The Freedom Bulletin

Joel Tenenbaum, who was ordered to pay $675,000 for copyright infringement, was dealt a blow today as the Supreme Court declined (PDF) to grant him certiorari, meaning they will not hear his case.

The cause of this whole mess was, of course, Tenenbaum’s “offense” of downloading 31 songs. A jury of his peers – and I still find this hard to believe – came up with the $675,000 award. U.S. District Judge Nancy Gertner reduced the damages to $67,500, but the First Circuit Court of Appeals reinstated the bigger sum and sent the case back to the district court… only using a process called remittitur which, basically, allows the plaintiffs (the record companies) to hold a new trial if the judge cuts the damages again.

In their petition to the Supreme Court, Tenenbaum’s lawyers, including Harvard Law Professor Charles Nesson, sharply criticized the ruling and the companies behind it: “This pernicious interpretation of the Copyright Act transforms every bit of cyberspace into a potentially exploding lawsuit and is sparking the development of a spam-litigation industry.”

Additionally, Tenenbaum’s lawyers wrote that record companies wanted to punish their client, “beyond any rational measure of the damage he conceivably caused, not for the purpose of recovering compensation for actual damage caused by him, nor for the primary purpose of deterring him from further copyright infringement, but for the ulterior purpose of creating an urban legend so frightening to children using the Internet, and so frightening for parents and teachers of students using the Internet, that they will somehow reverse the tide of the digital future.”

In what was probably a bittersweet moment, Tenenbaum just received his PhD in statistical physics from Boston University on Sunday. For his part, he told WCVB, “The idea I should be liable for the cost of a nice house for sharing 30 songs is absurd.”

I agree with him. This punishment does not fit the crime (or, more accurately, the civil offense). A study cited by Tenenbaum’s team showed that the average teenager illegally downloads 800 songs, making them liable for up to $120 million in damages.

As Greg Sandoval at CNET points out, the decision is not surprising because the SCOTUS declines the vast majority of certiorari requests. The case is still likely to go on and on.

Read Tenenbaum’s petition for certiorari at Ars Technica.

Additional sources: AP, Boston.com, NY Times, and Wired

And as always, to support Tenenbaum and/or learn more about the case, visit Joel Fights Back.

Yesterday’s New York Times brings us the story of Albert Holland, Jr., who was sentenced to death for first-degree murder in 1996 after a trial, and later a retrial, in Florida. After he exhausted his state-level appeals, he filed a habeas corpus petition, which eventually went to the Supreme Court and was granted in 2010. Recently, a lower court awarded him a third trial. The reason for all these appeals? Holland has had to deal with one incompetent lawyer after another and was not allowed to represent himself. One ended up in jail for domestic violence and drug use, and later died of an overdose. The next was a friend of the first lawyer, who in addition to representing Holland, also represented his predecessor when he sued Holland for $40,000 in legal fees. Another lawyer filed the habeas petition 5 weeks late, despite repeated letters from Holland reminding him of the importance of the deadline, and failed to answer Holland’s questions about the status of his case.

Due in large part to Holland’s knowledge and advocacy, the Supreme Court agreed to hear the case and ultimately ruled in his favor, overruling the district court and appeals court’s’ decisions to deny the petition because it was late. A lower federal judge, Patricia Seitz, then paved the way for a new trial when she ruled that the state court had violated his Sixth Amendment rights by denying his repeated requests to represent himself.

Although he has been described as mentally ill, Holland has served as an excellent lawyer for himself. Justice Breyer praised him for keeping track of the deadlines for appealing death sentences better than his lawyers had. Holland also pointed out that the crime of attempted felony murder, which he had been indicted on, did not exist under Florida law. And he made the (ultimately successful) argument, supported by established precedent, that legal training is not a requirement for someone to be allowed to represent himself.

This case shows that persistence can pay off, and that sometimes ordinary people can do a better job than experts. Good for Holland for having the intelligence and the wherewithal to make sure that his legal rights were protected when his attorneys were unable and/or unwilling to do so.

Naomi Wolf wrote a great piece in the Guardian about last week’s Supreme Court ruling allowing strip searches for people accused of even the most minor offenses. She compares this decision to many other instances of forced nudity by totalitarian regimes, mentioning Nazi Germany, the slave trade, Guantanamo, the imprisonment of Bradley Manning, and, of course, the actions of the TSA in airports around the country:

“Believe me: you don’t want the state having the power to strip your clothes off. History shows that the use of forced nudity by a state that is descending into fascism is powerfully effective in controlling and subduing populations.

