Photo: Courtesy of U.S. Supreme Court
The outcome of the Supreme Court’s 2011-2012 term, which ended Thursday, was largely favorable when it came to the justices’ Wired-worthy opinions surrounding surveillance, the First Amendment, intellectual property and even profanity.
But the term’s overall outcome was mixed at best.
That’s because the court, without comment, let stand rulings upholding torture, a $675,000 verdict for file-sharing 30 music tracks, and, among other things, skirted educators’ demands that it clarify on what grounds public schools may punish students for their off-campus, online speech.
Next term, however, the justices have a chance to redeem themselves. They agreed to review important cases in their new term beginning this fall.
One case among them asks whether judges may issue search warrants for private residences when a drug-sniffing dog outside the home reacts as if it smells drugs inside. Another seeks to dismiss a lawsuit challenging legislation allowing the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant. The Supreme Court will also decide the global reach of U.S. copyright law – whether an overseas purchaser of a copyrighted work may resell it in the United States without the copyright holder’s permission.
Here is a summary of key decisions from the court’s 2011-2012 term:
In one of the biggest Fourth Amendment cases blending technology and privacy in a decade, the justices ruled unanimously in January that the authorities need a warrant to affix a GPS device to a vehicle to track its every move. The decision, in a case brought by a convicted drug dealer whose life sentence was overturned, was a blow to the Obama administration, which had argued that Americans have no expectation of privacy in their public movements.
While the decision was unanimous, the five justices who controlled the decision, led by Justin Antonin Scalia, said the mere act of affixing the device to the car amounted to a search and demanded a probable-cause warrant. The Justice Department has disabled as many as 3,000 GPS trackers in the decision’s aftermath.
In its biggest copyright decision of the term, the justices ruled 6-2 in January that Congress may take books, musical compositions and other works out of the public domain, where they can be freely used and adapted, and grant them copyright status again.
The top court was ruling on a petition by a group of orchestra conductors, educators, performers, publishers and film archivists who urged the justices to reverse an appellate court that sided against the group. The group’s members have relied on artistic works in the public domain for their livelihoods and claimed that re-copyrighting public works would breach the speech rights of those who are now using those works without needing a license. There are millions of decades-old works at issue. Some of the well-known ones include H.G. Wells’ Things to Come; Fritz Lang’s Metropolis and the musical compositions of Igor Fyodorovich Stravinsky.
The court, although ruling against the group, was sympathetic to their argument. Writing for the majority, Justice Ruth Bader Ginsburg said (.pdf) “some restriction on expression is the inherent and intended effect of every grant of copyright.” But the top court, with Justice Elena Kagan recused, said Congress’ move to re-copyright the works to comport with an international treaty was more important.
For a variety of reasons, the works at issue, which are foreign and produced decades ago, became part of the public domain in the United States but were still copyrighted overseas. In 1994, Congress adopted legislation to move the works back into copyright, so U.S. policy would comport with an international copyright treaty known as the Berne Convention.
Federal Communications Commission v. Fox Television Stations
The justices last week set aside (.pdf) indecency rulings against Fox and ABC for airing fleeting expletives and nudity on the public airwaves, but declined to rule on the constitutionality of decency standards for broadcast television and radio.
The case was being closely watched because the high court was in a position to decide whether decency standards for broadcast television and radio breached the First Amendment. Opponents argued the rules are unnecessary because of the ubiquity of cable and satellite programming not covered by the standards. But the justices punted on that hot-button constitutional issue and instead ruled on narrow, procedural grounds in an 8-0 decision with Justice Sonia Sotomayor recused.
The dispute concerned Federal Communications Commission rulings that “fleeting expletives” uttered during the 2002 and 2003 Billboard Music Awards were indecent for public broadcasting. First Cher, then Nicole Richie cursed during the shows aired on Fox. In the other dispute, the FCC said ABC violated decency standards when the network aired a brief nude shot of Charlotte Ross’ buttocks and breast in a 2003 episode of NYPD Blue.
The justices said that FCC broadcast guidelines, which are enforced for radio and television during the day from 6 a.m. to 10 p.m., were too broad and vague to give broadcasters adequate notice of what the indecency standards actually were.
The justices ruled (.pdf) 6-3 Thursday that a 2006 law making it a federal criminal offense to lie about being decorated for military service was an unconstitutional breach of the First Amendment.
The Stolen Valor Act makes it unlawful for someone to falsely represent, verbally or in writing, that they were “awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” The measure imposes penalties of up to a year in prison.
The decision concerned defendant Xavier Alvarez who, in 2007, claimed falsely that as a Marine, he had won the Medal of Honor, the highest military decoration. He made that public statement during a local Los Angeles suburban water board meeting, in which he had just won a seat on its board of directors. Alvarez was the first person ever charged and convicted under the act — though dozens more have been charged. Alvarez pleaded guilty, was fined $5,000 and ordered to perform 416 hours of community service.
Miami-Dade County Police Department K-9 “Franky” has discovered more than 2.5 tons of marijuana, and is the subject of upcoming Supreme Court arguments about search and seizure. Photo: Courtesty of Miami-Dade County
Here is a summary of important cases the justices agreed to review at its next term, beginning this fall:
Clapper v. Amnesty International
The high court in May agreed to decide whether to halt a legal challenge to a once-secret warrantless surveillance program targeting Americans’ communications that Congress eventually legalized in 2008.
