2013-2014 Term Recap (Save Two)

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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137 Responses

  1. Avatar Hoosegow Flask
    Ignored
    says:

    If the Senate votes to adjourn, but the House refuses, the President has the power to adjourn Congress for as long as he sees fit. This could conceivably be used for recess appointments, correct?

    What is the threshold for the Senate voting for a recess? Could the current Senate Democrats do it without Republican support?Report

    • Avatar Burt Likko in reply to Hoosegow Flask
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      says:

      This indeed appears to be one way in which parliamentary gamesmanship could occur, either by the House or by the President.Report

    • Avatar James Hanley in reply to Hoosegow Flask
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      says:

      I think they could, because it’s essentially a chamber self-regulation matter, not a substantive legislative matter. Or at the least, they could have the parliamentarian rule that way (in the same way they ruled last year only a majority was needed to end a filibuster of judicial and certain other executive appointments).Report

  2. NobAkimoto NobAkimoto
    Ignored
    says:

    No mention of the Aereo case? I kinda feel like that showed some serious limitations on the ability of this SCOTUS to adequately deal with technology issues. In the future the whole thing might be regarded as an Olmstead like blunder in terms of the lack of tech savvy.Report

    • Avatar morat20 in reply to NobAkimoto
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      says:

      I dunno. Aereo seemed pretty straightforward an attempt to bypass the spirit of the law. And the text, really. Their case was pretty strained, and Scalia’s dissent was….not convincing at all.

      While they may have used grids of micro-antennas and streaming to deliver it, it was the exact same concept and effect as cable — rebroadcast of broadcast signals.Report

      • Avatar Jim Heffman in reply to morat20
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        says:

        “Scalia’s dissent was….not convincing at all. ”

        You mean the part where he said “I share the Court’s feeling that what Aereo is doing (or enabling to be done) to the Networks’ copyrighted programming ought not to be allowed…[b]ut perhaps we need not distort the Copyright Act to forbid it.”Report

      • Avatar Jim Heffman in reply to morat20
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        says:

        Also, from the Aereo opinion:

        Under the Clause, an entity may transmit a performance through multipletransmissions, where the performance is of the same work. Thus when an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it “transmit[s] . . . a performance” to them, irrespective of the number of discrete communications it makes and irrespective of whether it transmits using a singlecopy of the work or, as Aereo does, using an individual personal copy for each viewer.
        Moreover, the subscribers to whom Aereo transmits constitute “the public” under the Act. This is because Aereo communicates the same contemporaneously perceptible images and sounds to a large number of people who are unrelated and unknown to each other. In addition, neither the record nor Aereo suggests that Aereo’s subscribers receive performances in their capacities as owners or possessors of the underlying works. This is relevant because when an entity performs to a set of people, whether they constitute “the public” often depends upon their relationship to the underlying work. Finally, the statute makesclear that the fact that Aereo’s subscribers may receive the same programs at different times and locations is of no consequence. Aereo transmits a performance of petitioners’ works “to the public.”

        Uh, guys? You just said that YouTube was illegal.Report

      • Avatar morat20 in reply to morat20
        Ignored
        says:

        Jim,

        No, it was the bit about Kinko’s and copying and such.

        Look, I get the tension there — and there is one — between hosting content and distributing content that goes back to things like p2p networks.

        But Scalia was trying to hang a lot on basically the customer clicking the ‘select show’ bit being the big move, and not the fact that Aereo was indistinguishable from cable other than lacking non-broadcast signals to add to the selection.Report

      • Avatar Michael Cain in reply to morat20
        Ignored
        says:

        Uh, guys? You just said that YouTube was illegal.

        Doesn’t YouTube present language that says that by uploading content, you (a) expressly grant copyright permission for YouTube to do its thing and (b) have the legal authority to do that? YouTube pulls videos when it turns out that (b) wasn’t true; TTBOMK, no one has ever challenged (a).Report

      • Avatar Jim Heffman in reply to morat20
        Ignored
        says:

        “Scalia was trying to hang a lot on basically the customer clicking the ‘select show’ bit being the big move”

        …but why isn’t that a convincing argument? Considering that the Second Circuit said it was straight-up legal to do it!Report

      • Avatar Jim Heffman in reply to morat20
        Ignored
        says:

        “Doesn’t YouTube present language that says that by uploading content, you (a) expressly grant copyright permission for YouTube to do its thing and (b) have the legal authority to do that? ”

        Per Aereo that’s not an affirmative defense anymore. According to that decision, the entity which creates, stores, and provides a copy of copyrighted content is now engaging in direct copyright infringement.

        This is actually a really weird decision in that both opinions barely reference Cartoon Network, LP v. CSC Holdings, Inc. (aka “Cablevision”) which pretty clearly states that what Aereo was doing is legal.Report

      • Avatar morat20 in reply to morat20
        Ignored
        says:

        I didn’t really agree with the Second Court on that either. 🙂

        Honestly, I’m surprised Scalia does. He’s treating Aereo like, well, the broadcast equivalent of a router — one that passes all packets over it equally, and is thus not culpable if any of those packets happen to be legally problematic. (Copyright, in this case).

        Or even as if Aereo were a content neutral host, similar to YouTube only giving less of a crap about the law, and streamed this content to anyone who asked.

        Whereas Aereo looks expressly set up to do exactly what the law forbade — transmit broadcast signals to consumers while avoiding paying the requisite licensing fees.

        The whole “customer chooses the content” thing is a nice argument in theory, but it fails when the entire content available to be copied is 99% infringing works. Heck, he even says it but refuses to follow the chain to the end — it’s like a Kinko’s service where they hand you a copier that can copy any book, then a library card for the library next door, and says “you can only copy the books in the library”.

        Sure, some of the library books are public domain. Most are not.

        He even does bring in Netflix, but says Netflix is different because they curate their own content — whereas, in this example, the library does. Which is, bluntly, BS. Netflix “curates” only because Netflix actually pays the license holders for the rights, otherwise Netflix would be quickly out of business under a wave of lawsuits.

        Under that logic, Aereo curates too — it selects only those shows currently being broadcast, a selection that might be mandated by reality but is STILL a curation of the set of all available shows.Report

      • Avatar Michael Cain in reply to morat20
        Ignored
        says:

        Per Aereo that’s not an affirmative defense anymore.

        Are you saying that copyright permissions can’t be assigned any more? What’s the difference between me clicking through an explicit copyright agreement at YouTube then uploading my video, and signing a contract with Hulu and providing them a copy of my video?Report

      • Avatar Jim Heffman in reply to morat20
        Ignored
        says:

        “The whole “customer chooses the content” thing is a nice argument in theory, but it fails when the entire content available to be copied is 99% infringing works.”

        This is the “contributory infringement” / “making available” line of reasoning, which has been shot down in case after case regarding copyright infringement. (See “Capitol Records, Inc. v. Thomas-Rasset” for a notable example.)

        *******

        I still think that I’d go with Scalia’s reasoning, where he says that what Aereo is doing is challengeable but that overturning Cablevision is not the way to do it, particularly when the vast majority of modern Internet content delivery is directly dependent on Cablevision.Report

      • Avatar Jim Heffman in reply to morat20
        Ignored
        says:

        “Are you saying that copyright permissions can’t be assigned any more?”

        No, but that’s not what you said either. What you said was that YouTube has the uploader check a box saying “the copyright status of this work allows it to be retransmitted”, and that this checkbox absolves YouTube of liability should that not be true. And what Aereo means is that the checkbox does not protect YouTube; copying copyrighted material and sending the copies to someone constitutes copyright infringement.

        YouTube could argue that it is only a third-party holding service that doesn’t monitor content, and that this lack of knowledge means they aren’t liable, but what this argues is that YT must explicitly avoid any direct knowledge of the content they’re hosting.Report

      • Avatar morat20 in reply to morat20
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        says:

        And what Aereo means is that the checkbox does not protect YouTube; copying copyrighted material and sending the copies to someone constitutes copyright infringement.
        Betcha it doesn’t.

        Seriously, Scalia might have gotten on his high horse about it, but the other Justices basically view this as Aereo skirting around a law they felt clearly applied. The ruling was narrow, and I suspect any ambiguities will be slapped down should they pop up.

        Aereo’s briefs claimed the world would effectively end (as it were) if the courts ruled against them, but the Court pretty clearly edge out the Apocalypse.Report

      • Avatar Jim Heffman in reply to morat20
        Ignored
        says:

        “Betcha it doesn’t.”

        Please read the opinion and tell me how it doesn’t apply to YouTube.

        Please don’t rely on “well the Court said it doesn’t”. The PPACA did not say “millions of people should lose their current insurance plan” but that is what ended up happening.Report

      • Avatar Michael Cain in reply to morat20
        Ignored
        says:

        …but the other Justices basically view this as Aereo skirting around a law they felt clearly applied. The ruling was narrow…

        My own feeling is that they’ve just muddied the waters. We know that renting a shared antenna, shared amplifier, and shared coax in a building with multiple apartments to watch over-the-air signals is okay. We know now that renting an antenna and a shared tuner at some distance from you, then watching a unique copy of the signal is not okay (presumably, even if you were at home). So far as I know, no one has challenged the Slingbox-in-an-apartment model where everything but the tuner is rented and the stream is distributed as a unique copy to anywhere in the world. Tuners are getting cheaper all the time. If Aereo had rented its customers a dedicated tuner, ie a Slingbox with the physical packaging stripped off, would they have passed muster?Report

      • Avatar James Hanley in reply to morat20
        Ignored
        says:

        Kim,

        We can pass laws against fraud and against interfering with someone trying to engage in a legal activity.

        Target the act, not the incidental.Report

      • Avatar James Hanley in reply to morat20
        Ignored
        says:

        Well, that’s badly mis-threaded.Report

      • Avatar Burt Likko in reply to morat20
        Ignored
        says:

        I’m kind of with @morat20 here; I didn’t think the Aereo case was a particularly close call, nor legally all that interesting. Aereo didn’t add anything substantial to the broadcasts, and did attempt to earn profit through the exploitation of works protected by the copyrights of third parties.Report

      • Avatar Will Truman in reply to morat20
        Ignored
        says:

        In a couple of apartment complexes I’ve lived in, they offered to allow you to hook up to the antennae so that you could get local channels on TV.

