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Speaking of selective enforcement...

The bill of rights was not incorporated untill much after it was passed. meaning that unless it was a federal matter (back then there was not a whole lot that was federal) then you did not enjoy the rights and liberties outlined in the bill of rights. for example:
Freedom of speech 1925 Gitlow v. New York
Freedom of Press 1931 Near v. Minnesota
It is possible that these dicisions by the supreme court could be reversed. Although very unlikely, if any right to privacy which is not outlined in the BoR could very conceiveably get overturned.

Well that's all well and good, except that the Constitution does not allow for any exceptions,

Sure it does. The Constitution provides for judicial review...uh...let me find a cite in the text. Wait a minute...um...go ask Chief Justice Marshall. The Supreme Court certainly wouldn't make anything up, would it?

and in making those exceptions, Congress, the states, and the courts are essentially acting on authority that hasn't been delegated to them by the people.

The people delegated authority for judicial review. Errr...or at least CJ Marshall (and a majority of Supremes) thought so. In any case, a Constitution without judicial review is meaningless. Marshall had it right, or at least as right as it could be under the framework established by the Constitution. It has certainly worked reasonably well.

Laws like that are dangerous, not because of their direct effects (very few people outside the tabloid publishing industry would assert that people should have the right to blatantly lie about each other), but because they send the message that the Constitution is not, in fact, the supreme law of the land.

That is an overbroad reading of things. The US Constitution is the supreme law of the land, but it has its limitations as a "law of the land." It is an enabling (and limiting) document rather than a code, such as exists in some European countries. Enabling documents have to have some sort of limits, and a mechanism for adjudicating those limits. You touch on one of the problems with an enabling provision below (the Commerce Clause).

Besides, at its most naked, constitutional law is not about the original document or the intent of the framers. As Judge Woodside of Pennsylvania succintly put it, "a constitution is not what the words in it mean to a person reading it, nor what the framers intended, nor even what the courts have held, but what a majority of the current justices on the court of highest jurisdiction think it should mean." A Chief Justice of the Pennsylvania Supreme Court once stated at oral argument that, "[i]f we think it ought to be done, we'll find a way to do it." Woodside, Robert, Pennsylvania Constitutional Law at 608. Notably, Judge Woodside stated that as a fact, not as an endorsement.

While that is a frightening display of naked power, it is probably a realistic assessment. It also has worked, more or less, for over two hundred years. There have been terrible situations where the courts have failed us, such as in Plessy v. Ferguson and in the Dred Scott case. There have been cases where the courts have done the "right" thing without a sufficient basis in law (Brown v. Board of Education and Griswold v. Connecticut), but judicial review is really the last, best bulwark against tyranny by democracy. Getting rid of it would, IMHO, make things worse than they would be if judicial review did not exist and if it were up to Congress and the Executive to determine if things are constitutional.

Of course, libel laws aren't even close to being the worst offenses in that manner.

No argument there.

All the crap that Congress passes under the guise of "regulating interstate commerce" is ridiculous.

I agree. One of the most egregious cases was Wickard v. Filburn, which is still good law. A summary can be found here. I think it is ironic that the current Supremes are rolling back the power of Congress under the aegis of federalism (see US v. Lopez) while at the same time they are giving the states broader authority in the criminal realm (do we even have a 4th Amendment anymore?). The irony lies in the fact that the current majority of the Supremes (depicted as arch-conservatives) are probably doing more to limit federal power than any batch since the mid 1800s

Well that's all well and good, except that the Constitution does not allow for any exceptions,

Sure it does. The Constitution provides for judicial review...uh...let me find a cite in the text. Wait a minute...um...go ask Chief Justice Marshall. The Supreme Court certainly wouldn't make anything up, would it?

and in making those exceptions, Congress, the states, and the courts are essentially acting on authority that hasn't been delegated to them by the people.

