Today the Librarian of Congress announced new rules promulgated pursuant to the Librarian’s rulemaking authority under the Digital Millennium Copyright Act to exempt certain actions from the prohibition against circumvention of copyright protection systems found in 17 U.S.C. §1201. The “anti-circumvention provision” states:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

The Librarian is required by §1201 to make a determination every three years as to whether any exemptions from this prohibition are necessary in order to preserve access to copyrighted works. In the words of the Librarian, his task is to determine

whether the prohibition on circumvention of technological measures that control access to copyrighted works is causing or is likely to cause adverse effects on the ability of users of any particular classes of copyrighted works to make noninfringing uses of those works.

There are six new exceptions announced today:

1. Educational, documentary, and noncommercial users may now break CSS protection on DVDs in order to extract portions of motion pictures.

   This is something educators and critics have been doing for quite some time. At least, the educators at my film school did it all the time, and encouraged us as students to do so for assignments. For example, one assignment was to take a film and cut a trailer for it. I chose AI: Artificial Intelligence, which was newly released on DVD at the time, and with which I was a little obsessed, having taken part in the extraordinary, genre-defining artificial reality game promoting its theatrical release. I used DeCSS to extract the entire film, then edited together a pretty decent trailer. Did this infringe on Dreamworks’ copyright? No. Use of excerpts of copyrighted material for educational or critical use is permitted under fair use doctrine. Was it criminal at the time? Yes. The Digital Millennium Copyright Act’s anti-circumvention provision made it a crime to access copyrighted material for fair use purposes if that material was protected by an anti-copying technology. The DVD was protected by CSS, and the use of DeCSS to circumvent that protection was criminal, even though the underlying use of the copyrighted material was not. DeCSS’s relationship with the DMCA has been distilled into the concept of the illegal prime number: a numerical representation, in the form of a large prime, of the DeCSS method.

   This provision means that, when I finally get around to finishing my comprehensive analysis of James Cameron’s Avatar, the post will include screen grabs from the film relevant to the points I will make. Such screen grabs for use in criticism were illegal before today, despite the fact that they are not now nor have ever been a violation of any copyright.

   This rule specifically mentions only DVDs. It does not mention, and therefore does not include, circumvention of Blu-Ray copy protection schemes. Expressio unius est exclusio alterius.

2. Wireless phone users may now circumvent software protections on their phones that prevent the phone from executing software.

   This is effectively directed at Apple’s App Store for the iPhone. The new rule says only what it says, however, and what it says is that it is no longer a violation of the statute to circumvent Apple’s not-App-Store-approved software block. It does not say that doing so is no longer a breach of contract, or that Apple has to tolerate it in any way. All it says is that the government will not put someone in jail for hacking their own phone to run whatever software they want it to run.

3. Wireless phone users may now also circumvent software protections on their phones that prevent the phone from operating on a wireless network.

   Just as with number 2, the new rule merely states that it is not a crime for a wireless phone user to hack his own phone in order to let it operate with a network other than the one for which it was designed. It doesn’t say Apple has to continue to support off-network iPhones, or that T-Moble has to tolerate jailbroken iPhones on its network.

4. Users may now circumvent video game copy protection software (e.g., SecuROM) for security investigation purposes.

   I am not familiar with the real-world case to which this exemption applies. If someone knows, please share in the comments. My understanding of the provision is that it allows a computer user or computer network operator to circumvent software that prohibits game data from being accessed from outside the context of game-play, so long as the user or operator is doing so for the purpose of testing the game data for malware, and so long as the results of such investigations are maintained in a way that does not promote or facilitate improper circumvention.

   I think the non-infringing use being impaired by the anti-circumvention provision here is the use of the copyrighted game data in determining whether the game poses a threat to system or network security.

5. Users of computer software access-protected by a hardware dongle may circumvent the access-protection system when their dongle malfunctions, so long as the dongle system is obsolete and no longer supported by the manufacturer.

   If you buy some software (or a CD with music on it, or a DVD with a movie on it), you own your copy. If it interoperates with the seller’s network, the seller can dictate the terms under which that interoperation may take place, but the seller has no moral or legal right to dictate how you will use non-interoperating software (including CDs or DVDs, which don’t require ongoing communication with the publisher to continue to function). Before the Internet picked up, some software companies wanting greater control over use developed hardware dongles which, when attached to a computer system, would allow the software to operate. This allowed companies a way of enforcing the “one workstation” restrictions in their software licenses. Nowadays, this kind of functionality is done over the Internet. For example, when you install a copy of Windows 7, it has to be “activated” by contacting Microsoft’s servers over the Internet before it will fully function. Many companies that once used dongles to enforce “one workstation” licenses now use the Internet activation method, and no longer support their older dongles.

