutory damages When the Second Circuit's decision is but still entitled to pursue claims for actual properly understood, there is no need to damages) receiving a reduced amount, and assume that Literary Works would subject Category C works (those not registered at those settlements, or others like them, to all) receiving a sliding scale payment of a collateral challenge for lack of jurisdiction, much more modest amount. Moreover, in or that the decision would preclude such the event that total allowed claims would settlements from being reached and enforced lead to damages of more than the $18 in other cases going forward. million maximum payment by the settling
373 defendants, the settlement agreement lacked jurisdiction to certify the instant class provided that the damages available to or approve the settlement," reasoning that Category C works would be ratably reduced although Congress granted (in 28 U.S.C. or eliminated before any reduction would be s1338) the district courts jurisdiction over made in the damages available to Category ..any civil action arising under any Act of A or Category B works. Congress relating to . . . copyrights," that jurisdiction was limited by s411(a) of the The settlement thus highlighted quite Copyright Act. Slip op. at 8-9. Relying upon starkly, in a way the class definition did not, Well-Male Toy Mfg. Corp. v. Goffa Int'l the substantial merit of the defense Corp, and Morris v. Business Concepts, Inc., predicated on a failure to register the works. the majority held that "Section 411(a)'s Compounding the problem, some of the registration requirement limits a district Category C plaintiffs, those with the court's subject matter jurisdiction to claims weakest claims, objected to the settlement arising from registered copyrights only." on the theory that they should actually have Slip op. at 10. "[S]ection 411(a) creates a gotten more out of the deal. And the settling statutory condition precedent to the suit parties (both plaintiffs and defendants) itself. In so doing, it 'delineates the classes responded by shooting themselves in the of cases . . . falling within a court's foot and contending that the settlement was adjudicatory authority."' Id. at 14. "In other fair and should be approved precisely words, a copyright claim does not exist because those Category C claims concerned absent registration or preregistration-and unregistered copyrights that were outside of the law is clear that courts lack subject the district court's subject matter jurisdiction matter jurisdiction over claims that Congress and thus entitled to very little compensation. has specified do not yet exist." Id at 14 n.5. The district court approved the settlement without addressing the jurisdictional question. Judge John M. Walker Jr. dissented from the The objectors continued their attack on the finding that s41 1(a) presented a fairness of the settlement on appeal, and the jurisdictional bar, writing that "in the class Second Circuit sua sponte required the action context, there is a distinction between parties to submit additional briefs constitutional standing, which is always "addressing the issue of whether the District required, and statutory standing, which is Court had subject matter jurisdiction over not required of all members of a settlement- claims concerning the infringement of only class." Dissent at 14. The dissent unregistered copyrights." contended that holders of infringed unregistered copyrights satisfied the three Second Circuit Decision requirements for Article III standing: (a) injury-in-fact, (b) traceable to the challenged The Second Circuit's majority opinion in action and (c) redressable by a favorable Literary Works held that "the District Court decision. Dissent at 16-17.
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