The political use of forced nudity by anti-democratic regimes is long established. Forcing people to undress is the first step in breaking down their sense of individuality and dignity and reinforcing their powerlessness.”

I couldn’t agree more with her. If I had to choose the worst violation of freedom that a government could commit against people, forced nudity would be it. This ruling, or anything that expands the use of strip searches, is an affront to liberty and is exactly the wrong direction for our society to go in.

H/T: The Humble Libertarian

More on the strip search ruling:

• Noah Feldman on why Justice Kennedy (and so many others) are OK with this invasion of privacy
• Glenn Greenwald on how Obama’s DOJ advocated for the ruling
• Andrew Rosenthal on “the right to strip”
• The Silver Underground on how cops dress as bunnies to catch people not wearing seat belts so that they can be ticketed (and possibly strip searched?)

What a bad ruling the Supreme Court made yesterday. In 2005, Albert Florence was arrested and spent 7 days in jail because police officers accused him of failing to pay a fine, despite the fact that he was carrying proof  in his glove compartment that he had paid it, and the fact that failure to pay a fine is not considered a crime in his state of New Jersey. In the words of the Supreme Court decision (PDF), this is what happened to him:

“At the first jail, petitioner…had to shower with a delousing agent and was checked for scars, marks, gang tattoos, and contraband as he disrobed. Petitioner claims that he also had to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. At the second jail, petitioner…had to remove his clothing while an officer looked for body markings, wounds, and contraband; had an officer look at his ears, nose, mouth, hair, scalp, fingers, hands, armpits, and other body openings; had a mandatory shower; and had his clothes examined. Petitioner claims that he was also required to life his genitals, turn around, and cough while squatting.”

Florence’s lawyers argued that it violates the Fourth Amendment to conduct strip searches without reasonable suspicion that the inmate is hiding something. But 5 of 9 Supreme Court justices ruled today that what happened to Florence is completely fine.

I completely disagree with them. A strip search is a severe violation of a person’s privacy, freedom, dignity, and sexual integrity. It should never be done to anyone who has not been proven guilty of a crime beyond a reasonable doubt, and even among convicted criminals, it should be done only to inmates who are known to pose a specific, truly dangerous threat…if even then. But the Supreme Court decision, as Justice Breyer pointed out in his dissent, would subject people to strip searches for merely being accused of ”such infractions as driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell.”

Breyer also wrote (correctly) that invasive seaches are “inherently harmful, humiliating, and degrading… And the harm to privacy interests would seem particularly acute where the person searched may well have no expectation of being subject to such a search, say, because she had simply received a traffic ticket for failing to buckle a seatbelt, because he had not previously paid a civil fine, or because she had been arrested for a minor trespass.”

Strip searches, body cavity searches, and mandatory showers are all things that it is inappropriate for one person to do to another (or the government to do to a person) in a free society. In my opinion, to force someone to expose the most private parts of their body constitutes a form of sexual assault. The job of the prison system is not to prevent disease, lice, drug use, and danger at any cost, but simply to punish people who have committed crimes, or make sure that detainees awaiting trial don’t escape, while preserving everyone’s dignity.

The ruling was 5-4, with Justices Kennedy, Roberts, Alito, Thomas, and Scalia in the majority and Justices Breyer, Ginsburg, Sotomayor, and Kagan (didn’t think I’d ever say this but…good for them!) dissenting.

This case highlights a frustrating fact about today’s political landscape: neither the so-called “liberal” justices nor the so-called “conservative” justices are truly pro-liberty. I found myself agreeing with the skeptical questions that Alito, Scalia, Kennedy, and Roberts asked during the ObamaCare arguments last week, but vehemently disagree with the stance they took in the Florence case. It is strange that Justice Breyer, for example, could treat it as obvious that the government can force everyone to receive vaccines, but then so eloquently take the pro-liberty point of view about strip searches. We need to have more people in law and politics who are pro-liberty about everything – opposed to mandatory purchase of health insurance, mandatory vaccination, and suspicionless searches.

Read the decision and all the briefs here.

Sources: AP, Reuters, Washington Post

It seems like things might, just maybe, be going in the right direction based on the Supreme Court justices’ questions during today’s hearing on the Affordable Care Act. Although predicting court decisions is always iffy, news sources described a majority of the justices as skeptical as they fired questions at Solicitor General Donald Verrilli. Justices Breyer, Sotomayor, Kagan, and Ginsburg are almost certainly in favor of the law, Justices Alito, Scalia, and Thomas are almost certainly against it, and it is Roberts and especially Kennedy who everyone is guessing about.

