Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P29 ppsx

retailers of Betamax VCRs, and one individual
Betamax owner.
The district court ruled against Universal
and Disney, finding an imp lied exemption for
home video recording in the 1976 Copyright
Revision Act (Universal City Studios, Inc. v. Sony
Corp. of America, 480 F. Supp. 429 [C.D. Calif.
1979]). The district court also held that Sony
was not a contributory infringer of the studios’
copyrights because it did not know that home
video recording was an infringement when it
manufactured and sold the VCRs. Most impor-
tantly, the district court held that home video
recording was a fair use of the copyrighted tele-
vision programs. Universal and Disney believed
that the district court was the first court to hold
that copying copyrighted material for mere
entertainment or convenience could be a fair
use, and they immediately appealed.
The Ninth Circuit Court of Appeals reversed
the district court, holding that private home
videotaping infringed on the studios’ copyrights
(Universal City Studios, Inc. v. Sony Corp. of
America, 659 F. 2d 963 [1981]). The appeals
court also determined that Sony was liable to
the studios for contributory infringement be-
cause it knew that Betamax VCRs would be
used to reproduce copyrighted programs. The
Supreme Court agreed to hear Sony’s appeal.
On January 17, 1984, the Supreme Court
announced its decision reversing the Ninth

Circuit court, holding that Sony had not
infringed on copyrights held by Universal and
Disney by manufacturing and marketing Beta-
max VCRs. The Court was sharply divided, and
both Justice
JOHN PAUL STEVENS, who wrote for
the majority, and Justice
HARRY A. BLACKMUN,who
wrote for the dissent, issued lengthy opinions.
As noted earlier, the Betamax case focused on
two main issues: (1) whether home recording of
copyrighted television programs constitutes a
“fair use” of the copyrighted material, and (2)
whether Sony committed “contributory in-
fringement” by selling VCRs, thereby enabling
VCR owners to copy the copyrighted television
programs.
Article I of the U.S. Constitution grants
Congress the power to pass laws to protect the
works of “Authors and Inventors” from copying
by others. Pursuant to this power, Congress
created copyrights and
PATENTS. To encourage
creativity, Congress gave copyright holders the
exclusive right to their creative works. The
courts, however, have permitted reproduction
of copyrighted works without the copyright
holder’s permission for a “fair use”; the copyright
owner does not possess the exclusive righ t to a
fair use. For example, a teacher may reproduce

limited portions of a copyrighted book for the
purpose of teaching without the permission
of the author. This concept is referred to as
the “fair use doctrine,” which was codified by
Congress in the Copyright Revision Act of 1976
(17 U.S.C.A. § 107). The Betamax decision is
one of the most important cases interpreting
this doctrine.
In determining that home recording of
copyrighted television programs was a fair use
under the copyright laws, the Supreme Court
focused on the noncommercial nature of home
recording. The Court stated that noncommer-
cial use of copyrighted material is presumptively
fair. The majority of the Court agreed with the
district court that home record ing of copy-
righted television programs simply does not
harm the owners of the copyrig hts. The Court
noted that television programs are broadcast
free of charge and that Betamax VCRs enable
viewers to watch programs they might otherwise
miss. The Court also pointed out that copyright
owners besides Universal and Disney had testi-
fied at trial that they did not object to the home
recording of their television programs. Based on
all of these factors, the Court held that home
recording of copyrighted television programs
constitutes a fair use of the copyrighted material.
Clearly, Sony was not itself infringing on the
copyrights owned by Universal and Disney,

regardless of whether home recording of televi-
sion programs could be considered a fair use.
Thus, the studios argued instead that Sony was
liable for contributory infringement of their
copyrights. The studios’ theory was that Sony
supplied the means for the copyright infringe-
ment and actively encouraged infringement
through advertising. The Supreme Court rejected
the studios’ argument. The Court agreed that
contributory infringement of a copyright could
occur in certain circumstances; however, manu-
facturing and marketing the Betamax could
not constitute contributory infringement be-
cause the Betamax was capable of a number of
uses that did not infringe on any copyrights.
As examples of non-infringing uses, the Court
noted that many copyright owners did not object
to having their television programs recorded.
Also, the Betamax could be used to play rented
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
268 SONY CORP. OF AMERICA V. UNIVERSAL CITY STUDIOS
or purchased tapes of copyrighted programs,
thereby compensating the copyright holders for
the right to view their works.
Justices Blackmun,
THURGOOD MARSHALL, LEWIS
F
. POWELL JR., and WILLIAM H . REHNQUIST dissented
in an opinion by Blackmun. First, the dissent
found that home recording of copyrighted televi-

sion programs was not a fair use of the copy-
righted material. Blackmun stated that “when a
user reproduces an entire work and uses it for its
original purpose, with no added benefit to the
public, the doctrine of fair use usually does not
apply.” Although the majority found no harm
in allowing VCR owners to record copyrighted
television programs, the dissent claimed that these
recordings could harm the owners of the copy-
rights. The dissent pointed out, for example, that
persons who tape television programs for later
viewing are much more like ly to skip through
the commercials that ultimately pay for the
television program, thereby potentially reducing
advertising revenue. Also, the television ratings
system, on which advertising prices are based,
is unable to account for taped programs. The
dissent further believed that Sony could be liable
to the studios for contributory infringement
of their copyrights, stating that “if virtually all of
the product’s use is to infringe, contributory
liability may be imposed.” The dissent would
have remanded the case to determine whether
the Betamax VCRs were used primarily for
infringing or non-infringing uses.
FURTHER READINGS
Band, Jonathan, and Andrew J. McLaughlin. 1993. “The
Marshall Papers: A Peek behind the Scenes at the
Making of Sony v. Universal.” Columbia-VLA Journal of
Law & the Arts 17 (summer).

