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In a quartet of decisions handed down March 5, the Supreme Court gave its general approval to two tough-on-crime trends that swept the nation in the 1990s: Megan’s laws and three-strikes statutes. As a group, the decisions stand as an unmistakable symbol of the conservative majority’s strength in approving sweeping state experimentation in the area of crime and punishment. In the case of Megan’s laws, in which governments use the Internet or some other kind of public registry to warn neighborhoods of sexual predators in their midst, the justices agreed that the laws do not amount to extra punishment that would violate ex post facto prohibitions, and do not violate defendants’ due process rights. As for three-strikes statutes that allow for stiff penalties, including life in prison, for third-time offenders, the justices agreed that the penalties do not violate the Eighth Amendment bar against cruel and unusual punishments. “These rulings demonstrate once again that in the area of criminal law, the Court’s instincts are quite conservative and more deferential to state judgments than they are in other areas of the law,” says Steven Shapiro, legal director of the American Civil Liberties Union. “This Court is committed to upholding the ability of states to protect their citizens from the most dangerous predators,” says Charles Hobson, an attorney withthe conservative Sacramento, Calif.-based Criminal Justice Legal Foundation, which filed briefs supporting the state laws. Lawrence Goldman, president of the National Association of Criminal Defense Lawyers, sees another disturbing theme connecting the four rulings. “Today’s Supreme Court decisions reinforce the unhealthy abandonment of rehabilitation as a goal of the criminal justice system,” said Goldman. “The Court has upheld life punishments, although ofdifferent types, for individuals who have successfully completed their prison terms.” Both questions decided March 5 were spawned by high-profile crimes against children in the 1990s. In 1993, Polly Klaas was murdered in California by a repeat offender out on parole. California voters enacted the three-strikes law soon after, followed by similar legislation from the federal government and more than half the states. A year later, seven-year-old Megan Kanka was killed in New Jersey by a neighbor who had a record of sex crimes. In the aftermath, Congress passed a law that succeeded in encouraging all 50 states to enact some kind of sex offender registration law. The individual rulings handed down March 5: • Smith v. Doe, No. 01-729, in which Alaska sex offenders challenged that state’s Megan’s law because it required them to register even though their offenses occurred before the law passed. Justice Anthony Kennedy, writing for the 6-3 majority, said that although the law may have a “lasting and painful impact” on sex offenders, it amounts to a regulatory scheme for notifying the citizenry about public information. As such, the majority found it was not punishment, so could not violate the Constitution’s ex post facto clause, which bars enactment of new punishments for old crimes. In dissent, Justice John Paul Stevens said it was “clear beyond peradventure” that the Alaska law is punitive. Justices Ruth Bader Ginsburg and Stephen Breyer also dissented. • Connecticut Department of Public Safety v. Doe, No. 01-1231, a procedural due process challenge to Connecticut’s Megan’s law brought by a sex offender who objected to the registration and Internet posting of his name. The U.S. Court of Appeals for the 2nd Circuit found that the law was a violation of due process because it deprived people of a “liberty interest” and did not give convicted sex predators an opportunity to prove they are no longer dangerous. The Court unanimously overturned the ruling, with Chief Justice William Rehnquist writing that the question of current dangerousness is “of no consequence,” because the law only reveals past convictions. “Mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest,” Rehnquist wrote. He held open the possibility that Megan’s laws could still be challenged as violations of substantive, rather than procedural, due process. Justice David Souter also wrote to suggest that the laws could be open to equal protection challenges as well. • Ewing v. California, No. 01-6978. Because of California’s three-strikes law, Gary Ewing’s theft of three golf clubs in Los Angeles County in 2000 resulted in a sentence of 25 years to life. California courts upheld the sentence, and the Supreme Court by a 5-4 majority also said it was constitutional. Justice Sandra Day O’Connor acknowledged the three-strikes law has been criticized, but in her majority opinion said, “We do not sit as a super-legislature to second-guess [the legislature's] policy choices. It is enough that the state of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons advances the goals of its criminal justice system in any substantial way.” Breyer, who read parts of his dissent from the bench, said that on the basis of comparison with other