The people delegated authority for judicial review. Errr...or at least CJ Marshall (and a majority of Supremes) thought so. In any case, a Constitution without judicial review is meaningless. Marshall had it right, or at least as right as it could be under the framework established by the Constitution. It has certainly worked reasonably well.

Laws like that are dangerous, not because of their direct effects (very few people outside the tabloid publishing industry would assert that people should have the right to blatantly lie about each other), but because they send the message that the Constitution is not, in fact, the supreme law of the land.

That is an overbroad reading of things. The US Constitution is the supreme law of the land, but it has its limitations as a "law of the land." It is an enabling (and limiting) document rather than a code, such as exists in some European countries. Enabling documents have to have some sort of limits, and a mechanism for adjudicating those limits. You touch on one of the problems with an enabling provision below (the Commerce Clause).

Besides, at its most naked, constitutional law is not about the original document or the intent of the framers. As Judge Woodside of Pennsylvania succintly put it, "a constitution is not what the words in it mean to a person reading it, nor what the framers intended, nor even what the courts have held, but what a majority of the current justices on the court of highest jurisdiction think it should mean." A Chief Justice of the Pennsylvania Supreme Court once stated at oral argument that, "[i]f we think it ought to be done, we'll find a way to do it." Woodside, Robert, Pennsylvania Constitutional Law at 608. Notably, Judge Woodside stated that as a fact, not as an endorsement.

While that is a frightening display of naked power, it is probably a realistic assessment. It also has worked, more or less, for over two hundred years. There have been terrible situations where the courts have failed us, such as in Plessy v. Ferguson and in the Dred Scott case. There have been cases where the courts have done the "right" thing without a sufficient basis in law (Brown v. Board of Education and Griswold v. Connecticut), but judicial review is really the last, best bulwark against tyranny by democracy. Getting rid of it would, IMHO, make things worse than they would be if judicial review did not exist and if it were up to Congress and the Executive to determine if things are constitutional.

Of course, libel laws aren't even close to being the worst offenses in that manner.

No argument there.

All the crap that Congress passes under the guise of "regulating interstate commerce" is ridiculous.

I agree. One of the most egregious cases was Wickard v. Filburn, which is still good law. A summary can be found here. I think it is ironic that the current Supremes are rolling back the power of Congress under the aegis of federalism (see US v. Lopez) while at the same time they are giving the states broader authority in the criminal realm (do we even have a 4th Amendment anymore?). The irony lies in the fact that the current majority of the Supremes (depicted as arch-conservatives) are probably doing more to limit federal power than any batch since the mid 1800s

The Supreme Court has heard no case in which either the Federal Govt or the states have attempted to prosecute a theater-fire-yeller. There are no laws, there are no precedents. Justices tend to become off-topic in their opinions (sort of like this thread), but what Holmes said was no Footnote Four that has had any post-ruling influence. And by the way, in pretty much every subsequent free speech case (other than DMCA-affirming cases like Eldred v Ashcroft) and the lower courts' encounter with Emmanuel Goldstein's DeCSS crusade, the Supreme Court has opted to strengthen the protection of free speech.

So, as I said, it is legal to yell fire in a theater as it does not violate any law (a law which does not exist because what it would be prohibiting does not pose a direct and imminent threat to the Federal Government.

But I invite you to test it out -- maybe you'll get famous.

</ConLaw rant>

The right to travel is a part of the `liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, . . . may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.

You make a lot of assertions, but you back them up with nothing

Which ones do you dispute?

I refuted your claim that "Fair use is a very narrow allowance to use small portions of copyright works subject to severe limitations, no more" with your own refference to the Betamax decision. If you need a link, fine, here's a link.

The court said:
"The District Court denied all relief, holding that the noncommercial home use recording of material broadcast over the public airwaves was a fair use of copyrighted works and did not constitute copyright infringement."

Obviously recoring a movie or TV show involves recording an entire work. The court said it was fair use. The narrow definition you gave for fair use is clearly over-restrictive.

