Forgive the Frankensteinian headline. Three items caught my eye today:

LATimes.com reports the Supreme Court will hear an appeal by Major League Baseball from a loss to a ”fantasy” baseball league. The for-profit fantasy league says it is just disseminating publicly available statistics (in line with First Amendment Free Speech), but MLB says that when linked to the names of players — who have a right to control their own publicity — the statistics are proprietary. The Circuit Courts are split on the issue.

[I]t could disrupt “billions of dollars” of licensing deals in pro-sports, lawyers for Major League Baseball said in their appeal to the Supreme Court. “Celebrities and athletes have enforceable publicity rights,” they argued, and the 1st Amendment has never been understood to give other companies a right “to exploit players’ identities for commercial gain.”

A lawyer for the St. Louis-based fantasy league countered that baseball and its daily box scores were available to the public. “The mere dissemination of facts or statistics is protected. And all our clients are doing is disseminating the same information that newspapers put in the sports pages every day,” said Rudolph Telscher, a lawyer who won the ruling in St. Louis.

Not so, replies Major Baseball League. The dispute involves famous names, not mere statistics, the league argues. Though the names of players such as Albert Pujols or Derek Jeter may be published or broadcast every day, “those names may not be incorporated without the famous persons’ consent primarily for commercial purposes into a product — be it a coffee mug, a poster, a board game or an Internet game — without consent,” the league said.

Washingtonpost.com reports that “Footprints in the Sand,” a famous “anonymous” religious poem, now has multiple competing claims of authorship resulting in a federal lawsuit for copyright infringement. Millions have been made printing the poem on various paraphernalia, and the newest claimant wants a piece.

At least a dozen people have insisted that the lines of “Footprints in the Sand” came to them alone, usually by divine spark, differing only by a few words here and there. The stanzas all tell a similar story: Narrator dreams he is walking on a beach with the Lord (sometimes God, sometimes Jesus). After a while, narrator turns around and sees only one set of footprints. What gives? the narrator asks the Lord — You promised You would walk with me, even in the bad times, but I see from my lone set of footprints that You weren’t there! Ah, but, the Lord replies : The single set of footprints are when I carried you through the bad times. (Cue the gulls, the gentle sound of waves and the warmth of insight.)

The only problem is one of nagging details: proof of authorship, original publication, copyright, notarization, that sort of thing. “Footprints” has been adapted into different languages, and worse, a pop song co-produced by Simon Cowell. As a sure sign of its familiarity, it has also been wickedly parodied. (”Bull-[bleep], Jesus, Those Are Obviously My Footprints,” joked an Onion headline 10 years ago.)

Finally, nysun.com has a story on Justice Scalia’s speech to a Jewish group on his views of the Establishment Clause of the First Amendment.

The justice didn’t make any radical departures from positions he has taken on the high bench, echoing language in his dissent in a 2005 case involving the displays of the Ten Commandments that two counties in Kentucky had installed in their courthouses. But his remarks appeared intended to inspirit and encourage the largest grass roots organization of fervently religious Jews in America, an organization that is engaged in the constitutional debate in the country on such issues as gay marriage, parochial schools, and civil rights for religious individuals.

Justice Scalia began speech last night, as he did his dissent in the Kentucky case, McCreary County v ACLU, by recalling President Bush’s valediction in a speech delivered shortly after the terrorist attacks of September 11, 2001: “God bless America.” Such a statement, Justice Scalia said, would be “absolutely forbidden” in many countries in Europe. Justice Scalia was in Rome at the time of the attacks, attending a conference of judges and lawyers.

Speaking last night, Justice Scalia cautioned the audience against being “so quick to believe” that the Jeffersonian principle of separation between church and state is represented by the “type of separation found in Europe.” Justice Scalia noted approvingly that in America the Supreme Court has upheld tax exemptions for houses of worship as well as the constitutionality of allowing ministers to open legislative hearings with a prayer.

I thought “the power to tax is the power to destroy” and it follows that tax exemptions for churches are allowed, indeed demanded, by the Free Exercise clause of the First Amendment (rather than by a “traditionally proper bending” of the Establishment Clause as Scalia implies), but I’m not a supreme court justice. Yet.