   Those companies would probably prefer that users with broken dongles be forced into buying an updated version of the software, but since these are not software products that rely on regular manufacturer interoperability, the manufacturer has no moral or legal authority to require the user to upgrade. The user is entitled by his original purchase to continue accessing the copyrighted software he purchased. If the dongle breaks and the manufacturer won’t supply him with a replacement because it is outdated, he can now circumvent the dongle and continue using his software.

   Contractually, if the license agreement anticipated a stand-alone software model, then that copy of the software is the buyer’s to use forever so long as he likes. Even if the agreement contained a provision saying “you agree not to bypass the dongle, and if your dongle ever breaks and we decide not to replace it, you will have no recourse but to upgrade,” I don’t think a court would find breach if you did bypass a broken and obsolete dongle. Morally and legally, you are still entitled to use the software you purchased. Even though I don’t think a court would find breach in such a case, I do think that you have still broken a promise in that situation. It’s just not a promise related to copyright. It’s essentially a promise to make a future purchase under certain conditions and at an undetermined price.

6. Vision-impaired eBook owners may circumvent eBook copy protection systems when those systems interfere with accessibility software.

   This one is pretty straightforward and doesn’t require any further explanation.

Now here’s what I think. I think that all of the activities now exempted from §1201 have been going on for quite some time, and that what had previously been an exercise of prosecutorial discretion has now been condensed to written rules. That is a move towards objectivity in the law, and therefore a Good Thing.

The Big Deal of the Day seems to be numbers 2 and 3 and how they apply to Apple’s iPhones, which are locked into the AT&T wireless network. But the truth is these new rules will not change anything about the jailbreaking situation. We have seen extensive, long-standing, and universal prosecutorial discretion exercised against bringing criminal charges against jailbreakers. Never once have I heard of a jailbreaker being charged under §1201, and could find no such prosecutions in my research. (If someone else has found such a prosecution, please share in the comments.) All that has changed with respect to the iPhone situation is that jailbreakers no longer need to rely on prosecutorial discretion. They now have a written rule.

Morally, a jailbreaker is still a promise-breaker. He’s not a thief, however, because he bought his phone and it is his to do with as he pleases. He can stick it in a blender [Warning: graphic content] if he so chooses, and Apple has no right to object.

Also note how 2 and 3 are different from the situation in 5. The iPhone software is not stand-alone. It interoperates. Because it has to continually communicate with Apple in order to function, Apple can, morally and legally, set the terms by which that exchange takes place. Apple can rightly refuse to interoperate with jailbroken phones. If Apple can devise a way to make its software completely shut down when a phone is jailbroken, it would be entirely within its rights to do so both under the license agreement and in terms of property rights.

Why? In the case of the iPhone, the user owns the phone, which interoperates with the producer (Apple) to provide functionality. By jailbreaking his phone, the user breaks his promise to abide by the producer’s terms of interoperability. He can keep his phone, but the producer no longer has to provide software interoperability. By jailbreaking, the promise-breaker tells the producer he no longer wants the producer’s software according to the terms of their agreement, which is just the same as saying he no longer wants the software.

§1201 is and has always been bad for property rights. Specifically, bad for the property rights of the purchasers of copyrighted works. For one, it is vague and broad. It is an attempt to criminalize activity that can have both legitimate and illegitimate purposes. The attitude behind §1201 is the same attitude that would ban bittorrent technology altogether because it can be used to violate copyright. Or that bans possession of locksmith’s tools altogether because they might be used to break into a house. Or that bans teaching of chemistry altogether because the knowledge might be used to poison someone. There are bound to be both legitimate and illegitimate uses of every kind of knowledge or technology. Banning a technology because it could be used for an improper purpose violates the rights of people who would put the technology to proper use.

