No. 18-877
`
`
`
`IN THE
`Supreme Court of the United States
`___________
`
`FREDERICK L. ALLEN and
`NAUTILUS PRODUCTIONS, LLC,
`
`Petitioners,
`
`v.
`
`ROY A. COOPER, III,
`as Governor of North Carolina, et al.,
`Respondents.
`
`___________
`On Writ of Certiorari to the United States
`Court of Appeals for the Fourth Circuit
`___________
`
`BRIEF OF CONSTITUTIONAL ACCOUNTABILITY
`CENTER AS AMICUS CURIAE IN SUPPORT OF
`PETITIONERS
`___________
`
`ELIZABETH B. WYDRA
`BRIANNE J. GOROD*
`DAVID H. GANS
`DAYNA J. ZOLLE**
`CONSTITUTIONAL
` ACCOUNTABILITY CENTER
`1200 18th Street NW
` Suite 501
`Washington, D.C. 20036
`(202) 296-6889
`brianne@theusconstitution.org
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Counsel for Amicus Curiae
`
`August 13, 2019
`
`* Counsel of Record
`** Not admitted in D.C.; supervised
`by principals of the firm
`
`
`
`
`
`
`
`IN THE
`Supreme Court of the United States
`___________
`
`FREDERICK L. ALLEN and
`NAUTILUS PRODUCTIONS, LLC,
`
`Petitioners,
`
`v.
`
`ROY A. COOPER, III,
`as Governor of North Carolina, et al.,
`Respondents.
`
`___________
`On Writ of Certiorari to the United States
`Court of Appeals for the Fourth Circuit
`___________
`
`BRIEF OF CONSTITUTIONAL ACCOUNTABILITY
`CENTER AS AMICUS CURIAE IN SUPPORT OF
`PETITIONERS
`___________
`
`ELIZABETH B. WYDRA
`BRIANNE J. GOROD*
`DAVID H. GANS
`DAYNA J. ZOLLE**
`CONSTITUTIONAL
` ACCOUNTABILITY CENTER
`1200 18th Street NW
` Suite 501
`Washington, D.C. 20036
`(202) 296-6889
`brianne@theusconstitution.org
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Counsel for Amicus Curiae
`
`August 13, 2019
`
`* Counsel of Record
`** Not admitted in D.C.; supervised
`by principals of the firm
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`1
`4
`
`Page
`TABLE OF AUTHORITIES .................................
`ii
`INTEREST OF AMICUS CURIAE ......................
`1
`INTRODUCTION AND SUMMARY OF
`ARGUMENT ......................................................
`ARGUMENT .........................................................
`I. CONGRESS HAS BROAD ENFORCE-
`MENT AUTHORITY UNDER SECTION 5
`OF THE FOURTEENTH AMENDMENT....
`II. THE CRCA IS VALID LEGISLATION
`UNDER SECTION 5 OF THE
`FOURTEENTH AMENDMENT AT
`LEAST INSOFAR AS IT CREATES A
`PRIVATE RIGHT OF ACTION FOR
`DAMAGES AGAINST STATES FOR
`ACTUAL CONSTITUTIONAL
`VIOLATIONS, LIKE THOSE ALLEGED
`IN THIS CASE .............................................
`III. THE CRCA IS CONSTITUTIONAL
`UNDER SECTION 5 OF THE
`FOURTEENTH AMENDMENT BECAUSE
`IT REMEDIES AND PREVENTS
`CONSTITUTIONAL VIOLATIONS BY
`THE STATES ...............................................
`IV. CONGRESS DID NOT NEED TO
`IDENTIFY THE SOURCE OF ITS
`CONSTITUTIONAL AUTHORITY TO
`EFFECTIVELY ABROGATE STATE
`23
`SOVEREIGN IMMUNITY ...........................
`CONCLUSION ..................................................... 29
`
`4
`
`10
`
`15
`
`
`
`(i)
`
`
`
`ii
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Atascadero State Hosp. v. Scanlon,
`473 U.S. 234 (1985) ...................................
`
`24
`
`Bd. of Trs. of Univ. of Ala. v. Garrett,
`531 U.S. 356 (2001) ................................... 16, 25
`
`Blatchford v. Native Vill. of Noatak &
`Circle Vill.,
`501 U.S. 775 (1991) ...................................
`
`24
`
`City of Boerne v. Flores,
`521 U.S. 507 (1997) ................................ passim
`
`Coleman v. Ct. of Appeals of Md.,
`566 U.S. 30 (2012) .............................. 18, 19, 24
`
`Dellmuth v. Muth,
`491 U.S. 223 (1989) ...................................
