Attorney General Eric Holder was recently questioned on capital hill about the Obama Administration’s decision to try Khalid Sheikh Mohammed in a civilian court.  Here is a short shippet of his remarks:

Here is a brief transcript of the relevant portion:

Graham:  Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?

Holder:  [pregnant pause] I don’t know… I ‘d have to look at that…

Graham:  We’re making history here Mr. Attorney General… I’ll answer it for you and the answer is no… I’m telling you right now, We’re making history and we’re making BAD history…  And let me tell you why.  If Bin Laden were caught tomorrow, would it be the position of this administration that he would be brought to justice?

Holder:  He would certainly be brought to justice, Absolutely.

Graham:  Where would you try him?

Holder.  Well, We’d go through our protocol and we would make a determination about where he’d should appropriately be tried.

Graham:  Why would you take him someplace different than KSM?

Holder: Well, that might be the case… I don’t know.  I’d have to look at all of the evidence.

Graham:  Does it matter if you use the law enforcement theory or the enemy combatment theory in terms of how the case would be handled?

Holder:  Well, Bin Laden is an intereting case in that he has already been indited.

Graham:  When does custodial interrogation begin in his case?

Holder:  Well, that all depends.

Now, I think it important to point two things out about the interview.  First, Holder doesn’t have a clue where Osama Bin Laden would be tried.  Now, one would think that if the Obama Justice Department has put together a series of “protocols” (as Holder claims), that these protocols would be clear as to what the procedure would be for our most sought-after enemy combatant, Osama Bin Laden.  The fact that Holder doesn’t have a clue evidences to me that these “protocols” are either very poorly formulated or completely arbitrary.

The second thing I notice is that when asked where Obama would be tried, Holder responds that he would “have to look at all of the evidence”.  Now, to the layman, this may seem like a reasonable answer.  But to someone with legal training, I find this answer appalling.  What Holder is basically saying is that the decision whether or not to try a person in federal court (where there are greater legal protections available) or a military tribunal (where fewer legal protections are available), is not dependent on what the LAW says… but on the strength of the Justice Department’s evidence.  This is all but a candid admission that the Obama Administration decides where to try an enemy combatant based on the outcome it wants to reach in any particular combatant’s case.

If the case isn’t strong enough to win in federal court, then Holder’s “protocols” will ensure that those combatants who the Obama Administration thinks are actually guilty will find their way into a military tribunal.  If, on the other hand the case IS strong enough to win in federal court, Obama can safely bring a civilian case without worrying about political fallout.  In other words, Holder’s “protocols” are nothing more than political decision trees — arbitrarily giving certain combatants different levels of legal protection depending on the political cost Obama may suffer should a terrorist be let off the hook.  This has the effect of giving the Obama Administration a judicial role… and the ability to affect the outcome of any given case based on its own determination of guilt.

If this is considered “justice”… well… welcome to Barack Obama’s America.

[T]he Sotomayor nomination shows that Mr. Obama has no idea what a post-racial society would look like. In selling himself as a candidate to the American public he is a gifted bargainer beautifully turned out in post-racial impressionism. But in the real world of Supreme Court nominations, where there is a chance to actually bring some of that idealism down to earth, he chooses a hardened, divisive and race-focused veteran of the culture wars he claims to transcend.

I have called Mr. Obama a bound man because he cannot win white support without bargaining and he cannot maintain minority support without playing the very identity politics that injure him with whites. The latter form of politics is grounded in being what I call a challenger — i.e., someone who presumes that whites are racist until they prove otherwise by granting preferences of some kind to minorities.

via Sotomayor and the Politics of Race – WSJ.com.

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• COMMENT: What’s in a Name? Fred Goldman’s Quest to Acquire O.J. Simpson’s Right of Publicity and the Suit’s Implications for Celebrities
• COMMENT: Does Rocky & Bullwinkle Hold The Key to Unlocking the Mystery of Fair Use in the Age of  Internet Archiving?

Ya, believe it or not, people actually write scholarly works about these things.

