The Gamera Trilogy truly is gold standard for Kaiju movies. Nari Ely and I reviewed Attack of Legion and Revenge of Iris. Check out our analysis of both of these classic Kaiju films.
Altered Carbon and the First Amendment Right to Be Free from Compelled Viewing
Like the rest of the quarantined lawyers in America, the Legal Geeks have spent this pandemic diligently solving the world’s legal issues binge watching great content (in our pajamas on the couch). Fortunately, Altered Carbon’s second season was released recently by Netflix, again ripping anti-hero Takeshi Kovacs from his peaceful hibernation on the stack shelf to battle against 300 year-old uber-wealthy Meths (short for Methuselahs). Instead of Joel Kinnamon this time, however, season two’s Kovacs is fitted with a military-grade body (called a “sleeve” in Carbon) played by Anthony Mackie. Mackie, like his predecessor, performs the role of disgruntled 24th century detective in a world where consciousness can be uploaded and stored in a “stack”—prolonging life indefinitely.
Our review last season focused on the impact of “Resolution 653,” which would have allowed the U.S. government to “spin up” a murder victim’s stack in violation of their express wishes and religious rights. Among other unique legal quandaries like tracking others’ activities through biomechanical implants and cloned imposters, this season of Altered Carbon advances yet another prescient question of law under the First Amendment: can the government force everyone to watch and listen to its speech?
In Season 2, Episode 3, “Nightmare Alley,” Kovacs has been captured, tortured, and sentenced to execution by the leaders of Harlan’s World, his home planet located approximately eighty light-years from Earth. Ostensibly interrupting every single inhabitant on the globe, Harlan’s leaders force a video feed onto everyone’s contact lens through their Online Network Interface (“ONI”). Remarkably similar to the grain technology in Netflix’s other sci-fi giant Black Mirror, the citizens of Harlan’s World are actually required to view the execution on pain of losing vision altogether. And although some of the Harlan elite bet on Kovacs’ life expectancy like a boxing match, it appears that common folk are not as enthusiastic about this intrusion on their visual liberty.
While Harlan’s World is not affiliated with Earth and its ancestors did not originate in America—having been settled mostly by Japanese and Slavic laborers—ONIs on Earth still have the same capabilities. Therefore, it’s likely that the issue of forced broadcasts onto Americans’ ONIs has been resolved as implied by that feature’s omission from government speech on Earth in Season 1. Admittedly, many reasons could exist for that omission; however, the obvious Legal Geeks AnswerTM is that compelled listening and viewing has finally been ruled unconstitutional under the First Amendment.
Although most expressive rights are jealously guarded by the First Amendment, “whether there is a ‘right’ to avoid unwelcome expression” has not yet been decided by the Supreme Court. See Hill v. Colorado, 530 U.S. 703, 718 n.25 (2000). But as a necessary companion to the rights to (1) free speech on government and politics, see Morse v. Frederick, 551 U.S. 393, 403-04 (2007); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776-77 (1978); (2) freedom to listen to others’ speech, see Lamont v. Postmaster Gen., 381 U.S. 301, 308 (1965) (“It would be a barren marketplace of ideas that had only sellers and no buyers”); and (3) refrain from speaking, see Wooley v. Maynard, 430 U.S. 705, 714 (1977) (“[F]reedom of thought protected by the First Amendment … includes both the right to speak freely and the right to refrain from speaking at all.”), the right to avoid compelled listening or viewing is likely be protected under the First Amendment. See Caroline Mala Corbin, The First Amendment Right Against Compelled Listening, 89 B.U. L. Rev. 939 (2009).
“[T]he First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired,” Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981), because “no one has a right to press even ‘good’ ideas on an unwilling recipient” in America, Rowan v. U.S. Post Office, 397 U.S. 728, 738 (1970). And although “government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas,” Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2245–46, (2015), the government’s speech may still be restricted “when “the ‘captive’ audience cannot avoid [the] objectionable speech,” Consol. Edison Co. of N.Y. v. Pub. Serv. Comm’n, 447 U.S. 530, 541-42 (1980). Such a protection is important in America because “[w]hen the government forces its arguments or information onto unwilling recipients, it can distort the proper functioning of the marketplace of ideas and undermine democratic decisionmaking by the people.” Corbin, 89 B.U. L. Rev. at 980.
