7th Circuit upholds Gov. Walker's much-protested collective bargaining legislation.

"The district court invalidated Act 10's recertification and payroll deduction provisions, but upheld the statute's limitation on collective bargaining. We now uphold Act 10 in its entirety."

Voting to uphold the law in its entirety were Judges Joel M. Flaum and William J. Bauer. Flaum wrote the opinion.

Judge David F. Hamilton dissented in part, saying he believed part of the collective bargaining law violated the First Amendment. Hamilton argued the state could not bar some unions from having their dues deducted from paychecks while it allowed police and fire unions to do so.

ADDED: Here's the opinion PDF.

AND: The panel said it's well-settled that "use of the state’s payroll systems to collect union dues is a state subsidy of speech that requires only viewpoint neutrality." The law didn't target any particular viewpoints. It subsidized the speech of public safety unions but not other public employee unions, and the unions had argued that the speech of the groups that were subsidized would be more favorable to the party that supported the legislation and so Act 10 wasn't genuinely viewpoint neutral, but only the dissenting judge agreed.

"Court keeps alive inmate's quest for pork feast."

Headline at the National Law Journal makes the "quest" sound more absurd than it is. The prisoner, Derek Kramer, is an Odinist and he's suing in pursuit of his rights under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act.

From the 7th Circuit court's opinion (PDF):

Odinism is a polytheistic religion, which was practiced for millennia in northern Europe before the rise of Christianity and has been revived in recent decades. The practice of Odinism includes group worship ceremonies. Pork is a sacred food to Odinists....

Specifically, Kramer asked for a feast on December 21st for the “High Feast of Yule” and “further requested that HAM/PORK be included in with the FEAST MEAL.”...

Kramer had a larger problem with the group worship at the Green Bay Correctional Institution: The Department of Corrections lumps the "Pagan" religions together for group worship purposes, and he objected to a specifically Wiccan ritual at the service. The demand for an annual pork feast was part of a larger effort to separate the Odinists from the Wiccans.

Kramer's loss on everything but the pork feast (which he hasn't yet won) is based on procedural matters that are probably only interesting to lawyers — unless you know how to be interested in the way procedure can operate to undermine rights.

"The U.S. Court of Appeals for the Seventh Circuit, en banc, ruled that it violated the First Amendment’s no-religious-establishments rule..."

"... to hold high-school graduation ceremonies in a particular church building because of that particular building’s 'proselytizing environment.'"

There was no dispute that the reasons for holding the ceremonies in the building had nothing to do with evangelism and everything to do with space and comfort. But, because the building is “indisputably and emphatically Christian,” the court majority concluded that holding the ceremonies in this building both “endorsed” religion and “coerced” religious exercise....

Here's the opinion. In dissent, Judge Easterbrook says: "It is easier to justify graduation in a church than voting in a church." I agree. My voting place is in a church, and I don't think that should be allowed.

No one should feel obliged by conscience or faith to give up his influence in governance—and that’s what voting represents. A rule of neutrality between religious and secular sites permits government to use religious venues for graduation and voting alike, though I do not think it wise to use a church for either function.

So Judge Easterbrook agrees with me.

But acting inconsiderately toward persons whose sincere views disfavor conducting public business in religious venues differs from establishing a religion.

Now, Judge Posner — also dissenting — writes with confident expectation that the Supreme Court will pay attention:

The case law that the Supreme Court has heaped on the defenseless text of the establishment clause is widely acknowledged, even by some Supreme Court Justices, to be formless, unanchored, subjective and provide no guidance....

The text and history of the establishment clause provide no clue to whether a public high school (a virtually nonexistent institution in the eighteenth century) “establishes” religion when it holds its graduation ceremony in a church. The opaque phrase “respecting an establishment” casts no light on the question....

The students at Brookfield High overwhelmingly and emphatically deemed the school’s gym an inadequate venue for the graduation ceremony. Yet it was the only possible one on the school’s grounds (apart from the football field, also deemed inadequate — the students wanted to be indoors with air conditioning). Bowing to their wishes the school chose Elmbrook Church, the students’ first choice....

There is no suggestion that holding a high-school graduation at the Elmbrook Church has ever triggered a conversion.

