FIRE > Miscellaneous > Miscellaneous Category > LAIRD, SECRETARY OF DEFENSE, et al. v. TATUM et al.
LAIRD, SECRETARY OF DEFENSE, ET AL.
*2 Solicitor General Griswold argued the cause for petitioners. With him on the briefs were Assistant Attorney General Mardian and Robert L. Keuch.
Frank Askin argued the cause for respondents. With him on the brief was Melvin L. Wulf.
Sam J. Ervin, Jr., argued the cause for the Unitarian Universalist Assn. et al. as amici curiae urging affirmance. With him on the brief was Lawrence M. Baskir.
Burke Marshall and Arthur R. Miller filed a brief for a Group of Former Army Intelligence Agents as amici curiae urging affirmance.
Respondents brought this class action in the District Court seeking declaratory and injunctive relief on their claim that their rights were being invaded by the Department of the Army’s alleged “surveillance of lawful and peaceful civilian political activity.” The petitioners in response described the activity as “gathering by lawful means . . . [and] maintaining and using in their intelligence activities . . . information relating to potential or actual civil disturbances [or] street demonstrations.” In connection with respondents’ motion for a preliminary injunction and petitioners’ motion to dismiss the complaint, both parties filed a number of affidavits with the District Court and presented their oral arguments at a hearing on the two motions. On the basis of the pleadings, the affidavits before the court, and the oral arguments advanced at the hearing, the *3 District Court granted petitioners’ motion to dismiss, holding that there was no justiciable claim for relief.
On appeal, a divided Court of Appeals reversed and ordered the case remanded for further proceedings. We granted certiorari to consider whether, as the Court of Appeals held, respondents presented a justiciable controversy in complaining of a “chilling” effect on the exercise of their First Amendment rights where such effect is allegedly caused, not by any “specific action of the Army against them, [but] only [by] the existence and operation of the intelligence gathering and distributing system, which is confined to the Army and related civilian investigative agencies.” 144 U. S. App. D. C. 72, 78, 444 F. 2d 947, 953. We reverse.
There is in the record a considerable amount of background information regarding the activities of which respondents complained; this information is set out primarily in the affidavits that were filed by the parties in connection with the District Court’s consideration of respondents’ motion for a preliminary injunction and petitioners’ motion to dismiss. See Fed. Rule Civ. Proc. 12 (b). A brief review of that information is helpful to an understanding of the issues.
“In performing this type function the Army is essentially a police force or the back-up of a local police force. To quell disturbances or to prevent further disturbances the Army needs the same tools and, most importantly, the same information to which local police forces have access. Since the Army is sent into territory almost invariably unfamiliar to most soldiers and their commanders, their need for information is likely to be greater than that of the hometown policeman.
“No logical argument can be made for compelling the military to use blind force. When force is employed *6 it should be intelligently directed, and this depends upon having reliable information—in time. As Chief Justice John Marshall said of Washington, `A general must be governed by his intelligence and must regulate his measures by his information. It is his duty to obtain correct information . . . .’ So we take it as undeniable that the military, i. e., the Army, need a certain amount of information in order to perform their constitutional and statutory missions.” 144 U. S. App. D. C., at 77-78, 444 F. 2d, at 952-953 (footnotes omitted).
The system put into operation as a result of the Army’s 1967 experience consisted essentially of the collection of information about public activities that were thought to have at least some potential for civil disorder, the reporting of that information to Army Intelligence headquarters at Fort Holabird, Maryland, the dissemination of these reports from headquarters to major Army posts around the country, and the storage of the reported information in a computer data bank located at Fort Holabird. The information itself was collected by a variety of means, but it is significant that the principal sources of information were the news media and publications in general circulation. Some of the information came from Army Intelligence agents who attended meetings that were open to the public and who wrote field reports describing the meetings, giving such data as the name of the sponsoring organization, the identity of speakers, the approximate number of persons in attendance, and an indication of whether any disorder occurred. And still other information was provided to the Army by civilian law enforcement agencies.
The material filed by the Government in the District Court reveals that Army Intelligence has field offices in various parts of the country; these offices are staffed in the aggregate with approximately 1,000 agents, 94% *7 of whose time is devoted to the organization’s principal mission, which is unrelated to the domestic surveillance system here involved.
In briefs for petitioners filed with this Court, the Solicitor General has called our attention to certain directives issued by the Army and the Department of Defense subsequent to the District Court’s dismissal of the action; these directives indicate that the Army’s review of the needs of its domestic intelligence activities has indeed been a continuing one and that those activities have since been significantly reduced.
The District Court held a combined hearing on respondents’ motion for a preliminary injunction and petitioners’ motion for dismissal and thereafter announced its holding that respondents had failed to state a claim upon which relief could be granted. It was the view of the District Court that respondents failed to allege any action on the part of the Army that was unlawful in itself and further failed to allege any injury or any realistic threats to their rights growing out of the Army’s actions.
“[They] freely admit that they complain of no specific action of the Army against them . . . . There is no evidence of illegal or unlawful surveillance activities. We are not cited to any clandestine intrusion by a military agent. So far as is yet shown, the information gathered is nothing more than a good newspaper reporter would be able to gather by attendance at public meetings and the clipping of articles from publications available on any newsstand.” 144 U. S. App. D. C., at 78, 444 F. 2d, at 953.
Our examination of the record satisfies us that the Court of Appeals properly identified the issue presented, namely, whether the jurisdiction of a federal court may be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity that is alleged to be broader in scope than is reasonably necessary for the accomplishment of a valid governmental purpose. We conclude, however, that, having properly identified the issue, the Court of Appeals decided that issue incorrectly.
*11 In recent years this Court has found in a number of cases that constitutional violations may arise from the deterrent, or “chilling,” effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights. E. g., Baird v. State Bar of Arizona, 401 U. S. 1 (1971); Keyishian v. Board of Regents, 385 U. S. 589 (1967); Lamont v. Postmaster General, 381 U. S. 301 (1965); Baggett v. Bullitt, 377 U. S. 360 (1964). In none of these cases, however, did the chilling effect arise merely from the individual’s knowledge that a governmental agency was engaged in certain activities or from the individual’s concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual. Rather, in each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging.
