Medicare’s hospital insurance is financed by a payroll tax of 2.9 percent, divided equally between employers and employees. The money is placed in a trust fund and invested in U.S. Treasury SECURITIES. The fund accumulated a surplus during the 1980s and early 1990s. It was projected that the fund would run out of money by the early 2000s as outlays arose more rapidly than future payroll tax revenues, but this proved not to be the case. The Future of Social Security From its modest beginnings, Social Security has grown to become an essential facet of modern life. In 1940, slightly more than 222,000 people received monthly Social Security benefits. In 2008, 51 million people received benefits totaling $615 billion from Social Security. By the 1980s the Social Security Program faced a serious long-term financing crisis. President RONALD REAGAN appointed a blue- ribbon panel, known as the Greenspan Com- mission, to study the issues and recommend legislative changes. The final bill, signed into law in 1983 (Pub. L. 98-21, 97 Stat. 65), made numerous changes in the Social Security and Medicare Programs; these changes included taxing Social Security benefits, extending Social Security coverage to federal employees, and increasing the retirement age in the twenty-first century. By the 1990s, however, concerns were again raised about the long-term financial viability of Social Security and Medicare. Various ideas and plans to ensure the financial stability of these programs were put forward. The budget com- mittees in both the HOUSE OF REPRESENTATIVES and the SENATE established task forces to investigate proposals for Social Security reform. Other task forces, such as one established by the National Conference of State Legislatures, investigated the impact of Social Security reform on interests at the state and local levels. By the end of the 1990s, the federal government had achieved a budget surplus, and President BILL CLINTON and some members of Congress advocated use of the surplus to save Social Security. However, no political consensus as to what changes should be made had emerged by the end of the 1990s. The issue of Social Security was at the center of a major debate between GEORGE W. BUSH and AL GORE during the 2000 presidential election debates. Bush advocated then, as he did after assuming the presidency, that employees who pay into the Social Security system should be allowed to pay the funds into personal retire- ment accounts. Under this proposal, employees would have the option of converting these funds into other investm ents, such as stock. Bush did not push the issue hard during his first term, but in his second term he attempted to move it forward. However, the idea of privatizing Social Security went nowhere, and the precipitous decline in the STOCK MARKET beginning in the fall of 2007 provided fresh ammunition to the critics of the idea. In 2009 the Social Security Administration predicted that the OASDI tax income would fall short of outlays by 2016, and the OASDI trust fund was predicted to be exhausted by 2037 if no adjustments were made to the program. The total combined OASDI assets in 2008 amounted to $2.4 trillion. FURTHER READINGS Beland, Daniel 2007. Social Security: History and Politics from the New Deal to the Privatization Debate. Lawrence, Kan.: Univ. Press of Kansas. Mitchell, Daniel J. B. 2000. Pensions, Politics, and the Elderly: Historic Social Movements and Their Lessons for Our Aging Society. Armonk, N.Y.: M.E. Sharpe. Sass, Steven A. 1997. The Promise of Private Pensions: The First Hundred Years. Cambridge, Mass: Harvard Univ. Press. Schieber, Sylvester J. 1999. The Real Deal: The History and Future of Social Security. New Haven, Conn.: Yale Univ. Press. CROSS REFERENCES Disability Discrimination; Elder Law; Health Care Law; Old Age, Survivors and Disability Insurance; Senior Citizens. SOCIAL SECURITY ACT OF 1935 The Social Security Act (42 U.S.C.A. § 301 et seq.), designed to assist in the maintenance of the financial well-being of eligible persons, was enacted in 1935 as part of President FRANKLIN D. ROOSEVELT’s NEW DEAL. In the United States, SOCIAL SECURITY did not exist on the federal level until the passage of the Social Security Act of 1935. This statute provided for a federal program of old-age retirement benefits and a joint federal-state venture of UNEMPLOYMENT COMPENSATION.In addition, it dispensed federal funds to aid the development at the state level of such programs as vocational rehabilitation, public health ser- vices, and child welfare services, along with GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 248 SOCIAL SECURITY ACT OF 1935 assistance to the elderly and the handicapped. The act instituted a system of mandatory old- age insurance, issuing benefits in prop ortion to the previous earnings of persons over sixty- five and establishing a reserve fund financed through the imposition of payroll taxes on employers and employees. The original levy was 1 percent, but the rate has increased over the years. Only employees in industrial and com- mercial occupations were eligible for protection under the Social Security Act of 1935, but numerous important amendments have ex- panded the categories of coverage. CROSS REFERENCE Medicare. SOCIALISM Socialism is an economic and social theory that seeks to maximize wealth and opportunity for all people through public ownership and control of industries and social services. The general goal of socialism is to maximize wealth and opportunity, or to minimize human suffering, through public control of industry and social services. Socialism is an alternative to capitalism, where the means and profits of production are privately held. Socialism became a strong international movement in the early nineteenth century as the Industrial Revolution brought great changes to production methods and capacities and led to