In an interesting decision today, the Supreme Court ruled that Congress has the power to re-copyright public domain works. I have not read the decision and I am not a legal expert, but I am concerned that this ruling, which as I understand it effectively prohibits public use of works such as composer Sergei Prokofiev’s Peter and the Wolf and director Fritz Lang’s Metropolis, elevates international law above U.S. law and may amount to granting the government the power to dictate perpetual copyright terms. In dissent, Justices Stephen Breyer and Samuel Alito said the upheld law goes against copyright theory and “does not encourage anyone to produce a single new work.” The dissenting judges note that copyright is part of the United States Constitution to promote the arts and sciences.
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In a victory this Wednesday for freedom of speech, an appeals court rejected the Federal Communications Commission’s (FCC) decision to punish CBS for airing an expressive portion of Janet Jackson’s broadcast performance during the 2004 Super Bowl. The 3rd U.S. Circuit Court of Appeals in Philadelphia ruled by 2-1 (CBS Corp et al v. FCC, 3rd U.S. Circuit Court of Appeals, No. 06-3575) that, by imposing a penalty, the FCC “arbitrarily and capriciously” departed from prior policy that exempted “fleeting” indecency from sanctions and that the FCC “improperly imposed a penalty on CBS for violating a previously unannounced policy”.
The FCC released an antagonistic and harsh statement that says the federal agency is disappointed by the decision and intends to use “all the authority at its disposal” to force broadcasters to serve the public interest when they use the so-called public airwaves. A CBS spokeswoman said the network hopes the FCC will “return to the policy of restrained indecency enforcement it followed for decades.” The FCC fined CBS $27,500 for each of the 20 stations it owned when part of Janet Jackson’s anatomy was accidentally and briefly exposed during the halftime performance.
In 2008, the 3rd Circuit voided the fine, but that decision was vacated when the Supreme Court in 2009 upheld the FCC policy in a case brought by Fox News’ parent company, News Corporation, though that 5-4 ruling did not decide whether the policy was constitutional. In this week’s decision, Judge Marjorie Rendell said that the FCC had maintained a “consistent refusal” to treat fleeting nude images as indecent for 30 years, and that there is no justification for punishing CBS, according to Reuters. No word on whether the FCC will appeal the ruling. CBS and News Corporation are outstanding examples of businesses that refuse to sanction their own demise and both companies deserve credit for defending their free speech against the United States government’s censorship. The FCC should not exist because the agency is fundamentally inconsistent with freedom of speech in the first place. But this week’s Philadelphia court decision, which goes to show that fighting on principle is good, practical business, is better than the alternative.
When the Richmond, Virginia-based Fourth U.S. Circuit Court of Appeals issued its ruling against the state of Virginia’s case against ObamaCare this morning, I asked one of the nation’s most knowledgeable legal scholars, Georgetown law professor Randy Barnett, whom I interviewed earlier this year, for a statement. Dr. Barnett responded: “For a case that some said was a “no brainer” to uphold the Affordable Care Act [ObamaCare], three federal courts of appeals have adopted three different positions, each in 2 -1 decisions over a dissenting opinion. If any litigation ever cried out for resolution by the Supreme Court—and soon—it is this one. It is high time for the high court.”
The Obama administration is initiating a secret government operation investigating doctors in private practice, according to the New York Times in its Sunday, June 26 edition.
The article reports that, according to government documents obtained from Obama administration officials, government agents posing as patients “will call medical practices and ask if doctors are accepting new patients and, if so, how long the wait would be. The government is eager to know whether doctors give different answers to callers depending on whether they have public insurance, like Medicaid, or private insurance, like Blue Cross and Blue Shield.”
The government’s subversive and deceptive campaign targeting America’s doctors is another part of the incremental assault on the rights of doctors, who are becoming enslaved by ObamaCare. I think this particular attack is designed to intimidate doctors into submission to ObamaCare, which effectively forbids doctors from autonomously practicing medicine, and will eventually prohibit doctors from quitting state-sponsored medicine. It’s a first strike against any doctor who dares to defy the government.
[source: New York Times, registration required: http://www.nytimes.com/2011/06/27/health/policy/27docs.html?_r=1&hp=&pagewanted=all ]
Law professor Randy Barnett, who has argued before the Supreme Court, is described by Forbes as the legal scholar “who laid the intellectual groundwork for the surprisingly effective legal attacks on ObamaCare by state attorneys general.” Barnett, the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he teaches contracts and Constitutional law, has also taught torts, criminal law, evidence, agency and partnership, and jurisprudence. He graduated from Northwestern University and Harvard Law School, tried felony cases as a prosecutor in the Cook County States’ Attorney’s Office in Chicago and, in 2008, he was awarded a Guggenheim Fellowship in Constitutional Studies. Professor Barnett, who lectures internationally and has appeared on the CBS Evening News, The News Hour (PBS), and National Public Radio, offered his thoughts on America’s sweeping new nationalization of medicine—ObamaCare—during a recent interview.
Scott Holleran: In terms of American law, is health care a right?