For example, the petitioner in Baird v. State Bar of Arizona had been denied admission to the bar solely because of her refusal to answer a question regarding the organizations with which she had been associated in the past. In announcing the judgment of the Court, *12 Mr. Justice Black said that “a State may not inquire about a man’s views or associations solely for the purpose of withholding a right or benefit because of what he believes.” 401 U. S., at 7. Some of the teachers who were the complainants in Keyishian v. Board of Regents had been discharged from employment by the State, and the others were threatened with such discharge, because of their political acts or associations. The Court concluded that the State’s “complicated and intricate scheme” of laws and regulations relating to teacher loyalty could not withstand constitutional scrutiny; it was not permissible to inhibit First Amendment expression by forcing a teacher to “guess what conduct or utterance” might be in violation of that complex regulatory scheme and might thereby “lose him his position.” 385 U. S., at 604. Lamont v. Postmaster General dealt with a governmental regulation requiring private individuals to make a special written request to the Post Office for delivery of each individual mailing of certain kinds of political literature addressed to them. In declaring the regulation invalid, the Court said: “The addressee carries an affirmative obligation which we do not think the Government may impose on him.” 381 U. S., at 307. Baggett v. Bullitt dealt with a requirement that an oath of vague and uncertain meaning be taken as a condition of employment by a governmental agency. The Court said: “Those with a conscientious regard for what they solemnly swear or affirm, sensitive to the perils posed by the oath’s indefinite language, avoid the risk of loss of employment, and perhaps profession, only by restricting their conduct to that which is unquestionably safe. Free speech may not be so inhibited.” 377 U. S., at 372.
“established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action . . . .” Ex parte Levitt, 302 U. S. 633, 634 (1937).
The respondents do not meet this test; their claim, simply stated, is that they disagree with the judgments made by the Executive Branch with respect to the type and amount of information the Army needs and that the very existence of the Army’s data-gathering system produces a constitutionally impermissible chilling effect upon the exercise of their First Amendment rights. That alleged “chilling” effect may perhaps be seen as arising from respondents’ very perception of the system as inappropriate to the Army’s role under our form of government, or as arising from respondents’ beliefs that it is inherently dangerous for the military to be concerned with activities in the civilian sector, or as arising from respondents’ less generalized yet speculative apprehensiveness that the Army may at some future date misuse the information in some way that would cause direct harm to respondents. Allegations of a subjective “chill” *14 are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; “the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.” United Public Workers v. Mitchell, 330 U. S. 75, 89 (1947).
Carried to its logical end, this approach would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action; such a role is appropriate for the Congress acting through its committees and the “power of the purse”; it is not the role of the judiciary, absent actual present or immediately threatened injury resulting from unlawful governmental action.
The concerns of the Executive and Legislative Branches in response to disclosure of the Army surveillance activities —and indeed the claims alleged in the complaint— reflect a traditional and strong resistance of Americans to any military intrusion into civilian affairs. That tradition has deep roots in our history and found early expression, for example, in the Third Amendment’s explicit prohibition against quartering soldiers in private homes without consent and in the constitutional provisions for civilian control of the military. Those prohibitions are not directly presented by this case, but their philosophical underpinnings explain our traditional insistence on limitations on military operations in peacetime. Indeed, when presented with claims of judicially cognizable injury *16 resulting from military intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation’s history or in this Court’s decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.
If Congress had passed a law authorizing the armed services to establish surveillance over the civilian population, a most serious constitutional problem would be presented. There is, however, no law authorizing surveillance over civilians, which in this case the Pentagon concededly had undertaken. The question is whether such authority may be implied. One can search the Constitution in vain for any such authority.
Acting under that authority, Congress has provided a code governing the Armed Services. That code sets the procedural standards for the Government and regulation of the land and naval forces. It is difficult to imagine how those powers can be extended to military surveillance over civilian affairs.
*18 The Constitution contains many provisions guaranteeing rights to persons. Those include the right to indictment by a grand jury and the right to trial by a jury of one’s peers. They include the procedural safeguards of the Sixth Amendment in criminal prosecutions; the protection against double jeopardy, cruel and unusual punishments —and, of course, the First Amendment. The alarm was sounded in the Constitutional Convention about the dangers of the armed services. Luther Martin of Maryland said, “when a government wishes to deprive its citizens of freedom, and reduce them to slavery, it generally makes use of a standing army.” That danger, we have held, exists not only in bold acts of usurpation of power, but also in gradual encroachments. We held that court-martial jurisdiction cannot be extended to reach any person not a member of the Armed Forces at the times both of the offense and of the trial, which eliminates discharged soldiers. Toth v. Quarles, 350 U. S. 11. Neither civilian employees of the Armed Forces overseas, McElroy v. Guagliardo, 361 U. S. 281; Grisham v. Hagan, 361 U. S. 278, nor civilian dependents of military personnel accompanying them overseas, Kinsella v. Singleton, 361 U. S. 234; Reid v. Covert, 354 U. S. 1, may be tried by court-martial. And even as respects those in the Armed Forces we have held that an offense must be “service connected” to be tried by court-martial rather than by a civilian tribunal. O’Callahan v. Parker, 395 U. S. 258, 272.
The upshot is that the Armed Services—as distinguished from the “militia”—are not regulatory agencies or bureaus that may be created as Congress desires and granted such powers as seem necessary and proper. The authority to provide rules “governing” the Armed Services means the grant of authority to the Armed *19 Services to govern themselves, not the authority to govern civilians. Even when “martial law” is declared, as it often has been, its appropriateness is subject to judicial review, Sterling v. Constantin, 287 U. S. 378, 401, 403-404.
“The military establishment is, of course, a necessary organ of government; but the reach of its power must be carefully limited lest the delicate balance between freedom and order be upset. The maintenance of the balance is made more difficult by *20 the fact that while the military serves the vital function of preserving the existence of the nation, it is, at the same time, the one element of government that exercises a type of authority not easily assimilated in a free society. . . .
“[i]t is an unbending rule of law, that the exercise of military power, where the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires.” Raymond v. Thomas, 91 U. S. 712, 716.
“The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though `theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.” Id., at 587.
“The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations, and rendered her the mistress of the world.
“Not the less true is it, that the liberties of Rome proved the final victim to her military triumphs; and that the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale it has its inconveniences. On an extensive *22 scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution. A wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties.
The action in turning the “armies” loose on surveillance of civilians was a gross repudiation of our traditions. The military, though important to us, is subservient and restricted purely to military missions. It even took an Act of Congress to allow a member of the Joint Chiefs of Staff to address the Congress; and that small step did not go unnoticed but was in fact viewed with alarm by those respectful of the civilian tradition. Walter Lippmann has written that during World War II, he was asked to convey a message to Winston Churchill, while the latter was in Washington together with his chiefs of staff. It was desired that Churchill should permit his chiefs of staff to testify before Congress as to the proper strategy for waging the war. Lippmann explains, however, that he “never finished the message. For the old lion let out a roar *24 demanding to know why I was so ignorant of the British way of doing things that I could dare to suggest that a British general should address a parliamentary body.
