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Scalia’s Establishment Clause Footprints Fantasy

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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