And finally, you know you’ve learned SOMETHING in law school when you fully comprehend and appreciate an article entitled thusly:

• ARTICLE: Copyright Infringement Litigation and the Exercise of Personal Jurisdiction Within Due Process Limits: Judicial Application of Purposeful Availment, Purposeful Direction, or Purposeful Effects Requirements to Finding that a Plaintiff Has Established a Defendant’s Minimum Contacts Within the Forum State

Allow me to begin this discussion by first complimenting Ms. Wolf. First, she just looked great during that interview. I was all about that red thing she was wearing (but I digress!). In all seriousness, I think this book is a valuable addition to the discussion and brings an important (albeit selective) historical context to modern politics. At the risk of cliche, I would remind you that those who are ignorant of history are doomed to repeat it. By reminding us of the evils of history Ms Wolf is, shockingly enough, being helpful… and I wish to encourage this kind of behavior.

This being said, I think it is fair to say that Ms Wolf’s conclusions are lacking… in any number of ways. It isn’t that she is always wrong, but that her foundational history is in many cases only loosely connected with modern practice. She begins with an assumption of guilt (primarily with the Bush administration… many times implying he is a ‘wannabe’ despot), finds similar parallels to dictators with completely different motivations and purposes, and then imputes those motives to Bush because factual circumstances were the same. Although a stretch, in some cases I found myself thinking that if two people washed their laundry, that would be enough for her to draw a comparison. I am, of course, exaggerating; but I do so to point out that to end one’s analysis at factual similarities without further analysis can lead to very irrational conclusions.

I wish to address some of these loose associations and provide a greater historical context for many of the points she makes. First, let us examine this list of steps:

1. Invoke a terrifying internal and external enemy
2. Create a prison system outside the rule of law
3. Develop an unregulated paramilitary
4. Set up an internal surveillance system
5. Harass citizens’ groups
6. Engage in arbitrary detention and release
7. Target key individuals
8. Control the press
9. “Dissent = Treason”
10. Suspend the Rule of Law

As an initial matter, this is a great list. Nazi Germany during World War II is easily implicated in all of these steps… as was the Soviet Union (and even modern-day Russia). Naomi references a few more examples I am not quite as familiar with… but I wouldn’t doubt her history is accurate.

She discusses in great length in the youtube clip the first 4 elements, beginning with the first–where a would-be despot invokes a terrifying threat. This first argument immediately raises the problems I have already mentioned. The fact that any ruler/despot/president invokes a threat does not itself, without any other context, mean that that particular country is on the verge of loosing freedoms. In fact, it would seem to me that leaders ignorant or unwilling to acknowledge such threats would be equally at risk for loosing the very freedoms they supposedly champion by non-invocation. Would anyone claim that Churchill or Roosevelt was a would-be-despot by calling a spade (i.e. Nazi Germany) a spade? In fact, Neville Chamberlin’s refusal to invoke Germany as the threat it was… is what caused the German threat to be even stronger then it would otherwise have been–almost resulting in Britain’s defeat. This “judging solely on the facts” causes Naomi to conclude that Bush is a despot when such facts can go both ways.

For example, when Bush invokes radical islamists or the threat of a nuclear Iran, he is warning the free world about very real threats… not some made-up boogyman. Radical islamists REALLY attacked us on 9/11 and crippled the United States economy for a couple of years. They had similar plans to blow up the freedom tower in Los Angeles and have been attacking US troops in Iraq for the past 5 years. We can ignore these threats… avoid dealing with them, or we can address them in public, in the arena of political debate (which is what the Bush administration has done)–or worse: adopt a covert policy of assassination and secret deals). Any leader (i.e. Obama) who does not take these real dangers seriously risks the very freedoms supposedly at stake when their danger is “invoked”. While I understand her concern… I believe that her concern over the Bush administration’s “invoking problem” is misplaced.

Secondly, she discusses the existence of a prison system “outside the rule of law”. Obviously, Guantanamo is the example of this kind of system that can be so dangerous. Furthermore, in many occasions, she references the founding fathers and how this very deprival of due process is exactly what the founding fathers meant to avoid with the bill of rights. This is all well and good-no doubt my readers have read the 5th amendment – but this statement is an incomplete analysis of the bill of rights AND the desires of the founding fathers.

As an initial matter, George Washington used military tribunals in the Revolutionary War. “How can this be!”, you ask? Well, that’s exactly the point; in fact, military tribunals have been used in almost every military conflict the United States has ever engaged in. To say that this was somehow against the wishes of the founding fathers is… well… factually unsound. Additionally, it is not entirely proper to say that war prisoners have no due process rights. While they do not have the same rights of process we enjoy as non-combatants, they do have process… it is just a different process tailored to the needs of the military. In fact, even U.S. military personnel do not have “due process” under the common sense of the term… they are subject to military courts’ jurisdiction under the UCMJ. Now, it is one thing to argue why military combatants should enjoy the same rights as you and I… it is an entirely different thing to say that they have no due process rights… or that they should have MORE than even US military personnel.

