Brooke Gladstone: A big challenge to student loan relief is coming before the high court.
Eleni Schirmer: An old unpaid debt is being used to stop debt relief for 43 million Americans and their families right now.
Brooke Gladstone: From WNYC in New York, this is On the Media. I'm Brooke Gladstone. The personal behavior of Supreme Court Justices does not generally generate headlines. Why? A veteran legal correspondent reflects.
Dahlia Lithwick: I didn't think that part of my job was holding powerful people to account. It wasn't my job to follow the money. It wasn't my job to figure that out. Yes, I have regrets.
Brooke Gladstone: Plus how copyright law kept iconic '80s and '90s hip-hop off the internet.
Dan Charnas: The copyright owners, the record labels can charge anything they want for any piece of music that's being sampled.
Brooke Gladstone: It's all coming up after this.
Brooke Gladstone: From WNYC in New York, this is On the Media. I'm Brooke Gladstone.
News clip: Tonight, a long-awaited deal to lift the nation's debt ceiling reached.
News clip 6: One major concession from the White House, the restart of payments on federal student loans later this summer. Payments that have been paused since the start of the pandemic.
News clip: It's September one, the clock is starting. You're going to repay your loans.
Brooke Gladstone: On Wednesday, the White House used the student loan payment pause as a bargaining chip in its grueling horse trading with House Speaker Kevin McCarthy. The argument long simmering over student debt flared up last August when Biden announced--
Joe Biden: We will forgive $10,000 in outstanding federal student loans. In addition, students who come from low-income families, which allow them to qualify to receive a Pell Grant, will have their debt reduced by $20,000.
Brooke Gladstone: Since then, the president's plan has been simply battered. Numerous lawsuits have been filed against the administration and just last week--
News clip: Delivering a blow to President Biden's student loan policies, the House, Wednesday, voted to overturn the administration's controversial student debt relief program sending the measure to the Senate.
Brooke Gladstone: On Thursday the Senate voted to block it. Among the toughest challenges to the plan to date is one that has mostly evaded the media's glare.
News clip: Nebraska's Attorney General is joining the fight against President Biden's student loan cancellation program.
News clip: Millions of student loan borrowers now turning their eyes to the Supreme Court as it gears up to hear arguments over President Joe Biden's student debt relief plan.
Brooke Gladstone: The lawsuit, Biden v. Nebraska, was first filed last September in the eastern Missouri US District Court by six states, Nebraska, Arkansas, Iowa, Kansas, Missouri, and South Carolina. While five of the state's cases have been struck down--
Eleni Schirmer: One remains, and that's Missouri
Brooke Gladstone: Eleni Schirmer is the co-author of a recent piece in the New York Times called The Case Against Student Debt Relief Barely Even Pretends to Make Sense.
Eleni Schirmer: The hangup right now is around Missouri's claim that student debt cancellation cannot go through because it will harm a Missouri-based loan servicing company called MOHELA.
Brooke Gladstone: Right. The states are arguing that this Missouri Higher Educational Loan Authority, MOHELA, which is a quasi-independent loan servicing company, would lose millions of dollars per year if Biden's policy were to pass. Let's just start with that assertion that you and your group spent so long fact-checking.
Eleni Schirmer: The claim is basically about an unpaid debt that MOHELA owes the state of Missouri. Nearly forgotten debt from 2008 is being used to stop debt relief for 43 million Americans and their families. The basic argument is that should debt cancellation go through, MOHELA would lose accounts that it services and therefore would have less revenue to be able to pay back this debt from 2008.
Brooke Gladstone: 105 million owed to Missouri, which Missouri hasn't tried to collect in 15 years.
Eleni Schirmer: That's right.
Brooke Gladstone: It was never touched, never litigated, but now the state of Missouri is saying that student debt shouldn't be canceled because MOHELA would now be too poor to pay the loan that Missouri has never shown any desire to collect. Tell me about your fact-checking and whether this holds any water at all.
Eleni Schirmer: During the oral arguments in front of the Supreme Court, the attorney representing the plaintiffs used the phrase, "It stands to reason that about half of MOHELAs operating revenue will be cut." When we went and looked at the documents that the attorney had filed in support of this, they were void of numbers that would back up this claim. The documents that had been submitted for this proof was a transcript of a press conference that Biden held when he announced the cancellation policies and some pretty generic financial statements of MOHELA. There was no information about the amount of accounts that MOHELA holds that would be affected by the cancellation policy. There was no information about MOHELA's own projections of how cancellation would impact them so we started poking around to answer these questions for ourselves.
