Shepard Fairey recruits Fisher, Palfrey and Stewart

Sorry I’ve been away. With a law journal article in the works and exams coming up I expect things will be quiet here for a while.

I wanted to break my silence to let you all know that Shepard Fairey – plaintiff and cross-claim defendant in the highly-public Fairey v. Associated Press (the Obama “Hope” poster case) – has just found new attorneys and a new firm to replace the departing Durie Tangri LLP and Stanford Center for Internet and Society. The details of the events leading to their departure are rather depressing for those of us who wanted a clean fair use case; I’ll leave it to Wired and BoingBoing if you aren’t familiar.

After losing one of the best cyberlaw thinktanks and an excellent boutique law firm to Fairey’s totally inexcusable shenanigans, a lot of us out here  (“us” being those hoping that this case comes down on the side of fair use or non-infringement) were worried that he wouldn’t find reputation of the caliber that Durie Tangri and Stanford provided in this all important fair use case. Lucky for us, he found the two professors that wrote the book on modern copyright policy.

Specifically, the books Promises to Keep and Born Digital. Professors Terry Fisher and John Palfrey, along with litigation giant Geoffrey Stewart from the firm Jones Day, have been identified in a court filing last week as the counsel selected to replace the departing attorneys.  From Fairey’s perspective he could not have found brighter minds to take on this case. Here’s hoping they can keep this case away from this past month’s distractions and back on to the all-important issues.

Their arrival on the case is pending Judge Hellerstein’s approval of Fairey’s motion. For more, check out Justia.

Update (12 Nov): The New York Times reports that Judge Hellerstein approved the motion.

Sen. Specter’s comments at Sotomayor hearing

I watched the opening rounds of Judge Sotomayor’s hearing before the Senate Judiciary Committee this morning with my fellow Berkterns. Most of it was the usual Congressional grandstanding (which always reminds me of the classic Simpsons line when Kang and Kodos pose as Presidential candidates: “As a young boy I too dreamed of becoming a baseball…”), but in the middle of all of that sound and fury was an impressive, issue-based speech by Senator Specter. I’ve yet to find a good video to embed here, but in the meantime here’s the transcript from his website. Some highlights include his comments on the drop in cert.-granted cases over the years:

Most of the questions which will be asked of you in the course of these hearings will involve decided cases. I intend to ask about decided cases, but also about cases that the Supreme Court decided not
to decide. And on the rejection of cases for decisions, it’s a big problem.

The court, I would suggest, has time for more cases. Chief Justice Roberts noted, in his confirmation hearing, that the decision of more cases would be very helpful.  If you contrast the docket of the Supreme Court in 1886 with currently, in 1886 there were 1,396 cases on the docket, 451 were decided. A century later, there were only 161 signed opinions. In 2007, there were only 67 signed opinions.

I start on the cases which are not decided, although I could start in many, many areas. I could start with the Circuit splits, where one Court of Appeals in one section of the country goes one way and another Court of Appeals goes the other way. The rest of the courts don’t know which way the precedents are, and the Supreme Court decides not to decide.

But take the case of the terrorist surveillance program, which was President Bush’s secret, warrant-less wiretaps and contrast it with congressional authority exercised under Article I on the Foreign Intelligence Surveillance Act, providing the exclusive way to have wiretaps, perhaps the sharpest conflict in the history of this great country on the Article I powers of Congress and the Article II powers of the president as Commander-In-Chief.

The Federal District Court in Detroit said the terrorist surveillance program was unconstitutional. The Sixth Circuit decided two-to-one that the plaintiffs did not have standing. I thought the dissenting opinion was much stronger than the majority opinion. And standing, as we all know, is a very flexible doctrine and, candidly, at least as I see it, used frequently by the court to avoid deciding a case.

Then, the Supreme Court of the United States denied certiorari, decided not to hear the case, didn’t even decide whether the lack of standing of standing was a justifiable basis. This has led to great confusion in the law, and it’s as current as this morning’s newspapers reporting about other secret programs which, apparently, the president had in operation.

