At the same time, in separate rulings, the court also upheld Kansas’s abolition of the insanity defense and found North Carolina couldn’t be sued for copyright infringement.

In Comcast Corp. v. National Association of African American-Owned Media, Comcast had declined to do business with Los Angeles-based Entertainment Studios Networks (ESN), which is owned by black entrepreneur and comedian Byron Allen. Comcast said there was “insufficient consumer demand” for ESN’s programs.

Allen’s company, which is also suing Charter Communications Inc., retorted that Comcast has carried a multitude of white-owned networks, offered multiple different excuses, and made comments he construed as racial in nature.

Allen sued, claiming race-based discrimination under federal civil rights laws. The case was dismissed early in the litigation process—it has never reached the evidentiary discovery stage or gone to trial. A panel of the 9th Circuit Court of Appeals found the allegations raised against the company plausible enough to move forward and reinstated the action. Comcast appealed and the Supreme Court agreed June 10, 2019, to hear the appeal. The Trump administration supported Comcast’s position.

The Supreme Court held that a civil rights law adopted in 1866 that is known as Section 1981 requires plaintiffs to claim in lawsuits that they would have received a contract “but for” racial bias, a strict standard the court has used in other contexts. But the 9th Circuit had allowed the lawsuit to proceed under a more lax standard, that treated race as a mere “motivating factor,” instead of as the sole cause.

Section 1981 “follows the usual rules, not any exception,” Justice Neil Gorsuch wrote in the court’s opinion. “To prevail, a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right.”

The case was sent back to lower courts for reconsideration under the stricter standard.

Sovereign Immunity

In Allen v. Cooper, the Supreme Court ruled against a videographer who sought damages against North Carolina for violating his intellectual property rights. Justice Elena Kagan wrote the opinion for herself and five justices.

The case goes back to Blackbeard, also known as Edward Teach, an English privateer and pirate who died in 1718. His 40-gun flagship, Queen Anne’s Revenge, raided along the coasts of Virginia and the Carolinas. Coincidentally, English law, the forerunner of American law, first recognized copyrights in 1710, during the reign of Queen Anne. Blackbeard’s much-storied buried treasure—assuming it existed—has never been located, but the wreckage of the ship was discovered in 1996 by Intersal Inc., a marine salvage company. Federal and state law both recognize the wreck belongs to North Carolina.

The state contracted with Intersal to lead the recovery effort and it hired videographer Frederick Allen to document the process, which he did for more than a decade. The state published some of Allen’s photos and videos without his permission and agreed to pay him $15,000 as a settlement. Subsequently, the state posted more of his work online but refused to admit it had done anything wrong. Allen sued in federal court, accusing the state of copyright infringement and seeking money damages.

After the infringements, the state brought in a statute in 2015 known as Blackbeard’s Law, which deemed photos, video footage, and other material documenting shipwrecks to be part of the public record. Allen argued the law was enacted in bad faith.

Allen claimed the state violated the federal Copyright Remedy Clarification Act (CRCA), which exposes states, state bodies, and officials to copyright liability “in the same manner and to the same extent as any nongovernmental entity.” The trial court sided with Allen, but the 4th Circuit Court of Appeals reversed.

In the opinion, the Supreme Court held for North Carolina, finding that the CRCA didn’t dispense with sovereign immunity, a longstanding legal doctrine that generally immunizes states from liability in federal litigation.

“In our constitutional scheme, a federal court generally may not hear a suit brought by any person against a nonconsenting State,” Kagan wrote.

The Intellectual Property Clause in the U.S. Constitution, which gives Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” and the 14th Amendment cannot be used by Congress to take away the states’ sovereign immunity.

Insanity Defense

In Kahler v. Kansas, the Supreme Court found that a Kansas statute narrowing the application of the insanity defense doesn’t run afoul of the U.S. Constitution.

James Kraig Kahler shot and killed his estranged wife, their two teenage daughters, and his wife’s grandmother in 2009. A defense psychiatrist told the Kansas trial that Kahler had broken with reality because he suffered from a serious mental disorder, but an insanity plea was impossible because the state abolished it in 1995.

Insanity is a legal concept in which a person “cannot distinguish fantasy from reality, cannot conduct her/his affairs due to psychosis, or is subject to uncontrollable impulsive behavior,” according to one reference work. In the latter part of the previous century, Kansas, along with Idaho, Montana, and Utah, abolished the insanity defense.

Kansas is entitled to decide whether to allow an insanity defense or not, the high court ruled.

“Defining the precise relationship between criminal culpability and mental illness involves examining the workings of the brain, the purposes of the criminal law, the ideas of free will and responsibility,” the court declared.

“It is a project demanding hard choices among values, in a context replete with uncertainty, even at a single moment in time. And it is a project, if any is, that should be open to revision over time, as new medical knowledge emerges and as legal and moral norms evolve. Which is all to say that it is a project for state governance, not constitutional law.”

As in Allen v. Cooper, Kagan again wrote the opinion for herself and five justices.

This article by Matthew Vadun appeared March 23, 2020, in The Epoch Times.