Our starting premise is how many borrowers does MOHELA service right now. How many accounts do they hold? How many of these accounts are under $10,000 and $20,000? The White House thinks that 95% of all borrowers will be eligible for this relief. Biden imposed an application on relief, so not every student debtor will get $10,000 to $20,000 canceled. What we found suggests that MOHELA projects that even after cancellation, it'll still make $97 million from servicing loans remaining, which is way more than it made the year before cancellation. Our estimate actually increases that to more like $175 million after the loan cancellation.
Brooke Gladstone: Wow.
Eleni Schirmer: We think there's reason to believe that MOHELA will get a certain fee when it closes out accounts.
Brooke Gladstone: Last July you noted the Department of Education gave a contract to the agency to service a huge number of new accounts related to a different program, and that overall, and this really just struck me, MOHELA's direct loan borrowers have more than tripled from 2.5 million in 2020 to 7.7 million as of April this year.
Eleni Schirmer: That's right.
Brooke Gladstone: They're not in any distress and they could certainly pay off that $100-plus million loan to Missouri at any point if it felt like it, but it doesn't seem like Missouri really cares. Now I want to go back to why Missouri is taking the peculiar position of suing on behalf of MOHELA. Missouri says it has standing as a secondhand injured party, but you say you can't sue on behalf of somebody else.
Eleni Schirmer: If my friend owes me $20 and my friend works at Amazon, but Amazon decides to lay off my friend and I have reason to believe that my friend may no longer be able to pay me back my $20, well, under this precedent, I would have the right to sue Amazon for laying off my friend because it potentially damaged my ability to get paid back the $20. What this case is essentially claiming is that we can only have as much social welfare policy insofar as it's profitable to corporations. If there's a program that potentially damages a company's bottom line, then perhaps we need to reconsider that social policy.
Potentially this case would set a precedent such that if Biden were to decide to stop sending arms overseas to Ukraine, Lockheed Martin could sue to say, "You have to keep the war going because we were depending on selling the federal government weapons and if you change that policy, then that's damaging the bottom lines of Lockheed Martin." Regardless of whether you even think that student debt should be canceled or not, the idea that social welfare policies should be based on if and how it's profitable to corporations, to government contractors, I think is very worrisome
Brooke Gladstone: From all the facts you've laid out, the debt relief plan would barely hurt MOHELA so the claim to injury isn't supported by the evidence, and if MOHELA wouldn't suffer, Missouri wouldn't suffer in any way. Missouri has no grounds to sue. Is this really about Missouri and the other five GOP-run states that were originally in this suit simply opposing a Biden initiative? Is this about politics?
Eleni Schirmer: It's hard to see this other than a group of Republican states who didn't like this policy and really cast around for their best shot to take it down. In the hearing, at one point, one of the justices said, "Well, if the harm is being brought to MOHELA, why isn't MOHELA here?" [chuckles] The fact of the matter is that MOHELA cannot sue. In early 2022, the Department of Education made a contract modification with all of the loan servicers, including MOHELA, saying that the loan servicers do not have the right to protest or contest any of the Department of Education's account allocations. The Department of Education has the right to giveth loan servicers contracts, and it has the right to taketh them away.
Brooke Gladstone: This case was initially dismissed by a district judge in the Eastern Missouri US District Court, which claimed that the states had no grounds to sue, but the states appealed. The US Eighth Circuit Court of Appeals granted an injunction and that's when the Supreme Court picked it up. Now this was a critical decision. When the Supreme Court steps in this early, the plaintiffs are relieved of the chore of testing or proving their assertions in Lower Court. Why did the Supreme Court say that it would skip the Lower Court process and pick it up?
Eleni Schirmer: In November of 22, Biden requested that the Supreme Court intervene and take a look at this case. I suspect it's because Biden believed the ridiculousness, the extravagant claims at this case would be more accurately identified for what they are by the Supreme Court Justices than by the lower courts. The Eighth Circuit and the Fifth Circuit are notoriously right-wing, highly partisan, Trump-appointed judges, and I suspect Biden didn't think that they would give it a fair hearing, which really says something when this particular Supreme Court is seen as the more judicious body than a lower court.
Brooke Gladstone: You wrote that the ease with which these convoluted arguments ascended to the Supreme Court, the complete lack of fact-checking casts the yawning power differential between lender and debtor in sharper relief.
Eleni Schirmer: The way that the plaintiffs were able to establish their claim by some hand waving and saying, "It stands to reason. We've got the documents in the file and in those documents, you'd see it's all spelled out." We opened them. It wasn't spelled out. That is the exact opposite of how debtors are treated. The paperwork to get this debt canceled is just absolutely onerous. Folks seeking the public service loan forgiveness relief have to get signatures from employers from a decade ago. Do they still have the same phone number? Do they remember who you are? Can you trust them to sign off on your form?
