Religious Freedom, Copyright Royalties, and Court Review of Agency Determinations

The Religious Liberty Appellate Clinic at St. Thomas has filed an amicus brief supporting the petition for certiorari in a case involving copyright royalties and religious freedom--which also turns out to be important concerning meaningful judicial review of agency determinations that affect First Amendment and religious-freedom rights. The Copyright Royalty Board, the federal agency that sets statutory royalties for digital transmissions of copyrighted sound recordings, has charged noncommercial webcasters (mostly religious in nature) an 18-times higher rate than public-radio-affiliated (also noncommercial) webcasters. That severe disparity raises significant issues under the First Amendment and the Religious Freedom Restoration Act (RFRA). But the D.C. Circuit, in reviewing the Board, treated the case as essentially about mere review of an agency under the Administrative Procedure Act (APA) and gave significant administrative-law deference to the agency's key determination on whether the activities of religious webcasters were comparable to those of NPR webcasters and therefore should not face such a grossly disparate rate.

We argue that courts can't abdicate their responsibilities to protect religious freedom and other First Amendment rights in this way. We use foundational cases. issued over several decades, requiring independent appellate review in First Amendment and other constitutional cases: Bose Corp v. Consumers' Union. (1984), New York Times v. Sullivan (1964), and Crowell v. Benson (1932). And we argue, for example in this summary bit, that

The question in this case is recurring and important. Many claims under RFRA arise from decisions by federal agencies; many claims under the Free Exercise Clause arise from decisions by federal or state agencies. If courts apply administrative-law deference to agencies in deciding RFRA and First Amendment questions, the result will be to eviscerate those protections.

The brief is on behalf of the Christian Legal Society (CLS) and the National Association of Evangelicals. Thanks to the students who worked on the brief--Arianna Wiinamaki and Kris Thompson--and to Steve McFarland and Laura Nammo at CLS.