a decline in working conditions. Socialist writers and agitators in the United States helped fuel the labor movement but were often branded as radicals and jailed under a variety of laws that punished attempts to overthrow the government. Although gov- ernment programs such as SOCIAL SECURITY and WELFARE incorporate some socialist tenets, so- cialism has never posed a serious challenge to capitalism in the United States. One of the early forms of socialism w as the communitarian movement, pop ularized by the brothers George and Frederick Evans, who came to New York from England in 1820. Communitarianism, which was based on the ideals of the French theorists Jean-Jacques Rousseau and François-Noël Babeuf, involved the pursuit of utopian living in small coopera- tive communities. Cooperative living gained greater popularity under the utopian socialists, such as the Welsh industrialist Robert Owen and the French philosopher Charles Four ier. Owen’s followers established a self-sufficient utopian community in New Harmony, Indiana, in 1825, and Fourier’s followers did the same in the 1830s and 1840s on the East Coast. Both of these efforts failed, however. In 1848, the German philosophers KARL MARX and Friedrich Engels introduced scientific socialism with their extremely influential work the Communist Manifesto. Scientific socialism became the definitive ideology of a second, more powerful phase of socialism. Scientific socialism applied the dialectic method of the German philosopher Georg Hegel to the politi- cal and social spheres. Using discussion and reasoning as a form of intellectual investigation, Marx and Engels identified a historical progres- sion in human society from SLAVERY to FEUDALISM and finally to capitalism. Under capitalism, defined as a global system based on t echnology transcending national bound- aries, society was divided into two components: the bourgeoisie, who owned the methods of production, and the proletariat, the laborers who operated the production facilities to pro- duce goods. Marx and Engels predicted the disappearance of the middle class and ultimately a revolution as the vast proletariat wrested the methods of production from the control of the small bourgeoisie elite. This revolution would usher in an era when resources were owned by the people as a whole and markets were subject to cooperative administration. The Communist Manifesto made less of an impact in the United States than in Europe, in part because the nation’s attention was focused on the issue of slavery and the growing division between the North and South. When these tensions escalated into the Civil War, a great increase in industrialization led to the emergence of socialist labor organizations. At the same time, political REFUGEES from Europe contributed so- cialist theories to labor and political movements. In 1866, socialists who had been heavily influ- enced by German immigrants helped create the National LABOR UNION. Their efforts led to an 1868 statute (15 Stat. 77) establishing the eight-hour day for federal government workers; however, it went ignored and unenforced. The National Labor Union disappeared a few years after the death in 1869 of its founder, William Sylvis, but the ties between labor and socialism remained. As socialists across Europe and the United States debated Marx’s initial definitions and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SOCIALISM 249 their application under widely varying condi- tions, socialism gradually divided into three major philosophies: revisionism, ANARCHISM, and bolshevism. Revisionist socialism promoted gra- dual reform, compromise, and nonviolence. Ini- tially, reform meant the nationalization of state and local public works and large-scale industries. Dedicated to democratic ideals, revisionists be- lieved they could achieve civilized progress and higher consciousness through economic justice and complete equality. Anarchic socialism, best exemplified by the Russian Mikhail Bakunin (1814–1876), sought the ABOLITION of both property and the state. Under anarchic socialism society would be com- posed of small collectives of producers, distribu- tors, and consumers. Anarchism reflected the desire of the dispossessed to eliminate bourgeois institutions altogether. Like its contemporary syndicalism in France, anarchic socialism sought the immediate implementation of the dictator- ship of the proletariat. Bolshevism advocated the use of a select revolutionary cadre to seize control of the state. Bolshevists asserted that this cadre was needed to raise the consciousness of the proletariat and move toward a socialist future through absolute dictatorship. Their preferred method of redis- tributing wealth and resources was authoritar- ian collectivism, commonly known as COMMU- NISM . Under authoritarian collectivism the state would own and distribute all goods and services. In envisioning this role for the state, the Bol- shevists rejected both classical and theoretical socialism. Their only tie to classical socialism, besides the rhetorical one, was their view of the state as having a role in ameliorating the suffer- ing brought about by industrial capitalism. The Knights of Labor, which was formed in 1871 in Philadelphia, became the first truly national and broadly inclusive union in the United States. Revisionists worked within this union and other labor and third-party groups, often in leadership roles, to achieve definable goals that would culminate in a socialist state. Preaching reform, education, and cooperation, the union grew in numbers until 1886. In May of that year, during a strike sanctione d by the Knights against the McCormick Harvester plant in Chicago, an unknown person threw a bomb into the ranks of police sent to disperse a public gathering organized by anarchist socialists. The HAYMARKET RIOT, as it became known, set the stage for the