The World and Everything in It — December 2, 2019

MARY REICHARD, HOST: Good morning!

An African American business owner says Comcast discriminated against him on the basis of race. But the question is what does he have to say at the start of a lawsuit for his case to proceed?

BREYER: I know him. He is the most bigoted person in this state, and, as normal, he said all kinds of racist things and jumped up and down and so forth. And, by the way, he’s my fifth cousin, and he hates me…

NICK EICHER, HOST: That’s ahead on Legal Docket. 

Also on the Monday Moneybeat, new records on Wall Street and signs of a big-spending spree over the holidays.

Plus, the WORLD Radio History Book: Today, the first person to cross the Atlantic Ocean in a row boat.

And WORLD Radio commentator Trillia Newbell on the question of Santa Claus.

REICHARD: It’s Monday, December 2nd. This is The World and Everything in It from listener-supported WORLD Radio. I’m Mary Reichard.

EICHER: And I’m Nick Eicher. Good morning!

REICHARD: Up next, Jill Nelson has the news.

JILL NELSON, NEWS ANCHOR: London terror attack » Officials in the UK are defending a prisoner release policy that freed a convicted terrorist who launched a bloody knife attack near the London Bridge.

Usman Khan killed two people and wounded three others before police shot him to death on Friday. He was wearing what turned out to be a fake suicide vest.

Neil Basu is an assistant commissioner with the London Metropolitan Police. He said Khan was following the requirements for his early release.

BASU: There was an extensive list of license conditions for this individual. To the best of my knowledge as I stand here today he was complying with those conditions.

Khan was convicted in 2012 for plotting terror attacks in London as part of a group affiliated with al-Qaeda. He was released from prison in December 2018.

Basu said investigators are trying to determine whether he had help planning Friday’s attack.

BASU: At this time we’ve found no evidence, no evidence to suggest anybody else was involved in this attack. However, we’re still making extensive inquiries to ensure that no one else was involved.

Khan was attending a conference for ex-offenders at Cambridge University when he pulled out a knife and started stabbing people. One of the victims who died was a former student at the university. The other was the coordinator for the ex-offender program known as “Learning Together.”

Islamic State said Khan was one of its fighters and claimed responsibility for the attack. But the statement didn’t provide any evidence of a link to Khan.

Shooting on Canal Street in New Orleans » Meanwhile, police in New Orleans are investigating a shooting that wounded 10 people in the city’s popular French Quarter. Two of the victims are in critical condition.

New Orleans Police Superintendent Shaun Ferguson said the shooting happened shortly after 3 a.m. in a block crowded with people.

FERGUSON: Our officers were out here throughout this entire incident. Within feet, when this incident occurred. Unfortunately, there were so many people out here we were unable to determine who was actually firing the shots at that time.

Police later detained a person of interest. But it was not immediately clear whether the person had any connection to the shooting.

The section of Canal Street where the shooting occurred is near several busy hotels. Visitors packed the Bayou City over the weekend for the annual rivalry football game between Grambling State and Southern University.

Iraqi prime minister resigns » The government of Iraq is in limbo after the country’s parliament approved the resignation of Prime Minister Adel Abdul-Mahdi on Sunday.

Abdul-Mahdi had submitted his resignation two days earlier in the wake of anti-government protests and violence. But the move did little to calm the ongoing unrest. 

This protester told Al Jazeera that Iraq needs a new parliament. 

AUDIO: The problem is not just the prime minister. It’s not the queen. It’s a whole beehive; all of them have to resign.

Protesters want a new election law to govern a new election, but it’s unclear when or how that might happen. One Iraqi lawmaker described the path to finding a new prime minister as a “black hole in the constitution.” 

South Dakota plane crash » Harsh wintry weather is preventing federal investigators from reaching the site of a plane crash in South Dakota that killed nine people over the weekend. Three others on board the single-engine aircraft are listed in critical condition.