The announcement is a win for the Obama administration, which like its predecessor, argues that government wiretapping programs can’t be challenged in court.
At issue is the FISA Amendments Act, (.pdf) the subject of lawsuit brought by the American Civil Liberties Union and others, that authorizes the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is outside the United States. The communications may be intercepted “to acquire foreign intelligence information.”
That bill was signed into law in July 2008, and the ACLU filed suit immediately. After a surprise appellate court decision last year that reinstated the ACLU’s challenge, the Obama administration petitioned (.pdf) the Supreme Court to overturn the decision. The government said the ACLU and a host of other groups don’t have the legal standing to bring the case because they have no evidence they or their overseas clients are being targeted by the program.
Kirtsaeng v. John Wiley & Sons
The top court in April agreed to decide the global reach of U.S. copyright law, in a case testing whether an overseas purchaser of a copyrighted work may resell it in the United States without the copyright holder’s permission.
The case concerns the “first-sale” doctrine, and the federal appellate courts are split on the issue.
The first-sale doctrine generally allows the purchaser of any copyrighted work to re-sell or use the work in many ways without the copyright holder’s permission. That’s why used bookstores, libraries, GameStop, video rental stores and even eBay are all legal. But how the doctrine applies to foreign-purchased works — the so-called grey market — has been a matter of considerable debate.
The Supreme Court in 2010 said the first-sale doctrine did not apply to overseas purchases of copyrighted works which were imported for resale in the United States. The 4-4 ruling meant Costco could be liable for copyright infringement for selling foreign-made watches without the manufacturer’s authorization. However, because there was no majority decision, the ruling did not set a nationwide precedent and solely affirmed a lower court’s ruling.
Justice Kagan was recused from the Costco case, as she had worked on it when she was solicitor general.
The court agreed in January to decide for the first time whether judges may issue search warrants for private residences when a drug-sniffing dog outside the home reacts as if it smells drugs inside.
The case, involving a suspected Florida drug dealer, tests the limits of government intrusion into the home. The justices and lower courts have routinely sanctioned search warrants based on drug-detecting dogs responding to packages like airport luggage or vehicles stopped during routine traffic stops.
But a private residence is another story. The case pending before the court is made all the more important because the Obama administration already claims there is no privacy in one’s public movements outside a private dwelling.
The issue is being watched closely by at least 18 states that warned the Supreme Court that the Florida case “jeopardizes a widely used method of detecting illegal drugs.” (.pdf)
Here is a summary of important cases the justices rejected reviewing:
The justices two weeks ago let stand a lower court decision that said federal officials cannot be sued for damages for the torture of Americans on U.S. soil. Without comment, the justices set aside a petition (.pdf) from Jose Padilla, the so-called “dirty bomber.” Padilla claims high-ranking Defense Department officials and others are liable for developing “the global detention and interrogation policies” that paved the way for his torture while he was secretly held without charges at a Navy brig in South Carolina for more than three years.
The 4th U.S. Circuit Court of Appeals had ruled that the judiciary had no role in the matter. “Litigation of the sort proposed thus risks impingement on explicit constitutional assignments of responsibility to the coordinate branches of our government,” the circuit ruled.
American Society of Composers, Authors and Publishers v. United States
The justices declined in October to decide whether downloading a song is a public performance requiring artists to get paid additional royalties.
The American Society of Composers, Authors and Publishers, known as ASCAP, asked the justices to review a lower court decision that said downloading songs from iTunes, Amazon, eMusic or even music-sharing services do not count as public performances, and hence additional royalties are unwarranted. The justices let stand that decision without comment.
The group, with 400,000 members, maintained in its petition (.pdf) to the justices that the Copyright Act demanded the extra royalties, which could amount to tens of millions of dollars in extra revenue annually. The appeals court said that downloading a music file is more aptly characterized as “reproducing” that file, and not subject to performance rights.
The court in May let stand a $675,000 file-sharing damages award that a jury levied against a college student for making 30 music tracks available on a peer-to-peer network.
Without comment, the high court, with Chief Justice John Roberts and Justice Stephen Breyer not participating, declined an appeal (.pdf) brought by former Boston college student Joel Tenenbaum. His petition (.pdf) claimed that Congress did not intend “unrestrained discretionary jury damage awards against individual citizens for copyright infringement.”
Blue Mountain School District v. J.S.
The court in January declined without comment to clarify on what grounds public schools may punish students for their off-campus, online speech.
The justices have not squarely addressed the student-speech issue as it applies to the digital world — one filled with online social-networking tools such as Facebook, Twitter, MySpace and others. The issue before the justices tested whether public schools may discipline students who, while off campus, use social-networking sites to mock school officials.
The lower courts have been all over the map on the First Amendment issue because they maintain they have been saddled with Vietnam War-era precedent that predates the internet.
In the leading case of the three petitions the justices declined to review, the lower court opinion urged the Supreme Court to end the confusion of whether that Vietnam War-era case does indeed still hold in the internet age. The National School Boards Association also urged the high court to review the issue.
The association and others told the justices that “The ubiquitous use of social networking and other forms of online communication has resulted in a stunning increase in harmful student expression that school administrators are forced to address with no clear guiding jurisprudence.”
The 1969 Supreme Court precedent holds that student expression may not be suppressed unless school officials reasonably conclude that it would “materially and substantially disrupt the work and discipline of the school.” In that landmark case, the Supreme Court said students had a First Amendment right to wear black armbands on campus to protest the Vietnam War.