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Problem with blogging software I took out the Sitemeter
This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.
My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.
Plaintiffs impliedly acknowledge the First Amendment necessity of the fair use defense by asserting fair use "subsumes and supplants independent First Amendment analysis." Pl. Memo at 9 n. 3. This is simply another way of saying that fair use protection is essential to keep common law copyright protection from triggering First Amendment concerns. (page 15 of pdf, page 9 of document).
In Campbell, the US Supreme Court explained that Sony's presumption of market harm is limited to situations where the secondary work "amounts to a mere duplication of an original" and does not apply to situations where "the second use is transformative." Campbell, 510 U.S. at 591. (footnote, page 23 of pdf, page 17 of document)
Plaintiffs contend transformation turns on whether using "copyrighted material was necessary to the asserted purpose of criticism [or] comment" and go on to observe that it was not strictly necessary to use the clip of Imagine in the Film.(page 19 of pdf, page 13 of document)
O reason not the need! Our basest beggars
Are in the poorest thing superfluous.
Allow not nature more than nature needs,
Man's life is as cheap as beast's. Thou art a lady:
If only to go warm were gorgeous,
Why, nature needs not what thou gorgeous wear'st,
Which scarcely keeps thee warm. But, for true need--
You heavens, give me that patience, patience I need.
You see me here, you gods, a poor old man,
As full of grief as age, wretched in both.
Plaintiffs also complain the public is confused about whether Imagine was licensed for use in the Film, and this confusion is causing harm to its reputation based on accusations from internet bloggers that Plaintiffs "sold out" the legacy of John Lennon by permitting it to be used in the Film . . . . But any such "confusion" was the result of false accusations by internet bloggers, which was corrected in any event. See McMullan Dec. Ex. A (Wall Street Journal story stating filmmakers did not have permission to use the song). Any harm those false accusations created was inflicted by the authors of them, not Defendants, and Plaintiffs fail to explain how the injunction they request would undo that harm in any event. It is simply not Defendants' fault that bloggers do not understand the law permits some unlicensed uses of copyrighted material, and this fact should neither undermine Defendants' rights nor support an injunction pending the resolution of those rights in this dispute.(pages 27-28 of pdf, pages 21-22 of document)
Labels: Yoko Ono lawsuit (new #1)
(a) Rights of Attribution and Integrity.— Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—(1) shall have the right—(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation(emphasis added); and
(3) subject to the limitations set forth in section 113 (d), shall have the right—(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation(emphasis added), and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.(b) Scope and Exercise of Rights. — Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work.
A “work of visual art” is—
(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or
(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
A work of visual art does not include—
(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;
(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;
(iii) any portion or part of any item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.
Labels: Yoko Ono lawsuit (new #1)
. . . . we find that ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community.
IN ACADEMIC LAW, AS IN MOST ACADEMIC FIELDS, the principal vehicle for the publication of scholarly work is the scholarly journal. But in other academic fields, except law, the most prestigious journals are edited by seasoned specialists, usually professors, who have had years of experience both as editors and as scholars in the field covered by the journal. Not only that, but in deciding what to publish, the scholar-editors usually are strongly influenced by the advice they receive from other professors, to whom they refer the submitted articles for peer review . . . .
The system of scholarly publication in law is starkly different. With a few exceptions, law reviews are edited by law students rather than by professors or other professionals. The law reviews are numerous, are published bimonthly or at more frequent intervals, are edited without peer review, and are seemingly unconstrained in length . . . . (emphasis added)
This system -- so strange, even incomprehensible, to scholars in other fields -- first emerged in the latter part of the 19th century, when legal scholarship was primarily a professional rather than an academic product. Its primary aim was to serve judges and practicing lawyers, rather than other professors, by offering careful doctrinal analysis, noting, for example, divergent lines of authority and trying to reconcile them.
. . . unlike many journals, we require faculty reviews and a vote of our entire staff before we can accept a piece.
BJCL is one of the first legal journals to have instituted a Faculty Advisory Committee, which reviews articles we accept for publication. If you publish with our journal, you will have the benefit of peer review of your scholarship by leading criminal law faculty at Boalt Hall.
