My kids understand that if they walk into a Wal-Mart and pilfer an Usher CD, they're stealing about $12's worth of somebody else's property. My kids have a much harder time grasping the notion that if they download all those same Usher songs, they're also stealing somebody else's property?maybe not quite the full $12's worth since the plastic disk, the liner notes, and packaging all count for something, but certainly most of the $12 since the real value rests not in the plastic but the musical performance digitally embedded in it.
-- Rod Smolla
Smolla is a First Amendment scholar, so should be ashamed of himself for providing such a shallow reading of reality. His column for Slate also supplies a snide reference to Lawrence Lessig, whose arguments deserve a lot more respect. A flavor of my distaste with Smolla's essay can be found by these remarks and various others on the board they are found on.
The point of the lawsuit accepted by the Supreme Court is that peer to peer technology has many legal uses, much like a VCR or tape recorder does. Therefore, the fact it has illegal uses -- as do quite a few legal products -- should not lead to the criminalization of this speech promoting technology.
Napster was different because it directly was involved with infringement, sort of like a company that provided a listing of pirated movies and a direct means to access them. So, other than the fact that it is often hard to get a CD for $12 and that all the things he listed [and more] is worth a bit more than "something," Smolla's example is not really on point anyway.
On the subject of cases already decided by the U.S. Supreme Court, Monday provided several that might be of interest to the general public, including one involving pollution clean-up and the ability of lawyers to sue to held indigent offenders. The Supremes struck down one possible method of the former (leaving other methods for future litigation) and somewhat narrowed the right of lawyers in the latter case. It was the only case that provided a true split with Justice Thomas also providing one of his "we should get back to basics, and overturn a century or so of law" concurrences. I will cover a few of the other criminal justice opinions below.
As to the death sentence of a certain Californian, let me say that I'm against the death penalty, and in these cases specifically. The heinous nature of the crime is a given, but if we do allow the death penalty, I do think deterrence and especially heinous crimes must be involved. I do not think preventing the killing of spouses in these situations factor in here.
Such crimes will never truly be deterred, since there is a clear degree of passion involved, even if it is pure heartless passion of getting out of a marriage one does not wish to continue. Also, it is of a certain type that is in some fashion understandable, if not forgivable for legal purposes, to the degree that it is not capital murder worthy.
Talking about capital cases, Florida v. Nixon unanimously held that a noncommittal response by a defendant when told of the decision to use to a reasonable strategy of doing little to challenge a capital murder conviction during trial because the defendant's clear guilt (established per defense investigation) warrants focusing on the penalty phase did not require reversal. This included basically admitting guilt in the summation to the jury.
The Florida Supreme Court felt otherwise, arguing that this was in effect a guilty plea that required a clear waiver from the defendant. A request for an expert's opinion on the matter led to these comments with which I agree. Cases like this suggest that the "liberal" nature of certain justices are something exaggerated. It is acceptable, for instance, to have Justice Thomas' p.o.v. represented, but a mirror image of that justice is sometimes equally desirable.*
Devenpeck et. al. v. Alford might be of more interest for the general public. It held that as long as the police had a reasonable reason for arrest, they need not inform the suspect of the exact reason, especially because there is no federal obligation for the police themselves to supply any reason. This has clear applications to every day police activity, including some of which that would lead to mistakes preventable if an alternative rule was in place.
Brosseau v. Haugen involved a police officer using deadly force to stop the flight of a suspect charged with non-violent offenses, whose only riskful activity might be reckless driving while trying to escape. The Supreme Court, in a summary dismissal of claims against the officer (reversing the opinion below), agreed this was unreasonable force. Nonetheless, with Justice Stevens rightly wanting to leave it to a jury, it held immunity was justified because the ruling was a new application of the law that the officer should not be liable to know.
Immunity from wrongdoing is a serious matter, one that the courts at times have a tendency to stretch too far, and this appears to be a case where a jury should decide. Are not members of the community often the best judges of what is "reasonable" in certain factual circumstances, especially given the Fourth Amendment speaks of the "right of the people?"
As the opinions were announced, Justice Scalia presided, the others more senior not being available. Hopefully, this shall be the only way he will serve as "Chief Justice."
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* The guy also is said to be pretty nice to his clerks, and a recent Vanity Fair piece on Bush v. Gore noted even the liberals like him on a personal level. His rather extreme views, failure to talk at oral arguments, suspect confirmation, and certain public statements does suggest the Chief Justiceship is not appropriate.
Anyway, talking about someone who likes his views, I found Randy Barnett's book a struggle to read, though some of his views are thought provoking. Barnett's view overall is just too idealistic in the utopian sense as well as a bit more question begging than he thinks. Still, he does provide a useful thumbnail reading of "natural rights" as those that grow out of and are essential to satisfying our natures.