How often are visitors to churches converted by the visit? Conversion generally precedes attendance. How many of the millions of non-Catholic visitors to St. Peter’s—Protestants, Jews, Muslims, Hindus, Buddhists, atheists, and so forth—have converted to Catholicism as a result of their visit to that awesome site? I mean no disrespect to the Elmbrook Church in pointing out that no counterpart to the treasures of St. Peter’s that include Bernini’s baldacchino and Michelangelo’s Pietà, the tombs of 91 Popes, a fragment of the True Cross, and the spear that pierced Christ’s side at the Crucifixion (of course the authenticity of the last two items has been questioned), is to be found there.

The plaintiffs argue that by holding its graduation ceremony in a church festooned with religious symbols, Broomfield High is “coercing students and parents to attend a house of worship.” “Coercing?” That is hyperbole. Attendance at graduation isn’t compulsory, graduation is not a “coerced activity,” and a student who attends graduation in Elmbrook Church no more attends a religious ceremony than the cleaning crew when it sweeps the church’s aisles. When the Supreme Court said in Lee v. Weisman, supra, 505 U.S. at 586, 595, in florid hyperbole that “attendance and participation in the [graduation ceremony] are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma,” as “it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term ‘voluntary,’ for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years,” it was whistling in the dark.

The plaintiffs say the church is “using its control over the environment of the graduation ceremonies to expose thousands of attendees per year—including numerous youths—to its religious message.” There is nothing to suggest that the church enhances the religiosity of its interior décor for the graduation. The interior is what it is. A church that rents space to a secular organization shouldn’t be required to pretend it isn’t a church.
 
The reductio ad absurdum is the plaintiffs’ complaint, as unrealistic about the modern American high schooler as the Supreme Court in Lee v. Waisman, that when the students sit down in the church pews for the graduation ceremony, church literature visible to them in the book racks on the backs of the pews in front of them tells them they’re “God’s Little Lambs,” and thoughtfully provides them with a “Scribble Card for God’s Little Lambs” and a pencil to scribble with, and thus tries to seduce them to Evangelical Protestantism. Imagine how 18-year-olds react to being called little lambs! True, the family members who attend the graduation may include children, but in no sense are they coerced by the school to attend the graduation.

The idea that mere exposure to religious imagery, with no accompanying proselytizing, is a form of religious establishment has no factual support, as well as being implausible. Religion is for good or ill a large component of human culture, including American culture. Religious words and symbols are ubiquitous....

The interior of the Elmbrook Church, perhaps the very idea of a church, offends the plaintiffs. But offense can’t be the criterion for an establishment of religion; if it were, no challenge based on the establishment clause would ever fail, for those challenges are invariably mounted by people offended by the government’s association with religion.

"The two versions of ['What What (In The Butt)'] are very similar.... However the South Park version stars Butters..."

"... a naïve nine-year old, in a variety of costumes drawing attention to his innocence: at various points he is dressed as a teddy bear, an astronaut and a daisy."

An excellent discussion of the elements of "fair use" in copyright, from the 7th Circuit, in a case called Brownmark Films v. Comedy Partners (PDF). Via Above The Law.

You can watch the original "paean to anal sex" — "featuring an adult male singing and dancing in tight pants" — here. And the South Park parody — using "a large portion of the original version, using the same angles, framing, dance moves and visual elements" — is here. From the opinion:

The Copyright Act of 1976 sets forth four, non-exclusive factors that a court must consider in determining whether a particular use of a copyrighted work is a fair use: “(1) the purpose and character of the use . . . ; (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.” 17 U.S.C. § 107 (2006). We consider each factor in turn, ultimately agreeing with the district court’s analysis and findings.

Central to determining the purpose and character of a work is whether the new work merely supersedes the original work, or instead adds something new with a further purpose or of a different character....

Regarding the third factor, SPDS’s use of the original WWITB was not insubstantial. Certainly, SPDS used the “heart” of the work; the work’s overall design and distinctive visual elements.... Parody therefore “presents a difficult case.” Id. Indeed, it may even seem as an anomaly under fair use that parody, a favored use, must use a substantial amount of qualitative and quantitative elements to create the intended allusion; there are few alternatives. But when parody achieves its intended aim, the amount taken becomes reasonable when the parody does not serve as a market substitute for the work....