        How is this different than what Aereo would offer me? Or were the apartment complexes also in violation of the law? Is it that Aereo offered other sevices in addition to the ability to get a signal that otherwise wouldn’t be in reach?

        Without knowing all that much on the merits of the case, this ruling is frustrating to me because it deprives me of the one option I have to get channels other than NBC without having to buy a whole cable/satellite package. Added to that if the networks want to exist on the lucre of carriage fees, maybe they should become cable networks.Report

      • Avatar dand in reply to morat20
        Ignored
        says:

        @will-truman

        Do you have family member who could stream a slingbox to you?Report

      • Avatar morat20 in reply to morat20
        Ignored
        says:

        Will,

        There’s always been a distinction between “personal/home” and “commercial”. Like, you could use a VCR to record a TV show and watch it yourself all you wanted — but you couldn’t use a VCR to record a TV show, then sell or rent copies of it. (You could, however, buy a videotape with a licensed copy and do that).

        The Aereo setup, for personal use — your own tuner you physically own, attached to your systems — would pass muster. Selling the full kit — tuner, software, routers or whatnot — would pass muster.

        Running it as a business, wherein you handle the hardware? No. That’s where Aereo got cute with the law — they said that everyone had their own tuner, just like if was running in their own house, just it happened to be in Aereo’s building.

        But running your entire business and hanging it on the thin thread of ‘you have your own dedicated antenna in our building” was just a bad risk from the get-go.

        To answer another question, I suspect had it been an apartment block with an Aereo-style setup for each unit, it would have passed muster — because those antenna would have been tied to physical locals and basically been the equivalent of personal systems. Whereas, again, a warehouse full of the things streamed nation wide — bridge to far. And I think that’s as far as the court is going to take it — the law’s against it, it’s equivalent to rebroadcast to the public without license, and the ‘one antenna per customer’ figleaf wasn’t big enough.

        It’s not gonna kill the cloud or dropbox, anymore than the VCR died because you couldn’t record MASH and sell bootleg copies.Report

      • Avatar Michael Cain in reply to morat20
        Ignored
        says:

        @will-truman
        After digging a bit farther, I have to modify my comment above: Fox is suing Dish over the inclusion of Slingbox technology, claiming it’s an improper retransmission technology. Maybe we’ll get to see how lower courts interpret the Aereo ruling later this year :^)Report

      • Avatar Jim Heffman in reply to morat20
        Ignored
        says:

        ” I suspect had it been an apartment block with an Aereo-style setup for each unit, it would have passed muster — because those antenna would have been tied to physical locals and basically been the equivalent of personal systems. ”

        So physical proximity is a factor?

        Doesn’t that mean that cloud data services are infringing if, say, I make a copy of a DVD I own and then watch that copy? The cloud hosting service doesn’t have a server in my home, after all (indeed that’s the whole point!)Report

      • Avatar Glyph in reply to morat20
        Ignored
        says:

        @morat20 streamed nation wide

        That’s not my understanding of how it was supposed to work. According to wikipedia:

        During times when customers venture out of the normal broadcasting range for network television, they will not be able to access the service

        Now, I’m not sure how Aereo was enforcing this, and there might have been ways around it, but it seems to me that what they were in effect doing was renting me the equipment/internet infrastructure that would allow me to watch and timeshift my personal local broadcast programming on small screens, so long as I stay within normal TV broadcast range – IOW, they are saving me the trouble of lugging my big flatscreen, a big antenna, and my TIVO around with me on my daily rounds – but they are not granting anyone access to any programming they wouldn’t have free access to, if they did those things.

        I’m not saying they weren’t exploiting a loophole; but it does seem like a valid loophole.Report

      • Avatar Michael Cain in reply to morat20
        Ignored
        says:

        @morat20
        Aereo didn’t provide you with a dedicated tuner, just a dedicated antenna. Within a few years, though, costs will be down to the point where the business model will accommodate dedicated tuners. That’s a much more interesting case, since the courts will be forced to start spelling out exactly when equipment sharing is allowed (ie, Will’s shared antenna passed muster long ago), or how long the cables can be, or what types of cable or conversions are allowed. Or who has physical control of the resource, which is potentially a nightmare in the future “internet of things”.Report

      • Avatar morat20 in reply to morat20
        Ignored
        says:

        Glyph:
        Eh, the law in question is pretty specific to broadcast TV and says, effectively, “Thou Shalt Not Rebroadcast TV without paying the broadcasters. EVER”.

        Personal use is one thing, but if you’re making a profit off doing it in bulk?

        Doesn’t really matter where you use it — it’s rebroadcasting a broadcast signal without paying the piper.

        You can buy the equipment and do it yourself. You can probably rent the equipment to people for individual use. And their argument was they WERE renting equipment for individual use, it’s just the users kept the hardware in Aereo’s warehouse (as it were) — which wasn’t going to fly.

        They’d have probably done better just to sell the software and hardware packages to people, but that wouldn’t have been nearly so lucrative at the expense of the license holders.Report

      • Avatar morat20 in reply to morat20
        Ignored
        says:

        Michael:
        Congress could just, you know, amend the law. Or Aereo could pay licensing fees like Time Warner. Or just sell hardware and software packages for it.

        SCOTUS was ruling on a particular law here — a very narrow one about broadcast signals and rebroadcast of them — not on a sweeping Constitutional issue.Report

      • Avatar Glyph in reply to morat20
        Ignored
        says:

        @morat20 – hmmm, that does seem a bit of a sticky wicket when it comes to internet/cloud stuff.

        What if I record a local broadcast on my DVR, back that up to [the cloud], then stream it back from [the cloud] to my screen?

        Is my cloud provider breaking the law (is that stream a “rebroadcast” to me, without payment to the broadcaster)?

        Was I breaking the law when I backed it up to the cloud (was *I* “rebroadcasting”, without payment to the broadcaster)?Report

      • Avatar morat20 in reply to morat20
        Ignored
        says:

        Jim,
        So physical proximity is a factor?
        No, personal use is a factor — not physical proximity. Say your business model is you DVR broadcasts and then stream the results to anyone paying you 5 bucks a month — definitely illegal unless you license it. But you can DVR it yourself and watch it.

        I suspect SCOTUS would have allowed something like an apartment block because of, well to be blunt — they’d have been thinking old style antennas and gone ‘eh, close enough’ since apartments tend to share utilities and the like anyways. (It wouldn’t have been the most consistent decision, but had that been what was in front of them I think they’d have gone with it).

        Doesn’t that mean that cloud data services are infringing if, say, I make a copy of a DVD I own and then watch that copy? The cloud hosting service doesn’t have a server in my home, after all (indeed that’s the whole point!)
        No. It’s YOUR personal, licensed copy of the DVD. You’re allowed to copy that as many times as you want, as long as you don’t distribute them commercially. The broadcast Aereo copied wasn’t licensed for retransmittal, and they DID distribute it commercially.

        A better question would be: Could you host people’s electronic copies of DVDs and then open it to anyone who wanted to watch, as long as you only streamed on a one-to-one basis (10 copies of Major league in storage? 10 streams at once of Major League). That’d be a fun one to litigate. You’re allowed to loan DVDs. (Best guess: No. You can loan DVDs, but if someone is making money off it it’s commercial — and you can only loan those if they’re licensed. Like RedBox)

        And again: Dropbox and it’s like have non-infringing uses, which are — indeed — the bulk of it’s use. Aereo existed solely to retransmit broadcast signals.

        Seriously, this was a decision based entirely on an act aimed solely at broadcasts. A DVD is literally outside of the scope of the decision entirely, because it doesn’t fall under the act in question.Report

      • Avatar Glyph in reply to morat20
        Ignored
        says:

        Also, I see @jim-heffman asked basically the same question. So feel free to just answer once, if at all, I can see you are fielding a lot of threads. 🙂Report

      • Avatar morat20 in reply to morat20
        Ignored
        says:

        What if I record a local broadcast on my DVR, back that up to [the cloud], then stream it back from [the cloud] to my screen?

        Is my cloud provider breaking the law (is that stream a “rebroadcast” to me, without payment to the broadcaster)?

        Was I breaking the law when I backed it up to the cloud (was *I* “rebroadcasting”, without payment to the broadcaster)?
        No, that’s the VCR exception. That’s been established for ages — it’s not limited to hardware, it’s a question of personal use basically.

        Seriously, this decision has jack to do with cloud computing. Broadcast here doesn’t mean “wireless” or “remote”. The law in question is basically “Oh those TV signals through the air? You can’t take them and resell them unless you pay to do so”.

        If you’re talking about the “Cloud” you have wandered off the reservation. Seriously: Narrow decision. I get why it has the “gee whiz, this is neat” crowd in uproar, but hey — not everything cool is legal and why should ABC bend over and take it so Aereo can make some money off, effectively, stealing their stuff?Report

      • Avatar morat20 in reply to morat20
        Ignored
        says:

        Anyways, to sum up:

        Law says “Broadcast signals — like ABC — you can’t take and resell them unless you pay ABC” (or NBC or whomever). But you’re allowed to set up an antenna and watch them yourself, for free. They’re broadcast for you to do so.

        Cable companies pay to do so, in fact. That’s why you can get broadcast on your cable.

        And obviously you have to pay for an antenna. And a TV. But they’re yours. And you can record shows to DVR legally. You can make tapes or DVDs and watch them all you want. You just can’t record them and sell them. (Yes, technically if you taped Babylon 5 than sold your tapes years later, you were breaking the law. Nobody cares about garage sales though).

        The Courts looked at Aereo who said “We just sell an antenna service, we’re not reselling broadcasts” and the Courts said “You’re effectively reselling broadcasts, not just renting antennas”

        Scalia disagreed, with a torturous analogy to Kinko’s and a library card that failed to mention that in his version of Kinko’s, you could ONLY copy books from the library and 99% of all the books in the library were copyrighted. That Kinko’s would have been sued into oblivion for existing solely to violate copyrights.Report

      • Avatar Michael Cain in reply to morat20
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        says:

        And obviously you have to pay for an antenna…. But they’re yours.