`
`Dred Scott v. Sanford,
`60 U.S. (19 How.) 393 (1857) ....................
`
`EEOC v. Wyoming,
`460 U.S. 226 (1983) ...................................
`
`24
`
`6
`
`25
`
`Ex parte Virginia,
`100 U.S. 339 (1879) ................................... 6, 10
`
`Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
`Inc.,
`499 U.S. 340 (1991) ...................................
`
`Fitzpatrick v. Bitzer,
`427 U.S. 445 (1976) ...................................
`
`21
`
`11
`
`
`
`
`
`iii
`TABLE OF AUTHORITIES – cont’d
`Page(s)
`
`Fla. Prepaid Postsecondary Ed. Expense
`Bd. v. Coll. Sav. Bank,
`527 U.S. 627 (1999) ................................ passim
`
`Fox Film Corp. v. Doyal,
`286 U.S. 123 (1932) ...................................
`
`Hepburn v. Griswold,
`75 U.S. (8 Wall.) 603 (1869) ......................
`
`13
`
`4
`
`Kimel v. Fla. Bd. of Regents,
`528 U.S. 62 (2000) .................................. passim
`
`Knick v. Twp. of Scott,
`139 S. Ct. 2162 (2019) ...............................
`
`14
`
`McCulloch v. Maryland,
`17 U.S. (4 Wheat.) 316 (1819) ................... 4, 5, 6
`
`Nat’l Fed’n of Indep. Bus. v. Sebelius,
`567 U.S. 519 (2012) ................................... 27, 28
`
`Nev. Dep’t of Human Res. v. Hibbs,
`538 U.S. 721 (2003) ................................ passim
`
`Palazzolo v. Rhode Island,
`533 U.S. 606 (2001) ............................... 2, 13, 14
`
`Pruneyard Shopping Ctr. v. Robins,
`447 U.S. 74 (1980) .....................................
`
`Seminole Tribe of Fla. v. Florida,
`517 U.S. 44 (1996) .....................................
`
`Strauder v. West Virginia,
`100 U.S. 303 (1879) ...................................
`
`14
`
`24
`
`10
`
`
`
`iv
`TABLE OF AUTHORITIES – cont’d
`Page(s)
`
`Tennessee v. Lane,
`541 U.S. 509 (2004) ................................ passim
`
`United States v. Gen. Motors Corp.,
`323 U.S. 373 (1945) ...................................
`
`14
`
`United States v. Georgia,
`546 U.S. 151 (2006) ............................... passim
`
`United States v. Raines,
`362 U.S. 17 (1960) .....................................
`
`United States v. Salerno,
`481 U.S. 739 (1987) ...................................
`
`Wash. State Grange v. Wash. State
`Republican Party,
`552 U.S. 442 (2008) ...................................
`
`Woods v. Cloyd W. Miller Co.,
`333 U.S. 138 (1948) ...................................
`
`15
`
`11
`
`15
`
`27
`
`
`
`Constitutional Provisions and Legislative Materials
`
`2 Cong. Rec. (1874) .................................... 9, 10
`
`4 The Confederate Records of the State of
`Georgia (Allen D. Candler ed., 1910) .......
`
`17 U.S.C. § 101 et seq. ...............................
`
`17 U.S.C. § 504 ..........................................
`
`17 U.S.C. § 507(b) ......................................
`
`17 U.S.C. § 510 ..........................................
`
`9
`
`1
`
`22
`
`22
`
`22
`
`
`
`v
`TABLE OF AUTHORITIES – cont’d
`Page(s)
`17 U.S.C. § 511(a) ......................................
`1
`
`17 U.S.C. § 511(b) ......................................
`
`29 U.S.C. § 626(b) ......................................
`
`29 U.S.C. § 2601(b)(4) ...............................
`
`29 U.S.C. § 2601(b)(5) ...............................
`
`42 U.S.C. § 12101(b)(4) .............................
`
`42 U.S.C. § 12202 ......................................
`
`Cong. Globe, 39th Cong., 1st Sess.
`(1865) ......................................................
`
`22
`
`25
`
`26
`
`26
`
`26
`
`25
`
`8
`
`Cong. Globe, 39th Cong., 1st Sess.
`(1866) ...................................................... 6, 7, 8
`
`Cong. Globe, 41st Cong., 2d Sess. (1870) .