The plane took off from Chamberlain, South Dakota, at about noon on Saturday. It was headed for Idaho Falls, Idaho. The area was under a winter storm warning at the time of the crash.

According to local media reports, all of the people on board belonged to the same family. They were returning from a weekend hunting trip.

Winter weather snarls post-holiday travel » A massive winter storm is making the return to work difficult for millions in the northeastern United States today. The system will dump freezing rain, sleet, and snow from Minnesota to Maine. 

Lara Pagano is a meteorologist with the National Weather Service. It has issued a range of warnings and watches across the Midwest and the Northeast.

PAGANO: As this low continues to transition off the Northeast coast, it’s going to be producing snowfall, especially for interior New England. And some of those locations could see 6 to 12 inches, maybe even more for the higher terrain.

Airlines have issued dozens of travel alerts and canceled hundreds of flights. Several airlines have also waived cancellation and change fees.

The Monday after Thanksgiving is typically one of the busiest travel days of the year.

I’m Jill Nelson. Straight ahead: the Supreme Court considers a case involving pirates and copyright infringement. Plus, Trillia Newbell offers some advice to parents about Santa. This is The World and Everything in It.

NICK EICHER: Good morning and thanks for listening to The World and Everything in It! Today is Monday, the 2nd of December, 2019. I’m Nick Eicher.

MARY REICHARD: And I’m Mary Reichard. Good morning to you!

In case you’re wondering about our choice of music here, it’s because it relates to the first of our two cases today. 

Yes, that’s right, we’re talking about piracy.

This one (Allen v Cooper) arises from the infamous English pirate of the 18th century, Edward Teach, better known as Blackbeard. He did his dirty deeds around the Caribbean and eastern coast of what’s now the United States.

Now, you may know more about the Hollywood pirate, bumbling Jack Sparrow, sought out by fugitive Henry Turner to form a protective alliance.

TURNER: No, it can’t be. I’ve spent years searching for…this? The great Jack Sparrow is not some drunk in a cell. Do you even have a ship? A crew? (looks down) Pants?

SPARROW: A great pirate does not require such intricacies.

EICHER: Now, the dispute before the Supreme Court today—three centuries on from Blackbeard’s time—doesn’t involve intricacies like a crew, daggers, or peg legs.

But it does involve a ship and copyright law. 

Here’s how.

Blackbeard’s ship, Queen Anne’s Revenge, wrecked in 1718 off what’s now the shore of North Carolina.

Flash forward a few centuries and a salvage company finds it in 1996. It worked out a deal with North Carolina: the state would own the wreckage, but the salvage company would keep proceeds from a documentary it would make using the services of documentarian Frederick Allen. 

That agreement said North Carolina could publish certain documents related to the salvage for certain limited purposes.

REICHARD: Allen, the documentarian, obtained a copyright on his photographic works. 

The problem arose when North Carolina’s Cultural Affairs Department posted those works online without his permission. 

Allen complained, and the state paid him $15,000 for violating his copyright. That was six years ago, in 2013. The state also agreed that going forward, it would watermark his material and put a timestamp on whatever it did post of his work.

But Allen says the state didn’t keep its end of the deal. Not only that, North Carolina went further. It passed a law named for Blackbeard that says the state can’t be sued for copyright infringement. 

Despite that law, Allen sued for copyright infringement anyway.

ROBERTS: We’ll hear argument next in 18-877, Allen v Cooper. Mr. Shaffer?

Derek Shaffer argued on behalf of Allen. He pointed to a 1990 law called the Copyright Remedy Clarification Act, the CRCA. Congress passed that to prevent states from asserting sovereign immunity as a defense against copyright infringement.

SHAFFER: When states infringe the exclusive federal rights that Congress is charged with securing, Congress can make states pay for doing so. That’s our respectful submission today, one that follows from the Constitution’s text and affords ample basis for this court to uphold the work Congress did in enacting the CRCA. 

But North Carolina argues CRCA isn’t even constitutional and lots of lower courts agree. So the state says Allen’s just out of luck because he can’t overcome its sovereign immunity.

