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LaCroix on the Use and Misuse of Legal History in McDonald

This post is cross-posted on SCOTUSblog.

The Thick Edge of the Wedge

by Alison LaCroix

Ever since the Court issued its decision in D.C. v. Heller in 2008, many legal historians have found themselves in the odd position of feeling compelled to defend their methodology against triumphalist congratulations from those outside the field.  In the wake of a decision that found both Justice Scalia and Justice Stevens invoking the Glorious Revolution, early colonial regulations, and the ratification debates, surely legal historians of all persuasions could agree that the insistence of both the plurality and the dissenters on speaking the legal-historical argot was a victory for the methodology.  Even if one disagreed with the justices’ conclusions, perhaps legal historians ought to be grateful that the battle was joined on the field of history.  In short, shouldn’t we see Heller as the moment when the Court finally joined us in the archives?

But, as the Court’s decision in McDonald v. City of Chicago demonstrates, the supposed victory of legal history was pyrrhic at best.  For those of us who insist to our students that a historical approach to constitutional law (as, for example, Philip Bobbitt lists among his six modalities of constitutional argument) need not be an originalist approach, and that larding a brief with a few citations to The Federalist does not amount to historical analysis, the McDonald decision suggests that the originalism-history equivalence remains distressingly fixed.  Despite Justice Stevens’s cautions about “[t]he malleability and elusiveness of history,” a strong current of history-as-objective-social-science runs through the decision.  The result is a collation of data points presented as noncontextualized truths, as though even to allow for the possibility of interpretation would condemn the entire enterprise to the fuzzy realms of postmodern indeterminacy.

Two examples of this misuse of history in McDonald are particularly notable: (1) the discussion of the self-defense rationale; and (2) the second-order question of the proper temporal baseline for determining which moment is the “original” one.

First, the self-defense argument.  In Heller, the Court insisted that the self-defense right was “the central component” of the right to keep and bear arms, despite the fact that it “had little to do with the right’s codification.”  In McDonald, the Court continues to place the entire weight of its argument on the self-defense right, which the plurality denominates a fundamental right meriting incorporation under the Due Process Clause of the Fourteenth Amendment.

But the Court’s equation between self-defense in the modern era — for example, the desire of the petitioners to keep handguns in their homes in order to protect themselves against criminal activity – and Anglo-American attitudes toward arms-bearing in the seventeenth and eighteenth centuries glosses over a key difference between the reasons for arms-bearing in those very different eras.  The Court’s rationale for the right is protection of the individual, the family, and the home against intruders and violent criminals.

The examples the Court cites, however – the 1689 English Bill of Rights’ protection of the right to bear arms; colonial Americans’ invocation of the rights of Englishmen to keep arms – have to do not with random acts of violence by individuals, but with resisting illegitimate exercises of governmental power.  The Court’s citation of Joseph Story’s statement that the right to bear arms is “the palladium of the liberties of a republic” tells the whole story, for Story goes on to say that arms-bearing “offers a strong moral check against the usurpation and arbitrary power of rulers.”  The same republican justification holds for the Kansas Free Soilers the Court cites.

In other words, the evil that seventeenth-, eighteenth-, and nineteenth-century commentators believed the right to bear arms would avoid was not home invasions by individual criminals, but the overthrow of the republic.  In virtually all the Court’s historical examples, a governmental regime is behind both the coerced disarmament and the violence.  Petitioners, meanwhile, are sympathetic individuals afflicted by crime but are not making the same sort of two-pronged republican liberty claim in which the government is both attempting to strip them of their arms-bearing rights and threatening them with violence.  For historians, such differences in motivation clearly demonstrate that one is looking at two fundamentally different times and worldviews, and that therefore an easy translation is impossible.

The second point concerns the Court’s shifting interpretive baseline.  Just when is the relevant “original” moment for the justices?  At least three possible moments suggest themselves as possibilities: (1) the Constitutional Convention; (2) the congressional debates over the Civil Rights Act of 1866 and the Fourteenth Amendment in 1868; or (3) the Court’s own twentieth-century cases dealing with incorporation of the Bill of Rights against the states.

Despite the Court’s insistence that the original meaning of the Reconstruction-era debates should determine the content of the Fourteenth Amendment’s protections, the Court is surprisingly quick to dispose of the three cases in which the Court declined to protect arms-bearing against state regulation.  With a brief statement that these three cases (Cruikshank, Presser, and Miller) “all preceded the era in which the Court began the process of ‘selective incorporation,’” Justice Alito disposes of the cases.