There's cases of people having their applications denied because they signed the paperwork using the wrong colored pen or they used the ink signature instead of an electronic signature or vice versa. Every single turn of the way, the debtors have to prove that they're deserving of relief. Meanwhile, these Republican attorney generals to strike down relief don't even have to back up their basic claim. They just say, "It stands to reason."
Brooke Gladstone: You call this the hierarchy of credibility, a term coined by the sociologist Howard Becker, and that in fact, this hierarchy is so deeply rooted, you even find it in Biden's own plan.
Eleni Schirmer: As Biden was putting together his plan for relief, numerous advocates warned Biden saying, "You cannot put an application on this. When debtors have to apply for relief, the process gets totally gummed up. It becomes a red tape bureaucratic nightmare."
Brooke Gladstone: What do you mean? You have to apply. How do they even know you need the relief?
Eleni Schirmer: We like to say that debt is the means test on itself. If you didn't have the cash to put up for college and you had to borrow, you probably need some relief. On Biden's plan, perhaps it was rooted in a well-meaning progressive space of like, "Well, we don't want the rich to benefit from this program." The truth is the rich don't have student debt.
Brooke Gladstone: Fraudsters rip off the government all the time, big and small.
Eleni Schirmer: There was a brief window when the student debt application was open. In those days, the application was alive and valid, we have some data on who actually applied. What the data suggests is that most people who applied for student debt relief on average live in areas that earn less than $35,000 per capita. These folks live in poor neighborhoods and they're predominantly Black and Brown. The danger is that by putting up red tape to try to rule out the fraudsters, there's just pages of social science research documenting that the risk is that people who actually need relief don't get it.
Brooke Gladstone: You wrote, "Should the justices affirm this claim deciding in favor of Missouri, they would effectively be confirming a fake plaintiff, false facts, and an unjust claim. Falsehoods about falsehoods would be a hard way to lose the debt relief the President promised to 43 million Americans and their families and a Supreme Court that doesn't scrutinize basic facts would be a further disgrace for a body already plagued by scandal." It's not the first time this court will have made a decision based on untested assertions and scare tactics. Why do you think we should be paying such close attention this time?
Eleni Schirmer: If the justices affirm the plaintiff's case that MOHELA's revenue should be held over and above debtors' need for relief, I think that's sending a very worrisome signal. It has the precedent to counterpose companies' bottom lines against the well-being of millions of people and probably the most plain is that I would like to have a Supreme Court that cares about facts.
Brooke Gladstone: Eleni, thank you very much.
Eleni Schirmer: Thank you very much. Appreciate it.
Brooke Gladstone: Eleni Schirmer is a writer postdoc at the Social Justice Center at Concordia University in Montreal, and an organizer with the Debt Collect. Coming up, how the legal press was primed to see pass the politicians in robes. This is On the Media.
This is On the Media. I'm Brooke Gladstone. The Supreme Court's approval ratings have plunged to historic lows since Roe v. Wade was overturned last year and ProPublica's bombshell reporting on justice Clarence Thomas's failure to disclose gifts from billionaire Harlan Crow is unlikely to earn back the public's faith in our highest court. Last week, Slate published the series of articles addressing this "Disorder in the Court" and in the Legal Press Corps. Slate's law and court reporter Dahlia Lithwick contributed an article called Imagine if the Press Covered the Supreme Court like Congress. Welcome back to On the Media, Dahlia.
Dahlia Lithwick: It's so good to be with you again, Brooke.
Brooke Gladstone: As part of Slate's new series called Disorder in the Court referring to both the high court and the legal press, you observed that you can write that the Supreme Court is de-legitimizing itself only so many times before you've made yourself ridiculous. The real question is why are we all zealously reporting on its decisions as though they were immutable legal truths? You basically say the Supreme Court is no longer functioning as a real court. What do you mean?
Dahlia Lithwick: Well, you can start with Bush v. Gore, which was an opinion that was supposed to be rooted in law, but the court was careful to say, "Never use this opinion because it's only good for this one election." You can start with Citizens United when the court on a completely crazy theory opened the spigot for huge dark money in campaigns and the world we live in since then.
You can set the timer to Shelby County when the court decided to overturn a big chunk of the Voting Rights Act, which had been authorized over and over again with explicit findings that it was necessary by Congress, or you can go to Dobbs just around this time last year where the court with the stroke of a pen said, "Roe was a mistake. Casey was a mistake. There's no such thing as a right to abortion. Work it out in the States." At any one of those moments as a country, one could have said, "Wait, these are terrible illegitimate decisions. Why are we not talking about structurally this question of how the court got to be this way?
