By Ravi Bhatia-Talk Radio News Service

Animal cruelty clashed with first amendment rights today in the U.S. Supreme Court case of United States v. Stevens, which also marked Justice Sonia Sotomayor’s second day sitting as an Associate Justice in the Court’s new term. 

In 2004, Robert Stevens was indicted and charged with selling three dogfighting videos to undercover law enforcement agents. Congress enacted the statute in 1999, which deemed that whoever sells depictions of animal cruelty would be fined and/or imprisoned for up to five years. 

Steven’s 37-month sentence was 14 months longer than NFL quarterback Michael Vick’s, who had participated firsthand in a dogfighting venture. Although dogfighting is illegal in all 50 states, the practice is legal in Japan, where much of the footage in Stevens’ videos came from. 

According to Neal Katyal, the government lawyer defending the law, a “robust market” in animal cruelty exists. Upholding the statute would dry up the market for such material, he argued. It would also add to the precedent set in New York v. Ferber in 1982, when the Court ruled that the First Amendment right to free speech did not forbid states from banning the sale of child pornography.

The Ferber case was the last time that the question of whether or not material was too obscene to receive first amendment protection was addressed.

Patricia Millett argued on behalf of Stevens, suggesting that the statute was drafted too broadly and that it applied to legally protected activity.

Congress had enacted Article 48 in order to outlaw “crush videos,” which depicted close-ups of women inflicting torture on animals such as hamsters, puppies and kittens with their bare feet or while wearing high-heeled shoes.

The Supreme Court will release their decision on the case later this year, although the tone of the hearing implies that the justices are leaning towards affirming the decision of the Court of Appeals in overturning the law.

By Michael Combier-Talk Radio News Service

Yale University classmates and supporters of President Obama’s nominee for the Supreme Court, Sonia Sotomayor, say she is perfect for the job.

Currently a judge of the Second U.S. Circuit Court of Appeals, Sonia Sotomayor is President Obama’s choice to replace Justice Souter on the bench of the Supreme Court. If confirmed by the Senate, she would be the third woman and the first hispanic to serve on the U.S. Supreme Court.

On a conference call with reporters yesterday,, Martha L. Minow, now a professor at Harvard Law School, said that the decisions Sotomayor has made as a judge on Second U.S. Circuit Court of Appeals will positively influence her role as a judge of the United States Supreme Court.

Sotomayor “really shows,even in her role as an appelate judge, her knowledge as a litigator and then a district court judge about the importance of procedural rules and using the factual records. That is very notable because it shows a great deal of craft,” said Minow.

Sotomayor’s nomination is “a superb appointment because this is a lawyer’s lawyer. Someone who actually understands all the way down,how the craft of law works, and how working with facts and law required close reading of both,” Minow said.

As to Sotomayor’s judgement on free speech and cases dealing with the first amendment, “she takes each case as it comes and looks very much at the details of the facts,to decide on which way the constitutional analysis ought to go,” said Paul Smith, a lawyer who was another classmate of Sotomayor’s at Yale. He said that “she is focused on not just broad doctrine but how the doctrine applies to particular situations.”

“Judge Sotomayor is not a judge that goes out on a limb to impose her view of the law” but is “one that overturn decisions or practice anymore than necessary,” said Scott Moss,Professor at University of Colorado Law School.

Citing Ricci v. DeStefano, which is currently in the hands of the Supreme Court, Sotomayor moved in favor of the withdrawal of the debated test.The case involves the city of New Haven,Conn., and its decision to base future promotions in its firefighting force on a written test. The results were invalidated by the city after none of the African-American candidates and only two Hispanics qualified for the promotion. In their opinion for Ricci, the Second US Circuit Court of Appeals,including Judge Sotomayor, “expressed real sympathy for the plaintliffs” but that the three judges “were bound with previous decisions made in the area” and that they will not change the lower court’s decision, said William P. Marshall, Professor at University f North Carolina School of Law.

Sotomayor’s role showed “her instincts for judicial restraints” said Marshall.

Responding to a question on Sotomayor’s decisions on the second amendment that protects a right to keep and bear arms, Minow said that she was “cautious,careful, deciding only what is needed to be decided” but that she has given views only on a limited number of cases.

By Michael Combier-Talk Radio News Service

Paul Smith, a Law Partner at Jenner & Block, recalls two legal cases on the subject of the first amendment and free speech in which Judge Sotomayor was focused on dealing with the doctrine on a case by case basis.(1:35)

 

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In what is being seen as a set-back for the TV industry, the Supreme Court Tuesday morning tentatively gave the Federal Communications Commission license to regulate the use of curse words during live broadcasts. Opponents of the close 5-4 ruling say the FCC did not adequately explain its policy shift.

The court explicitly refused to discuss freedom of speech concerns about the regulation, saying that discussion would have to come in another case.

The FCC has long regulated obscene and indecent language on broadcast television, but until 2006 it did not take action over so-called “fleeting expletives,” such as using the F-Word and S-Word spontaneously in a non-literal sense.