§1201’s attempt to criminalize certain kinds of knowledge is a reaction to the failure of security through obscurity. Security through obscurity will always be defeated by the Streisand Effect—the more you try to suppress knowledge, the more widespread that knowledge will become. Obscurity is not a viable way to protect intellectual property anyway, because the intellectual property is itself the information that must be kept secret. If, for example, the entertainment industry wants a foolproof way of protecting their products from economically significant copying, the technology to do so has been around for decades. It is called analog, and it is still, in my opinion, the most graceful solution to piracy.

So I am not at all unhappy to see §1201 being eroded by more and bigger exceptions. I would prefer to see it disappear altogether. But the Librarian’s newest rules don’t really change anything on the jailbreaking front. They remove a minimal, hypothetical threat of prosecution for an act that, while immoral and a breach of contract, should never have been considered criminal in the first place.

The United States District Court for the District of Massachusetts (specifically, Judge Joseph L. Tauro) granted summary judgment on many of the plaintiffs’ claims today. Opinion here. [PDF]

Back then, I opined that the case was philosophically flawed because it sought equal protection at the expense of expanding the federal welfare state. It was and continues to be my opinion that the federal welfare state (by which I mean the power of Congress to confiscate and redistribute wealth) is incompatible with individual rights like freedom of speech, or equal protection under the law, and that to argue that the latter are served by the former does not advance the cause of liberty.

After declining to apply strict scrutiny to DOMA, the Court found that §3 failed to pass even the much more lenient rational basis test. Congress lacked any rational basis for DOMA because creating a federal definition of a familiar relationship–something unprecedented in Congress’ then 207-year history of legislation–was beyond Congress’ legitimate scope of interest. This is significant, so it bears repeating: The Court determined that Congress had no legitimate interest whatsoever in displacing state-law determinations of who is and is not married. “The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest in disregarding those family status determinations properly made by the states.”

For those who don’t recognize it, this is a “states’ rights” argument. Of course the idea that a state could have rights is ludicrous, and the phrase is often misused that way. But our system of government does draw a distinction between local law and national law–a structure intended to serve as a protection against the spread of tyranny. The Tenth Amendment to the Constitution of the United States is occasionally cited (by persons unfamiliar with its history) as a constitutional limit on the power of the federal government, in favor of the states and their citizens:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Unfortunately, this amendment has, for over two hundred years, meant very little. It is frequently ignored by courts and is regarded in the lion’s share of precedent as an inkblot, with no legal effect whatsoever on the power of Congress to make laws on whatever subject is colorably within the ambit of Article I § 8. The Tenth Amendment doesn’t make an appearance in Judge Tauro’s decision in Gill. Instead, it is discussed at length in his decision in another case also decided today, Massachusetts v. Health and Human Services, in which the Commonwealth independently sued the federal agencies for ignoring the Commonwealth’s marital status determinations.

Neither decision will breathe any life into the dead Tenth Amendment, however. In Gill, DOMA §3 was found unconstitutional because there was no rational connection between restricting federal benefits based on marital status to opposite-sex couples and the government’s stated objective of maintaining the legal status quo until the interstate controversy over same-sex marriage is resolved. (Yes, really, that’s what they argued the purpose of DOMA was in court. The government attorneys disavowed the purposes originally offered by Congress.) And the focus in the companion case was on whether DOMA could be shoehorned into the Spending Clause, with no discussion of whether the Tenth Amendment protects citizens from government intrusion in their lives.

The case seems to me to have been resolved in the best possible way. It finds §3 unconstitutional without having to declare homosexuals a protected class in order to do it.

(It appears my favorite claim–the one by the plaintiff who was denied an amended passport to reflect a change of name by marriage–was no longer part of the case when it reached summary judgment.)

The slip opinion is available at the Supreme Court’s website [direct link, PDF].

One who would defend the [Constitution] must share his foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply. It is a fair summary of history to say that the safeguards of liberty have often been forged in controversies involving not very nice people.

Kopf v. Skyrm, 993 F2d 374, 308 (4th Cir. 1996). Judge Hall was writing about the Fourth Amendment, but the sentiment applies most admirably to the First Amendment as well, as another 4th Circuit panel noted recently in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).

In that appeal, the 4th Circuit panel reversed a $5M judgment against the deplorable Fred Phelps (of Westboro Baptist Church fame) and two other members of his family-stroke-church for extremely disgusting and offensive statements made at and concerning their protest of the funeral of Marine Lance Corporal Matthew A. Snyder on March 10, 2006. The panel ruled that Phelps et al. should have prevailed at the trial court as a matter of law because their statements were protected by the First Amendment’s Free Speech Clause and the Supreme Court’s New York Times v. Sullivan, 376 U.S. 254 (1964), and Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) lines of cases applying the Free Speech Clause’s protections to the prosecution of civil suits.