Brooke Gladstone: Okay, you refer to terrible illegitimate decisions. I'm not going to dispute the terrible part, but let's focus on the illegitimate part. A lot of people thought, for instance, that Roe v. Wade wasn't a great decision. Ruth Bader Ginsburg thought it was a terrible basis on which to protect abortion rights. She would've much preferred equal protection for instance. Were they wrong to revisit the nature of some of these laws?
Dahlia Lithwick: If the question is can and should a constitutional court ever look back and error-correct, of course, and that is how we got Obergefel, marriage equality. That's how you get Brown vs. Board. The court at some point has to reverse Dred Scott. I think the bigger question you're asking is what do you do with the court that in the course of a really few short weeks, last June decided to do precisely that in about five different areas of the law, decided there's no such thing as the lemon test. That's the test that separates Church and State, there's no such thing as Roe v. Wade. We are going to radically change the law of the Second Amendment. This year the court is going after a precedent that's been recently affirmed, but that has been the law for decades on affirmative action. We are going to radically change the way that agencies like the EPA can regulate climate change because we've invented this new thing called the Major Questions Doctrine. Stay tuned listeners, that's going to be the way that the court gets rid of the Biden Administration's student loan forgiveness program later this year.
What do you do with the court that willy-nilly says, "Everything that was the law for decades is now up for grabs and we are going to reach out and take cases not properly before us to make sure that the new law, as we see it, is the law of the land." There are many, many, many cases in recent years of things that are false that then get baked into the doctrine and then are taken as truth.
Brooke Gladstone: What are the wrong facts that the high court is bringing to new cases?
Dahlia Lithwick: The best example I can offer is the case last year of Coach Kennedy, the famous praying football coach who wanted to pray with his students on the 50-yard line right after high school football games. You may recall that the school district in question said, "Look, Coach Kennedy, we have again decades of law that say that you cannot proselytize with students in public schools. Is there a way that you can do your prayer in a private area after the game?" Coach Kennedy's response was, "No, I have religious freedom rights." When that case was decided by the US Supreme Court, in his opinion, Justice Gorsuch time and time and time again referenced Coach Kennedy as having a private moment of prayer just between him and his God. Justice Sonia Sotomayor in decent was apoplectic, Brooke because TV cameras were capturing Coach Kennedy on the field surrounded by players lifting their helmets aloft.
She kept saying, "You cannot call this private," and appended photos to make that point. We are now seeing, by the way, all around the country, for instance, in Texas, massive, massive reversals of decades of law on proselytizing students who the court has always said are super suggestible and should be protected from proselytizing simply because Justice Gorsuch inserted into his opinion the utterly fallacious notion that this was a private moment of prayer between an educator and God. It was not true, and yet that is the law.
Brooke Gladstone: Earlier you mentioned something called the Major Questions Doctrine that's been used by this Supreme Court to limit the power of federal agencies. You put that in the list with other things that aren't true.
Dahlia Lithwick: That's exactly right, Brooke. This basically says that an agency like the EPA has to point to "A clear congressional authorization when they claim any authority from a statute." In the court's view, agencies consistently overreach, and so they need specific congressional authorization to do what they are doing. It essentially means that no agency can do anything unless it's been super expressly authorized. What that means is, because we all know that Congress can't get anything done, agencies can't do things. That is again, going to be the basis for, I suspect, setting aside the Student Loan Forgiveness Program, but the real nut of the thing is this, there's no such thing as the Major Questions Doctrine. It is not rooted in the Constitution. It is not a decades-old or even years-old test. It is something new. Your quietness freaks me out.
Brooke Gladstone: Your words freak me out, Dahlia. Okay. Public approval for the Supreme Court at its lowest level in over half a century, you've written about a seismic shift in the institution and you say a turning point for you was the increasing use by this court of something called the Shadow Docket.
Dahlia Lithwick: Steven Vladeck, who teaches law at UT Austin and has an amazing book called The Shadow Docket, and Will Baude, who's a law professor actually I think invented the term "The Shadow Docket." What they were clocking that the rest of us were missing was that in recent years, the US Supreme Court were deciding more and more cases on an emergency basis. We've always had a "Shadow docket." We've always had an emergency docket. It was used for executions.
Suddenly in the Trump years, cases were rocketing to the high court, and instead of being argued in public, instead of having extensive briefing and finding of facts, the court was deciding seismically important cases on the emergency docket often at midnight, often with two unsigned paragraphs.