“As I remember it, what he said was `I am the Minister of Defense and I, not the generals, will state the policy of His Majesty’s government.’ ” The Intervention of the General, Washington Post, Apr. 27, 1967, Sec. A, p. 21, col. 1.
The act of turning the military loose on civilians even if sanctioned by an Act of Congress, which it has not been, would raise serious and profound constitutional questions. Standing as it does only on brute power and Pentagon policy, it must be repudiated as a usurpation dangerous to the civil liberties on which free men are dependent. For, as Senator Sam Ervin has said, “this claim of an inherent executive branch power of investigation and surveillance on the basis of people’s beliefs and attitudes may be more of a threat to our internal security than any enemies beyond our borders.” Privacy and Government Investigations, 1971 U. Ill. L. F. 137, 153.
The claim that respondents have no standing to challenge the Army’s surveillance of them and the other members of the class they seek to represent is too transparent for serious argument. The surveillance of the Army over the civilian sector—a part of society hitherto immune from its control—is a serious charge. It is alleged that the Army maintains files on the membership, ideology, programs, and practices of virtually every activist political group in the country, including groups such as the Southern Christian Leadership Conference, Clergy *25 and Laymen United Against the War in Vietnam, the American Civil Liberties Union, Women’s Strike for Peace, and the National Association for the Advancement of Colored People. The Army uses undercover agents to infiltrate these civilian groups and to reach into confidential files of students and other groups. The Army moves as a secret group among civilian audiences, using cameras and electronic ears for surveillance. The data it collects are distributed to civilian officials in state, federal, and local governments and to each military intelligence unit and troop command under the Army’s jurisdiction (both here and abroad); and these data are stored in one or more data banks.
Judge Wilkey, speaking for the Court of Appeals, properly inferred that this Army surveillance “exercises a present inhibiting effect on their full expression and utilization of their First Amendment rights.” 144 U. S. App. D. C. 72, 79, 444 F. 2d 947, 954. That is the test. The “deterrent effect” on First Amendment rights by government oversight marks an unconstitutional intrusion, Lamont v. Postmaster General, 381 U. S. 301, 307. Or, as stated by MR. JUSTICE BRENNAN, “inhibition as well as prohibition against the exercise of precious First *26 Amendment rights is a power denied to government.” Id., at 309. When refusal of the Court to pass on the constitutionality of an Act under the normal consideration of forbearance “would itself have an inhibitory effect on freedom of speech” then the Court will act. United States v. Raines, 362 U. S. 17, 22.
As stated by the Supreme Court of New Jersey, “there is good reason to permit the strong to speak for the weak or the timid in First Amendment matters.” Anderson v. Sills, 56 N. J. 210, 220, 265 A. 2d 678, 684 (1970).
The present controversy is not a remote, imaginary conflict. Respondents were targets of the Army’s surveillance. First, the surveillance was not casual but massive and comprehensive. Second, the intelligence reports were regularly and widely circulated and were exchanged with reports of the FBI, state and municipal police departments, and the CIA. Third, the Army’s *27 surveillance was not collecting material in public records but staking out teams of agents, infiltrating undercover agents, creating command posts inside meetings, posing as press photographers and newsmen, posing as TV newsmen, posing as students, and shadowing public figures.
“Army intelligence has been maintaining an unauthorized watch over civilian political activity for nearly 30 years. Nor is this the first time that *28 Army intelligence has, without notice to its civilian superiors, overstepped its mission. From 1917 to 1924, the Corps of Intelligence Police maintained a massive surveillance of civilian political activity which involved the use of hundreds of civilian informants, the infiltration of civilian organizations and the seizure of dissenters and unionists, sometimes without charges. That activity was opposed— then as now—by civilian officials on those occasions when they found out about it, but it continued unabated until post-war disarmament and economies finally eliminated the bureaucracy that conducted it.” Pp. 29-30.
This case involves a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance. When an intelligence officer looks over every nonconformist’s shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is *29 cast in the image which Jefferson and Madison designed, but more in the Russian image, depicted in Appendix III to this opinion.
The narrowly circumscribed domestic role which Congress has by statute authorized the Army to play is clearly an insufficient basis for the wholesale civilian surveillance of which respondents complain. The entire domestic mission of the armed services is delimited by nine statutes.
“(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
“Whoever, being an officer of the Army or Navy, or other person in the civil, military, or naval service of the United States, orders, brings, keeps, or has under his authority or control any troops or armed men at any place where a general or special election is held, unless such force be necessary to repel armed enemies of the *31 United States, shall be fined not more than $5,000 or imprisoned not more than five years, or both; and be disqualified from holding any office of honor, profit, or trust under the United States.
“Shall be fined not more than $5,000 or imprisoned not more than five years, or both; and disqualified from holding any office of honor, profit or trust under the United States.
“Within such reasonable distance of any military or naval camp, station, fort, post, yard, base, cantonment, training or mobilization place as the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force, or any two or all of them shall determine to be needful to the efficiency, health, and welfare of the Army, the Navy, or the Air Force, and shall designate and publish in general orders or bulletins, whoever engages in prostitution or aids or abets prostitution or procures or solicits for purposes of prostitution, or keeps or sets up a house of ill fame, brothel, or bawdy house, or receives any person for purposes of lewdness, assignation, or prostitution into any vehicle, conveyance, place, structure, or building, or permits any person to remain for *33 the purpose of lewdness, assignation, or prostitution in any vehicle, conveyance, place, structure, or building or leases or rents or contracts to lease or rent any vehicle, conveyance, place, structure or building, or part thereof, knowing or with good reason to know that it is intended to be used for any of the purposes herein prohibited shall be fined not more than $1,000 or imprisoned not more than one year, or both.
“The Secretaries of the Army, Navy, and Air Force and the Federal Security Administrator shall take such steps as they deem necessary to suppress and prevent such violations thereof, and shall accept the cooperation of the authorities of States and their counties, districts, and other political subdivisions in carrying out the purpose of this section.
“The President’s bringing Gen. Westmoreland home in order to explain the war reminds me of an instructive afternoon spent during the Second World War. The country and the Congress were divided on the question of whether to strike first against *34 Hitler or first against Japan. Churchill and Roosevelt had agreed on the policy of Hitler first. But there were large and powerful groups in the country, many of them former isolationists in the sense that they were anti-European, who wanted to concentrate American forces on winning the war against Japan. Even the American chiefs of staff were divided on this question of high strategy.
