At once revered and reviled, Citizens United remains one of the most controversial and consequential Supreme Court decisions of the twenty-first century. Striking down all prohibitions on independent campaign expenditures, the landmark 2010 decision found that corporations are afforded the same First Amendment free speech rights as are individuals.

While Justice Stevens, dissenting for the Court’s four liberal members, blasted the conservative majority’s “wooden approach to the First Amendment,” his words were not enough. Citizens United removed one of the last remaining guardrails against corporate interests, and as a result, dark money, corporate spending, and Super PACs have come into election cycles.  Join the legendary Hollywood Director Judd Apatow as we get into the case.

This marks the end of the Courtside Season 1. There might be a special bonus episode coming with someone quite interesting next month, if the stars align. And yes, because you all made Courtside such a smashing success, Season Two will appear in the summer of 2024!

Paid subscribers have access to all the extra written materials about Citizens United below, including a short summary of the case, the full written decision, and an abridged one.

I discuss these three Trump maneuvers, and why each is likely to fail. Listeners have been asking me about each of these 3, so I thought I’d put my answers to you in this format. For more on the new Georgia statute for ouster of local prosecutors (a move Governor DeSantis just used in Florida), read this informative article https://www.theatlantic.com/ideas/archive/2023/08/trump-georgia-indictment-motion-remove/675019/

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Campbell v. Acuff-Rose Music Inc. is an important 1994 Supreme Court decision that profoundly impacted copyright law. In a unanimous decision, the Court found that parody is, by and large, protected under the fair use exception, meaning that it doesn’t violate copyright. In the case, 2 Live Crew, a rap group, parodied Roy Orbison and William Dees’ song “Oh, Pretty Woman.” The Court said that was OK. In the long run, the decision has eliminated barriers that previously prevented artists from incorporating unoriginal works into their own, thereby promoting creative growth and the expansion of the arts.

We have the ideal guest to discuss the case, Aaron Dessner. Aaron is part of what I think is the best band in America, the National. He's also the most sought after music writer today, having co written several records with Taylor Swift, including the hauntingly beautiful Folklore and Evermore. He just did the same with Ed Sheeran’s new record Subtract. The idea for this episode arose one night after one of Aaron’s concerts, where he and I got talking about music and copyright and how AI, Artificial Intelligence, was going to upend things.

So here’s what happened. In 1964, the singer-songwriters Roy Orbison and William Dees wrote a song entitled “Oh, Pretty Woman.” After completion, they assigned the rights of the song to a music company called Acuff-Rose Music, which soon had it registered for copyright protection.

25 years later, popular rap music group 2 Live Crew wrote a parody of the song, which they called “Pretty Woman.”

The parody began with the original lyrics and harmonies, but it quickly changed gears, replacing the wishful and melancholy words and chords with startlingly brash ones. 2 Live Crew wrote to Acuff-Rose and asked for permission to release their parody. Acuff-Rose denied the request, but the group went ahead and released the song anyway.

About one year later, Acuff-Rose sued 2 Live Crew for copyright infringement. The District Court ruled in favor of 2 Live Crew, but the Court of Appeals reversed. 2 Live Crew appealed, and the Supreme Court agreed to hear the case. At issue was a simple question, but one that had the potential to radically transform copyright law: Did 2 Live Crew’s parody qualify as fair use under the Copyright Act of 1976?  The Court unanimously said it did.

Campbell v. Acuff-Rose Music was a very consequential ruling. Aside from allowing 2 Live Crew to continue selling their parody of “Oh, Pretty Woman,” the decision also promoted artistic growth, pushing the boundaries of what could acceptably be imitated from preexisting works. Indeed, by recognizing that parody meets the threshold for fair use, the Court opened countless doors for aspiring artists, ensuring that they can draw upon, alter, and otherwise criticize previous works.

But that is not to say that the decision gives artists a blank check. As Justice Kennedy remarked in a brief concurrence, “The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole.” In other words, parody qualifies under the fair use exception so long as it criticizes the original work (and not some broader societal phenomenon). The decision thus respects the key tenets of copyright law and protects the works of parodists, striking a delicate yet thoughtful balance between two competing interests.

Aaron and I get into a discussion of modern copyright problems, including the Ed Sheeran case and the ways in which Artificial Intelligence might upend things.

Paid subscribers have access to all sorts of information about the case, including a short summary of it, an abridged version of the decision, and the full decision. There will also be a remarkable bonus episode with more from Aaron Dessner for paid subscribers in the days to come.

Judge Michael Luttig was one of the most respected jurists and lawyers in our nation. Appointed by President Reagan and a deep conservative, he played a critical role on January 6. Listen to his remarkable reactions to the indictment brought by Jack Smith.