`
`9
`
`Cong. Globe, 42d Cong., 2d Sess. (1872) ..
`
`6, 9
`
`Copyright Remedy Clarification Act, Pub. L.
`No. 101-553, 104 Stat. 2749 (1990) .......
`
`1
`
`The Copyright Remedy Clarification Act:
`Hearing on S. 497 Before the Subcomm. on
`Patents, Copyrights & Trademarks of the
`S. Comm. on the Judiciary, 101st Cong.,
`1st Sess. (1989) .......................................
`
`19
`
`(Conf.
`(1989)
`H.R. Rep. No. 101-887
`Rep.) .......................................................
`27
`
`
`
`
`
`
`
`vi
`TABLE OF AUTHORITIES – cont’d
`Page(s)
`
`Charles J. Jenkins, Annual Message to
`the Georgia General Assembly (Nov. 1,
`1866) ..........................................................
`
`Journal of the Senate of the State of Texas,
`11th Legis. (Oct. 22, 1866) .....................
`
`8
`
`8
`
`N.C. Gen. Stat. § 121-25(b) (2016) ............ 2, 13
`
`U.S. Const. amend. V ................................
`
`U.S. Const. amend. XIV, § 1 .....................
`
`14
`
`13
`
`U.S. Const. amend. XIV, § 5 .....................
`
`2, 4
`
`
`
`Books, Articles, and Other Authorities
`
`Akhil Reed Amar, Intratextualism, 112
`Harv. L. Rev. 747 (1999) ...........................
`
`Jack M. Balkin, The Reconstruction Power,
`85 N.Y.U. L. Rev. 1801 (2010) ..................
`
`Steven A. Engel, The McCulloch Theory of
`the Fourteenth Amendment: City of
`Boerne v. Flores and the Original
`Understanding of Section 5, 109 Yale L.J.
`115 (1999) ..................................................
`
`Douglas Laycock, Conceptual Gulfs in City
`of Boerne v. Flores, 39 Wm. & Mary L.
`Rev. 743 (1998) ..........................................
`
`5
`
`5
`
`5
`
`6
`
`
`
`
`
`
`
`vii
`TABLE OF AUTHORITIES – cont’d
`Page(s)
`Library of Congress, Copyright Liability of
`States and the Eleventh Amendment: A
`Report of the Register of Copyrights
`(1988) ............................................. 16, 17, 18, 19
`
`Michael W. McConnell, Institutions and
`Interpretation: A Critique of City of
`Boerne v. Flores, 111 Harv. L. Rev. 153
`(1997) ......................................................... 5, 6
`
`
`
`
`
`1
`INTEREST OF AMICUS CURIAE1
`Amicus Constitutional Accountability Center
`(CAC) is a think tank, public interest law firm, and ac-
`tion center dedicated to fulfilling the progressive
`promise of our Constitution’s text, history, and values.
`CAC works in our courts, through our government,
`and with legal scholars to improve understanding of
`the Constitution and to preserve the rights and free-
`doms it guarantees. CAC therefore has a strong inter-
`est in this Court’s interpretation of Congress’s enforce-
`ment powers under the Fourteenth Amendment, in-
`cluding Congress’s power to abrogate state sovereign
`immunity.
`
`INTRODUCTION AND
`SUMMARY OF ARGUMENT
`When Congress passed the Copyright Remedy
`Clarification Act of 1990 (CRCA or the Act), Pub. L.
`No. 101-553, 104 Stat. 2749 (codified at 17 U.S.C.
`§ 511(a)), it expressly abrogated state sovereign im-
`munity from private suit under the Copyright Act, 17
`U.S.C. § 101 et seq. Petitioners in this case have sued
`North Carolina under the Copyright Act, as amended
`by the CRCA, alleging that the State infringed their
`copyrighted works documenting a historic shipwreck.
`Pet. App. 42a-45a. According to Petitioners, North
`Carolina posted their works online without compen-
`sating them, even though the State had entered into a
`
`
`1 The parties have consented to the filing of this brief, and
`their letters of consent have been filed with the Clerk. Under
`Rule 37.6 of the Rules of this Court, amicus states that no counsel
`for a party authored this brief in whole or in part, and no counsel
`or party made a monetary contribution intended to fund the
`preparation or submission of this brief. No person other than
`amicus or its counsel made a monetary contribution to its prepa-
`ration or submission.
