The Week of April 11, 2021: On This Day in SCOTUS History
This week we look at the first patent of a life form, one of the worst holdings in SCOTUS history (Carnival Cruise Line), an execution in Virginia that defied the World Court, and the Court’s ruling on virtual or simulated child pornography.
1925, April 14
First Radio Broadcast of an MLB Game
WGN became the first radio station to broadcast a regular season major league baseball game. The Chicago Cubs vs the Pittsburgh Pirates. The Cubs won 8–2.
I know, it has nothing to do with the Supreme Court, but I’m a lifelong Cubs fan who grew up listening to WGN, and it’s my article and I can do what I want.
1988, April 11
First Patent of a Life Form
On this day, the U.S. Patent and Trademark Office issued, to Harvard University, patent №7,736,866 for ‘’transgenic nonhuman mammals’’. In other words, a genetically altered mouse. It was the first time a patent had ever been issued for a life form.
Scientists had isolated a gene that causes cancer in humans and other mammals. This gene was injected into fertilized mouse eggs resulting in mice that could be used for the study of how genes contribute to cancer.
A New York Times article from that time does a decent job of outlining the benefits and issues with this patent.
“The announcement elated researchers and biotechnology industry executives who said it would attract more investments for research and lead to safer and more effective biological inventions in medicine, agriculture, forestry and other industries. . . . In 1980 the Supreme Court ruled that scientists could patent genetically altered microorganisms. A year ago the Patent Office announced that it would allow inventors to patent new forms of animal life created by gene-splicing and other biological technologies.”
Some in Congress felt, however, that there should have been hearings on the matter before this was allowed to go forward. What do you think?
1991, April 17
Court Upholds Validity of Forum Selection Clauses — One of the Worst Holdings in SCOTUS History
Facts & Procedure
A Washington State couple, the Shutes, boarded a cruise in California and suffered an injury in international waters off the coast of Mexico. The ticket included a clause designating Florida as the forum for dispute resolution.
A forum selection clause is a contract clause that dictates where a case may be filed and decided. These clauses provide what court will have jurisdiction to hear the case, and the venue or physical location where the hearing will take place.
The Shutes filed in Washington state (not Florida). The cruise line filed for Summary Judgement (rejection of the suit on technical grounds). The Court of Appeals rejected the forum clause because it was not “freely bargained for,” and because its enforcement would operate to deprive the Shutes of their day in court in light of evidence indicating that they were physically and financially incapable of pursuing the litigation in Florida.
Analysis
I’m sorry, this decision is so screwed, and is so egregiously and historically bad that I can’t even be bothered with IRAC for this one. So, I’m just going straight into analysis.
Prior to Carnival Cruise Line, precedent was to determine whether the defendant had “sufficient ties” to or “minimum contacts” with the state to make the forum “reasonable and just” — whether those ties put the defendant “within reach” of the plaintiff forum’s jurisdiction — such that the traditional due process notions of “fair play and substantial justice” are satisfied. The choice of forum, in other words, favors the plaintiff and it’s the burden of the defendant to prove that it’s not reasonable. In this respect, for example, International Shoe Co. v. Washington,326 U.S. 310 (1945) decided for the plaintiff, while World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) decided for the defendant, but in both cases the test was applied, albeit with an evolving criteria of what it means to have “contact” in the state, with a “sliding scale” analysis being introduced later.
But then, in Carnival Cruise Line, the Court completely abandons any idea of presence or contact or bargain or fair play, and replaces it with a theory of contractual consent. The ticket included a clause that said that in the event of a dispute the forum would be in Florida. By buying the ticket, the customer consents to this forum. The choice of forum is no longer with the plaintiff, and the multinational corporation no longer has the burden to prove the plaintiff’s forum selection is unreasonable. The forum essentially becomes mandatory and nonnegotiable and with really minimal notice.
The Court here admits in the opinion that forum selection clauses are “not historically favored,” but then they turn around and take the side of the corporation against all precedent. When we look back and try to figure out why big business seems to hold all the cards when it comes to law suits, etc., this is one of the early cases that led us down that path. Just awful.
The attached video, courtesy of RBCraswell, puts this case into a song! And it’s REALLY GOOD! Check it out and hit the like button. Very impressive.
1998, April 14
The State of Virginia Defies the International Court of Justice, Executes Paraguayan for Murder
Facts & Procedure:
Angel Breard (yes, that spelling is correct), a 32-year-old man from Paraguay, was convicted in 1992 of the attempted rape and murder of an Arlington, VA woman. (He initially denied it, but then confessed on the stand saying that he had done it due to a Satanic curse placed on him by his father-in-law.) He was sentenced for execution.
Breard filed a motion for habeas relief (a claim of unlawful detention) in Federal District Court, claiming that the state of Virginia had violated the Vienna Convention on Consular Relations by failing to inform him, as a foreign national, that he had a right to talk to his consulate after his arrest. The federal court said he procedurally defaulted by failing to make the claim in State court. The Fourth Circuit, on appeal, agreed. The Republic of Paraguay filed a separate suit stating that their rights as a country under the Convention had been violated, as well as a claim under 42 U. S. C. § 1983 Civil Action for Deprivation of Rights under the Constitution.
The federal court concluded that “it lacked subject-matter jurisdiction because Paraguay was not alleging a continuing violation of federal law and therefore could not bring its claims within the Eleventh Amendment immunity exception.” The Fourth Circuit affirmed.