It follows from the third factor that SPDS’s parody cannot have an actionable effect on the potential market for or value of the original WWITB video under the fourth factor. As the South Park episode aptly points out, there is no “Internet money” for the video itself on YouTube, only advertising dollars that correlate with the number of views the video has had. It seems to this court that SPDS’s likely effect, ironically, would only increase ad revenue. Any effect on the derivative market for criticism is not protectable. Id. at 592. And the plaintiff has failed to give the district court or this court any concrete suggestion about potential evidence indicating that the South Park parody has cut into any real market (with real, non-Internet dollars) for derivative uses of the original WWITB video.

I'm not a copyright expert, but I think that's well analyzed. It's good to see parody getting room to breathe, and I think the original artist is better off after having this boost from South Park. His litigiousness makes him less likeable. I can see why he wants his cash, but I don't like copyright litigation as the way to monetize your YouTube videos.

The case also has some great material for civil procedure fans. The court says South Park should have "captioned" its motion as a motion for summary judgment rather than a motion to dismiss. The court notes the arguments about the fact that Butters is naïve and the lack of evidence on that score. The court says the Butters' naïveté isn't crucial to its analysis, but it nevertheless crafts a footnote pointing us to other South Park episodes establishing the naïveté of Butters:

See, e.g., Butters’ Very Own Episode (Comedy Central television broadcast Dec. 12, 2001) (perceiving sex as wrestling), see also Cartman Sucks (Comedy Central television broadcast Mar. 14, 2007); Stupid Spoiled Whore Video Playset (Comedy Central television broadcast Dec. 1, 2004). Indeed, in one of these episodes, Butters is dressed in the same teddy bear costume he wears in the WWITB video. Stupid Spoiled Whore Video Playset (Comedy Central television broadcast Dec. 1, 2004).

"It’s unclear how Apple and Google will respond to Posner’s surprise pounding of them. .'"

Says WaPo noting Judge Posner's decision to dismiss the patent case and his related blog post:

In his remarkable ruling, U.S. Circuit Judge Richard Posner stated that there was no point in holding a trial because it was apparent that neither side could show they had been harmed by the other’s patent infringement.....

Posner’s decision to descend from the 7th Circuit to oversee the Google-Apple trial suggests he wished to step in and do something directly about the patent system. (Ordinarily, Posner would never hear a patent case as all patent appeals are sent to the DC-based Court of Appeals for the Federal Circuit; that court has maintained an ideological bias in favor of patent owners despite repeated rebuffs by the Supreme Court).

And this is from the blog post, which spoke generally about capitalism and included the phrase "dysfunctional patent system":

We have a huge public debt, dangerously neglected infrastructure, a greatly overextended system of criminal punishment, a seeming inability to come to grips with grave environmental problems such as global warming, a very costly but inadequate educational system, unsound immigration policies, an embarrassing obesity epidemic, an excessively costly health care system, a possible rise in structural unemployment, fiscal crises in state and local governments, a screwed-up tax system, a dysfunctional patent system, and growing economic inequality that may soon create serious social tensions. Our capitalist system needs a lot of work to achieve proper capitalist goals.

7th Circuit strikes down Wisconsin law limiting contributions to political action committees.

Milwaukee Journal Sentinel reports:

Wisconsin has long had a $10,000 limit on how much one could give each year to political action committees. But the panel said that law is not in keeping with the U.S. Supreme Court's ruling last year in the Citizens United case, which determined that corporations and unions can spend freely in elections.

"Citizens United held that independent expenditures do not pose a threat of actual or apparent quid pro quo corruption, which is the only governmental interest strong enough to justify restrictions on political speech," Judge Diane Sykes wrote for the panel.

"Accordingly, applying the $10,000 aggregate annual cap to contributions made to organizations engaged only in independent spending for political speech violates the First Amendment."

"The Constitutional Right to Insult Your Neighbors With Tombstone Displays."

Just one section of an article — PDF — in the New York State Bar Association Journal about Halloween-related lawsuits. (Via ABAJournal.)