Randy Barnett: Health care is not a Constitutional right. There are a lot of spending programs that create various entitlements, such as Medicare, but these are statutory rights not fundamental or Constitutional rights.
Scott Holleran: Is ObamaCare Constitutional?
Randy Barnett: ObamaCare, or the Patient Protection and Affordable Care Act, is unconstitutional for at least two reasons. One is that the individual mandate requires every American to purchase [health] insurance or face a penalty, which is an extension of Congressional power that goes beyond anything that has previously been authorized by the Supreme Court. From its inception, the substantial effects doctrine, though commonly conceived as a Commerce Clause doctrine, has been grounded in the Necessary and Proper Clause. The Supreme Court developed a judicially administrable test for whether it is “necessary” for Congress to reach intrastate activity that substantially affects interstate commerce: the distinction between economic and non-economic intrastate activity. Because [ObamaCare’s] individual mandate [forcing people to “buy” health insurance] fails to satisfy the requirements of this test, it exceeds the power granted to Congress by the Commerce and Necessary and Proper Clauses as currently construed by the Supreme Court. The Supreme Court has said that Congress could not reach non-economic activity and Congress, in this case, is trying to reach non-economic activity, mandating that people engage in economic activity. The other problem is that, as certain states are contesting, Congress is using its spending power coercively.
Scott Holleran: Is ObamaCare legally inevitable?
Randy Barnett: Absolutely not—it is not inevitable that legal challenges will fail or succeed. Neither side has an argument that can dictate or mandate or require the Supreme Court to decide this issue for or against their side.
Scott Holleran: Is the Constitutional case against ObamaCare an originalist perspective?
Randy Barnett: I am an originalist who advocates interpreting the Constitution according to its original meaning, but nothing in the legal challenge to ObamaCare is based on the original meaning of the Constitution—we’re just following the opinions on the Supreme Court, applying what they have previously said to this statute. I would describe our arguments as doctrinal, not originalist.
Scott Holleran: What are the legal options for opposing ObamaCare?
Randy Barnett: There are more lawsuits than I can keep track of, but, of the five district court judges who have ruled on the Constitutionality of the law, two struck it down and all five are on appeal, and we’ve so far had three appellate arguments, in Richmond, Cincinnati, and Atlanta, involving four of the lower court decisions. There may be other options that arise but I don’t want to express an opinion at this point and I don’t want to be overly optimistic. We expect decisions in the cases that have already been argued by the end of the summer, or possibly by September  and, if the Supreme Court takes a petition for appeal, there could be a decision by June 2012. That would be the earliest. I have a high opinion of the lawyers in the Virginia case, and the lawyering in the 11th Circuit Court of Appeals was excellent.
Scott Holleran: Have you read Virginia Attorney General Ken Cuccinelli’s address to Hillsdale College arguing against ObamaCare?
Randy Barnett: I have not seen that speech but I’ve testified to Congress with him. This guy is smart but what really amazed me was his press conference in Richmond. He was amazing—he got up there and gave one of the most knowledgeable, careful, legal analyses of his case [against ObamaCare] and he was crystal clear and completely on top of the case. I thought it was a masterful performance. I was really, really impressed.
Scott Holleran: What are the legislative options for opposing ObamaCare?
Randy Barnett: It would be helpful if the Republicans in Congress would pass a law that is Constitutional and market-based—I don’t think anybody wants to go back to [the mixed health care system of] 2008—and I have discussed this with several people and I get the sense that there is interest. If the GOP were to pass the [Rep. Paul] Ryan plan, it would be very beneficial [to killing ObamaCare] because it would show that there are alternatives [to ObamaCare]. It would offer something identifiable as an alternative—not just a think tank proposal—something worked out of a legislative body and that would be important. Ultimately, the people will have to elect a president who will sign a repeal bill and, if the court upholds the [ObamaCare] law, that will fuel the fires. I think any Republican who gets the nomination will have to pledge to repeal ObamaCare. I do think it’s going to be a challenge for people on the Hill to come up with something that’s not ObamaCare-lite because that’s the way they think. But the need for health care for poor people does not deprive other people of the right to choose their health care. A government takeover and distortion of the health care market is not the way to go.
Scott Holleran: Are there executive options for opposing ObamaCare, in case Congress buckles in favor of the law?
Randy Barnett: [Former Massachusetts] Governor [Mitt] Romney says he’ll give a waiver to everyone. But I’m a Constitutional lawyer and, when you’re talking about something so far down the road, a lot can happen.
Scott Holleran: Are there state law options for opposing ObamaCare?
Randy Barnett: Some states have enacted health care freedom [from ObamaCare] acts and the Constitutionality of those acts are at issue in the lawsuits. If we lose [and ObamaCare is upheld], those acts will be inoperative. States can try to resist the Medicaid part, if they can afford to—and they generally can’t—but the idea that 27 or 28 state attorneys general are suing is significant and it’s going to be noticed by the Supreme Court.
Scott Holleran: Are there opt-out provisions that a single individual can exercise in compliance with U.S. law to get out of ObamaCare?
Randy Barnett: I don’t want to comment on that.
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