GWEN IFILL: The Supreme Court heard arguments today that could strike a blow to public sector unions and to authors of original works. In the first case, non-unionized home health care workers in Illinois say they shouldn’t have to pay for contract negotiations. And in the second, can an author’s heirs still stake claim to a big Hollywood production more than 30 years later? The 1980 movie “Raging Bull” earned Robert De Niro an Academy Award for his portrayal of a embattled boxer Jake LaMotta.
As always, Marcia Coyle of The National Law Journal was in the courtroom this morning and she is with us tonight.
Let’s start with the union case, Marcia.
MARCIA COYLE, The National Law Journal: OK.
GWEN IFILL: So, are home health care workers normally covered by unions?
MARCIA COYLE: Well, there are a number of states that have recognized unions to represent those types of workers.
And the state of Illinois did in this particular case not only recognize the union, but really supported it, Gwen, because it found once it had a union, it dramatically reduced turnover in these jobs, it raised wages, and it offered benefits that made the job more attractive to workers. So the union is supporting the — I’m sorry — the state is supporting the union in this case before the Supreme Court.
GWEN IFILL: So, how could a Supreme Court ruling in this case affect public sector unions in general?
MARCIA COYLE: Well, if the court were to rule for the three challengers, who are home health care workers, who are not members of the union, it could really, as Justice Kagan pointed out today, radically — radically alter the workplace around the country where there are unions like this.
These three home health care workers who are non-union members are saying that, because this is a public employee union, even bargaining for wages is a way of petitioning the government, and their fee to support the bargaining costs is compelled speech, violating the First Amendment.
Now, the interesting thing here, Gwen, is that the Supreme Court has recognized for years that non-union workers can be asked, compelled to pay a fee to support bargaining activities. However, it balances that out with the first didn’t impingement on their First Amendment rights by saying that none of that fee can go to union advocacy. It has to be strictly for bargaining costs.
GWEN IFILL: So, we’re not talking about forcing them to pay dues, just forcing them to pay for the part of the negotiation cost that they benefit from?
MARCIA COYLE: That’s right, exactly. It’s a way to prevent what is called free riders, getting the benefits of what the union can negotiate, and yet not sharing in any of the costs to the unions.
GWEN IFILL: Did the justices have any sympathy for that today?
MARCIA COYLE: Well, yes, they did.
I saw — I can’t really say the court is divided here, but I can say that there were several justices, such as Justice Breyer and Kagan, who did see this as really an attempt to overturn a 35-year-old Supreme Court decision, and really alter how the workplace operates with agency shops.
On the other hand, justices such as Justice Kennedy seemed to grasp the idea of the challengers that when you are petitioning as a public employee the government for higher wages, you’re speaking almost really on a matter of public concern. In fact everything, that you’re bargaining for is a matter of public concern ultimately.
And he expressed concern that this is — that public employees are surrendering — or non-union members are surrendering a substantial amount of their First Amendment rights. So, there does seem to be a certain amount of openness on the part of some justices to reexamine this very bedrock principle that’s been around for three decades now.
GWEN IFILL: On the second case that the court heard today, this interesting — what we have calling shorthand around here the “Raging Bull” case…
MARCIA COYLE: Yes.
GWEN IFILL: … this isn’t really so much about the film or even about ownership as much as about delay?
MARCIA COYLE: Yes, exactly. In fact, it’s really about the daughter of screenplay writer Frank Petrella, whose screenplay she says was the basis for the film, whether she can actually get in to court and make her claim that MGM has been infringing the copyright on that screenplay.
The issue before the justices is really whether can unreasonable delay in raising your right, your copyright here, can actually be used to bar you bringing your lawsuit. Is it a defense, for example, to MGM? And the lower courts here said that it could bar it.
But the wrinkle is the Copyright Act itself says that people can bring copyright claims within three years of an infringing act. So, Paula Petrella, who brought this lawsuit, filed it in 2009, and is claiming that MGM infringed from 2006 to 2009.
So, the issue for the justices is, can this sort of very old doctrine of unreasonable delay preempt the limit that Congress put in to the actual law that you have three years to file a copyright action each time there’s an infringing act?
GWEN IFILL: So if this was a law that Congress wrote, could Congress have role in trying to straight this out?
MARCIA COYLE: Well, I think, ultimately, it depends, Gwen, on what the court says. If the court says that this doctrine of unreasonable delay can be used to bar these types of suits, then Congress could look at the Copyright Act and make it explicit that the doctrine doesn’t prevail, that the three-year time frame they put in the law is what should govern here.
It really does depend on what the court says. And I couldn’t tell at the end of the argument which way the court was going to go. There seemed to be good arguments on both sides for which — whether the doctrine or the — limiting the law should prevail.
GWEN IFILL: Was there any discussion at all in the court today about whether this could have — the ruling in this case could have broader implications for authors of other works or for new technologies which don’t have necessarily three-year life spans?
MARCIA COYLE: Oh, absolutely.
If it’s a copyright case, it’s going to fall under the Copyright Act, of course. But this doctrine of unreasonable delay, and I will use the word, it’s called latches, could affect all kinds of works. And you could see in the Supreme Court itself with amicus briefs that there were a number of amicus briefs by musicians, composers, authors who really want to be able to assert their copyrights after a certain period of time.
On the other side, you have studios and other producers, business as well that feel, gee, if you wait 18 years, as Paula Petrella did here, to sue, you really ought to be out of luck because we relied on that time period in which you were silent. And you shouldn’t be able to come in and skim the cream off the top, as MGM’s lawyer said.
GWEN IFILL: Fascinating, as always, Marcia Coyle, reporting tonight in Washington for us in a lovely snowstorm, but reporting on the Supreme Court. Thanks again.
MARCIA COYLE: My pleasure, Gwen.