The example that I offer is SB 8, that Texas "Vigilante abortion bill," that would have given folks a bounty for turning in someone who aided and abetted an abortion. Even before that term started, the court on the Shadow Docket upheld that. The court had in an unsigned late-night order essentially said, "Cool, cool, cool Texas. This law is perfectly fine." We literally didn't know the reasoning, we just knew that the court had decided it. Once the court, in effect, blessed this vigilante law that for one-tenth of the childbearing population in the United States overturned Roe v. Wade long before Dobbs did.
That's how that term started. By the way, the court's approval ratings are the lowest they've ever been since Gallup polling began. The American public almost was ahead of the legacy media in recoiling at the notion that a court whose job is principally to show its work was not showing its work, was just throwing out the law and saying, "Here's what the new law is." When the Dobbs opinion was leaked, that was also seismic at the court.
Brooke Gladstone: Why was that so significant?
Dahlia Lithwick: We've just never had the totality of an opinion leak to the press in advance of publication. That's never happened. We've never had, in my lifetime, the kind of back-biting amongst the justices that immediately followed. Justice Alito saying, "Now our lives are in danger." Justice Thomas saying, "Stuff like this would never have happened under Chief Justice Rehnquist. He was a much better chief." Just palpable mistrust within the institution and the incandescently stupid probe into who leaked the opinion, which could not have been handled worse. We had the law clerks subject to deep, deep scrutiny and penalties of criminal sanctions, and the justices were taken to tea and asked polite questions and offered macaroons.
To have that result in a statement that, "We did our best, [chuckles] but we can't find the leaker," was just catastrophically bad for the court's legitimacy. I cannot believe, and this is maybe the most important thing I can say, that a court that by designs has neither the power of the purse nor the sword. The only power it has is the public's willingness to suspend disbelief and say, "This is not a partisan political institution. This institution is different." For the court to be so far down the road of, "Hey, we're a partisan political institution, but there's more, we'll do more partisan political things," it's actually heartbreaking.
Brooke Gladstone: You've noted that the Supreme Court Press Corps focuses on a handful of cases every year and leaves, "Matters of judicial conduct" pushed to the side to be handled by the political press. You've noted how Politico and ProPublica and others have covered that. You observed that the whole idea of the Shadow Docket was first noted by legal academics, not by reporters. How would you divide this labor?
Dahlia Lithwick: I think we have to cover both. The cases are essential and in the next four weeks when the court decides affirmative action and the Alabama gerrymandering case and decides 303 creative, that's the case about whether folks can discriminate against LGBTQ couples, that all has to be covered and the Supreme Court Press Corps will do it ably. Also, there's a whole bunch of other vectors that the Supreme Court Press Corps can't do alone. I've been really heartened by the fact that the New York Times is hiring for somebody to cover the court as a political partisan institution. The New Republic hung out a sign saying, "Hey, we need people to do this." ProPublica, Politico. There's a phenomenal piece in the New Republic about Barry Side, the guy who gave that massive, massive chunk of money to Leonard Leo.
Brooke Gladstone: Just a quick note here, Barry Side, who's a 90-plus-year-old manufacturing magnate, gave Leonard Leo who helped to choose Trump's judicial nominees for the Federalist Society, $1.6 billion to build up Leo's Dark Money Network to influence the court.
Dahlia Lithwick: I think we are going to see the advent of an immense amount of reporting on, "Where's the money? How is Leonard Leo, who has been in and out of a bunch of front groups that are pouring money into amicus briefs, into academic work that lifts up ideas like the ones we talked about, the major questions, doctrine-- Who are these people?" Why are we only hearing about Harlan Crow's gifts? Now, when this was all reported in 2011, 2012. This was all out there.
Brooke Gladstone: Well, it wasn't all out there. Justice Thomas did not report a lot of this stuff.
Dahlia Lithwick: He didn't report, but the LA Times caught him out not reporting. I mean, there's been a whole series of articles about-- In fact when for years and years he wasn't reporting money that Ginni Thomas was paid from the Heritage Foundation, he was caught out by it and went back and amended his filing. The idea that this all started this fall when ProPublica reported on Harlan Crow is simply not true. It's that, I just don't think anybody saw it as their beat. Sheldon Whitehouse, the Senator from Rhode Island has been making this argument at every confirmation hearing for years now.