The Republic of Paraguay also filed with the International Court of Justice (ICJ). The ICJ in turn requested that Breard not be executed pending a final decision in the matter.
Issue
Is the Vienna Convention, as the “supreme law of the land,” trump the procedural default doctrine, thus invoking a federal court hearing?
Rule
Absent a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State.
Assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Claims not so raised are defaulted.
The Vienna Convention On Consular Relations, adopted in 1963, is an international treaty that defines a framework for consular relations between sovereign states. Article 36 of the Convention dictates that foreign nationals who are arrested or detained may request that their embassy or consulate be notified, and that the consular offices shall have access to that national.
The International Court of Justice, also known as the World Court, operates as a part of the United Nations and was formed to settle disputes between states and to give advisory opinions on international legal issues.
The Antiterrorism and Effective Death Penalty Act (AEDPA) limits the power of federal judges to grant habeas relief unless the state court’s adjudication of the claim resulted in a decision that was 1. contrary to, or involved an unreasonable application of clearly established federal law as determined by the US Supreme Court; or 2. based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
Analysis
The Vienna Convention provides that the rights expressed in the Convention “shall be exercised in conformity with the laws and regulations of the receiving State.”
An Act of Congress is on a full parity with a treaty. When a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.
Conclusion:
Breard’s ability to obtain relief based on violations of the Vienna Convention is subject to the rule that claims not raised in state court are defaulted. It is procedurally too late to make this claim.
As for the ICJ, “If the [Virginia] Governor wishes to wait for the decision of the ICJ, that is his prerogative. But nothing in our existing case law allows us to make that choice for him.”
2002, April 16
Court Strikes Down Law Prohibiting Simulated and Virtual Child Pornography (trigger warning)
Facts & Rules:
The First Amendment guarantees that “Congress shall make no law … abridging the freedom of speech.”
The Child Pornography Prevention Act of 1996 (CPPA) expanded the federal prohibition on child pornography to include not only pornographic images made using actual children, but also that “appears to be” of a minor engaging in sexually explicit conduct (18 U.S.C. 2256(8)(B)), or “conveys the impression” it depicts a minor engaging in sexually explicit conduct (18 U.S.C. 2256(8)(D)).
The definition of child pornography in CPPA would prohibit child pornography even if no children were involved. This prohibition would include “youthful-looking adults or computer-imaging technology.”
Generally, pornography can be banned only if it is obscene under Miller v. California, 413 U.S. 15. Pornography depicting actual children is an exception in that the images don’t have to fit the definition of “obscene” to be prohibited. This is because the State has an interest in protecting the children exploited by the production process, New York v. Ferber, 458 U.S. 747, and in prosecuting those who promote such sexual exploitation.
Analysis:
Congress’s rationale seems compelling.
“Pedophiles might use the materials to encourage children to participate in sexual activity. “[A] child who is reluctant to engage in sexual activity with an adult, or to pose for sexually explicit photographs, can sometimes be convinced by viewing depictions of other children ‘having fun’ participating in such activity. Furthermore, pedophiles might “whet their own sexual appetites” with the pornographic images, “thereby increasing the creation and distribution of child pornography and the sexual abuse and exploitation of actual children.” Under these rationales, harm flows from the content of the images, not from the means of their production. In addition … [t]heir existence can make it harder to prosecute pornographers who do use real minors. As imaging technology improves, Congress found, it becomes more difficult to prove that a particular picture was produced using actual children.”
The Court, however, was not convinced.
- Regarding use of pornography as a persuasive tool: “[Congress] argues that the CPPA is necessary because pedophiles may use virtual child pornography to seduce children. There are many things innocent in themselves, however, such as cartoons, video games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused.”
- Regarding pedophiles whetting their own sexual appetites: “The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” “[T]he Court’s First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct. The government may not prohibit speech because it increases the chance an unlawful act will be committed “at some indefinite future time.”” “[T]he CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not “intrinsically related” to the sexual abuse of children[.] While the Government asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.”
- Regarding how imaging technology will make it more difficult to prove the use of children: Finally, regarding the argument that imaging technology will make it more difficult to spot really child porn: “The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down.”
Generally speaking, however, the Court found that the law, including virtual child pornography, was too brood and violated the First Amendment. Some key takeaways:
- Congress may pass valid laws to protect children from abuse. “The prospect of crime, however, by itself does not justify laws suppressing protected speech.”
- The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children. In order for this law to be valid, virtual child pornography would have to be added to those categories. The Court was reticent to do so.
- “The CPPA prohibits speech despite its serious literary, artistic, political, or scientific value. The statute proscribes the visual depiction of an idea–that of teenagers engaging in sexual activity–that is a fact of modern society[.]” The Court then goes on to cite Romeo and Juliet as well as works that depict teenage promiscuity as a cautionary tale, and works that respond to the “vital interest we all have in the formative years we ourselves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach.”
- “[S]peech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it.” The result would be to “reduce the adult population … to reading only what is fit for children.”
- The age mandated in the CPPA, a person who appears to be under 18, “is higher than the legal age for marriage in many States, as well as the age at which persons may consent to sexual relations.”
Held
The law prohibiting virtual child pornography was overbroad and was, thus, struck down.
Side Note:
One type of virtual pornography that was not at issue here, and that everybody agrees should continue to be illegal was “morphing.” This is where an innocent image of a child is manipulated to make it look as if a sexual act is being conducted. This type of pornography did, in fact, involve the use of a child and therefore fell solidly under the definition.
MAHALO MUCHO!!!
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