COURTSIDE with Neal Katyal

At once revered and reviled, Citizens United remains one of the most controversial and consequential Supreme Court decisions of the twenty-first century. Striking down all prohibitions on independent campaign expenditures, the landmark 2010 decision found that corporations are afforded the same First Amendment free speech rights as are individuals.

While Justice Stevens, dissenting for the Court’s four liberal members, blasted the conservative majority’s “wooden approach to the First Amendment,” his words were not enough. Citizens United removed one of the last remaining guardrails against corporate interests, and as a result, dark money, corporate spending, and Super PACs have come into election cycles.  Join the legendary Hollywood Director Judd Apatow as we get into the case.

This marks the end of the Courtside Season 1. There might be a special bonus episode coming with someone quite interesting next month, if the stars align. And yes, because you all made Courtside such a smashing success, Season Two will appear in the summer of 2024!

Paid subscribers have access to all the extra written materials about Citizens United below, including a short summary of the case, the full written decision, and an abridged one.

I discuss these three Trump maneuvers, and why each is likely to fail. Listeners have been asking me about each of these 3, so I thought I’d put my answers to you in this format. For more on the new Georgia statute for ouster of local prosecutors (a move Governor DeSantis just used in Florida), read this informative article https://www.theatlantic.com/ideas/archive/2023/08/trump-georgia-indictment-motion-remove/675019/

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Campbell v. Acuff-Rose Music Inc. is an important 1994 Supreme Court decision that profoundly impacted copyright law. In a unanimous decision, the Court found that parody is, by and large, protected under the fair use exception, meaning that it doesn’t violate copyright. In the case, 2 Live Crew, a rap group, parodied Roy Orbison and William Dees’ song “Oh, Pretty Woman.” The Court said that was OK. In the long run, the decision has eliminated barriers that previously prevented artists from incorporating unoriginal works into their own, thereby promoting creative growth and the expansion of the arts.

We have the ideal guest to discuss the case, Aaron Dessner. Aaron is part of what I think is the best band in America, the National. He's also the most sought after music writer today, having co written several records with Taylor Swift, including the hauntingly beautiful Folklore and Evermore. He just did the same with Ed Sheeran’s new record Subtract. The idea for this episode arose one night after one of Aaron’s concerts, where he and I got talking about music and copyright and how AI, Artificial Intelligence, was going to upend things.

So here’s what happened. In 1964, the singer-songwriters Roy Orbison and William Dees wrote a song entitled “Oh, Pretty Woman.” After completion, they assigned the rights of the song to a music company called Acuff-Rose Music, which soon had it registered for copyright protection.

25 years later, popular rap music group 2 Live Crew wrote a parody of the song, which they called “Pretty Woman.”

The parody began with the original lyrics and harmonies, but it quickly changed gears, replacing the wishful and melancholy words and chords with startlingly brash ones. 2 Live Crew wrote to Acuff-Rose and asked for permission to release their parody. Acuff-Rose denied the request, but the group went ahead and released the song anyway.

About one year later, Acuff-Rose sued 2 Live Crew for copyright infringement. The District Court ruled in favor of 2 Live Crew, but the Court of Appeals reversed. 2 Live Crew appealed, and the Supreme Court agreed to hear the case. At issue was a simple question, but one that had the potential to radically transform copyright law: Did 2 Live Crew’s parody qualify as fair use under the Copyright Act of 1976?  The Court unanimously said it did.

Campbell v. Acuff-Rose Music was a very consequential ruling. Aside from allowing 2 Live Crew to continue selling their parody of “Oh, Pretty Woman,” the decision also promoted artistic growth, pushing the boundaries of what could acceptably be imitated from preexisting works. Indeed, by recognizing that parody meets the threshold for fair use, the Court opened countless doors for aspiring artists, ensuring that they can draw upon, alter, and otherwise criticize previous works.