North Carolina’s lawyer, Ryan Park, pleaded that the state posted Allen’s works in good faith. After all, the penalty for copyright infringement is steep- $150,000 per incident. Why would it risk that unless it thought it could?

And besides, limited resources matter. Listen to this exchange between Park and Justice Elena Kagan.

PARK: Our cultural-resources department is operating on a shoestring budget trying to recover and excavate and preserve the remaining aspects of the Queen’s Anne Revenge, around 40 percent of which under their estimates is still on the bottom of the ocean. It’s hard to get money to fund important work like this for the sake of history.

KAGAN: I think though, Mr. Park, that it’s not the strongest reliance argument to say we relied on this court’s holding to infringe other people’s rights.

Lawyer Park continued to feel the heat from Justice Stephen Breyer, who worried about a rule that would encourage willful copyright infringement by states:

BREYER: What the state decides to do with its own website, charging $5 or something, is to run Rocky, Marvel, whatever, Spider-Man, and perhaps Groundhog Day, all right? Now, great idea. Several billion dollars flows into the treasury. Okay? Now, if you win, why won’t that happen? And, by the way, copyright is to promote the progress of science and useful arts by securing for a limited time to authors — …the exclusive right to their respective writings. But, of course, California decides that the person who wrote Rocky, Marvel, et cetera, will unfortunately receive nothing because everyone will have seen it on the state’s own streaming device. All right. What is your response to that?

Park’s response was a court injunction. But not money damages.

Justice Ruth Bader Ginsburg followed up with a possible solution that involved Congress.

GINSBURG: There’s something unseemly about a state saying, yes, we can hold copyrights and we can hold infringers to account to us, but we can infringe to our heart’s content and be immune from any compensatory damages. 

Could Congress say condition the copyright privileges that states has by saying we’re gonna allow you to copyright works but the price is you have to be fair to the other side so that when you’re infringing you’ll be liable. Could, does Congress have Article I authority to do that?

Park responded no, that would be putting an unconstitutional condition on the right a state already has to copyright something. And he underscored whose money we’re talking about.

PARK: I think the important understanding that the Founders had was when you sue a sovereign, on the opposite side of the judgment are the people and the people’s money.

The waters are muddied in this area of the law. 

Still, given the skepticism I heard from both ideological wings of the court, I think North Carolina will be branded as something of a pirate for plundering the photographer’s work.

This final argument today pits telecommunications giant Comcast against the founder of African-American owned ESN, Entertainment Studios Network. 

A businessman named Byron Allen owns ESN. He alleges that Comcast discriminated against him by refusing to distribute his channels. Some of those channels include Comedy.TV, JusticeCentral.TV, and Cars.TV. Allen points to other white-owned channels Comcast launched during that same time period. That, even though Comcast told him it lacked capacity to carry more channels. 

For its part, Comcast says it didn’t think Allen’s content would attract enough customers to make its investment worthwhile. 

But the legal question in this case is rather technical: does Allen need to plead in his lawsuit that race is the main reason Comcast denied him a contract? Or can he just plead mixed-motives and proceed to prove discrimination during the course of the trial? 

Justice Breyer wondered how to craft a rule to parse out the real reasons behind someone’s actions. Listen to his scenario:

BREYER: Smith says this man wouldn’t contract with me. I know him. He is the most bigoted person in this state, and, as normal, he said all kinds of racist things and jumped up and down and so forth. And, by the way, he’s my fifth cousin, and he hates me, and I’ve never met anybody who hated me so much. And I think, for both reasons, he would have never entered into this contract.

Justice Breyer’s point was if it’s eventually shown the fifth cousin hates me is the reason he didn’t want a contract, that’ll prevail despite the other reason. Why continue a lawsuit that will ultimately fail? 

Byron Allen’s lawyer, Erwin Chemerinsky, argued it all depends on what stage of litigation we’re in. The Supreme Court has already said we don’t decide early on what the actual cause might be for denying a contract. That’s for a jury to decide. 