“Churchill had come to Washington, accompanied by the British chiefs of staff, to work out with President Roosevelt and the Administration the general plan of the global war. One morning I had a telephone call from Sen. Austin, who was a strong believer in the Churchill-Roosevelt line. He said in effect, `I know you are seeing the Prime Minister this afternoon and I wish you would ask him to tell his chiefs of staff to come to Congress and testify in favor of our strategical policy.’ Quite innocently I said I would do this, and when Churchill received me that afternoon I began by saying that I had a message from Sen. Austin. `Would the Prime Minister instruct his chiefs of staff to go to the Senate Foreign Relations Committee . . . .’ I never finished the message. For the old lion let out a roar demanding to know why I was so ignorant of the British way of doing things that I could dare to suggest that a British general should address a parliamentary body.
Our military added political departments to their staffs. A Deputy Chief of Naval Operations, Military Policy Division, was first established in the Department of the Navy by President Truman in 1945. In the Office of Secretary of Defense that was done by President Truman in 1947, the appointee eventually becoming Assistant Secretary for International Security Affairs. A like office was established in 1961 in the Department of the Army by President Kennedy and another for the Air Force in 1957 by President Eisenhower. Thus, when the Pentagon entered a Washington, D. C., conference, its four “Secretaries of State” faced the real Secretary of State and more frequently than not talked or stared him down. The Pentagon’s “Secretaries of State” usually spoke in unison; they were clear and decisive with no ifs, ands, or buts, and in policy conferences usually carried the day.
By 1968 the Pentagon was spending $34 million a year on non-military social and behavioral science research both at home and abroad. One related to “witchcraft, sorcery, magic, and other psychological phenomena” in the Congo. Another concerned the “political influence of university students in Latin America.” Other projects related to the skill of Korean women as divers, snake venoms in the Middle East, and the like. Research projects were going on for the Pentagon in 40 countries in sociology, psychology and behavioral sciences.
The Pentagon became so powerful that no President would dare crack down on it and try to regulate it.
The military approach to world affairs conditioned our thinking and our planning after World War II.
We did not realize that to millions of these people there was no difference between a Communist dictatorship *36 and the dictatorship under which they presently lived. We did not realize that in some regions of Asia it was the Communist party that identified itself with the so-called reform programs, the other parties being mere instruments for keeping a ruling class in power. We did not realize that, in the eyes of millions of illiterates, the choice between democracy and communism was not the critical choice it would be for us.
We talked about “saving democracy.” But the real question in Asia, the Middle East, Africa, and Latin America was whether democracy would ever be born.
We forgot that democracy in most lands is an empty word. We asked illiterate people living at the subsistence level to furnish staging grounds for a military operation whose outcome, in their eyes, had no relation to their own welfare. Those who rejected our overtures must be communists, we said. Those who did not approve our military plans must be secretly aligning with Russia, we thought.
So it was that in underdeveloped areas we became identified not with ideas of freedom, but with bombs, planes, and tanks. We thought less and less in terms of defeating communism with programs of political action, more and more in terms of defeating communism with military might. Our foreign aid mounted; but nearly 70% of it was military aid.
Our fears mounted as the cold war increased in intensity. These fears had many manifestations. The communist threat inside the country was magnified and exalted far beyond its realities. Irresponsible talk fanned the flames. Accusations were loosely made. Character assassinations were common. Suspicion took the place of goodwill. We needed to debate with impunity and explore to the edges of problems. We needed to search to the horizon for answers to perplexing problems. We needed confidence in each other. But in the *37 40’s, 50’s, and 60’s suspicions grew. Innocent acts became telltale marks of disloyalty. The coincidence that an idea paralleled Soviet Russia’s policy for a moment of time settled an aura of doubt around a person. The Intervention of the General, Washington Post, Apr. 27, 1967, Sec. A, p. 21, col. 1.
“A kind of forbidden, contaminated zone has been created around my family, and to this day, there are people in Ryazan [where Solzhenitsyn used to live] who were dismissed from their jobs for having visited my house a few years ago. A corresponding member of the Academy of Sciences, T. Timofeyev, who is director of a Moscow institute, became so scared when he found out that a mathematician working under him was my wife that he dismissed her with unseemly haste, although this was just after she had given birth and contrary to all laws . . .
“It happens that an informant [for his new book on the history of prerevolutionary Russia] may meet with me. We work an hour or two and as soon as he leaves my house, he will be closely followed, as if he were a state criminal, and they will investigate his background, and then go on to find out who this man meets, and then, in turn, who that [next] person is meeting.
“Of course they cannot do this with everyone. The state security people have their schedule, and their own profound reasoning. On some days, there is no surveillance at all, or only superficial surveillance. On other days, they hang around, for example when Heinrich Boll *38 came to see me [he is a German writer who recently visited Moscow]. They will put a car in front of each of the two approaches [to the courtyard of the apartment house where he stays in Moscow] with three men in each car—and they don’t work only one shift. Then off they go after my visitors, or they trail people who leave on foot.
“[Respondents] contend that the present existence of this system of gathering and distributing information, allegedly far beyond the mission requirements of the Army, constitutes an impermissible burden on [respondents] and other persons similarly situated which exercises a present inhibiting effect on their full expression and utilization of their First Amendment rights of free speech, etc. The baleful effect, if there is one, is thus a present *39 inhibition of lawful behavior and of First Amendment rights.
“Under this view of [respondents’] allegations, under justiciability standards it is the operation of the system itself which is the breach of the Army’s duty toward [respondents] and other civilians. The case is therefore ripe for adjudication. Because the evil alleged in the Army intelligence system is that of overbreadth, i. e., the collection of information not reasonably relevant to the Army’s mission to suppress civil disorder, and because there is no indication that a better opportunity will later arise to test the constitutionality of the Army’s action, the issue can be considered justiciable at this time.” Id., at 79-81, 444 F. 2d, at 954-956 (emphasis in original) (footnotes omitted).
“To the extent that the Army’s argument against justiciability here includes the claim that [respondents] lack standing to bring this action, we cannot agree. If the Army’s system does indeed derogate First Amendment values, the [respondents] are persons who are sufficiently affected to permit their complaint to be heard. The record shows that most if not all of the [respondents] and/or the organizations of which they are members have been the subject of Army surveillance reports and their names have appeared in the Army’s records. Since this is precisely the injury of which [respondents] complain, they have standing to seek redress for that alleged injury in court and will provide the necessary adversary interest that is required by the standing doctrine, on the issue of whether the actions complained of do in fact inhibit the exercise of First Amendment rights. Nor should the fact that *40 these particular persons are sufficiently uninhibited to bring this suit be any ground for objecting to their standing.” Id., at 79 n. 17, 444 F. 2d, at 954 n. 17.