Burks, Margaret A. 1985. “Is Copyright Law in Need of
Congressional Action?” Northern Kentucky Law Review
12 (winter).
Lawrence, John, and B. Timberg. 1989. Fair Use and Free
Inquiry: Copyright Law and the New Media. Westport,
Conn.: Greenwood.
Lunney, Glynn S., Jr. 2002. “Fair Use and Market Failure: Sony
Revisited.” Boston University Law Review 82 (October).
Samuelson, Pamela 2005-2006. “The Generativity of Sony v.
Universal: The Intellectual Property Legacy of Justice
Stevens.” Fordham Law Review 74.
CROSS REFERENCES
Broadcasting; Intellectual Property.
v
SOTOMAYOR, SONIA MARIA
In 2009 Sonia Sotomayor became the nation’s
first Hispanic Supreme Court justice. She was
nominated for the position by President
BARACK
OBAMA
to replace DAVID SOUTER. Chief Justice
JOHN ROBERTS administered her oath on August 8,
2009, making her the 111th justice in U.S.
history.
Sotomayor was born in the Bronx borough
of New York City on June 25, 1954. Her mother
and father were both from Puerto Rico, and
both were uneducated. She grew up among
other Puerto Ricans in New York, and she did
not become fluent in English until about the age

of nine. By that time, she had been diagnosed
with diabetes, requiring her to take daily insulin
injections. At an early age, Sotomayor became
a “true media child,” reading Nancy Drew
books and watching the television show Perry
Mason The latter proved influential on Soto-
mayor’s decision to pursue law. “I noticed that
Perry Mason was involved in a lot of the same
kinds of investigative work that I had been
fascinated with reading Nancy Drew, so I decided
to become a lawyer,” sh e said. “Once I focused
on becoming a lawyer, I never deviated from
that goal.”
After graduating from Cardinal Sp ellman
High School in the Bronx in 1972, she enrolled
at Princeton University. She was one of only a
few Latinos who attended Princeton at that
time, and she later acknowledged that her writing
Sonia Sotomayor.
STACEY ILYSE
PHOTOGRAPHY/THE
WHITE HOUSE VIA GETTY
IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
SOTOMAYOR, SONIA MARIA 269
and vocabulary skills were relatively weak com-
pared with her classmates. However, through hard
work and determination, she improved her skills
markedly. She also became an activist on campus,

fighting for hiring of more Latino faculty
members and for offering more courses focusing
on Latin America.
After graduating summa cum laude from
Princeton in 1976, she enrolled at Yale Law
School on a scholarship. She earned a position
as an editor of the Yale Law Journal and served
as managing editor of the Yale Studies in World
Public Order. As a student, she interviewed with
the law firm of Shaw, Pittman, Potts & Trow-
bridge. When a member of the firm suggested
to her that she was only at Yale due to
AFFIRMATIVE
ACTION
, she responded by filing a complaint with
a tribunal at Yale. The law firm later apologized,
and the apology made news in the Washington
Post. Sotomayor graduated from Yale in 1979
and was admitted to the New York bar in 1980.
Sotomayor accepted a position as an assis-
tant district attorney with the New York County
District Attorney’s Office. From 1979 to 1984,
she worked with the office’s trial bureau and
litigated cases involving a range of crimes,
including murders, assaults, robberies, and
CHILD PORNOGRAPHY. She entered private practice
in 1984 by joining the firm of Pavia & Harcourt
in Manhattan. With only 35 attorneys overall
and fewer than ten litigators, the firm was
rather small. However, Sotomayor was able to

gain trial experience. She specialized in
COPY-
RIGHT
and trademark LITIGATION, along with
INTERNATIONAL LAW and ARBITRATION. In 1986
she was featured on a segment of Good Morning
America. During her time with the firm, she was
active as a member of the New York City
Campaign Finance Board as well as the Puerto
Rican Legal Defense and Education Fund.
A managing part ner at Sotomayor’s firm
encouraged her to apply for a position on the
federal judiciary when the position came open
in 1990. Although she was only in her 30s, she
found support from Democratic senator Daniel
Patrick Moynihan, who reportedly became
convinced that she would beco me the first
Hispanic justice on the Supreme Court.
On November 27, 1991, President
GEORGE H.
W. BUSH nominated Sotomayor for a position on
the U.S. District Court for the Southern District
of New York. Despite some political wrangling
within the
SENATE JUDICIARY COMMITTEE, the full
Senate unanimously confirmed her nomination
on August 11, 1992.
Sotomayor quickly earned a solid reputa-
tion as a district court judge. She kept a low
profile b ut showed her willingness to accept

anti-government positions. She was tough on
sentencing in criminal cases, especially in
WHITE-
COLLAR CRIME cases. She issued one of her most
famous decisions on Silverman v. Major League
Baseball Player Relations Committee, Inc. (880
F. Supp. 246 [S.D.N.Y. 1995]), which involved
the Major League Baseball players’ strike. In the
decision, she ruled that the league could not uni-
laterally i mplement a new collective-bargaining
agreement and use replacement players. T his
ruling effe ctively ended the strike j ust before t he
start of the 1995 season .
In June 1997 President
BILL CLINTON nomi-
nated Sotomayor to serve on the U.S. Court of
Appeals for the Second Circuit. Some conser-
vatives attempted to derail her confirmation,
and these efforts were successful in delaying
confirmation for more than a year. Republican
Sonia Maria Sotomayor 1954–
▼▼
▼▼
❖
◆
1954 Born,
New York City
2001 September 11 terrorist attacks1961–73
Vietnam War
◆