But this neat conclusion conceals an important circularity.  The opinion offers no account of how this nonoriginalist interpretation with respect to incorporation (tossing out this trio of major cases) can be reconciled with the overall commitment to originalism (valorizing the congressional debates).  Moreover, Cruikshank and Presser were decided in 1876 and 1886, respectively, putting them roughly in moment (2): the Reconstruction period.  Yet the Court rejects the possibility that the cases might offer any insight on the question before it, even as it seizes on congressional debates from no more than a decade before as objective evidence of late-nineteenth-century original meaning.

The suggestion is that we in 2010 now have access to what they in 1868 meant, even though a different “they” in the 1870s and 1880s had an entirely different idea about what people in 1866 meant.  The plurality opinion thus appears willing to engage in nonoriginalist interpretation in some cases (please disregard those bad old cases that came before we the Court figured out incorporation) while insisting on originalism in other cases (please consider the congressional debates of the 1860s as part of our own moment’s interpretive canon).  If this is the triumph of legal history that we have been waiting for, then we historians might prefer to wait some more.  We are, after all, accustomed to the passage of time.

Viacom v. YouTube: When Is It Storage? When Is It a Public Performance?

Today, a federal district court in New York granted YouTube’s motion for summary judgment in its long-running litigation with Viacom. Viacom and—separately—the English Premier League sued YouTube and Google alleging that they were liable for infringing works that users posted on YouTube. Google is understandably trumpeting its victory though it of course is subject to appeal to the Second Circuit.

The issue in the case focuses on the scope of the Digital Millennium Copyright Act’s safe harbor for online service providers set forth in section 512 of the copyright statute. Section 512 is pretty chunky but most of the court’s analysis focuses on section 512(c). That subsection insulates service providers from liability “for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider” if the service provider can meet a three-part standard set forth in that subsection.

One part of that standard turns on the knowledge of the service provider of the underlying infringing activity and most of the court’s opinion focuses on how to assess that knowledge. The district court ultimately rejects the notion of generalized knowledge of infringement and instead focuses on “knowledge of specific and identifiable infringements of particular individual items.” We could have a lively discussion about the right way to structure knowledge of user infringement and whether the district court reads the statute correctly but I want to direct my attention elsewhere.

Quoting the statute, the legislative history and then the ensuing discussion of knowledge occupies slightly more than the first 22 pages of the 30-page opinion. I went to direct my attention to, as the court puts it “other points” and in particular to the question of exactly what protection emerges from the “storage” language in 512(c).

Consider a hypothetical. An online service provider offers backup storage for its customers. Customers copy files to a centralized server to protect against a local hard drive failure. Some customers upload files that infringe the rights of copyright holders, as might occur, for example, if a customer scanned an entire book so that it could have an electronic copy of the book. Assume such scanning to be infringing though I do understand that some contend that such full-scale digitization might be fair use under some circumstances.

The service provider notices that through its customers uploads it has amassed a very nice collection of digitized books. It decides to go into the print-on-demand business: customers check to see if a copy of the book is stored centrally and if so the service provider print outs a copy on demand and overnights it to the customer. Are these printed books protected by the storage safe harbor in section 512(c)?

I assume that the answer to that is no. The fact that part of your business may be protected by section 512(c) doesn’t insulate any other aspect of your business from potential charges of copyright infringement. Indeed, I assume that the YouTube district court agrees with me on this as it is crystal clear in stating that to the extent that YouTube’s activities go beyond the scope of storage and “allied functions” then normal principles of copyright infringement apply and YouTube is outside the safe harbor of section 512(c).

The district court’s analysis focuses on the definition of service provider and 512(k)(1) and takes the breadth of that definition to indicate that more than storage must be protected in the safe harbor: “[s]urely the provision of such services, access, and operation of facilities are within the safe harbor when they flow from the material’s placement on the provider’s system or network: it is inconceivable that they are left exposed to be claimed as unprotected infringements.”

It is certainly true that more than storage is protected. Indeed, 512 actually provides four well-defined safe harbors: for transitory digital network communications in 512(a); for temporary storage or system caching in 512(b); for permanent storage under the control of users in 512(c); and for information location tools under 512(d). The definition of service provider needs to encompass each of those four situations but that tells us little about what, if any, allied functions beyond those set forth in 512(a)-(d) are protected.

Change my hypothetical slightly. Switch from books to video and have the service provider offer a video-on-demand business rather than a print-on-demand business. Should we think that the analysis changes? We have now reached the nub of the case that the Second Circuit will have to decide, namely whether a website that enables public performance of works uploaded by users is engaging in simple storage or is taking a step beyond that as occurs, I believe, in my print on-demand hypothetical.