first RED SCARE in U.S. history. Eight anarchist leaders were charged with MURDER on the basis of speech defined as CONSPIRACY. The use of a judge-selected jury and his instructions to them led to the conviction of the anarchists, four of whom were sentenced to death and hanged. The U.S. SUPREME COURT could find no principle of federal law with which to review the case. The reaction that followed the riot signaled the end of anarchism as a force in U.S. politics. It was also the end of the first phase of inclusive, or industrial unionism, as opposed to trade unions. Under the pressure of economic down- turns, f actionalization, and the stigma of being affiliated with anarchists, the Knights of Labor declined into a negligible force. Throughout the 1880s and 1890s, the revi- sionists attempted to unionize various compa- nies, including Andrew Carnegie’s HOMESTEAD Steel in 1892. Private armies and the Pennsylvania state MILITIA were used to break up the strike. In 1894, EUGENE V. DEBS (1855–1926), head of the American Railway Union (ARU), organized a strike against the Pullman Palace Car Company. The SHERMAN ANTI-TRUST ACT of 1890, ostensibly passed to curb the accelerating trend of monop- olization, was used to stop the ARU strike. When the ARU ignored the INJUNCTION granted under authority of the act, Debs was sentenced to six months in prison for CONTEMPT of court. On appeal the sentence was upheld by the U.S. Supreme Court in In re Debs (158 U.S. 564, 15 S. Ct. 900, 39 L. Ed. 1092 [1895]). Despite this setback, Debs had proven himself to be a significant leader and orator. As such, he took a key role in the U.S. socialist movement. In 1897, he formed the Social DEMOCRATIC PARTY. In 1905, Debs moved more to the left, and with William D. “Big Bill” Haywood and Mary Harris “Mother” Jones, he co-founded the INDUSTRIAL WORKERS OF THE WORLD. The “Wobblies,” as they were called, represented the legacy of direct action advocated by the earlier anarchists. In the early twentieth century, socialists called for changes to currency and taxation, an eight-hour day, an end to ADULTERATION of food, more attention to product safety, im- proved working conditions, urban sanitation, and relief for the poor and homeless. Congress took notice of these demands and passed various laws granting the government the authority to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 250 SOCIALISM regulate industry. Socialism peaked in 1912, when Debs garnered 6 percent of the popular vote in the presidential election. The Supreme Court, however, was slow to recognize workers’ rights and government regu- lation of industry. The Court repeatedly struck down state laws restricting the number of hours that women and children could work on the ground that the laws violated the doctrine of liberty of contract. In 1910, the first real antitrust victory came when the Court forced Standard Oil to divest itself of some of its operations. The ruling, however, was limited in scope (Standard Oil v. United States, 221 U.S. 1, 31 S. Ct. 502). During WORLD WAR I (1914–1918) socialism faced new setbacks in the United States as federal legislation was passed outlawing any acts of disloyalty toward U.S. war efforts. The ESPIONAGE ACT OF 1917 (codified in scattered sections of 22 and 50 U.S.C.A.) imposed sentences of up to 20 years in prison for anyone found guilty of aiding the enemy, interfering with the recruitment of soldiers, or in any way encourag- ing disloyalty. The act was also used to prevent socialist literature from being sent through the mail. Many socialists were imprisoned for antiwar activities and the Wobblies, in particular, were main targets. Debs was jailed again, this time for interfering with military recruitment in violation of the Espionage Act. Again the Supreme Court upheld the conviction (Debs v. United States, 249 U.S. 211, 39 S. Ct. 252, 63 L. Ed. 566 [1919]). After World War I democratic socialists came into power, alone or as part of coalition governments, in Germany, France, Great Britain, and Sweden. They all faced the problem of how to make socialist principles viable within a capitalist system. Only in Sweden, and only after a lengthy conflict, were labor and capital able to cooperate to establish a socialist system without abandoning socialism’s philosophic foundation. In the United States, socialists faced another wave of repression during the strikes that erupted after the war. The Russian Revolution of 1917 had aroused new fears of Bolshevism, which led to greater intolerance. Under the auspices of the JUSTICE DEPARTMENT, Attorney General A. Mitchell Palmer conducted raids against individuals and organizations consid- ered a threat to U.S. institutions. The nation- wide arrest of dissidents ultima tely prompted the Supreme Court to reconsider federal protection of individual rights. Justices Oliver Wendell Holmes Jr. and LOUIS D. BRANDEIS argued for greater protection of the right to voice unpopular ideas. The Great Depression marked another turn- ing point for socialism. Overproduction, un- derconsumption, and speculation led to an implosion of markets, a result predicted by Marx. One response was powerful centralized governments in the form of totalitarian regimes such as those of ADOLF HITLER in Germany and JOSEPH STALIN in the Soviet Union. Socialism was revived by the British economist John Maynard Keynes, who advocated that the government should stimulate consumption and investment during economic downturns. Previously used only on a limited scale, deficit financing, as it came to be called, was now used by socialists in Europe and liberals in the United States to revive capitalism. Many countries still use Keynesian economics to provide a bridge between capitalism and socialism. As the Depression deepened from 1929 to 1933, U.S. socialism attracted more adherents, but its influence was still relatively