        No. Antenna owned by the apartment building, coax, amplifiers for distribution… those shared resources for accessing an over-the-air signal are all legal. At best you’re renting them as part of the package deal. At worst you’re paying the landlord separately for them, perhaps at a profit.

        Ditto the original cable-tv systems, which consisted of a group of houses in a deep valley with no over-the-air reception, who put an antenna up on the ridge and ran one shared coax down to their houses (with amplification). They weren’t a business, though.Report

      • Avatar morat20 in reply to morat20
        Ignored
        says:

        No. Antenna owned by the apartment building, coax, amplifiers for distribution… those shared resources for accessing an over-the-air signal are all legal. At best you’re renting them as part of the package deal. At worst you’re paying the landlord separately for them, perhaps at a profit.

        Ditto the original cable-tv systems, which consisted of a group of houses in a deep valley with no over-the-air reception, who put an antenna up on the ridge and ran one shared coax down to their houses (with amplification). They weren’t a business, though.
        Courts consider that, as best I understand, an issue of getting the broadcast signal, not as someone packaging it and reselling it.

        And again — a commercial enterprise doing it as a core part of their business model is going to receive stricter scrutiny than, say, an apartment building because the core goal of an apartment manager isn’t to sell video content — but to sell apartments.

        Now you could claim Aereo was basically just providing access you couldn’t get (no antenna on your cell phone, as it were) and I’m pretty sure that was the core of their claim, but given it’s commercial nature, that was never likely to fly. perhaps Congress should amend the Act in question to allow it for, say, not-TVs — to allow Aereo and similar companies to provide streaming broadcasts via that method to phones and the like.

        But that’s not the law now, and what they were doing was — in the end — snagging TV broadcasts and repackaging them to sell.Report

      • Avatar Jim Heffman in reply to morat20
        Ignored
        says:

        morat, seriously, you need to go read the actual language of the opinion and not be thinking “oh well this only applies to Aereo and not to anyone else so I don’t have to be worried”.

        The only thing that stops any of this applying to hosting services is the people who write about things saying “well, of course none of this applies to hosting services”. There is not anything limiting in the language of the opinion.Report

      • Avatar morat20 in reply to morat20
        Ignored
        says:

        morat, seriously, you need to go read the actual language of the opinion and not be thinking “oh well this only applies to Aereo and not to anyone else so I don’t have to be worried”.

        The only thing that stops any of this applying to hosting services is the people who write about things saying “well, of course none of this applies to hosting services”. There is not anything limiting in the language of the opinion
        I did. Then I read synopsis by actual lawyers. SCOTUSblog has several.

        David Post is pretty pointed that the opinion is very narrow. Schruers, the most pessimestic, thinks it might have a chilling effect on investors simply because a technophobic judge might rule wrongly before being overturned, and “It looks like cable, acts like cable, is regulated like cable” is a fuzzy rule that might turn investors off.Report

      • Avatar Patrick in reply to morat20
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        says:

        While they may have used grids of micro-antennas and streaming to deliver it, it was the exact same concept and effect as cable — rebroadcast of broadcast signals.

        Ya’ll making a nomenclature error.

        “Broadcast”, as a verb, has a very specific meaning to the FCC, RF folks, and media transmissions.

        “Broadcast” refers to the transmission of a signal to undesignated locations.

        Aereo is not “broadcasting” anything. This makes them not at all like a television station or a cable company.

        (and the ruling was incorrect on that basis.)Report

      • Avatar Road Scholar in reply to morat20
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        says:

        The fundamental problem with Aereo is that there appears to me — and I’m willing to be corrected! — that there’s little actual relationship between what they claimed to be doing and what they were actually doing.

        As I understand it, their claim is that by dint of your rental of this little “micro-antenna” all they were doing was allowing you to access your own personal copy of the broadcasted content. So let’s look at each element of this: First, what precisely was that littlebitty antenna actually doing? Was it even hooked up to anything? Were they all connected in parallel or series to the shared tuner or what? And given existing precedent wrt shared antenna and coax setups in apartment buildings, what lead them to believe that those little individually rented antennas was even legally relevant? It’s like they took that precedent, did the exact opposite, and ran with it.

        Then there’s the virtual DVR setup. In an actual, physical DVR, you have one or more tuners (I’ve seen as many as six advertised) physically accessing a digital or analog stream, that the customer/consumer has legal right to access (paid cable/satellite or off-air), and then records a unique digital copy of content onto a hard drive which the customer can access at their convenience. Is it Aereo’s contention that each customer is renting a slice of a set of digital tuners which then feeds into a set of hard drives, such that each customer actually accesses their own individual copy of whatever content they wish to view? IOW, at the Aereo facility does there exist a an individual digital copy of everything for each customer? If they have a thousand customers do they have a thousand copies of How I Met Your Mother, each sequestered in their own directory tree that only that customer may access?

        Not the way I understand it and therein lies the problem. They created a system that’s essentially a virtual CATV system while proudly pointing to these silly little useless micro-antennas to claim it’s the exact opposite of what it actually is. If I had been a Justice I would have been annoyed in a I’m-not-actually-as-dumb-as-I-look,-Counselor sort of way at the arguments being put forth.

        It looks to me like you could actually do something like this, leasing a tuner or tuners feeding into leased storage space and providing individual cloud access, all perfectly legally. You just couldn’t do it for anything near the price they were charging due to all the extra hardware you would need to actually, really-for-real do what they’re now only pretending to do.Report

      • Avatar James Hanley in reply to morat20
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        says:

        I make no pretense to have followed this closely, or having a clear understanding of the technology aspects of the case, so can someone help me out here?

        This was just about broadcast TV, right? As in, I can legally buy an antenna to catch the signals, and I can legally buy a machine to record those signals to watch later, right?

        And couldn’t an antenna company legally rent me an antenna on a monthly basis instead of selling one to me out right? And couldn’t they legally rent a recording machine to me instead of selling one to me outright?

        And would it matter if they kept those on their property as a service to me instead of me having to have them cluttering up my house?

        Isn’t that what Aereo was doing? But that seems so simple, that I think I must be missing something. Or is this basically what @patrick is hinting at?Report

      • Avatar James Hanley in reply to morat20
        Ignored
        says:

        I see Morat’s addressed this issue, but from what he’s written so far, I’m not following the logic of it. Why could I rent you an antenna and a receiver/recorder on a monthly basis if you kept it at your house, but I can’t rent you those if I keep it at my business.

        Why is that a meaningful difference as a matter of law?Report

      • Avatar Glyph in reply to morat20
        Ignored
        says:

        @james-hanley – as near as I can figure, the relevant question is, what is Aereo’s “product” they are vending?

        Aereo contended they are only vending equipment/infrastructure, to allow you to watch programming which you could watch for free anyway over the air.

        The broadcasters contended Aereo was *really* vending their programming, which by law they must be paid for (since every person who gets Aereo AND drops cable, takes a chunk out of the fees cable companies pay broadcasters for that programming).

        I gotta admit, I don’t see many people getting Aereo and dropping cable, who wouldn’t have dropped cable anyway. And at least with Aereo they were presumably still getting the originally-broadcast ads for their market.

        Still, from a legal perspective, had the cable companies originally pulled an Aereo, and installed one tiny antenna for each of their cable customers, and told broadcasters “stuff it, you ain’t getting paid”, they’d probably have been slapped down the same way.Report

      • Avatar Jim Heffman in reply to morat20
        Ignored
        says:

        “Why is that a meaningful difference as a matter of law?”

        It isn’t, but (as we see here in this thread, even) people are taking the attitude of “well what you’re doing looks weird, and when something looks weird there’s usually illegality involved, therefore we’ll stop you doing what you’re doing even though we can’t actually figure out what’s illegal about it. But don’t worry, we’ll include ‘we only mean it this once’ in our opinion, that way there’s surely no chance that anyone will use this as precedent.”

        And then Comcast sues Google, claiming that YouTube “communicates the same contemporaneously perceptible images and sounds to a large number of people who are unrelated and unknown to each other”, and that “neither the record nor YouTube suggests that YouTube’s users receive performances in their capacities as owners or possessors of the underlying works”, and therefore YouTube is ilegally transmitting copyrighted works to the public.Report

      • Avatar Patrick in reply to morat20
        Ignored
        says:

        This is a case where Jim’s basically correct (IMO), snark and all.

        An over-the-air transmission is done via the FCC rules for RF broadcast. Stations have a limited amount of power, and the part of the RF band that they’re using has a limited effective range.

        Historically, this meant that I had a monopoly on that band. And since there’s a maximum amount of over-the-air bands in the RF spectrum allocated for commercial broadcast, my license from the FCC gives me a right to transmit certain types of signals. In return, since I have monopoly rights on that bandwidth, commercial vendors will pay me to stick their advertisements in my broadcast. This enables me to pay content providers for content to show, over the air.

        My license agreement with the content providers is contingent upon what I do with it. There is a huge difference between the licensing cost that I pay as, say, a local over-the-air television station and a satellite or cable provider.

        Because a satellite or cable provider is NOT broadcasting. A cable provider is sending a signal down a wire, which they either lease or own, to a limited set of customers that have to have decoding devices in order to be able to receive my signal.

        The satellite company is using an RF signal, but they’re still not broadcasting, because you need a decoder to unscramble the signal. Also: the license terms for the satellite-to-earth section of the RF spectrum is different from the television section, but that’s an aside.

        Aereo is nothing like a cable company, because they *cannot* license *content* at *all* in the way that a cable or satellite provider does. In fact, they’d be legally *constrained* from doing so because the over-the-air content that they’re catching with the antennas comes with a whole ‘nuther set of legal complications.

        Let’s say they *paid* NBC the way DirecTV paid NBC, for the right to transmit NBC stuff. Then the local, over-the-air television broadcaster could *sue* NBC, because they have exclusive rights in the geographic area in which they operate due to their contract with NBC (this is why when you watch NBC on satellite or cable, you see the over-the-air broadcast, you don’t see the NBC feed that NBC sends out to the affiliate).

