Bloggers try to parse the Supreme Court decisions handed down today on the Ten Commandments and Internet file-sharing. They also discuss a New YorkTimes essay in support of snarky arts criticism and the proposed flag-burning amendment.
Sharing is bad:In two rulings on government displays of the Ten Commandments, the Supreme Court suggested that the constitutionality of such monuments was a case-by-case issue. In MGM v. Grokster, the court unanimously held that Internet file-sharing services were liable for the trading of copyrighted material on their networks.
"[Movie studio] MGM won on paper today, but my first reading of the opinion makes me wonder whether the victory will have any bite outside of this specific litigation," says Doug Lichtman, a law professor at the University of Chicago and co-author of an amicus brief supporting MGM. "Intent-based standards, after all, are among the easiest to avoid. Just keep your message clear – tell everyone that your technology is designed to facilitate only authorized exchange – and you have no risk of accountability."
"More interestingly, though, the Court is split on the question [of liability] if you are NOT actively inducing/encouraging/promoting its use for infringing purposes," notes David Post, writing at group law blog Volokh Conspiracy. "Three Justices (Ginsburg, Rehnquist, Kennedy) say: Yes, you can [be liable], if the product is primarily used for infringement. three of the Justices (Breyer, Stevens, O'Connor) say: No, you can't, as long as there's evidence that the product is capable of being used in a noninfringing way. So it's a 3-3 split on that question," he says. "The other 3 Justices (Scalia, Souter, Thomas) take no position on this… Though there is a footnote in which they seem to suggest that they're on the Breyer side of the line."
Most bloggers are unimpressed with the split Ten Commandments rulings, which suggest displays that emphasize the historical legacy of the tablets are constitutional, while those that emphasize the religious legacy are not. "Obviously neither side in the debate is going to be happy with the rulings," says a pastor at Random Responses. "Since the justices were very narrow in their opinions, the greater issue of the place of religious demonstration in public life is going to be around for a while." At conservative clubhouse Power Line, Paul Mirengoff agrees. "One suspects absurd hair-splitting, but that judgment must await a reading of the (many) opinions."
SCOTUSblog hosts a roundtable discussion by leading legal bloggers of both the Grokster decision and the Ten Commandments decision. Find more blog posts about the file-sharing case here; and more about the monument case here. Read Slate's "Breakfast Table" discussion about end-of-term decisions here.
The origin of snark:Last week, New York Times music critic Kelefa Sanneh criticized the celebrated lit mag Believer for the breathlessness of its recent music issue. "In an effort to stamp out snark, the editors also seem to have stamped out skepticism, and so the magazine takes it for granted that indie-rockers are the most important musicians on the planet," Sanneh wrote. In arts criticism, he suggested, "Sometimes snarkiness is preferable to sincerity."
"See, this is my problem with music criticism," says Kyrie O'Connor at MeMo. "It often makes me think I'm not cool enough for the party, with endless strings of references to antecedents I've never heard, for the pleasure of the serious fan. But the less-serious fan wants to know two things: How does it sound? And how do I know if I would like it?"
Innocent Bystander Dawn Withers finds the magazine's anti-snark stance disingenuous. "Everybody knows McSweeney's invented snark in magazine writing. Can its sister magazine really try and 'distance' itself from snark?" she asks. Sheala at Running For Drugs isn't sure the debate is even worth having. "To be snarky, to not be snarky? Is it better to be sincere? Or to mock? I prefer not to have an opinion on this," she says. "And I used to be a huge fan of the term snark, back in the day. But right now I'm very, very tired of it."
Read more blog posts on the Times essay.
Burning Glory: In a column Sunday in the Chicago Sun-Times, Mark Steyn opposed the proposed constitutional amendment banning flag-burning that passed through the House last week. "When a flag gets burned, that's not a sign of its weakness but of its strength," he wrote. "If you can't stand the heat of your burning flag, get out of the superpower business."
"I can stand the heat of some neanderthal burning a U.S. flag," says center-right Powerpundit Rick Edwards. "But it seems to me that the ammendment is meant to underline the great esteem with which we hold the flag - as a representation of our ultimate unity as a country, and our allegiance to the republic for which it stands." Plenty of others side with Steyn. "Why legitimize the flag burners by lending credibility to their cause," asks Dallas blogger Rich Glasgow at Isn't It Rich. The amendment, he says, is "a feel-good, pseudo-patriotic, non-partisan show that makes an almost perfect distraction when so many other issues should dominate." At conservative little green footballs, Charles Johnson seconds that emotion.
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