In 2019, film producer Rick Allen, who had been recording the underwater excavation of Blackbeard’s Queen Anne’s Revenge since the 1990s, sued the State of North Carolina for copyright infringement after the state posted Allen’s images and video clips on its tourist website. The case went up to the US Supreme Court, which ruled that Allen could not sue the state because of the state’s protection under the 11th Amendment which grants states sovereign immunity.
Normally, once a case is decided by the Supreme Court, the case is closed. However, in very rare circumstances, a case is reheard under limited review. Included in the documents submitted to the Court was a 2006 case in which the Supreme Court ruled that a state could not violate a person’s Constitutional rights and then claim sovereign immunity. Allen had argued that the State of North Carolina had violated his 5th and 14th Amendment rights by depriving him of due process required under those Amendments. More importantly, the 5th Amendment includes what is called the “Takings Clause”. This clause states that a state government cannot take an individual’s property without compensation. Allen’s argument, based on the 2006 case, was that the state cannot take his images, refuse to pay him compensation for that use, and then claim sovereign immunity. For some reason, the Court did not address this argument in its opinion, leading to a rare rehearing based on this argument.
It seems only fair to rehear the case in this situation. Otherwise it leaves open the door that a state could confiscate an individual’s property without compensation, and then have a court dismiss a lawsuit disputing the confiscation based on sovereign immunity.