        In a real world scenario where the big N media companies didn’t own, lock stock and barrel, the local television stations all the way up to most of the content, the local broadcasters would, without a doubt, be HUGE FANS of Aereo, because they are extending their own coverage, and since Aereo can track what the users watch, I get useful information as an entity that sells commercial space, because people can use Aereo to watch my station, I can pay Aereo to tell me what they’re actually watching (something that historically local television stations really couldn’t do, hence the Neilsen ratings), and then I can price the commercial slots that I sell to local vendors accordingly. Indeed, I can even tell which commercials people skip, which is something over-the-air broadcast television stations *never* could do.

        That’s just a fucking hash, though, as far as Time Warner or even NBC is concerned, because NBC isn’t just NBC any more. They no longer have a vested interest in price taking for the NBC broadcast that they used to rely upon.

        Because NBC (or ABC-Cap Disney, or whoever) now is trying to use their content bundling leverage to negotiate with content access providers, e.g., the cable company and the satellite companies.

        The justices just plain don’t understand the technology, and it’s very unclear to me that they really even understand the historical public interest argument for the FCC to be around in the first place, because this decision just doesn’t make any goddamn sense, as @james-hanley
        pointed out.

        I can legally record an over-the-air broadcast, by virtue of it being an over-the-air broadcast. That’s the Fair Use as applied to the stuff that people are willing to put OVER THE AIR. The broadcast is entailed by the use of public airwaves. Nothing Aereo is doing is illegal under the understanding of what over-the-air broadcasting was from the establishment of the FCC until the mid-80s.

        Unless you look at it as, “Large media companies, having eaten up all of the small media companies, are disinterested in providing content to the public that the public actually wants to watch. They are interested in using their monopoly power to force cable and satellite companies to carry their entire swath of stuff, and Aereo, quite a bit like TiVO and any one of a number of other services before it, challenges their ability to do that, without giving up their broadcast stations.”

        And you know, they could do that. Aereo can ONLY record stuff that is broadcast over the air.

        So why don’t they just do that?

        Because they gain monopoly rights by having the over-the-air broadcast station in the local geographic area.

        It’s literally a case of having your cake and wanting to eat it too.

        Don’t broadcast stuff over the air that you don’t want people to record – in any way, was the operational rule established back when the first video recorders came out.

        Now that rule is basically gone.Report

      • Avatar Glyph in reply to morat20
        Ignored
        says:

        @patrick – what do you say to this:

        had the cable companies originally pulled an Aereo, and installed one tiny antenna for each of their cable customers [and used that antenna to send broadcast material through the cables to their customers], and told broadcasters “stuff it, you ain’t getting paid”, they’d probably have been slapped down the same way.

        Is it your opinion that cable companies *should* have been allowed to do that?

        Is it your opinion that they *would* have been allowed to do that?

        Why didn’t they do that?

        Did they just not think of it first; or was the tech not there; or did they realize that broadcasters would come after them with legal elephant guns, so they decided to pony up?Report

      • Avatar Patrick in reply to morat20
        Ignored
        says:

        had the cable companies originally pulled an Aereo, and installed one tiny antenna for each of their cable customers [and used that antenna to send broadcast material through the cables to their customers], and told broadcasters “stuff it, you ain’t getting paid”, they’d probably have been slapped down the same way.

        Mmmmmaybe? I think this is a counterfactual that has a nice feature that you can’t falsify it.

        Is it your opinion that cable companies *should* have been allowed to do that?

        Yes, it is my opinion that cable companies should be able to do that, provided they aren’t sending the signal to cable subscribers outside the geographical zone of the over-the-air transmission. If they were recording things in New York and sending it to California, then no. Because the over-the-air station has the rights to that zone. I’m not sure why a local station carrier would care if a cable company did that, I suspect they’d think it was grand, why not?

        Why didn’t they do that?

        Well, for starters, because the cable companies (back when cable was just getting started) were usually legally required to carry local television stations and they carried those stations by getting a video feed directly from the local television station. Which is actually how most of them operate right now, still.

        Because, you know, the local television station wanted cable company customers to also watch their stations, because that’s how they get paid. By the ad revenue, not by selling the content. They bought the content.

        The market was:

        Local station gets content
        Local station airs content, with ads
        Local station collects ad fees.
        Local station pays affiliate fees (pays for content) using some of the ad fees, keeps a slice for themselves.

        Viewer has no relationship with the content provider, the content carrier, or the people who pay for ad space. Not directly.

        They plunk up an antenna, they get to see stuff, that’s it.

        Cable changed the rules somewhat, but not really… it was more of a case of providing *additional* content under an entirely different licensing mechanism, and really had screwall to do with the over-the-air television market.

        But since 1970, larger and larger media conglomerates have bought cable companies, libraries of movies, local broadcast stations, small ISPs, and a partridge and a pear tree.

        The new, emerging business model of the media conglomerate is to charge the individual customer, directly, for the content, effectively cutting out local broadcaster (whom they own), which is fine with them, because maintaining antennas and a broadcasting station is expensive, they just do it because the regulatory structure that was built from the time the first black and white teevee was shipped grants them certain rights and privileges as long as they maintain the broadcasting service. If they can get to the point where the customers are paying them directly for the content, and the advertisers are paying them directly for ad placement, and sometimes advertisers are paying them also to insert ad placement directly into the content, well, then they can start petitioning the regulatory structure to get rid of all the broadcasting rules and requirements because, yanno, nobody does it that way any more.

        And they’ve gone from one revenue stream to three.

        Now, to be clear, I don’t know that this isn’t a better way to do business. Companies like Netflix are getting into the content business, but they’re selling the content a la carte, which is arguably better for the consumer than the bundled content that DirecTV or TimeWarner Cable sells you in packages (packages, I might add, that they can advertise, get you on a contract, and then drop channels that they told you were in that package because fuck you, I don’t care that you signed up for the UltraPremium package so that you could get ESPN 2, 3, and International, somebody bought ESPN and they now want me, the cable company, to pay them, the content provider, three times what I used to pay for ESPN and I have to take the Home Whatzis Channel, too).

        All of these mid-transition situations are balls, though… because all of the costs of any of the weird subcurrents of the transitional market are going to be dropped right on the consumers’ heads.

        At any rate, nothing Aereo was doing was breaking any rules, flat period end of story. The Supreme Court just decided that the FCC rules didn’t apply, because… reasons. I need to read the whole result, rather than just reviews of it, but I suspect it’s going to be utter garbage. If content providers have a problem with the regulatory structure that was built to give them their for-profit business model in the first goddamn place, the right place for them to try and solve that is through the legislative process. SCOTUS should have punted this to Congress.Report

      • Avatar Glyph in reply to morat20
        Ignored
        says:

        @patrick – Thanks.

        At any rate, nothing Aereo was doing was breaking any rules, flat period end of story.

        Well, dang. Now you got me right back where I was with my first comment.Report

    • Avatar Jaybird in reply to NobAkimoto
      Ignored
      says:

      some serious limitations on the ability of this SCOTUS to adequately deal with technology issues

      Did any of the justices get it right? Maybe we just need to replace the ones who can’t wrap their heads around the emergent systems.Report

      • Avatar Burt Likko in reply to Jaybird
        Ignored
        says:

        C.J. Roberts seemed to understand modern smart phones pretty well in Riley. This was a vote that surprised me a little bit. I’m not surprised in the outcome; I expected Scalia to join with the Ginsburg bloc. But Roberts is usually pretty pro-police on search and seizure issues, so I was expecting a dissent from him or Thomas.Report

      • Avatar morat20 in reply to Jaybird
        Ignored
        says:

        Probably because they all HAVE smartphones.

        it’s pretty easy to see the privacy implications when you own one. It’s harder if, say, you’re talking [technobabble cloud techspeak technobabble].

        In retrospect, I should have really paid more attention to that case simply because it was one where the judges would have a pretty solid grasp on the consequences without a lot of crap to wade through, which meant the ruling (as it is) is a pretty darn important one.

        No “unforeseen consequences” — it’s a pretty solid look at how they view the issue, because there’s far less of a chance of them misreading the technological implications.Report

  3. Avatar Michael Cain
    Ignored
    says:

    In Utility Air Regulatory Group v. EPA various different majorities held that (1) the EPA can regulate greenhouse gas emissions from stationary sources, but (2) not on the basis of greenhouse gas emissions alone. The word “anyway” becomes a technical term, as in “sources that would fall under EPA regulation for emission of pollutants other than greenhouse gases anyway“. That’s not a direct quote, but the opinion, plus the concur/dissent follow-ons, do use the phrase “‘anyway’ sources” repeatedly, which I find amusing. To sum up, the EPA got most of what it wanted for the short term, but not for the reasons that it argued it should.

    Given the EPA plan is to assign each state a number for how much it must reduce greenhouse gas emissions from power plants, and that the states will have to come up with their own plan for achieving the reduction, I expect to see several cases involving the state plans in federal court in the coming years.Report

    • Avatar Kim in reply to Michael Cain
      Ignored
      says:

      Good news for Minnesota and Pittsburgh!
      Bad News for Ohio/Missouri and North DakotaReport

      • Avatar Michael Cain in reply to Kim
        Ignored
        says:

        Not sure how you decided on the good/bad. This case just settled that the EPA can regulate CO2 emissions from stationary sources (eg, power plants). Next round (maybe two years?) will decide whether the recently announced plan for how much reduction has to be achieved, state-by-state, stands. Assuming that happens, since each state gets to create its own plan for how to achieve the reduction, is for several of those plans to wind up in court. Long-term effect in Pittsburgh might be significantly more-expensive electricity — certainly that’s what the generating companies there are going to claim.

        Your good/bad choices make some sense if this were the EME Homer City decision handed out back in April — another example for Burt of a significant decision released before the end of the term — that upheld the Cross State Air Pollution Rule, but only some. CSAPR doesn’t apply to North Dakota at all.Report

  4. Avatar James Hanley
    Ignored
    says:

    McCullen v. Oakley: As sympathetic as I am to the right of women seeking abortion to not be harassed, I think this was a good decision. I think it’s critical that we restrict encroachments on First Amendment rights, as each step makes the next step a little easier.

    McCutcheon: Same argument as above. If money doesn’t actually equal speech, it’s an important amplifier of it, and limiting the size of speech amplifiers is a limitation on the effectiveness of speech.