The tombstones referenced the petitioning neighbors by name, and each contained a date of death based on that neighbor’s address. For example, one tombstone referencing a neighbor named Betty Gargarz stated:

Bette wasn’t ready,

But here she lies

Ever since that night she died, 

12 feet deep in this trench, 

Still wasn’t deep enough 

For that wenches stench! 

1690

The Seventh Circuit recognized the validity of the plaintiffs’ First Amendment claim. While the court noted that the tombstones were intended to elicit “an emotional response” from the neighbors, they were not “the sort of provocatively abusive speech that inherently tends to incite an immediate breach of the peace” such that they would be considered unprotected speech under the “fighting words” doctrine.

The Freedom From Religion Foundation lacks standing to challenge the President's proclamation of a "national day of prayer."

And so, probably, does everyone else, says the 7th Circuit Court of Appeals (PDF). A "feeling of exclusion" or "alienation" is not the "injury in fact" required by Article III of the Constitution. The panel distinguished cases involving a religious display that induced plaintiffs to What did provide standing, we held, is that the plaintiffs "alter[] their daily commute...incurring costs in both time and money."

We talked about this case a year ago when the district judge, Barbara Crabb (here in Madison) issued an injunction barring the proclamation, saying "the government has taken sides on a matter that must be left to individual conscience." The new decision doesn't reach the merits of the case; standing is a threshold issue. But you can tell what the court thought of the Establishment Clause question:

A President frequently calls on citizens to do things that they prefer not to do—to which, indeed, they may be strongly opposed on political or religious grounds.... [No] (sensible) person [would]  suppose that a court could take a blue pencil to a President’s inaugural address or State of the Union speech and remove statements that may offend some members of the audience. President Lincoln’s second inaugural address, likely the greatest speech ever made by an American President, mentions God seven times and prayer three times, including the sentence: “Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away.” The address is chiseled in stone at the Lincoln Memorial on the National Mall. An argument that the prominence of these words injures every citizen, and that the Judicial Branch could order them to be blotted out, would be dismissed as preposterous.

The Judicial Branch does not censor a President’s speech....

The University of Wisconsin must include the Badger Catholic, a student group, in the distribution of student activity fees.

Says the 7th Circuit, in an opinion written by Judge Easterbrook.

University of Wisconsin lawprof Victoria F. Nourse has been nominated to the 7th Circuit.

Congratulations to my esteemed colleague!

Nourse was special counsel for the Senate Judiciary Committee from 1990 to 1993, where she was staff drafter of the Violence Against Women Act. She was also an appellate attorney for the U.S. Department of Justice from 1988 to 1990 and assistant counsel for the Senate Committee to Investigate the Iran-Contra Affair in 1987 and 1988.

Here's the Accuracy in Media report on her role working on the Violence Against Women Act, written in 2007, when then-Senator Joseph Biden was running for President:

... Biden has just released a book acknowledging that he wasn’t the sole author of the Violence Against Women Act (VAWA). This bill was Biden’s signature legislation. It resulted in tons of favorable publicity for him. But the book, Promises to Keep, reveals on page 240 that a female staffer was actually involved in drafting the legislation.

“The staffer, Victoria Nourse, and I wrote” the legislation, says Biden. However, his presidential website gives Biden sole credit for the legislation. It quotes Biden as saying that “What I’m most proud of in my entire career was writing the Violence Against Women’s Act because it is evidence we can change people’s lives, but the change is always one person at a time.” The term “writing,” as commonly understood, means that he wrote it. His office sent out a release calling the senator the “author” of the legislation. But “author,” like the term “writer,” has a definite meaning....

It’s true that Biden “introduced” VAWA. It is also accurate to say that he sponsored it. But to have paraded around the country for many years claiming to be the “author” or “writer” of the bill diminished the work of the female staffer who had been doing the bulk of the work behind the scenes. Later in the book, Biden refers to Nourse as his “lead staffer” on the bill, but that description, too, diminishes her work in this area.

This seems like a pretty minor criticism of Biden, but Nourse is honored to receive the recognition.