sentences and jurisdictions, Ewing made a strong claim that his sentence was “grossly disproportionate to the triggering offense conduct � stealing three golf clubs � Ewing’s recidivism notwithstanding.” Also dissenting were Stevens, Souter, and Ginsburg. • Lockyer v. Andrade, No. 01-1127. The three-strikes triggering offense for Leandro Andrade was the theft of videotapes from two Kmarts in California within two weeks in 1995. He was sentenced to two consecutive terms of 25 years to life in prison � one term for each theft. The sentence was upheld by state courts, but upon habeas corpus review by the federal courts, it was overturned by the U.S. Court of Appeals for the 9th Circuit. Noting that the scope of federal review was limited by the federal Anti-Terrorism and Effective Death Penalty Act of 1996, O’Connor said the California courts’ determination was not “objectively unreasonable” in its application of Supreme Court precedent. In dissent, Souter said the California courts’ affirmance of the ruling was unreasonable and irrational. “Andrade did not somehow become twice as dangerous to society when he stole the second handful of videotapes,” wrote Souter. Stevens, Ginsburg, and Breyer joined the dissent. Lifting the Bar On Trademark Dilution The Supreme Court on March 4 made it harder, though not impossible, for companies to defend famous trademarks against dilution by other companies. By a surprising unanimous vote, the high court ruled in favor of an Elizabethtown, Ky., adult store named Victor’s Little Secret in its trademark battle against the giant lingerie retailer Victoria’s Secret. Victoria’s Secret had claimed the store’s fanciful name was likely to “blur and erode the distinctiveness” of its own trademark, widely recognized from catalogs and stores. Justice John Paul Stevens, writing for the Court in Moseley v. V Secret Catalogue Inc., said the Federal Trademark Dilution Act of 1995 required Victoria’s Secret to show “actual dilution,” not the mere likelihood of harm. Stevens also said that mere “mental association” in the mind of consumers between two marks did not amount to dilution. But the Court also said trademark holders do not have to go so far as to prove they actually lost sales or profit. Within those guideposts, the Court created a wide gray area that will likely spawn new litigation over what, exactly, famous trademark holders have to prove to prevail. The Court suggested that “circumstantial evidence” of dilution could suffice, and extensive consumer surveys were not necessary. “They’ve identified the next generation of issues,” says Mark Levy, a partner at Howrey Simon Arnold & White who filed an amicus brief in the case on behalf of the Intel Corp. “But they did not say exactly what it will take to prove actual dilution.” Levy says that, overall, the ruling was a victory for trademark holders even though, strictly speaking, Victoria’s Secret lost. Justice Stevens specifically distanced the Court from a 1999 ruling by the U.S. Court of Appeals for the 4th Circuit in Ringling Bros.-Barnum & Bailey Combined Shows Inc. v. Utah Division of Travel Development, which requires proof of actual economic harm for trademark holders to show dilution. “While dismissing the ‘likelihood of dilution’ standard, the Court has left famous mark owners with a higher burden of proof � yet unfortunately, little guidance as to how to meet that burden,” says Jonathan Hudis, a partner in Alexandria, Va.’s Oblon, Spivak, McClelland, Maier & Neustadt. Hudis filed a brief in the case on behalf of the American Intellectual Property Law Association. The lack of specificity and relative brevity of the opinion � just 16 pages long � left some Court-watchers speculating that in order to hold the majority together, Stevens had to excise major parts of the ruling and send the case back to lower courts to sort out. “They basically split the baby in half,” says Ethan Horwitz, a partner at New York’s Goodwin Procter. For holders of the top tier of recognizable trademarks, such as Coca-Cola or Buick, the ruling makes it “harder, but not dramatically harder,” to make a dilution claim, Horowitz says. Victoria’s Secret itself could still prevail on remand, he says. But Horwitz says that defense of a trademark will be significantly harder for a lesser-known mark such as Shoney’s, the restaurant chain. If another company began marketing food-related products such as packaged food or cutlery under the Shoney’s name, Horwitz says, dilution would still be easy to prove. “But if a bicycle tire named Shoney’s came along, it would be harder to show dilution” because of the March 4 decision. Another feature of the long-awaited ruling that gave lawyers for trademark holders hope was a concurring opinion by Justice Anthony Kennedy emphasizing that injunctive relief was still available to prevent harm by dilution. “A holder of a famous mark threatened with diminishment of the mark’s capacity to serve its purpose should not be forced to wait until the damage is done,” Kennedy wrote. Victoria’s Secret could obtain an injunction on remand, Kennedy said, if it can