Labels: Judge Jones (new #2)
The State Board of Education's debate on new English and reading standards took another rowdy turn Friday as members approved a never-before-seen version of the lengthy document which materialized less than an hour before the board was to take a final vote.
After a wacky and terse debate on the new curriculum, the board voted 9-6 in favor of the new version, which will remain in place for the next decade and sets standards for state tests and textbooks, as well as classroom teaching.
Experts and teachers have been working on the new curriculum standards for two and a half years.
"I find it's really wild that we can work for three years on a project and then the board is so qualified they can pull it out of their hat overnight," said board member Pat Hardy, a Fort Worth Republican who, like other board members, received the substituted document when it was slipped under her hotel door less than an hour before their meeting was set to convene Friday morning . . . .
"I'm appalled by the process that we've taken part in," said board member Bob Craig, a Republican from Lubbock. There's been "no opportunity to review it, no teacher group is involved, not even the (Texas Education Agency) staff was involved or had seen it." . . . .
"I'm voting against it. I'm sick of this," replied board member Mavis Knight, a Democrat from Dallas, moments after the discussion started . . .
Science curriculum, which includes the divisive teaching of evolution, is next up for review by the board.
"It does not bode well for any of us with the science (curriculum) review coming up," Canaday [Jennifer Canaday, a lobbyist for the Association of Texas Professional Educators] said. "Everyone I spoke to about this week's meetings asked me why on earth would English be considered a controversial subject. If it's this difficult to change the English curriculum, it's just going to be a war when it comes time for them to try to agree on science standards."
Labels: Texas controversy
U.S. District Judge Sidney Stein said he will rule quickly in the case after both sides described the issues surrounding the song and movie in harsh terms during arguments on Monday.
Lawyer Anthony T. Falzone said the movie, ``Expelled: No Intelligence Allowed,'' was set to open in Canada on June 6 and DVD rights needed to be finalized by the end of May for distribution in October. The movie is still being shown in about 200 theaters in the United States.
He said an adverse ruling by Stein would mean "you have muzzled the speech of my clients" because they would have to replace the song with other images, losing the chance to make the issue important enough that it could even influence the U.S. presidential campaign.
"If you issue that injunction, you trample on these free speech rights and you put a muzzle on them and you do it in a way that stops them from speaking on this political issue leading up to the election," Falzone said.
If the ruling does not occur fast enough, "it truly jeopardizes the whole Canadian release and DVD date," the lawyer said.
The judge required EMI Blackwood Music Inc. and the family of John Lennon to post a $20,000 bond by Wednesday, to show they can cover any losses suffered by the film's producers as a result of the lawsuit.
Ono has accused the movie's producers of infringing the song's copyrights by using portions of it without her permission, giving the impression that the Lennon family had authorized it.
Dorothy M. Weber, a lawyer for Ono, Sean Lennon, Julian Lennon and EMI Blackwood Music Inc., said the makers of the movie "took away their right to stay no."
She said the defendants _ Premise Media Corp. of Dallas, Rampant Films of Sherman Oaks, Calif., and Rocky Mountain Pictures Inc. of Salt Lake City _ had obtained authorization for the other songs used in the movie, a point the judge noted himself.
About 20 to 30 seconds of the song are played in the movie.
Weber acknowledged that there are instances when portions of songs protected by copyrights can be used without the copyright owner's permission, a legal right known as "fair use."
But, she said, "fair use is not about destroying the other person's market. It's about carving very, very limited exceptions to a copyright proprietor's monopoly."
Labels: Yoko Ono lawsuit (new #1)
From Publishers Weekly
In 2005, Stephen Colbert catapulted the word truthiness -- the quality of an idea feeling true without any backup evidence -- into the public consciousness. Salon blogger Manjoo expands upon this concept in his perceptive analysis of the status of truth in the digital age, critiquing a Rashomon-like world in which competing versions of truth vie for our attention . . . .
From the Inside Flap
In True Enough, Manjoo presents findings from psychology, sociology, political science, and economics to show how new technologies are prompting the cultural ascendancy of belief over fact. In an age of talk radio, cable TV, and the Internet — the blog --- and YouTube-addled million-channel media universe — it is no longer necessary for any of us to confront notions that contradict what we "know" to be true. Stephen Colbert calls this "truthiness"— when something feels true without any evidence that it is. Here Manjoo probes the cognitive basis of truthiness, exploring how biases push both liberals and conservatives to select and interpret news in a way that accords with their personal versions of "reality."