`
`
`
`
`
`2
`settlement agreement with them in which it agreed,
`after previous infringements, not to infringe those
`copyrights. Id. at 43a-44a. Petitioners also allege that
`North Carolina subsequently passed a law purporting
`to give it free rein to use Petitioners’ copyrighted
`works, N.C. Gen. Stat. § 121-25(b) (2016). Pet. App.
`44a-45a. The question in this case is whether Con-
`gress’s decision to abrogate state sovereign immunity
`in the CRCA—thus allowing Petitioners to sue North
`Carolina in federal court for money damages for inten-
`tional copyright infringement—is constitutional. This
`Court should hold that it is.
`As the text and history of the Fourteenth Amend-
`ment make clear, Section 5 of that Amendment grants
`Congress broad enforcement authority. Congress’s ab-
`rogation of state sovereign immunity in the CRCA falls
`well within its power under Section 5 “to enforce” the
`Fourteenth Amendment’s substantive guarantees
`through “appropriate legislation.” U.S. Const. amend.
`XIV, § 5.
`First, the CRCA validly abrogates state sovereign
`immunity insofar as it prohibits conduct that actually
`violates the Fourteenth Amendment, like the conduct
`alleged in this case. In United States v. Georgia, 546
`U.S. 151 (2006), this Court unanimously held that a
`statute is constitutional under Section 5 at least inso-
`far as it “creates a private cause of action for damages
`against the States for conduct that actually violates
`the Fourteenth Amendment.” Id. at 159. Here, Peti-
`tioners have alleged conduct by North Carolina that
`actually violates not only the Copyright Act, but also
`the Due Process Clause of the Fourteenth Amendment
`and the Takings Clause of the Fifth Amendment,
`which the Fourteenth Amendment
`incorporates,
`Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001).
`Accordingly, this Court should uphold the CRCA at
`
`
`
`3
`least as applied to this case, which involves conduct
`that actually violates the Constitution.
`Second, and more broadly, the CRCA is constitu-
`tional across the board, and its validity is particularly
`clear in the class of cases involving States’ intentional
`copyright infringement. This Court has repeatedly
`recognized that Congress’s power under Section 5 of
`the Fourteenth Amendment includes both the author-
`ity to pass laws to enforce the Amendment’s substan-
`tive guarantees and the authority to enact legislation
`“to remedy and to deter violation of rights guaranteed
`[by the Amendment] by prohibiting a somewhat
`broader swath of conduct, including that which is not
`itself forbidden by the Amendment’s text.” Kimel v.
`Fla. Bd. of Regents, 528 U.S. 62, 81 (2000). The CRCA
`satisfies the three-part test this Court established in
`City of Boerne v. Flores, 521 U.S. 507 (1997), to deter-
`mine whether enforcement legislation falls within that
`broad congressional authority. That is, the CRCA is a
`congruent and proportional response to a history of un-
`constitutional conduct by States that Congress sought
`to remedy and deter.
`Finally, this Court should reject the suggestion
`that the CRCA is not valid legislation under Section 5
`simply because Congress, in unequivocally stating its
`intent to abrogate state sovereign immunity under the
`CRCA, did not also specify the basis for its abrogating
`authority. This Court has never held that Congress
`must affirmatively identify the source of its authority
`to validly abrogate immunity, and such a requirement
`would be contrary to this Court’s longstanding practice
`and constitutional principles.
`
`
`
`
`
`4
`ARGUMENT
`I. CONGRESS HAS BROAD ENFORCEMENT
`AUTHORITY UNDER SECTION 5 OF THE
`FOURTEENTH AMENDMENT.
`The text and history of Section 5 make clear that,
`by design, Congress has substantial power to enact
`legislation enforcing the Fourteenth Amendment.
`A. The plain language of the Fourteenth Amend-
`ment gives Congress significant discretion to choose
`the means by which it enforces constitutional rights.
`The Framers of the Amendment deliberately chose
`language calculated to give Congress wide latitude in
`selecting the legislative measures it deemed necessary
`to uphold the Fourteenth Amendment’s guarantees.
`This plain language vests Congress with the “power to
`enforce” the substantive protections “by appropriate
`legislation.” U.S. Const. amend. XIV, § 5.
`The use of the phrase “by appropriate legislation”
`was no accident. By echoing Chief Justice Marshall’s
`classic statement in McCulloch v. Maryland, 17 U.S.