2000
1975
1950
1976 Earned B.A. from
Princeton University
1979 Graduated from Yale Law School
1979–84 Served as assistant district
attorney for New York County
◆ ◆
◆ ◆
1980 Admitted to New York bar
1984 Joined
firm of Pavia
& Harcourt
◆
1992–98 Served on U.S.
District Court for the
Southern District of New York
1995 Presided over
Silverman v. Major
League Baseball
Player Relations
Committee, Inc.
1998 Appointed
to U.S. Court
of Appeals for
the Second Circuit
2009 Confirmed
as first Hispanic
Supreme Court justice

◆◆
◆
2008 Barack Obama elected first African American president
2009 David Souter
retired from
Supreme Court
I WANT TO STATE
UPFRONT
,
UNEQUIVOCALLY AND
WITHOUT DOUBT
:
I
DO NOT BELIEVE
THAT ANY RACIAL
,
ETHNIC OR GENDER
GROUP HAS AN
ADVANTAGE IN
SOUND JUDGING
.
I
DO BELIEVE THAT
EVERY PERSON HAS
AN EQUAL
OPPORTUNITY TO BE
A GOOD AND WISE
JUDGE
, REGARDLESS
OF THEIR

BACKGROUND OR LIFE
EXPERIENCES
.
—SONIA SOTOMAYOR
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
270 SOTOMAYOR, SONIA MARIA
senator Al D’Amato, however, urged several
members of the Republican Party to vote in her
favor, and the Senate confirmed her appoint-
ment on October 2, 1998, by a vote of 67-29.
Sotomayor later said she felt as if her critics
during the confirmation process had stereo-
typed her based on her ethnicity.
In her more than ten years on the Second
Circuit, she heard appeals in more than 3,000
cases. She wrote close to 380 opinions, of which
the Supreme Court reviewed five and reversed
three. Although some claimed that Sotomayor’s
record tended to favor the left, the
AMERICAN BAR
ASSOCIATION
ABA Journ al considered her to be a
political centrist. Sotomayor’s opinions tended
to be lengthier than her counterparts. She also
earned a reputation for sometimes being blunt
towards attorneys arguing their cases before her.
In 2001 Sotomayor gave a speech at the
University of California at Berkeley in which she
paraphrased a quotation often used by Justices
SANDRA DAY O’CONNOR and RUTH BADER GINSBURG.

The quotation refers to a conclusion that a “wise
old woman” or “wise old man” might make. In
her speech, Sotomayor said, “I would hope that
a wise Latina woman with the richness of her
experiences would more often than not reac h
a better conclusion than a white male who
hasn’t lived that life.”
In April 2009 the media revealed that Souter
planned to step down from the Court. Sotomayor
received attention as a possible candidate, and
on May 25, 2009, he informed her that she
would indeed be his candidate. She received
harsh criticism for the comments in her 2001
speech (she had made similar comments in other
speeches as well), and a poll later showed that the
public disagreed with her “wise Latina” quip.
However, polls also showed that a majority of
Americans believed she was qualified to serve on
the Court, and the American Bar Association
rated her as “well qualified,” which is the highest
rating the ABA gives with regard to Supreme
Court nominees.
Despite the controversy surrounding her
remark, the Senate Judiciary Committee con-
firmed her nomination by a vote of 13-6 along
party lines. The full Senate then confirmed
her nomination on August 6, 2009. She heard
her first arguments on September 9, 2009.
Sotomayor has won dozens of awards. She
is a member of the Princeton University Board

of Trustees and has taught classes at both New
York University School of Law and Columbia
Law School. She has received honorary law
degrees from six different law schools.
FURTHER READINGS
Liptak, Adam. 2009. “The Newest Justice Takes Her Seat.”
New York Times. September 9, 2009.
Sotomayor, Sonya. “Statehood and the Equal Footing
Doctrine: The Case for Puerto Rican Seabed Rights.”
Yale Law Journal. 88.
v
SOUTER, DAVID HACKETT
David Hackett Souter was appointed to the U.S.
Supreme Court on July 25, 1990, by President
GEORGE H.W. BUSH. Chosen by the Bush adminis-
tration because of his conservative judicial style,
Souter proved to be a moderate justice whose
personality and temperament enabled him to
build a centrist coalition that garnered support
from the Court’s ideological extremes.
Souter was born on September 17, 1939, in
Melrose, Massachusetts, six miles north of
Boston. The only son of Joseph Souter, a bank
manager, and Helen Souter, a gift store clerk,
the future associate justice was remembered by
his childhood friends as an intense, intelligent,
and family-oriented person who was endowed
with a sharp wit, but no athletic ability. At age
eleven Souter and his parents moved to a ten-
acre farm in the rural community of East Weare,