Why has punditry lately overtaken news, with so many media outlets pushing partisan agendas instead of information? Why do lies seem to linger so long in the cultural subconscious even after they've been thoroughly discredited? And why, when more people than ever before are documenting the truth with laptops and digital cameras, does fact-free spin and propaganda seem to work so well? True Enough explores leading controversies of national politics, foreign affairs, science, and business, explaining how Americans have begun to organize themselves into echo chambers that harbor diametrically different facts — not merely opinions — from those of the larger culture.
"The news media are supposed to help us understand the world, and faster, better, more varied communication technologies are supposed to enrich that process of understanding. True Enough explains why things have so often worked in reverse—and why Americans no longer disagree just about opinions and political values, but about basic factual realities. This problem of 'truthiness' is depressingly familiar, but Farhad Manjoo adds useful information and insights about its origins, effects, and possible solutions."
—James Fallows, National Correspondent for the Atlantic Monthly and author of Breaking the News
"Well worth reading. Make no mistake: this is no run-of-the-mill exposé of media bias, but a sophisticated analysis of the ways and means by which lies and distortions do so well in today's fractured, cynical media world."
—Todd Gitlin, Professor of Journalism and Sociology, Columbia University, and author of The Bulldozer and the Big Tent
Labels: Wikipedia (new #2)
Lawyers from both sides have declined to comment, but Columbia copyright guru Tim Wu told us this: “I don’t think this is a hard case; nor a close case. Playing 15 seconds of a song to criticize it is as fair as fair use gets. With respect to Yoko Ono: if this case isn’t fair use, then copyright law has become censorship law.”
But in the state court PI hearing this morning, Judge Richard Lowe wasn’t nearly as convinced as Professor Wu. Judge Lowe asked Falzone why it was necessary to use Lennon’s actual performance of the song, rather than, say, having Stein say the lyrics himself or flashing the lyrics on the screen. To this, Falzone gave what we thought was a compelling and novel reply. Lennon’s performance, said Falzone, triggers a specific emotional response in the viewer’s mind — i.e. “Maybe Lennon’s right; maybe the world would be better off without religion” — and it’s that response that the film, and its use of “Imagine,” seeks to criticize.
The Congress shall have power to . . .
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries . . .
The judicial power [of federal courts] shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States . . .
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Labels: Yoko Ono lawsuit (new #1)
At its General Conference held in Fort Worth, Texas, from April 22 to May 2, 2008, the United Methodist Church adopted three resolutions relevant to the teaching of evolution in the public schools. First, and most directly concerned with education, the UMC expressed its opposition to "the introduction of any faith-based theories such as Creationism or Intelligent Design into the science curriculum of our public schools," noting that "the United Methodist Church has for many years supported the separation of church and [s]tate" and that "[t]he promotion of religion or any particular religion in the public schools is contrary to the First Amendment."
. . . . .With over eight million members in the United States served by over forty-five thousand ministers, the United Methodist Church is the third largest religious denomination in the United States.
The United States District Court for the Southern District of New York announced today that beginning June 7, 2004, all District Judges and Magistrate Judges will assign newly filed civil and criminal cases to the Electronic Case Filing (ECF) system . . . .With certain limited exceptions, documents filed in ECF cases must be filed electronically and will not be accepted in paper form . . .
Older cases . . .as well as pro se cases, Habeas Corpus cases, Social Security cases, and Multi-District Litigation will not be electronically filed and should continue to be filed on paper. . . .
Don't have a computer or scanner? Bring your ECF password and the paper documents to the courthouse, and you can use our public computers to electronically file your documents.
Labels: Yoko Ono lawsuit
The most sustained applause during Washington University's commencement ceremony went to legendary producer Quincy Jones.
But more than half the crowd stood and turned their backs as a controversial author received an honorary degree.
Phyllis Schlafly, a national leader of the conservative movement who is opposed to feminism, was presented the degree Friday morning at Brookings Quadrangle.