`(4 Wheat.) 316 (1819), that established the fundamen-
`tal principle for determining the scope of Congress’s
`powers under the Necessary and Proper Clause, id. at
`421 (“Let the end be legitimate, let it be within the
`scope of the constitution, and all means which are ap-
`propriate, which are plainly adapted to that end, which
`are not prohibited, but consist[ent] with the letter and
`spirit of the constitution, are constitutional.” (empha-
`sis added)), Section 5 gave effect to the wishes of the
`Amendment’s supporters who wanted Congress to
`have a powerful role in protecting against unconstitu-
`tional action by the States. See Hepburn v. Griswold,
`75 U.S. (8 Wall.) 603, 615 (1869) (“[I]t must be taken
`then as finally settled . . . that the words” of the Nec-
`essary and Proper Clause are “equivalent” to the word
`
`
`
`5
`“appropriate.”); Jack M. Balkin, The Reconstruction
`Power, 85 N.Y.U. L. Rev. 1801, 1810-15 (2010); Akhil
`Reed Amar, Intratextualism, 112 Harv. L. Rev. 747,
`822-27 (1999); Steven A. Engel, The McCulloch Theory
`of the Fourteenth Amendment: City of Boerne v. Flores
`and the Original Understanding of Section 5, 109 Yale
`L.J. 115, 131-34
`(1999); see also Michael W.
`McConnell, Institutions and Interpretation: A Critique
`of City of Boerne v. Flores, 111 Harv. L. Rev. 153, 178
`n.153 (1997) (“In McCulloch v. Maryland, the terms
`‘appropriate’ and ‘necessary and proper’ were used in-
`terchangeably.” (citation omitted)). Indeed, in McCul-
`loch, Chief Justice Marshall had used the word “appro-
`priate” to describe the scope of congressional power no
`fewer than nine times. E.g., 17 U.S. at 354, 356, 357,
`408, 410, 415, 421, 422, 423.
`Because Section 5 embraced the Supreme Court’s
`classic elucidation of congressional power under Arti-
`cle I—well known at the time of the Amendment’s rat-
`ification—it was understood that Congress would have
`wide discretion
`to choose whatever
`legislative
`measures it deemed “appropriate” for achieving the
`Amendment’s purposes. See id. at 421 (indicating that
`“the sound construction of the constitution must allow
`to the national legislature that discretion, which re-
`spect to the means by which the powers it confers are
`to be carried into execution”). Thus, by giving Con-
`gress the power to enforce the Fourteenth Amend-
`ment’s commands by “appropriate legislation,” the
`Framers “actually embedded in the text” of Section 5
`the language of McCulloch. Balkin, supra, at 1815.
`With Southern States acting to strip African Amer-
`icans of their fundamental rights, the Framers of the
`Amendment chose this broad, sweeping language to
`grant Congress a leading role in enforcing the Consti-
`tution’s new guarantees of liberty and equality. “[T]he
`
`
`
`6
`remedy for the violation” of the Fourteenth Amend-
`ment “was expressly not left to the courts. The remedy
`was legislative, because . . . the amendment itself pro-
`vided that it shall be enforced by legislation on the part
`of Congress.” Cong. Globe, 42d Cong., 2d Sess. 525
`(1872) (Sen. Morton); see Ex parte Virginia, 100 U.S.
`339, 345 (1879) (explaining that the Reconstruction
`Amendments “were intended to be” and “really are[]
`limitations of the power of the States and enlarge-
`ments of the power of Congres[s]”). Indeed, in the af-
`termath of Dred Scott v. Sanford, 60 U.S. (19 How.)
`393 (1857), the Framers were reluctant to leave the ju-
`diciary with the sole responsibility for protecting con-
`stitutional rights. See McConnell, supra, at 182 (ex-
`plaining that the Enforcement Clause was “born of the
`fear that the judiciary would frustrate Reconstruction
`by a narrow interpretation of congressional power”);
`Douglas Laycock, Conceptual Gulfs in City of Boerne
`v. Flores, 39 Wm. & Mary L. Rev. 743, 765 (1998) (ob-
`serving that the Framers “did not entrust the fruits of
`the Civil War to the unchecked discretion of the Court
`that decided Dred Scott”).
`The Framers thus expected that Congress would be
`the primary arbiter of the necessity of any measure
`that was directed at a legitimate end, Cong. Globe,
`39th Cong., 1st Sess. 1118 (1866) (Rep. Wilson), and
`that the courts would review acts of Congress pursu-
`ant to Section 5 with the deferential posture taken by
`Chief Justice Marshall in McCulloch, 17 U.S. at 423
`(refusing “to pass the line which circumscribes the ju-
`dicial department, and to tread on legislative ground”).
