By Larry Lessig in Legal Affairs
Most lawyers and law professors have little patience for idealism about courts in general and this Supreme Court in particular. Most have a much more pragmatic view. As I read back over the transcript from that argument in October, I can see a hundred places where the answers could have taken the conversation in different directions, where the truth about the harm that this unchecked power will cause could have been made clear to this court. Kennedy in good faith wanted to be shown. I, idiotically, corrected his question. Souter in good faith wanted to be shown the First Amendment harms. I, like a math teacher, reframed the question to make the logical point. I had shown them how they could strike down this law of Congress if they wanted to. There were a hundred places where I could have helped them want to, yet my stubbornness, my refusal to give in, stopped me. I have stood before hundreds of audiences trying to persuade; I have used passion in that effort to persuade; but I refused to stand before this audience and try to persuade with the passion I had used elsewhere. It was not the basis on which a court should decide the issue.Would it have been different if I had argued it differently? Would it have been different if Don Ayer had argued it? Or Charles Fried? Or Kathleen Sullivan?
The image that will always stick in my head comes from an editorial that ran in The New York Times. While the reaction to the Sonny Bono Act itself was almost unanimously negative, the reaction to the court’s decision was mixed. The press coverage that attacked the decision did so because it left standing a silly and harmful law. That “grand experiment” that we call “the public domain” is over, the paper said. When I can make light of it, I think, “Honey, I shrunk the Constitution.” But I can rarely make light of it. We had in our Constitution a commitment to free culture. In the case that I fathered, the Supreme Court effectively renounced that commitment. A better lawyer would have made them see differently.
Part of me wonders if by losing the battle, Lessig is setting the stage for winning the war. I sure hope so.