Prior to the graduation, students handed out fliers and white armbands in a silent protest.
They said her philosophies don't follow that of the university's.
In response to week-long protests by students and some staff, the University said they were simply honoring an alumna of the school whose life has had a broad impact on America.
Throughout the presentation and protest, the smile never left Schlafly's face.
Judge John E. Jones III could still be Chairman of the Pennsylvania Liquor Control Board if millions of evangelical Christians had not pulled the lever for George W. Bush in 2000. Yet this federal judge, who owes his position entirely to those voters and the Bush who appointed him, stuck the knife in the backs of those who brought him to the dance in Kitzmiller v. Dover Area School District.
Ms. Schlafly authored a January 2006 column and within her column she noted that, and I'm quoting here, that I "owed my position as a Federal Judge entirely to the evangelical Christians who pulled the lever for George W. Bush in 2002" and that I, I'm still quoting here, "stuck the knife in those who brought me to the dance in Kitzmiller versus Dover Area School District" . . . . .
. . . . .The premise of Ms. Schlafly and some others seems to be that judges can and should act in a partisan matter rather than strictly adhering to the rule of law. Now, to those who believe that judges must cast aside precedents and rule as according to an agenda, let me say that I believe that the public's dependence upon the impartiality and the integrity of judges is absolutely essential to its confidence in our system of justice.
Contrary to most media coverage, the Dover case was not about whether the theory of evolution or Intelligent Design (ID) is correct or should be taught. The Dover school board did not propose to say ID is scientific or valid, or even to decrease its teaching of evolution . . . . .
Judge Jones exhibited his bias for judicial activism with public remarks that should have caused his recusal . . .
Judge Jones' pursuit of the spotlight illustrates what is wrong with our judiciary today . . . .
He lashed out at witnesses who expressed religious views different from his own, displaying a prejudice unworthy of our judiciary.
. . . .this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.
" The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute . . . . Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds [392 U.S. 83, 103] specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8. (emphasis added)
A divided panel of the United States Court of Appeals for the Seventh Circuit reversed. 433 F. 3d 989. The majority read Flast as granting federal taxpayers standing to challenge Executive Branch programs on Establishment Clause grounds so long as the activities are “financed by a congressional appropriation.” 433 F. 3d, at 997. This was the case, the majority concluded, even where “there is no statutory program” enacted by Congress and the funds are “from appropriations for the general administrative expenses, over which the President and other executive branch officials have a degree of discretionary power.” Id.,at 994. According to the majority, a taxpayer has standing to challenge anything done by a federal agency or officer so long as “the marginal or incremental cost to the taxpaying public of the alleged violation of the establishment clause” is greater than “zero.” Id., at 995. . . . . .
. . . . . The Court of Appeals denied en banc review by a vote of seven to four. 447 F. 3d 988 (CA7 2006). Concurring in the denial of rehearing, Chief Judge Flaum expressed doubt about the panel decision, but noted that “the obvious tension which has evolved in this area of jurisprudence … can only be resolved by the Supreme Court.” Ibid.
The principal difficulty with arguments pro and con about taxpayer standing is that the doctrine is arbitrary. Taxpayers lack standing to complain about almost all expenditures. Flast v. Cohen, 392 U.S. 83 (1968), held that taxpayer suits about religious outlays are special . . . . To the extent that the Establishment Clause forbids taxation to support religion, people subject to the illegal levy may obtain relief, but plaintiffs in this litigation do not say that they have paid one extra penny because of the grant. Where's the concrete injury? The loss (if any) is mental distress that plaintiffs, who are bystanders to the challenged program, suffer by knowing about conduct that they deem wrongful. Article III does not permit courts to entertain such complaints. (citations omitted) . . . .Our panel's majority has concluded that the doctrine of taxpayer standing will be more logical if it covers administrative as well as legislative earmarks. I grant that proposition -- but comprehensiveness and rationality are not this doctrine's hallmarks. Why may taxpayers complain about outlays of cash but not about a distribution of real or personal property? (citation omitted) . . . . Why may taxpayers complain about modest expenditures (the grant in Laskowski was $500,000, or less than a cent per U.S. taxpayer) but not about slightly smaller ones? . . . .Perhaps Michael Newdow should have invoked his tax return, rather than his status as a father, to challenge the inclusion of "under God" in the Pledge of Allegiance. [my comment: the Supreme Court threw out Newdow's suit on the grounds of the technicality that he did not have legal custody of his biological daughter, his mascot in the suit] . . . .
