1) Reporter’s Privilege:Miller v. U.S.; Cooper and Time Magazine v. U.S. The Court today deined certiorari to these two cases, dealing with the reporter’s privilege and the Valerie Plame affair. By denying cert, the lower court’s contempt rulings against reporters Judith Miller and Matthew Cooper stand and both will now face eighteen months in prison for refusing to testify in front of the grand jury investigating the Plame Affair.

Now, in a former life, I worked on media libel defense, so I have strong sympathies for the reporter’s privilege and the MLRC. However, in these circumstances, where the law that has been broken is unlawful disclosure of an intelligence officer, there is no way to prosecute unless the person to whom the disclosure was made is compelled to testify about their source. As a result, in order to protect our brave intelligence officers, the privilege really should be void here.

On a more political note, I hope Bob Novak is happy– two other reporters (not that I have much sympathy for Chalabi-megaphone Miller) are going to jail on his behalf.

2. Ten Commandments: McCreary County v. ACLU of Kentucky and Van Orden v. Perry. Split rulings from the Court today, allowing the display of the Ten Commandments in a Texas courthouse public building (6-3), but prohibiting a second display in a Kentucky courthouse (5-4). The point on which these decisions hinged is apparently the extent to which the displays endorse religion. If portrayed neutrally (such as is the case in the Supreme Court’s own chambers), the display is okay.

At this point, I am really ‘meh’ about this issue. As you might imagine, I am a big supporter of the separation. Sure, there is some validity that the TC have played a role in the development of the Rule of Law. Of course, the TC wouldn’t exist without the Hammurabi code, but who’s counting 7/10 commandments. Oh yeah, and there is the little problem of which TC to use. Or whatever. But as far as the seperation issues go, I would think Federal government funding of faith-based initiatives would be a little higher on the priority list on both sides of the issue. Anyway, I think the Court did okay here– as expected.

3. No retirement announcement! Guess the fight for nominations will hold for another day…

4. Cable 0wnz0r Phone: National Cable & Telecommunications Association v. Brand X and FCC v. Brand X. Wow, the phone companies got hosed yet again today. The Court held 6-3 that the rules requiring telecom companies to open their lines to competitors do not apply to the cable companies, thus allowing that sector to continue its continued assault on the telecom industry. Cable companies can compete in the same services as the telecoms, but without all the restrictions imposed by the FCC. Score one more for TWC and Comcast. Telecom better get the Telecommunications Act re-written pronto.

5. Restraining Orders: Town of Castle Rock v. Gonzales. If you are protected by a restraining order, you have no enforceable interest in your protection. I.E., if you get hurt while covered by the restraining order, you can’t sue the city for damages. Duh. I’ll be interested in what the dissent had to say in this 7-2 decision. UPDATE: Okay, after reading this over at the talent show, I understand the downsides of this ruling, namely that, in this case, the local government did not enforce the restraining order and the to-be-restrained murdered everyone. Clearly a problem when law enforcement doesn’t enforce the laws. However, I suspect that this case was decided on sovereign immunity grounds. UPDATE 2: First rule of Supreme Court rulings: You shouldn’t talk about them until you read them. Second rule of Supreme Court rulings: The Justices will rule on ANY procedural/technical point they can before dealing with anything substantive. This ruling simply stated that there were no federal bases on which the plaintiff could sue the state government.

6. The Main Event: MGM v. Grokster. Wow. We lost this one big. Even bigger than the Mickey Mouse Copyright Extension Act aka SBCTEA (sorry Prof. Lessig). Holding 9-0 against Grokster and Streamcast, the court held that: “We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”

Ugh. Where to start on this one. Well, if you think the software you are currently developing could be used for infringing copyrights, you may want to read this opinion over first. While it appears that the Court is attempting to create some standard based on an affirmative action here (as would be required for inducement to commit copyright infringement, the legal theory involved in this case), it is yet to be seen what will be necessary to show such a standard. Could just be that you are distributing it to others knowing that it could be an infringing tool. This would be the worse case evisceration of the Betamax standard. UPDATE: Many discussions throughout the blogosphere today. Most point out that so long as no affirmative evidence of intent exist (such as emails/marketing discussing the potential uses for infringing purposes), the services should be in the clear. In addition, the losing parties have stated that they still believe they can prevail in the lower court at this standard. As always, however, it appears that the Court has simply muddied the standards and potentially added a new theory of liability…

For further, better, and probably more reasoned coverage of todays rulings, head over to SCOTUSblog. Opinions can be found (for now) here.

* Updates will continuein this post as I haven’t yet been able to read the actual text of the decisions… stupid actual job.

Monday, June 27th, 2005 @ 10:54 am IP, Law
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