    NLRB v. Canning: Thank god! I can certainly understand the President’s frustration at not being able to get his nominees confirmed (sometimes not even an up/down vote), and from a strategic perspective I can respect his attempt to find a possible path to his goal and see if it would work. But as a precedent this would effectively allow a president to do regular end-runs around the Senate’s advice and consent function. And presidential aggrandizement of power has developed at such a pace in the last century that any place it gets nipped in the bud a bit is vital. (And, really, Scalia can’t control his need to be vitriolic even when he agrees with the majority’s outcome? We need a good test for diminished mental function and a constitutional amendment to require annual testing of the federal judiciary.)

    Search and Seizure cases:
    Fernandez: Don’t like it, but probably the right call. Maybe though, there should be a limitation that the police can’t enter the absent suspect’s closed bedroom, that only common areas and things in plain view are eligible for search in such a case.

    Navarette: Don’t like it. Don’t like the way that anonymous tipsters are a de facto end run around the right to confront one’s accuser and a tendency toward creating a secret police.

    Riley: Great outcome, but I’m astounded at a unanimous ruling. Now if we can just get a ruling for forced X-Rays and enemas.

    Schuette: However one feels about AA as a policy, the idea that it’s constitutionally required seems a hell of a stretch.

    Greece v. Galloway: Will you fishing Christians just stop already? You’ve got just as much religious freedom as the rest of us, so can you just stop trying to impose your religion on the rest of us? Seriously, just a little live-and-let-live courtesy from you self-absorbed bastards would be greatly appreciated.Report

    • Avatar Saul Degraw in reply to James Hanley
      Ignored
      says:

      I am going to dissent from McCullen. It seems to me that a 35 feet buffer zone is the very definition of a reasonable time, place, and manner restriction.Report

      • Avatar dand in reply to Saul Degraw
        Ignored
        says:

        Would you support a similar buffer zone preventing PETA from shouting “meat/fur is murder” outside restaurants and clothing stores?

        How about on for union members from strike breakers?Report

      • Avatar Michael Cain in reply to Saul Degraw
        Ignored
        says:

        For me, yes to both. There ought to be limits on people’s ability to harass others that are going about perfectly legal activities. I admit that “harass” is a gray area.Report

      • Avatar James Hanley in reply to Saul Degraw
        Ignored
        says:

        The problem I see with what you guys propose is that I could be standing 35 feet away screaming “You’re a whore and you’re going to hell you baby-killing bitch” and we’re going to say that’s legit, while the person standing quietly on the sidewalk with a sign saying, “Please respect life” is illegitimate.

        Is proximity really the problem here?Report

      • Avatar Kim in reply to Saul Degraw
        Ignored
        says:

        James,
        I think 35 feet is too much. That’s an… uncivil distance. Ten feet? I’d say that’s fair. Five or less — when you’re basically surrounded on two sides with people screaming at you? That’s too close.Report

      • Avatar James Hanley in reply to Saul Degraw
        Ignored
        says:

        Kim,

        Out of arm’s reach seems perfectly reasonable to me. Double arm’s length even. Hell, I’d even go triple arm’s length, and then we’re pretty much around your ten foot range. If you’re within range of immediate physical contact, you’re too close.

        I’m wondering if Heffman’s “accommodating” Christians are willing to be at least that accommodating?Report

      • NobAkimoto NobAkimoto in reply to Saul Degraw
        Ignored
        says:

        The reason I’m fixating a bit on this issue is that RAV v. City of St. Paul has basically already ruled out allowing localities to proscribe TYPES of speech and content. So the only solution had been to keep those people AWAY from locations where they could serve as a threatening presence.Report

      • Avatar Kim in reply to Saul Degraw
        Ignored
        says:

        Nob,
        Does that mean you can’t sue someone for simple assault? I mean, what you’re talking about is harassment and threats and other things…Report

      • Avatar dand in reply to Saul Degraw
        Ignored
        says:

        The reason I’m fixating a bit on this issue is that RAV v. City of St. Paul has basically already ruled out allowing localities to proscribe TYPES of speech and content. So the only solution had been to keep those people AWAY from locations where they could serve as a threatening presence.

        So then you’d be okay with a 35 foot buffer zone around any business that sells meat or fur or hires non-union workers?Report

      • Avatar James Hanley in reply to Saul Degraw
        Ignored
        says:

        You can’t directly threaten someone. You can’t spit on them. You can’t throw things at them. You can’t assault them, much less commit battery.

        Yes, words can hurt, and our old schoolyard chant of sticks and stones can break my bones but words will never hurt me was more bravado than truth. But those words can be hurled from 35 feet away, and the signs can be just as visible.

        And as much as it can hurt, in a democracy speech does get privilege and given broad leeway. In my view it is holy.Report

      • NobAkimoto NobAkimoto in reply to Saul Degraw
        Ignored
        says:

        Words can be hurled from 35 feet away, but there’s definitely a difference in how damaging those words can be if you’re within arm’s reach of someone (or within relatively close proximity while lugging around weapons) vs. being 35 feet away.

        Also, the fact that RAV v. St Paul completely ignored the fact that there had been societal intimidation and the context that cross-burning had against African Americans when proscribing certain types of speech was ridiculous in the worst possible way.Report

      • Avatar Kim in reply to Saul Degraw
        Ignored
        says:

        I know someone who got assaulted with one of those placards.
        Maybe 15 feet, then? More if your sign is really big?Report

      • Avatar morat20 in reply to Saul Degraw
        Ignored
        says:

        In the context of the buffer zone case, I think it originated from a surprisingly (even by abortion clinic terms) nasty problem.

        Like assault, blocking the door, death and violent threats, and even pretending to be police or security guards to get close.

        The physical gauntlet wasn’t on display for the case, it was the quiet old ladies. That wasn’t what prompted the law — which means they’re STILL going to have to deal with that, and in terms of just keeping a lid on things a 35 foot zone was probably better for both sides than constant arrests and police interference.

        We’ll see how it pans out, but I suspect Mass (it was Massachusetts, right?) is going to come right back to a more tailored buffer zone. Or a lot more pepper spray.Report

      • Avatar Kim in reply to Saul Degraw
        Ignored
        says:

        morat,
        one of the things that prompted the law was a mass killing.Report

      • Avatar Kim in reply to Saul Degraw
        Ignored
        says:

        http://www.dailykos.com/story/2014/06/26/1309750/-35-Feet

        It would appear that reasonable does not enter into the minds of our justice system.Report

      • Avatar dand in reply to Saul Degraw
        Ignored
        says:

        Like assault, blocking the door, death and violent threats, and even pretending to be police or security guards to get close.

        All of those thing are in and of themselves illegal and can be stopped by enforcing laws that are already on the books.Report

      • Avatar Saul Degraw in reply to Saul Degraw
        Ignored
        says:

        @james-hanley

        Words can hurt but MA enacted their law because of specific instances of violence including two shootings.

        @damon

        I have never seen people protest outside a place that sells meat or fur. The union protests I see have always been very respectful and never tried to block entry. Usually it is one or two people with an inflatable rat or Grim Reaper and the union reps are merely handing out pamphlets and wishing people good day. There is a hotel near my office that gets a good deal of protests over a lack of contracts and they don’t block entry. They just go around a circle and chant. So great strawman.Report

      • Avatar James Hanley in reply to Saul Degraw
        Ignored
        says:

        Sorry, Nob, but we don’t ban symbols, even if ugly, in the U.S. I think you’re reacting generally to things that are offensive, but you’re not getting serious about delving down into the details of how we’ll effectively ban them. So we ban burning crosses on public sidewalks, what about in my own front yard across the street from the black family? What about the image of a burning cross I paint on my garage where the black family across the street can see it? Or on the T-shirt I just happen to always wear as I wait peeking out the window so I can “coincidentally” go out to get my mail at the same time the guy across the street does?

        Confederate flags? Are we going to ban them? Just in some cases, not in others?

        Swastikas? A Jewish family moves in across the street and I paint a swastika on my garage? Maybe I cleverly fit it in with some other symbols, so I can pretend it’s not really about anti-semitism?

        Can we ban people, at least white people, from saying nigger when the black person walks by less than 35 feet away? Fine people for walking by the synagogue as the congregation comes out and saying “Auschwitz was too good for you kikes”?

        All of these are offensive, and no decent person would do these things. But banning them without treading into thought police territory is pretty damned tricky in my view.

        Of course that’s a tangent from the original question here, about proximity. And that’s ok, I just wanted to make sure you were aware that I was aware that the discussion had drifted.Report

      • Avatar James Hanley in reply to Saul Degraw
        Ignored
        says:

        Saul and Kim,

        Do we seriously think that someone intent on killing is going to worry about needing to try to do so from 35 feet away? Do we really think we’re going to deter them, or force them to take a trickier long-range shot?

        Or are we just going to deter non-violent people?Report

      • Avatar Damon in reply to Saul Degraw
        Ignored
        says:

        @saul-degraw

        Did I comment here? I ain’t seeing it.Report

      • Avatar Saul Degraw in reply to Saul Degraw
        Ignored
        says:

        @damon

        My apologies. I meant @dandReport

      • Avatar Kim in reply to Saul Degraw
        Ignored
        says:

        James,
        Protesters were dressing up as “Clinic Guides” (my term) and then intercepting the understandably confused clientele.

        If you keep someone at least 35 feet away, at least you might have time to see them coming. Remember, everyone’s already wearing bulletproof vests. at that point, you’re better off getting cover.Report

      • Avatar dand in reply to Saul Degraw
        Ignored
        says:

        @saul-degraw

        Acts of violence are already illegal we should enforce laws against them rather than pass laws restricting non-violent speech. The law in question bans non-violent speech against one target while allowing identical speech against another target(“abortion is murder” vs “meat is murder”.

        Although i don’t think it relevant there have been countless cases of violence comming from both animal rights and union protests, a high profile example of that latter is the violence at the AFL-CIO organised protest at the WTO in Seattle.Report

      • NobAkimoto NobAkimoto in reply to Saul Degraw
        Ignored
        says:

        All of these are offensive, and no decent person would do these things. But banning them without treading into thought police territory is pretty damned tricky in my view

        While I understand that there’s no easy way to craft legislation that can distinguish between intimidation and “merely” being offensive, it’s not the symbolism that’s problematic, it’s the fact that it’s tied to a history of violence and coercion that makes cross-burning so horrible. Ditto anti-semitism, or misogyny.