Respondents may or may not be able to prove the case they allege. But I agree with the Court of Appeals that they are entitled to try. I would therefore affirm the remand to the District Court for a trial and determination of the issues specified by the Court of Appeals.
“(1) That a situation of serious `domestic violence’ exists within the state. While this conclusion should be supported with a statement of factual details to the extent feasible under the circumstances, there is no prescribed wording.
“(2) That such violence cannot be brought under control by the law enforcement resources available to the governor, including local and State police forces and the National Guard. The judgment required here is that there is a definite need for the assistance of Federal troops, taking into account the remaining time needed to move them into action at the scene of violence.
“(3) That the legislature or the governor requests the President to employ the armed forces to bring the violence under control. The element of request by the governor of a State is essential if the legislature cannot be convened. It may be difficult in the context of urban rioting, such as we have seen this summer, to convene the legislature.
“These three elements should be expressed in a written communication to the President, which of course may be a telegram, to support his issuance of a proclamation under 10 U. S. C. § 334 and commitment of troops to action. In case of extreme emergency, receipt of a written request will not be a prerequisite to Presidential action. However, since it takes several hours to alert and move Federal troops, the few minutes needed to write and dispatch a telegram are not likely to cause any delay.
“Upon receiving the request from a governor the President, under the terms of the statute and the historic practice, must exercise his own judgment as to whether Federal troops will be sent, and as to such questions as timing, size of the force, and federalization of the National Guard.
 Translated in terms of personnel, this percentage figure suggests that the total intelligence operation concerned with potential civil disorders hardly merits description as “massive,” as one of the dissents characterizes it.
 That principal mission was described in one of the documents filed with the District Court as the conducting of “investigations to determine whether uniformed members of the Army, civilian employees [of the Army] and contractors’ employees should be granted access to classified information.” App. 76-77.
 Indeed, the Court of Appeals noted that it had reached a different conclusion when presented with a virtually identical issue in another of its recently decided cases, Davis v. Ichord, 143 U. S. App. D. C. 183, 442 F. 2d 1207 (1970). The plaintiffs in Davis were attacking the constitutionality of the House of Representatives Rule under which the House Committee on Internal Security conducts investigations and maintains files described by the plaintiffs as a “political blacklist.” The court noted that any chilling effect to which the plaintiffs were subject arose from the mere existence of the Committee and its files and the mere possibility of the misuse of those files. In affirming the dismissal of the complaint, the court concluded that allegations of such a chilling effect could not be elevated to a justiciable claim merely by alleging as well that the challenged House Rule was overly broad and vague.
In deciding the case presently under review, the Court of Appeals distinguished Davis on the ground that the difference in the source of the chill in the two cases—a House Committee in Davis and the Army in the instant case—was controlling. We cannot agree that the jurisdictional question with which we are here concerned is to be resolved on the basis of the identity of the parties named as defendants in the complaint.
 I have expressed my doubts whether the “militia” loses its constitutional role by an Act of Congress which incorporates it in the armed services. Drifka v. Brainard, 89 S. Ct. 434, 21 L. Ed. 2d 427.
 See Appendix I to this opinion, infra, p. 29.
 3 M. Farrand, Records of the Federal Convention 209 (1911).
 Even some actions of the Armed Services in regulating their own conduct may be properly subjected to judicial scrutiny. Those who are not yet in the Armed Services have the protection of the full panoply of the laws governing admission procedures, see, e. g., McKart v. United States, 395 U. S. 185; Oestereich v. Selective Service Board, 393 U. S. 233. Those in the service may use habeas corpus to test the jurisdiction of the Armed Services to try or detain them, see, e. g., Parisi v. Davidson, 405 U. S. 34; Noyd v. Bond, 395 U. S. 683, 696 n. 8; Reid v. Covert, 354 U. S. 1; Billings v. Truesdell, 321 U. S. 542. And, those in the Armed Services may seek the protection of civilian, rather than military, courts when charged with crimes not service connected, O’Callahan v. Parker, 395 U. S. 258.
 The Bill of Rights and the Military, 37 N. Y. U. L. Rev. 181, 182, 193 (1962).
 N. 5, supra, at 185.
“No provision of this Act shall be so construed as to prevent a Secretary of a military department or a member of the Joint Chiefs of Staff from presenting to the Congress, on his own initiative, after first so informing the Secretary of Defense, any recommendation relating to the Department of Defense that he may deem proper.” See H. R. Conf. Rep. No. 1142, 81st Cong., 1st Sess., 18. This provision is now codified as 10 U. S. C. § 141 (e).
 The full account is contained in Appendix II, infra, at 33.
 Hearing on Federal Data Banks, Computers and the Bill of Rights, before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 92d Cong., 1st Sess. (1971).


§ 48-2 Responsibility for expenses; reimbursement.
§ 48-5 Reimbursement for mileage.
§ 48-6 Meals and lodging.
§ 48-7 Reimbursement for registration fees.
§ 48-8 Presentation of claims for travel expenses.
§ 48-9 Criteria for judging reasonableness of claim.
§ 48-10 Review of vouchers.
These rules and regulations are formulated to provide each department with a guideline which will assist in the preparation, comprehension and submission of travel requests and vouchers.
Except as provided by special law and/or rulings, funds for anticipated expenses are not advanced. It is the responsibility of each employee to provide funds for his own expenses. Reimbursements will be made by normal claim procedures with proper documentation and advanced authorization when required. Expenses will be reimbursed from budgeted funds, and advance authorization is required from the Town Board.
Only expenses that are actual, necessary and reasonable will be reimbursed in accordance with established guidelines.
Travel will be by the most direct route possible, and additional expenses incurred by indirect routing will be an expense of the individual.
Conventions, conferences and school and preplanned meetings require seven days' advance travel authorization duly executed by an authorized official of the department or agency to which the expense is to be charged.
Travel by common carrier is the preferred mode of transportation. Air travel must be by coach or tourist accommodation.
Travel by town-owned vehicle or privately owned vehicle will be restricted to cases where it is to the advantage of the town. Use of a town-owned vehicle or a privately owned vehicle will require advance authorization by the department head.
The reimbursement-for-mileage rate is subject to Town Board resolution.
Claims for reimbursement for mileage for general daily travel must be supported by a daily mileage sheet.
Mileage will be paid when travel is by privately owned vehicle, and tolls are reimbursable if substantiated by receipts. When travel is by town-owned vehicle, tolls, parking, gasoline and repairs are reimbursable subject to receipts.
Lodging within the County of Erie is not an ordinary and necessary expense and will not be reimbursed, except under emergency conditions. Reimbursement rates shall be determined on an individual basis by the Town Board.
