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McCloskey praises Missouri bill to loosen gun laws; prosecutor calls it the ‘Make Murder Legal Act’
Man killed when car crashes into tree in south St. Louis
Greene County Winter Road Conditions Update
Cynthia Prost leaving Arts and Education Council
Statement Of Republican Candidate For Governor Gary Rabine On J.B. Pritzker's State Of The State/budget Address
18th Annual Kids' Night At The Fabulous Fox Theatre
Two teenage boys seriously hurt in shooting in downtown St. Louis
Weekly Events Thread 1/31/21 - 2/6/22
With Stephen Breyer's Retirement, The Supreme Court Has Lost A Justice Who Was Wary Of Overly Burdensome Copyright
Whatever the (I'd argue unfortunate) politics behind Stephen Breyer's decision to retire as a Supreme Court Justice at the conclusion of this term, it is notable around here for his views on copyright. Breyer has generally been seen as the one Justice on the court most open to the idea that overly aggressive copyright policy was dangerous and potentially unconstitutional. Perhaps ironically, given that they are often lumped together on the overly simplistic "left/right" spectrum -- Justices Breyer and Ginsburg -- presented somewhat opposite ends of the copyright spectrum. Ginsburg consistently was a voice in favor of expanding copyright law to extreme degrees, while Breyer seemed much more willing to recognize that the rights of users -- including fair use -- were extremely important.
If you want to see that clearly, read Ginsburg's majority opinion in the Eldred case (on whether or not copyright term extension is constitutional) as compared to Breyer's dissent. To this day I believe that 21st century copyright law would have been so much more reasonable and so much more for the benefit of the public if Breyer had been able to convince others on the court to his views. As Breyer notes in his dissent, a copyright law that does not benefit the public should not be able to survive constitutional scrutiny:
Thus, I would find that the statute lacks the constitutionally necessary rational support (1) if the significant benefits that it bestows are private, not public; (2) if it threatens seriously to undermine the expressive values that the Copyright Clause embodies; and (3) if it cannot find justification in any significant Clause-related objective.
(As an aside, the book No Law has a very, very thorough breakdown of how the majority ruling by Justice Ginsburg in that case was just, fundamentally, objectively wrong.)
That said, Breyer wasn't -- as he was sometimes painted -- a copyleft crusader or anything. As Jonathan Band details, Breyer's views on copyright appeared to be extremely balanced -- sometimes ruling for the copyright holder, and sometimes not. Indeed, to this day, I still cannot fathom how he came to write the majority opinion in the Aereo case, which used a "looks like a duck" kind of test. In that case, the company carefully followed the letter of the law regarding copyright, and the end result was that, even by playing within the lines, because it felt like some other service, the court was fine with declaring it to be a different kind of service (even though technically it was not). We are still suffering from the impact of that case today.
So, while I didn't always think that Breyer got copyright cases correct, he was -- consistently -- much more thoughtful on copyright issues that any other Justice on today's court, and that perspective will certainly be missed.
Longtime local deejay Randy Raley back on air
St. Louis-area glass factory to close, 243 to be laid off
Second winter storm wave to bring blizzard-like conditions to the St. Louis area
Blackburn College Names Jody Sturgeon As New Dean Of Work
Supporting those Achieving Recovery through Sober Living
Beautiful view from my bedroom window
Sen. Durbin Reaffirms Support For Ukraine's Freedom To Chart Its Own Future
Biden’s Justice Dept. promised to support a strong journalist shield law. So why hasn’t it?
More than six months ago, the Department of Justice (DOJ) announced sweeping changes to its “media guidelines” — the agency’s internal rules for when and how it can spy on reporters. In a memo to all its staff, Attorney General Merrick Garland barred the surveillance of journalists who were engaged in ordinary newsgathering in all but the most extreme scenarios.
As we said when the initial announcement was made, the DOJ’s new guidelines were potentially a sea change for press freedom rights — and we called for Congress to quickly enshrine them into law. We explained how action from Congress is vital for the policy to have any teeth.
Sen. Wyden called the Justice Department's inaction 'frustrating and unacceptable.'
At the time, Garland appeared to agree. The attorney general explicitly stated the DOJ would support congressional legislation to bring the force of law to his new rules: “[T]o ensure that protections regarding the use of compulsory legal process for obtaining information from or records of members of the news media continue in succeeding Administrations,” he wrote, “the Department will support congressional legislation to embody protections in law.”
But from what we can tell, the DOJ has not lifted a finger publicly or privately in order to help get its new media rules passed by Congress since — despite the fact that multiple bills have been introduced that would do just that.
The DOJ could easily lend its support to Sen. Ron Wyden’s PRESS Act, which Freedom of the Press Foundation endorsed last year. Sen. Wyden’s bill—which was also introduced in the House by Rep. Jamie Raskin—closely hews to the language the DOJ now supposedly abides by, and it provides law enforcement narrow but legitimate exceptions in cases of emergency.
But according to Sen. Wyden himself, the DOJ has not responded to half a dozen official inquiries from his office for comment on his PRESS Act.
“The Justice Department’s failure to engage on one of the attorney general’s own priorities is extremely frustrating, and frankly unacceptable,” Sen. Wyden said in a statement released to Freedom of the Press Foundation. He continued:
"Attorney General Garland asked Congress to pass a journalist shield law just a few days before I introduced the Press Act to put protections similar to DOJ’s current policies into black letter law. My office reached out to the Justice Department half-a-dozen times over the past six months to work together on my bill with Rep. Raskin, but has gotten zero response."
Through the DOJ’s press office, we also asked the agency’s legislative affairs team whether they have weighed in publicly or privately on any bill since Garland’s promise six months ago. As of press time, we have not heard back either.
Why is this step so important? As it stands, the DOJ media policy is nearly unenforceable; if the DOJ breaks its word, there is no clear avenue to accountability, since the guidelines are only internal to the agency. Indeed, the DOJ has been accused of breaking previous iterations of its own media policy many times over the years. The rules can also be changed at any time by the current attorney general, or the next one, with just a flick of the pen. And the DOJ’s endorsement of any bill could mean the difference between it sailing through Congress and languishing in committee indefinitely.
The DOJ’s internal media policy changes were certainly a welcome break from both the Trump and Obama administrations, where secret and invasive surveillance of journalists became increasingly prevalent. But as of now, it's a half-measure — one that can be taken away from us at any time.
Lest our caution be interpreted as undue cynicism: we’ve seen this movie before — and even played a role in it.
In 2009, to great fanfare, Obama’s Justice Department released new internal guidelines for the Freedom of Information Act (FOIA), as part of President Obama's promise to be the most transparent administration ever. But when Congress tried to pass DOJ’s guidelines — almost word for word! — into law, DOJ vociferously opposed the bill in private. It was only after our successful FOIA lawsuit exposing the DOJ’s hypocrisy that the agency was forced to drop its protest to its own rules, and Congress finally passed them.
We hope this time is different, but we fear it is not. The DOJ needs to follow through on its promise, and it can start by immediately endorsing the PRESS Act and helping the bill make its way through Congress.