New Hampshire.
In 1957 Souter graduated second in a class
of two hundred at Concord High School where
his classmates named him the most literary,
most sophisticated, and most likely to succeed.
During high school Souter was named president
of the National Honor Society and coeditor of
the yearbook. According to legend, the only
time Souter got into trouble as a teenager was
when he stayed past closing time at the local
historical society.
After high school Souter attended Harvard
University. Graduating magna c um laude
with a philosophy major in 1961, Souter was
inducted into Harvard’s prestigious chapter o f
Phi Beta Kappa, considered by m any to be
the nation’s highest undergraduate academic
award. Souter wrote his senior thesis on
Supreme Court Justice
OLIVER WENDELL HOLMES
JR
., which helped him earn a Rhodes Scholar-
ship to study at Oxford University, where he
received a bachelor’sdegreein
JURISPRUDENCE
in 196 3.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
SOUTER, DAVID HACKETT 271
Upon returning to the United States, Souter
entered Harvard Law School, quickly develop-

ing a reputation as a serious student and an
independent thinker. However, Souter was not
prone to debate issues with his peers or volunteer
in class. Although Souter was a solid law student,
he graduated without academic hono rs and was
not chosen for a place on the Harvard Law
Review, Harvard’s esteemed legal journal, which
was a highly coveted position among the students.
In 1966 Souter joined Orr and Reno, a
leading New Hampshire firm that handled
corporate, probate, tax, and
FAMILY LAW cases.
Not feeling sufficiently challenged or stimulated
by private practice, Souter went to work for the
New Hampshire attorney general, ascen ding
from assistant attorney general in 1968 to
deputy attorney general in 1971 to attorney
general in 1976. Souter did very little prosecut-
ing during his tenure with the attorney general’s
office, directly handling only nine cases in ten
years.
In 1978 Souter was appointed to the bench
as a superior court judge in New Hampshire.
Attorneys who appeared before Souter de-
scribed him as an even-handed trial judge with
a penchant for detail. Five years later Souter was
elevated to the New Hampshire Supreme Court,
where he authored more than 200 opinions
and established himself as an assertive judge
who often questioned lawyers during

oral arguments.
In February 1990 President Bush appointed
Souter to the U.S. Court of Appeals for the First
Circuit. Five months later, before Souter had
written his first opinion as a federal judge, Bush
appointed Souter to the U.S. Supreme Court.
Subsequently confirmed by a Senate vote of
90–9, Souter became the 105th jurist to serve on
the nation’s highest court.
Souter disappointed those in the Bush
administration who hoped he would provide
the decisive fifth vote for the conservative wing of
the Court, composed of Chief Justice
WILLIAM H.
REHNQUIST and Associate Justices ANTONIN SCALIA,
CLARENCE THOMAS, and SANDRA DAY O’CONNOR.
Instead, Souter proved to be a temperate justice,
with a mainstream judicial philosophy. He took
some positions that upset conservatives and
other positions that upset liberals.
Souter offended liberals when he voted
to uphold federal regulations that prohibited
David Hackett Souter 1939–
▼▼
▼▼
❖
1950–53
Korean War
1961–73
Vietnam War

◆
1939 Born,
Melrose, Mass.
1939–45
World War II
◆
◆
◆
◆
◆
◆
◆
1962–63
Studied as
Rhodes
Scholar at
Oxford
1968
Became
assistant
attorney
general of
New
Hampshire
1976–78
Served as
attorney
general of
New
Hampshire

1978–83
Served on
the
Superior
Court of
New
Hampshire
1983–90
Served on
the
New
Hampshire
Supreme
Court
1990 Appointed to U.S. Court of
Appeals for the First Circuit
1990 Appointed associate justice of the U.S. Supreme Court
1992 Drafted
opinion with
Kennedy and
O’Connor in
Planned
Parenthood
v. Casey
2003 Dissented
in Woodford,
Warden v. Garceau
1996 Joined majority opinions in Romer v. Evans and United States v. Virginia
1998 Wrote majority opinion in New Jersey v. New York; wrote majority opinion in Faragher v. Boca Raton
2000 Dissented in

Bush v. Gore
◆
2009 Delivered
opinion in
Abuelhawa v.
United States; retired
from Supreme Court
2000
1975
1950
2000 Presidential election result uncertain due
to disputed Fla. vote count; recount halted by
U.S. Supreme Court with 5–4 vote in Bush v. Gore
David H. Souter.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
272 SOUTER, DAVID HACKETT
doctors from providing ABORTION counseling at
federally funded clinics, despite objections that
such regulations violated the
FIRST AMENDMENT
(Rust v. Sullivan, 500 U.S. 173, 111 S. Ct. 1759,
114 L. Ed. 2d 233 [1991]). Some liberals were
again dismayed when Souter voted to affirm a
state ban on nude dancing in Barnes v. Glen
Theatre, 501 U.S. 560, 111 S. Ct. 2456, 115 L.
Ed. 2d 504 (1991), even though four dissent-
ing justices said the ban violated freedom of
expression. Souter also regularly voted in favor
of

CAPITAL PUNISHMENT.
On the other hand, many conservatives were
distraught by Souter’s concurring opinion in
LEE V. WEISMAN, 505 U.S. 577, 112 S. Ct. 2649,
120 L. Ed. 2d 467 (1992), which relied on the
Establishment Clause of the First Amendment
to declare unconstitutional a nonsectarian prayer
delivered by a clergyman at a public high school
graduation ceremony. In
ROMER V. EVANS, 517
U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855
(1996), Souter joined the Court’s majority
opinion that relied on the
EQUAL PROTECTION
CLAUSE
of the FOURTEENTH AMENDMENT to strike
down a Colorado constitutional provision pro-
hibiting all legislative, executive, and
JUDICIAL
ACTION
designed to protect homosexuals from
DISCRIMINATION. Many conservatives were also
upset when Souter voted to invalidate the male-
only admissions poli cy at the University of
Virginia Military Institute because it discrimi-
nated against women who sought entrance to
the school’s citizen-soldier program (
UNITED
STATES V
. VIRGINIA, 518 U.S. 515, 116 S. Ct.