The Town Board shall determine the reasonable cost of meals and lodging per day for the community in question.
Reimbursement will not be made for sales taxes paid, since the Town is not required to pay state sales tax (in New York State only). Exemption forms may be obtained from the Town Accountant's office.
Editor's Note: Original § A44-7, Telephone and telegraph charges, which immediately followed this section, was repealed at time of adoption of Code; see Ch. 1, General Provisions, Art. I.
Reimbursement for registration fees shall be made with prior Town Board approval.
The standard claim form will be used for all claims for travel expense. Subvouchers or receipts must be attached to the claim. The voucher must show the date each item of expenditure was incurred, the places between which travel was performed, time of departure and time of arrival at destination. If travel is by common carrier, the name of such carrier must be given; if by auto, the statement of automobile travel showing mileage must be given. Each voucher must show the home address and official station of the claimant and the duty or business.
All airline tickets will be purchased personally in advance of the trip. For reimbursement, a copy of the plane ticket must accompany the travel expense voucher.
No reimbursement for car rentals will be made unless the rental is required due to extraordinary circumstances. The circumstances must be explained.
Registration fees are to be paid by the individual and will be reimbursed upon presentation of a brochure or announcement depicting the registration fee and a paid receipt.
Parking fees and taxi fees are to be paid by the individual and will be reimbursed upon presentation of a receipt.
The rules of reasonableness, necessity and actuality regarding any expenses have been established by law, and all claims will be viewed with these criteria. Claims which appear incomplete or inconsistent with the above rules will be reduced accordingly.
The Town Accountant shall review each voucher submitted for reimbursement before the voucher is forwarded to the Town Board for auditing and payment of expenses.


text:
The case C-105/14 Ivo Taricco and Others delivered on 8 September 2015 is a new example of activism of the EU Court of Justice (CJEU). It draws consequences from Åkerberg Fransson C-617/10 (already commented on this blog here and here), but this time goes in another direction as it extends the obligation of Member States in the field of criminal law for a more effective penalisation at the expense of national criminal procedure. Once again the obligations related to VAT collection are at stake, as was the case in Åkerberg Fransson, however this time from the point of view of the protection of the financial interests of the Union. In this field, the Member States have indeed the duty to counter fraud affecting the financial interests of the Union (Article 325 (1) TFEU), the so-called “PIF fraud” (where PIF is a French acronym for ‘protection des intérêts financiers de l’Union’). In particular, they are required to “take the same measures to counter fraud affecting the financial interests of the Union as they take to counter fraud affecting their own financial interests” (Article 325 (2)). In this Grand Chamber ruling, the Court took an opportunity to clearly express its will to include VAT fraud in the definition of PIF fraud and to significantly extend the obligations of the Member States to effectively penalize such fraud. Given the difficulties related to the ongoing negotiations on the project of PIF Directive, this decision is very timely.
Mr Taricco and several others defendants are prosecuted for having adopted a behaviour similar to carousel fraud, and this as members of a criminal organisation. The facts these persons are prosecuted for took place in the period from 2005 to 2009.
The criminal proceedings are still at the stage of the preliminary hearing, in Italy. The judge in charge of this has to determine whether there are grounds for committing the defendants for trial and has to fix a date for the trial. It is this judge who referred the case to the CJEU for a preliminary ruling.
Under the Italian provisions, the period for prosecuting carousel fraud is quite limited. The different tax offences will become time-barred on 8 February 2018 at the latest. This date takes into account the maximum possible extension of the statute of limitations period, including the different investigative measures which have interrupted that period.
The issue pointed out by the referring judge is that it is “certain” that a final judgement will not be rendered by February 2018 (§22). The referring judge considers that this case is not isolated but merely illustrates the general situation in Italy. Indeed, particularly with respect to economic offences, which by their very nature and complexity require extensive investigations, the time-limit will often hamper an effective criminal prosecution. In other words, the whole statute of limitations regime in Italy would become a “guarantee of impunity” for offenders in the field of white collar crime. This would be contrary to Italy’s obligations under EU law. According to the referring judge, this situation was created by Law No 251/2005 and the consecutive modification of Article 160 of the Italian Criminal Code. From then on interrupted statute of limitations periods could be extended only by one quarter while they used to be extended by half.
The referring judge considers that the Italian system “provides for the limitation period to be extended by only one quarter following interruption and, therefore, allows crimes to become time barred, resulting in impunity, even though criminal proceedings were brought in good time” (§27). He therefore asked the CJEU four questions about the compatibility of the Italian system with Italy’s commitments under EU law, considering in particular the obligation to protect competition, the prohibition against state aid, the exhaustive nature of the list of VAT exemptions, and the principle of sound public finances.
The CJEU’s reasoning mainly focuses on the third question, considering this to be the “essence” of Italian’s judge’s request, and reformulates the question as follows: “does a national rule such as that established by the provisions at issue [amount] to an impediment to the effective fight against VAT evasion in the Member State concerned, in a manner incompatible with Directive 2006/112 and, more generally, with EU law” (§34)?
All these elements lead the Court to assert that national provisions should enable an effective and dissuasive penalization of VAT fraud. The Court, however, leaves it up to the referring court to assess whether (1) the Italian system has the effect of neutralizing this “effective and dissuasive penalization” in a “considerable number of cases” (§47) and (2) whether the discussed provisions apply to cases of VAT evasion in the same manner as they apply to fraud affecting the Italian Republic’s own financial interests. Should there be a difference, this discrimination would violate EU law (§48).
As to the consequences the referring judge should draw from the eventual incompatibility of the national provisions at issue with EU law, the CJEU holds that these national provisions should be disapplied. Yet at the same time, – and this is where the tricky part comes – the national court should ensure that its decision to put aside national law is compatible with the suspect’s fundamental rights. In particular, the national court should observe the principles of legality and proportionality of criminal offences and penalties enshrined in Article 49 of the Charter of Fundamental Rights of the European Union. In other words, the national judge has to strike a balance between the effectiveness of EU law and the individual’s fundamental right.
Interestingly, in the CJEU’s view, a disapplication of the Italian rules relating to the statute of limitations period would not infringe the suspect’s fundamental rights. Indeed, the disapplication of the Italian legislation would not modify the substance of tax offences at stake – in other words, the previsibility requirement of the legality principle would be met – and would not lead to a conviction for an act or omission that did not constitute an offence at the time when it was committed – so there would be no retroactive application of the criminal law (§54-57).