slight. In the 1932 presidential elections, SOCIALIST PARTY ca ndi- date Norman M. Thomas won only 267,000 votes. Increasingly made up of middle-class intellectuals, socialists became isolated from the needs and demands of workers. Socialism’s greatest achievement during this period was President Franklin D. Roosevelt’s NEW DEAL program, which expanded government services to help the poor and stimulate economic growth. The Supreme Court, however, struck down much of the New Deal legislation, most notably, the National Industrial Recovery Act (48 Stat. 195) in 1935 (Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570). Only when Roosevelt threatened to enlarge the Court to include justices with his perspective did the Court begin to uphold New Deal legislation. The year 1935 was marked by success, however, with the passage of the WAGNER ACT, also known as the National Labor Relations Act of 1935 (29 U.S.C.A. §§ 151 et seq.). The act, which was the first national recognition of labor’s right to organize, was the culmination of 80 years of socialist-labor efforts. Ironically, the socialists’ message lost its urgency with the broadening of workers’ rights and regulatory reform. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SOCIALISM 251 Following WORLD WAR II, and with the coming of the COLD WAR, politicians and the public began to equate socialism with commu- nism. People with socialist backgrounds, who had been part of the Roosevelt administration, were denied employment, fired, and blacklisted during the late 1940s and 1950s. In 1951, in Dennis v. United States (341 U.S. 494 , 71 S. Ct. 857, 95 L. Ed. 1137), the Supreme Court upheld the SMITH ACT (18 U.S.C.A. § 2385), which had been passed in 1940. The decision established the legality of anti-subversive legislation under the theory that a vast underground horde of communists was working for the violent over- throw of the government. At the helm of the anti-communist move- ment was Senator JOSEPH R. MCCARTHY of Wisconsin, who proclaimed that communists had infiltrated U.S. politic s on a broad scale. Meanwhile the House Un-American Activities Committee tried suspects in the popular media, destroying numerous careers in the arts, enter- tainment, and politics. Only when McCarthy charged that the U.S. Army had been infiltrated by communists and then failed to prove his allegations did his power decline. By the time the CIVIL RIGHTS Act of 1964 (42 U.S.C.A. §§ 2000a et seq.) was passed , socialist precepts had again become acceptable topics of conversation. The remedies that politicians and scholars proposed for urban blight, poverty, and inequitable distribution of wealth drew heavily on the traditional socialist tenet that the state should play a role in alleviating suffering and directing society toward desirable ends. The socialist perspecti ve on the treatment of third- world nations in the transnational capitalist system also influenced protests against the VIETNAM WAR. After the McCarthy era, however, the organized socialist movement in the United States was in disarray, with membership down and leaders splintering off into various factions. The two major socialist groups to emerge were the right wing Socialist Party USA and the more left-leaning Democratic Socialists of America (DSA). In 1976, the Socialist Party USA ran a candidate in the president ial elections for the first time in 20 years. The party has included a candidate in almost every presidential election since then, but in the 2008 election its candidate only garnered 6,555 votes. Although the political potency of socialism declined around the world following the collapse of the Soviet Union in the early 1990s, oppo- nents of government intervention in the U.S. economy use the word socialism when describ- ing such efforts. The financial meltdown of the U.S. economy in the fall of 2008 led the federal government to supply financial institutions with hundreds of billions of dollars to stabiliz e the markets. In return the government received non-voting stock and a voice in corporate boardrooms. Critics argued that this action amounted to nationalizing the banks, but when President BARACK OBA MA took office he explicitly rejected the temporary government takeover of the weakest banks. His economic stimulus and healthcare reform plans led Republicans to claim that the new president was implementing socialist policies. Similar charges had been made against Obama during the closing weeks of the campaign, but voters did not find the label “socialist” a compelling reason to reject his candidacy. FURTHER READINGS Burns, James M. 1985. The Workshop of Democracy. New York: Random House. Clark, Steve, ed. 2002. The Changing Face of U.S. Politics: Working-Class Politics and the Trade Unions. 3d ed. New York: Pathfinder. Ely, Richard T. 1969. The Labor Movement in America. New York: Arno. Fried, Albert, and Ronald Sanders, eds. 1992. Socialist Thought. New York: Columbia Univ. Press. Haynes, Fred E. 1970. Social Politics in the United States. New York: AMS Press. Todd, Chuck, and Sheldon Gawiser. 2009. How Barack Obama Won: A State-by-State Guide to the Historic 2008 Election. New York: Vintage. CROSS REFERENCES Debs, Eugene; Gitlow v. New York; Labor Law; Labor Union; Marx, Karl; Socialist Party of the United States of America. SOCIALIST PARTY OF THE UNITED STATES OF AMERICA The Socialist Party of the United States of America (SP-USA) is one of several parties claiming to be the heir to the country’s original organized socialist movement, the Socialist Labor Party (SLP). Support for the party has fluctuated over the years, but it remains a vigorous advocate of radical change of eco- nomic and social policy in the United States. Originally called the Workingmen’s Party when it was organized in 1876, the party was renamed in 1877. Most of its members were immigrants from the large industrial U.S. cities. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 252 SOCIALIST PARTY OF THE UNITED STATES OF AMERICA In 1890 Marxist Daniel De Leon joined the SLP and became editor of its newspaper, The People. Under De Leon’s leadership the SLP adopted a Marxist view that advocated revolu- tion in order to free workers from the bonds of capitalism. In 1892 the SLP ran Simon Wing as a presidential candidate. The SLP continued to run presidential candidates for many years; however, electoral strength for the party reached a peak in 1898 when the SLP candidate fielded 82,204 votes. In 1898 Eugene Debs and other veterans of the American Railway Union’s national strike against the Pullm an Company organized the Socialist DEMOCRATIC PARTY (SDP). The majority of SDP members were laborers who had been born in the United States. In 1901 one wing of the SLP merged with Eugene Debs’ Social Democratic Party (SDP) at a unity convention in Indianap olis, Indiana. The newly merged SOCIALIST PARTY of the United States of America was a mix of people harboring moderate to radical views, including Marxists, Christians, pro-Zion and anti-Zion Jewish reformers, pacif- ists,populists,anarchists,andothers.Thecon- tinuing reform versus revolution debate was blunted by the adoption of platforms that envisioned revolution as the ultimate goal, while advocating immediate reform measures, but the party faced continuous internal conflict due to the variety of opinions held by its members. The Socialist Party sought to become a major component of the American political system. Debs ran as the party’s presidential candidate in 1908, 1912, and 1920, polling over 915,000 votes in 1920. In 1919 a major ideological divide within the party caused a number of members to split off and form what eventually became the Communist Party of the United States. In 1924, the Socialist Party did not field a presidential candidate, but instead it supported the campaign of Senator ROBERT LA FOLLETTE of Wisconsin, who ran on the PROGRES- SIVE PARTY ticket. La Follette polled 5 million popular votes but carried only his home state. The Great Depression of the early 1930s incre- ased support for the Socialist Party; its 1932 presidential candidate, Norman Thomas, re- ceived 896,000 votes. After that election the membership and political impact of the Socialist Party began to decline. The heterogeneity of views led to conflicts among various party factions, and over the years these factions were subject to numerous splits and mergers. Some members left to join the Communist Party because they felt the Socialist agenda was not sufficiently radical. Others became Democrats, theorizing that working with a major political party was the most viable means of achieving reform. In 1973 the Socialist Party of the United States of America split into three groups after conflict over the party’s stand on the VIETNAM WAR . The resulting Socialist Party USA affirmed its commitment as an independent voice for SOCIALISM. In 1976 the Socialist Party USA ran a presidential candidate for the first time in 20 years. The party has fielded presidential candidates every four years since 1988, though it has found it difficult to get on the ballot and generate much voter support. The 2008 presi- dential candidate, Brian Moore, garnered only 6,555 votes. Since 1973 the party has concen- trated on grassroots organizing and having an impact on local politics. FURTHER READINGS Fried, Albert., ed. 1992. Socialism in America: From the Shakers to the Third International: A Documentary History. New York: Columbia Univ. Press. Lipset, Seymour Martin, and Gary Marks. 2001. It Didn’t Happen Here: Why Socialism Failed in the United States. New York: Norton. Miller, Timothy. 1998. The Quest for Utopia in Twentieth- Century America: 1900–1960. Syracuse, N.Y.: Syracuse Univ. Press. Socialist Party of the United States of America. Available online at sp-usa.org (accessed July 31, 2009). CROSS REFERENCES Marx, Karl Heinrich; Socialism. Eugene V. Debs and Ben Hanford were the Socialist Party candidates for president and vice president in 1904. CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SOCIALIST PARTY OF THE UNITED STATES OF AMERICA 253 SOCRATIC METHOD See LANGDELL, CHRISTOPHER COLUMBUS. SODOMY Anal or oral intercourse between human beings, or any sexual relations between a human being and an animal, the act of which may be punishable as a criminal offense. The word sodomy acquired different mean- ings over time. Under the COMMON LAW sodomy consisted of anal intercourse. Traditionally, courts and statutes referred to it as a “crime against nature” or as copulation “against the order of nature.” In the United States the term eventually encompassed oral sex as well as anal sex. The crime of sodomy was classified as a felony. Gay men were the primary target of sodomy laws because homosexual activity involves anal and oral sex . Culturally and historically homo- sexual activity was seen as unnatural or perverse. The term sodomy refers to the hom osexual activities of men in the story of the city of Sodom in the Bible. The destruction of Sodom and Gomorrah because of their residents’ immo- rality became a central part of Western attitudes toward forms of non-procreative sexual activity and same-sex relations. Beginning with Illinois in 1961, state legisl- atures reexamined their sodomy statutes. Thirty- six states had repealed these laws by 2003, usually as a part of a general revision of the criminal code and with the recognition that heterosexuals engage in oral and anal sex. In addition, STATE COURTS in 10 states applied state constitutional provisions to invalidate sodomy laws. Despite these legislative changes, the U.S. SUPREME COURT in Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841 , 92 L. Ed. 2d 140 (1986), upheld the Georgia sodomy statute. Michael Hardwick had been