2264, 135 L. Ed. 2d 735 [1996]).
Observers increasingly recognized Souter as
the intellectual leader of the emerging moderate
core of the Supreme Court. In a number of
important decisions, Souter allied himself with
Justices
ANTHONY M. KENNEDY and O’Connor to
forge an influential coalition that has been
joined by members of the Court’s ideological
extremes. In this regard, Souter played a critical
role in building a consensus of judicial philoso-
phy among the Supreme Court justices.
In PlannedParenthoodv.Casey,505 U.S. 833,
112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), for
example, the state of Pennsylva nia asked the
Supreme Court to overturn
ROE V. WADE, 410 U.S.
113, 93 S. C t. 705, 35 L. Ed. 2d 1 47 (1973), t he
decision guaranteein g women t he right t o termi-
nate their pregnancies under certain circumstances.
After oral arguments, five justices—Rehnquist,
Scalia, O’Connor, Kennedy, and
BYRON R.
WHITE—expressed serious reservations about the
holding in Roe. Based on these reservations,
Rehnquist was prepared to draft a majority
opinion that would have gutted virtually every
tenet in the 1973 precedent.
Before Rehnquist finished writing the opin-
ion, however, Souter, O’Connor, and Kennedy

met outside the presence of the other justices
to discuss the case. Following this meeting, the
three justices presented a joint opinion that
affirmed the central holding of Roe. Neither
the state nor federal governments, the joint
opinion in Casey stressed, may pass laws that
place an “undue burden” on a woman’s right
to have an abortion. Souter, O’Connor, and
Kennedy drew support from the traditionally
liberal
JOHN PAUL STEVENS and HARRY A. BLACKMUN,
who concurred in principle with the joint
opinion, and from the traditionally conservative
Rehnquist, who concurred in judgment.
Opinions in the Early 2000s
Through the first decade of the 2000s, Souter
continued to occupy a pivotal seat on the
Supreme Court, using his polite and friendly
personality, his patient and contemplative
temperament, and his diligent work ethic to
earn respect and win support across the
ideological spectrum. Howe ver, many of his
more noteworthy decisions between 1995 and
2003 came in a dissenting role .
For example, Souter dissented from a
Supreme Court decision holding that a sentence
of two consecutive terms of 25 years to life in
prison under California’sCareerCriminalPun-
ishment Act, also known as the Three Strikes
Law, on a conviction of two counts of petty theft

with a prior conviction, was neither contrary
to, nor an unreasonable application of, clearly
established federal law. Lockyer v. Andrade,
123 S.Ct. 1166, 155 L.Ed.2d 144 (U.S. 2003).
The defendant had been convicted of stealing
videotapes worth $154. The defendant “did not
somehow become twice as dangerous to society
when he stole the second handful of video-
tapes,” Souter said. “His dangerousness may
justify treating one minor felony as serious and
warranting long incapacitation, but a second
such felony does not disclose greater danger
warranting substantially longer incapacitation,”
Justice Souter argued. If the defendant’s sen-
tence is not grossly disproportionate to his
crime under the Eighth Amendment’s propor-
tionality analysis for determining whether a
[I]N THE FIELD OF
STATE
CONSTITUTIONAL
LAW
IF WE PLACE
TOO MUCH RELIANCE
ON FEDERAL
PRECEDENT WE WILL
RENDER THE
STATE
RULES A MERE ROW
OF SHADOWS
; IF WE

PLACE TOO LITTLE
,
WE WILL RENDER
STATE PRACTICE
INCOHERENT
.
—DAVID H. SOUTER
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
SOUTER, DAVID HACKETT 273
punishment is cruel and unusual, Souter con-
cluded, the principle would have “no meaning”
in any other case to which it might apply.
Souter al so dissented from a majority ruling
that officers may conduct a routine, suspicion-
less drug interdiction without informing bus
passengers that they have the right not to
cooperate and to refuse consent to searches.
United States v. Drayton, 536 U.S. 194, 122 S.Ct.
2105, 153 L.Ed.2d 242 (U.S. 2002). The Court’s
decision expanded upon an earlier case hold-
ing that the
FOURTH AMENDMENT permits police
officers to approach bus passengers at random
to ask questions and to request their consent to
searches, provided a reasonable person would
understand that he or she is free to leave. Souter
conceded that “[a]nyone who travels by air
today submits to searches of the person and
luggage as a condition of boarding the aircraft,”
and that “is universally accepted that such