The Taricco judgment is highly relevant for several reasons. Firstly, the CJEU obviously took the opportunity of this case to clearly express that VAT fraud is an element of the broad concept of fraud against the financial interests of the European Union. Advocate General Kokott, in her opinion, very clearly explained the reason why VAT fraud should be considered as being in the scope of the 1995 PIF Convention, while the 1997 Explanatory Report of the Council of the EU on this Convention had stated exactly the opposite. The Advocate General’s opinion may be seen as an attempt to intervene in a much more recent controversy. As a matter of fact, he Commission issued in 2012 a proposal for a directive replacing the 1995 PIF Convention. While this proposal clearly included VAT fraud in its scope, the Member States took it out, among other reasons because it would extend the competences of the future European public prosecutor’s office. However, according to the Advocate General, to consider VAT fraud as being outside the scope of PIF fraud would be contrary to the Convention’s objective of vigorously combatting fraud affecting the European Union’s financial interests (§94-103 of the Opinion). The Court subscribed to this argument, without coming back to the position of the Council (§41). The Court’s viewpoint immediately created some anxiety among policy-makers, as a statement of the Luxembourg Presidency of the Council demonstrates. Against the backdrop of the ongoing negotiations, the statement of the Luxembourg Presidency thus raises the question whether the Council should keep insisting on the explicit exclusion of VAT fraud from the scope of the discussed Directive. It thus remains to be seen whether the CJEU’s ruling will have any impact on the ongoing negotiations and the scope of application of the future Directive.
Secondly, the consequences of the obligation of effective penalisation also need to be further developed. While the Advocate General made several propositions as to the method to reconcile Italian law and Italy’s EU obligations (§124-127), the Court simply asserted that Italian law should be disapplied “without having to request or await the prior repeal of those articles by way of legislation or any other constitutional procedure” (§49). This statement is very important for the very reason that such disapplication is contrary to the suspect’s fundamental rights as they are recognized by the Italian constitutional system. It is true that the case-law of the European Court of Human Rights (ECtHR) clearly states that Article 7 ECHR cannot be interpreted as prohibiting an extension of limitation periods where the relevant offences have never become subject to limitation (see ECtHR, Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 149). However, the protection recognized by the ECHR is arguably only a minimal one. For instance, the Venice Commission, an organ of the Council of Europe whose purpose is to provide legal advice in the field on constitutional law, issued an Opinion no. 523/2009 on the retroactivity of statutes of limitations, making clear that other approaches were possible. As a matter of fact, the regulation of statute of limitations can be considered as a question of substantive criminal law and not of criminal procedure and, in such a situation, modifications cannot be applied retroactively. This so-called “substantive approach”, which is followed by the Italian Constitutional Court and for instance also recognized in Hungary, is clearly more protective than the minimal approach adopted by the ECtHR. Considering this, Taricco is about to create a conflict between European obligations and Italian fundamental principles. In the past, the Italian Constitutional Court made clear that supra-national law should not prevail without any limitation, and that the application of international obligations could not have the effect to breach the fundamental principles of the constitutional order or the fundamental rights of the individuals (this is called the “counter-limit doctrine”, developed for example in the “Granital case”, Sentenza n. 170, 5 June 1984). The Court of Appeals of Milan has already submitted a request for a preliminary ruling to the Italian Constitutional Court on 18 September 2015 about this precise question. By contrast, the Italian Corte di Cassazione has accepted to apply the rationale of Taricco in a very recent decision. Beyond the Italian specific case, such an opposition between national law providing more safeguards and European law was already addressed by the ECJ in the Melloni case (commented here). At that time, the principles of effectiveness and of primacy of EU law already prevailed. That case was related to the cooperation in criminal matters. With Taricco, this rationale is extended to the substantive competence of the EU in criminal matters.

matches:
CJEU
CJEU
CJEU
CJEU
v.
§ 149


Procedural History Richard A. Williamson (“Williamson”), as trustee for the At Home Corporation Bondholders’ Liquidating Trust, owns U.S. Patent No. 6,155,840 (“the ’840 patent”) and appeals from the stipulated final judgment in favor of defendants Citrix Online, LLC; Citrix Systems, Inc.; Microsoft Corporation; Adobe Systems, Inc.; Webex Communications, Inc.; Cisco Webex, LLC; Cisco Systems, Inc.; and International Business Machines Corporation (collectively, “Appellees”). Because the district court erroneously construed the limitations “graphical display representative of a classroom” and “first graphical display comprising . . . a classroom region,” we vacate the judgment of non-infringement of claims 1–7 and 17–24 of the ’840 patent.
the third and fourth windows are dis- played simultaneously.
Legal Standard To ascertain the scope and meaning of the asserted claims, this court looks to the words of the claims themselves, the specification, the prosecution history, and, lastly, any relevant extrinsic evidence. Phillips v. AWH Corp., 415 F.3d 1303, 1315–17 (Fed. Cir. 2005) (en banc). Whether claim language invokes § 112, para. 6,2 is an exercise of claim construction and is therefore a question of law, subject to de novo review. Personalized Media Commc’ns, LLC v. Int’l Trade Comm’n, 161 F.3d 696, 702 (Fed. Cir. 1998).
Claim language The district court erred in construing these terms as requiring a “pictorial map.” First, the claim language itself contains no such “pictorial map” limitation. “[I]t is the claims, not the written description, which define the scope of the patent right.” Laitram Corp. v. NEC Corp., 163 F.3d 1342, 1347 (Fed. Cir. 1998); see id. (“[A] court may not import limitations from the written description into the claims.”). While the specification discloses examples and embodiments where the virtual classroom is depicted as a “map” or “seating chart,” nowhere does the specification limit the graphical display to those examples and embodiments. This court has repeatedly “cautioned against limiting the claimed invention to preferred embodiments or specific examples in the specification.” Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327–28 (Fed. Cir. 2002) (quoting cases).
Intrinsic Record [T]here is no suggestion in the intrinsic record that the applicant intended the claims to have the limited scope determined by the district court. To the contrary, the embodiments and examples in the specification of classroom metaphors relating to “maps” are consistently described in terms of preference. For example, at column 2, lines 34–39, the specification states that “[t]he class- room metaphor preferably provides a map of the class- room showing the relative relationships among the presenters and audience members.” ’840 patent, col. 2 ll. 37–39 (emphasis added). In another example, the graph- ical display of Figure 6 is described as an “exemplary display” on the presenter’s computer. Id. at col. 7 ll. 35– 36. That exemplary display includes a window that “preferably provides a seating chart showing the audience members and presenters in the classroom or auditorium.” Id. at col. 9 ll. 5–7 (emphasis added).