Now, this isn’t to say that there is not some danger should these tribunals… and that they could be used for ill purposes. I agree with her in the sense that these must subject to strict scrutiny should they overstep their bounds. However, to view Bush’s military tribunals as some sign of impending catastrophe–tribunals that have been subject to congressional oversight and supreme court review–is simply irrational given our country’s history. For crying out loud, we interned 110,000 Japanese Americans during WWII! Get a sense of perspective! Freedom’s scope fluctuates with the circumstances… and America has always emerges from troubled times with their sense of freedom intact–often expanding it when it no longer feels threatened. To end one’s analysis at “we match a bullet on a checklist” without examining how America reacts and self-corrects it’s own arguably authoritarian policies of history is to create a sense of irrational fear.

During the discussion of due process rights I believe she went a little off track discussing the suppression of free speech. Don’t take me wrong, I’m as big an advocate of free political speech as anybody… Although I can’t recall ever writing as much on this blog, I find the McCain-Feingold legislation an untenable impingement on freedom of speech–precisely because it desires to stifle political speech. I share her concern; but if the best example she can cite is the “don’t taze me bro!” guy… then it is safe to say we have nothing to fear (wasn’t he speaking at a Kerry rally?). In fact, I would argue that the modern media has never been so open and critical as it is today. In fact, papers such as the New York Times and the Washington Post have leaked national security secrets–in violation of the espionage acts…(i.e. they broke the law)–without as much as a finger lifted by the justice department. That’s right; even “free speech” that is illegal (not all free speech is “free”, after all)… is still allowed by a president she so fears. (One wonders if she uses this fact to criticize the president for undermining the “rule of law”. Snap!)

Next, she discusses Backwater and the implications of a para-military force. Allow me to loosely quote some excerpts from the interview…

Tomorrow we could wake up and see backwater guarding the state house… backwater menacing congress-people. there is nothing we can do to prevent this… The founders knew how intimidating it is… to have a standing army that is not accountable to the people… That’s why we have the second amendment that says you can’t have a standing army that’s not accountable to the people. We could find ourselves waking up looking at mercenary forces outside our door… we could wake up and find out our kids stuff has been gone through by agents of the state.

I must say, I tend to agree with her as a general matter. I’m not sure what Blackwater does that cannot also be accomplished by U.S. military personnel. Their existence and employment is probably a point of valid concern. If there are indeed powers given the president to use para-military forces in the united states, it should certainly be something to debate within a free society. However, in examining her point, I found, yet again, a lack of desperately-needed context. For example, the bill of rights, particularly the 4th amendment, does not guarantee our houses will never be searched. It is ONLY a right (with an associated remedy), NOT a guarantee of state inaction. Rights exist so that there is something to claim should they be violated. We are at just as much risk of a local law enforcement agency, the FBI, or any other government agent violating our privacy rights than a para-military force… but yet Ms Wolf isn’t concerned at all about the threat a misinformed police officer poses–even though such action is a much more direct, immediate likelihood (I use likelihood in the loosest sense of the term). When the state (or an agent thereof) acts contrary to the constitution, we can challenge this in court and win! A para-military force is not alone a danger… it is only when such force cannot be challenged in court that such a force becomes a danger.

Perhaps I’ve been too harsh… I cannot emphasize enough the fact that I enjoyed listening to the interview and thought she had some excellent points… but when my analytical mind gets going… sometimes it goes overboard. Let me know what YOU think.

It’s been a while since I posted on any LEGAL matter, and I must say it’s good to finally get around to the legal posts again.  Anyway, I’m not vouching for the LEGAL correctness of any of this… but I though I’d post the text of my final Copyright Exam just in case you were interested in Copyright as a general matter.  The exam was intended to be the analysis portion of a legal opinion discussing Google’s “book search” and the Copyright issues raised with Google’s scanning and indexing activities.

Let me know what you think?  I’d be interested to hear from law students and novices alike.  (Do I deserve and A?  

Update:  It turns out I DID get an ‘A’.   niiice. 