intrusions are necessary to hedge against risks
that even small children understand.” How-
ever, “the commonplace precautions of air
travel have not, thus far, been justified for
ground transportation and no such condi-
tions have been placed on passengers getting
on trains or buses. There is therefore an air of
unreality about the Court’s explanation that bus
passengers consent to searches of their luggage
to “enhanc[e] their own safety and the safety of
those around them,” Souter wrote.
Many of Souter’s later dissenting opinions
earned him a reputation as a liberal-leaning
justice who broadly interpreted the constitu-
tional rights of criminal defendants. However,
Souter sided against the defendant in Atwater v.
City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536,
149 L.Ed.2d 549 (U.S. 2001), where he wrote
the majority opinion in a 5–4 decision holding
that the Fourth Amendment does not forbid a
warrantless arrest for a minor criminal offense,
such as a misdemeanor seatbelt violation puni-
shable only by a fine.
The case arose when a Texas police officer
observed that a motorist driving a pickup truck,
as well as her two children, were not wearing
seatbelts. Souter rejected the motorist’s con-
tention that “founding-era common-law rules”
forbade
PEACE OFFICERS from making warrantless

misdemeanor arrests except in cases of “breach
of the peace,” a category the motorist claimed
was then understood narrowly as covering
only those non-felony-level offenses “involving
or tending toward violence.” In the years
leading up to American independence, Souter
observed, Parliament repeatedly extended ex-
press warrantless search authority to cover
misdemeanor-level offenses not amounting to
or involving any violent
BREACH OF THE PEACE.
Souter refused to mint a new rule of
CONSTITU-
TIONAL LAW
forbidding custodial arrest, even
upon
PROBABLE CAUSE, when conviction could not
ultimately carry any jail time and the govern-
ment could show no compelling need for
immediate detention.
In May of 2009, Justice Souter delivered the
court’s opinion on Abuelhawa v. United States.
The Controlled Substances Act (CSA) makes it
a felony “to use any communication facility in
committing or in causing or facilitating” certain
felonies prohibited by the statute. 84 Stat. 1263,
21 U. S. C. §843(b). The question was whether
someone violates §843(b) in making a misde-
meanor drug purchase, because his phone call
to the dealer can be said to facilitate the felony

of drug distribution. The answer was no. The
judgment of the Court of Appeals for the Fourth
Circuit was reversed, and the case is remanded
for further proceedings consiste nt with the
court’s opinion.
Souter retired in 2009, after serving 18 years
on the court. His last official day on the court
was June 29. Notorious for being low-tech,
Souter planned to enjoy his new home in New
Hampshire, surrounded by books.
FURTHER READINGS
Gearan, Anne. 2003. “Long Sentences OK for Repeat
Criminals.”Tallahassee Democrat (March 6).
Henderson, Stephen. 2003. “Justices Uphold Megan’s Laws,
3-Strikes Laws.” Philadelphia Inquirer (March 6).
Kan, Liang. 1996. “A Theory of Justice Souter.” Emory Law
Journal 45 (fall).
Murray, Frank J. 2002. “Minor Crimes Split Courts on
Rights.” Washington Times (March 17).
Puffer, Mark H. 1999. “A Survey of Justice Souter’s
Decisions in the October 1998 Term.” New Hampshire
Bar Journal 40 (September).
Simon, James. 1995. The Center Holds: The Power Struggle
inside the Rehnquist Court. New York: Simon &
Schuster.
Yarbrough, Tinsley E. 2005. David Hackett Souter: Tradi-
tional Republican On The Rehnquist Court. New York:
Oxford Univ. Press.
SOUTHEAST ASIA TREATY
ORGANIZATION

The Southeast Asia Treaty Organization was an
alliance organized pursuant to the Southeast
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
274 SOUTHEAST ASIA TREATY ORGANIZATION
Asia Defense Treaty to oppose the growing
communist influence in Southeast Asia. The
United States, the United Kingdom, France,
Australia, New Zealand, Thailand, the Philippines,
and Pakistan signed the treaty and accompa-
nying Pacific Charter in Manila on September 8,
1954. The treaty became operative in February
1955 and bound the signatories to mutual aid
to resist armed attack or subversion; an armed
attack on one signatory was interpreted as a
danger to all.
Headquartered in Bangkok, SEATO relied
on the military forces of member nations rather
than commanding its own standing forces, as
does the North Atlantic Treaty Organization
(NATO). In its first few years of opera tion,
SEATO’s effectiveness was not tested, but at
the beginning of the 1960s, conflicts in South
Vietnam and Laos challenged the strength of the
alliance and ultimately found it lacking. France
withdrew from military cooperation in SEATO in
1967, and Great Britain refused active military
cooperation in the Vietnam conflict. Moreover,
a 1960s dispute between Pakistan and India
further undermined the efficacy of the alliance:
Pakistan drew closer to communist China, while

the United States provided aid to India.
In 1972 Pakistan completely withdrew from
the alliance; in 1974 France suspended its
membership payments. In September 1975 the
signatories decided to phase out the operations,
and SEATO was formally dissolved on June 30,
1977. The collective defense treaty remains in
effect, however.
FURTHER READINGS
Buszynski, Leszek. 1983. SEATO, the Failure of an Alliance
Strategy. Singapore: Singapore University Press.
Grenville, J.A.S., and Bernard Wasserstein. 2000. The Major
International Treaties of the Twentieth Century. New
York: Routledge.
Schoenl, William, ed. 2002. New Perspectives on the Vietnam
War: Our Allies’ Views. Lanham, Md.: Univ. Press of
America.
U.S. Department of State. 1995. Treaties in Force. Publica-
tion 9433.
SOUTHERN CHRISTIAN LEADERSHIP
CONFERENCE
As a principal organization of the CIVIL RIGHTS
MOVEMENT
, the Southern Christian Leadership
Conference (SCLC) championed the use of
nonviolent direct action to end legal and social
discrimination against African Americans.
Identified strongly with its original leader, the
Reverend
MARTIN LUTHER KING JR., the SCLC

