Allen v. Cooper

140 S.Ct. 994

206 L.Ed.2d 291

Frederick L. ALLEN, et al., Petitioners

v.Roy A. COOPER, III, Governor of North Carolina, et al.

No. 18-877

Supreme Court of the United States.

Argued November 5, 2019

Decided March 23, 2020

Susan Freya Olive, David L. McKenzie, Olive & Olive, P.A., G. Jona Poe, Jr., Poe Law Firm, PLLC, Durham, NC, Derek L. Shaffer, Kathleen Lanigan, Quinn Emanuel Urquhart & Sullivan, LLP, Washington, DC, Todd Anten, Ellyde R. Thompson, Lisa M. Geary, Joanna E. Menillo, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Petitioners.

Joshua H. Stein, Attorney General of North Carolina, Matthew W. Sawchak, Solicitor General, Ryan Y. Park, Deputy Solicitor General, Nicholas S. Brod, Assistant Solicitor General, North Carolina Department of Justice, Raleigh, NC, for Respondents.

Justice KAGAN delivered the opinion of the Court.

In two basically identical statutes passed in the early 1990s, Congress sought to strip the States of their sovereign immunity from patent and copyright infringement suits. Not long after, this Court held in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank , 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999), that the patent statute lacked a valid constitutional basis. Today, we take up the copyright statute. We find that our decision in Florida Prepaid compels the same conclusion.

I

In 1717, the pirate Edward Teach, better known as Blackbeard, captured a French slave ship in the West Indies and renamed her Queen Anne's Revenge . The vessel became his flagship. Carrying some 40 cannons and 300 men, the Revenge took many prizes as she sailed around the Caribbean and up the North American coast. But her reign over those seas was short-lived. In 1718, the ship ran aground on a sandbar a mile off Beaufort, North Carolina. Blackbeard and most of his crew escaped without harm. Not so the Revenge . She sank beneath the waters, where she lay undisturbed for nearly 300 years.

In 1996, a marine salvage company named Intersal, Inc., discovered the shipwreck. Under federal and state law, the wreck belongs to North Carolina. See 102 Stat. 433, 43 U.S.C. § 2105(c) ; N.C. Gen. Stat. Ann. § 121–22 (2019). But the State contracted with Intersal to take charge of the recovery activities. Intersal in turn retained petitioner Frederick Allen, a local videographer, to document the operation. For over a decade, Allen created videos and photos of divers' efforts to salvage the Revenge 's guns, anchors, and other remains. He registered copyrights in all those works.

This suit arises from North Carolina's publication of some of Allen's videos and photos. Allen first protested in 2013 that the State was infringing his copyrights by uploading his work to its website without permission. To address that allegation, North Carolina agreed to a settlement paying Allen $15,000 and laying out the parties' respective rights to the materials. But Allen and the State soon found themselves embroiled in another dispute. Allen complained that North Carolina had impermissibly posted five of his videos online and used one of his photos in a newsletter. When the State declined to admit wrongdoing, Allen filed this action in Federal District Court. It charges the State with copyright infringement (call it a modern form of piracy) and seeks money damages.

North Carolina moved to dismiss the suit on the ground of sovereign immunity. It invoked the general rule that federal courts cannot hear suits brought by individuals against nonconsenting States. See State Defendants' Memorandum in No. 15–627 (EDNC), Doc. 50, p. 7. But Allen responded that an exception to the rule applied because Congress had abrogated the States' sovereign immunity from suits like his. See Plaintiffs' Response, Doc. 57, p. 7. The Copyright Remedy Clarification Act of 1990 (CRCA or Act) provides that a State "shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court" for copyright infringement. 17 U.S.C. § 511(a). And the Act specifies that in such a suit a State will be liable, and subject to remedies, "in the same manner and to the same extent as" a private party. § 501(a); see § 511(b).¹ That meant, Allen contended, that his suit against North Carolina could go forward.

The District Court agreed. Quoting the CRCA's text, the court first found that "Congress has stated clearly its intent to abrogate sovereign immunity for copyright claims against a state." 244 F.Supp.3d 525, 533 (E.D.N.C. 2017). And that abrogation, the court next held, had a proper constitutional basis. Florida Prepaid and other precedent, the District Court acknowledged, precluded Congress from using its Article I powers—including its authority over copyrights—to take away a State's sovereign immunity. See 244 F.Supp.3d at 534. But in the court's view, Florida Prepaid left open an alternative route to abrogation. Given the States' "pattern" of "abus[ive]" copyright infringement, the court held, Congress could accomplish its object under Section 5 of the Fourteenth Amendment. 244 F.Supp.3d at 535.