But this arbitrariness is built into the doctrine as it comes to us . . . .The problem is not of our creation and cannot be solved locally. There is no logical way to determine the extent of an arbitrary rule. Only the rule's proprietors can bring harmony -- whether by extension or contraction -- or decide to tolerate the existing state of affairs. (emphasis added)
Appellants filed suit in the United States District Court for the Southern District of New York to enjoin the allegedly unconstitutional expenditure of federal funds under Titles I and II of the Elementary and Secondary Education Act of 1965, 79 Stat. 27, 20 U.S.C. 241a et seq., 821 et seq. (1964 ed., Supp. II). The complaint alleged that the seven appellants had as a common attribute that "each pay[s] income taxes of the United States," and it is clear from the complaint that the appellants were resting their standing to maintain the action solely on their status as federal taxpayers. 1 The appellees, who are charged by Congress with administering the Elementary and Secondary Education Act of 1965, were sued in their official capacities.
The gravamen of the appellants' complaint was that federal funds appropriated under the Act were being used to finance instruction in reading, arithmetic, and other subjects in religious schools, and to purchase textbooks [392 U.S. 83, 86] and other instructional materials for use in such schools. Such expenditures were alleged to be in contravention of the Establishment and Free Exercise Clauses of the First Amendment. Appellants' constitutional attack focused on the statutory criteria which state and local authorities must meet to be eligible for federal grants under the Act. Title I of the Act establishes a program for financial assistance to local educational agencies for the education of low-income families. Federal payments are made to state educational agencies, which pass the payments on in the form of grants to local educational agencies. Under 205 of the Act, 20 U.S.C. 241e, a local educational agency wishing to have a plan or program funded by a grant must submit the plan or program to the appropriate state educational agency for approval. The plan or program must be "consistent with such basic criteria as the [appellee United States Commissioner of Education] may establish." The specific criterion of that section attacked by the appellants is the requirement"that, to the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency has made provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate . . . ." 20 U.S.C. 241e (a) (2).
Under 206 of the Act, 20 U.S.C. 241f, the Commissioner of Education is given broad powers to supervise a State's participation in Title I programs and grants. Title II of the Act establishes a program of federal grants for the acquisition of school library resources, textbooks, [392 U.S. 83, 87] and other printed and published instructional materials "for the use of children and teachers in public and private elementary and secondary schools." 20 U.S.C. 821. A State wishing to participate in the program must submit a plan to the Commissioner for approval, and the plan must"provide assurance that to the extent consistent with law such library resources, textbooks, and other instructional materials will be provided on an equitable basis for the use of children and teachers in private elementary and secondary schools in the State . . . ." 20 U.S.C. 823 (a) (3) (B).
While disclaiming any intent to challenge as unconstitutional all programs under Title I of the Act, the complaint alleges that federal funds have been disbursed under the Act, "with the consent and approval of the [appellees]," and that such funds have been used and will continue to be used to finance "instruction in reading, arithmetic and other subjects and for guidance in religious and sectarian schools" and "the purchase of textbooks and instructional and library materials for use in religious and sectarian schools." Such expenditures of federal tax funds, appellants alleged, violate the First Amendment because "they constitute a law respecting an establishment of religion" and because "they prohibit the free exercise of religion on the part of the [appellants] . . . by reason of the fact that they constitute compulsory taxation for religious purposes." The complaint asked for a declaration that appellees' actions in approving the expenditure of federal funds for the alleged purposes were not authorized by the Act or, in the alternative, that if appellees' actions are deemed within the authority and intent of the Act, "the Act is to that extent unconstitutional and void."