Under the “Captive Audience” doctrine, the First Amendment protects those who otherwise would be “unavoidably and unfairly coerced into listening” to speech. See J.M. Balkin, Free Speech and Hostile Environments, 99 Colum. L. Rev. 2295, 2310-11 (1999). Generally, the doctrine is framed in the context of one’s privacy rights and the right to avoid unwanted speech or sights appears—frequently in the abortion clinics cases and state-mandated training. See Franklyn S. Haiman, Speech v. Privacy: Is There a Right Not to Be Spoken To?, 67 Nw. U. L. Rev. 153, 154 (1972) (“The issue of whether there is a right to be free from speech poses a sharp conflict between freedom of speech, on the one hand, and privacy, on the other.”).
In Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994), for example, the Court upheld restrictions on sound audible inside a family planning clinic. And although abortion speech is the one area where the Supreme Court has allowed paternalism to justify viewpoint-discriminatory laws in the past, see Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 882 (1992), recent cases in the lower courts have confirmed that “the right to free speech doesn’t include the right to compel unwilling audiences to listen,” Larkins v. Moore, 2017 WL 4012334, at *5 (S.D. Cal. 2017); Planned Parenthood of Ind. & Ky., Inc. v. Comm’r, 194 F. Supp. 3d 818, 830 (S.D. Ind. 2016) (“requiring abortion … patients to listen to this information violates their First Amendment rights regarding … compelled listening”).
Placed in the context of 2400s America, the issue of whether the government can force a broadcast onto a person’s ONI-connected lens has likely been long resolved. Without a means to avoid the broadcast—or with a government’s explicit threat like on Harlan’s World—individuals with contact lens ONIs would definitely meet the definition of a “captive audience.” The government’s justification for such a direct intrusion into one’s psyche would have to be factual, secular, and monumental—certainly not justified for Kovacs’s trumped-up execution. Accordingly, Harlan’s intended broadcast would violate the First Amendment rights of American citizens. Even more fortunately, however, the Last Envoy’s luck did not run out, the unsuccessful compelled viewing of the government’s message backfired spectacularly, and Netflix should be renewing Altered Carbon for a third season any day now.
Random thoughts:
- In fairness to my plaintiffs’ side lawyer friends, there is definitely an Intentional Infliction of Emotional Distress claim lurking in the wings here
- Mackie’s version of a Kovacs seemed more stiff than Kinnamon, who played the role of disgruntled-24th Century-hardboiled-detective-in-a-neo-noir-world a little more like Harrison Ford’s Deckard in Blade Runner
- Sleeve-tech highlight of Season 2 is in Episode 2, “Payment Deferred,” when Poe asks Kovacs for his plan: “Drink fast enough to try and override the tolerance settings” on his sleeve
- A big thanks to Prof. Corbin’s scholarship, with whom I could not agree more that “a right against compelled listening should be recognized in order to safeguard and realize fundamental free speech values”
On Behalf of Gamera
An ancient civilization built a super predator species known as Gyaos that would destroy humanity, leaving only as the last hope, Gamera. This plot leaves open so many questions for liability, such as is Gyaos an endangered species or is humanity? Can the government force an ornithologist to capture an animal that feeds on humans? Would the military need authorization from the government to fire on a giant turtle walking ashore? Join Nari Ely and I as we break down these issues and more in Gamera Guardian of the Universe.
Did Ultraman Commit Genocide of Baltan Refugees?
The Ultraman episode “Shoot the Invaders” opens with our hero having a black eye. By the end of the episode, we understand he has one more than a physical black eye.
The alien race the Baltans traveled to Earth in microscopic form in a cloaked ship. After using a member of the Science Patrol to speak through him, the Baltans revealed there were 2.03 BILLION of them on their ship approximately a meter across. A mad scientist in nuclear tests had destroyed their planet. Mars was not an option for the Baltans, because their “hated” unspeakable issue was there. After being offered to live on Earth if the Baltans obeyed Earth’s laws and customs, talks immediately broke down with the dialog ending, “[The] Conversation is over. We shall have the Earth.”
A fight with Ultraman followed, which ended with the now giant Baltan killed. Ultraman used his “Fluoroscope Ray” to decloak the Baltan ship and destroy it.
Yes, Ultraman destroyed the ship with 2.03 billion alien life forms on it.
Were the Baltans Refugees?
International treaties define refugees, in relevant part, as those who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” USCS Protocol Refugee.
The Baltans were unable to return to their homeworld because it had been destroyed by nuclear weapons. This would qualify them as “refugees” under international law.
Were the Baltans Hostile to Life on Earth?