Maybe the most succinct articulation of the problem that I find myself in is when Harlan Crow gets caught out for spending half a million dollars on these cruises that Clarence Thomas is taking and not disclosing and says, "Well, but I have no business before the court," it was Senator Whitehouse who said, "Oh my God, your business is the court." There's a photograph that's been disseminated again in that ProPublica reporting of Harlan Crow, Clarence Thomas, Leonard Leo, Mark Paoletta, all people who are involved in this enterprise of making sure that these millions of dollars that are slashing around are going to get certain political outcomes at the court. Whether it's busting unions, circumventing voting, affirmative action, ending Roe-- Whatever it is, not connecting the dots the way that portrait connected the dots is what Senator Whitehouse says is a signal failure of the media. Nobody should be hearing this on your show for the first time.
Brooke Gladstone: Do you reflect on any of your own reporting and wish you'd approached it differently?
Dahlia Lithwick: Yes. Look, I've been doing this for 23 years. I genuinely believed that my job was the kin to science reporting, translating complicated doctrines so people can understand it. I have no regrets about years spent doing that. When people say to me, "Wait a minute, you mean we knew that Harlan Crow was giving Thomas gifts and Thomas was not disclosing them since 2011 and you didn't write about that?" I do have regrets. The fact that Ginni Thomas was intimately involved, not just in texting Mark Meadows about the 2020 election, but in getting in touch with state officials, urging them to set aside election results, we know all this, and I didn't sound the alarm that there is a machine at work that is simmering right under the part of the court that I did cover as this oracular balls and strikes institution to the extent I can defend myself.
As long as the court was more or less conducting itself as an oracular ball and strikes institution, I was okay squinting a little and saying, "Look, everybody knows that the justices are not umpires." It's my job to explain the law and somebody else will figure this out. The idea that we are now sitting a top of this mess of ethics violations in a moment where John Roberts gave a speech in which he more or less was the human shruggy emoji just like, "Nothing to see here, we're fixing it," and then by the way, adds that the most heartbreaking moment for him as Chief Justice was the decision to put fencing up around the building last year as though the greatest suffering post-Dobbs was the suffering of the justices themselves. The level of complete self-delusion in a statement like that is breathtaking.
The idea that I didn't think that part of my job was discomforting the comfortable or holding powerful people to account or powerful systems to account and that it wasn't my job to follow the money, it wasn't my job to figure that out, yes, I have regrets.
Brooke Gladstone: Dahlia, thank you so much.
Dahlia Lithwick: I'm sorry you sound so sad. [laughter] Thank you for having me.
Brooke Gladstone: Dahlia Lithwick, writes about the courts and the law for Slate. She's also the host of the podcast, Amicus. Slates New Series on the Courts and the Legal Press is called Disorder In The Court. Coming up, a beloved hip-hop group experiences a digital resurrection, this is On the Media. This is On the Media, I'm Brooke Gladstone. So far this week we've picked at the mythology of the High Court and the frequent failure of the coverage to connect the dots and the potentially ruinous impact of Ill-founded legal precedent. Now we turn to copyright law, specifically how it applies to music sampling and how that law consigned an iconic hip-hop group's tracks to dusty record bins for decades. On the Media correspondent, Micah Loewinger brings us the story.
Micah Loewinger: In March, a beloved hip-hop group's music became available on the streaming services
News clip: After decades of legal wrangling over sample clearance, the seminal hip-hop group's music will finally be available online today.
News clip: You can actually listen to the De La Soul Catalog. It's an amazing, amazing thing to happen.
Micah Loewinger: A frustrating entanglement of copyright law and record label in-fighting kept De La Soul's music off of Spotify and Apple Music, and thus, largely out of the public imagination. In an interview from 2018, De La Soul members, Trugoy the Dove and Maseo reflected on a series of copyright battles.
Trugoy the Dove: The biggest fear is just almost feeling like you're being written out of history. That's how big--
Maseo: Being written out of history, let alone financially being taken advantage of.
Micah Loewinger: I spoke to Dan Charnas. He's the author of Dilla Time, the Life and Afterlife of the Hip-hop Producer who Reinvented Rhythm. We began the interview discussing De La Soul's song, Cool Breeze on the Rocks.
Dan Charnas: It is a complete riot of a sonic collage
[music-De La Soul: Cool Breeze on the Rocks]
Dan Charnas: These little excerpts of songs are talking to each other. At the very end where Michael Jackson begins singing, "I Want to rock with You," but the word rock is cut out, and instead, Prince Paul inserts run from Run-DMC screaming right in the middle of it. It let us all know that this was going to be a new way to express ourselves in this post-modern referential era. Another moment was the very first track on the album, The Magic Number.
[music-De La Soul: The Magic Number]
Dan Charnas: It's based on a sample of Schoolhouse Rock, and then they're getting it to talk to Johnny Cash, which is talking to Eddie Murphy in this track. That really is the moment that cracks open this idea of how you can use this music to talk to culture, to talk to the future, to speak to the present.