But — you may be asking yourself —wasn't the Violence Against Women Act held unconstitutional? The act had many provisions, and one of them — giving private citizens a federal tort claim against other private citizens — was held unconstitutional by the Supreme Court in a 5-4 decision in 2000. It does not manifest a lack of legal expertise for Nourse to have thought that this provision was constitutional back in 1994 when the act was passed. That was before the Gun Free School Zones Act case in which the Supreme Court, for the first time in over half a century, found that Congress couldn't rely on the Commerce Clause to legislate in a particular area. You may argue about whether VAWA was a good use of federal power and whether it was a good idea to use the federal courts to handle gender-based violence cases. Was VAWA good federalism and the wise allocation of judicial resources? But, I think, VAWA reflects well on Nourse, Nourse is an excellent nomination of the sort one would expect Obama to make, and Obama is the President with the judicial appointment power.

"Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon."

A unanimous 7th Circuit panel, consisting of Easterbrook, Bauer, and Posner, adhering to Supreme Court precedent, says that the 2d Amendment is not incorporated in the 14th Amendment and thus does not apply to the states. Easterbrook's opinion (PDF) — emphasizes federalism — the value of decentralized decisionmaking on the subject of gun rights:

One function of the second amendment is to prevent the national government from interfering with state militias. It does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government.

Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868. (The fourteenth amendment was ratified in 1868, making that rather than 1793 the important year for determining what rules must be applied to the states.) Suppose a state were to decide that people cornered in their homes must surrender rather than fight back—in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens....

Our hypothetical is not as farfetched as it sounds. Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible. Wayne R. LaFave, 2 Substantive Criminal Law §10.4 (2d ed. 2003). An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety—whether guns deter or facilitate crime is an empirical question, compare John R. Lott, Jr., More Guns, Less Crime (2d ed. 2000), with Paul H. Rubin & Hashem Dzehbakhsh, The effect of concealed handgun laws on crime, 23 International Rev. L. & Econ. 199 (2003), and Mark Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001)—but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people’s hands since 1868. The way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate....

Chicago and Oak Park are poorly placed to make these arguments. After all, Illinois has not abolished self-defense and has not expressed a preference for long guns over handguns. But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”); Crist v. Bretz, 437 U.S. 28, 40–53 (1978) (Powell, J., dissenting) (arguing that only “fundamental” liberties Nos. 08-4241, 08-4243 & 08-4244 9 should be incorporated, and that even for incorporated amendments the state and federal rules may differ); Robert Nozick, Anarchy, State, and Utopia (1974). Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

The panel adheres to Supreme Court precedent, but it also lays out the federalism argument in clear bold terms for future consumption by the Supreme Court.

Do you think it is good for the rules about whether one must retreat before using deadly force or the choice of self-defense weapons and so forth to be subject to variation from state to state? What do you think the famous Brandeis quote — "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country" — in this context?

AND: See how this helps the Sotomayor nomination?

Sotomayor was labeled “anti-gun” by Gun Owners of America for refusing to extend to the states the U.S. Supreme Court’s 2008 decision overturning a Washington, D.C., handgun ban. The group said a January ruling by a three-judge panel that included Sotomayor displayed “pure judicial arrogance” for declining to throw out a New York state weapons law.

But Easterbrook and Posner — "two top conservatives on the federal bench" — are on the same side.

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled this year that states are bound by the Second Amendment’s protection for an individual’s right to bear arms -- in contrast to the three-judge panel in New York that included Sotomayor....

Mark Tushnet, a law professor at Harvard University in Cambridge, Massachusetts, suggested it was the 9th Circuit approach that is “activist.”

“Judge Sotomayor’s position, and the apparent positions of Judges Posner and Easterbrook, is far more in the mainstream,” Tushnet said....

In a brief, unsigned opinion, [Sotomayor's 2d Circuit] panel said it lacked authority to overturn the ban because that is a matter for the Supreme Court. The high court has “the prerogative of overruling its own decisions,” the opinion said.

And that's exactly what the 7th Circuit said.

Ah, the gods of Supreme Court confirmation are smiling on Sonia Sotomayor. Now, I will place my bet that the white firefighters will lose Ricci v. DeStefano.