The law here is The Civil Rights Act of 1866, enacted right after the Civil War. It guarantees the right of “all persons the same rights to make and enforce contracts as is enjoyed by white citizens.”

But a Supreme Court decision in 2007 says you can’t just say things are facts to make yourself look good in the complaint. You have to allege something that if accepted as true, would be enough to state a plausible claim for relief right off the bat. 

It didn’t sound as though most of the justices thought Byron Allen had done that. 

Listen to this exchange between Justice Kagan and Chemerinsky, again for Allen. She mentions the “but for” rule. That means the plaintiff needs to show that “but for” race, he’d have gotten that contract.

KAGAN: There can be three but-for causes in a case. You know, if you take away each of these three things, the outcome would have been different. But motivating factor is something different. Motivating factor you can take out and the outcome would still be the same. And it just seems quite confusing to me to put in something that’s not the same question as the ultimate question at the pleading stage, rather than to understand the pleadings are pleadings and they’re before discovery and nobody can be expected to know what the defendant is going to say.

CHEMERINSKY: I disagree, Justice Kagan.

Chemerinsky essentially argued that all those other reasons not related to race just provides an illusion of inclusion. A win for Comcast will make it too hard for victims of discrimination to even bring a case.

I think Comcast will win this particular battle, but that doesn’t mean the war is complete. 

The justices aren’t deciding whether Comcast discriminated against Allen on the basis of race; rather, it is deciding how Allen must plead his case in order to proceed with his discrimination claim.

And once it decides that, Allen will have the recipe for whether and how he may proceed with his case. 

And that’s this week’s Legal Docket.

MARY REICHARD: Coming next on The World and Everything in It, the Monday Moneybeat.

NICK EICHER: It was a short week on Wall Street, due to the holiday. But on Monday, Tuesday, and Wednesday, all the major stock indexes hit record new highs. Traders took Thanksgiving Day off, and put in half a trading day Friday. In that shortened session, the market dropped slightly, but closed out the strongest month since June: The Standard & Poor’s 500 picked up 3.4 percent in November alone, the Dow Jones Industrials plus 3.7, and the Nasdaq rose 4.5 percent. On the year so far, the S&P 500 and the Dow are up more than 20 percent, and the Nasdaq up 30.

REICHARD: Turns out the economy grew more in the third quarter than the government initially said that it did. Gross Domestic Product, GDP, grew at a 2.1-percent annual pace, not 1.9 as first reported. Commerce Department economists had understated business investment in the July-to-September quarter.

But American manufacturing is still sluggish: the new trade agreement with the two top trading partners Mexico and Canada is stuck unratified in the U.S. Congress, and trade tensions between the United States and China remain unresolved.

EICHER: Personal consumption expenditures account for about 70 percent of overall economic growth, and there’s good news on that front. In the first month of the fourth quarter, consumers spent at the fastest pace since July. October spending rebounded three-tenths of a percent over September.

And retailers are expecting a much better holiday season than last year. The National Retail Federation predicts year-on-year growth between 3.8 and 4.2 percent. Amazon is hiring twice as many seasonal workers as it did last year.

Now, we’ve heard a lot about the problem of the truncated shopping season because Thanksgiving came so late. But retailers say more than half of consumers got started Christmas shopping before then and that a quarter of their purchases are already made.

Today, of course, is Cyber Monday. Adobe Analytics predicts it’ll be a record-breaker. Thanksgiving sales were 14 1/2 percent better than they were last year, with single-day sales of $4.2 billion, and Black Friday sales topped $7 billion.

And that is today’s Monday Moneybeat.

NICK EICHER: Like most other kids in his neighborhood in Amsterdam, 9-year-old Laurent Simons says he enjoys things your typical 9-year-old boy enjoys: playing with his dog, go-karting, and watching Netflix.

But he also enjoys—his words—“designing [electrical] circuits and things like that.”

