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InsiderOnline Blog: October 2008

Some Issues Before the Court

The Supreme Court began its new term today. The slate of cases accepted so far promise nothing so momentous as last term’s rulings on the Second Amendment, the death penalty for child rapists, and the rights of detainees in the war on terrorism. However, there are some cases worth keeping an eye on.

Fleeting Expletives. The Court will take up the question of whether the Federal Communications Commission may fine TV and radio stations for indecent statements made during live broadcasts. Previously, it had been FCC policy to fine only instances of repeated use of profane language. In 2004, however, in response to complaints about expletives uttered by various celebrities during live awards shows, the FCC decided to change its policy and begin issuing fines for the broadcast of isolated uses of profanity. A number of TV stations challenged the FCC’s action as arbitrary and capricious under the Administrative Procedures Act. Last June, the Second Circuit Court of Appeals agreed with the TV stations. If the Supreme Court affirms this judgment, it won’t reach any of the constitutional questions raised about the FCC’s authority to regulate broadcast content. Nevertheless, technological trends seem likely to force the Court at some point to reconsider the justification for indecency regulations. An amicus brief submitted jointly by the Progress & Freedom Foundation and the Center for Democracy and Technology argues that as new technologies give consumers more and more control over the content they receive, the justification for giving broadcast content a lower level of First Amendment protection disappears. The case is Federal Communications Commission v. Fox Television.

Navy Sonar v. Whales. The Court will decide whether a District Court judge had the authority to issue an injunction against the Navy’s use of sonar in training exercises off the coast of California, in spite of a presidential exemption for the training exercises from the requirements of the National Environmental Protection Act. The case had begun when the Natural Resources Defense Council sued the Navy for failing to produce an environmental impact statement that considered the affect of the sonar on whales. The case is Winter v. Natural Resources Defense Council.

Related: “National Security & Environment Before High Court in Winter Case,” by Brandon T. White, Washington Legal Foundation, September 5, 2008.

Can Ashcroft and Mueller Be Sued for Harsh Detainment Conditions? The Court will consider whether a Pakistani man may sue former Attorney General John Ashcroft and FBI Director Robert Mueller for his treatment in detention for six months following 9/11. The man, Javaid Iqbal, contends that Ashcroft and Mueller should be held personally liable for the harsh conditions of his imprisonment. Iqbal was held on suspicion of being involved in terrorism, was subsequently cleared of such involvement, but was convicted of defrauding the United States. On completion of his sentence he was deported to Pakistan.

Richard Samp of the Washington Legal Foundation says that the lawsuit is more a political statement about the war on terrorism than a case with real merit. Without specific facts showing that Ashcroft or Mueller personally directed harsh treatment of Iqbal, says Samp, the case should not be allowed to proceed. Samp says allowing the case would be “particularly inappropriate in a case raising national security issues; it threatens to interfere with the ability of officials to perform their duties without the distraction of having to defend against claims for money damages.” The case is Ashcroft v. Iqbal.

See: “At Urging of Former AGs and FBI Heads, Court Agrees to Review Case Seeking Damages from High-Level Officials,” Washington Legal Foundation, June 17, 2008.

Voting Wrongs? Another case that the Court may yet choose to take up is a challenge to the recently renewed Voting Rights Act. Section 5 of the act requires certain states and portions of other states to obtain pre-approval from the Justice Department before making any changes to election procedures. The law, first passed in 1965, was intended to protect the voting rights of blacks. A small municipality in Texas is asking the court to rule Section 5 unconstitutional. In a recent editorial in the Washington Examiner, Quinn Hillyer argues that the town’s argument is correct. The Constitution gives states authority over election procedures, and Congress may upset that constitutional design only by showing that another constitutional value—i.e., the right to vote—is threatened. But, says Hillyer, Congress did not show that such rights continue to be threatened when it recently renewed the law in 2006. Hillyer also notes: “the whole state of Texas was included among the ‘pre-clearance’ states not because of discrimination against blacks, but because of a lack of Spanish-language election materials – a problem fixed in the early 1970s statewide, a full decade and a half before the North Austin utility district even came into being.” The case is Northwest Austin Municipal Utility District Number One v. Gonzales.

Related: The Unintended Consequences of Section 5 of the Voting Rights Act by Edward Blum, AEI Press, December 2007.

Posted on 10/06/08 06:09 PM by Alex Adrianson

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