The Court's taxpayer standing cases involving Establishment Clause challenges to government expenditures are notoriously inconsistent because they have inconsistently described the relevant "injury in fact" that Article III requires. Some cases have focused on the financial effect on the taxpayer's wallet, whereas Flast and the cases that follow its teaching have emphasized the mental displeasure the taxpayer suffers when his funds are extracted and spent in aid of religion. There are only two logical routes available with respect to taxpayer standing. If the mental displeasure created by Establishment Clause violations is concrete and particularized enough to constitute an Article III "injury in fact," then Flast should be applied to (at a minimum) all challenges to government expenditures allegedly violating constitutional provisions that specifically limit the taxing and spending power; if not, Flast should be overturned.
I am quite unable to understand how, if a taxpayer believes that a given public expenditure is unconstitutional, and if he seeks to vindicate that belief in a federal court, his interest in the suit can be said necessarily to vary according to the constitutional provision under which he states his claim.
. . . .Apparently the Court, having successfully circumnavigated the issue, has merely returned to the proposition from which it began. A litigant, it seems, will have standing if he is "deemed" to have the requisite interest, and "if you . . . have standing, then you can be confident you are" suitably interested. (citation omitted)
Overruling prior precedents, even precedents as disreputable as Flast, is nevertheless a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring *stare decisis* requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive. Even before the addition of the new meaningless distinction devised by today’s plurality, taxpayer standing in Establishment Clause cases has been a game of chance. In the proceedings below, well-respected federal judges declined to hear this case en banc, not because they thought the issue unimportant or the panel decision correct, but simply because they found our cases so lawless that there was no point in, quite literally, second-guessing the panel.
May 12, 2008 - Pacific Justice Institute will present arguments this week to the Ninth Circuit Court of Appeals in a case challenging a federally-funded UC Berkeley website which promotes selected religious denominations that support evolution.
The lawsuit, filed by PJI in 2005, centers around a website designed by UC Berkeley to help teachers combat so-called misconceptions about evolution. The website tackles the "misconception" that religion and evolution are incompatible by claiming that "most" religious groups have no problem with evolution, and by directing visitors to statements from selected religious groups that support evolution. Meanwhile, the website derides religious beliefs that "contradict science" by teaching six-day creation. The site also warns teachers that student questions which expose the weaknesses of evolution "may be designed to disrupt the learning process" and should not be given the same respect as "legitimate" questions.
PJI is arguing that the taxpayer-funded UC Berkeley website unconstitutionally promotes certain religious groups at the expense of others. PJI Chief Counsel Kevin Snider, who will be presenting oral arguments to the Ninth Circuit on Wednesday, commented, "Whatever one's views on the origin of life or the theory of evolution, it is completely inappropriate for the government to declare that some religious denominations are better than others. The Supreme Court has long held that government must not decree what is orthodox in religion, and we are seeking to hold UC Berkeley to that standard."
Brad Dacus, president of Pacific Justice Institute, stated, 'Government actions that demean a group's faith clearly express state hostility toward religion and must be contested."
Back to the Future on Evolution
This time in Maine, where at least one resident wants to party like it's 1967:The decades-old controversy over the teaching of evolution in public schools is resurfacing in Somerset County.
A director of SAD 59 in the Madison area is urging the board to drop evolution from high school science curriculums on grounds that it's an unprovable theory that shouldn't be taught as fact.
Matthew Linkletter of Athens says neither evolution nor creationism belongs in a science curriculum.
Sorry, Matthew, the courts already ruled on this. Look up Epperson v Arkansas.
a lurker wrote:What does Epperson v Arkansas have anything to do with this.
In that case involved a law that made it illegal for a teacher to teach evolution and that a teacher could be charged with a crime if he did.
The court in Epperson did not rule that the law was unconstitutional because of the potential punishment, they ruled that it was unconstitutional because it was not religiously neutral. The court recognized that the only reason anyone wanted to prohibit the teaching of evolution was to give favor to their religious anti-evolution views.
No suggestion has been made that Arkansas' law may be justified by considerations of state policy other than the religious views of some of its citizens. (page 107)
Under this statute, as construed by the Arkansas Supreme Court, a teacher cannot know whether he is forbidden to mention Darwin's theory at all or only free to discuss it as long as he refrains from contending that it is true. It is an established rule that a statute which leaves an ordinary man so doubtful about its meaning that he cannot know when he has violated it denies him the first essential of due process . . . .