arrested and charged with sodomy for engaging in oral sex with a con- senting male adult in his home. A police officer was let into Hardwick’s home to serve a warrant and saw the sexual act. Although the state PROSECUTOR declined to prosecute the case, Hardwick brought suit in federal court asking that the statute be declared unconstitutional. On a 5–4 vote, the court upheld the law. Writing for the majority, Justice BYRON R. WHITE rejected the argument that previous decisions such as the court ’s rulings on ABORTION and contraception had created a right of privacy that extended to homosexual sodomy. Instead, the court drew a sharp distinction between the previous cases, which involved “family, mar- riage, or procreation,” and homosexual activity. The court also rejected the argument that there is a FUNDAMENTAL RIGHT to engage in homosexual activity. Prohibitions against sod- omy were in the laws of most states since the nation’s founding. To the argument that homo- sexual activity should be protected when it occurs in the privacy of a home, White stated that “otherwise illegal conduct is not always immunized whenever it occurs in the home.” Because the claim in the case involved only homosexual sodomy, the court expressed no opinion about the constitutionality of the statute as applied to acts of heterosexual sodomy. The Bowers decision was severely criticized for its reasonin g and questionable injection of history. Justice LEWIS POWELL, who voted with the majority, later stated that he had made a mistake in voting to affirm the law. In 2003 the Supreme Court reversed itself on the issue of sodomy, issuing a landmark ruling in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472 , 156 L.Ed.2d 508. The court reframed the issue, changing from a right to commit sodomy to the right of privacy. The court, in a 5-4 vote, struck down a Texas CRIMINAL LAW that made same-sex sodomy a crime. Justice ANTHONY KENNEDY, in his majority opinion, stated that Texas had intruded on the “liberty of the person both in its spatial and more transcendent dimensions” when it prose- cuted two men for committing sodomy. He based the decision on the Fourteenth Amend- ment’s Due Process Clause, invoking the doc- trine of substantive process. Under this doctrine, the court has found certain unwritten but fundamental liberty interests that the state cannot restrict. Relying on prior cases that gave women the right to use BIRTH CONTROL and have abortions, Kennedy concluded that same-sex couples had a similar right to engage in private sexual acts. The co urt rejected Bowers because that decision had found that the only right at stake was the right of homosexuals to commit sodomy. Instead, what was at stake was the state’s attempt to control personal relationships using criminal law. Kennedy stated that as a general rule the state should not attempt to “define the meaning GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 254 SOCRATIC METHOD of the relationship or to set its boundaries absent injury to a person or abuse of an institu- tion the law protects.” If homosexuals wished to express their sexuality in certain conduct, the Constitution allows them “the right to make the choice.” As for traditional cultural and religious beliefs that opposed sodomy and which Bowers embraced, the court ruled that these beliefs had no bearing on the legal issues in the case. FURTHER READINGS Alsenas, Linda. 2008. Gay America: Struggle for Equality. New York: Amulet Press. Hickey, Adam. 2002. “Between Two Spheres: Comparing State and Federal Approaches to the Right to Privacy and Prohibitions against Sodomy.” Yale Law Journal 111 (January). Pinello, Daniel. 2003. Gay Rights and American Law. New York: Cambridge Univ. Press. CROSS REFERENCES Gay and Lesbian Rights; Sex Offenses. SOFTWARE Software is intangible personal property consisting of mathematical codes, programs, routines, and other functions that control s the functioning and operation of a computer’s hardware. Software instructs a computer on what to do. (The computer’s physical components are called hardware.) Computer software is the gene- ral term for a variety of procedures and routines that harness the computational power of a com- puter to produce, for example, a general ope- rating system that coordinates the basic workings of the computer or specific applications that produce a database, a financial spreadsheet, a written document, or a game. Computer pro- grammers use different types of programming languages to create the intricate sets of instruc- tions that make computing possible. Until the personal computer revolution began in the 1980s, software was written mainly for business, government, and the military, which employed large mainframe computers as hardware. With the introduction of personal computers, which have rapidly increased in power and performance, software has emerged as an important commercial product that can be marketed to individuals and small business as well as big business and the government. Software is, under the law, INTELLECTUAL PROPERTY and, therefore, entitled to protection from persons who seek to exploit it illegally. Software can be protected through the use of trade secrets, COPYRIGHT, PATENTS,andTRADEMARKS. TRADE SECRET protection may apply to unpub- lished works and the basic software instructions called source code. Typically trade secrets will be effective if a company develops software and wishes to prevent others from finding out about it. A person who works on developing the software will be required to sign a nondisclosure agreement, which is a contract that obligates the person signing it to keep the project a secret. Once software is developed and is ready to be sold, it can be copyrighted. Copyright protects the expression of an idea, not the idea itself. For example, a person could not copy- right the idea of a computer database