But that is not to say that the decision gives artists a blank check. As Justice Kennedy remarked in a brief concurrence, “The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole.” In other words, parody qualifies under the fair use exception so long as it criticizes the original work (and not some broader societal phenomenon). The decision thus respects the key tenets of copyright law and protects the works of parodists, striking a delicate yet thoughtful balance between two competing interests.

Aaron and I get into a discussion of modern copyright problems, including the Ed Sheeran case and the ways in which Artificial Intelligence might upend things.

Paid subscribers have access to all sorts of information about the case, including a short summary of it, an abridged version of the decision, and the full decision. There will also be a remarkable bonus episode with more from Aaron Dessner for paid subscribers in the days to come.

Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith et al. is a landmark 2023 Supreme Court decision concerning copyright law and the “fair use” exception. We have two amazing guests in conversation to discuss it. Adam Weinberg is the Director of the Whitney Museum, and the smartest person about art that I know. Deborah Kass is a brilliant artist, and some of her most famous work plays on Warhol. They are the ideal guests to discuss how this decision will transform the art world — and guide us through a vicious debate between Justice Sotomayor (for the majority) and Justice Kagan (for the dissent, joined by Chief Justice Roberts).

To understand what’s going on, first know that the Copyright Act gives artists a number of rights intended to preserve and promote creative expression. Included among these are the right to reproduce copyrighted work, the right to create derivative works, and the right to display copyrighted work in a public setting.

However, artists do not have absolute control over their work. In 1976, Congress passed a law stating that the use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching…scholarship, or research” is not an infringement of copyright. This is known as the “fair use” exception to the Copyright Act.

To determine if a piece qualities as “fair use,” the statute offers four factors for consideration: “The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and; the effect of the use upon the potential market for or value of the copyrighted work.” If a new piece of art alters an original work to such an extreme that, under factor one, the “purpose and character” of the new piece is altogether different from the original, it is said to be “transformative.”

Enter Andy Warhol. In 1984, Vanity Fair commissioned Warhol to create a portrait of Prince for their magazine cover. The portrait was to be based on a photo taken by photographer Lynn Goldsmith; Vanity Fair had paid Goldsmith $400 for the photo and agreed to use it only for the cover of the magazine. However, Warhol went on to create 15 separate portraits of Prince, each of which used the photo as inspiration. In 2016, the Andy Warhol Foundation (AWF) sold Condé Nast the rights to one of these portraits. Goldsmith received no compensation, and when she heard about the transaction, she demanded payment. AWF responded by launching a lawsuit. You can see Goldsmith’s original photo on the right, and what Warhol did on the left.

AWF argued that Warhol’s rendition of Prince (titled Orange Prince) was so transformative that, under the first factor for fair use, the portrait acquired an entirely new “purpose and character” and was therefore legal. Lawyers for Goldsmith disagreed. Thus, the decision centered around one, key question: Did the sale of Warhol’s portrait of Prince make fair use of Goldsmith’s photograph, particularly with respect to factor one of the Copyright Act’s “fair use” exception?

Writing for a 7-2 majority, Justice Sotomayor held that the Warhol Foundation committed copyright infringement when, in 2016, it sold the rights to a Warhol work (based on a photograph by Lynn Goldsmith) without compensating Goldsmith. In a blistering dissent, Justice Kagan argued that the Majority Opinion would have chilling effects on the creative process, limiting artists, musicians, writers, and others in their ability to create new and inspired works.

I’m thrilled that listeners will get to hear Deborah Kass, one of the greatest living artists, and someone whose work appropriates Warhol (who in turn is appropriating others). This is the Red Deb of her’s that we discuss in the episode:

While it is too early to know exactly how the Supreme Court’s Warhol decision will play out, many experts see the case as a shift in the world of copyright law, opening the floodgates to more lawsuits and potentially hindering artistic creation across the country. It will be a fascinating next few years for copyright.

One last thing: I’m well aware that it’s hard to just listen to this episode without seeing the pictures. Next week’s copyright episode will be about music, not pictures, with the great guitarist and most sought after music writer today, Aaron Dessner. Together, they will give you a comprehensive look at how copyright law is impacting our lives, every day.