The Baltans did not appear to be adverse to humanity, but a Science Patrol member balked at the idea of 2.03 billion Baltans making Earth their home. Sure, they were miniature, which raised the issue of whether they could be given a small amount of real estate to make their home. However, that issue was never addressed, because their emissary stated, “We shall have the Earth.” That seems openly hostile, even if it is not an express declaration of war.
Mini-Genocide
Ultraman destroyed the Baltan ship with 2.03 billion individuals aboard. Is that genocide?
The crime of genocide is committed when someone, “whether in time of peace or in time of war and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such, kills members of that group.” 18 U.S.C. § 1091(a)(1). The punishment for having caused death is either death OR imprisonment for life and a fine of not more than $ 1,000,000, or both. 18 U.S.C. § 1091(b).
Ultraman flying the ship away from the city and then destroying it killed all 2.03 billion Baltans onboard. That was an act of genocide, because Ultraman destroyed the vessel with the specific intent to do so. Even if the intent was to only destroy the ship, then at best it is negligent genocide. There is no way around the fact the hero killed 2.03 billion Baltans. Ultraman has bigger problems than a black eye.
Sheltering in Place with Ultraman
Shelter in Place/Quarantine
In Terrifying Cosmic Rays, Tokyo is under a shelter in place order while a giant Kaiju monster, Gavadon, appears to threaten the city. In real life, at least one in four Americans (including this author) are under shelter in place or quarantine orders while a microscopic monster, the COVID-19 virus, threatens our health. So this seems like a great opportunity to discuss the legalities of these orders.
Ultraman is of course set in Japan. Japan, unlike the US, has a unitary government, in which the central government has the general police power. In Japan – especially in a version of Japan in which the nation endures random but regular rampaging Kaiju – a shelter in place ordered by Japanese government (national or prefecture) would be unlikely to face any legal challenges. Conversely, the answer to this question is more complicated here in the US, as it depends on what government entity is issuing the order. The US has a federal system of government which divides power between the federal government and the state governments. Under the US Constitution, the federal government is one of limited, enumerated powers – it has only those powers explicitly granted by the constitution – while the states retain the general police power – they have all the powers of government except those that are explicitly withdrawn from their authority by the constitution.
This is true for quarantines as well, despite that quarantines are fairly extreme exceptions to our usual legal (and moral) norm of thoroughly adjudicating any government attempt to detain or otherwise imprison citizens before the state can carry out the detention. Quarantines, by contrast, are an extreme deprivation of liberty based on the mere suspicion that a person has been exposed to a dangerous contagion and often with no immediate means of challenging the decision. Nonetheless, states undoubtedly have the power to quarantine those within their borders, which has been long considered a part of the general police power left to the states by the Tenth Amendment, and there’s a long (and sometimes sordid) history of states enforcing involuntary quarantines. See Jew Ho v. Williamson, 103 F. 10 (C.C.N.D. Cal. 1900), in which a federal court ruled that a quarantine of an entire Chinese district in San Francisco to prevent the spread of bubonic plague violated the Fourteenth Amendment’s guarantee of equal protection of the laws.
It’s less clear if the federal government could order a nationwide shelter in place or quarantine citizens who are not engaged in foreign or interstate travel, and indeed the shelter and quarantine orders thus far have been issued by state and local authorities. This is because, as mentioned above, the US government doesn’t have general police power and must instead source any action in an express provision of the Constitution. Nor does a national emergency create a magical backdoor to the Constitution. Declaring a national emergency increases the President’s powers under various statutes and makes more funding available, but it doesn’t alter the Constitution to make the President dictator, even a temporary one. In short, the President’s authority on this count is extremely dubious. Any nationwide shelter in place order would, in essence, usurp the authority of the many governors who have yet to order statewide lockdowns, and if the President were to attempt such an order, there would be many immediate legal challenges by private citizens as well as angry governors.
Could Congress accomplish a national shelter in place or mass quarantine by suspending the writ of Habeas Corpus? (The President cannot suspend the writ; see Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861)). Also likely not, since the constitutional provision for suspending Habeas Corpus is quite specific. US Const. Art. I, § 9, Cl 2.: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” This might plausibly be interpreted to encompass any severe threat to national security. But an interpretation that extends to public health is more controversial, as it would render much of the language of the clause superfluous. This author is unaware of any past suspension of Habeas Corpus on grounds of contagion, and indeed the only times Habeas Corpus has been suspended were during or shortly after the Civil War.