        In which case, it seems to me, that it’s perfectly reasonable to create spheres where people don’t have to deal with the additional traumatic burdens that come from those expressions.Report

      • Avatar Kim in reply to Saul Degraw
        Ignored
        says:

        Nob,
        Traumatic burdens are different for everyone.

        Someone says they don’t want to be around young black men.
        Someone else says they don’t want to be around gay people (and complains about systematic harassment because he keeps on being hit on by guys whose gaydar is off, and who refuse to accept “I’m not gay” as fact).

        We have this “if it’s directed toward you, if you fear for your person” form of restricting speech. So, someone can put up 88 everywhere, and it’s no harm no foul (though you won’t see me near if I can possibly drive off).Report

      • Avatar Burt Likko in reply to Saul Degraw
        Ignored
        says:

        FWIW, @nobakimoto , the general consensus is that R.A.V. v. St. Paul has subsequently been limited pretty much to the specific facts of that case. The “viewpoint neutrality” theory of that case never really got a lot of intellectual traction; it is technically still good law but also close to a dead letter at this point.Report

      • Avatar James Hanley in reply to Saul Degraw
        Ignored
        says:

        @nobakimoto
        it’s not the symbolism that’s problematic, it’s the fact that it’s tied to a history of violence and coercion that makes cross-burning so horrible.

        Well, that history is what gives it the symbolism, right? Otherwise it’s just a couple of burning sticks. I just don’t think “it’s not the symbolism that’s problematic” is right in any way.

        In which case, it seems to me, that it’s perfectly reasonable to create spheres where people don’t have to deal with the additional traumatic burdens that come from those expressions.

        Again, then, should I be barred from burning a cross on my front lawn so the black family across the street can see it? Or, assuming there are good viewpoint neutral bans on front lawn fires or open fires of any kind in a dry region, should I be barred from painting a picture of a burning cross on my garage door so that the black family will see it daily?

        We’re assuming I’m a racist now, and let’s say I’m a shop-owner who knows I can’t refuse to serve black people but would like to keep them out of my store, so I put the picture of the burning cross in my store window. Can we ban that?

        Or say I run an open pit barbecue restaurant where I have a permit to have an open flame. Racist that I am I’m sure black people can’t resist good barbecue, so I make sure to always have a burning cross in the middle of the pit. Can we ban that?

        You keep emphasizing the foulness of the symbol or the acts, but that’s not something about which we’re in disagreement. Application of the law is what matters.Report

      • NobAkimoto NobAkimoto in reply to Saul Degraw
        Ignored
        says:

        Like I said, I think libel laws provide an interesting template, particularly if we’re talking about public figures.Report

      • Avatar James Hanley in reply to Saul Degraw
        Ignored
        says:

        Libel law? So, if you can prove the critic lied or acted with reckless disregard for the truth, with statements that can’t be seen as personal opinion, caused harm to a person’s reputation or caused material harm, it’s a tort allowing a civil action? Shrug. Sure, but that doesn’t get you to a 35 foot buffer zone.Report

      • Avatar Damon in reply to Saul Degraw
        Ignored
        says:

        @saul-degraw
        No worries. I didn’t think i posted in this thread, but your post got me wondering 🙂Report

    • NobAkimoto NobAkimoto in reply to James Hanley
      Ignored
      says:

      McCullen v. Oakley: As sympathetic as I am to the right of women seeking abortion to not be harassed, I think this was a good decision. I think it’s critical that we restrict encroachments on First Amendment rights, as each step makes the next step a little easier.

      I find this a little surprising given your vehement critique of George Will. It seems to me that to some extent this sort of de facto harassment and intimidation seems like a terribly broad reading of speech. It’s certainly entering into protecting the right of people to verbally assault others, that strikes me as problematic.Report

      • Avatar Jim Heffman in reply to NobAkimoto
        Ignored
        says:

        “I find this a little surprising given your vehement critique of George Will.”

        Team Red vs Team Blue.Report

      • Avatar dand in reply to NobAkimoto
        Ignored
        says:

        I trust you feel the same way about PETA?Report

      • Avatar James Hanley in reply to NobAkimoto
        Ignored
        says:

        I don’t see the conflict at all, since rape and abortion are very different things (and most abortions do not stem from rape). It’s also not about team red v. team blue, since I’m on team puce.

        For me it’s about prioritization of conflicting rights. Free speech is critical and constitutionally protected. Freedom from being insultingly yelled at is nice, but neither critical nor constitutionally protected.

        I am, though, strongly in favor of other protestors getting in the face of the anti-abortion protestors and telling them to actually act Christ-like. Or standing between the Westboro thugs and funeral-goers. I still believe the best–even though it be imperfect–response to bad speech is good speech.Report

      • NobAkimoto NobAkimoto in reply to NobAkimoto
        Ignored
        says:

        I guess I don’t see there being a clear, bright line between bullying, intimidation, and threats vs. some holy thing called speech. And given the emotional baggage society already imposes on women who get abortions, I’m not sure if the prioritization you speak of is proper, particularly given that there’s already a tendency for US society to trivialize and minimize the harm stemming from harassment and bullying.Report

      • Avatar James Hanley in reply to NobAkimoto
        Ignored
        says:

        dand,

        You mean letting PETA idiots stand on public university sidewalks mouth-frothing at bio profs? Sure. Raiding mink farms to “liberate” the critters? No.

        I’m really not a team red/blue guy on this. I think each side has a constitutional right to be vocal idiots, no matter how much I hate their ideas. I fully support right of both Nazis and Commies to march openly and get laughed at by everyone else.Report

      • Avatar James Hanley in reply to NobAkimoto
        Ignored
        says:

        Nob,
        I don’t think there’s a clear bright line, either. That’s why I lean toward pragmatically defining speech broadly.

        And I do see speech as holy. You can’t have a democracy without it, and you can’t trust the government or the majority to decide where to draw the line between acceptable and unacceptable speech, because it’s particularly the speech of the minority that needs protection.

        Keep in mind the issue we’re talking about here. Pro-life people see abortion as literal pre-meditated murder. It doesn’t matter that you or I disagree, or what kind of logical arguments we can make against it, that’s what they (or many of them) believe. I don’t accept a position of “I don’t think it’s really murder, so I’m not going to allow you to express your deep-seated belief vocally at the very last moment you have to try to save a life.”Report

      • NobAkimoto NobAkimoto in reply to NobAkimoto
        Ignored
        says:

        I think it’s perfectly reasonable to say “You may have your beliefs, but you don’t have a right to traumatize other people while in the process of expressing them”. Again, it’s the trivialization of the real harm caused by words and intimidating behavior by mobs against individuals that’s the problem. How different, fundamentally, is it than the attempts to slut-shame victims of sexual assault, or people picketing, calling, or otherwise harassing a rape victim because she makes an allegation against a figure that’s popular?

        What about if the protesters decide to picket an abortion clinic while openly carrying weapons? Burning crosses on the sidewalk in front of a black family’s home? Putting a noose around a statue of MLK? I mean all this stuff is technically legal as expressions of free speech.

        …but it’s also pretty much getting into violence and intimidation that go beyond free expression and into infringing upon the targeted party’s basic human dignity. I grant you that there’s no constitutional right to be safe from threatening speech and intimidating behavior, but that edges more into rights that are even more fundamental in any free society.Report

      • Avatar James Hanley in reply to NobAkimoto
        Ignored
        says:

        Nob,
        You’re talking about the form of expression, rather than just where the expression takes place. And I’ve already there’s no bright line, but you’re the one who seems to be functionally drawing one. At least I don’t know of a way to readily distinguish traumatizing speech from merely critical speech–it would seem to rely a lot on the response of the listener, and we have a long-standing common-law tradition that general rules don’t get set to the standard of the most sensitive among us.

        Can we sometimes figure out when criticism bleeds over into harrassment and terrorizing? Sometimes. So let’s try to do that. But a blanket rule that you can’t do any protest within X feet of people? That’s using a sledge hammer when you need a scalpel.Report

      • Avatar dand in reply to NobAkimoto
        Ignored
        says:

        @nobakimoto

        If someones family was murdered by communists they might find Che T-shirts offensive? Does that mean you’d be ok with banning them, or do you have a double standard based on the speaker being a member of team blue vs team red?Report

      • NobAkimoto NobAkimoto in reply to NobAkimoto
        Ignored
        says:

        …how is that even a remotely comparable situation?

        I know you’re looking to score cheap partisan points, but that’s just pathetic.Report

      • Avatar dand in reply to NobAkimoto
        Ignored
        says:

        Explain how it’s different? If it were Nazi symbols rather than communist symbols i doubt you’d think it’s different?Report

      • NobAkimoto NobAkimoto in reply to NobAkimoto
        Ignored
        says:

        Really? If you can’t understand why there’s a difference between gathering a group of people to yell at them and hurl vicious language toward them and wearing a t-shirt, I don’t think there’s any level of explanation that’ll get through to you.

        Trolling isn’t particularly civil, and I’m not inclined to waste any further effort on answering stupid false equivalences, but for the record, I would be perfectly fine with say preventing PETA from mobbing around a biology professor and screaming abuse at them while they’re heading to class, or labor unions forming cordons and yelling threats and abuse at replacement workers.Report

      • Avatar dand in reply to NobAkimoto
        Ignored
        says:

        Really? If you can’t understand why there’s a difference between gathering a group of people to yell at them and hurl vicious language toward them and wearing a t-shirt,

        Would you say the same about a t-shirt with swastika or confederate flag on it? Communists murdered more people than either the CSA or Nazis and as such communist symbols should be treated the same way as the confederate flag or a swastika.

        Trolling isn’t particularly civil, and I’m not inclined to waste any further effort on answering stupid false equivalences

        I’m not trolling i’m debating. If the difference is so obvious then it should be easy to explain using objective criteria, but instead of doing so you call me names shout “false equivalence!”, then run away.Report

      • NobAkimoto NobAkimoto in reply to NobAkimoto
        Ignored
        says:

        Passively wearing attire, while potentially offensive, doesn’t rise to the level of threats and intimidation. Your fixation on specific symbols (none of which hold any particular significance to me) belies your partisan focus.