For all the written materials about the case, along with pictures and the full written opinion, and a bonus discussion with Deb and Adam, become a subscriber to Courtside at nealkatyal.substack.com.

Judge Michael Luttig was one of the most respected jurists and lawyers in our nation. Appointed by President Reagan and a deep conservative, he played a critical role on January 6. Listen to his remarkable reactions to the indictment brought by Jack Smith.

For more, please subscribe to Courtside at nealkatyal.substack.com. There you’ll get access to all the full episodes and written materials, including deep dives on historic Supreme Court cases with discussions from people like John Mulaney, Katie Couric, and Rob Reiner. I will also be launching a second emergency Courtside today with my own reactions to the indictment.

This episode is like a matter-anti matter explosion. Regina Spektor is one of the deepest and most thoughtful humans on the planet, and one of the most talented musicians to boot. Her music can bring you to tears with its celebration of life and emotion. She and I discuss one of the lowest points for the Supreme Court in recent memory, Hawaii v. Trump, where the Supreme Court upheld Trump’s severe restrictions on countries that were overwhelmingly Muslim. Paid subscribers on nealkatyal.substack.com will have access to the full written materials around the decision (including a short summary) along with some bonus material from the interview with Regina.

On December 7, 2015 (note the date), candidate Donald Trump called for "a total and complete shutdown of Muslims entering the United States.” 5 days into his Administration, he implemented it, leading to mass protests at airports.

That travel ban got struck down by the Courts. Trump created a new one. That one got struck down by courts. Trump created another one. And that third one is the one that went to the Supreme Court.

The Supreme Court, in a 5-4 decision written by Chief Justice Roberts, upheld the third ban. Chief Justice Roberts found that the ban was constitutional, arguing that it neither exceeded the executive power of the Presidency nor violated the First Amendment. Justice Breyer issued a dissent examining the Proclamation’s system of waivers and exemptions. In her more dissent, Justice Sotomayor rebuffed Roberts’ argument, connecting then-candidate Trump’s Islamophobic rhetoric to the ensuing travel ban and suggesting parallels to the Japanese internment cases. While the ban only lasted for four years, its impact was enormous; families were separated, dreams were crushed, and perhaps most disturbingly, the Court set a dangerous legal precedent. To me, as I wrote about in Yale Law Journal, it was a resurrection of the Korematsu case, where the Court upheld the Japanese American internment on grounds of national security. (Please keep in mind, I argued the Hawaii case in the Supreme Court and the lower courts, and have strong feelings, and some good stories I share here.). I have always felt the Supreme Court got Korematsu wrong, but part of the blame rests with the Solicitor General at the time, who lied to the Supreme Court.

Regina, herself a refugee, is the perfect guest to discuss the human impact of a decision like Trump v Hawaii. I can’t wait for you to listen in, for what she says about the promise of America is so moving.

Paid subscribers will have access to all the written materials and summary of the decision, along with a bonus episode discussing Regina’s tips for overcoming stage fright. Sign up at nealkatyal.substack.com

As we wait to see what federal prosecutor Jack Smith will do regarding Donald Trump and the January 6 investigation, I wanted everyone to understand the major new developments in the stolen documents/Mar a Lago case.

This quick 5 min episode is available to anyone, but if you want more, including my in depth discussions about the Supreme Court with people like John Mulaney, Rob Reiner, Katie Couric, and others, please sign up at nealkatyal.substack.com

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Heather Cox Richardson is one of the most brilliant and accessible historians of our time. Her newsletter, Letters from an American, has over 1.1 million subscribers, and for good reason. And you’ll see it here — she is discussing perhaps the most important case the Supreme Court has ever decided, Dred Scott. It’s not an exaggeration to say that the Court’s decision sparked the Civil War.