`Under this standard of review, a court would strike
`down an act of Congress only when Congress “adopt[s]
`measures which are prohibited by the constitution.”
`Id.
`
`
`
`7
`B. The debates over the Fourteenth Amendment
`confirm that the Framers sought to confer broad dis-
`cretion on Congress to enforce the Amendment.
`From early on, the leading proponents of the Four-
`teenth Amendment—Senator Jacob Howard and Rep-
`resentative John Bingham—made clear that the
`Amendment would shift the balance of power between
`the States and the federal government by giving Con-
`gress wide latitude to enact “appropriate” measures.
`Introducing the Amendment to the Senate in May
`1866, Senator Howard emphasized that the antebel-
`lum Constitution had not granted Congress adequate
`authority to protect constitutional rights against state
`infringement. See Cong. Globe, 39th Cong., 1st Sess.
`2764-66 (1866). According to Senator Howard, the En-
`forcement Clause in Section 5 would remedy this defi-
`ciency by providing a “direct affirmative delegation of
`power to Congress to carry out all the principles of all
`these guarantees, a power not found in the Constitu-
`tion.” Id. at 2766.
`Senator Howard rejected any narrow reading of
`Congress’s enforcement power. Section 5, he declared,
`conferred authority to pass any “laws which are appro-
`priate to the attainment of the great object of the
`amendment.” Id. Further, Section 5 cast “upon Con-
`gress the responsibility of seeing to it, for the future,
`that . . . no State infringes the rights of persons or
`property.” Id. at 2768.
`Members of the House of Representatives echoed
`these sentiments, confirming the breadth of congres-
`sional enforcement power. Representative Bingham
`emphasized that Section 5 would bring a fundamental
`and essential change in the balance of power between
`the federal and state governments. Id. at 2542 (noting
`that Section 5 would correct the constitutional defect
`that had led to “many instances of State injustice and
`
`
`
`8
`oppression”). Other supporters concurred, praising
`the proposal to give Congress broad enforcement
`power and the protection this power would provide cit-
`izens from state encroachments. See id. at 2498 (Rep.
`Broomall) (“We propose . . . to give power to the Gov-
`ernment of the United States to protect its own citi-
`zens within the States, within its own jurisdiction.
`Who will deny the necessity of this? No one.”); id. at
`2510 (Rep. Miller) (“And as to the States it is necessary
`. . . .”). These supporters understood, moreover, that
`the Amendment would grant Congress the authority
`to decide what is “appropriate” for an enforcement
`mechanism. See id. at 43 (1865) (Sen. Trumbull)
`(“What that ‘appropriate legislation’ is, is for Congress
`to determine, and nobody else.”); id. at 1124 (1866)
`(Rep. Cook) (“Congress should be the judge of what is
`necessary . . . .”).
`The Fourteenth Amendment’s opponents did not
`disagree with this understanding. To the contrary, in
`State after State throughout the South, opponents of
`the Amendment feared that the authority to pass “ap-
`propriate legislation” would give Congress excessive
`power to define the obligations of States with respect
`to their citizens. As one Texas state senator put it,
`“What is ‘appropriate legislation?’ The Constitution is
`silent; therefore, it is left for the Congress to deter-
`mine.” Journal of the Senate of the State of Texas, 11th
`Legis., at 422 (Oct. 22, 1866). In a similar vein, Gov-
`ernor Jenkins of Georgia lamented that Congress
`would have too much power over the States and that it
`would “be contended that [members of Congress] are
`the proper judges of what constitutes appropriate leg-
`islation. If therefore, the amendment be adopted, and
`. . . Congress . . . be empowered ‘to enforce it by appro-
`priate legislation,’ what vestige of hope remains to the
`people of those States?” Charles J. Jenkins, Annual
`
`
`
`9
`Message to the Georgia General Assembly (Nov. 1,
`1866), in 4 The Confederate Records of the State of
`Georgia 547 (Allen D. Candler ed., 1910). While sup-
`porters and opponents parted ways on the merit of the
`Amendment, both sides agreed that it would provide
`Congress broad enforcement authority.
`C. Post-ratification interpretations of Section 5
`confirm that the provision was understood to give Con-
`gress wide
`latitude
`in selecting the
`legislative
`measures it deemed appropriate.