You read the Title 17Chapter 1 Section 107 as if the four items listed must ALL be met:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

However the law actually sayd "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include ". They are merely factors to consider. Moreover it is not an exhaustive list. The factors to consider merely include those four examples. Judges routinely include any number of other factors in the evaluation. One could conceivably qaulify for fair use while "failing" on all four listed factors. The Pretty Woman case comes pretty close to failing all four. The decision that it was fair use was reached largely on a non-listed consideration, namely that it was "transformative".

I also said "What fair use applies what it does mean is that you are completely immune to all copyright law rules and restrictions". Well, according to Title 17 Chapter 1 Section 107:

"the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

If a use is fair use then it is not an infringement of copyright. You have blanket immunity from all infringment claims. Copyright rules and restrictions are only enforced through upholding infringment claims, therefore you are immune from copyright rules and restrictions.

Also note that that quote includes much the same list of examples of fair use as I gave, and it specificly confirms my statement of multiple copies for classroom use.

I only know of two copyright court cases reffering to educational fair use. Here's one link, and I could probably dig up the other if you want. While both cases were decided as infringment, neither case was actually against teachers or students. Both were against commercial copyshops (Kinko's and someone else). They were creating copies for a fee and selling them for class use. The commercial copyshop cannot borrow someone else's fair use right to create copies.

"The use of the Kinko's packets, in the hands of the students, was no doubt educational. However, the use in the hands of Kinko's employees is commercial.

The court specificly added a footnote stating that the ruling would NOT have applied had the teacher/students gone in, paid for use of the copiers, and created the c

The United States Supreme Court doesn't think so. The case United States v. Wong-Wing is explicit and clear in the idea that non-citizens are still protected by the US Constitution.

The Geneva Convention(s), apply only to POWs and other captives taken during a war. Incidently, the United States has failed to declare war, both on Iraq and on Afghanistan. Conseuently, it is anyone's guess as to weather or not Geneva applies. Further, the United States has used this technicality to justify the conditions at Gitmo (i.e. since Geneve doesn't apply we don't have to meet Geneva standards for prisioner treatment).

For example, I'd imagine that's why we don't get to listen in on the Supreme Court's discussions; that's a basis for our democratic process, but we don't watch it, we aren't allowed to (no big fuss about that either).


We don't?

You mean like this? As you've noted, the moderation system is not exactly perfect...useless comments like the one in the link don't always get modded down, but they rarely get modded up. Yes, I'm sure I miss a fair amount of intelligent discussion by not always reading everything that gets posted to every article, but hey, that's life - there's no sense getting bent out of shape about something like this because (as far as I can tell), it's unavoidable to some extent.

Second of all, the post was already modded to 1 when he replied.

Sorry, didn't notice. My bad.

Finally, aren't you the guy I got pissed at in the first place?

Well, yes, but I'm starting to get the impression that this distinction doesn't uniquely identify me....

If you want to post why not do the research first? That's what google is for.

Because knowing about google does not make one an expert about privacy law in the US - it's very hard to get a really complete picture of something as complex as that by just googling for it. One could go and find out how wiretapping was handled in the past, but to do a really good job of it is a lot more work than is warranted by a silly slashdot post - my feeling is that to do it really well you'd need to be a lawyer. (I'm not, are you?)

I mean, come on, man, I can play the google game too. A few short minutes googling&reading will show that the fight over citizens' rights to privacy goes back much farther than the 1968 act of congress that you mentioned in one of your earlier posts. It goes back at least as far as 1928, when the US supreme court considered the case of Olmstead v. United States, which dealt with a bootlegger who was convicted based (at least in part) on wiretap information. So I found an earlier link, does that mean I win? Of course not - First of all, Olmstead v. United States was overturned by Katz v. United States in 1967, but in my mind theres a bigger issue at stake here: it doesn't matter. I'm under the impression that the patriot act is a little bit more relevant than something that happened in 1928 or even earlier because it's new. We are probably still just starting to feel its effects, and it is new enough and not-well-established enough that people can still argue against it and have some hope that it will be overturned by the Supreme Court or some future act of Congress. So apart from the fact that it's clearly good to have a solid understanding of the history of an issue, why should I bother digging up links to information that is (in some ways) beside the point?