Micah Loewinger: In a way, the sampling kept, it anchored to the past because until recently we weren't able to hear this music on the streaming services. What was it legally that kept this album tied up and collecting dust in record bins rather than streaming online?
Dan Charnas: There was a huge issue of uncleared samples. The dispute between the group and their former label Tommy Boy, was essentially, as I gather, about who was going to pay.
Micah Loewinger: Who's going to pay for these uncleared samples?
Dan Charnas: That's correct. Was it going to come out of the record company share? Was it going to come out of the Artist's share? Reservoir music came in and I think they essentially bought Tommy Boy's sound recordings and injected the cash that enabled some of these samples to clear, but some of them were not clearable. The copyright owners, the record labels can charge anything they want for any piece of music that's being sampled and prevent creators from creating in the way that we all create now. It's not like it's just rap music. Sampling breakbeats and using digital loops became one of the major ways that pop music was created from the 1980s onward. If I take you back to 1990 and we listen to Milli Vanilli.
[music-Milli Vanilli: Girl You Know It's True]
Dan Charnas: Two of their biggest hits in 1990 had a sample of Ashley's Roachclip by Chuck Brown in the Soul Searchers, a very famous, Great Beat record.
[music-Chuck Brown and the Soul Searchers: Ashley's Roachclip]
Dan Charnas: It's subsided a bit that way of making music because there is such a chilling effect because there are essentially zero protections for sampling.
Micah Loewinger: Why can't producers just sample from a set of previously cleared songs to avoid the copyright issues altogether?
Dan Charnas: Well, that response though understandable, comes from a place of not knowing what Hip Hop is and what sampled music really is. It's a reference to history. It's not just, "Oh, I can't play the drums, and let me find somebody who can play the drums and loop it up." That's what people really think sampling is. It's not. The reason that everybody samples the Honey Drippers, Impeach the President--
[music- Honey Drippers: Impeach the President]
Dan Charnas: -or Melvin Bliss's Synthetic Substitution.
[Music-Melvin Bliss: Synthetic Substitution]
Dan Charnas: Why you don't know the names of those records, but everybody samples them is that they are a common language between MCs, producers, singers, audiences. It's the language of a culture every bit as much as the 145-chord progression, which is completely public domain, right? It is the lingua franca of American music, but the fact that Twist and Shout--
[music- The Beatles: Twist and Shout]
Dan Charnas: And La Bamba
[music- Ritchie Valens: La Bamba]
Dan Charnas: Have the same chord progression and the same top-line melody--
[music- Ritchie Valens- La Bamba]
Dan Charnas: They both share that. We've accepted that level of copying. Yet if somebody like the great late producer J. Dilla, were to take two seconds of a samba record and flip it and reverse it and make it non-recognizable, he could still be sued for that usage. There was a moment where J. Dilla stopped sampling because he and Q-Tip were sued over a sample of a song called UFO by the group ESG, which is again part of that common cannon of breakbeat records. It was something like over $100,000 for the use of this tiny little sample.
Micah Loewinger: This is the rink, rink, rink, rink, rink, rink.
Dan Charnas: Very good. Look at you.
Micah Loewinger: I love ESG. I love J. Dilla.
Dan Charnas: [laughs] You and I frankly would not know about ESG if it weren't for Hip-hop. Let's be real.
Micah Loewinger: In 1991, the first Hip-hop sampling case went to court over New York rapper DJ Beat Boxer, Biz Markie's right to the use of Gilbert O'Sullivan's, 1972 Ballad.
[music-Gilbert O'Sullivan: Alone Again (Naturally)]
Micah Loewinger: Federal Judge Kevin Duffy opened his opinion with the lines, "Thou shall not steal." What happened with this case and what kind of precedent did it set?
Dan Charnas: It allowed the equation of sampling and interpolation with theft. My point is this, the devil in all of this is not copying, the devil is deception. The devil is putting out a record that confuses the consumer, that it's not the record that you think you're buying or not paying for a substantial use.
Micah Loewinger: You actually published a biography about J. Dilla last year called Dilla Time: The Life and Afterlife of the Hip-hop Producer Who Reinvented Rhythm. For listeners who are lucky enough to be encountering his name for the first time, who was J. Dilla?
Dan Charnas: J. Dilla had a very short career in the 1990s. He was affiliated with groups like De La Soul and A Tribe Called Quest, Common.
Micah Loewinger: Erykah Badu.