The Court, not content to strike down this Arkansas Act on the unchallengeable ground of its plain vagueness, chooses rather to invalidate it as a violation of the Establishment of Religion Clause of the First Amendment . . . .
A second question that arises for me is whether this Court's decision forbidding a State to exclude the subject of evolution from its schools infringes the religious freedom of those who consider evolution an anti-religious doctrine. If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an "anti-religious" doctrine to school children? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible's story of creation; so, too, have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines? Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an anti-religious doctrine, then this issue presents problems under the Establishment Clause far more troublesome than are discussed in the Court's opinion . . . . .
Certainly the Darwinian theory, precisely like the Genesis story of the creation of man, is not above challenge. In fact the Darwinian theory has not merely been criticized by religionists, but by scientists, and perhaps no scientist would be willing to take an oath and swear that everything announced in the Darwinian theory is unquestionably true. The Court, it seems to me, makes a serious mistake in bypassing the plain, unconstitutional vagueness of this statute in order to reach out and decide this troublesome, to me, First Amendment question. However wise this Court may be or may become hereafter, it is doubtful that, sitting in Washington, it can successfully supervise and censor the curriculum of every public school in every hamlet and city in the United States. I doubt that our wisdom is so nearly infallible . . . .
I would either strike down the Arkansas Act as too vague to enforce or remand to the State Supreme Court for clarification of its holding and opinion.
IT IS FURTHER ORDERED, that answering papers, if any, shall be served upon Plaintiffs by hand delivering copies thereof to Plaintiffs counsel, Shukat Arrow Hafer Weber & Herbsman LLP, 111 West 57th Street, New York, New York 10019 on or before May _14_, 2008 at 5:00 p.m.; and
IT IS FURTHER ORDERED, that reply papers, if any, shall be filed with the Court and served upon Dendants (sic) by hand delivering copies thereof to be retrieved by Defendants’ counsel, on or before May _16_, 2008 at 5:00 p.m..
Labels: Yoko Ono lawsuit
Labels: Yoko Ono lawsuit
I just finished reading The Devil in Dover by Lauri Lebo (if you only read one book about the Dover trial, this is the one to read -- it's absolutely brilliant in every respect) and she discusses the background of Vic Walczak.
Vic is the legal director of the ACLU of Pittsburgh and was one of the attorneys for the plaintiffs in the Dover trial. And his entire life puts the lie to this idiotic slur that the ACLU are communists.
Before going to law school, Walczak went to Poland to give aid Lech Walesa and the Solidarity movement. He documented police brutality, wiretapping and other human rights violations as he dodged the secret police. . . . When he returned to the US, he knew that he had to become a human rights attorney.
The communist slur was idiotic from the start, of course. What, after all, is the (entirely accurate) critique of communist governments? That they operate in secret, invade their citizens' lives with spying and wiretapping, practice arbitrary imprisonment, make dissent illegal, destroy due process and generally terrorize the people with a brutal law enforcement system . . . ..
What are the very things that the ACLU spends nearly all their time and effort fighting against? Each and every one of those practices.
Labels: Ed Brayton (new #1)
My understanding is that 15 seconds of the song are used in the film. Quite plainly, Ono does not agree with the filmmakers' point of view. Simply to capitalize on the film as soundtrack material that would be attractive to an audience would likely not be fair use, but, if, as seems likely, the song is quoted to criticize its atheism, that use would likely constitute fair use, regardless of whether Ono finds the users' message objectionable. That certainly seems to be the conclusion of the Stanford Fair Use Project, which has taken on the filmmakers' defense in Ono's lawsuit. Their description of the use of the song in the film seems to confirm my own suspicions regarding the legitimacy of the fair use defense in this case:The clip of “Imagine,” which is audible for approximately 15 seconds, is used in a segment of the documentary in which the film’s narrator and author Ben Stein comments on statements made by Myers and others about the place of religion. In the documentary Stein says: “Dr. Myers would like you to think that he’s being original but he’s merely lifting a page out of John Lennon’s songbook.” This is followed by an audio clip of Lennon’s song “Imagine,” specifically, the lyrics “Nothing to kill or die for, And no religion too.”
A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required. (emphasis added)
Labels: Yoko Ono lawsuit