Here are some of the best points, in my opinion, that were made today:

“Everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market. Therefore, you can make people buy broccoli.” ~ Justice Antonin Scalia

“Why do you define the market that broadly? It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant.” ~ Justice Scalia

“[The individual mandate] is different from what we have in previous cases. That changes the relationship of the federal government to the individual in a very fundamental way.” ~ Justice Anthony Kennedy

“You don’t know if you’re going to need police assistance. You can’t predict the extent to emergency response that you’ll need. But when you do and the government provides it.” ~ Chief Justice John Roberts, comparing the individual mandate to requiring everyone to purchase cell phones so they can call 911 more efficiently

“You can’t say that everybody is going to participate in substance abuse services.” ~ Justice Roberts

“The failure to buy health insurance doesn’t affect anyone. Defaulting on your payments to your health-care provider does. Congress chose for whatever reason not to regulate the harmful activity of defaulting on your health care provider.” ~ Michael Carvin, attorney for the National Federation of Independent Business and other private plaintiffs against the individual mandate

“If being born is entering the market…that literally means they can regulate every human activity from cradle to grave.” ~ Attorney Carvin

“It’s not really a health-care provision so much as a corporate giveaway. 300 million guaranteed customers for the insurance industry.” ~ Oliver Hall, a supporter of single-payer health care who protested against the individual mandate

Sources:

• Associated Press
• CBS News
• LA Times
• NY Times
• Wall Street Journal (live blog here)

Visit the Supreme Court’s website if you want to read a transcript of all of today’s arguments (PDF).

Did you know that the federal government can ban you from growing too much wheat on your farm? In the 1942 case of Wickard v. Filburn, the Supreme Court affirmed (unanimously, no less!) a federal law doing just that. Farmer Roscoe Filburn was fined for every bushel of wheat he grew that exceeded a government-set limit. According to the New York Times, this case will play a large role in the Court’s upcoming deliberations over the constitutionality of the Affordable Care Act (“ObamaCare”).

“To hear the Obama administration tell it, the Filburn decision illustrates just how much leeway the federal government has under the Constitution’s commerce clause to regulate the choices individuals make in matters affecting the national economy. If the government can make farmers choose between growing crops on their own land and paying a penalty, the administration’s lawyers have said, it can surely tell people that they must obtain health insurance or pay a penalty.

Opponents of the law draw a different lesson from Mr. Filburn’s case. They say it set the outer limit of federal power, one the health care law exceeds. It is one thing to encourage farmers to buy wheat by punishing them for growing their own, the argument goes. It is another to require people to buy insurance or face a penalty, as the health care law does.”

In other words, there’s a difference between banning people from making something themselves in the hope that they will have to purchase it from someone else, and actually requiring people to purchase something (namely, health insurance).

In my opinion, this isn’t a very big difference; philosophically and morally, both the Wickard decision and the Affordable Care Act’s  individual mandate are wrong. But out of these two violations of individual rights, the individual mandate is somewhat worse. Punishing people for growing something on their own land is bad enough, but the ACA would punish people for inactivity and would compel them to participate in an economic transaction that they do not necessarily wish to participate in. Additionally, while the wheat law allows people the option of going without wheat (admittedly not a very good or practical option), the ACA does not even allow people the option of declining to participate in the health care market.

Lawyer Michael A. Carvin, in a brief for the National Federation of Independent Business, made an excellent analogy:

“The uninsured regulated by the mandate are the teetotalers, not the bootleggers, of the health insurance market.”

ACA supporters almost always equate not having health insurance with receiving medical services for free and therefore becoming a free rider. Although this is true of some people, it is not true of all. Some people choose not to receive medical services at all. And some people choose to pay with their own money for each health service they receive, instead of paying for insurance. It would be just as wrong to force these people to purchase health insurance as it would be to force teetotalers to purchase alcohol.

It will be interesting to see if the Court agrees with this analogy.

The Supreme Court made a great ruling yesterday, unanimously declaring that, absent a warrant or probable cause, it is unconstitutional for police to track people’s movements by attaching a GPS device to their car.

As Justice Sotomayor points out:

“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familiar, political, professional, religious, and sexual associations … The Government can store such records and efficiently mine them for information years into the future … And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: ‘limited police resources and community hostility.’ “

Read the full text of the ruling, in the case of United States v. Antoine Jones, here.