        Objectively there’s a difference between taking offense at symbols being worn by people at random in public, and being the target of specific, targeted actions conducted by people.

        Hell a quiet dude standing with a placard wouldn’t be a problem, as opposed to a dozen people yelling and screaming. Are you seeing the difference yet? Seriously.Report

      • Avatar Kim in reply to NobAkimoto
        Ignored
        says:

        Nob, noise ordinances should cover that.Report

      • Avatar dand in reply to NobAkimoto
        Ignored
        says:

        Passively wearing attire, while potentially offensive, doesn’t rise to the level of threats and intimidation. Your fixation on specific symbols (none of which hold any particular significance to me) belies your partisan focus.

        I’m not partisan, i’m just a free speech absolutist ans anti-communist. Do you favor treating Nazi and communist symbols the same.

        Objectively there’s a difference between taking offense at symbols being worn by people at random in public, and being the target of specific, targeted actions conducted by people.

        Under that criteria a person standing outside an abortion clinic yelling “abortion is murder” is no different than a person standing outside KFC yelling “meat is murder” yet under the law in question on is legal while one is not, the law should treat them both the same.

        Hell a quiet dude standing with a placard wouldn’t be a problem, as opposed to a dozen people yelling and screaming. Are you seeing the difference yet? Seriously.

        Under the law in question both are illegal.Report

      • NobAkimoto NobAkimoto in reply to NobAkimoto
        Ignored
        says:

        I don’t really have a problem with treating Soviet, Nazi, CCP, or CSA symbols as all being symbols of monstrous oppression of one sort or another and treating them equally.Report

      • Avatar James Hanley in reply to NobAkimoto
        Ignored
        says:

        The Democrats were the party of slavery and Jim Crow. Can we ban the donkey? Or since they’re the racial good guys now and the Republicans are evil, can we ban the elephant? What about white sheets? Nooses? What about the backward swastika, which has an ancient history distinct from the Nazis, but could be used as an end-around by neo-nazis when we ban the regular swastika? The confederate battle flag, or the stars and bars, too?

        All burning crosses?Report

      • Avatar Kim in reply to NobAkimoto
        Ignored
        says:

        James,
        Nice one with that last one.

        Nob,
        Unlike, say, Australia, which will seriously arrest people for making fun of Aboriginals (to the point that free speech advocates are Well Advised Never To Set Foot There), America tends to default on the side of “letting things lie.”

        That said, your original concern was about threats, and threats are quite clearly not free speech. Simple assault…

        What that kos link shows is that there is deliberate lying and fraud going on, and I’m not sure if that’s prosecutable. If you dress like a clinic worker, and then proceed to intercept people — is that illegal?Report

      • NobAkimoto NobAkimoto in reply to NobAkimoto
        Ignored
        says:

        I haven’t actually argued for banning any symbols, so I’m not sure where you’re getting that tangent.

        I do think there’s a significant difference between curtailing speech against government and curtailing it against private citizens. Just like how there’s a public figure exemption to libel and slander laws.

        Speech is a contextual thing, there will always be connotations behind expressions that go beyond simply expressing an opinion. Calling someone a nigger is offensive. Gathering your posse,. dressing up in white sheets, and burning a cross in front of that same person’s house is something beyond offensive and going into making threats to their personal safety, even if you don’t purposefully use threatening language or “violent rhetoric”.

        Given that throughout its entire history the US has never actually sought to curtail activities of the latter nature and has consistently allowed people to threaten, intimidate and otherwise apply pressure to minority groups, pardon me for not being super sympathetic to this notion that respecting their right to AVOID harassment somehow constitutes thought policing.Report

      • Avatar James Hanley in reply to NobAkimoto
        Ignored
        says:

        I haven’t actually argued for banning any symbols, so I’m not sure where you’re getting that tangent.

        Well, you did say,
        I don’t really have a problem with treating Soviet, Nazi, CCP, or CSA symbols as all being symbols of monstrous oppression of one sort or another and treating them equally.

        If you meant all equally protected by the First Amendment, then I’m totally on board with you.Report

      • Avatar LWA in reply to NobAkimoto
        Ignored
        says:

        “communist symbols should be treated the same way as the confederate flag or a swastika.”

        Oh, you mean incorporating the hammer and sickle into state flags, and adorning the back of pickup trucks with them?

        OK, if you say so.

        Although, I gotta say, seeing you equate the Stars and Bars with the Nazi swastika makes my liberal heart go pitter pat.Report

      • Avatar James Hanley in reply to NobAkimoto
        Ignored
        says:

        LWA,

        Last Comic Standing isn’t in your future.Report

    • Avatar Jim Heffman in reply to James Hanley
      Ignored
      says:

      “Will you fishing Christians just stop already?”

      Stop what?

      What exactly should that group have done to be more accomodating?

      Unless you’re saying “fuck the First Amendment, I want public expressions of religious sentiment BANNED”Report

      • Avatar James Hanley in reply to Jim Heffman
        Ignored
        says:

        It’s not about expressions of religious sentiment, which are perfectly ok. Even in public. If you want to stand in the park and pray out loud, even on a PA system, I’ll staunchly support your right to do so. Hell, if you want to use the comment period at a city council meeting to say a prayer out loud as your comment, I’ll support your right to do so.

        But we’re talking about government-sponsored prayers here, “the” prayer before the governemnt meeting, so it’s about establishment, not religious freedom. So if you all are going to insist upon prayers before government meetings, at least stop setting things up so they’re almost always Christian.

        So to answer your specific question:
        1. Stop thinking that you need to have a Christian prayer before a government meeting.
        2. Stop thinking that government sponsored prayers are merely public expressions of religious sentiment, rather than falling into establishment territory.
        3. Stop rigging the game so that these supposed voluntary public expressions of religious sentiment are a game only Christians get to play.

        This is not simply anti-Christianism. In Dearborn, MI, which is heavily Muslim, there were efforts to restrict Christian proselytizers from setting up shop at a public festival. That’s a no-go. And if the Dearborn City Council had prayers before meetings and they were always Muslim prayers, I’d oppose that, too.

        But I’m fine with church bells on Sunday morning, and I’d be fine with a mosque’s call to prayer 5 times a day. It was a bit jarring when I first heard it at 4:30 a.m. in the UAE, but I quickly got used to it and it became a nice element of the rhythm of the day.Report

      • Avatar James Hanley in reply to Jim Heffman
        Ignored
        says:

        By the way, Jim, here’s what “accomodating” seems to mean for Christians. The article’s about a proposal to broadcast the call to prayer from a mosque in Dearborn, and Christians who oppose it.

        ‘My main objection is simple,” she said. ”I don’t want to be told that Allah is the true and only God five times a day, 365 days a year. It’s against my constitutional rights to have to listen to another religion evangelize in my ear.’

        But apparently it’s ok to be told that Jesus is the true god before city council meetings. And for her religious freedom is not having to hear any other religions expressing their beliefs.

        ”Everyone talks about their rights,” Mr. Schultz said. ”The rights of Christians have been stripped from them. Last week there were Muslims praying downstairs, in a public building. If Christians tried to do that, the A.C.L.U. would shut us down.”

        This is a lie that’s being repeated by Christians almost non-stop in this country, and hinted at even by you, that we’re trying to stop Christians from praying in public, or that they’re already not allowed to pray in any public building. Seriously, you’re the only group that gets to regularly open up public meetings with your prayers, yet people in your group are still claiming they’re not allowed to pray in public while others are.

        So, this “accomodating” business? I don’t see much of that in American Christianity. What I see is a lot of effort to preserve its traditional place of privilege over other religions and over the non-religious.

        >Some residents complained about the potential noise.

        That’s fair, as long as the rule is evenly applied to church bells (and my college’s bells and noon bell-tower music). Just because it doesn’t personally bother me doesn’t mean the sheer noise level of these things doesn’t bother others (I can hear my college’s belltower from my home a mile away, which seems somewhat excessive).Report

      • Avatar Jim Heffman in reply to Jim Heffman
        Ignored
        says:

        “if you all are going to insist upon prayers before government meetings, at least stop setting things up so they’re almost always Christian.”

        I’m talking about Greece v. Galloway specifically. If you want to use this as a springboard to be more generally “ARRRGH CHRISTIANS DARRRRGH” then I guess it’s not useful to continue the conversation.Report

      • Avatar j r in reply to Jim Heffman
        Ignored
        says:

        ‘My main objection is simple,” she said. ”I don’t want to be told that Allah is the true and only God five times a day, 365 days a year.

        It is quite funny and telling that this guy was objecting to the Allah part and not to the “Muhammed is the messenger” part.

        Maybe he’ll go after the Mexicans next. I’m tired of those people always proselytizing for their god Dios.Report

      • Avatar James Hanley in reply to Jim Heffman
        Ignored
        says:

        It is quite funny and telling that this guy was objecting to the Allah part and not to the “Muhammed is the messenger” part.

        Heh, that part slipped right by me.

        Of course many Christians are happy to tell you that the God of Abraham, Isaac and Jacob somehow isn’t really the God of Abraham, Isaac and Jacob.Report

      • Avatar Burt Likko in reply to Jim Heffman
        Ignored
        says:

        @jim-heffman IMO the Town of Greece did in fact set things up so that they would always get a Christian prayer. The policy adopted by the Town was to invite a “chaplain of the month” selected at random from a list drawn up by the city clerk, to deliver a benediction. But in order to get on the list at all, the cleric had to both 1) maintain a house of worship within the city limits, and 2) respond in the affirmative to a solicitation sent out by the clerk to houses of worship within the city limits. These seem like reasonable rules on their face, right? But it just so happens that the only houses of worship within the city limits of Greece, NY, are Christian churches:
        There is a substantial Jewish population in Greece, NY, but all of the temples and synagogues are either in unincorporated land or in neighboring Rochester. So, there are no Jewish houses of worship within the city limits.
        There are enough Muslims to support a mosque, but the mosque is in unincorporated land near the city. So, there are no Muslim houses of worship within the city limits.
        There is a substantial pagan population (I actually know of one them, he was a childhood friend who moved there for his job), but they do not maintain a house of worship at all and instead meet at the homes of various members of their group, or they rent outdoor space, usually on private land, for outdoor rituals and merriment.
        There is a substantial atheist-agnostic-skeptic population but they too meet in private homes rather than a dedicated building, and when they do meet, they are of course not worshiping anything so any building in which they gather to be atheists together would not be a “house of worship” at all but rather a “house of non-worship.”
        So, reasonable-seeming rules operate to filter out every kind of disfavored religious viewpoint. Anyone with business before the town council — business owners, say, or people looking for zoning variances to improve their homes — must therefore attend a town council meeting that begins with a Christian prayer in which all of the elected officials and professional staff visibly participate and then celebrate the cleric delivering the prayer.