Had the Supreme Court of the United States taken up the terrorist surveillance program, the court could have ruled on whether it was appropriate for the president not to notify the chairman of the Judiciary Committee about the program. We now have a law which says all members of the Intelligence Committees are to be notified. Well, the president didn’t follow that law. Did he have the right to do so under Article II powers? Well, we don’t know.

Or within the past two weeks, the Supreme Court denied hearing a case involving claims by families of victims of 9/11 against Saudi Arabia, of Saudi Arabian Commissions and four princes in Saudi Arabia. The Congress decided what sovereign immunity was in legislation in 1976 and had exclusions for torts. But the Supreme Court denied an opportunity for those families who had suffered grievously from having their day in court.

One of the questions, when my opportunity arises, will be to ask you what would be the standards that you would employ in deciding what cases the Supreme Court would hear.

And, in a question of, shall we say, supreme relevance to some of my colleagues,  he primed some arguments on cameras in the courtroom:

With the few seconds I have left, I’d like to preview some questions on televising the court.

I don’t know why there is so much interest here today. I haven’t counted this many cameras since just Alito was sitting where you’re sitting.

You’ve had experience in the district court with television. You’re replacing Justice Souter, who said that if TV cameras were to come to the court, they’d have to roll over his dead body.

If you’re confirmed, they won’t have to roll over his dead body.

But the court decides all the cutting-edge questions of the day. The Senate is televised, the House is televised. A lot of people are fascinated by this hearing.

I’d like to see the court televised. You can guess that.

Once someone graciously posts his remarks in entirety on YouTube I’ll embed them here. In the meantime, I encourage you to visit his site and read the transcript. The thought of there being substantive issues to pepper the absurd wise-Latina-judicial-activism-Ricci-Gate-dog-and-pony-show tomorrow might just keep me tuned in.

Citizen Media Law Project and Reporter’s Committee for Freedom of the Press file amicus brief in New Hampshire Supreme Court Case

I don’t typically cross over my work with this blog, but I wanted to share this press release regarding an amicus brief I drafted with the CMLP and RCFP. I’ve added a few links to ease navigation.

Cambridge, MA – June 23, 2009 – The Citizen Media Law Project (CMLP), assisted by Harvard Law School’s Cyberlaw Clinic, urged the New Hampshire Supreme Court to defend the First Amendment rights of a website that covers mortgage industry news.

The CMLP, in conjunction with the Reporters Committee for Freedom of the Press (RCFP) and with the assistance of local counsel Paul Apple of Drummond Woodsum & MacMahon in Portsmouth, NH, submitted an amicus curiae brief (PDF) in the case of The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. The case involves Implode-Explode Heavy Industries, Inc., which runs a mortgage industry website that posted a New Hampshire Banking Department document, obtained from an anonymous source.  That document described certain business practices of the Mortgage Specialists, Inc., a lending company under investigation in New Hampshire and Massachusetts.  After the mortgage company discovered the disclosure, it sued the website, demanding that the document be removed and that the anonymous source be identified.  The Rockingham County Superior Court granted these requests (PDF), and the case is presently on appeal.

In their brief, the amici focused on a series of cases in which courts permitted the publication of confidential or controversial documents – from the U.S. Supreme Court in the famed Pentagon Papers case through recent cases involving recorded cell phone conversations and videos of police searches posted online.  Amici also provided extensive caselaw support for the proposition that anonymous news sources should be protected.

The amici urged the New Hampshire Supreme Court to carefully consider the harm the Superior Court’s ruling would have on freedom of the press, noting in their brief that the publication of this document “is not unlawful in New Hampshire, and, even if it were, would nevertheless be fully protected speech under the First Amendment.”  In addition, amici asked the Supreme Court to apply New Hampshire’s qualified reporter’s privilege to protect the identity of its source, noting “[i]t is the function of an organization, not the medium of publication, which defines it as worthy of a journalist’s privilege.”

The CMLP was represented on the brief by the Cyberlaw Clinic.  The CMLP and the Cyberlaw Clinic are both based at Harvard University’s Berkman Center for Internet & Society, an organization dedicated to studying the development of cyberspace.  Andy Sellars, a Cyberlaw Clinic summer intern and student at The George Washington University Law School in Washington, DC, drafted the brief alongside CMLP Assistant Director Sam Bayard, Cyberlaw Clinical Fellow Christopher Bavitz, and RCFP Legal Fellow Samantha Fredrickson.