OVERVIEW

Google, an online search giant, is undertaking a project to catalogue and digitally index the contents of books in libraries across the country. To accomplish this project, each book added to the Google database must be scanned and the text converted into a digital format. Google then stores a graphical copy of the book as well as an indexed database of all words and phrases that is then searchable by the end user. For works in the public domain, Google allows users to access the work in its entirety. In the case of Copyrighted material, Google selects individual pages to be displayed in order for the user to preview the book before having the option to purchase or obtain the book by alternate means.

As a result of these activities, Publishers have sued Google for “massive” copyright infringement. They claim that the act of copying and indexing a Copyrighted work is itself an infringing activity and further assert that the opt-out policy is evidence of indifference to the rights of authors and publishers. Google asserts that the opt-out program removes them from Copyright liability and even if not, they are protected by the “fair use” doctrine.

FINDING OF LAW Before the Court is a motion for Summary Judgment on the issue of Google’s copyright infringement of thousands of literary works. In order to successfully pass Summary Judgment on a claim of Copyright infringement, a plaintiff must a) own a valid copyright and b) Defendant must have violated one of his §106 exclusive rights. The Court first analyses the “ownership” requirement.

§102 of the Copyright act provides protection to “original works of authorship… fixed in any tangible medium… from which they can be perceived… either directly or with the aid of a machine or device“. “Original” in this context requires a de-minimus level of creativity (Feist, p. 75). According to Feist, “Original[ity], as the term is used in copyright, means only that the work was independently created by the author… and that it possesses at least some minimal degree of creativity.” (p. 75). If a work meets the fixation and creative requirements, it immediatly becomes a work protected by state common-law copyright. In order for there to be federal copyright, an author must register their work with the U.S. Copyright Office.

What kinds of creative work does Copyright protect? §102 protects literary, musical, dramatic, pictoral, and graphic works (among others). Of relevance to the question before the court is the Act’s protection for literary works. Under §101, “literary works” are defined as works “expressed in words, numbers… symbols… regardless of the nature of the material objects such as books…disks… in which they are embodied.” It is assumed for purposes of this opinion the Plaintiff’s do represent a large number of valid federal copyrights. To verify the validity of each would be burdensome for both the parties and the court. Given this assumption, the Court addresses the second prong of an infringement suit: the violation of 106 rights.
Per §106, Copyright owners have the exclusive rights to do and authorize any of the following:

1. to reproduce the Copyrighted work in copies
2. prepare derivative works based upon the Copyrighted work
3. to distribute copies to the public by sale, rental, lease or lending
4. to perform the work publicly
5. to display the Copyrighted work publicly

In order for there to be infringement, there must be a violation of one of the above rights. The Court finds Google is infringing at least one of the exclusive rights in §106. First, by scanning the book and creating a digital copy of the book, Google is reproducing copies of the work works under sub (1). “Copies”, under §101, are “material objects…in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” The material object from which the work can be perceived is from the computers on Google’s servers. Just as in Phillips v. Kidsoft where defendant’s unauthorized scanning of pages from a children’s magazine onto a computer storage device constituted the making of a copy, so here the Court finds that Google’s scanning of books in their entirety also constitutes a copy (p 508).

Google is also violating the exclusive right to “display” the work publicly. To display a work publicly is “to transmit or otherwise communicate a performance or display of the work to [a place open to the public]… by means of any device or process” (§101). We assume that at least a small percentage of users are in public areas — either at a library, a cafe over their wireless network, etc. It follows then that Google is in fact contributing to the public “display” of copyrighted work per §106.

Finally, it appears as though the process of creating a searchable database amounts to the creation of a “derivative work”. A derivative work per §101 is “a work based upon one or more preexisting works… consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship.” A searchable database requires a series of revisions, annotations, and “other modifications” in order to work. For this reason, the Court finds an infringement.

Google argues (a general assumption based on the facts) that an “opt-out” policy serves as either a “waiver” or as implicit authorization to scan and catalog the books in question. In other words, Google argues that it can acquire Copyright interests by simply asserting them. This Court finds that Google cannot claim a Copyright interest under this theory. As with any piece of personal property, ownership cannot simply be asserted to vest unless the owner “opts-out”.  §201 specifically addresses how one may obtain ownership rights. In part, it states that “The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law… Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106 [17 USC 106], may be transferred as provided by clause (1) and owned separately.” Furthermore, §204 specifically outlines the means by which ownership interests can be transferred. “A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.” Unless Google can assert a pre-existing copyright interest, it cannot acquire one through acquiescence or waiver. Therefore, Google’s “opt-out” policy is not compatible with Copyright law.