You mean like this? As you've noted, the moderation system is not exactly perfect...useless comments like the one in the link don't always get modded down, but they rarely get modded up. Yes, I'm sure I miss a fair amount of intelligent discussion by not always reading everything that gets posted to every article, but hey, that's life - there's no sense getting bent out of shape about something like this because (as far as I can tell), it's unavoidable to some extent.

Second of all, the post was already modded to 1 when he replied.

Sorry, didn't notice. My bad.

Finally, aren't you the guy I got pissed at in the first place?

Well, yes, but I'm starting to get the impression that this distinction doesn't uniquely identify me....

If you want to post why not do the research first? That's what google is for.

Because knowing about google does not make one an expert about privacy law in the US - it's very hard to get a really complete picture of something as complex as that by just googling for it. One could go and find out how wiretapping was handled in the past, but to do a really good job of it is a lot more work than is warranted by a silly slashdot post - my feeling is that to do it really well you'd need to be a lawyer. (I'm not, are you?)

I mean, come on, man, I can play the google game too. A few short minutes googling&reading will show that the fight over citizens' rights to privacy goes back much farther than the 1968 act of congress that you mentioned in one of your earlier posts. It goes back at least as far as 1928, when the US supreme court considered the case of Olmstead v. United States, which dealt with a bootlegger who was convicted based (at least in part) on wiretap information. So I found an earlier link, does that mean I win? Of course not - First of all, Olmstead v. United States was overturned by Katz v. United States in 1967, but in my mind theres a bigger issue at stake here: it doesn't matter. I'm under the impression that the patriot act is a little bit more relevant than something that happened in 1928 or even earlier because it's new. We are probably still just starting to feel its effects, and it is new enough and not-well-established enough that people can still argue against it and have some hope that it will be overturned by the Supreme Court or some future act of Congress. So apart from the fact that it's clearly good to have a solid understanding of the history of an issue, why should I bother digging up links to information that is (in some ways) beside the point?

1) Commercial speech is not a protected form of free speech as Nike just recently found out.

False. It is protected in a different manner.

some links.

2) The California law would probably be difficult to enforce against unsolicited, non-commercial (e.g., political, religeous, charitable, etc.) e-mail for the same reason. These are generally protected speech. I would be very surprised if they didn't allow this loophole.

Again, it will depend. Even the exceptions are still regulated with respect to suitable calling hours, misrepresentation, et cetera.

In these cases, it is not as simple as a pamphlet. With e-mail and phone calls you use (and sometimes abuse) someone else's resources to deliver a message. In a sense, that message is the "freedom of speech" part and the means of transmission (spam, commercial, billboard, mail) is where the battlelines get most often drawn.

Read the Diamond v. Diehr decision yourself if you don't believe me.

From this discussion of Diamond v Diehr, the answer does not support your contention. "The Diehr court left undecided the question of whether computer programs standing by themselves could ever be patentable."

I have not found citations for The last word from the US Supreme Court is that software is not patentable. as you state. Can you provide other citations that support your claim? Diamond v Diehr doesn't.

There is In Re Alappat, which is what is generally used when refering to the patentablity of software, but that is an opinion by a Federal Circuit Court of Appeals, not the Supreme Court.

From the lawfirm that argued the Alappat appeal:

"The decision in In Re Alappat No. 92-1381 (Fed. Cir. July 29, 1994) (en banc), clearly paves the way for the patenting of inventions that can be implemented in either hardware or
software"

and

"overturns a long standing Patent Office policy of denying patents on inventions that could be functionally implemented in software."

and

"The Patent Office has not yet determined whether to seek review by the United States Supreme Court. See Bart Ziegler, Court Upholds Patent for the Way Software Interacts With Computer, Wall Street Journal, August 8, 1994, at B4."

