Plain English / Cases Made Simple

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If you think your cable bill is too high, you probably don’t want to read this.  The Supreme Court yesterday put a stake in the heart of a start-up that delivered network television on the cheap.  More fairly, the Supreme Court recognized that Congress killed the service – Aereo – well before it got off the ground.  Let’s talk about the decision in Plain English.

This is a copyright case.  If you make a work – including a television show – you can get a copyright.  Federal law provides that no one can “publicly perform” that work unless they pay you.  And the specific provision is very broad:  it applies if the show is transmitted “by means of any device or process” and even if the audience receives it “in separate places” and “at separate times.”

Here is Aereo’s service.  You pay a fee.  In exchange, they send you network television over the Internet.  The fee is small because Aereo’s costs are low.  It doesn’t pay the copyright owners.  Instead, it has thousands of individual antennas, each of which can tune into a particular channel requested by a particular subscriber.  Aereo then saves the subscriber’s program in a separate file.  It sends the data over the Internet.

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In 1973, the Supreme Court held that police officers did not need a warrant to look inside a pack of cigarettes that they found in the coat pocket of a man who had been arrested.  Those kinds of warrantless searches were allowed, the Court reasoned back then, to protect police officers and to prevent the destruction of evidence.

Forty years later, California and the federal government urged the Supreme Court to adopt the same rule for cellphones.  Once someone is arrested, they contended, police should be able to go through the entire contents of his phone without a warrant because cellphones are just like any other item that you can carry in your hand or pocket.  But today the Supreme Court emphatically rejected that argument.  Therefore, unless it’s an emergency, police need to get a warrant before they can search your cellphone.  Let’s talk about the decision in Riley v. California in Plain English. Continue reading »

Commentary

It is one of the strangest legal disputes ever to reach the Supreme Court.  On one side, a foreign nation is accusing U.S. courts of trying to ruin its economy and weaken its military defense.  Its legal opponents answer that the nation is an international scofflaw that won’t obey anything the courts do, anyway.

Adding to the drama is that some high-profile legal talents — Theodore B. Olson, David Boies, and Paul D. Clement — are right in the middle of it.  For added measure, billions of dollars are at stake.  Add to the mystery the fact that no one has any dependable idea how or when the Supreme Court will react. And add to the intrigue the fact that it all might be settled if the Supreme Court would just hand it off to a state court, to spell out the meaning of a two-word Latin phrase.

This is the Argentine bond saga, and it goes back at least thirteen years, with some history running all the way back to the 1820s.  Can this be made simple? Let’s try.

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Like the fictitious soap operas All My Children and One Life to Live before it, the long-running real-life soap opera that was Bond v. United States ended its run today.  The case had the potential to be a big one, offering the possibility that the Court could put significant limits on Congress’s power to pass laws putting international treaties into effect.  (My earlier Plain English coverage of the case is available here and here.)  But in the end, despite the possibility of drama, Bond turned out to be more like the anticlimactic series finale of another long-running show – Seinfeld.  Let’s talk about today’s decision in Plain English.  Continue reading »

Since the beginning of April, the Court has issued opinions in two high-profile cases:  on April 2, it struck down the aggregate limits that federal law imposes on campaign contributions, and on April 22 it upheld Michigan’s ban on the use of affirmative action by public universities.  Today the Court added another ruling to this Term’s list of highly contentious cases:  by a vote of five to four, the Court rejected a challenge to a New York town’s practice of beginning its town council meetings with a prayer.  In an opinion by Justice Kennedy, the majority regarded the town’s practice as just the latest chapter in a long tradition of such prayers by Congress and the states.  Justice Elena Kagan’s lead dissent painted a very different picture, characterizing the prayer practice as a betrayal of the principle that the government will treat all Americans the same, regardless of their religion.  Let’s talk about the decision in Plain English. Continue reading »

After two hours of oral arguments in Riley v. California and United States v. Wurie, both of which involve challenges to the search of an arrestee’s cellphone without a warrant, it seemed likely that the Justices are headed for some sort of middle ground:  there did not seem to be five votes for either the government’s bright-line rule – that police never need to get a warrant to search a cellphone – or its polar opposite, which would always require a warrant.  But exactly what that middle ground might be and what it might mean for David Riley and Brima Wurie, the defendants in this case, were far less clear.  Let’s talk about the arguments in Plain English.