Given these facts, the Court’s inquiry now turns to the doctrine of fair use and whether Google’s activities constituted a fair use per §107.

FAIR USE

Google maintains that even if it’s activities are found to be infringing, its activities are protected by the §107 “fair use” doctrine. The legislative intent of §107 was to codify the existing common-law doctrine of fair use and is to be read and applied in light of the purposes of Copyright law (p. 719-20). The language is “illustrative and not limitative” and should be flexible enough to apply on a case-by-case basis. (p. 718) Pursuant to §107 of the Copyright Act, the following four factors must be considered, but not one factor should be considered to be controlling.

• the purpose and character of the use, including whether such use is of a commercial nature ore is for nonprofit educational purposes;
• the nature of the Copyrighted work;
• the amount and substantiality of the portion used in relation to the Copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the Copyrighted work.

In applying the first factor, the Court should look at the nature of the infringing activity–including it’s transformative qualities, its message, and its use in light of Copyright’s purpose–the promotion of science and the useful arts (p. 4). According to the record, Google’s purpose is to provide its consumers relevant results to search queries. By converting the text of a page into a digital database, Google makes it possible for users to accomplish in seconds what would otherwise take years. It has exponentially increased the book’s usability — and to a greater extent the useability of a library’s search system — by giving users the most relevant results to text queries on demand. The re-organization of the words and sentences into a database is indeed transformative. The new format makes possible the search system and changes the original to such an extent that the Court would classify the database as a “new species” of work. This finding tends to weigh in favor of fair use.

However, in approaching the first factor, this Court must also consider the financial incentive driving Google’s activities. In Roy Export Co. Establishment v. Columbia Broadcasting System, the Court explained that, “The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”

(emphasis added p. 753). In the case at bar, it is clear that Google is a profit-oriented business and stands to make a fair amount of profit from the sale of adds and other services associated with this book including referrals or any other “commission” arrangements it may have with its preferred sellers. However, the question of what the “customary price” is for scanning, indexing, organization, etc. is not clear from the record. The Court simply notes that Google has been indexing the Copyrightable contents of websites, images, and other online media, without charge, for almost a decade. This fact does not necessarily weigh in favor of Google’s fair use, but it is germane to the issue of the customary price.

Finally, under the first factor, the degree of exploitation by the infringing party also weighs on the ultimate finding on the fair use issue. In Kelly v. Arriba Soft Corporation, the Court found that the use of low-resolution copies of digital images was a “fair use” in part because the financial gain from the use of such images was only incidental, and therefore not “highly exploitative”. (p. 818). However, other courts have come to different conclusions. In the case of Perfect 10, the Court found that Google’s Ad-sense advertising system amounted to a use “far more commercial than Arriba’s use in Kelly” (p. 822). Although Google does indeed make money off of advertising, this Court does not find the Perfect 10 reasoning particularly convincing. If this Court were to use the Perfect 10 analysis, the affect would be to categorically disadvantage an entire segment of internet websites simply because their revenue model is based around adds instead of goods or services. This revenue source has no direct relationship to any particular book or scan; it is a byproduct of user interaction with their website, and therefore bears only an incidental relationship to the function of the web service. Given these conclusions, we find the transformative nature of Google’s activities clearly weigh in favor of Google’s fair use defense.

The Court’s next inquiry is into the nature of the Copyrighted work(s). At issue are millions of books from the collections of libraries and universities across the country–all of which are subject to a wide array of unique copyright restrictions. This factor’s relevance is limited in that it weighs against the argument made earlier for treating books the same as webpages. In the web context, Google is indexing the contents of information a) already in a digital format and b) freely given away. The same cannot be said for content in the print medium–very little of which is freely distributed–including a vast majority of the books in question. This weighs against Google’s position, but is not itself binding.