But what about the Commerce Clause? I could easily write a whole separate blog post on whether Congress has the power to order a nationwide shelter in place or quarantine via its power to regulate interstate commerce, which is a hotly debated constitutional provision with a complicated history in the courts. Suffice to say that it is the opinion of this author that any interpretation of the Commerce Clause that would permit Congress to directly regulate the patently non-commercial, intrastate activities of Americans such as visiting the in-state homes of friends and families would extend the Commerce Clause to encompass all human activity and relocate the general police power in the federal government.
Long story short, if a state or city issues an order to shelter in place or even a mass quarantine, there’s no real debate that it’s within their lawful authority. It’s a much more difficult question as to whether the federal government has the power to order a nationwide shelter in place or quarantines, and if it were to do so you should expect legal challenges to follow.
The second obvious question is: What limits are there to the state’s power to lockdown or quarantine their citizens? In theory, Americans are still entitled to due process before being deprived of their liberty. There are serious practical problems with adjudicating a due process challenge to a SIP or quarantine, however. First and foremost, both are typically very brief and it’s nigh impossible to get a case in front of a federal judge in under two weeks. Also there’s the problem of qualified immunity (a doctrine I don’t much approve of anyhow), in which state officials can’t be held liable for money damages if their conduct was not in violation of clearly established law. A shelter in place or quarantine order that was simply mistaken or poorly administered but was nonetheless carried out in good faith is unlikely to meet this bar. But if a state or state official decides to quarantine citizens arbitrarily or in a discriminatory manner, such as the racially-motivated lockdown of Chinatown in Jew Ho v. Williamson, qualified immunity would not shield the state from liability (since it’s clearly established law that state officials cannot discriminate on the basis of race). Even in this extreme circumstance, however, you are only going to be able to seek money damages after the fact because it is unlikely that you would be able to obtain a court order granting you preliminary relief before the shelter in place or quarantine order has already been carried out and completed.
Is there a right to draw Kaiju?
Finally, I want to talk about the scene at the end of the episode, in which our heroes, the Science Special Search Party, walk through a playground full of kids drawing multitudes of Kaiju in chalk on the pavement. The narrator remarks that, although these drawings might someday be hit by cosmic rays and come to life, it is the right of children to draw what they want.
But is it, though? Could the government ban the drawing of Kaiju in order to protect its citizens from rampaging (or napping) Kaiju?
It likely depends on how broad such a ban is. Laws governing artistic expression must be analyzed under the First Amendment’s prohibition of laws that abridge the freedom of speech. A ban on drawing Kaiju is undoubtedly content-based (as opposed to a content-neutral law, such as a noise ordinance), and so would have to pass the highest level of constitutional review, strict scrutiny: the law must serve a compelling government interest and must be narrowly tailored to further that interest (ban no more speech than necessary).
In a world in which drawings of Kaiju that are left exposed to celestial radiation have a small but real chance of coming to life and going on city-destroying rampages, the compelling government interest analysis is undoubtedly satisfied. If the ban were tailored to cover only drawings that are left exposed to cosmic rays (outdoors), then it also almost certainly passes the second hurdle of narrow tailoring. A sweeping ban on all drawings of Kaiju, no matter where they are drawn or displayed, on the other hand, would likely not pass First Amendment muster, since it would not be narrowly tailored to serve the compelling interest of avoiding mass destruction: it includes in its ambit speech that definitely wouldn’t create living Kaiju, like drawings in a book stored indoors.
But assume that when children view these otherwise benign drawings of Kaiju, they are more likely to run outside and draw Kaiju. Could the outright ban pass legal muster under this argument? Still no. In Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011) the Supreme Court rejected a similar argument in defense of a ban on violent video games.
In conclusion, the right of children to draw what they want is not unlimited, and in the face of such a compelling interest as preventing Kaiju attacks, the government would be well within its power to ban drawing Kaiju where they might be hit by terrifying cosmic rays.
Counterfeit Unicorns in the Time of Coronavirus
Okay, it’s not quite Love in the Time of Cholera, but it’s still not a title I thought I’d ever write. And yes, we are in the midst of a global pandemic with news that gets more terrifying by the day, with all of us struggling to adjust to this new reality and the fears that come along with it. But we also have to find our moments of levity if we’re going to make it through without going completely bonkers.
And that levity is just what Judge Seeger, United States District Judge for the Northern District of Illinois (aka Chicago), found last week. The case before him, Art Ask Agency v. [Various Defendants], involves a lawsuit alleging trademark infringement. Art Ask claimed that the various defendants (both individuals and companies) were infringing on its trademarks, which include lifelike portrayals of fantasy subjects. According to the court, examples of the infringing designs included “a puzzle of an elf-like creature embracing the head of a unicorn on a beach” and “a purse with a large purple heart, filled with the interlocking heads of two amorous-looking unicorns.” (Yes, I did a Google search to see if I could find these products and no, I could not find any, thank goodness.)