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Seattle School District will widely (and correctly) be viewed as a substantial weakening of the desegregation famously mandated by Brown v. Board of Education’s denunciation of the “separate but equal” doctrine. It is not the most complex set of opinions I’ve ever seen, but it is definitely in the lower reaches of that category qualifying as both “intimidating” and “historic.”

I struggled with subtitling this piece. “The Gordian Knot Tied Anew,” … “Trains Passing in the Night,” … “de jure vs de facto.” But “Brown Turned Upside Down” seems most appropriate, expressing the irony of the Court’s conservatives lambasting its liberals with the very case the liberals seek to preserve. To avoid influence, I’ve read no commentary on this opinion. I’ll be interested to see how my take squares with others.

185 (!) .pdf pages make up the slip opinion. Roberts writes an opinion that constitutes both the Opinion of the Court (in part - the part agreed with by ultimate-arbiter Kennedy in his own solo “controlling” opinion) and his own opinion (joined by the other three conservatives Scalia, Thomas, and Alito. Thomas writes a separate concurring opinion. On the liberal side, Stevens writes separately with a unique venom, and joins the main dissent authored by Breyer cosigned by Ginsburg and Souter (and characterized by Stevens as “unanswerable”).

Roberts’ opinion names race as an unacceptable consideration in assigning students to public schools for K-12. (In the twin cases considered by the court (in essence) whites had been denied entry into the school of their choice due to their race, and sued.) Roberts writes that the central principle of Brown is that Fourteenth Amendment Equal Protection ”prevents states from according differential treatment to American children on the basis of their color or race,” (Slip Opinion .pdf, p.47) thus flogging the liberals with Brown by asserting the Seattle and Jefferson Co. schools may not use a racial criteria - and standing Brown on its head.

How is Brown turned upside down? Roberts writes: “Government action dividing people by race is inherently suspect because such classifications … endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.” (Slip Opinion .pdf, p.46) (internal citations and quotations omitted). I’d argue he’s right on the principle, the ideal, the de jure end-state aspiration. But in Roberts’ opinion is the gasoline exacerbating the very conflagration he (purportedly) hopes to avoid: “a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict” - the very segregated, “separate-but-equal” America that Brown attempted to remold into a racially integrated composite. When Roberts’ strikes down race as a consideration, the well-established de facto segregation of housing in neighborhoods across the country will naturally result in de facto segregation of the races in neighborhood public schools. (Note to legal eagles: I am not discussing the two “de’s” in quite the same context as does Kennedy.)

Thus two trains pass in the night, the hoped-for collision and interface of the de jure and the de facto once again prove beyond the combinative capabilities of our judiciary, our Constitution, our society, our own natures. The Gordian Knot of Race in America is tied anew for future generations to ponder and grapple under whatever future circumstances they experience as the result of this new articulation of the law. 

Kennedy limits Roberts’ opinion to some opaque but important extent stating:

[P]arts of the opinion by THE CHIEF JUSTICE imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality’s postulate that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” ante, at 40–41, is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education, 347 U. S. 483 (1954), should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown’s objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. (Slip Opinion .pdf, p.91)

The extent of Kennedy’s moderation of Roberts’ plurality opinion will not be known until further cases wind their way to the Supreme Court in the coming years, but Kennedy sides with Roberts in large part and his limiting of the conservative position should not be overestimated: Breyer’s dissent characterizes the Opinion of the Court (necessarily the parts joined by Kennedy) as a “decision that the Court and the Nation will come to regret.”

The usual ”respectfully dissent[ing]” Justices are absent from these opinions. Stevens joins Breyer but also writes separately to excoriate the plurality:

The Court has changed significantly … It was then [in past decisions] more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision. (Slip Opinion .pdf, p. 107-108)

This ends the text of his dissent, with no “I respectfully dissent,” or even “I dissent” traditional tagline. Notice he accuses the plurality of disrespecting the Court’s precedent.

Breyer ends his dissent with this admonition:

Three years after that decision [Brown] was handed down, the Governor of Arkansas ordered state militia to block the doors of a white schoolhouse so that black children could not enter. The President of the United States dispatched the 101st Airborne Division to Little Rock, Arkansas, and federal troops were needed to enforce a desegregation decree. See Cooper v. Aaron, 358 U. S. 1 (1958). Today, almost 50 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request.