`First, shortly after the Fourteenth Amendment’s
`ratification, Congress understood the power conferred
`by Section 5 to be broad. Senator Sumner, for in-
`stance, reasoned that “the Supreme Court will not un-
`dertake to sit in judgment on the means employed by
`Congress in carrying out a power which exists in the
`Constitution.” Cong. Globe, 42d Cong., 2d Sess. 728
`(1872). Likewise, Representative Lawrence stated
`that Congress is the “exclusive judge of the proper
`means to employ” its power under Section 5. 2 Cong.
`Rec. 414 (1874). Congress’s authority in this respect,
`Representative Lawrence insisted, was “settled in
`McCulloch vs. Maryland.” Id. In fact, it was widely
`accepted that Congress has broad discretion in decid-
`ing what is “appropriate” enforcement legislation. See,
`e.g., Cong. Globe, 41st Cong., 2d Sess. 3882 (1870)
`(Rep. Davis) (“No broader language could be adopted
`than this with which to clothe Congress with power
`. . . . Congress, then, is clothed with so much power as
`is necessary and proper to enforce the [Fourteenth
`Amendment], and is to judge from the exigencies of the
`case what is necessary and what is proper.”); id. at
`App. 548 (Rep. Prosser) (“The amendments to the Con-
`stitution were not adopted for theoretical, but for prac-
`tical purposes.”). Even opponents of enforcement leg-
`islation recognized the wide discretion Congress
`
`
`
`10
`possesses. See 2 Cong. Rec. 4084-85 (1874) (Sen. Thur-
`man) (“[W]hence come these words ‘appropriate legis-
`lation?’ They come from the language of Marshall in
`deciding the case McCulloch vs. The State of Mary-
`land.”).
`Second, this Court, in its foundational construction
`of Section 5 in Ex parte Virginia, 100 U.S. 339, con-
`curred with this expansive view of Congress’s powers.
`Employing language that tracked McCulloch, this
`Court stated, “Whatever legislation is appropriate,
`that is, adapted to carry out the objects the amend-
`ments have in view, whatever tends to enforce submis-
`sion to the prohibitions they contain . . . if not prohib-
`ited, is brought within the domain of congressional
`power.” Id. at 345-46; see Strauder v. West Virginia,
`100 U.S. 303, 311 (1879) (“The form and manner of the
`protection may be such as Congress in the legitimate
`exercise of its legislative discretion shall provide.”).
`In short, Congress has broad enforcement author-
`ity under Section 5 of the Fourteenth Amendment. As
`explained below, the CRCA is a valid exercise of that
`authority.
`II. THE CRCA IS VALID LEGISLATION UNDER
`SECTION
`5 OF THE FOURTEENTH
`AMENDMENT AT LEAST INSOFAR AS IT
`CREATES A PRIVATE RIGHT OF ACTION
`FOR DAMAGES AGAINST STATES FOR
`ACTUAL CONSTITUTIONAL VIOLATIONS,
`LIKE THOSE ALLEGED IN THIS CASE.
`This Court should uphold the CRCA as valid Sec-
`tion 5 legislation. The Court has repeatedly recog-
`nized that Congress’s power under Section 5 includes
`both the authority to pass laws to enforce directly the
`Fourteenth Amendment’s substantive guarantees,
`e.g., Georgia, 546 U.S. at 158, and the authority “to
`
`
`
`11
`remedy and to deter violation of rights guaranteed [by
`the Amendment] by prohibiting a somewhat broader
`swath of conduct, including that which is not itself for-
`bidden by the Amendment’s text,” Kimel, 528 U.S. at
`81. While the CRCA is valid even if its coverage ex-
`tends beyond actual enforcement of the Fourteenth
`Amendment’s substantive guarantees in some in-
`stances, see infra at 15-23, this Court need not reach
`that issue in this case. Rather, the Court can resolve
`this case by holding that the CRCA is valid Section 5
`legislation insofar as it creates a private right of action
`for damages against States for conduct that itself vio-
`lates the Fourteenth Amendment because Petitioners
`here have plausibly alleged such conduct. Accordingly,
`this Court should reject Respondents’ broad facial
`challenge to the CRCA and hold that the Act is consti-
`tutional, at least as applied to this case. See United
`States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial
`challenge to a legislative Act is, of course, the most dif-
`ficult challenge to mount successfully, since the chal-
`lenger must establish that no set of circumstances ex-
`ists under which the Act would be valid.”).