manage- ment system but could copyright the structure and content of a database software program that expresses the idea of a database system. Court decisions appear to have limited copy- right protection for some features of software. In Apple Computer v. Microsoft Corporation, 35 F.3d 1435 (9th Cir. 1994), the court held that Apple Computer could not copyright the graphical user interface (GUI) it had developed for its Macin- tosh computer. Microsoft Corporation’s Win- dows software program contained a GUI nearly identical to Apple’s. The court stated that Micro- soft and other software developers were free to copy the “functional” elements of Apple’sGUI because there are only a limited number of ways that the basic GUI can be expressed. In Lotus Development Corp. v. Borland International, 49 F.3d 807 (1st Cir. 1995), Lotus alleged that Borland had copied the hierarchical menu system of the Lotus 1-2-3 spreadsheet program, which contained 469 commands, in its Quattro spreadsheet program. The court of appeals ruled that Borland had not infringed on Lotus’s copyright because the menu com- mand hierarchy was a “method of operation,” which is not copyrightable under federal copy- right law (17 U.S.C.A. § 102(b)). Patent law supplies another avenue of pro- tection for software companies. A patent protects the idea itself. It is often an unattractive option, however, because it takes a significant amount of time, usually two years, and money to obtain a patent from the U.S. PATENT AND TRADEMARK OFFICE . The patent process is complicated and technical, with the applicant required to prove to the Patent and Trademark Office that a patent is deserved. Because the shelf life of a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SOFTWARE 255 software program is often short, seeking a patent for the program is often impractical. Trademark law protects the name of the software, not the software itself. Protecting a name from being used by others can be more valuable than other forms of protection. When software is leased or sold, the pur- chaser usually must agree to accept a software license. When a business negotiates with a soft- ware company, it will sign a license agreement that details how the software is to be used and limits its distribution. A software license is an effective tool in preventing PIRACY. When consumers buy packaged software from a software company or through a third- party business, they find in the box a software license. The license is typically on the sealed envelope th at contains the software media, which itself is sealed in plastic wrapping. These shrink- wrap licenses describe contractual conditions regarding the purchaser’s use of the software. The opening of the shrink-wrap, according to the license, constitutes acceptance of all of the terms contained in the license agreement. With downloadable software purchasers, the user must agree to the licensing terms as part of the instal- lation process. The purchaser is informed that the software is licensed and not sold to the purchaser. By retaining title to the software, the computer software company seeks to impose conditions upon the purchaser, or licensee, that are not otherwise permissible under federal copyright law. The principal terms of the license include prohibiting the unauthorized copying and rent- ing of the software, prohibiting reverse engineer- ing (figuring out how the software works) and modifications of the software, limiting the use of the software to one computer, disclaiming warranties, and limiting liabilities. The enforceability of software licenses has been challenged in the courts. The prevailing view is that when mass-market prepackaged software is sold, the transaction is a sale of goods and not a true license agreement. The key issue is whether the license document is part of an enforceable contract. Defenders of shrink- wrap lic enses argue that the pu rchaser agr ees to the conditions of the license after breaking the packaging seal and, therefore, contract law must uphold the written terms of the contract. Opponents argue that the seque nce of events in the typical software purchase transaction is skewed. The purchaser is not aware of the license agreement until after the sale is con- summated. The purchaser’s acceptance of the license agreement is inferred when he or she opens the package or uses the software. However, the purchaser does not sign the license agree- ment. She may not even read the terms of the license agreement and, in any case, does not expressly agree to them. In Step-Saver Data Systems v. Wyse Technol- ogy, 939 F.2d 91 (1991), the Third Circuit Court of Appeals held that the shrink-wrap license did not become part of the contract and, therefore, was not a valid modification to a previously existing contractual relationship for the sale of prepackaged computer software. The court concluded that under the UNIFORM COMMERCIAL CODE § 2-207 a contract had existed prior to the opening of the package, the license contained new terms that materially altered the contract, and the purchaser did not expressly accept these terms. Because of these conclusions, the license agreement was invalid and unenforceable. Lawsuits involving the software industry have not been limited to intellectual property disputes. In 1998 the U.S. JUSTICE DEPARTMENT brought an antitrust lawsuit against Microsoft Corporation, alleging that the company had illegally taken advantage of its software monop- oly to stifle competitors in the software marke t, including the Netscape Internet browser. A federal district judge in 1999 found Microsoft guilty of violating antitrust laws and in 2000 ordered that the company be divided into two separate companies (U.S. v. Microsoft, 253 F.3d 34 [D.C. Cir. 2001]). However, a federal appellate court in 2001 overruled the district court’s ruling, though it upheld the finding that