That’s part of the course work for the degree he’s set to earn from Eindhoven University of Technology in Holland.

SIMONS: [Speaking in Dutch]

If you don’t speak Dutch, he just said he’s studying electrical engineering. 

You remember I said he’s 9?

His goal one day is to create artificial organs to help save lives. 

Young Mr. Simons started school at age 4 and breezed through primary school, secondary school, and university in just 5 years.

One of his teachers called him “the quickest student we’ve ever seen. And he’s not just hyper-intelligent, but very nice.”

It’s The World and Everything in It.

NICK EICHER: Today is Monday, December 2nd. You’re listening to The World and Everything in It and we’re glad you are! Good morning. I’m Nick Eicher.

MARY REICHARD: And I’m Mary Reichard. Coming next: the WORLD Radio History Book.

Today, the first person to cross the Atlantic in a row boat. Plus, a famous speech from Fidel Castro, in which he claims he’s not a communist.

EICHER: But first, 67 years ago, an air-pollution disaster in England. Here’s Paul Butler.

PAUL BUTLER, REPORTER: We begin today on December 5th, 1952:

NEWSREEL: A great fog of London has been the chief topic in the south of Britain. Traffic in London was at a stand-still on many occasions… 

The fog begins as an inconvenience but soon turns deadly. The Great Smog hovers over the city for five days. It not only shuts the city down, but sickens residents. It smells like rotting eggs. More than 150,000 people are hospitalized. And as many as 12,000 die. Government officials link the illnesses and deaths to London’s old coal burning plants, home heating systems, and bus emissions—but they struggle to determine why. 

The disaster leads to the Clean Air Act of 1956. It institutes “smoke free zones”—hoping to improve the air quality in and around London enough to avoid any recurrences of the deadly smog.  

Three years ago an international team of researchers from the UK, U.S., and China recreated the fog in a laboratory. Based on analysis of China’s modern smog problem, and what they know of 1952 London conditions, they believe that the deadly smog was the result of sulfur dioxide converting to sulfates, plus suspended sulfuric acid particles.

The surprising factor that made The Great Smog of 1952 so deadly, wasn’t the pollution alone, but the unseasonably cold weather system that trapped the air in place and prevented it from blowing out to sea.

Next, in the Spring of 1959, revolutionary Fidel Castro visits the United States just four months after he successfully overthrew dictator Fulgencio Batista. Castro tries to calm U.S. fears over intentions.

CASTRO: I know the worry that first of all we are communists. And of course, I have to say very clear that we are not communists… 

Yet a year and a half later, things are very different. The U.S. backed, failed counter-revolution known as “The Bay of Pigs” further strengthened ties between Castro and the Soviet Union. And on December 2nd, 1961, the Cuban leader announces a new direction for the island country.

He enters a studio a little after three in the morning. The 37,000 word speech lays out the history of his revolt, internal and external conflicts, and the struggle against global imperialism. Castro assures the people that he is not a dictator. 

About half-way through the long speech, he declares that he’s a Marxist—adding that Cuba will now embrace Communism. Most of the rest of his speech is an apologetic for socialism. He ends it demanding that the “…Party must always be above individuals because the Party is going to embody…not the value of one spirit of sacrifice, but the value of the spirit of sacrifice of hundreds of thousands of citizens, of the fighting spirit, of love for the Revolution.” 

Castro’s rule over Cuba requires much sacrifice: thousands of political prisoners, tens of thousands of executions, and hundreds of thousands flee the country. Today, the Republic of Cuba is one of the world’s last remaining Marxist–Leninist socialist countries.

And finally, twenty years ago, December 3rd, 1999. Tori Murden becomes the first American—and first woman—to cross the Atlantic Ocean by herself in a row boat. 

MURDEN: I would be at the oars when the sun came up and I’d be at the oars when the sun went down, and I was pretty serious about that time…

The ocean scull includes a small, sealed cabin at the aft. A sliding seat and oar-locks in the center. And a storage compartment in the bow. Her first attempt was cut short a year earlier by Hurricane Danielle.