There is so much difficult history to master to understand the case, and I’ve never heard it better explained than here. I mean, I’ve taught Dred Scott 20 times, but never with the incisive historical background she provides just in the first few minutes of the podcast. Many people gloss over the decision — it’s a bit complicated and it’s SO old. But it’s really important, and Prof. Richardson helps break it down into something absolutely understandable.

Dred Scott v. Sandford occupies a unique place in the annals of American history — that of the Supreme Court’s worst decision. Ever. Disgracing the very idea of democracy, the 1857 ruling stripped freed slaves of citizenship, invalidated the Missouri Compromise of 1820, and officially defined slaves as “property” under the Fifth Amendment. While the decision is primarily known for its racial animus, constitutional hogwash, and egregious holdings, it also had the adverse effect of splitting the court. Indeed, in a sign of just how divisive Dred Scott was, nine separate opinions were issued — one by each justice. We also cover the reactions to the decision, including the remarkable views of Frederick Douglass.

And in many ways, the Court’s deep schism reflected a broader reality; Dred Scott ripped apart an already-divided country, pushing the United States towards a civil war that seemed all the more imminent with each passing day. I can’t wait for you to listen to this.

Much of the episode is available to everyone, on any podcast platform. Paid subscribers have access to the rest of the episode, along with written materials about the case (I've summarized the decision and provided an abridged version of it, along with the full written decision). Paid subscribers also will receive a bonus podcast discussion with Professor Richardson. I would so appreciate you becoming a paid subscriber, which covers the considerable production costs, as I'm not running any ads on the podcast at all. All profits go to charity. Thank you for listening!

I cannot tell you in words how excited I am for you to hear this episode. I’ve been struck by John Mulaney for years — his delivery, his unique understanding of the world, his deep empathy for the human condition. I didn’t know until last year he is also a Constitutional Law nerd. I mean, seriously, he texts me all sorts of questions about random Supreme Court cases. All the time. And they are damn good questions.

John’s questions are really what launched me on this podcast Courtside, because it occurred to me that Constitutional Law should not be the province of a bunch of lawyers — it belongs to all of us.

You are about to get treated (whether a paying subscriber or not) for what I’ve had the privilege of seeing with John, an absolutely first rate mind who brings joy and playfulness to everything he encounters. He picked Morrison v. Olson (1988), one of the most important cases in constitutional law. The case concerns how to prosecute Presidential or high level Executive Branch wrongdoing. When he picked it, we didn’t know Donald Trump would be getting a target letter for the January 6 events at the same time, but the imminent criminal indictment of Donald Trump raises the importance of this episode even more.

Morrison v. Olson was a sweeping Supreme Court decision, decided in 1988, that found the Independent Counsel Act of 1978 constitutional. This Act was responsible for the appointment of independent prosecutors such as Ken Starr, who kickstarted the sprawling and viciously partisan investigation of Monica Lewinsky, and Lawrence Walsh, who was tasked with investigating the Iran-Contra affair during the Reagan Administration. While the Court issued a 7-1 ruling in favor of the Act (with Chief Justice Rehnquist writing for the majority), the decision is widely thought to have been a mistake. Most believe that Justice Scalia’s lone dissent was ultimately correct, and some even argue that it is the finest dissent he ever wrote.

John is pinpoint accurate in describing Morrison, and the ways in which it matters. Paid subscribers are also going to get a bunch of bonus material from John, including the ways in which he thinks Supreme Court argumentation is similar to comedy, and its differences. It’s a remarkable discussion, and I can’t wait for you to hear it.

We also spend some time describing the different models for prosecuting a President. Ultimately, the big problem is that the Constitution vests the prosecution power in the President. And if it’s the President (or his friends or family) who are the ones accused of wrongdoing, there is an inherent conflict of interest in the investigation. Yet the Constitution doesn’t provide for any alternative. This is a problem of governance that goes back millenia — to Juvenal’s query Who Guards the Guardians? (Or, as Dr. Seuss put it, bee-watchers watching the bees, and bee-watcher-watchers watching the watchers.)