The plurality is wrong to do so. The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.

I must dissent.

According to a report on NPR’s “All Things Considered” as I conclude this piece, Stevens stated this dissent was twice as long as any he’d ever written (he includes two appendices of charted data). He read a 20 page summary of it from the bench, an act of emphasis symbolic of the strongest possible objection, and a frequent feature of this term’s decisions.

Truly, our society is a long way from resolving this issue.

I will look forward to reading Slate’s Supreme Court Conversation discussing this case tonight.

B

It’s the final week of this term of the Supreme Court, and some big decisions have come down the pipe this week with the last batch to follow tomorrow.

I looked at Morse v. Frederick (“BONG HiTS 4 JESUS” - First Amendment: school speech) trying to make sense of the fractured spate of opinions…

In Morse, students were allowed out of Juneau, Alaska high school to view a leg of the Olympic Torch Relay passing through town in 2002, purportedly as a school field trip. On the sidewalk opposite school property, some students unrolled a large banner containing the message “BONG HiTS 4 JESUS.” Principle Morse intervened, demanding the banner be taken down. One student, plaintiff Frederick, refused. Morse tore down the banner and Frederick was subsequently suspended for 8 days.

The Ninth Circuit reversed Frederick’s failure at the District Court level, finding a First Amendment violation (because the school had not shown the “threat of a substantial disruption”), and disallowing a claim of qualified immunity by the principal on the grounds that a reasonable principal should have known tearing down the sign was a First Amendment violation.The Supreme Court granted cert for Morse’s appeal. The Justices split five ways, with the controlling opinion dictated by two Justices (a fact ignored, glossed over or missed entirely by many commentators).

Here is the breakdown:

Roberts authored the purported Opinion of the Court, “fully” joined by Scalia. The thrust of the opinion is the carving out of a new category of proscribable speech in a school setting: speech advocating drug use. Hinted at (and subsequently rejected by Alito and Kennedy’s limitation) is that any message contrary to the school’s educational mission can be prohibited. Roberts justifies the departure from the standards of Tinker v. Des Moines (1969) by relying on another school speech case, Bethel School District v. Fraser (1986), which implies the Tinker principles are not absolute. 

Thomas joined the Opinion of the Court, but wrote separately to advocate a strict, old-fashioned in loco parentis view of school authority over students, and claiming that the modern First Amendment principles set out in Tinker v. Des Moines (Vietnam armband case) had no basis in the Constitution. He lists old, pre-Tinker cases that, while supporting his argument, are beyond the pale by modern standards. Most damning is Wooster v. Sunderland (1915):

[T]he California Court of Appeal upheld the expulsion of a student who gave a speech before the student body that criticized the administration for having an unsafe building “because of the possibility of fire.” Wooster v. Sunderland, 27 Cal. App. 51, 52, 148 P. 959, (1915). The punishment was appropriate, the court stated, because the speech “was intended to discredit and humiliate the board in the eyes of the students, and tended to impair the discipline of the school.”

By today’s standards, the expelled student would clearly be vindicated in his First Amendment complaint, and rightly so by any understanding of free speech and its impact on good public policy.

Alito authored a separate opinion joined by Kennedy, which is actually the controlling opinion in the case. Therein, Alito and Kennedy condition their joining of the Opinion of the Court on the limiting of that decision:

[We] join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” [rejecting any broader “educational mission” justification]

Alito also pauses to beat up Thomas’s in loco parentis argument:

When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students’ parents. It is a dangerous fiction to pretend that parents simply delegate their authority — including their authority to determine what their children may say and hear — to public school authorities. It is even more dangerous to assume that such a delegation of authority somehow strips public school authorities of their status as agents of the State.