The third factor in the fair use analysis is “[whether] the amount and substantiality of the portion used in relation to the Copyright work as a whole are reasonable in relation to the purpose of copying“. Google argues that it provides only small snippets of the work to users to provide the context for their search query. This is slightly misleading because although Google may not share in any contributory liability for the acts of end users, it must copy the work in its entirety in order to provide this service. The “de-minimus” standard is often applied to the third prong of the fair use analysis, making it hard but not impossible for substantial copying to be considered fair use. In Campbell, the Supreme court, in addressing the question of substantiality found that, “[the] extent of permissible copying varies with the purpose and character of the use” (p. 744). In UMG Recordings, Inc. v. MP3.Com, Inc. , the Southern District of New York found that even when a work was copied in its entirety (from a CD to a MP3 format), the resulting copy did constitute a “fair use”. (p. 814). In analyzing Google’s use, this Court finds that the purpose of the copying is to allow users to run a full-text search against all books in the google database which match their query. In other words, Google is not primarily using the protected expression for expressive purposes or for the value of the expression itself, but is instead scouring the pages for the facts contained therein: the word “Washington” appears on page 211, the words “Revoluonary War” appear on another (and so on). When the expressive nature is used to give a user context, it is done so in limited, short segments that the Court considers de-minimus. Therefore, the Court finds that the portion of use in relation to the work as a whole is reasonable and therefore favorable to Google’s fair use defense.

Finally, the Court address the fourth and most important factor, the effect on the potential market (p. 789 middle). In measuring the potential affect, the Court should weigh the copyright owner’s expectation of gain against the public benefit shown to justify the use. (p. 745). The Second Circuit in Dr. Suess stated that “[t]he less adverse effect that an alleged infringing use has on the copyright owner’s expectation of gain, the less public benefit need be shown to justify the use” (id). The Court finds there to be no detrimental impact on the market for books. In fact, it would seem that the Google search system serves as perhaps the most effective selling tool available to the publishing industry. The system can drive sales because it establishes a book’s relevance (and therefore, its value) to users looking for relevant content. Google’s search will most likely have the effect of increasing sales when users are assured the book’s contents contain the valuable information.

Given the overwhelmingly positive effect Google’s search system has on the market for books, the Court need only find a reasonable public benefit to find in favor of fair use. The Court finds that this bar has been surpassed by wide margins. The public gain an incredible advantage when the wealth of knowledge of an entire library is at their fingertips.

CONCLUSION

We can think of nothing that would further promote the progress useful arts then tools and systems that allow the public to find the materials that interest them through legal means. Granted, Google must walk a fine line; uses of this information that have adverse affects on authors and publishers will undoubtedly come under the most serious scrutiny. Nevertheless, the system as it currently operates seems to benefit both the authors and consumers equally with no apparent adverse side effects.

The Court hereby grants summary judgment to Google on all counts. Attorney’s fees are not awarded to either party.

Here is my office… the Lucas County Court of Common Pleas.
I’m on the second floor, working for Judge Jensen.

Our first inquiry is what is meant by the term “Commercial Speech”? The doctrine, as we are familiar with today, originated with Central Hudson v. Public service Commission of New York. The issue in this case was whether the state could constitutionally prohibit Central Hudson (an electric-company) from advertising the use of electricity in an attempt to curb energy usage. Much of the debate in revolved around the economic interests of the state of New York in maintaining the supply of electricity for its citizens. In order to protect supply (and by extension, the interests of the public at large), the city had created a restriction on Hudson’s ability to advertise energy use. The state’s economic interests were considered substantial enough to warrant the suppression of Central Hudson’s First Amendment protections.