On interlocutory appeal, the Court of Appeals for the Fourth Circuit reversed. It read Florida Prepaid to prevent recourse to Section 5 no less than to Article I. A Section 5 abrogation, the Fourth Circuit explained, must be "congruent and proportional" to the Fourteenth Amendment injury it seeks to remedy. 895 F.3d 337, 350 (2018). Florida Prepaid had applied that principle to reject Congress's attempt, in the Patent Remedy Act, to abolish the States' immunity from patent infringement suits. See 527 U.S. at 630, 119 S.Ct. 2199. In the Fourth Circuit's view, nothing distinguished the CRCA. That abrogation, the court reasoned, was "equally broad" and rested on a "similar legislative record" of constitutional harm. 895 F.3d at 352. So Section 5 could not save the law.

Because the Court of Appeals held a federal statute invalid, this Court granted certiorari. 587 U.S. ––––, 139 S.Ct. 2664, 204 L.Ed.2d 1068 (2019). We now affirm.

II

In our constitutional scheme, a federal court generally may not hear a suit brought by any person against a nonconsenting State. That bar is nowhere explicitly set out in the Constitution. The text of the Eleventh Amendment (the single most relevant provision) applies only if the plaintiff is not a citizen of the defendant State.² But this Court has long understood that Amendment to "stand not so much for what it says" as for the broader "presupposition of our constitutional structure which it confirms." Blatchford v. Native Village of Noatak , 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991). That premise, the Court has explained, has several parts. First, "each State is a sovereign entity in our federal system." Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Next, "[i]t is inherent in the nature of sovereignty not to be amenable to [a] suit" absent consent. Id., at 54 n. 13, 116 S.Ct. 1114 (quoting The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton)). And last, that fundamental aspect of sovereignty constrains federal "judicial authority." Blatchford , 501 U.S. at 779, 111 S.Ct. 2578.

But not entirely. This Court has permitted a federal court to entertain a suit against a nonconsenting State on two conditions. First, Congress must have enacted "unequivocal statutory language" abrogating the States' immunity from the suit. Seminole Tribe , 517 U.S. at 56, 116 S.Ct. 1114 (internal quotation marks omitted); see Dellmuth v. Muth , 491 U.S. 223, 228, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989) (requiring Congress to "mak[e] its intention unmistakably clear"). And second, some constitutional provision must allow Congress to have thus encroached on the States' sovereignty. Not even the most crystalline abrogation can take effect unless it is "a valid exercise of constitutional authority." Kimel v. Florida Bd. of Regents , 528 U.S. 62, 78, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000).

No one here disputes that Congress used clear enough language to abrogate the States' immunity from copyright infringement suits. As described above, the CRCA provides that States "shall not be immune" from those actions in federal court. § 511(a) ; see supra, at 999 – 1000. And the Act specifies that a State stands in the identical position as a private defendant—exposed to liability and remedies "in the same manner and to the same extent." § 501(a); see § 511(b). So there is no doubt what Congress meant to accomplish. Indeed, this Court held in Florida Prepaid that the essentially verbatim provisions of the Patent Remedy Act "could not have [made] any clearer" Congress's intent to remove the States' immunity. 527 U.S. at 635, 119 S.Ct. 2199.

The contested question is whether Congress had authority to take that step. Allen maintains that it did, under either of two constitutional provisions. He first points to the clause in Article I empowering Congress to provide copyright protection. If that fails, he invokes Section 5 of the Fourteenth Amendment, which authorizes Congress to "enforce" the commands of the Due Process Clause. Neither contention can succeed. The slate on which we write today is anything but clean. Florida Prepaid , along with other precedent, forecloses each of Allen's arguments.

A

Congress has power under Article I "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." § 8, cl. 8. That provision—call it the Intellectual Property Clause—enables Congress to grant both copyrights and patents. And the monopoly rights so given impose a corresponding duty (i.e., not to infringe) on States no less than private parties. See Goldstein v. California , 412 U.S. 546, 560, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973).

In Allen's view, Congress's authority to abrogate sovereign immunity from copyright suits naturally follows....