organized and sponsored many protest marches
and demonstrations during the late 1950s
and the 1960s. Although the group’s influence
declined after King’s assassination in 1968, the
SCLC continues to work for the betterment of
the lives of African Americans.
The SCLC emerged in the wake of a suc-
cessful boycott of buses in Montgomery,
Alabama, by the city’s black citizens in 1955,
which had led to a December 1956
SUPREME
COURT
ruling upholding the desegregation of
those buses (Gayle v. Browder, 352 U.S. 903, 77
S. Ct. 145, 1 L. Ed. 2d 114). Prodded by African
American social activist Bayard Rustin, who
hoped to carry the Montgomery victory to the
rest of the South, King and other clerics formed
the Southern Negr o Leaders Conference, fore-
runner of the SCLC, during a meeting in
Atlanta in January 1957. King, who had gained
national renown through his role as head of
the Montgomery Improvement Association,
the organizer of the bus boycott, was a natural
choice to lead the group. Other early
SCLC leaders included the Reverends
RALPH D.
ABERNATHY and Fred Shuttlesworth. Later in
1957, the group changed its name to the
Southern Christian Leadership Conference.

The SCLC hoped to initiate nonviolent
direct action throughout the South, modeling
their activities on Gandhi’s methods of passive
resistance. It hoped that such action woul d
secure racial desegregation, voting rights, and
Early leaders of the
Souther Christian
Leadership
Conference, Revs.
Martin Luther King
Jr., Fred
Shuttlesworth, and
Ralph D. Abernathy
speak at a press
conference in
Birmingham,
Alabama, in May
1963.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE 275
other gains for African Americans. Through this
approach, the SCLC sought to take the CIVIL
RIGHTS
cause out of the courtroom and into the
community, hoping to negotiate directly with
whites for social change. As one of its first
actions, the group led the 1957 Prayer Pilgrimage
to Washington, D.C., which drew an estimated

25,000 people. In 1959, it organized a youth
march on Washington, D.C., that attracte d
40,000 people.
Despite these successful marches, the SCLC
was hampered by disorganization during its
early years. It experienced difficulty in meeting
many of its major goals during the late 1950s,
particularly in voter registration. It charted a
new course in the early 1960s, when it recruited
leaders such as the Reverends Wyatt T. Walker
and Andrew J. Young. Between 1960 and 1964,
the number of full-time SCLC staff members
grew from 5 to 60, and the organization’s effect
on the
CIVIL RIGHTS MOVEMENT reached its zenith.
Growth in its membership allowed SCLC to
coordinate historic demonstrations that played
a vital role in the civil rights movement. In April
1963, the SCLC led protests and boycotts in
Birmingham, Alabama, that prompted violent
police repression. Television viewers around the
United States were shocked at the violence they
saw directed at the clearly peaceful demonstra-
tors. The SCLC won the sympathy of the nation
again in a difficult 1965 civil rights campaign
in Selma, Alabama, which also drew a violent
response from whites. These protests are widely
credited with hastening the passage of the
CIVIL
RIGHTS ACT OF

1964 (42 U.S.C.A. § 2000a et seq.)
and the
VOTING RIGHTS ACT OF 1965 (42 U.S.C.A.
§ 1973 e t seq.), l a ws that granted African Amer-
icans many of the rights they had been seeking.
By the mid-1960s, other African Americans
began to question whether nonviolent direct
action could achieve significant changes for their
communities. More radical civil rights groups,
notably the
STUDENT NONVIOLENT COORDINATING
COMMITTEE
and the CONGRESS OF RACIAL EQUALITY ,
publicly renounced the nonviolent approach of
the SCLC. They pointed to the poverty and
DE
FACTO
(actual) SEGREGATION experienced by Afri-
can Americans in the northern cities and argued
that the SCLC tactics were ineffective in the
urban ghetto.
King and the SCLC were sensitive to such
criticism and increasingly began to focus their
attention on the North. By 1967, the SCLC
launched several new operations there: the
Chicago Freedom Movement, Operation Bread-
basket, and the Poor People’s Campaign. It
brought in new, young leaders, including the
divinity student
JESSE JACKSON, to lead these

efforts.
The SCLC suffered a staggering setback
when King was assassinated in April 1968. The
group had always been closely identified with
the charismatic preacher, and his death cost it
the vital leadership, publicity, and fund-raising
he had provided. Abernathy became president
of the organization. By 1972, the staff had
declined to 20 and leaders such as Young and
Jackson had moved on to other pursuits.
Joseph E. Lowery succeeded Abernathy as
president of the SCLC in 1977. The Atlanta-
based group has continued to work for the
improvement of the lives of African Americans
through leadership training and citizen educa-
tion. It has also created campaigns to battle drug
abuse and crime.
In the 1990s and early 2000s, the SCLC had
a number of leadership changes. Martin Luther
King III replaced Lowery as president in 1997
and served until 2004. King was replaced briefly
by famed civil rights activist Fred Shuttlesworth
in 2004. Charles Kenzie Steele Jr., whose father
was one of the original members of SCLC,
replaced Shuttlesworth in 2004. Steele served
until 2009, when he was replaced on an interim
basis by Byron Clay.
FURTHER READINGS
Blumberg, Rhoda Lois. 1991. Civil Rights: The 1960s Freedom
Struggle. Rev. ed. Boston: Twayne.