Microsoft had violated antitrust laws. In 2002 Microsoft and the Justice Department reached a settlement whereby Microsoft agreed to disclose sensitive technology to its competitors and to allow manufacturers and customers to remove Microsoft icons from some of the features in the company’s system software. Despite the settlement, Netscape’s browser was pushed aside by Microsoft’s Internet Explorer. However, the 2000s saw the evolu- tion of the online search engine, with Google becoming the dominant force. It introduced its own browser, Chrome, in 2008, and gave users a free online suite of tools to rival Microsoft’s Office. In 2009 Microsoft reached an agreement GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 256 SOFTWARE with Yahoo to use it, search engine in an effort to gain more market share. In the 2000s open-source software grew increasingly popular. Suc h software is free and the developer allow, anyone to use the computer source code to enhance and improve the software. For example, the Firefox browser is open source. It has become increasingly popular, in part because of the hundreds of small programs that plug into Firefox and give the user powerful tools. The Linux computer operating system is another example of open source software. Software developers have legitimate concerns about software piracy. COUNTERFEITING is an inter- national problem that results in the sale of millions of dollars of pirated software. The Software Publisher’s Association (SPA) and the Business Software Alliance (BSA) are major organizations that combat software piracy. The SPA is the leading international trade associa- tion for the personal computer software industry. Both SPA and BSA have collected millions of dollars worldwide from companies that have used pirated software. Most companies using pirated software are reported by former employees. Piracy can take a number of forms. Com- puter users can commit piracy by using a single copy of licensed software to install on multiple computers. Similarly, copying disks and swap- ping disks inside and outside the workplace can constitute forms of software piracy. The Inter- net has likewise become a major source for illegally pirated software. A number of Websites offer full, pirated programs that can be down- loaded for free or exchanged with other users. New software in the 2000s enabled the creation of peer-to-peer networks, which led to the sharing of music, movies, and software. Al- though the BSA, SPA, and other organizations have sought to track these providers and take them offline, such sites still exist. A number of programs are available to protect software against piracy. Many compa- nies require users to enter special pass codes that correspond to the specific copies purchased by the users. Other software must be registered directly with the company over the Internet and often tied to a machine ID for that one computer. Despite these efforts, piracy still occurs at a significant rate: The BSA estimated that software piracy during 2008 cost companies $53 billion. Nonetheless, statistics indicate that piracy has been on the decline since the mid-1990s. Among the reasons noted by the BSA for this reduction are the employment of more effective means of distributing legal copies of software and a reduction in the price of software over the previous decade. FURTHER READINGS Band, Jonathan. 1995. Interfaces on Trial: Intellectual Property and Interoperability in the Global Software Industry. Boulder, Colo.: Westview Press. St. Laurent, Andrew. 2004. Understanding Open Source and Free Software Licensing. New York: O’Reilly Media. Evans, David S., ed. 2002. Microsoft, Antitrust, and the New Economy: Selected Essays. Boston: Kluwer Academic. McManis, Charles. 2004. Intellectual Property and Unfair Competition in a Nutshell. 5th ed. St. Paul, Minn.: Westgroup. CROSS REFERENCES Computer-Assisted Legal Research; Computer Crime; Copyright; E-Mail; Internet; Piracy; Sales Law. SOFTWARE PUBLISHERS ASSOCIATION See CONSUMER SOFTWARE PIRACY “Software Pub- lisher’s Association” (Sidebar). SOLDIERS’ AND SAILORS’ RELIEF ACT OF 1918 See SERVICEMEMBERS CIVIL RELIEF ACT. SOLE PROPRIETORSHIP A form of business in which one person owns all the assets of the business, in contrast to others, such as a partnership or a corporation. A person who does business for himself is engaged in the operation of a sole proprietor- ship. Anyone who does business without for- mally creating a business organization is a sole proprietor. Many small businesses operate as sole proprietorships. Professionals and other ser- vice businesses that require minimum amounts of capital often operate this way. A sole proprietorship is not a separate legal entity, like a partnership or a corporation. No legal formalities are necessary to create a sole proprietorship, other than appropriate licensing to conduct business and registration of a busi- ness name if it differs from that of the sole proprietor. Because a sole proprietorship is not a separate legal entity, it is not itself a taxable entity. The sole proprietor must report income and expenses from the business on Schedule C of a personal federal income TAX RETURN. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SOLE PROPRIETORSHIP 257 . the Patent and Trademark Office that a patent is deserved. Because the shelf life of a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SOFTWARE 255 software program is often short, seeking a patent. U.S. cities. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 252 SOCIALIST PARTY OF THE UNITED STATES OF AMERICA In 1 890 Marxist Daniel De Leon joined the SLP and became editor of its newspaper,. level of such programs as vocational rehabilitation, public health ser- vices, and child welfare services, along with GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 248 SOCIAL SECURITY ACT OF 193 5 assistance