Breyer writes separately and technically numbers among the dissenters. In Breyer’s opinion the Court should rule that the principal (Morse) had qualified immunity and no money damages to Frederick were justified.  Breyer would not reach the merits of the free speech issue, and from parsing his opinion, it is reasonably clear he would reject the logic of Alito’s controlling opinion:

[W]hile the holding is theoretically limited to speech promoting the use of illegal drugs, it could in fact authorize further viewpoint-based restrictions. … [I]t is unclear how far the Court’s rule regarding drug advocacy extends. What about a conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve the pain? What about deprecating commentary about an antidrug film shown in school? And what about drug messages mixed with other, more expressly political, content? If, for example, Frederick’s banner had read “LEGALIZE BONG HiTS,” he might be thought to receive protection from the majority’s rule, which goes to speech “encouraging illegal drug use.” Ante, at 2 (emphasis added). But speech advocating change in drug laws might also be perceived of as promoting the disregard of existing drug laws. [emphasis mine]

I have to agree with Breyer that the qualified immunity angle seems reasonable, as does putting off a decision on the merits in such a weird [the Court’s word, not mine] scenario. For a principal seeing the subject banner, I cannot myself fathom how he or she could reach the conclusion that removing said banner – drug themed in a school setting – would be unconstitutional. There is some technical glitch with the immunity argument. Breyer states his case for wiggling around it, and Alito isn’t satisfied with Breyer’s argument – but if you’re really interested in this coma-inducing tidbit you’ll have to read the opinion.

Finally, Stevens authors the compelling dissent, joined by fellow liberals Souter and Ginsburg. Stevens main point is that “punishing someone for advocating illegal conduct [if the banner does such, which he disputes] is constitutional only when the advocacy is likely to provoke the harm that the government seeks to avoid.” Mere advocacy has never been equated with incitement to imminent lawless action.

“[P]romoting illegal drug use,” … comes nowhere close to proscribable “incitement to imminent lawless action.” Brandenburg, 395 U. S., at 447. Encouraging drug use might well increase the likelihood that a listener will try an illegal drug, but that hardly justifies censorship:

“Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. . . Advocacy of law-breaking heightens it still further. But even advocacy of violation, however rep-rehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted upon.” Whitney v. California, 274 U. S. 357, 376 (1927) (Brandeis, J., concurring).

No one seriously maintains that drug advocacy (much less Frederick’s ridiculous sign) comes within the vanishingly small category of speech that can be prohibited because of its feared consequences. Such advocacy, to borrow from Justice Holmes, “ha[s] no chance of starting a present conflagration.” Gitlow v. New York, 268 U. S. 652, 673 (1925) (dissenting opinion).
…

[J]ust as we insisted in Tinker that the school establish some likely connection between the armbands and their feared consequences, so too JDHS must show that Frederick’s supposed advocacy stands a meaningful chance of making otherwise-abstemious students try marijuana.

But instead of demanding that the school make such a showing, the Court punts. Figuring out just how it punts is tricky…. On occasion, the Court suggests it is deferring to the principal’s “reasonable” judgment that Frederick’s sign qualified as drug advocacy. At other times, the Court seems to say that it thinks the banner’s message constitutes express advocacy. Either way, its approach is indefensible.

To the extent the Court defers to the principal’s ostensibly reasonable judgment, it abdicates its constitutional responsibility. The beliefs of third parties, reasonable or otherwise, have never dictated which messages amount to proscribable advocacy. Indeed, it would be a strange constitutional doctrine that would allow the prohibition of only the narrowest category of speech advocating unlawful conduct, see Brandenburg, 395 U. S., at 447–448, yet would permit a listener’s perceptions to determine which speech deserved constitutional protection.

Such a peculiar doctrine is alien to our case law.

Two other important First Amendment cases came down on Monday:

Federal Election Comm’n v. Wisconsin Right to Life, Inc. (Political speech, campaign finance reform – loosening restrictions on issue-based “attack” ads) 

Hein v. Freedom From Religion Foundation, Inc. (executive branch expenditures on faith-based organizations, no standing for taxpayers to sue.)

Along with these two:

National Assn. of Home Builders v. Defenders of Wildlife (trumping the Endangered Species Act.)

Wilkie v. Robbins (federal harassment - no viable federal causes of action)

I might discuss Wilkie later, since every commentator has ignored it and it has fun facts.

A discussion of the end-of-term cases I’ve enjoyed reading between Dahlia Lithwick and Walter Dellinger can be found on Slate, here.

More on Thursday’s cases soon.

B