`In United States v. Georgia, 546 U.S. 151, this
`Court unanimously held that a statute validly abro-
`gates state sovereign immunity under Section 5 at
`least insofar as it “creates a private cause of action for
`damages against States for conduct that actually vio-
`lates the Fourteenth Amendment.” Id. at 159. The
`Court explained that “no one doubts that § 5 grants
`Congress the power to ‘enforce . . . the provisions’ of
`the Amendment by creating private remedies against
`the States for actual violations of those provisions.” Id.
`at 158 (citations omitted); see City of Boerne, 521 U.S.
`at 522 (“Congress was granted the power to make the
`substantive constitutional prohibitions against the
`States effective.”); Fitzpatrick v. Bitzer, 427 U.S. 445,
`
`
`
`12
`456 (1976) (recognizing that under Section 5, “Con-
`gress is expressly granted authority to enforce . . . the
`substantive provisions of the Fourteenth Amendment”
`by abrogating state sovereign immunity from private
`suits for damages).
`Applying this rule in Georgia, this Court held that
`Title II of the Americans with Disabilities Act (ADA)
`is valid Section 5 legislation at least insofar as it al-
`lows for money damages against States for actual con-
`stitutional violations. 546 U.S. at 159. The petitioner
`in that case had alleged conduct that not only “quite
`plausibl[y]” violated Title II but also “independently
`violated the provisions of § 1 of the Fourteenth Amend-
`ment” because the alleged conduct violated the Eighth
`Amendment’s guarantee against cruel and unusual
`punishment, which the Due Process Clause of the
`Fourteenth Amendment incorporates. Id. at 157.
`Thus, this Court held that the court of appeals had
`erred in concluding that the petitioner’s Title II claims
`“that were based on such unconstitutional conduct”
`were barred by state sovereign immunity. Id. at 159.
`Much like the petitioner in Georgia, Petitioners in
`this case have plausibly alleged state conduct that ac-
`tually violates both a statutory right and the substan-
`tive guarantees of the Fourteenth Amendment. In
`particular, Petitioners allege that they secured copy-
`rights for their works documenting a shipwreck and
`that North Carolina intentionally infringed those
`copyrights even after entering into a settlement agree-
`ment acknowledging Petitioners’ property interests in
`those works. Pet. App. 43a-44a. Petitioners also al-
`lege that the State went so far as to enact a law that
`purports to make those works available for public use.
`Id. at 44a-45a.
`This conduct, which formed the basis for Petition-
`ers’ claims under the Copyright Act, as amended by
`
`
`
`13
`the CRCA, also provided the foundation for Petition-
`ers’ claims that North Carolina violated the Due Pro-
`cess Clause of the Fourteenth Amendment and the
`Takings Clause of the Fifth Amendment, which the
`Fourteenth Amendment’s Due Process Clause incorpo-
`rates, Palazzolo, 533 U.S. at 617. See Pet. App. 45a.
`Indeed, upon rejecting the State’s bid for immunity,
`the district court in this case concluded that Petition-
`ers “sufficiently pled specific facts that allow the infer-
`ence that each defendant . . . infringed [Petitioners’]
`registered copyright works after the 2013 settlement
`agreement,” id. at 75a, and that the property rights
`the State violated are both “rooted in the United States
`Constitution and protected by the federal Copyright
`Act,” id. at 74a.
`The Due Process Clause provides that no State
`“shall . . . deprive any person of life, liberty, or prop-
`erty, without due process of law.” U.S. Const. amend.
`XIV, § 1; see Fox Film Corp. v. Doyal, 286 U.S. 123, 128
`(1932) (recognizing that “a copyright is property”).
`Even if Respondents in this case are correct that “a
`state must infringe a copyright intentionally” to violate
`the Due Process Clause, Br. in Opp’n 18 (citing Fla.
`Prepaid Postsecondary Ed. Expense Bd. v. Coll. Sav.
`Bank, 527 U.S. 627, 645 (1999)), Petitioners have al-
`leged ample facts to state a claim that North Carolina
`intentionally infringed their copyrights without due
`process by uploading Petitioners’ copyrighted works
`online in contravention of a settlement agreement and
`by subsequently enacting a state law rendering their
`copyrighted works “public record,” see Pet. App. 43a-
`45a (quoting N.C. Gen. Stat. § 121-25(b)). These de-
`tailed allegations plainly demonstrate that North Car-
`olina knew of Petitioners’ copyrights and took actions
`to permanently deprive Petitioners of these intellec-
`tual property rights without due process. See id.
`
`
`
`14
`Likewise, this same alleged conduct, if proven,
`would violate the Fifth Amendment’s Takings
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