Legal Standard: Means-Plus and Strong Presumption Against We stated that the failure to use the word “means” in a claim limitation created a rebuttable presumption that 35 U.S.C. § 112, para. 6 did not apply. See Personalized Media, 161 F.3d at 703–04; DePuy Spine, 469 F.3d at 1023. This presumption is “a strong one that is not readily overcome.” Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1358 (Fed. Cir. 2004). To rebut this strong presumption, it must be demonstrat- ed that “skilled artisans, after reading the patent, would conclude that [the] claim limitation is so devoid of struc- ture that the drafter constructively engaged in means- plus-function claiming.” Inventio AG v. ThyssenKrupp Elevator Ams. Corp., 649 F.3d 1350, 1357 (Fed. Cir. 2011). A claimed expression cannot be said to be devoid of struc- ture if it is used “in common parlance or by persons of skill in the pertinent art to designate structure, even if the term covers a broad class of structures and even if the term identifies the structures by their function.” Lighting World, 382 F.3d at 1359–60.
Id. at *14 (internal citations omitted).
Term as a whole [The district court] also failed to consider the claimed expression “distributed learning control module” as a whole. This was error. See Apex, 325 F.3d at 1372. The adjectival modifiers “distributed learning control” cannot be ignored and serve to further narrow the scope of the expression as a whole. Id. at 1374. Here, the “distributed learning control module” is claimed as a part of the definite structure “distributed learning server” and “receive[s] communications transmitted between the presenter and the audience member computer systems,” “relay[s] the communications to an intended receiving computing system,” and “coordinat[es] the operation of the streaming data module.” ’840 patent, col. 11 ll. 55–62. These claimed interconnections and intercommunications support the conclusion that one of ordinary skill in the art would understand the expression “distributed learning control module” to connote structure.
Specification The specification further explains that the distributed learning control module operates as a functional unit of the distributed learning server and coordinates the operation of the streaming data module through input from the presenter computer system. Id. at col. 5 ll. 34–36. The specification also makes clear that the distributed learn- ing control module includes software that runs on a portion of the distributed learning server. Id. at col. 5 ll. 40–58.
Because the district court erred in construing the “graphical display” limitations of claims 1 and 17 and the “distributed learning control module” limitation of claim 8, we vacate the stipulated judgment of non-infringement of claims 1–7 and 17–24 and of invalidity of claims 8–16 and remand the case to the district court.
REYNA, Circuit Judge, dissenting. Williamson, Reyna Op., at 2.
General Grounds for dissent I agree with the majority that the district court erred in finding that the “graphical display representative of a classroom” terms require a pictorial map. The majority, however, ignores critical evidence showing that an image of a visually depicted virtual classroom is required. Further, I do not agree that claim 8 of the ’840 patent discloses sufficient structure to keep the claim limitation “distributed learning control module” outside of the requirements of 35 U.S.C. § 112, paragraph 6. For these and the reasons set forth below, I respectfully dissent.
Williamson, Reyna Op., at *2.
Claim Construction [I]n this case, the repeated mention of the classroom metaphor within the context of the invention and the importance of a visually depicted virtual classroom in the prosecution history indicate that the “graphical display representative of a classroom” terms require a visually depicted virtual classroom. The construction derived by the majority reads out this important limitation that distinguishes the invention from the prior art. See Callicrate v. Wadsworth Mfg., Inc., 427 F.3d 1361, 1369 (Fed. Cir. 2005) (holding that it was error for the district court to read out a limitation clearly required by the claim language and specification). It is error to read a claim too broadly, as it is to read a claim too narrowly. See, e.g., Phillips v. AWH Corp., 415 F.3d 1303, 1321 (Fed. Cir. 2005) (en banc). In reading out this important limitation on the “graphical display representative of a classroom” terms, the majority sidesteps our well established rules of claim construction, causing them to reach an erroneous result.
Means Plus The definitions [of dictionaries relied upon by the majority] only identify that “module” is either hardware, software, or both. Without more, the concept of generic software or hardware only reflects function. It refers only to a “general category of whatever may perform specified functions.” Robert Bosch, LLC v. Snap-On Inc., --- F.3d ---, No. 2014-1040, 2014 WL 5137569, at *4 (Fed. Cir. Oct. 14, 2014) (holding that the claim terms “program recognition device” and “program loading device” are governed by 35 U.S.C. § 112, para- graph 6 because they fail to connote sufficient structure). Consider that the IBM Dictionary of Computing uses the terms “functional hardware unit” and “[something] that performs a particular function.” Maj. Op. at 14-15. The Computer Glossary similarly defines “module” in terms of its function: “interfac[ing].” Id. at 15. Finally, the Dic- tionary of Computing defines “module” as a “construct” or “component.” Id. The definitions disclose what software or hardware potentially do, not how it is done.
Image Attribution Statement: Fig. 3 of U.S. Pat. 6,155,840.


Missouri has statutory provision for offers in compromise (“OIC”), but there appear to be no standard process and DOR responds inconsistently to OICs currently.
Rev. Stat. §32.375 permits the director of revenue may, at the request of the taxpayer, consider the reasons for the taxpayer’s failure to pay the amounts in dispute, and abate all or any portion of any amount assessed or decide to not assess any such amount.
Rev. Stat. §32.378 provides that the director may agree to compromise any tax, interest, penalties or additions to tax assessed or collected on any of the following grounds:(1) Doubt as to liability; (2) Doubt as to collectibility; or(3) To promote effective tax administration (Collection of the full liability will result in severe economic hardship to the taxpayer or exceptional circumstances exist such that collection of the full liability will be detrimental to voluntary compliance by taxpayers).
Rev. Stat. §144.425 provides for offers in compromise of sales tax to not less than 75% and paid within 3 years.
A Department representative at Missouri Bar Tax Committee meeting indicated the Department was looking for offers of the tax amount or greater (compared to the IRS “reasonable collection potential”).
Missouri income tax returns by spouses are “combined” rather than “joint”, so you are not liable for your spouses Missouri income taxes, so there is no need for Missouri innocent spouse relief.
Under Mo. Rev. Stat. §32.378(6) the Director’s decision to reject or accept an offer in compromise is not subject to review by the AHC or any court. Meshack, Yourshack, & Abedtogo/MYA, LLC v. Director of Revenue, Mo. Admin. Hearing Commission, No. 14-1091 RS, 08/05/2014.
Under Mo. Rev. Stat. § 32.378(6) the Director’s decision to reject or accept an offer in compromise is not subject to review by the AHC or any court. Meshack, Yourshack, & Abedtogo/MYA, LLC v. Director of Revenue, Mo. Admin. Hearing Commission, No. 14-1091 RS, 08/05/2014.