Stop the Beach Renourishment, Kelo, and the Future of Judicial Takings

The Supreme Court today handed down its decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, addressing the possibility that a judicial ruling might violate the terms of the Takings Caluse.  Justice Scalia wrote for four justices, concluding that there is such a thing as a judicial taking, that such a taking arises when a plaintiff can show that she was deprived of a property right that she previously possessed, and that the plaintiffs in the Florida case failed to satisfy this burden.  Justices Kennedy and Breyer each wrote separate partial concurrences, joined by Justices Sotomayor and Ginsburg, respectively, in which they expressed significant reservations about recognizing a new cause of action for a judicial taking as a general matter.  Justice Kennedy suggested that problems arising where judges took previously existing property rights away from litigants were perhaps better addressed under the Due Process Clause, and Justice Breyer said there was no need to decide now what the rule should be for figuing out what should constitute a judicial taking.  Justice Stevens recused, but the remaining eight justices agreed that the facts of the Florida dispute did not amount to a judicial taking.  Ben Barros has already posted valuable analysis of the case here, and Tony Mauro has additional thoughts about the recusal here.

I want to address one crucial legal question raised by Jerry Anderson: Namely, what happens if a common law court changes its state's property laws somewhat?  To take Jerry's example, what if a state moves from holding that only bad faith trespassers could adversely possess property to holding that the trespassers' state of mind was irrelevant?  (Many states made this shift during the 20th century.)  A landowner who loses his property under the new rule to a good-faith adverse possessor then sues, alleging a judicial taking.  Can he prevail?  More broadly, can a judicial decision holding that property presumptively owned by private party A is actually owned by private party B ever be a judicial taking?  As Jerry points out, there is language on page 10 of the slip opinion suggesting that such a decision might be a judicial taking. ("If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property.").

I believe the answer to the question of whether an adjustment of property rights as between two private parties can be a judicial taking has to be no. My argument proceeds in two steps.  First, Justice Scalia's opinion in Stop the Beach is quite clear (see pages 18-19 of the slip opinion) that the remedy for a judicial taking is not "just compensation" but rather an invalidation of the judicial decision depriving an owner of property.  

The second step has to do with another important Supreme Court takings opinion, Kelo v. City of New London.  In the Justice O'Connor dissent in Kelo, which Justice Scalia signed, the dissenters argued that absent blight the Takings Clause does not permit the government to transfer private property from private party A to private party B.  Rather, the Takings Clause permits the use of eminent domain in which the government winds up as the owner of the property or the public has substantial access rights to the property.  Thus, under the dissenting view in Kelo, the governments' takings power does not permit purely private transfers from A to B.  If the government has the power to change its adverse possession law in a manner that disadvantages A, such power must come from elsewhere.  

If you put steps one and two together you reach the following result: The state courts cannot change the rules of property as they affect private parties claiming a contested resource.  But that cannot possibly be right.  To return to Jerry's example, if it's the case that a rule making adverse possession by a private trespasser easier might amount to a judicial taking of the landowner's property, then the state courts can make no changes to its law of adverse possession.  But as Justice Scalia recognizes, the courts have been making these sorts of tweaks to property law for centuries, and the risk of such changes is a "background principle of state property law" to which all land ownership claims are subject. (See pg. 27 of the slip opinion, citing Justice Scalia's earlier opinion in Lucas.)  It is hard to see why Justice Scalia or anyone else would want the common law of property to be frozen in place with respect to doctrines like adverse possession law, landlord-tenant law, easement law, or any of the other private party-versus-private party disputes that are the bread and butter of all Property casebooks.

Cases in which the state government is depriving a private owner of property, and then claiming that the landowner never had those property rights to begin with are much more troublesome, precisely because the risk of self-dealing by the government is grave.  That isn't to say that such risks aren't present in cases where a transfer of rights from a landowner to a trespasser occurs as a result of a judicial decision - we know from Kelo, Poletown, and other cases that private parties may exert substantial control over local government decisionmaking.  But where, as in Stop the Beach, the government winds up with the property, there is no question in the minds of any of the justices that the "public use" test is satisfied and the state may therefore take the property upon paying compensation (if there's a judicial taking).  Judicial takings claims where the government, rather than a private party, is the beneficiary of the judicial decision thus present a sound structural fit with the rest of takings doctrine.  Stop the Beach, on the facts alleged by the plaintiffs, was one such case, because the government stood to benefit.  But the Court just didn't buy the plaintiffs' arguments that the Florida state courts had deviated from their earlier precedents.  If there are any bright lines to be drawn in the law of judicial takings, a divide between private-to-private transfers and private-to-public transfers is the sensible location for that line.

To summarize: The best way to make sense of Justice Scalia's plurality opinion in Stop the Beach is that judicial takings arise only in those instances in which the government now owns property that was previously held by a private party.  Precisely because there is an ancient tradition of courts readjusting the property rights of private parties involved in ownership disputes, those sorts of judicial actions are not proper vehicles for asserting that a judicial taking has occurred.