Dan Charnas: Yes. He died at the age of 32 in 2006 of a rare blood disease, but in that short life of his not only was regarded as the master of the sampled art form, but he literally on his machine created a new rhythmic time feel that did not exist before him. Our popular music has had two basic time feels, straight time, where every beat is even swing time, where beats are uneven, and J. Dilla collided those two time fields in what I call Dilla Time.
Micah Loewinger: Can you give an example of a Dilla Time Track by J. Dilla?
Dan Charnas: Yes, a song called Come Get It off of his album, Welcome to Detroit in 2001.
[music- J Dilla: Come Get It]
Dan Charnas: If you listen to the very first bars of that song, you can hear swing time and straight time really fighting with each other and it gives this limping drunken quality to the rhythm. It almost seems erratic, but it's not. It's completely deliberate. That has, for the first time a beat maker, an electronic music producer, influence the way that traditional musicians played their instruments and felt musical time.
Micah Loewinger: Can we talk about his album Donuts? It was, I guess you could say his last official release. It's an experimental Hip Hop album, all instrumentals. In some ways, it can be heard as a kind of concept album about sampling. Even the first song features this very memorable drumbeat.
[music-J. Dilla: Donuts (Outro)]
Micah Loewinger: It samples this amazing song called The Worst Band In The World by British Band from the '70s, 10cc and that original song is itself a satire of the music industry and it's delightfully meta. One lyric from the song goes, "Here I am a record on a jukebox."
[music-10cc: The Worst Band In The World]
Micah Loewinger: A physical object of music singing to us and Dilla is borrowing from this physical object. It's almost as if he's encouraging us to think of the records themselves that he's using. He's asking us to be aware of his medium and his special relationship to it.
Dan Charnas: Now that's some great analysis, Micah. I've never heard that before. That's great.
Micah Loewinger: Let's go.
Dan Charnas: I'm convinced. You got me.
Micah Loewinger: As you've said, Donuts was a return to what he did so well, but prior to his work on it, the process of trying to get samples cleared had become so frustrating. He nearly stopped sampling altogether and which I think speaks to your point of the litigiousness around clearing samples can have a chilling effect on this type of creativity.
Dan Charnas: That's the thing that frustrates me that nobody wants to address. We are all so serious about the moral right of artists to deny use of parts of their songs, but we have nothing to say about the moral right of artists to create in the first place. Sampling has been demonized as copying.
Micah Loewinger: How much of that is just racism? A lot of the people who were defining sampling as an art form were young Black people.
Dan Charnas: Well, there are also people who feel that the use of the compulsory license in the 1950s was what allowed any record company to remake R&B songs using white artists and thus cut Black folks out of their due equity and access. Pat Boone remaking Little Richer, for example, or Pat Boone remaking Fats Domino. There is an argument that the compulsory license allowed that, but overall, watch what gets protected and who gets protected by law and watch who doesn't. Most of the folks who were suing were white artists, British artists who had essentially created their entire Irv out of Black music. Yet, looking at what these young Black programmers were doing as somehow unmusical or anathema.
Micah Loewinger: Hip-hop's about to turn 50 years old. That's 50 years of gray albums by artists who did manage to clear samples. The art form has flourished in spite of these legal obstacles. Then what's at stake here?
Dan Charnas: I would disagree. Listen to Paul's Boutique by the Beastie Boys. Listen to 3 Feet High and Rising by De La Soul. Listen to Public Enemy's, It Takes a Nation of Millions, or Fear of a Black Planet, all of those records happened in the late '80s or early '90s. You won't see them anymore. They don't happen anymore. Donuts, that had a lawsuit against it 15 years after Dilla died. It's very difficult to compose in this way without a lot of effort, a lot of time, and the risk of some copyright owner saying no for whatever reason.
As an artist, as somebody who loves this music, who's written a biography about the person who was at the apex of this style and to realize that that person never had any protection for what they'd practiced is anathema to me and it's the 50 year anniversary of Hip Hop. It's time to speak out on it.
Micah Loewinger: Dan, thanks so much.
Dan Charnas: Thanks for having me.
Micah Loewinger: Dan Charnas is the author of Dilla Time: The Life and Afterlife the Hip-Hop Producer Who Reinvented Rhythm.
Brooke Gladstone: On the Media is produced by Micah Loewinger, Eloise Blondiau, Molly Schwartz, Rebecca Clark-Callender, Candice Wang, and Suzanne Gaber. Our technical director is Jennifer Munson. Our engineer this week was Andrew Nerviano. Katya Rogers is our executive producer. On the Media is a production of WNYC Studios. I'm Brooke Gladstone.
[END OF AUDIO]
New York Public Radio transcripts are created on a rush deadline, often by contractors. 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 New York Public Radio’s programming is the audio record.