A DISCUSSION OF LAW AND JOURNALISM

Playing Favorites

By Leah Braukman

Gerald Magliocca of Concurring Opinions recently dedicated a blog entry to his favorite U.S. Supreme Court opinion, the 1970 admiralty law case Moragne v. States Marine Lines. The case was the first to recognize a wrongful death action in maritime law, overturned 84 years of precedent, and explained the history of the relevant law, from the ‘felony-merger’ doctrine in England to the Death on the High Seas Act. “Take a look sometime”, urged Mr. Magliocca. “You’ll be glad you did.”

Inspired by the notion of having an all time favorite Supreme Court opinion, I contacted a few of New York Law School’s professors to find out which Supreme Court opinion was tops in their personal Hall of Fame – and I was fascinated by their answers.

Drumroll, please……

Professor Nadine Strossen chose West Virginia State Board of Education v. Barnette of 1943. When asked why she so favors this particular case, Professor Strossen smiled and shot back, “Where to start?”  

According to this former president of the American Civil Liberties Union, Barnette is “the single most eloquent, enduring, and inspiring explanation of the fundamental importance…of individual freedom in our constitutional system.” At issue in this case was whether the Board of Education could require schoolchildren, specifically Jehovah’s Witnesses, to salute to the flag and recite a pledge of allegiance. The Court held it could not.

But instead of merely addressing the narrow question before it, the Court took a more expansive approach. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” This case wasn’t decided solely on the basis of religious liberty, but rather, Professor Strossen explained, about freedom generally…even freedom of conscience; a phrase that doesn’t appear anywhere in the Constitution

To give the case context, Professor Strossen pointed out that this case was decided at a time when Jehovah’s Witnesses were seen as a cult, and not very well understood. It was also decided during World War II, an era of national patriotic fervor, and refusing to salute to the American flag was seen as suspect. The Barnette Court declared that requiring schoolchildren to salute and pledge to a flag “invades the sphere of intellect and spirit” which should be free from “all official control.”

In explaining the case to me, Professor Strossen said that all of Constitutional Law could be taught with this one decision.

Adjunct Professor Ruth Hochberger, who specializes in media law and teaches “Legal Landmines for Reporters”, chose a case from 1966 that she described as “one of the starkest examples of cases that must resolve a conflict between two equal amendments to the constitution,”

In Sheppard v. Maxwell, the First Amendment right to freedom of the press and the Sixth Amendment right to an impartial jury came head to head as the Court held that a man, convicted of murdering his pregnant wife, had been denied a fair trial because of the extreme pretrial publicity and “carnival-like atmosphere” during his trial. At the trial level, reporters had filled not only the benches in the courtroom, but all the vacant rooms on the floor. One television station had set up temporary broadcasting facilities in an area adjacent to the jury deliberation room. And jurors even had access to media reports that included excerpts from sidebar conversations between the judge and attorneys.

But what’s most fascinating about this case, explained the professor with gusto, is that the opinion focuses not on the “egregious conduct of the press”, but on the judge’s inability to control the courtroom. Throughout the trial, the judge continuously denied defense counsel’s requests to question the jury about their outside knowledge of the case, and when jurors were sequestered for deliberations, the court didn’t even prevent them from calling home.

As a journalist and a lawyer, Professor Hochberger appreciated how the Sheppard Court struck a delicate balance between what Justice Clark describes as giving the press “a free hand” in covering trials while maintaining “the integrity of the trial.”

Professor Arthur Leonard, editor of Lesbian/Gay Law Notes and co-author of Sexuality Law, spoke to me for almost an hour (and I could have talked with him for hours more) about his favorite opinion, Lawrence v. Texas, which in 2003 struck down a Texas sodomy law that prohibited persons of the same sex from engaging in certain sexual acts. Lawrence overruled “one of the most harmful Supreme Court decisions in lesbian and gay law,” Bowers v. Hardwick, a case Professor Leonard was present for when argued before the Court in 1986. In Hardwick, the Court upheld a Georgia sodomy law that made it outlawed certain sexual activities for everyone, same-sex or not.

It took nearly two decades, but in a 6-3 decision, the Lawrence Court ruled that “[Hardwick] was not correct when it was decided, and…is not correct today.”

Lawrence laid the groundwork for many advances in gay rights, including the demise of “Don’t Ask, Don’t Tell,” the policy that banned openly gay Americans from serving in the military.  And the day before our meeting, the Ninth Circuit Court of Appeals struck down Proposition 8, an amendment to California’s Constitution that made same-sex marriage illegal in that state. Though the Court relied heavily on another Supreme Court case, it did not forget to cite to Lawrence, the case that started the ball rolling for gay rights.

Professor James Grimmelmann, aka Master of all things Intellectual Property, chose a classic from the Supreme Court collection of copyright cases, Feist v. Rural. To him this 1991 case, about the seemingly narrow issue of whether phonebooks can be copyrighted, orients copyright law away from effort (how much time and energy an author puts into his work) and towards originality and creative expression. And in holding that only the original elements of factual compilations (such as phonebooks) are eligible for copyright protection, Professor Grimmelmann says, Justice O’Connor “laid the groundwork for American copyright law.”

The decision is an important one in the computer age, because a lot of work is mechanical, rote, and requires effort, but is not creative and, thanks to Feist, is off limits for copyright. Is denying copyright protection to certain compilations unfair? As Justice O’Connor put it: “The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts’…This is neither unfair nor unfortunate. It is the means by which copyright advances…science and art.” Professor Grimmelmann admires the opinion for its content and hails it as the “perfect piece of rhetoric!”

Professor Deborah Archer, an expert in civil rights law and racial discrimination law, votes for South Carolina v. Katzenbach. After the Voting Rights Act of 1965, this decision “changed the face of our electoral system.”

Before the 1965 Act, many southern states were inventing new ways to keep African Americans away from the polls. And when African Americans challenged a discriminatory voting procedure, states would craft another way to deny them access to the ballad. That’s when Congress responded with the Act, and “tried to get ahead of the game.”

None too pleased; South Carolina challenged the constitutionality of certain provisions, including those prohibiting states from using literacy tests as a prerequisite to voting. Another major sticking point was Section 5, which singled out certain states like Alabama, Alaska, Georgia, Louisiana, Mississippi, Virginia, as well as South Carolina, and certain counties in North Carolina, Arizona, Hawaii, and Idaho that would not be allowed to adopt new voting procedures unless they are pre-approved by the United States Attorney General or reviewed after the United States District Court for the District of Columbia hears the case. The Katzenbach Court upheld each of the challenged provisions of the Act so that in Chief Justice Warren’s words, “[w]e may finally look forward to the day when truly ‘the right…to vote shall not be denied or abridged…by any State on account of race, color, or previous condition of servitude.’”

Periodically, Section 5 expires, and each time, must be renewed. After the latest renewal in 2006, Shelby County, Alabama sued arguing that the requirements (in effect until 2031) are burdensome and exceedingly broad. In 2010, the District of Columbia district court upheld the statute, but it was appealed a few weeks ago. No matter the decision, it will likely make its way up to the Supreme Court.

Perhaps Professor Archer treasures Katzenbach all the more because of the continuing need to fight for what it stands for.

So there you have it, LASIS readers.

A constitutional law case on steroids. A battle of rights between free press v. fair trial. A groundbreaking gay rights case. A gem of a copyright case. A voting discrimination case that asks us to fight to keep it alive.

All worthy contenders.

Do you have a favorite Supreme Court case? We’d love to hear from you.

Comments

1 Comment »

One Response

  1. Spencer says:

    No takers for Marbury v. Madison?

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