        If you can’t see a governmental endorsement of Christianity in this, then change it from Greece, NY to Dearborn, MI, and change Christianity to Islam, and imagine being a Christian with business before that city’s governing body which begins all of its meetings with Muslim benedictions and readings from the Koran, arrived at through carefully-engineered rules that filter out the participation of any Christians in that ritual. A bit intimidating to imagine, isn’t it?Report

      • Avatar Jim Heffman in reply to Jim Heffman
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        says:

        The town’s brief claims that recent prayer-givers (at the time of the Court arguments) included persons of Jewish, Baha’i, Wiccan, and Cherokee faith.

        You can argue “but they only started doing that after the whole thing went to court!” in which case I can reply “which means the respondents got what they wanted, the potential for prayer-givers to be more than just monotonously Christian, and we can all go home.”

        You can argue “but the prayer-givers are still mostly Christian!” in which case I can reply “oh, so now it’s a numbers game, an argument that the town’s practices were not sufficiently inclusive, which means that Galloway’s argument isn’t actually relevant to the problem at hand.”

        It’s also worth noting that the Galloway side used a different argument before the Supreme Court than they did at the District and Circuit Court levels.Report

      • Avatar Burt Likko in reply to Jim Heffman
        Ignored
        says:

        What the town’s brief elides is that each of those prayergivers was brought in by special invitation, after the Establishment Clause lawsuit was threatened. In other words, each and every non-Christian “chaplain of the month” was specifically brought in for the purpose of artificially creating an appearance of greater religious diversity than the rule conjured up.

        If you ask me, the “Quick, let’s bend the rules and get a Jew in here before we get sued!” response strongly corroborates the inference that the rules were deliberately crafted so as to endorse Christianity. But it turns out the town council didn’t need to do even that much to find cover. SCOTUS did not address this facet of the case, and found no Establishment in the prayer policy. By the reasoning of the Court, even if the non-Christians had never been specially invited, there would still not have been an Establishment.Report

      • Avatar James Hanley in reply to Jim Heffman
        Ignored
        says:

        I’m talking about Greece v. Galloway specifically. If you want to use this as a springboard to be more generally “ARRRGH CHRISTIANS DARRRRGH” then I guess it’s not useful to continue the conversation.

        Really, JH? You’re going to play that card after your very first comment concluded with “Unless you’re saying “fuck the First Amendment, I want public expressions of religious sentiment BANNED”?

        Was that strawman evidence of a commitment to useful conversation?Report

      • Avatar Mike Schilling in reply to Jim Heffman
        Ignored
        says:

        @j-r

        Very nicely done.Report

      • Avatar James Hanley in reply to Jim Heffman
        Ignored
        says:

        From the opinion: “Yet Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted “by reference to historical practices and understandings.””

        That sounds an awful lot to me like this bit from Korematsu: ” Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities …decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily.”Report

      • Avatar Glyph in reply to Jim Heffman
        Ignored
        says:

        I’m tired of those people always proselytizing for their god Dios.

        I think it’s time for you to accept the truth that’s hard as steel.

        LOOK OUT!Report

      • Avatar Jim Heffman in reply to Jim Heffman
        Ignored
        says:

        “In other words, each and every non-Christian “chaplain of the month” was specifically brought in for the purpose of artificially creating an appearance of greater religious diversity than the rule conjured up.”

        I, the Wizard of Speed and Time, was able to reply to your post five minutes before you posted it.

        “If you ask me, the “Quick, let’s bend the rules and get a Jew in here before we get sued!” response strongly corroborates the inference that the rules were deliberately crafted so as to endorse Christianity.”

        Or maybe what it means is that the town honestly thought they were doing everything they could to include people from multiple faiths and creeds, and when it was pointed out to them that they were failing to accomplish this they took stronger steps than they had been previously.

        But, y’know, I can understand how epistemic closure requires that you see cultural opponents as Evil rather than just Stupid.Report

      • Avatar Burt Likko in reply to Jim Heffman
        Ignored
        says:

        I deny the accusation of epistemic closure. I cop to a less-than-charitable interpretation of events, but in my opinion the evidence here merits such an interpretation. You are free to interpret the evidence differently of course, but that difference of opinion does not mean that I’m editing out of my world view facts which might not be harmonious with the way I’ve looked at the case.Report

    • Avatar Patrick in reply to James Hanley
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      says:

      I’m waiting for an open carry, stand-your-ground state to have an abortion protest that gets a little grabby or out of hand, and the woman whips out her piece and screams, “I’m standing my ground” and plugs a few people.Report

  5. Avatar Francis
    Ignored
    says:

    2 patent cases.

    In Limelight v. Akamai, the court held that in order for contributory infringement to exist, there must be at least one direct infringer. (The Fed. Circuit is badly split internally. One faction adopted a rule that a single person must perform all the steps of a method in order to infringe a method patent. The other faction did an end-run around that rule by allowing for multiple parties to contribute to infringement of a method claim. No dice, said the Supremes unanimously.)

    And in Alice Corp v. CLS Bank, the court issued a very muddled opinion that might or might not be a major blow to software patents generally. The patent in Alice took a very old idea — intermediated settlements of debt positions — and put them on a computer. Not patentable, said the court. Why? Because running a long-existing algorithm (third-party intermediation) on well-known devices (computers) and just getting the same result a little faster has no novel step.

    Well, ok. What is the minimum requirement for a novel step? Like porn, we know it when we see it.Report

    • Avatar Glyph in reply to Francis
      Ignored
      says:

      What is the minimum requirement for a novel step?

      More than a right leg that isn’t silly at all, and a left leg that merely does a forward aerial half-turn every alternate step.Report

    • Avatar Troublesome Frog in reply to Francis
      Ignored
      says:

      Well, ok. What is the minimum requirement for a novel step? Like porn, we know it when we see it.

      I suppose that’s true to some extent, but can we all at least agree that running through all of the existing patents and appending “on a computer” or “in bed” to them to get new patents is probably not doing America any good?Report

      • Avatar Francis in reply to Troublesome Frog
        Ignored
        says:

        yes. While I don’t go as far as Kevin Drum (software patents should be banned!), I think the PTO should have been far tougher in the whole area of implementing existing and/or obvious algorithms on existing devices. Speed alone isn’t novelty. (Nor, arguably, is the absence of human involvement.)

        But there certainly are new methods of doing things that are both truly novel and are implemented by an algorithm running on a computer that I think are patent worthy. Email, for one. Just because the PTO has been doing a lousy job doesn’t mean you categorically ban the entire field from patent protection.Report

      • Avatar Troublesome Frog in reply to Troublesome Frog
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        says:

        I’ve slowly evolved to agreeing with Drum more than I disagree. If the Patent Office was full of wise sages who were ready to be really brutal and reject the vast majority of applications, I think it could be workable. But it’s not, so the baby to bathwater ratio at this point is approaching zero. My current company is an itty bitty startup that’s doing some pretty cool stuff, but I spend a lot more of my time worrying that we’ll get sued by somebody who has a patent on “storing data using a computing device” than thinking about the benefits we’d get if we applied for patents on some of our more clever ideas. It seems like much more of a net drag than a net win.

        My last company had serious resources for patents and patent attorneys, and we were one of the leading creators of new biometric matching algorithms. Still, the vast majority of our new stuff was kept as a trade secret instead of being patented. Patents took a lot of time and cost a fortune to defend, so if you have an idea that you actually plan to use for something, it’s often better just to use it and keep it secret rather than open it up for your competitors to clone and fight you in court over. Of course, if you have an idea that’s obvious, likely to be used all over the place, and you have no product to use it in, you might as well try to patent it and hope to squeeze some cash from a company that’s actually doing some work.

        I’d love to see the truly brilliant get rewarded for great inventions, but those are few and far between, and it seems like the social costs of rewarding them this way is becoming untenable.Report

    • Avatar Michael Cain in reply to Francis
      Ignored
      says:

      What is the minimum requirement for a novel step?

      Does duration matter, which is often relevant in software patents? Discrete cosine transform as a step in compressing digital video went from “novel” to “a standard method taught in every textbook” over the course of three or four years. But you had to pay the MPEG-LA group for much longer than that if you wanted to include a device that used it in your video system (including pure software implementations). And pay enough that China thought seriously about developing their own video compression standard to avoid the payments.Report

  6. Avatar Jim Heffman
    Ignored
    says:

    “Cline v. Oklahoma Center for Reproductive Justice”

    This could be a situation where the USSC is waiting for state- and circuit-level courts to hash out the issue. In Sorrell v. IMS Health Inc. the USSC found that pharmaceutical marketing was a form of free speech; circuit courts have, since then, the Second Circuit found (in U.S. v. Caronia) that off-label promotion was similarly protected, even though actual marketing is still not allowed (a sales rep can say “you can use this for this-or-that off-label”, but they aren’t allowed to make TV commercials about it yet.)Report

  7. Avatar ScarletNumbers
    Ignored
    says:

    SCOTUS refused to grant cert to NCAA v. Governor of New Jersey. This means that the ruling by the 3rd Circuit stands.

    In short, NJ tried to allow a limited amount of legalized sports betting, in violation of the Professional and Amateur Sports Protection Act of 1992. NJ argued that the act was unconstitutional because it carved out exceptions for 4 states. The NCAA argued that those exceptions were due to a grandfather clause. The 3rd Circuit sided with the NCAA 2-1.Report

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