Fairclough, Adam. 2001. To Redeem the Soul of America: The
Southern Christian Leadership Conference and Martin
Luther King Jr. Athens: Univ. of Georgia Press.
Fairclough, Adam. 1989. “The Southern Christian Leader-
ship Conference and the Second Reconstruction, 1957–
1973.” In We Shall Overcome. Edited by David J.
Garrow. Brooklyn, NY: Carlson.
Ford, Linda G. 1992. “Southern Christian Leadership
Conference.” In Encyclopedia of African-American Civil
Rights. Edited by Charles D. Lowery. San Diego, CA:
Greenwood Press.
Garrow, David J. 1986. Bearing the Cross: Martin Luther King
Jr. and the Southern Christian Leadership Conference.
New York: Morrow.
Southern Christian Leadership Conference. Available online
at (accessed June 3, 2009).
CROSS REFERENCES
Integration; Jim Crow Laws; NAACP; Parks, Rosa Louise
McCauley.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
276 SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE
SOUTHERN POVERTY LAW CENTER
The Southern Poverty Law Center (SPLC) is an
internationally known nonprofit organization
that files
CLASS ACTION lawsuits to fight discrimi-
nation and unequal treatment. It also tracks
hate groups and runs a program to educate
Americans about racism, anti-Semitism, and
other forms of intolerance. The organization

has received numerous awards and accolades
for its work. SPLC has been the subject of
vociferous attacks by racist and anti-Semitic
groups as well as “white power” advocates.
Based in Montgomery, Alabama, the SPLC
was founded in 1971 by attorneys Morris Dees
and Joseph J. Levin Jr. along with
CIVIL RIGHTS
leader JULIAN BOND. Dees graduated from the
University of Alabama Law School in 1960 and
started a
PRIVATE LAW practice in the state’scapitol
city, Montgomery. In 1967 Dees began to gain
notoriety for his willingness to handle unpopular
CIVIL RIGHTS CASES. Levin, who had returned
home from army service to join his father’slaw
practice, indicated his interest in the type of
cases Dees was handling. The two attorneys
started a law practice that specialized in civil
rights cases. Their practice eventually developed
into the Southern Poverty Law Center.
Levin functioned as legal director of the
Center from 1971 to 1976. During that period
Levin worked on more than 50 significant civil
rights cases. Levin left the center in 1976 but
continued his involvement with SPLC by
serving as president and board chair. In 1996,
Levin returned to Montgomery to become the
center’s chief executive officer. Julian Bond, a
civil rights activist who co-founded the

STUDENT
NONVIOLENT COORDINATING COMMITTEE
(SNCC) in
1960 and later served four terms on the board of
the National Association for the Advancement
of Colored People (
NAACP), became the first
president of SPLC. As of 2009, Bond still served
on SPLC’s board of directors.
SPLC has specialized in
CLASS ACTION lawsuits
that challenge
SEGREGATION in numerous spheres.
One case from the 1970s resulted in the election
of 17 African American legislators to the
Alabama General Assembly. Until 1972 there
were no African Americans among the Alabama
State Troopers. A lawsuit filed by SPLC that
year resulted in a decision requiring the state
to hire one qualified African American trooper
for each Caucasian trooper hired until the
former comprised 25 percent of the force. State
officials fought the order and the case was
litigated all the way to the U.S. Supreme Court.
In 1987 the court decided in favor of the plaintiffs.
By 1995 opposition had ended and in 2003,
Alabama State Troopers had the highest percent-
age of minority officers of any state in the nation.
In 1976 SPLC challenged the in humane
conditions of Alabama prisons. Since prevailing

in that case, it has worked with state officials
to reform the prison system. In 1995 the state
reestablished a practice whereby prison inmates
were shackled together as they worked along the
state highways. The center sued the state and
eventually obtained an agreement prohibiting
the use of “chain gangs” in Alabama.
The SPLC has challenged Georgia state
officials and their eligibility guidelines for
providing services to children with learning
disabilities in addition to advocating for the
provision of adequate care and health services
for persons with mental retardation. Besides
LOBBYING for better care for emotionally dis-
turbed children in foster care, the SPLC has
sought more assistance for adults with mental
illness. Alabama’s failure to provide
MEDICAID
recipients with medically necessary transporta-
tion has also been challenged. A federal court
upheld SPLC’s action, and in 1996 the state
began opera ting a program that helped provide
affordable transportation to more than 40,000
Medicaid recipients. Although this ruling was
overturned on appeal, the state continued to
provide non-emergency Medicaid transportation.
The SPLC has successfully fought for safer
working conditions for employees of Alabama’s
cotton mills, fair housing treatment for African
Americans in Alabama who faced

RACIAL DIS-
CRIMINATION
when trying to lease apartments,
tax
EQUITY in Kent ucky, and the removal of
the Confederate battle flag from the dome of
Alabama’s state capitol building. Additionally,
SPLC has waged and won major battles over the
convictions of a number of cases where inmates
in southern states have faced
CAPITAL PUNISHMENT.
In response to the resurgence of the
KU KLUX
KLAN
(KKK) in 1981, SPLC began to monitor
hate activity. In the 2000s SPL C’s Intelligence
Project tracked the activities of more than 600
active hate groups including the KKK, Neo-
Nazis, Black separatists, and other racist and
extremist organizations. The SPLC’s quarterly
periodical, Intelligence Report, provides compre-
hensive information on these groups to law
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
SOUTHERN POVERTY LAW CENTER 277