According to the panel, the statements made by the church members (which I will not repeat here, but which can be found in the panel’s opinion here [PDF]) were either general statements of public concern that a reasonable person would not presume to refer specifically to any member of the Snyder family, or were statements so hyperbolic and contextually related to the church’s broader protests that a reasonable person could not conclude that they made any statements of objectively verifiable fact.

The panel’s reasoning based on existing case law is sound, and I think that this is legally and morally the correct outcome, given the unfortunate context (discussed below). Mr. Snyder has appealed to the Supreme Court, and the Court granted certiorari earlier this month.

Today, Drudge Report links an Associated Press article in the Wichita Eagle (here) reporting that the 4th Circuit has also ordered costs of the appeal to the 4th Circuit to be paid by appellee, Mr. Snyder. The article states that the brief opinion did not give reasons why Mr. Snyder is being required to pay the costs of an appeal initiated (and eventually won) by Phelps. But this assessment of costs against appellee is not all that mysterious. The Fourth Circuit’s Local Rule 39(a)(3) states that “if a judgment is reversed, costs are taxed against the appellee.” (Here.) Note that costs do not include attorney’s fees. This is not a fee-shifting rule, but a cost-assessing rule, and a typical one at that. The AP article reports on an ordinary and expected consequence of losing an appeal, not on something inexplicable or even controversial. What the AP article (and other misinterpretations of this ruling) does reflect are the sympathy the public feels for Mr. Snyder and the vague sense that there is something unjust going on in this case.

It seems unfair that Phelps should be able to harangue the family members of dead soldiers at their loved ones’ funerals and be protected from suit by the First Amendment, so it seems additionally unfair that the family members might have to pay money to Phelps as a result. But the law here is correct and moral within the context of the current public property situation. And Mr. Snyder is not required to pay Phelps’ lawyer. He must pay for his own, and for the court costs incurred in arguing the appeal.

This would have never happened if the government didn’t own the streets and sidewalks near St. John’s Catholic Church in Westminster, Maryland. If such property were privately owned, Phelps would be stuck spewing his nauseating bile from his own property back in Kansas. Rational people would decline to permit him to use their property for his pontificating (a word I’m sure he’d never use himself, given its papal reference). But since the government owns the roads and sidewalks, it must make the rules necessary for their use, and those rules must comport as closely as possible with the protection of individual rights. In the context of speech from public property, this means that government can only place reasonable time, place, and manner restrictions on speech. This has led many (40, according to the 4th Circuit panel) states to attempt to enact restrictions on picketing near funerals (specifically to combat Phelps), and Phelps has been successful in having some of these statutes thrown out where they were not drafted properly and discriminated on the basis of content.

[Sidebar: In a recent podcast, Dr. Leonard Peikoff addressed the question of the propriety of permitting the government to regulate the display of pornographic material on private property in such a way that it is prominently visible from public property. After making it clear that this would not be a problem if all property were privately owned, Dr. Peikoff suggested that the government would have to make the rules, and that it could legitimately prohibit conduct or displays that would “raise objective question” or would be “objectively taken to raise fear in people as to what’s coming next.” I’m not sure exactly what the standard Dr. Peikoff would use is, based on these statements. Perhaps I will ask him to clarify.]

Phelps’ behavior is disgusting and, in a civilized society, he would be shunned and denounced as an idiot. In a capitalist society, he would have no platform from which to speak except that which he could earn for himself. But in our mixed society, where the government controls the roads, what is the proper limit placed on speech in and around public property?

1. I use forms but charge you as if I did it from scratch.

Lawyers who create and sell operative legal documents (wills, contracts, trusts, &c.) do use forms. They are forms the lawyer has created himself using many different sources and his skill and knowledge of the law. The first time a lawyer creates a document, he may spend hours on it, researching how to draft it properly to meet the client’s needs. The next time, he will spend less time on it, because many of the particulars are the same for the second client as for the first. But some things will change, and a good lawyer will add those changes into his form, making the form better and more flexible. Eventually, the lawyer has a robust form that takes only a few minutes to fill in and create a document of equal or better quality than the first one he drafted. At this point, many lawyers will use a document assembly program like HotDocs (now a LexisNexis product) to complete forms dynamically and rapidly.