The Court broadly defined Commercial Speech as anything that either “proposes a commercial transaction or [was] related solely to the economic interest of the speaker and the speaker’s audience”¬ù. The Court then developed a 4 part test for determining whether commercial speech receives first amendment protection. First, the speech must concern lawful activity and not be misleading. Next, the asserted governmental interest must be substantial. If these tests are met, the court then applies intermediate scrutiny–applied asking whether the governmental interest is directly advanced, and whether it is more extensive than necessary.
The Central Hudson test is, in the broad scope of things, a very modern development in first Amendment Jurisprudence. Early cases such as Chrestensen2 and Pittsburgh Press3 held that purely commercial speech does not get any First Amendment protection. It was not until Bigelow v. Virginia4 that the Supreme Court recognized first Amendment protections for Commercial Speech. In this case, Bigelow, a Virginia Newspaper Editor, was charged with violating a statute that prohibited advertisements aimed at encouraging women to get low-cost abortions. In a complete round-a-bout, the court found that Commercial Speech does not wholly lose its first amendment protection merely because it is Commercial Speech.5
A state cannot foreclose the exercise of constitutional rights by mere labels. Regardless of the particular label asserted by the state–whether it calls speech “commercial” or “commercial advertising” or “solicitation”–a court may not escape the task of assessing the First Amendment interest at stake and weighing it against the public interest allegedly served by the regulation?¢‚Ǩ¬¶ The relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas.
This is fantastic. In an instant, Commercial Speech was transformed from something worth no more than the product it displayed to an indispensable and invaluable element of Democracy. Unbelievable! What was once considered only “solicitation” is now a public service allowing the marketplace of ideas to function more efficiently.?Ç Finally, What I find particularly interesting about Bigelow is that the larger issues of privacy and abortion, which were certainly on the minds of the Justices at the time (Roe v. Wade was decided just 2 years earlier) might have indirectly affected the development of the Commercial Speech doctrine.6
As one reads the many opinions about this doctrine, I think it is fair to say there is a certain unease with its scope. How does it apply to a business’ political statements? Is it only applicable to point-of-sale speech or does it cover a wider array of speech that simply benefits a company’s economic interests? As corporations have evolved from small town-shops to multinational corporations, it has become harder to support the idea that they speak only with an intent to sell a good or service. Statements on issues such as labor, trade, and health care have nothing necessarily to do with a ?¢‚Ǩ?ìcommercial transaction?¢‚Ǩ¬ù, but rather deal with managerial decisions and public policy issues. As one reads Nike v. McClaskey, it becomes clear that the doctrinal limits of the doctrine are very much in question.
The issue in Nike was whether Nike’s false statements about its labor practices, issues of “public debate”, deserved greater first amendment protection because of their quazi-public nature. Nike was sued under a California Unfair Competition law because of false statements made by Nike in a number of public outlets (including newspaper editorials, press releases, etc.) regarding its labor practices.¬† Nike’s position was that issues of labor practice and working conditions at its factories were issues of public concern and therefore Nike’s speech warranted higher First Amendment protection.?Ç Although the Supreme Court ultimately did no more than dismiss the writ of certiorari, Justice Breyer’s dissent wrestles with the limits of the doctrine.?Ç In addressing the dual nature of Nike’s speech, he found the non-commercial characteristics to be “inextricably intertwined”¬ù with the commercial elements. He noted that the non-commercial elements in question were designed for a “diverse audience” concerning “a matter that is of significant public interest and active controversy.”
What seems to be happening with the Court is a dawning realization that the Commercial Speech Doctrine is too inflexible.?Ç It paints with broad strokes and encompases certain types of political speech that would otherwise be protected. After all, isn’t the large majority of purely political speech centered around economic issues? Why exclude corporations from engaging the American public on matters of public concern??Ç I certainly cannot think of any pressing reason to keep Nike’s opinions from the public sphere, and I think Breyer would agree with me. Whatever the value the doctrine has in regulating commercial transactions, it fails to carry logical, historical, or constitutional weight when applied to political speech by commercial organizations. Businesses are, after all, organized groups of individuals who have similar interests in mind. To prohibit them from speaking on public issues is certainly contrary not only to the purpose of the Amendment’s drafters, but also to contemporary concepts of free society.

I concur with the majority on the issues of spectrum scarcity and licensing. It is clear that the F.C.C. must allocate frequencies if the broadcast media is to exist in the form in which we have become accustomed. The public nature of the airwaves necessitates a licensing scheme in order for the available frequencies to be allocated in a market competing for those frequencies. Furthermore, there is no compelling reason why government licensing of airwaves should be any different than its involvement in many other marketplace where resources are scarce. In fact, were it not for the failure of the private sector to divide up the broadcast spectrum, government regulation would not have been necessary. The right of any party to use the airwaves should be looked at with no more or less favor than the rights of someone to pollute a stream or river; government regulation is needed in both instances in order to allow the most people to have the most access.

In addressing the issues arising from technological advances in distribution and digital compression, the majority correctly reasoned that the mere lack of a current demand for every available frequency neither negates the possibility that those frequencies could be filled nor solves the problem of frequency allocation. Licensing is still required to prevent spectrum “overlap”, regardless of total availability. We are increasingly becoming a media-centric society; to assume that demand will never outpace supply is, in my opinion, shortsighted.

It is after this point that I disagree with the majority’s reasoning, and concur in outcome only. It seems clear that Red Lion does not have a cause of action, given the nature of its broadcast license. I find no reason why, given the F.C.C’s authority to limit spectrum use, it may not also create time limitations on the use of of the spectrums in question. Red Lion’s argument seems to imply that they have a constitutional right to 24 hour control over the content broadcast over their frequency for the duration of their license term. I find no reason to conclude that the license granted by the F.C.C. confers this privilege.