In 2006 the FCC issued fines for Fox’s broadcast in 2002 of a live appearance by Cher in which she said, “I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** ‘em.” The FCC also fined a 2003 broadcast in which Nicole Richie said, “Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.”

Fox appealed the fine to the courts, arguing that the FCC had not justified the change in their policy, since in 2004 the FCC allowed a broadcast of Bono using a fleeting expletive to go without fine.

By Michael Ruhl, University of New Mexico – Talk Radio News Service

Former presidential candidate and long time consumer rights advocate Ralph Nader talked with Michael Ruhl to discuss the status of his lawsuit against the Democratic National Committee (DNC). This was immediately following the circuit court argument for Nader vs. DNC. Nader claims that he was harassed and burdened in 2004 presidential election by the DNC, in what he calls “an abuse of the legal process” and malicious prosecution. In this interview, Nader explained background of the case, and the case’s current status. He said, “there is no other western democracy that comes close to obstructing voters and obstructing candidates as is the case in our country.”

Nader also spoke about the two-party system, and the effect that his case has on future third party candidates in the presidential process. He said that his case is designed to draw boundaries, to make sure that third party candidates can exercise their First Amendment rights. Nader also referred to the issue as one of democracy, because he said in limiting ballot access, one is truly limiting the right of the people to decide who they want to represent them. Nader called for national ballot standards, instead of ballot standards which vary state by state. He also advocated instant runoff voting and public funding of public campaigns.

Nader said that the two-party system is not allowing third parties access to the higher tiers of federal government, and this two-party system is moving gradually to a one-party system, where gerrymandered districts make reelection almost certain for many members of Congress. He called this a system that can be rented by the rich. In spite of the stronghold that the two parties have on the system, Nader said that he has talked with several members of Congress who may be interested in helping to move legislation on election reform. He mentioned by name: John Conyers (D-Mich.), Ron Paul (R-Texas), Dennis Kucinich (D-Ohio), and Jessie Jackson, Jr. (D-Ill.). He anticipates this reform effort to be difficult, because as he said, “the foxes are guarding the chicken coop.” Nader seems ready for a fight.

(08:50)

 

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Caroline Fredrickson, director of the American Civil Liberties Union Washington Legislative Office, says that the inherent dangers of “fusion centers” is the sharing of information with no controls, no oversight and no structure to protect people’s first amendment rights. (0:49)

 

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Justices Stevens, Souter, and Ginsburg announced a dissent from a decision made by the Court to allow a Virginia execution to go through. The VA method of execution is similar to Kentucky lethal injection procedure at issue before the Court this term (and of which the Court eventually approved). The Supreme Court had issued an order stopping the execution last fall while it considered the pending case, and today it lifted that order. That execution is still under consideration by the Fourth Circuit Court of Appeals, and the defendant can go to that court and ask them to stay the execution while it’s being considered, but Justices Stevens, Souter, and Ginsburg would have preferred to leave the Supreme Court’s order in place instead.

US v. Rodriquez: Rodriquez was convicted of felony possession of a firearm. Under federal law, he was eligible for a higher sentence if he had been previously convicted of a felony with a 10-year maximum sentence. He had previously been convicted of a drug crime in Washington that would normally only carry a 5-year sentence, but because it was his third conviction that maximum was extended to 10 years. (He was sentenced to 48 months.) The question for the Court was whether they should count the 5-year normal maximum or the 10-year recidivist maximum. The Supreme Court, 6-3 (Alito writing the main opinion), said the 10-year maximum is the one that counts. Souter, Stevens, and Ginsburg dissented.

Kentucky v. Davis: Kentucky says you don’t have to pay income tax on interest from Kentucky state-issued bonds, but you do have to pay such taxes on bonds from other states. Taxpayers claimed discrimination against interstate commerce, in violation of the “dormant Commerce Clause.” 7-2, Supreme Court said the tax was fine, since the tax was not a form of economic protectionism.

US v. Williams: Williams child pornography. He gave it to some other people. He was charged and convicted of possession of child pornography, but he was also charged and convicted of a relatively recent law that criminalized pandering (either offering or asking for) of something you think is child pornography. Under this law, you can be convicted for a separate crime if the material in question actually is child pornography (as it was in Williams’s case), or if it’s obscene (basically something really graphic). Williams argued his offering of the child pornography was free speech, but the Supreme Court, 7-2 (with a Scalia majority (he’s
usually for strong First Amendment rights) and Souter, Ginsburg dissent), said the law was ok, so Williams’s conviction is upheld.

US v. Ressam: Ressam lied to customs officers while attempting to enter the US by ferry in Washington state. A search of his car found explosives that he planned to use to blow up LAX. He was charged under a law that made it a crime to lie to customs while “carr[ying] an explosive during the commission of” that felony.” Even though the explosives weren’t related to his lie, the Supreme Court 8-1 said it was OK to charge him under that law.