The lawyer certainly spends less time creating subsequent versions of the document than he did in first developing the form. Yet he charges each client the same. Why? Because he is selling a product, not his time. The article implies that a lawyer should bill based on how long something took. But if lawyers did this, they’d never get that first client to swallow a $5000 bill for a $250 document! The document is worth exactly the same to the client whether the lawyer spent 20 hours or 20 minutes drafting it. Because the document is worth $250 to the client, there is absolutely nothing wrong with this practice. The article, on the other hand, implies that lawyers should not take the value of the service or product to the client into account when setting prices, something that is a perfectly acceptable practice in any other business transaction, with the possible exception of doctor-patient transactions (but that’s a topic for another day.)

2. I hand off work to peons but charge you a lawyer’s rate.

This one is misleading on two counts, one minor and one major. The minor one is that a lawyer would never refer to his staff as “peons”. The major one is that it fails to define what work lawyers delegate to non-lawyer office staff. Typing. Filing. File retrieval. Data entry. Mailing. Proofreading. Sometimes paralegals will pull, read, and analyze case law or statutes or do other basic legal research, which is then submitted to the lawyer, who then uses his skill and knowledge to apply the law to the client’s situation and advise the client accordingly. Contrary to the article’s suggestion, lawyers do not bill clients a lawyer’s fee for work not done by the lawyer. The lawyer charges a fee for a service, and oversees the non-lawyers assisting him in providing that service, reviewing and (most importantly) integrating their work into the whole service package. Again, the piece wants lawyers to bill only on the basis of how much physical labor they perform, without accounting for added value to the client generated by the lawyer’s other skills. The piece suggests that lawyers should be required to do all their own typing. (Interestingly, doctors are forced by law to do a lot of secretarial work themselves, such as filling out billing sheets, wasting a lot of time that could better be spent with patients.)

8. I don’t know much about the law.

This is the only point the article admits, albeit only implicitly, is misleading. The article is talking about specialization. No lawyer practices equally in every area of the law. Every lawyer knows more about some areas of the law than others. This does not mean that every lawyer “[doesn’t] know much about the law.” Knowing about law isn’t just knowing about statutes and case law in a particular area, but also knowing how they fit in with the legal system, how they impact society, and how all of it is evolving. Few lawyers can rattle off case names and statutes without looking them up, because there is no need to memorize such things in most areas. The law changes constantly, and even specialists must expend a great deal of mental energy to keep up with the latest developments in their fields. (Last I checked, a cardiologist who has to refer clients to an oncologist for cancer treatment doesn’t get smeared with the claim that he doesn’t know much about medicine.)

9. I don’t refer you to the best lawyers.

True. I refer you to the specialists most likely to be able to help you. “The best”, is as much as they exist, typically charge huge fees, or have caseloads that won’t allow them to take on your case. I’m going to refer you to someone who knows the area of law better than I do, and who I think or know will take your case. I’m not going to waste your time. All referral fee arrangements require client authorization, and most of the time clients are happy to agree to them.

10. Your bill is only a guesstimate.

Attorneys bill clients in six-minute intervals. But don’t let this level of precision fool you—not all lawyers are fanatically staring at their stopwatches to ensure you are not getting overbilled.

The article takes two common, but exclusive practices and ignores their exclusivity. A lawyer who bills by six-minute increments (usually only the largest firms bill this way) are fanatical about recording times. Lawyers who bill in larger time increments are able to be less fanatical. Lawyers who bill by the service, rather than by the hour (the vast majority of your solo and small-firm lawyers) don’t have to worry about time because they don’t bill by it. They charge a flat fee for a phone call or a document or a deposition, as the situation allows. Your bill is no more a “guesstimate” than a doctor’s bill is, or the bill of any other service provider. Your bill will be a reasonable one for the services provided.

11. I don’t have to tell you how I screwed up in the past.

Lawyers, like doctors, engineers and architects, are often subject to complaints from clients. Clients will file ethics charges with the state, and then the state will evaluate them. As with complaints about doctors, engineers and architects, the vast majority of complaints to state officials about attorneys do not go anywhere because they are frivolous. On the occasions where something is amiss, the lawyer (like the doctor, engineer or architect) will be disciplined by the state bar, and that discipline will be a matter of public record. And like doctors, engineers and architects, lawyers are not required to announce every complaint or disciplinary action against them to every potential client. The article is extremely misleading in how this is worded, because it suggests that lawyers don’t have to tell you these things even if you ask, which is completely false.

13. Mediation might be the better choice.

Actually, it is far more often the case that the client will be the one trying to avoid alternative dispute resolution. Litigation is expensive for the lawyer, too. Not just for the client. But clients are usually the ones pushing for their day in court when the choice is between ADR and litigation. Your lawyer will advise litigation in a situation where both would be appropriate only if he honestly believes the ADR will not vindicate your rights. This is most common in arbitration situations, not mediation. Many courts across the country now require the parties to attempt mediation prior to advancing litigation.

15. I’m training junior attorneys on your dime.

This one suffers the same problems as #2. Firms that charge by the hour do not bill senior attorney rates for junior attorney work. Firms that charge by the service are not charging by the hour. They produce a uniform quality product and charge uniform prices accordingly, regardless of how the work is generated.

So many lawyers are good people, but they get such an insanely bad reputation. It cannot be simply that people believe they are entitled to the services of lawyers (a belief perpetuated by bad law that actually says they are) because people also believe they are entitled to the services of doctors, and doctors aren’t nearly so maligned as lawyers. Like doctors, lawyers help people every day, making their lives incalculably better. Like doctors, they ask for compensation for this help — compensation to which they are morally entitled — and yet, for this, they are hated. Don’t get me started on lawyer jokes. You already know how I feel about those.

Lawyers and doctors both save lives, though in different ways. What do people expect? That young people should put themselves through the hell of law school and the bar exam, incur in excess of $100,000 in student loan debt, work tirelessly in a field that is constantly changing and frequently extremely stressful, and receive nothing, or merely enough on which to survive, in exchange? That’s certainly what Congress intends to do to doctors. Clearly, this is the work of pervasive altruism. But here is something I do not understand — Why has it attacked the professions so disproportionately?

Update: Comments closed due to their complete inappropriateness for publication. None will be posted.

The references are to the Orange County Codified Ordinances. The ordinances read:

Sec. 2–5-49. — Diving/jumping.

No person shall dive or jump into any body of water in park, beach or any recreational area from any pier, bridge, rock or precipice other than at those places designated and posted for diving or jumping by the Director, as authorized by resolution of the Board of Supervisors. Violation of this section shall be an infraction.

Sec. 2–5-49.1. — Landing in water after having jumped or dived.

No person shall land in any body of water in any park, beach or recreational area after having jumped or dived from any pier, bridge, rock or precipice above such body of water, other than at those places designated and posted for diving and jumping by the Director, as authorized by resolution of the Board of Supervisors. Violation of this section shall be an infraction.

Despite the similar construction, I think the two statutes prohibit two different acts. I added bold to the ordinances to try to make some sense out of them. The first prohibits jumping from an undesignated pier, while the second prohibits jumping into an undesignated body of water from any pier, designated or not. For example, a pier may be designated as appropriate for diving, but only in the deep water off the end. It would not be an infraction to jump from the middle of the pier, but it would be an infraction to enter the water under the middle of the pier after having jumped therefrom, because that water was not also designated for jumping.

At least, that’s the only way the second ordinance makes any sense to me. These are still wrecks of legislation, and this is still a wreck of a sign. Orange County lawmakers need to get off their lazy asses and write laws that clearly indicate what is prohibited. Or better, sell the parks and public beaches to private entities and let those entities make the rules and signs.

Applying the protections of the Bill of Rights (which on their face apply only to the Federal government) to the states is a legal process called incorporation, because these protections are, one by one, deemed to have been “incorporated” into the 14th Amendment’s Due Process Clause. Due Process incorporation is a messy, convoluted business because it requires finding that a protection found in the Bill of Rights is essential to the concept of ordered liberty and deeply ingrained in our nation’s history and tradition, such that not restraining the states would deny citizens of a fair day in court. Due Process is a clunky way for the Federal government to go about protecting individual rights at the state level. A much better way would have been to use the 14th Amendment’s Privileges or Immunities Clause.

The Privileges or Immunities Clause is little-known by the general public. The public knows about Equal Protection and Due Process, but not Privileges or Immunities. It reads:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

It sounds like an amazingly powerful tool for the Federal government to use to keep state governments from violating individual rights protected by the U.S. Constitution. But it isn’t.

In 1865, Louisiana passed a law granting to the City of New Orleans to charter an exclusive slaughterhouse operator. The goal was to reduce slaughterhouse waste ending up in the Mississippi, and its effect was the confiscation of private slaughterhouses in and around the city and the creation of a politically powerful, government sponsored slaughterhouse monopoly. Independent butchers, now out of jobs by government fiat, sued under the new 14th Amendment, arguing that all three clauses (Privileges or Immunities, Equal Protection, and Due Process) independently prohibited the State of Louisiana from doing what it had done. The suits were addressed together by the Court and are today collectively referred to as the Slaughterhouse Cases, decided in 1873.

The Court upheld the monopoly. It ruled that Equal Protection did not protect the butchers because they were not being discriminated against on the basis of race, and that Due Process did not protect the butchers because they had not been excluded from the political process. (Substantive Due Process, the modern doctrine of incorporating substantive rights into the 14th Amendment, arose much later in response to the Slaughterhouse Cases.) And most depressingly, it ruled that Privileges or Immunities only protected rights peculiar to being a citizen of the United States (as against state citizenship). The clause has been effectively meaningless ever since. Substantive Due Process doctrine arose later as a way to shoehorn Federal Constitutional rights into the still-operative Due Process Clause. Had the Privileges or Immunities Clause remained viable, there would have been no need to individually examine each protection in the Bill of Rights to see whether the rights they protect are “essential to the concept of ordered liberty” and “deeply ingrained in our nation’s history and tradition” before requiring state governments to observe them. The Privileges or Immunities Clause should have done this automatically.

The protections of the Second (right to bear arms), Third (against quartering of soldiers), and Seventh Amendments (right to trial by jury in civil cases in excess of $20) have never been incorporated into the 14th Amendment’s Due Process Clause and therefore do not apply against the states. If the Privileges or Immunities Clause were viable, most scholars agree that it would include all the rights protected by the first eight Amendments.

Mr. Gura will be arguing in McDonald v. Chicago, inter alia, that the Court should reverse its ruling on the Privileges or Immunities Clause from the Slaughterhouse Cases.

Popehat has excellent commentary on the case and its possible implications.

While I dislike the rule from Slaughterhouse and would love to see it reversed, I do not think the current Court will like this argument very much. Substantive Due Process doctrine is too old and established to get tossed out by this Court. I will remain quietly hopeful, though, because I know that if anyone can convince the Court to make a change, Mr. Gura can.

The Notice of Proposed Rulemaking is available online here [PDF].

You can upload your comments using ECFS here, using proceeding number 09–191. You can read others’ comments on ECFS here.

I’m writing comments to submit right now. I’ll post my comments here when I finish. I encourage everyone who loves the Internet and doesn’t want to see it become the Postal Service of the 21st Century to do the same.

Surely it can’t be too difficult for “The Terminator” to terminate Punternet and that’s what I am demanding that he does.

Patently, Ms Harman is not acquainted with our First Amendment, which is precisely what prevents “The Terminator” from “terminating” such a Website. The Website’s owner responds with a brief lesson in free speech, then thanks Ms Harman for the beneficial effects of her ignorance:

In closing, I would like to thank you for the huge influx of traffic to my website which your actions have caused. I am sure that the ladies who are a part of the PunterNet community thank you as well, as they will no doubt benefit financially from the many new clients who might otherwise never have found them.

www.youtube.com/watch?v=jzCe80RYxD8

The U.S. Department of Health and Human Services, in conjunction with the Ad Council (both organizations about which I have nothing positive to say), has funded and produced an advertisement featuring religious figures endorsing and promoting government programs. No mention of the featured anthropomorphic vegetables’ religious affiliation is mentioned. Something about using explicitly religious characters to encourage children to follow government health advice strikes me as something less than neutral to religion, despite the secular purpose.

But because promoting the health of children is a “legitimate secular purpose”, this kind of thing doesn’t violate the current interpretation of the Establishment Clause. Tax dollars have been used to pay Veggietales licencing fees, but just like school vouchers and state-funded busing to religious schools, the underlying “legitimate” secular purpose allows for subtle but persistent interaction between government and religion that only helps to further erode cultural recognition and acceptance of the “wall of separation.”