If the broadcast license granted by the F.C.C. granted a complete bundle of rights, then Red Lion would have standing because the government would be forcing them to publish a particular viewpoint. This court held, in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, that the freedom of the press was bound by 2 things: a sufficient number of readers, and the journalistic integrity of its editors and publishers. Again, in Tornillo, we held that, “The choice of material to go into a newspaper… and treatment of public issues and public official–whether fair or unfair–constitute the exercise of editorial control and judgment.” I see no reason to alter our holdings in either case.

As if we were seemingly unsure of ourselves, we went on to say in Tornillo that the application of the press clause had not yet been fully explored in the context of new media. I can think of no better opportunity to address this dictum and re-affirm the principle of individual editorial autonomy and its applicability to all forms of journalism, both the forms which exist today and those which may exist in the future. A completely free press has been central to the notion of freedom of speech; to hold to the contrary would do great damage to our civic society.

What distinguishes my opinion from that of my fellow justices’ is my distaste for the positive rights they believe exist within the first amendment. The bill of rights are primarily about protecting individuals from the government action, not about guaranteeing any right to be heard or any right to access. Why are the rights of the viewers “paramount”, as the majority seems to suggest? What good are the rights of the audience if the speech they hear is tainted? The first amendment specifically speaks in the negative, “congress shall make no law abridging the freedom of speech”. Does the majority wish us to believe this actually reads, “congress shall ensure viewers can hear all points of view?” This “marketplace of ideas” the majority discusses, is merely the result of thousands of individuals speaking without fear of repercussion–hence the need for negative rights. It is not an end in itself, but a theory of how the public makes decisions. True, it is through the marketplace that society can weigh facts and make the most educated decisions, but it is not the primary objective of the first amendment to create this market. Perhaps this really a moot point, but I think it worth the effort to clarify what I believe the court’s position should be on this issue.

With these principles in mind (and, in spite of them), I would further distinguish my opinion on the grounds that Red Lion has no standing in this case. I do not agree with the majority that spectrum scarcity gives the government any right to require the suppression of editorial decisions, but neither do I agree that the paradigm used by the court to arrive at its conclusion is the most accurate. It seems clear that instead of exercising some editorial control over Red Lion’s programming, the F.C.C is merely requiring that Red Lion broadcast a public message on public time the F.C.C. has reserved for its own use. This in no way compromises Red Lion’s editorial control over stories and topics it chooses to air within the time provided it in its license. As I have stated before, congress, acting through the F.C.C., is not required to allocate frequencies in their entirety. These public broadcasts are therefore not part of Red Lion’s broadcast, despite the content similarities. The fact that this “public” content had some logical relation to the news stories is simply not relevant to the issue of whether Red Lion has the right to control content on public time.

For these reasons I respectfully concur.

we reaffirm unequivocally the protection afforded to editorial judgment and to the free expression of views [in newspapers]

The Power of a privately owned newspaper to advance its own political , social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers … and second, the journalistic integrity of its editors and publishers.

a newspaper or magazine is not a public utility subject to “reasonable” governmental regulation … we prefer “the power of reason as aplied through public discussion” and remain intensely skeptical about those measures that would allow government to insulate itself into the editorial rooms of this Nation’s press.

As my instructor continually reminds us, if you know the values the Judge finds important, you can almost always predict the outcome of the case. Here, it is clear that three values influence the justices’ decisions: editorial autonomy, the unregulated marketplace of ideas, and limited government power. These values cause the court to find in favor of the newspaper instead of the government. Now compare this to the Red Lion case involving BROADCAST MEDIA…

Just as the Government may limit the use of sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so may the government limit the use of broadcast equipment. The [right of a broadcaster] does not embrace a right to snuff out the free speech of others.

There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community…

There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all…

Now, how does one reconcile these two cases? Is not editorial autonomy in direct competition with the unlimited private censorship of speech? How can one protect against the private censorship of speech and yet protect the editorial judgment of private newspapers at the same time?

Fortunately, the Supreme Court is not the final arbiter of truth, and its not the end of the world if their cases contradict… but one wonders what rationale is available to explain such a seeming contradiction. Does the limited nature of the broadcast spectrum warrant government protections for the fair use–just as it may restrict an electric company who monopolizes a limited electric network? What are the values espoused in the Red Lion case? Equality of opportunity for speech? Efficient use of a scarce resource? Fairness? A Complete public debate??? Should those values win in the end?

I really don’t have answers, just more questions…