present “sufficient evidence of either blurring or tarnishment.” A New LookAt Web Filters The Supreme Court may have finally been presented with a federal law restricting the Internet that passes First Amendment muster, in its view. In oral arguments March 5 in the case United States v. American Library Association, No. 02-361, the Court seemed more accepting than usual of congressional enactments in this area. At issue was the 2001 Children’s Internet Protection Act, which requires public libraries receiving federal funds for Internet access to install software that blocks pornography. Libraries are allowed to disable the software in individual cases for adults for “bona fide research or other lawful purposes.” Beginning with the Communications Decency Act of 1996, the high court has struck down two federal Internet laws and part of a third, granting the Internet the highest level of First Amendment protection as a medium of communications akin to the Colonial town crier. But in part because the current law ties the restrictions to federal funding and also because of the unique setting of the public library, justices appeared more willing to accept the government’s defense of the legislation this time around. The law applied both to public libraries and their public school counterparts, but only the public library section was challenged by librarians. They claimed that the law forces libraries to violate their patrons’ First Amendment rights. A three-judge panel in Philadelphia struck down the law, finding that even as a condition of receiving federal funds, it was unconstitutional. Solicitor General Theodore Olson, arguing in favor of the law, told the Court that what Congress required is merely an electronic version of what libraries do all the time: choosing which books to buy and which not to. Just as libraries decide not to buy certain books or magazines because of adult content, Olson said they should be able to block online material as well. “The First Amendment does not require libraries to sponsor the viewing of pornography,” Olson said. Justice David Souter protested that Internet blocking is unlike selecting books. When it chooses not to buy a book, Souter said, “It knows what it is deciding not to do. Here it does not know.” The blocking software is the creation of others, and thus, Souter said, “the inevitable price of this is blocking more than the statute requires.” Olson acknowledged that blocking technology is not perfect, but argued that the requirement to use it is “reasonable and rational.” Souter also said that libraries screen books in part because of limited shelf space. “A library can’t have every book. They’ve got to exclude some. Not [so with] the Internet.” Other justices also sought to counter the analogy between book selection and Internet blocking. “This is a case about the Internet. It is not a case about books,” said Justice John Paul Stevens. Justice Anthony Kennedy, noting that more than a million new sites are produced on the Internet daily, said, “It’s a whole new medium. It’s not like a library.” But apart from these comments, other justices were largely supportive of the law in their comments and questions. On behalf of the library group, Jenner & Block partner Paul Smith argued that when it comes into a public library, the Internet is “the most pure form of public forum you can imagine.” As such, restrictions have to withstand strict scrutiny, he argued. Several justices seemed skeptical. Justice Antonin Scalia said the fact that the restrictions were tied to federal funding required a different analysis, and Justice Sandra Day O’Connor said Court precedent required caution before applying forum analysis to new situations. Justice Stephen Breyer asked whether a school library was also a public forum. Smith tried to qualify his answer but when pressed by Breyer, he said it was. “So the Addison Hill Elementary School has to allow the worst kind of stuff there is,” Breyer said skeptically. Smith said restrictions would still be allowed because of the youth of the audience. Breyer persisted, arguing that asking a library to disable the blocking technology was not a “great burden.” Smith said it would be a burden, because patrons would have to explain their reason for needing unblocked material and might be “stigmatized” as a result. The unblocking might also delay a patron’s research. “That’s not atypical in research,” said O’Connor, analogizing it to a library obtaining a requested book from a neighboring library. Smith said the federal government had “no business” using its spending power to interfere with professional judgments by librarians about the material available to the public. Smith emphasized the crude state of the technology, which blocks access to legitimate sites about breast cancer, sexuality, even politics: “A huge percentage of sites that are blocked are not illegal even for children.” But O’Connor deflated that argument, expressing doubt that the Court should base its constitutional finding on software flaws that could be fixed.

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