MURDEN: Cut my tether, cut my sea anchor—they’re both gone. Broken the rib in the top of the boat. I got myself into this…

After making significant repairs and a few adaptations, she’s ready to try again in the late summer of 1999. After 81 days at sea, she rows into Guadeloupe— covering 2,962 nautical miles.

MURDEN: You know, even now, when I’m on whatever shore of the United States looking at the ocean, I’m like: “What was I thinking? That’s a big ocean…”

Today, Tori Murden is the president of Spalding University, a Catholic University in Louisville, Kentucky.

That’s this week’s WORLD Radio History Book, I’m Paul Butler.

MARY REICHARD: Today is Monday, December 2nd. Good morning! This is The World and Everything in It from listener-supported WORLD Radio. I’m Mary Reichard.

NICK EICHER: And I’m Nick Eicher. This time of year, a certain question arises in many homes where young children live. WORLD Radio commentator Trillia Newbell has been thinking about that.

TRILLIA NEWBELL: COMMENTATOR: Ho, ho, ho! Merry Christmas!

For some of you that familiar jolly sound of Christmas cheer reminds you of the moment when the adult in your life shattered your Santa fairytale by admitting that Santa was just a holiday hoax.

In Christian circles, the image of Saint Nicholas is one of our biggest controversies every year. Do we put Santa in our homes? Should we tell our kids about him at all? Or is he just an innocent holiday tradition that we should embrace?

Growing up I was told that Santa was real, but I don’t think I ever bought it. Maybe my imagination was never quite developed enough to believe such a thing. I’m not sure.

But even with full knowledge that Santa was really my dad, every Christmas Eve—lasting well into my teen years—I’d put out a plate of cookies and milk. Santa had to have his treat!

My kids do not believe in Santa. My husband and I chose to tell them about him but not encouraging them to believe in him. I think this is a good choice, but it is only our conviction.

I can also see why a parent might choose to allow their child to join in on the Santa story. Children have great imaginations. They find joy in the idea of fairytales like the Tooth Fairy and the recent Elf on a Shelf.  For some parents, no Santa would mean depriving their child of the joy of Christmas.

And for others, your belief is one of deep conviction that you can’t lie to your children. And that it will be difficult to tell them Jesus is real, when they do not see him—after also telling them Santa is real, when he is not.

Here’s what I know: We must ask the Lord how to live out our faith as we teach our children. These are difficult questions. But in Christ, there is great freedom in how we engage the culture around us and celebrate the Christmas season. Our consciences aren’t bound by the culture.

And if you have embraced Santa and now fear that your child will be crushed, take heart. The child might be crushed. But don’t think so little of the power of the gospel to assume that Jesus won’t save because of you. As Jesus would say: Oh, you of little faith! The power to save resides in the gospel, not us (Romans 1:16).

And maybe that’s just it. Maybe you and I need a reminder today that Santa can be fun, but the story of Jesus is powerful. And glorious. And He does not base His grace on whether or not we are naughty or nice. It’s free to all of us who are naughty.

For WORLD Radio, I’m Trillia Newbell.

NICK EICHER: Tomorrow is Giving Tuesday. Maybe you’re considering end-of-year giving, after all the holiday feasting and holiday spending. 

Giving Tuesday is such a great counterbalance to all that. So if you’re planning to participate, please remember your friends here at WORLD.

On the program tomorrow, an update from the legal team defending pro-life activist David Daleiden. That and much more.

I’m Nick Eicher.

MARY REICHARD: And I’m Mary Reichard.

The World and Everything in It comes to you from WORLD Radio.

WORLD’s mission is biblically objective journalism that informs, educates, and inspires. That’s a great mission to be part of on Giving Tuesday tomorrow.

The Psalmist says “Guide me in your truth and teach me, for you are God my Savior, and my hope is in you all day long.” 

Go now in grace and peace.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.