“It was a great privilege to work with the CMLP and RCFP on this important issue,” Sellars said.  “We hope the New Hampshire Supreme Court will carefully weigh the First Amendment rights at stake in this case.”

For more, see the CMLP and RCFP press releases on the subject, as well as Sam Bayard’s blog post from April.

Sotomayor on the law

The changing nature of the law and the conduct of lawyers give the public understandable pause. We must not, however, fall prey to the public’s cynicism. We must instead expect more of our profession. There is a limit to how far an individual lawyer can elevate the bar as a whole. What a lawyer can do, as argued above, is educate the public–at the very least in the person of his or her clients–and personally raise standards by living up to a code of conduct beyond what is “enforceable.” This responsibility is not confined to attorneys in private practice. The others who operate in or around the legal framework–judges, prosecutors, juries, witnesses, public officials, and the press–must also educate themselves, and others, and apply higher standards of conduct to their own behavior.

Soon-to-be-announced Supreme Court nominee Hon. Sonia Sotomayor (with Nicole Gordon), Returning Majesty to Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35, 49 (1996).
This is going to be an interesting couple of weeks. SCOTUSblog has a nice outline of what we have in store, and what the plans of attack will be.

The Southie Parade’s legal past

(the 2005 parade, from Flickr user rcolonna)

While working on a First Amendment paper here in law school I dug up the case of Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston. The background of the case is as follows: in 1947 Boston City Council has ceased to directly sponsor the St. Patrick’s Day / Evacuation Day parade (which is going on as I write this), and gave the South Boston Allied War Veterans Council the right to conduct the parade themselves. From 1948 to 1991, they were the only group each year to apply for a permit for the parade route. In 1992 GLIB, the Irish-American Gay Lesbian, and Bisexual Group of Boston, applied to be part of the parade. GLIB cited Massachusetts public accommodation laws which prevent such discrimination, and said their sexual orientation was only incidental to the primary focus of the group: Irish heritage. GLIB marched in the parade that year without incident, and in 1993 the South Boston Allied War Veterans Council filed suit to block their entry for the following year.

Journals!

(insert Myst joke here)

One of the cornerstone secondary sources in our legal system is the law journal. Articles in law journals are frequently cited as persuasive authority in interpretations of the law in both papers and court opinions alike, and can be tremendous catalysts for developing legal thought and policy.

Every major law school has a journal, and it may surprise some to find that these journals are actually run by law students. Naturally, the pressure is tremendous and the stakes are high for law journals to state the law accurately and make persuasive arguments in interpretation, so schools do not let every student who expresses interest to join, as they might a school newspaper. Law schools invite first year students onto the boards of their journals though a rigorous competition held sometime during the 1L year. It just so happens that for my school that competition is this weekend.

Of course, it’s not like editors of law journals ever go on to do good things.

This is why I haven’t been writing here all week, and why you won’t see me here until at least after Monday. So have a good one, and I’ll be back sometime next week (when we get our well-earned spring break).

Cheers.

Substantive Due Process, Dress Codes, and Rock ‘n’ Roll

(thanks goes to Third Coast Sound Distortions for this pic)

1Ls here at GWU Law have spent the better part of the past month writing motions and memos for summary judgment based on a ficticious case of a boy expelled from school because of his long hair with blue streaks. Half the class, as plaintiffs, have been arguing that the nature and manner of his expulsion offends the First and Fourteenth Amendments (allegations of freedom of speech, religion, equal protection, substantive due process, and procedural due process). The other half, as defendants, have argued that hair length and color are not protected rights, and even if they were, the school had a valid interest in restricting them under various scrutiny standards.