Regardless, the American public is about to see one model, the Special Counsel regulations, come into force as Jack Smith prosecutes former President Donald Trump. Understanding Morrison v. Olson is essential to understanding the constitutional architecture of this prosecution, and what we can expect. Enjoy this remarkable discussion with John Mulaney.

Paid subscribers will have access to the full interview and some bonus material, along with information and writeups about Morrison v. Olson, all on the substack website. https://nealkatyal.substack.com/. Sign up there for all the goodies.

This week’s episode focuses on one of the most moving things I’ve seen in my life: the US Supreme Court using its powers to ensure that marriage equality is the law of the land. When I was in law school from 1992-1995, if you said the Supreme Court would require states to recognize same-sex marriage within two decades, you likely would have been laughed out of the classroom. And yet, that is precisely what happened.

Courtside is an entirely reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. I’m donating all profits to charity, and your subscription covers considerable production costs.

This outcome was the result of brilliant advocacy and foresight by so many different people. One of them is our guest for this week, the legendary Rob Reiner, who is going to take you behind the scenes of how this monumental victory was achieved. It’s an amazing story. Rob is the gold standard of Hollywood, a truly accomplished Director. When Harry Met Sally. Spinal Tap. Princess Bride. American President. The list goes on and on.

He’s also a dear friend. When I argued Moore v. Harper, Rob came to watch and hold my hand. Perhaps my favorite moment at the lunch afterwards was when Judge Luttig admitted he didn’t know who Rob Reiner was, or what any of his movies were. The Judge is truly a man of tradition!

Rob and I have been collaborating on a TV show for families about the Constitution — something of a revival of Schoolhouse Rock. With Jordan Klepper!

The episode begins with a bit of legal news of the week, and in particular, an examination of Donald Trump’s claim that the Presidential Records Act allowed him to take classified information home and bring it to Mar a Lago. (Spoiler: it doesn’t.)

This week, we are doing a deep dive into Obergefell v. Hodges, the 2015 Supreme Court decision that made marriage equality the law of the land. The case began in the early 2010s in four states — Ohio, Michigan, Tennessee, and Kentucky — all of which defined marriage as the union between a man and a woman. These states, however, were not outliers; few States recognized same sex marriage.

Recognizing that their rights were being trampled on, fourteen same-sex couples and two men whose same-sex partners had died filed lawsuits against their respective state governments. James Obergefell was one of these people. More than two decades earlier, Obergefell had met and fallen in love with his future life partner: John Arthur. In 2011, however, Arthur was diagnosed with a debilitating illness called ALS. Realizing that Arthur’s death was imminent, the duo resolved to get married. To do so, they had to travel to a different state (Maryland) where same-sex marriage was legal; by this point, however, Arthur could barely move, meaning the couple had to be wed inside a medical transport plane on the airport tarmac. Arthur died three months later, but Ohio law forbade his death certificate from listing Obergefell as the surviving spouse. Grieving the loss of his loved one and pained by this state-imposed separation, Obergefell filed a lawsuit, alleging that Ohio state law violated his civil rights under the Fourteenth Amendment of the Constitution.

By the time the case arrived at the Supreme Court, however, Obergefell wasn’t the only plaintiff. More than a dozen similar lawsuits had been launched across the country, and they all merged into one case. Indeed, it was clear that this was the moment to decide the future of same-sex marriage for the country. And there were only two questions before the Court, both of which were relatively straightforward. First, is same-sex marriage a constitutionally protected right? And second, if someone receives a marriage license in one state, are other states required to recognize that marriage license as valid?

The Court answered yes. Learn about how it got there on the podcast. And stay tuned for a remarkable conversation with Rob, not only about how he directs Hollywood movies, but how he directs public movements. Paid subscribers will have access to the full conversation, all the episode notes (including short excerpted versions of the opinions in Obergefell along with the full version), and bonus material from my interview with Rob later in the week.

Here is a short 4 pager description of the decision in Obergefell

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Here is an excerpted version of the decision

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Here is the full decision: