text:
After reviewing the materials submitted by the parties and the case file, it is hereby ORDERED that the Motion to Dismiss of Defendants APPLIED ANAGRAMICS, INC. ("AAI"), ROBERT GOODMAN, NINE TREES DESIGN, and AM.NET (collectively "Defendants") is DENIED.
On September 22, 1997, Plaintiff FUTUREDONTICS, INC. ("Futuredontics") filed a Complaint against Defendants. Plaintiff then moved for a preliminary injunction on October 21, 1997. On November 24, 1997, the Court denied Plaintiff's motion for a preliminary injunction. In denying Plaintiff's request for a preliminary injunction, the Court concluded that Plaintiff had "not offered sufficient evidence that [AAI's] framed link creates a derivative work." November 24, 1997, Order, at 2.
Defendants filed their First Amended Complaint ("FAC") on December 2, 1997. Plaintiff's FAC alleged causes of action for: (1) violation of the Lanham Act, 15 U.S.C. � 1125(a); violation of California Business and Professions Code �� 17200 and 17500; and (3) copyright infringement.
On December 18, 1997, Defendants filed the instant Motion to Dismiss, or in the alternative, for Judgment on the Pleadings against Plaintiff's Third Claim for Relief. Plaintiff filed its Opposition on January 12, 1998. Defendants filed their Reply on January 16, 1998.
Plaintiff's FAC in general alleges that Plaintiff operates a dental referral business utilizing the anagramatic phone number "1-800-DENTIST." FAC, P 8. AAI owns the registered service mark, "1-800-DENTIST." FAC, P 8. AAI has granted Plaintiff exclusive use of the telephone number and service mark throughout the United States. FAC, P 8. "The current 1-800-DENTIST dental referral service has been entirely designed and developed by Futuredontics, which is solely responsible for its success." FAC, P 9.
In early 1996, Plaintiff decided to establish an Internet site to advertise its dental referral business. FAC, P 10. Plaintiff's site consists of a number of web pages containing graphics and text, which are copyrightable subject matter. FAC, P 10. Plaintiff registered its copyrighted web pages. FAC, P 12.
AAI established its own site sometime after March 25, 1997. FAC, P 13.
The AAI web site includes a "link" through which AAI reproduces web pages from the Futuredontics Site within a "frame" ("AAI Frame Page"). The AAI Frame Page includes a frame around a reproduction of the web page from the Futuredontics Site. The frame includes AAI's logo, information on AAI, and "links to all of AAI's other web pages. . . . Futuredontics has never authorized AAI to reproduce the Futuredontics Site on the AAI Frame Page.
With respect to the Third Claim for relief, Plaintiff specifically, alleges that Futuredontics is the owner of the copyrighted material comprising the web pages on the Futuredontics Site. FAC, P 30. Plaintiff also alleges that AAI and the other defendants "are willfully infringing Futuredontics' copyright in the material on its web pages by copying that material to the AAI Frame Page and reproducing it there without the permission of Futuredontics." FAC, P 31.
A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. A Rule 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988).
A court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); see also Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980) (finding that the complaint must be read in the light most favorable to the plaintiff). However, a court need not accept as true unreasonable inferences, unwarranted deductions of fact, or conclusory legal allegations cast in the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
Furthermore, unless a court converts a Rule 12(b)(6) motion into a motion for summary judgment, a court cannot consider material outside of the complaint (e.g., facts presented in briefs, affidavits, or discovery materials). Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1483 (9th Cir. 1991), overruled on other grounds by Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 114 S. Ct. 1439, 128 L. Ed. 2d 119 (1994). A court may, however, consider exhibits submitted with the complaint and matters that may be judicially noticed pursuant to Federal Rule of Evidence 201. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).
"A judgment on the pleadings is properly granted when, taking all allegations in the pleading as true, the moving party is entitled to judgment as a matter of law." McGann v. Ernst & Young, 102 F.3d 390, 392 (9th Cir. 1996), cert. denied, 137 L. Ed. 2d 564, 117 S. Ct. 1460 (1997). All allegations of fact by the party opposing the motion are accepted as true and are construed in the light most favorable to that party. General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989); see also Fed. R. Civ. P. 12(c). To dismiss, "it must appear to a certainty that the Plaintiff would not be entitled to relief under any set of facts that could be proved." McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988). "The standard applied on a Rule 12(c) motion is essentially the same as that applied on Rule 12(b)(6) motions." Schwarzer, Tashima, & Wagstaffe, Federal Civil Procedure Before Trial, P 9:335 (1997).
To establish copyright infringement, Plaintiff must prove (1) that Plaintiff owned the copyrights, and (2) that Defendants copied Plaintiff's copyrighted work. Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996). A copyright is infringed when a person other than the owner violates any of the exclusive rights conferred by copyright. 17 U.S.C. � 501(a). A copyright owner has several exclusive rights, including the exclusive right to "prepare derivative works based upon the copyrighted works." 17 U.S.C. � 106(2).
Defendants contend that Plaintiff's copyright infringement claim should be dismissed because the framed link, does not create a derivative work. Motion at 8.
a work based upon one or more preexisting works such as . . . art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work."
The parties sharply dispute what function AAI's framed link serves. Defendants contend that AAI's window or frame provides a "lens" which enables Internet users to view the information that Plaintiff itself placed on the Internet. Motion at 11. Plaintiff's complaint, however, alleges that defendants reproduce its copyrighted web page by combining AAI material and Plaintiff's web site. Opposition at 11; see FAC, P 16 ("The AAI web site includes a "link" through which AAI reproduces web pages from the Futuredontics Site within [the AAI Frame Page]. The AAI Frame Page includes a frame around a reproduction of the web page from the Futuredontics Site.") (emphasis added).
The parties cite to several cases which purportedly support their interpretation of the function AAI's framed link serves. None of these cases, however, is directly on point.
The parties discuss the applicability of Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341, 1343 (9th Cir. 1988). n1 In Mirage, the Ninth Circuit held that transferring and affixing art images with glue to ceramic tiles constituted "the creation of a derivative work in violation of the copyright laws." Id. at 1343-44. As this Court noted, in its Order denying Plaintiff's request for a preliminary injunction, Mirage is distinguishable from the present case. November 24, 1997, Order, at 2. In this case, AAI has not affixed an image to a ceramic tile, rather AAI appears to have placed an electronic frame or border around Plaintiff's web page. See, FAC, Exh. C.
Defendants primarily rely on Louis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965, 968 (9th Cir. 1992). In that case, the Ninth Circuit held that a Game Genie which merely enhances audiovisual displays which originate in Nintendo game cartridges does not constitute a derivative work because, in part, it does "not incorporate a portion of a copyrighted work in some concrete or permanent form." Id. at 968 (emphasis added). The Court also noted that the Game Genie could not duplicate or recast a Nintendo game's output. Galoob did distinguish Mirage and noted that the Mirage decision would have been different had the plaintiff "distributed lenses that merely enabled users to view several art works simultaneously." Id.
Nevertheless, Galoob, like Mirage, is distinguishable from the instant case. Galoob does not foreclose Plaintiff from establishing that AAI's web page, incorporates Futuredontic's web page in some "concrete or permanent form" or that AAI's framed link duplicates or recasts Plaintiff's web page. Id.
For all these reasons, the Court hereby DENIES Defendants' motion to dismiss Plaintiff's copyright infringement claim and DENIES Defendant's alternative motion for judgment on the pleadings with respect to that claim.
n1 Because the district court in Munoz v. Albuquerque A.R.T. Co., 829 F. Supp. 309 (D. Alaska 1993) aff'd, 38 F.3d 1218 (9th Cir. 1994), reached the same holding based on the same facts as the Mirage case, the Court need not separately address it.
n2 The parties should not read too much into the Court's Order denying Plaintiff's motion for a preliminary injunction. At the preliminary injunction stage, the Court determined that Plaintiff failed to establish a probability of success. On a motion to dismiss, however, the Court must accept as true the allegations contained in Plaintiff's FAC. See NL Indus., 792 F.2d at 898. Moreover, none of the cases on which the parties rely were resolved on a motion to dismiss or a motion for judgment on the pleadings. See Mirage, 856 F.2d at 1341 (summary judgment); Louis Galoob, 964 F.2d at 967 (judgment following a bench trial); Munoz, 829 F. Supp. at 311 (converting motion to dismiss to motion for summary judgment).
n3 Because the Court finds that Plaintiff's complaint sufficiently alleges a copyright infringement claim, the Court need not consider Plaintiff's alternative claim that the complaint alleges copyright infringement based on unauthorized reproduction. Opposition at 9-10; see also 15 U.S.C. � 101 (defining "copies" as "material objects . . . in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object . . . in which the work is first fixed").
The Ninth Circuit affirmed the denial of preliminary injunction by an order of July 23, 1998: Futuredontics, Inc. v. Applied Anagramics, Inc., 152 F.3d 925 (unpublished).

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


NATIONAL CRUSHED STONE ASSOCIATION et al. Douglas COSTLE, Administrator, Environmental Protection Agency, Petitioner, v. CONSOLIDATION COAL CO. et al.
Held : The Court of Appeals erred in not accepting the EPA's interpretation of the Act. The EPA is not required by the Act to consider economic capability in granting variances from its uniform BPT standards. Pp. 73-85.
(a) The statute's plain language does not support the Court of Appeals' position. Section 301(c)'s requirement for a BAT variance of "reasonable further progress" toward the elimination of pollutant discharges refers to the prior BPT standard, but there is no comparable prior standard with respect to BPT limitations. And since BPT limitations do not require an industrial category to commit the maximum resources economically possible to pollution control, even if affordable, the § 301(c) BAT variance factor as to the maximum use of technology within the applicant's economic capability is inapposite in the BPT context. More importantly, under the Act, the Administrator of the EPA, in determining BPT limitations, is directed to consider the benefits of effluent reductions as compared to the cost of pollution control in defining the best practicable technology at a level that would effect the 1977 goal of substantially reducing total pollution produced by each industrial category. Thus, the statute contemplated regulations that would require a substantial number of point sources with the poorest performances either to conform to BPT standards or to cease production. To allow a BPT variance based on economic capability and not to require adherence to the prescribed minimum technology would permit the employment of the very practices that the Administrator had rejected in establishing the best practicable technology currently available in the industry. Pp. 73-78.
(b) The EPA's interpretation of the statutory language is also supported by the legislative history, which shows that Congress understood that the economic capability provision of § 301(c) was limited to BAT variances; foresaw and accepted the economic hardship, including the closing of some plants, that BPT effluent limitations would cause; and took certain steps to alleviate this hardship, steps which did not include allowing a BPT variance based on economic capability. Pp. 79-83.
(c) In the face of § 301(c)'s explicit limitation to BAT variances and in the absence of any other specific direction in the statute to provide for BPT variances in connection with permits for individual point sources, the Administrator adopted a reasonable construction of the statutory mandate, and the Court of Appeals erred in concluding that, since BAT limitations are to be more stringent than BPT limitations, the variance provision for the latter must be at least as flexible as that for the former with respect to affordability. Pp. 83-84.
CA 4, 601 F.2d 111 (first case) and CA 4, 604 F.2d 239 (second case), reversed.
Andrew J. Levander, Washington, D. C., for petitioner, pro hac vice, by special leave of the Court.
George C. Freeman, Jr., Richmond, Va., for the respondents Consolidation Coal Company, et al.
Theodore L. Garrett, Washington, D. C., for respondents National Crushed Stone Association, et al.
To obtain a variance from the 1977 uniform discharge limitations a discharger must demonstrate that the "factors relating to the equipment or facilities involved, the process applied, or other such factors relating to such discharger are fundamentally different from the factors considered in the establishment of the guidelines." Although a greater than normal cost of implementation will be considered in acting on a request for a variance, economic ability to meet the costs will not be considered.5 A variance, therefore, will not be granted on the basis of the applicant's economic inability to meet the costs of implementing the uniform standard.
" 'if [a plant] is doing all that the maximum use of technology within its economic capability will permit and if such use will result in reasonable further progress toward the elimination of the discharge of pollutants . . . no reason appears why [it] should not be able to secure such a variance should it comply with any other requirements of the variance.' " 601 F.2d, at 124, quoting from Appalachian Power Co. v. Train, 545 F.2d 1351, 1378 (CA4 1976).
We granted certiorari to resolve the conflict between the decisions below and Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309, 590 F.2d 1011 (1978), in which the variance provision was upheld. 444 U.S. 1069, 100 S.Ct. 1011, 62 L.Ed.2d 750.
Section 301(b) of the Act, 33 U.S.C. § 1311(b) (1976 ed. and Supp. III), authorizes the Administrator to set effluent limitations for categories of point sources.8 With respect to existing point sources, the section provides for implementation of increasingly stringent effluent limitations in two steps. The first step, to be accomplished by July 1, 1977, requires all point sources to meet standards based on "the application of the best practicable control technology currently available [BPT] as defined by the Administrator. . . ." § 301(b)(1)(A). The second step, to be accomplished by July 1, 1987, requires all point sources to meet standards based on application of the "best available technology economically achievable [BAT] for such category or class. . . ."9 § 301(b)(2)(A). Both sets of limitations-BPT's followed within 10 years by BAT's-are to be based upon regulatory guidelines established under § 304(b).
"the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, . . . the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate." 33 U.S.C. § 1314(b)(1)(B).
Section 402 authorizes the establishment of the National Pollutant Discharge Elimination System (NPDES), under which every discharger of pollutants is required to obtain a permit. The permit requires the discharger to meet all the applicable requirements specified in the regulations issued under § 301. Permits are issued by either the Administrator or state agencies that have been approved by the Administrator.11 The permit "transform[s] generally applicable effluent limitations . . . into the obligations (including a timetable for compliance) of the individual discharger. . . ." EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976).
Section 301(c) of the Act explicitly provides for modifying the 1987 (BAT) effluent limitations with respect to individual point sources. A variance under § 301(c) may be obtained upon a showing "that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants." Thus, the economic ability of the individual operator to meet the costs of effluent reductions may in some circumstances justify granting a variance from the 1987 limitations.
The plain language of the statute does not support the position taken by the Court of Appeals. Section 301(c) is limited on its face to modifications of the 1987 BAT limitations. It says nothing about relief from the 1977 BPT requirements. Nor does the language of the Act support the position that although § 301(c) is not itself applicable to BPT standards, it requires that the affordability of the prescribed 1977 technology be considered in BPT variance decisions.13 This would be a logical reading of the statute only if the factors listed in § 301(c) bore a substantial relationship to the considerations underlying the 1977 limitations as they do to those controlling the 1987 regulations. This is not the case.
The two factors listed in § 301(c)-"maximum use of technology within the economic capability of the owner or operator" and "reasonable further progress toward the elimination of the discharge of pollutants"-parallel the general definition of BAT standards as limitations that "require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward . . . eliminating the discharge of all pollutants. . . ." § 301(b)(2). A § 301(c) variance, thus, creates for a particular point source a BAT standard that represents for it the same sort of economic and technological commitment as the general BAT standard creates for the class. As with the general BAT standard, the variance assumes that the 1977 BPT standard has been met by the point source and that the modification represents a commitment of the maximum resources economically possible to the ultimate goal of eliminating all polluting discharges. No one who can afford the best available technology can secure a variance.
There is no similar connection between § 301(c) and the considerations underlying the establishment of the 1977 BPT limitations. First, § 301(c)'s requirement of "reasonable further progress" must have reference to some prior standard. BPT serves as the prior standard with respect to BAT. There is, however, no comparable, prior standard with respect to BPT limitations.14 Second, BPT limitations do not require an industrial category to commit the maximum economic resources possible to pollution control, even if affordable. Those point sources already using a satisfactory pollution control technology need take no additional steps at all. The § 301(c) variance factor, the "maximum use of technology within the economic capability of the owner or operator," would therefore be inapposite in the BPT context. It would not have the same effect there that it has with respect to BAT's, i. e., it would not apply the general requirements to an individual point source.
More importantly, to allow a variance based on the maximum technology affordable by the point source, even if that technology fails to meet BPT effluent limitations, would undercut the purpose and function of BPT limitations. Rather than the 1987 requirement of the best measures economically and technologically feasible, the statutory provisions for 1977 contemplate regulations prohibiting discharges from any point source in excess of the effluent produced by the best practicable technology currently available in the industry. The Administrator was referred to the industry and to existing practices to determine BPT. He was to categorize point sources, examine control practices in exemplary plants in each category, and, after weighing benefits and costs and considering other factors specified by § 304, determine and define the best practicable technology at a level that would effect the obvious statutory goal for 1977 of substantially reducing the total pollution produced by each category of the industry.15 Necessarily, if pollution is to be diminished, limitations based on BPT must forbid the level of effluent produced by the most pollution-prone segment of the industry, that segment not measuring up to "the average of the best existing performance." So understood, the statute contemplated regulations that would require a substantial number of point sources with the poorest performances either to conform to BPT standards or to cease production. To allow a variance based on economic capability and not to require adherence to the prescribed minimum technology would permit the employment of the very practices that the Administrator had rejected in establishing the best practicable technology currently in use in the industry.
In terms of the scheme implemented by BPT limitations, the factors that the Administrator considers in granting variances do not suggest that economic capability must also be a determinant. The regulations permit a variance where "factors relating to the equipment or facilities involved, the process applied, or such other factors relating to such discharger are fundamentally different from the factors considered in the establishment of the guidelines." If a point source can show that its situation, including its costs of compliance, is not within the range of circumstances considered by the Administrator, then it may receive a variance, whether or not the source could afford to comply with the minimum standard.17 In such situations, the variance is an acknowledgment that the uniform BPT limitation was set without reference to the full range of current practices, to which the Administrator was to refer. Insofar as a BPT limitation was determined without consideration of a current practice fundamentally different from those that were considered by the Administrator, that limitation is incomplete. A variance based on economic capability, however, would not have this character: it would allow a variance simply because the point source could not afford a compliance cost that is not fundamentally different from those the Administrator has already considered in determining BPT. It would force a displacement of calculations already performed, not because those calculations were incomplete or had unexpected effects, but only because the costs happened to fall on one particular operator, rather than on another who might be economically better off.
There is no indication that Congress intended § 301(c) to reach further than the limitations of its plain language. The statement of the House managers of the Act described § 301(c) as "not intended to justify modifications which would not represent an upgrading over the July 1, 1977, requirements of 'best practicable control technology.' " Leg.Hist. 232. The Conference Report noted that a § 301(c) variance could only be granted after the effective date of BPT limitations and could only be applied to BAT limitations. Similarly, the Senate Report on the Conference action emphasized that one of the purposes of the BPT limitation was to avoid imposing on the "Administrator any requirement . . . to determine the economic impact of controls on any individual plant in a single community." Leg.Hist. 170.
"If the owner or operator of a given point source determines that he would rather go out of business than meet the 1977 requirements, the managers clearly expect that any discharge issued in the interim would reflect the fact that all discharges not in compliance with such 'best practicable technology currently available' would cease by June 30, 1977." Id., at 231.
"The alternative [to a loan program] would be waiving strict environmental standards where economic hardship could be shown. But the approach of giving variances to pollution controls based on economic grounds has long ago shown itself to be a risky course: All too often, the variances become a tool used by powerful political interests to obtain so many exemptions for pollution control standards and timetables on the filmsiest [sic] of pretenses that they become meaningless. In short, with variances, exceptions to pollution cleanup can become the rule, meaning further tragic delay in stopping the destruction of our environment." Id., at 1355 (Sen. Nelson).
Instead of economic variances, Congress specifically added two other provisions to address the problem of economic hardship.
"[T]he purpose of the amendment is to provide for a public hearing in the case of an industry claim that enforcement of these water-control standards will force it to relocate or otherwise shut down operations. . . . I think too many companies use the excuse of compliance, or the need for compliance, to change operations that are going to change anyway. It is this kind of action that gives the whole antipollution effort a bad name and causes a great deal of stress and strain in the community." Leg.Hist. 659.
The only protection offered by the provision, however, is the assurance that there will be a public inquiry into the facts behind such an economic threat. The section specifically concludes that "[n]othing in this subsection shall be construed to require or authorize the Administrator to modify or withdraw any effluent limitation or order issued under this chapter." § 507(e), 33 U.S.C. § 1367(e).
As we see it, Congress anticipated that the 1977 regulations would cause economic hardship and plant closings: "[T]he question . . . is not what a court thinks is generally appropriate to the regulatory process; it is what Congress intended for these regulations." Du Pont, 430 U.S., at 138, 97 S.Ct., at 980.
It is by now a commonplace that "when faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration." Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).25 The statute itself does not provide for BPT variances in connection with permits for individual point sources, and we had no occasion in Du Pont to address the adequacy of the Administrator's 1977 variance provision. In the face of § 301(c)'s explicit limitation and in the absence of any other specific direction to provide for variances in connection with permits for individual point sources, we believe that the Administrator has adopted a reasonable construction of the statutory mandate.
respect to factors (such as age and size of plant, raw materials, manufacturing processes, products produced, treatment technology available, energy requirements and costs) which can affect the industry subcategorization and effluent levels established. It is, however, possible that data which would affect these limitations have not been available and, as a result, these limitations should be adjusted for certain plants in this industry. An individual discharger or other interested person may submit evidence to the Regional Administrator (or to the State, if the State has the authority to issue NPDES permits) that factors relating to the equipment or facilities involved, the process applied, or other such factors related to such discharger are fundamentally different from the factors considered in the establishment of the guidelines. On the basis of such evidence or other available information, the Regional Administrator (or the State) will make a written finding that such factors are or are not fundamentally different for that facility compared to those specified in the Development Document. If such fundamentally different factors are found to exist, the Regional Administrator or the State shall establish for the discharger effluent limitations in the NPDES permit either more or less stringent than the limitations established herein, to the extent dictated by such fundamentally different factors. Such limitation must be approved by the Administrator of the Environmental Protection Agency. The Administrator may approve or disapprove such limitations, specify other limitations, or initiate proceedings to revise these regulations."
"Thus a plant may be able to secure a BPT variance by showing that the plant's own compliance costs with the national guideline limitation would be x times greater than the compliance costs of the plants EPA considered in setting the national BPT limitation. A plant may not, however, secure a BPT variance by alleging that the plant's own financial status is such that it cannot afford to comply with the national BPT limitation." 43 Fed.Reg. 50042 (1978).
Section 301(c), 86 Stat. 844, 33 U.S.C. § 1311(c), allows the Administrator to grant a variance "upon a showing by the owner or operator . . . that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants."
Throughout this opinion "Administrator" refers to the Administrator of EPA. In E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977), we sustained the Administrator's authority to issue the 1977 effluent limitations.
The Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, required that the second-stage standards be met by 1983. This deadline was extended in the Clean Water Act of 1977, 91 Stat. 1567. Depending on the nature of the pollutant, the deadline for the more stringent limitations now falls between July 1, 1984, and July 1, 1987. The 1977 Act also replaced the BAT standard with a new standard, "best conventional pollutant control technology [BCT]," for certain so-called "conventional pollutants." 33 U.S.C. § 1311(b)(2)(E) (1976 ed., Supp. III). The distinction between BCT and BAT is not relevant to the issue presented here.
Senator Muskie, the principal Senate sponsor of the Act, described the "limited cost-benefit analysis" employed in setting BPT standards as being intended to "limit the application of technology only where the additional degree of effluent reduction is wholly out of proportion to the costs of achieving such marginal level of reduction. . . ." Remarks of Senator Muskie reprinted in Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress) Ser. No. 93-1, p. 170 (1973) (hereafter Leg.Hist.). Section 304(b)(2)(B) lists "cost" as a factor to consider in assessing BAT, although it does not state that costs shall be considered in relation to effluent reduction.
"In the three years that have now elapsed since du Pont was briefed and argued in the Fourth Circuit, however, enough indicia of the Agency's attitude toward the 1977 variance provision under the Act has [sic] accumulated so that its administration is anything but 'a matter of speculation.' " Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309, 330, 590 F.2d 1011, 1032 (1978) (citation omitted).
This is the proper result under the twofold test articulated in Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), for evaluating the ripeness of administrative action. First, the issue is "fit" for judicial decision, because it involves only a question of law: whether the Court of Appeals properly construed the Act to require EPA to consider § 301(c) factors in granting BPT variances. Second, failure to review the variance issue now would cause "hardship" to the parties. The regulations in question affect thousands of point sources throughout the country-about 4,800 crushed-stone facilities and 6,000 coal facilities, many of them involved in this case through their trade associations. The resolution of this conflict will determine for some of these plants whether they will continue to exist or not, and for many others it will determine the level of funding they must budget for pollution controls. They should not be left to speculate on what the regulations require of them. Similarly, the EPA represents to the Court that a failure to resolve the issue will cause some hardship to EPA: "a present ruling . . . would advance rather than impede the administrative enforcement of the Act." Brief for Petitioners 21, n.17.
limitations promulgated pursuant to § 301, and these actions were brought under that section. Since the variance clause is an integral part of the regulation, review of the regulation must reach the question of whether this limitation on the scope of the variance provision renders the regulation invalid under Du Pont.
Finally, the fact that the Court of Appeals for the Fourth Circuit held the variance provision to be invalid, while the Court of Appeals for the District of Columbia Circuit in Weyerhaeuser, supra, upheld the same provision provides yet another reason for this Court to settle this controversy at this time. For all of these reasons, the issue is ripe for judicial review.
It is true that in Du Pont we said there "[was no] radical difference in the mechanism used to impose limitations for the 1977 and the 198 deadlines" and that "there is no indication in either § 301 or § 304 that the § 304 guidelines play a different role in setting 1977 limitations." 430 U.S., at 127, 97 S.Ct., at 974. But our decision in Du Pont was that the 1977 limitations, like the 1987 limitations, could be set by regulation and for classes of point sources. It dealt with the power of the Administrator and the procedures he was to employ. There was no suggestion, nor could there have been, that the 1977 BPT and the 1987 BAT limitations were to have identical purposes or content. It follows that no proper inference could be drawn from Du Pont that the grounds for issuing variances from the 1987 limitations should also be the grounds for permitting individual point sources to depart from 1977 standards. Indeed, our opinion recognized that § 301(c) was designed for BAT limitations, 430 U.S., at 121, 127, 97 S.Ct., at 971, 974, n.17. Had we thought that § 301(c) governed variances from both the BAT and BPT standards, there would have been no need to postpone to another day, as we did in 430 U.S., at 128, n.19, 97 S.Ct., at 975, n.19, the question whether the variance clause contained in the 1977 regulations had the proper scope. That scope would have been defined by § 301(c).
EPA defines BPT as "the average of the best existing performance by plants of various sizes, ages and unit processes within each industrial category or subcategory. This average is not based upon a broad range of plants within an industrial category or subcategory, but is based upon performance levels achieved by exemplary plants." 39 Fed.Reg. 6580 (1974). See also EPA, Effluent Guidelines Div., Development Document for Mineral Mining and Processing Point Source Category 409 (1979) and Development Document for Coal Mining 225 (1976). Support for this definition is found in the legislative history, Leg.Hist. 169-170 (remarks of Sen. Muskie); id., at 231 (remarks of Rep. Jones).
Respondents fail to consider this tension between a general calculation of costs and benefits and a particularized consideration of costs when they argue that because EPA only has authority to promulgate industrywide BPT regulations by analogy to its authority to promulgate industrywide BAT regulations, the same kind of economic capability/effluent reduction balancing relevant to a BAT variance must apply as well to a BPT variance.
Respondents argue that precluding consideration of economic capability in determining whether to grant a variance effectively precludes consideration of the "total costs" for the individual point source. Respondents rely upon a statement by Representative Jones as to the meaning of "total cost" in § 304(b)(1)(B): "internal, or plant, costs sustained by the owner or operator and those external costs such as potential unemployment, dislocation and rural area economic development sustained by the community, area, or region." Leg.Hist. 231. Unless economic capability is considered, it is argued, it will be impossible to consider the potential external costs of meeting a BPT limitation, caused by a plant closing. Although there is some merit to respondents' contention, we do not believe it supports the decision of the Court of Appeals. The court did not hold that economic capability is relevant only if it discloses "fundamentally different" external costs from those considered by EPA in establishing the BPT limitation; rather, the court held that the factors included in § 301(c) must be taken into consideration. Section 301(c) makes economic capability, regardless of its effect on external costs, a ground for a variance. It is this position that we reject.
Since any variance provision will permit nonuniformity with the general BPT standard for a given category, we cannot attribute much weight to those passages in the legislative history, to which EPA points, that express a desire and expectation that "each polluter within a category or class of industrial sources . . . achieve nationally uniform effluent limitations based on 'best practicable' technology no later than July 1, 1977." See Leg.Hist. 162 (statement of Sen. Muskie). See also, e. g., id., at 170; id., at 302, 309 (Conference Report); id., at 787 (Report of House Committee on Public Works). Moreover, EPA has itself stated that a variance does not represent an exception to BPT or BAT limitations, but rather sets an individualized BPT or BAT limitation for that point source: "No discharger . . . may be excused from the Act's requirement to meet BPT [and] BAT . . . through this variance clause. A discharger may instead receive an individualized definition of such a limitation or standard where the nationally prescribed limit is shown to be more or less stringent than appropriate for the discharger under the Act." 44 Fed.Reg. 32893 (1979). Therefore, expressions of an intent that "all" point sources meet BPT standards by 1977 do not necessarily support EPA's argument.
U.S. Council on Environmental Quality, Dept. of Commerce, & EPA, The Economic Impact of Pollution Control (Mar. 1972). See Leg.Hist. 156, 523.
See also remarks quoted in n.22, infra.
Similar remarks were made by Representative Harrington ("No one in Congress wishes to legislate so irresponsibly that we drive out of business those who sincerely wish to abide by the new pollution laws but who, because of a bad state of the economy, will be forced to close. The $800 million authorized by this section may not be completely adequate. But it is a start," Leg.Hist. 450).
Section 507(e) provides in pertinent part: "The Administrator shall conduct continuing evaluations of potential loss or shifts of employment which may result from the issuance of any effluent limitation or order under this chapter, including, where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such limitation or order. Any employee who is discharged or laid-off, threatened with discharge or lay-off . . . because of the alleged results of any effluent limitation or order issued under this chapter . . . may request the Administrator to conduct a full investigation of the matter. . . . [T]he Administrator shall make findings of fact as to the effect of such effluent limitation or order on employment and on the alleged discharge, lay-off, or discrimination and shall make such recommendations as he deems appropriate. Such report, findings, and recommendations shall be available to the public." 33 U.S.C. § 1367(e).
See Leg.Hist. 654-659. Representative Abzug emphasized the first purpose of the provision: "This amendment will allow the Congress to get a close look at the effects on employment of legislation such as this, and will thus place us in a position to consider such remedial legislation as may be necessary to ameliorate those effects." Id., at 658. Representative Miller noted that "some economic hardship, especially in smaller communities who rely on single, older plants, may result from the requirements of the pending bill," but opposed this provision because he thought that economic hardships caused by the Act should be addressed systematically by modifying the Economic Development Act. Ibid.
Respondents contend that deference to agency interpretation is not appropriate in this case because EPA has not consistently interpreted the BPT variance requirements. However, in only one instance has EPA stated that it would consider economic capability in relation to BPT variance applications. 43 Fed.Reg. 44846-44848 (1978). This was in response to the Court of Appeals decision in Appalachian Power Co. v. Train, 545 F.2d 1351 (CA4 1976), and EPA specifically limited this change to steam electric power generating plants, which were the subject of the court's order.
This argument appears in Appalachian Power, supra, at 1359, which the Court of Appeals relies upon in Crushed Stone. 601 F.2d, at 123.
The Court of Appeals also believed that because there will be situations in which the BPT and the BAT standards are identical, see Development Document for Mineral Mining, supra n.15, at 438, it would be illogical to allow a variance based on economic capability for the latter but not for the former. The result would be to "close a plant in 1979 which would be allowed to operate under a variance in 1983." 601 F.2d, at 124. This assumes, however, that a variance would be available even though BPT standards had not been met, an assumption which EPA rejects, Brief for Petitioners 27, and which is questionable in light of the legislative history. Leg.Hist. 232. ("This provision [§ 301(c)] is not intended to justify modifications which would not represent an upgrading over the July 1, 1977, requirements of 'best practicable control technology.' " (Rep. Jones, chairman of the House Conferees)). The suggested contradiction is accordingly unlikely to appear. In any event, it is of minor significance in considering the facial validity of the 1977 variance provisions.
We find no support for respondents' contention that Congress implicitly approved the Court of Appeals' reading of the variance provision, when it considered and passed the 1977 amendments to the Act. Respondents rely primarily on the discussion of Appalachian Power in a document prepared by the Library of Congress for the House Committee on Public Works and Transportation, Case Law Under the FWPCA Amendments of 1972 (Comm. Print 1977). However, that document notes that there was at that time a conflict in the United States Courts of Appeals over the validity of the variance provision and in no way indicates that the Appalachian Power decision was the correct interpretation. Id., at 28.


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The main direction of the research performed at our department lies in studies of the structure and electronic properties of materials. Structure and microscopic electronic properties of thin films, magnetic multilayers and intermetallic compounds with f- and d-electrons are investigated by methods using scattering of X-rays, synchrotron radiation and neutron beams. Bulk material properties, especially the magnetic behaviour, transport, thermodynamic and cohesive properties, phase transitions and diffusion processes are investigated over a broad range of temperatures, external pressures and magnetic fields. Modern materials like nanocrystalline powders, two-dimensional surface structures, liquid crystals and carbon composites are studied in co-operation with other laboratories. Theoretical studies of quantum coherence in semiconductor alloys excited by femtosecond pulses, mesoscopic theory of wear and physics of granular systems complete our fields of interest, together with computing materials science focused on the electron structure of intermetallic compounds, modern oxides and borocarbides of rare-earth and transition metals."
Department staff also has two decades significantly involved in the activities of Crystallographic company brings together experts in the field of crystallography and structural analysis in the Czech Republic and the Slovak Republic (http://www.xray.cz) and co-organized several major international conferences.
N. Hrauda, J. J. Zhang, H. Groiss, J. C. Gerharz, T. Etzelstorfer, J. Stangl, V. Holy, C. Deiter, O. H. Seeck and G. Bauer, Closely spaced SiGe barns as stressor structures for strain-enhancement in silicon, "Applied Physics Letters" 2013, 102, (3), 032109.
O. Caha, A. Dubroka, J. Humlicek, V. Holy, H. Steiner, M. Ul-Hassan, J. Sanchez-Barriga, O. Rader, T. N. Stanislavchuk, A. A. Sirenko, G. Bauer and G. Springholz, Growth, Structure, and Electronic Properties of Epitaxial Bismuth Telluride Topological Insulator Films on BaF2 (111) Substrates, "Crystal Growth & Design" 2013, 13, (8), 3365-3373.
J. Endres, S. Danis and G. Bauer, The misfit dislocation density profile in graded SiGe/Si( 001) layers prepared at different temperatures (vol 25, 175802, 2013), "Journal of Physics-Condensed Matter" 2013, 25, (49), 499501.
R. Kuzel, J. Cizek and M. Novotny, On X-Ray Diffraction Study of Microstructure of ZnO Thin Nanocrystalline Films with Strong Preferred Grain Orientation, "Metallurgical and Materials Transactions a-Physical Metallurgy and Materials Science" 2013, 44A, (1), 45-57.
N. Hrauda, J. J. Zhang, H. Groiss, T. Etzelstorfer, V. Holy, G. Bauer, C. Deiter, O. H. Seeck and J. Stangl, Strain relief and shape oscillations in site-controlled coherent SiGe islands, "Nanotechnology" 2013, 24, (33), 335707.
D. Kriegner, S. Assali, A. Belabbes, T. Etzelstorfer, V. Holy, T. Schulli, F. Bechstedt, E. Bakkers, G. Bauer and J. Stangl, Unit cell structure of the wurtzite phase of GaP nanowires: X-ray diffraction studies and density functional theory calculations, "Physical Review B" 2013, 88, (11), 115315.
Z. Matej, L. Matejova and R. Kuzel, XRD analysis of nanocrystalline anatase powders prepared by various chemical routes: correlations between micro-structure and crystal structure parameters, "Powder Diffraction" 2013, 28, S161-S183.
R. Kuzel, Z. Matej and M. Janecek,In-Situ X-Ray Diffraction Study of Thermal Stability of Cu and Cu-Zr Samples Processed by ECAP, in Recrystallization and Grain Growth V, edited by M. Barnett (Trans Tech Publications Ltd, Stafa-Zurich, 2013), Vol. 753, pp. 279-284.
D. E. Parkes, L. R. Shelford, P. Wadley, V. Holy, M. Wang, A. T. Hindmarch, G. van der Laan, R. P. Campion, K. W. Edmonds, S. A. Cavill and A. W. Rushforth, Magnetostrictive thin films for microwave spintronics, "Scientific Reports" 2013, 3, 2220.
In teching the emphasis is on detailed interpretation of crystallography and diffraction methods.
These are areas in which the department has a long tradition and is well respected in the workplace education specialists focused on the structural analysis of substances.
V. Valvoda, M. Polcarová, P. Lukáč: učebnice Základy strukturní analýzy, Karolinum, Praha 1992.
Teachers: Doc. RNDr. Stanislav Daniš, Ph.D.
Prof. RNDr. Radomír Kužel, CSc.
Researcher: Mgr. Lukáš Horák, Ph.D.

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Examples & Explanations: Constitutional Law: Individual Rights provides a clearly written, comprehensive examination of constitutional doctrine pertaining to individual rights. Along with its companion volume, National Power and Federalism, it provides students and teachers with a highly readable and accessible study of constitutional law. Both volumes combine detailed textual material with real-world examples and explanations that apply the relevant constitutional doctrine to specific fact patterns. The organization of Individual Rights parallels and complements any major constitutional law casebook. In fact, it has been assigned as required or recommended reading in a number of constitutional law courses across the country.
Updated material on the right to marry, including discussions of Obergefell and Windsor.
Expanded discussion of Casey, as well as other cases having to do with a woman’s right to obtain an abortion.
Coverage of recent Supreme Court cases, such as Murr v. Wisconsin, having to do with the Takings Clause; Trump v. Hawaii, concerning the Trump administration’s travel ban (which, among other things, repudiated the court’s decision in Korematsu v. United States; Evenwel v. Abbott and Abbott v. Perez, which dealt with the redrawing of districts by the state of Texas; and Fisher v. University of Texas (II), concerning affirmative action by universities).
New examples with comprehensive explanations of the rationales behind the answers.

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A student group at UC Berkeley invited Ann Coulter to speak. The event was cancelled due to ostensible security concerns in circumstances that led most reasonable observers (including me) to conclude that a substantial part of the reason Coulter was uninvited was the unpopularity of her views. There followed a round of condemnation of Berkeley and the presumably liberal "snowflake" millennial students who can't handle speech that spreads messages they find offensive, with the condemnation coming not only from the right but also from people who strongly disagree with Coulter (e.g., Coulter's fellow Cornell alum Bill Maher).
Enter Howard Dean, who defended Berkeley's rescission of its invitation on the ground that "hate speech is not protected by the first amendment." Numerous commentators correctly pointed out that under existing case law hate speech is protected by the First Amendment, with a Volokh Conspiracy piece by Eugene Volokh laying out the basics effectively.
Dean doubled down, citing a 1942 case, Chaplinsky v. New Hampshire as supposed authority for the view that the First Amendment does not protect hate speech. Dean is clearly wrong about Chaplinsky, however.
And so we learn that a medical doctor who served as governor of Vermont does not know a whole lot about constitutional doctrine. Quelle surprise! This episode would be mildly amusing, were it not for the fact that as a story of ignorance in high places it seems wholly inconsequential when compared to the fact that we have a former real estate developer/reality tv star for a president, and he does not even know how many articles the Constitution contains, much less what any of them says.
Turning back to Dean, we can grant that he was clearly wrong in his description of current case law. But the issue he raised is more complicated than the legal and journalistic establishment seem prepared to acknowledge.
U.S. free speech case law is an outlier within the democratic world. National constitutions and treaty documents protecting free speech and free press in virtually every other democratic country protect free speech but subject it to being overridden in order to protect vulnerable individuals and groups against hatred and ridicule.
Canada is an instructive and fairly typical example. The Charter of Rights and Freedoms (Canada's equivalent of the U.S. Bill of Rights plus Fourteenth Amendment) protects, among other things, "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication," which, like all Charter rights, are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." On its face, that language is not very different from how the U.S. Supreme Court has construed our First Amendment. Although the language of the latter makes no express exceptions (as Justice Hugo Black was fond of saying), case law does: laws that restrict speech based on content must be "narrowly tailored to advance a compelling interest."
To be sure, our Supreme Court has construed its judge-made strict scrutiny test more strictly than the Supreme Court of Canada has construed the language of the Charter. Thus, in the 1990 decision in Canada (Human Rights Commission) v. Taylor, the Supreme Court of Canada upheld the use of the Canadian Human Rights Act to proscribe non-violent "statements denigrating the Jewish race and religion" against a challenge under the Charter. In 2013, the Supreme Court of Canada upheld the application of the Saskatchewan Human Rights Code to an anti-gay pamphleteer. By contrast, similar challenges under the First Amendment would have succeeded in the U.S.
Although the U.S. thus clearly differs from other democracies in its protection for hate speech, there does not appear to have been anything inevitable about American free speech exceptionalism. A different U.S. Supreme Court could well have gone the route that Canada and just about every other democratic country has gone. In 1918--just a few years before he would come to be lionized as a free speech hero--Oliver Wendell Holmes, Jr. wrote in a letter to Learned Hand that, so far as Holmes was concerned, free speech "stands no differently than freedom from vaccination." Even as a description of U.S. free speech case law, that statement would continue to be true until roughly the 1950s. Had the ensuing years unfolded a bit differently, it might still be true today. American free speech exceptionalism may simply be a historical accident.
Indeed, the protection for hate speech under the First Amendment is something of a double accident. The SCOTUS could have said--as its Canadian counterpart said in Taylor--that regulations of hate speech infringe free speech but that they do so justifiably in light of the harm hate speech does. Or the SCOTUS could have ruled that hate speech falls into an unprotected category in the way that obscenity, fighting words, and incitement do. True, in 2010 in United States v. Stevens, the SCOTUS said that the list of unprotected categories was based on history, but that claim is, not to put too fine a point on it, false (as my colleague Steven Shiffrin amply demonstrates in his 2016 book What's Wrong With the First Amendment). A different Supreme Court might well have recognized hate speech as categorically unprotected.
Thus, commentators who treat American free speech doctrine as a beautiful well-integrated edifice that would crumble were hate-speech excepted from protection are wrong. Free speech doctrine contains a few organizing principles but, like most complex areas of the law, also includes a hodgepodge of exceptions and somewhat arbitrary lines. Carving out hate speech would no doubt require more such lines, but as experience in other countries that we generally regard as small-l liberal and small-d democratic shows, doing so would not be the end of free speech in America.
France is a case in point. As yesterday's first-round presidential election result showed, France's hate speech law did not prevent effective political organizing by Marine Le Pen and her National Front party. She will likely lose the runoff, but that has nothing to do with the regulation of hate speech. Popular support for the National Front's political programs--like restricting immigration and exiting the EU--may in fact be driven by racism, but so long as politicians avoid expressing their support for the program in expressly racist terms, they can thrive. The rise of right-wing populism in Europe more or less simultaneously with its rise in the U.S. undercuts the notion that hate speech regulation stifles political discourse. Of course it is possible for a country to use hate speech laws pretextually to suppress dissidents or to go too far in other ways, and one can point to particular troubling examples, but on the whole, the experience of the democratic world in the last seven decades shows that hate speech regulation can be consistent with liberal democracy.
To be clear, none of the foregoing is meant to suggest that I actually prefer the European/Canadian approach to hate speech to the American approach. I don't.
I would also note that the threat to free speech by Coulter and other right-wing speakers is chiefly coming from private actors threatening violence. Whatever one's views about regulating hate speech, those actors must be condemned. Insofar as Howard Dean's tweets could be seen as endorsing the threatened use of violence against unpopular speakers, Dean should also be condemned. I think it highly unlikely that Dean intended to convey support for violent suppression of Coulter's views, but if he did, I hereby condemn him along with anyone who threatens violence in response to unpopular or offensive views.
Still, the matter of hate speech regulation more generally persists. I raise that more general issue in order to question the response of legal elites to Dean's broader implications. My point is that we oughtn't to confuse the familiar with the necessary.
American lawyers who went to law school in the last sixty years--which is to say just about all current American lawyers--were educated to believe that protection for the thought we hate is the central principle of the First Amendment and that hate speech regulation is inimical to such protection. One might even say we were indoctrinated in this belief. It is therefore understandable that we find it natural. Thus, ironically, an indoctrinated belief about free speech leads American lawyers to dismiss without even considering the idea that regulation of hate speech could be consistent with liberal democracy. Yet a culture of free speech is supposed to make us more, not less, open to ideas that we find unfamiliar.
American constitutional protection for hate speech might not last forever. We have seen before how a fringe idea about the Bill of Rights can become mainstream. Fifty years ago, if a politician or other prominent figure pronounced that "private handgun possession is protected by the second amendment," constitutional scholars would have written op-eds patronizingly explaining that the case law rejects this view. Then a coordinated political, social, and scholarly movement sought to change that reality, eventually succeeding when the Supreme Court endorsed the formerly dissident view of the Second Amendment in 2008 in District of Columbia v. Heller.
Something similar could happen with respect to hate speech. A movement to treat hate speech as beyond the pale--perhaps as part of a backlash against Trumpism--could, given enough time, result in political changes and transformative judicial appointments. A SCOTUS majority might then announce that when it comes to hate speech, the U.S. is not an exception to the rest of the democratic world after all. At that point, Howard Dean would seem less like a constitutional ignoramus and more like a prophet.
Thanks for that interesting post , the hate speech , is a very particular and sensitive issue , this is because , it has to do , merely almost , with the content of the expression , and much less , with what is called : Effective free speech ( or " passive " , means : the right means and infrastructure , controlled typically by state authority , to interfere effectively , with the means and possibilities , not only to express privately ideas just for voicing it , but , effectively to publically express it and change reality , like : right to assemble , protest and so forth ….. ) .
The Israeli state, is a very interesting illustration: many ethnic groups, bitter rivalry (and even enmity) and of course, security issues, while, the regime itself, is democratic, liberal, by all means so. So how would you draw the balance .
Incitement to violence or terror 144D2.
(a) If a person publishes a call to commit an act of violence or terror, or praise, words of approval, encouragement, support or identification with an act of violence or terror (in this section: inciting publication) and if – because of the inciting publication's contents and the circumstances under which it was made public there is a real possibility that it will result in acts of violence or terror, then he is liable to five years imprisonment.
So we read clearly : " real possibility that it will result in acts of violence or terror, then he is liable to five years imprisonment " .
(b) Publication of quotes from religious scriptures or prayer books or the observance of a religious ritual shall not be deemed an offense under section 144B, on condition that it was not intended to cause racism.
So , the intent of the speaker ? this is a prayer book , it is the divine word , what would be the intent then ??
It is very hard to distinguish , hate from ideology . Here we have , a hell of issue .
The hate speech is not merely about content of expression , but rather the central issue typically . The " effective free speech " , is always a given and issue , whatever the content .
The '1950s' comment seems a bit much, various cases in the 1930s and 1940s repeatedly referencing freedom of speech as special, a step above freedom from vaccination.
Justice Holmes himself soon changed his tune, at least his opinions showed that.
Anyway, freedom of speech is seen as a basic right world-wide, some formulation understood to be a basic human right. OTOH, there are various regulations allowed beyond what is allowed in the U.S. The law of libel here and the UK is an example.
I think some of the different policies are better than others and this includes the outer limits of regulation of hate speech. Not inclined to change our policies there, but the strident tones sometimes used by Prof. Volokh (including addressing harassment in high schools, to cite a past debate over at his blog), suggests there is probably room to debate here.
Still, when dealing with the speech of Ann Coulter, which properly can be cited as "hateful," that isn't the sort of thing that shouldn't be protected. Dean has his um moments like suggesting maybe it would be a good idea not to have a Islamic center in Lower Manhattan because of the opposition. Nice to make it a learning moment.
One more thing ... This blog earlier referenced "What's Wrong with the First Amendment" by Steven H. Shiffrin. I read the book. Disagreed strongly with some of it. Still, important alternative perspectives.
This is a thoughtful and interesting article. It's good to be reminded that doctrines we often regard as rock-solid are more tenuous or less widely held than we think they are.
"The rise of right-wing populism in Europe more or less simultaneously with its rise in the U.S. undercuts the notion that hate speech regulation stifles political discourse."
That's not necessarily true. It's entirely possible for political discourse to be stifled, and for a political movement to arise nevertheless, perhaps partly in reaction to the stifling. In fact, it's been common, historically, to see political protest movements arise in response to restrictions on basic liberties. That they arise is not proof that the restrictions aren't having a significant, and bad, effect. I think that the rise of "hate speech" doctrine here and in Europe has, in fact, played a role in the rise of certain right-wing elements, and I think it's played a role in the rise of Donald Trump. It's an open question how much a factor it is, but I tend to think it's a big one.
Joe questions my assignment of the 1950s as roughly the time when the SCOTUS finally moves away from the view Holmes expressed in his letter to hand. But that's not just my assessment. That's pretty much the consensus view. See, for example, chapter 5 in Geoffrey Stone's book Perilous Times, where, following the Court's pretty timid performance in response to McCarthyism, Stone places the precise date at 1957. Sure, there were precursors, especially the holding of and soaring language in West Va State Bd. of Educ v. Barnette, in 1943. But the doctrine doesn't systematically change until the late 1950s.
Steve Davis is right as a conceptual matter but I disagree on the particulars. Indeed, it's notable that Trump campaigned against "political correctness" in the country with the most robust protection for free speech in the world, whereas part of the appeal of Marine Le Pen to a relatively broad (>20%) of the French public, by contrast with her late father, is that her rhetoric is less incendiary. So the points Steve makes strike me as cultural rather than simply legal.
While it is said no two snowflakes are alike, the term "snowflakes" may be off putting. Ulrich Baer's NYTimes "The Stone" Op-Ed "What 'Snowflakes' Get Right About Free Speech" projects the recent past to the present and perhaps to the future (along the lines suggested by Mike).
"Geoffrey Stone's book Perilous Times, where, following the Court's pretty timid performance in response to McCarthyism, Stone places the precise date at 1957."
The Supreme Court slipped backward there but even in that sense, was even Dennis v. U.S. et. al. really on par with how vaccination was treated? In effect, communists became one of the exceptions. Barnette was but a high point.
But, there were numerous cases in the 1930s and 1940s protecting speech. Vaccination simply did not have that level of concern. This is true even if the intensity of protection, firmly in place, went up a level later. And, since I'm carping, I would wait until after Frankfurter left, the so-called "Red Monday" cases followed by some back-slipping.
I have no idea what answer originalism might have but as Lash points out Justice Thomas now has the company of Justice Gorsuch. Is it possible that in 1868 hate speech was not protected by the speech clause of the 1st A?
It's interesting that you quote Heller as an example of a doctrinal shift in how rights can wax & wane. J. Scalia sharply criticizes the dissent of J. Stevens when he claims that a first amendment right such as "freedom of assembly" is a collective right as opposed to an individual right. Reading the amendment as applying to groups and subjecting it to majoritarian predilections can certain result in Gov. Dean's tweets become prescient.
A republic... if you can keep it.
"Vanguard America, a white nationalist group, tweeted a photo of "hate facts," targeting immigrants, racial minorities, and women. The photo also singled out the over-representation of Jews at the University."
Aside from the First Amendment doctrinal law regarding a "hate speech" category, and aside from effectiveness/ineffectiveness of, say, private university efforts to restrict such expression (being unencumbered by First Amendment limits on regulation), let's consider the desirability of speech regulation here in terms of effects on the prevalence of prejudice, animus, stereotypes and other related views. Might suppression be counterproductive, in this regard? If so, is it just a matter of fine tailoring the cloak?
I can only offer my own opinion on the matter, which, merely from framing the issue thus, would likely not be hard to guess. I think that suppression by authorities merely plays into the paranoid ideology and, even if not paranoid - consider, for example, the Stalinist thought police - speech (and thought) suppression is generally counterproductive. Counter-speech, on the other hand, is most certainly productive (just as much as, it is surely true, hate speech can itself affect attitudes).
We do not have enough counter-speech. Changing narratives can be enormously influential (take the Catholic Church and the deicide charge). And, of course, the government generally can, when it is a speaker rather than a regulator of speech, engage in viewpoint discrimination - and not just in public education. Rather, however, the model is the use of force by government to deal with conflicts. Hate speech cannot be removed from the overall socio-cultural-political context.
The urge to suppress the dissemination of harmful views is easy. Peaceful confrontation, at last when we are not simply shouting at each other, is the answer. And that, I think it's clear, is not aided by gagging speakers. And, that's apart from the Pandora's Box / slippery slope / definitional problem, which makes making "hate speech" categorically proscribable a fool's errand. And, I'm not even talking about the collateral damage that any content suppression has. Can't we have our 14th Am. and 1st Am., too?
"These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert."
The amendment "protects the individual rights of those persons." Stevens also in the past protected the individual liberties of assembly as such.
His dissent views the 2A having a certain meaning, but within that meaning, it is not merely a matter of "subjecting it to majoritarian predilections." Thus, e.g., if the federal government interfered with the power of the states over militia, even by a majoritarian vote in Congress, it might be unconstitutional.
UCPD. This failure was particularly unfortunate in light of the fact that BCR had worked closely with UCPD on other events. Campus administration first learned of BCR’s requested date through newspaper reports."
The notion that a student group can have access to venue on campus at a particular date and time, at the end of the semester, at a large public university, all without giving reasonable notice, is just plain silly.
There are very real security issues. Let me pose a hypothetical. Let's suppose the UCPD had credible intelligence that if the Coulter visit took place an extremist group would explode a truck bomb on or nearby the campus, which would be of a similar magnitude to the Oklahoma City blast--168 killed, 680 wounded, 324 buildings damaged, $652 million in damage. To what degree are free speech rights counterbalanced by the responsibility of the university to protect human life?
Those are the more pressing questions.
"JUSTICE STEVENS is of course correct, post, at 10, that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined "assembly," as he contends the right to bear arms is conditioned upon membership in a defined militia. And JUSTICE STEVENS is dead wrong to think that the right to petition is "primarily collective in nature." Ibid. See McDonald v. Smith, 472 U. S. 479, 482-484 (1985) (describing historical origins of right to petition)."
Of course, individuals can get together and act within their rights in concert, but the rights, of "we the people" refer to individuals.
Using group conceptions can turn rights on their head.
Keith, there are various types of rights, including "group conceptions."
A basic one is the right to vote, a basic right of "we the people" in a republican government. Individuals, just like Stevens said, have rights there, but as part of a collective group. Likewise, juries were seen as basic to the Founders. People have a right to be members of juries, but it involves being part of a group. And, the same applies to the militia. People do not atomically have a right to own a firearm. They have one as part of the militia. Again, yes, an individual right as well.
The concept of people having rights as part of a group was a long held concept, one that went back to the Magna Charta. Finally, you flagged "majoritarian predilections." But, neither the majority or the dissent held in Heller that. Each argued the 2A put forth a constitutional requirement for which judicial review was appropriate. And, both did allow for various limitations by the majority.
" We have seen before how a fringe idea about the Bill of Rights can become mainstream. Fifty years ago, if a politician or other prominent figure pronounced that "private handgun possession is protected by the second amendment," constitutional scholars would have written op-eds patronizingly explaining that the case law rejects this view. Then a coordinated political, social, and scholarly movement sought to change that reality, eventually succeeding when the Supreme Court endorsed the formerly dissident view of the Second Amendment in 2008 in District of Columbia v. Heller."
"Something similar could happen with respect to hate speech."
Neither Keith nor Joe have in their exchanges of comments mentioned originalism. If it is before moderation clicks in, I'd be glad to join in.

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