A critical case to one of these claims is the 1968 case of Ferrell v. Dallas Independent School District (for those of you playing at home: 392 F.2d 697 (5th Cir.), cert denied 393 U.S. 856 (1968)). The facts are almost identical to every other case like it (and there are a lot of them): there is a school dress code banning male students from wearing hair past the collar of their shirts, the students wear their hair longer, the students get expelled, and the students claim a constitutional issue. In this case, however, there is the added twist that the boys are in a band: Sounds Unlimited. They claim that not only do they have a right under the Fourteenth Amendment, they would be forced to breach their contract with their managing agent, who requires:

[The band] shall maintain their dress and personal appearance in conformity with accepted STANDARDS and CUSTOMS OF ROCK & ROLL GROUPS, COMBO’S [sic] & BANDS including so called BEATLE TYPE HAIR STYLES. 329 F.2d at 698 n.2.

The Fifth Circuit, on appeal, notes fairly tounge-in-cheek that such a a contract would not be enforcable against minors, and proceeds to rule that there is no constitutional right to long hair. This marks the beginning of the Fifth Circuit’s highly conservative stance on the issue. To date, the Circuits are almost perfectly split as to whether the right to keeping one’s hair at any given length is protected under the “liberties” of the Fourteenth Amendment.

As a fascinating historical footnote (aside from the above, quite literally fascinating historical footnote) is the story of the protest song these boys in Texas wrote upon their expulsion from school. As the Fifth Circuit describes it:

At the conclusion of the [expulsion] conference in the principal’s office, the boys left the school building and proceeded to the sidewalk on the west side of the school grounds where the three boys and [manger] Mr. Alexander held a press interview, and pictures, motion pictures and sound tapes were made.

Later the three boys went to a recording studio to write and record a ‘protest’ song about the matter. The recording was completed and the record entitled ‘Keep Your Hands Off It’* was first played on the air Friday morning, September 9. For several days thereafter it was played numerous times on several radio stations. 329 F.2d at 700.

Naturally, in addition to scrutinizing the case for the purposes of my memo, I also endeavored on a quest to find “Keep Your Hands Off It” by Sounds Unlimited. I’m happy to report today that I found the elusive recording.

Enjoy:

Sounds Unlimited – Keep Your Hands Off Of It

* – reports vary as to whether the song is properly titled “Keep Your Hands Off Of It” or “Keep Your Hands Off It.” The chorus would certainly suggest the former, but I can’t say for sure.

Update: I noticed this found its way to the Dallas ISD Daily Dish. Hello, Dallas!

GWU Law on CSPAN2 tonight

Should you find yourself with a severe case of insomnia and looking for something to watch tonight at midnight, may I suggest turning over to CSPAN2 to watch the rebroadcast of last Thursday’s Van Vleck Moot Court Finals, where the best and brightest oral advocates here at GWU Law argued before Justice Antonin Scalia of the US Supreme Court, Judge Marsha Berzon of the US Court of Appeals for the Ninth Circuit,  and Judge Jeffrey Sutton of the US Court of Appeals for the Sixth Circuit.

While this may sound rather dry for a large slice of my reading audience, anyone with an interest in police search and seizure of computers or the paneling of juries based on religion may find some interesting dialogue. It’s a rare glimpse into what it’s like arguing before some of the largest judicial figures in the US.

Library Noir: the night before a Crim Law final

My studying wasn’t quite this bad, but here on the morning before my last final exam I feel as though I need to share one University of Queensland student’s Law Revue entry on the pains of digesting criminal law cases:

His cases may read “Regina” or “The Queen” for prosecution, instead of “People,” “State,” “Commonwealth,” or “United States,” but it’s nice to know we speak the same language. And that language is legalese.

Good luck, 1Ls, wherever you are losing sleep.

And for those of you not taking finals, head over The Smoking Gun. They found the legendary Van Halen “no brown M&Ms” contract, and have posted it there. I’ve always fully defended this contract, and maybe tomorrow I’ll do a whole writeup on this. Stay tuned.

Wow, RIAA. Just wow.

(“…they took it away / away from me…” Thanks, mecredis)

The RIAA’s lawsuits are now facing quite sincere and legitimate challenges from four excellent law schools (Harvard, Franklin Pierce, The University of San Francisco School of Law, and UMaine), and public opinion against the actions grows larger daily. For the RIAA, could it get any worse these days?

Why, yes. They could continue the lawsuits, and add “recovering transplant patients” to the list of grandmothers, infants (not under-18 “legal infants,” but still-in-diapers infants), and single parents they’ve sued for filesharing.