The plaintiff was seeking an immediate temporary restraining order (aka TRO) — a tool that a plaintiff can use early in a case to temporarily stop defendants from doing certain acts if the plaintiff can show that: (1) it is likely to succeed on the merits of its claim; (2) it will suffer irreparable harm if it doesn’t get the TRO; (3) that the balance of equities tips in its favor (i.e., it seems fair to grant the TRO); and (4) the injunction is in the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Irreparable harm means that the plaintiff will need to show that getting money or some other verdict at the end of the case won’t be enough to make the plaintiff whole — the action must be stopped now. Irreparable harm can include such things as your house being sold out from under you or a competitor stealing your customers right now.
While the plaintiff was seeking a hearing on its TRO, of course, the US and the world were dealing with the Covid 19 pandemic. Last week, the United States Supreme Court announced that, for the first time since the Spanish Flu, it would be closing its doors and postponing oral arguments. State and federal courts have likewise followed suit, postponing jury trials and trying to rearrange their calendars so that the truly pressing issues they must deal with even in the midst of a pandemic can safely proceed while pushing back other, less crucial court proceedings.
With this pandemic and the resulting court changes in mind, Judge Seeger pushed back plaintiff’s requested hearing on the TRO for a few weeks. In response, the plaintiff first moved the court to reconsider its order and then filed an emergency motion. It was in response to this motion for reconsideration that Judge Seeger issued his now famous “Unicorn Opinion.”
In this opinion, he addressed the plaintiff’s sense of urgency and actions in attempting to get this immediate TRO. All plaintiffs seeking a TRO are generally in a rush because they believe the harm is imminent and serious, of course. In this instance, however, not only was the plaintiff wanting relief immediately, but they also wanted wide-ranging relief from a number of businesses that weren’t even parties to the lawsuit. In this case, the plaintiff was wanting to: force financial institutions to lock down accounts, require domain name registries to shut down websites, and force third parties, such as Amazon, eBay, Alibaba, Facebook, Twitter, and Google, to take immediate actions within a few days of them of the TRO being entered. As the court noted, such an order could distract people and businesses with far bigger concerns right now. In examining the potential harm to the plaintiff, the court stated: “Plaintiff has not demonstrated that it will suffer an irreparable injury from waiting a few weeks. At worst, Defendants might sell a few more counterfeit products in the meantime. But Plaintiff makes no showing about the anticipated loss of sales. One wonders if the fake fantasy products are experiencing brisk sales at the moment.”
As a result, Judge Seeger denied plaintiff’s motion for reconsideration, thereby refusing to have an immediate hearing on the plaintiff’s TRO. In making this ruling, the court apparently felt that plaintiff’s counsel had not tempered their client’s sense of urgency appropriately in light of the bigger picture. In a line I may have embroidered on a pillow, the court quoted Elihu Root: “About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.” In the court’s final lines, Judge Seeger put the TRO in perspective for the plaintiff: “The world is facing a real emergency. Plaintiff is not. The motion to reconsider the scheduling order is denied.”
This opinion reminds us all that we need to keep things in perspective, especially now when the real challenges we are facing are literally life or death. But hopefully, just like Judge Seeger, we’ll all be able to find moments of levity in the chaos.
In the meantime, if you have the ability to help others less fortunate than you, please check out some of these resources to see what you can do. While social distancing is crucial right now, we also all need to come together as a community to overcome this global challenge.
Finally, if you run out of shows, blogs, and podcasts to binge while sheltering at home, feel free to check out any or all of the 682 state and federal cases on Westlaw that include the word “unicorn” somewhere in the case.
Stay healthy and stay home, legal geeks of the world!!
20-cv-1666 -- Unicorn Order -- Art Ask Agency 3-18-20
Mandalorian Guardianship Mock Trial at SDCF 2020
The Armorer told the Mandalorian, “A Foundling is in your care. By creed, until it is of age or reunited with its own kind, you are as its father. This is the way.”
Would a court appoint the Mandalorian as The Child’s guardian? Law students Claudia Salinas (California Western School of Law), Denise Barnes (Thomas Jefferson Law School), Leasly Salazar (Southwestern Law School), and Brian Mallard (USD School of Law), argued before Judge Emily Spears at San Diego Comic Fest 2020 these complex issues of law.