Jeffrey Fisher arguing for petitioner in Fourth Amendment cell phone case. (Art Lien)

Jeffrey Fisher arguing for petitioner in Fourth Amendment cell phone case. (Art Lien)

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It was a series of events straight out of the children’s book If You Give a Mouse a Cookie – the Law and Order edition.  The storyline goes something like this:  If you are driving a car with expired tags, the police might pull you over.  If they do, they will ask to see your driver’s license.  When you give it to them, they will run a computer check and learn that it has been suspended.  So they decide to impound the car.  But before they tow the car away, they search it.  When they search it, they discover two handguns under the hood, so they arrest you.  When they arrest you, they take your smart phone.  When they take your smart phone, they read your text messages.  When they read the messages, they see texts which suggest that you might be a member of a local gang.  Based in part on those texts, they suspect that you may have been involved in a gang-related shooting a couple of weeks ago, and so they look at your phone again, where they find more evidence to support the theory that you belong to a gang and were involved in the shooting.   Continue reading »

Before Tuesday’s oral arguments in American Broadcasting Companies v. Aereo, Justice Kennedy announced the Court’s much-anticipated decision in Schuette v. Coalition to Defend Affirmative Action, upholding Michigan’s state constitutional ban on the use of affirmative action by state universities.  Given the palpably tense atmosphere that accompanied Justice Sonia Sotomayor’s dissent from the bench in Schuette, you had the sense that the Justices were relieved to move on to easier – or at least less controversial – topics, like the David-and-Goliath battle that pits Aereo, the start-up that pulls TV programming off the airwaves on thousands of tiny antennas and streams it over the Internet to subscribers for a small fee, against the broadcast television industry, which argues that Aereo’s business model is a blatant violation of federal copyright laws that could sound the death knell for television as we know it.  (My preview of the oral argument is available here.)

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Yesterday, the nine Justices of the Supreme Court convened in a packed courtroom to hear oral arguments in two high-profile cases.  But the real drama came before the oral arguments even started, when Chief Justice John Roberts announced that Justice Anthony Kennedy would deliver the Court’s decision in Schuette v. Coalition to Defend Affirmative Action, the challenge to an amendment to the Michigan constitution that bans the use of affirmative action by public universities there.  (My earlier Plain English coverage of the case is available here.)

Justice Kennedy began by explaining what “this case is not about.”  It is not about whether state universities can voluntarily consider race in their admissions process, nor is it about whether it’s a good idea for them to do so.  Instead, Kennedy emphasized, the question before the Court is whether voters can choose to prohibit state universities from considering race.  And the answer to that question, we learned yesterday, is yes.

Justice Sotomayor dissents in Schuette. (Art Lien)

Justice Sotomayor dissents in Schuette. (Art Lien)

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For those of us who grew up adjusting the rabbit ears on our seventies-era televisions (and having to get up to change the channel to one of the other four or five available stations – no remote controls!), the service offered by Aereo, Inc., is nothing short of miraculous.  For just eight dollars a month, you get the ability to start watching a TV program – say, the Super Bowl – live on your iPhone while you are out of your house.  When you get home, you can pick up seamlessly where you left off on your television or desktop computer.  Or, you can record the entire program on a remote DVR assigned to you and watch the whole thing later on.

What could possibly be wrong with Aereo’s business model?  For ABC and the rest of the broadcast television industry, pretty much everything.  In their view, Aereo is blatantly violating federal copyright laws (and possibly jeopardizing the entire broadcast industry) by streaming live TV over the Internet without paying the networks for the right to do so.  Aereo counters that everything it does is completely legal:  the TV programs that it makes available are already broadcast for free over the public airwaves; Aereo is just making it easier and more efficient for its subscribers to watch those programs.  Tomorrow, the Supreme Court will hear oral arguments from both sides of the dispute, with a decision expected by summer.  Here’s the lowdown on American Broadcasting Companies, Inc. v. Aereo, Inc., in Plain English.  Continue reading »

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