For more, please subscribe to Courtside at nealkatyal.substack.com. There you’ll get access to all the full episodes and written materials, including deep dives on historic Supreme Court cases with discussions from people like John Mulaney, Katie Couric, and Rob Reiner. I will also be launching a second emergency Courtside today with my own reactions to the indictment.

This episode is like a matter-anti matter explosion. Regina Spektor is one of the deepest and most thoughtful humans on the planet, and one of the most talented musicians to boot. Her music can bring you to tears with its celebration of life and emotion. She and I discuss one of the lowest points for the Supreme Court in recent memory, Hawaii v. Trump, where the Supreme Court upheld Trump’s severe restrictions on countries that were overwhelmingly Muslim. Paid subscribers on nealkatyal.substack.com will have access to the full written materials around the decision (including a short summary) along with some bonus material from the interview with Regina.

On December 7, 2015 (note the date), candidate Donald Trump called for "a total and complete shutdown of Muslims entering the United States.” 5 days into his Administration, he implemented it, leading to mass protests at airports.

That travel ban got struck down by the Courts. Trump created a new one. That one got struck down by courts. Trump created another one. And that third one is the one that went to the Supreme Court.

The Supreme Court, in a 5-4 decision written by Chief Justice Roberts, upheld the third ban. Chief Justice Roberts found that the ban was constitutional, arguing that it neither exceeded the executive power of the Presidency nor violated the First Amendment. Justice Breyer issued a dissent examining the Proclamation’s system of waivers and exemptions. In her more dissent, Justice Sotomayor rebuffed Roberts’ argument, connecting then-candidate Trump’s Islamophobic rhetoric to the ensuing travel ban and suggesting parallels to the Japanese internment cases. While the ban only lasted for four years, its impact was enormous; families were separated, dreams were crushed, and perhaps most disturbingly, the Court set a dangerous legal precedent. To me, as I wrote about in Yale Law Journal, it was a resurrection of the Korematsu case, where the Court upheld the Japanese American internment on grounds of national security. (Please keep in mind, I argued the Hawaii case in the Supreme Court and the lower courts, and have strong feelings, and some good stories I share here.). I have always felt the Supreme Court got Korematsu wrong, but part of the blame rests with the Solicitor General at the time, who lied to the Supreme Court.

Regina, herself a refugee, is the perfect guest to discuss the human impact of a decision like Trump v Hawaii. I can’t wait for you to listen in, for what she says about the promise of America is so moving.

Paid subscribers will have access to all the written materials and summary of the decision, along with a bonus episode discussing Regina’s tips for overcoming stage fright. Sign up at nealkatyal.substack.com

As we wait to see what federal prosecutor Jack Smith will do regarding Donald Trump and the January 6 investigation, I wanted everyone to understand the major new developments in the stolen documents/Mar a Lago case.

This quick 5 min episode is available to anyone, but if you want more, including my in depth discussions about the Supreme Court with people like John Mulaney, Rob Reiner, Katie Couric, and others, please sign up at nealkatyal.substack.com

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Heather Cox Richardson is one of the most brilliant and accessible historians of our time. Her newsletter, Letters from an American, has over 1.1 million subscribers, and for good reason. And you’ll see it here — she is discussing perhaps the most important case the Supreme Court has ever decided, Dred Scott. It’s not an exaggeration to say that the Court’s decision sparked the Civil War.

There is so much difficult history to master to understand the case, and I’ve never heard it better explained than here. I mean, I’ve taught Dred Scott 20 times, but never with the incisive historical background she provides just in the first few minutes of the podcast. Many people gloss over the decision — it’s a bit complicated and it’s SO old. But it’s really important, and Prof. Richardson helps break it down into something absolutely understandable.

Dred Scott v. Sandford occupies a unique place in the annals of American history — that of the Supreme Court’s worst decision. Ever. Disgracing the very idea of democracy, the 1857 ruling stripped freed slaves of citizenship, invalidated the Missouri Compromise of 1820, and officially defined slaves as “property” under the Fifth Amendment. While the decision is primarily known for its racial animus, constitutional hogwash, and egregious holdings, it also had the adverse effect of splitting the court. Indeed, in a sign of just how divisive Dred Scott was, nine separate opinions were issued — one by each justice. We also cover the reactions to the decision, including the remarkable views of Frederick Douglass.

And in many ways, the Court’s deep schism reflected a broader reality; Dred Scott ripped apart an already-divided country, pushing the United States towards a civil war that seemed all the more imminent with each passing day. I can’t wait for you to listen to this.

Much of the episode is available to everyone, on any podcast platform. Paid subscribers have access to the rest of the episode, along with written materials about the case (I've summarized the decision and provided an abridged version of it, along with the full written decision). Paid subscribers also will receive a bonus podcast discussion with Professor Richardson. I would so appreciate you becoming a paid subscriber, which covers the considerable production costs, as I'm not running any ads on the podcast at all. All profits go to charity. Thank you for listening!