Damn, there go my mod points!

If Microsoft appeals to the Supreme Court, they can only do so if they have some sort of Constitutional argument.

Uh, no. The Supremes can take any damn case they want (and it only takes four votes to do so). They get to decide what the "compelling reasons" are. Granted, most cases people know about (and that have a big impact) are constitutional in nature, but you can easily find examples of cases that are not, such as United States v. Cleveland Indians Baseball Co.

I do believe that you are confusing the legislature with the judiciary.

Nope. The legistature is entirely subservient to the constitution and the judiciary's power to interpert it. The legislature has no ability to meddle with the first amendment except through the amendment process.

In a 6-to-3 decision written by Justice William J. Brennan, Jr., the Court held that obscenity was not "within the area of constitutionally protected speech or press." ...Brennan later reversed his position on this issue in Miller v. California (1973).

As far as I have found that is the first case of "obscenity" being carved out and denied first amendment protection.

Yeah, a legislature passed the law in question first, but before that supreme court ruling the law was clearly unconstitutional.

-

It wasn't some guy suddenly deciding to patent software.

Yeah, it was.

First of all note that Diamond v. Diehr was a 5 to 4 decision with strongly dissenting opinion. I could give links explaining why Diamond v. Diehr was in error, but lets ignore the dissent and assume the decision was entirely correct.

The question before the court was "Can one patent a machine that transforms materials physically under the control of a programmed computer?"

The court ruled that: "When a claim containing a mathematical formula implements or applies the formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e. g., transforming or reducing an article to a different state or thing), then the claim satisfies 101's requirements."

They further state "Transformation and reduction of an article `to a different state or thing' is the clue to the patentability of a process claim".

The court quoted another case and affirmed that "a mathematical algorithm must be assumed to be within the "prior art", though they did not agree with the way Diamond tried to apply it. All software is in fact nothing more than a mathematical algorithm.

Therefore Diamond v. Diehr upheld that ALL POSSIBLE SOFTWARE AUTOMATICALLY FALLS INTO PRIOR ART.

The head of the patent office latched onto a few specific comments in this decision and ignored the rest of what the court said. He directly violated their specific warning that "insignificant postsolution activity will not transform an unpatentable principle into a patentable process. Ibid. 14 To hold otherwise would allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection."

The entire patent granting process was overhauled in in exactly the manner the court warned against. Now a patent can be granted on a wordprocessor.

Most quotes came from here, and some from here.

-

One of the lease publicized cases in the history of the Supreme Court cases is Loving v. Virginia.

If you are truly interested in history and how far we have come I recommend that you listen to: Loving v. Virginia

In the future, some more context would be good.

The Loving v. Virginia decision overturned a number of a laws prohibiting interracial marriage. Here is a summary of Loving v. Virginia with the Supreme Court's opinion.

Bush v. Gore is online as SMIL. The MP3s released here are only a small subset of the complete Oyez collection. We're working to release them all, but I'm essentially a single man show here with the MP3's, so it may take some time. If you want to see a particular audio file released, send us a message via our feedback form.

In the meantime, visit Bush v. Gore. The audio is under the "Audio" link, and requires the latest version of Real Player.

-Chris, Oyez Technical Lead

Bush v. Gore is online as SMIL. The MP3s released here are only a small subset of the complete Oyez collection. We're working to release them all, but I'm essentially a single man show here with the MP3's, so it may take some time. If you want to see a particular audio file released, send us a message via our feedback form.

In the meantime, visit Bush v. Gore. The audio is under the "Audio" link, and requires the latest version of Real Player.

-Chris, Oyez Technical Lead

The US Supreme Court's multimedia site, Oyez.org

While they provide Supreme Court multimedia, they are not an official Supreme Court site.

One of the lease publicized cases in the history of the Supreme Court cases is Loving v. Virginia.

If you are truly interested in history and how far we have come I recommend that you listen to: Loving v. Virginia