A couple of interesting Supreme Court cases were handed down today. The first, which Roberts joined while Alito concurred on narrow grounds, set forth an important principle: the "sovereign obligation" of the state to provide a fair trial. It also underlined the importance of judicial review (a theme for all three cases cited here, actually), even if it involved matters that occurred years ago (here the person didn't find out the evidence was not supplied until a decade later), including criminal cases that were litigated in various ways:
In the 27 years since Gary Cone was convicted of murder and sentenced to death, no Tennessee court has reached the merits of his claim that state prosecutors withheld evidence that would have bolstered his defense and rebutted the State's attempts to cast doubt on his alleged drug addiction.
If he was interview on television, Cohen might have more authority than Cher did to say "f*** 'em." OTOH, the station who airs such remarks should be careful if they were said between 6 A.M. and 10 P.M. on a non-cable station. The FCC a few years back suddenly changed a long standing policy to hold that "fleeting expletives" could be deemed indecent if aired during those times, replacing an old policy that required more than single uses of such words, particularly those used in a non-sexual fashion. The Supreme Court, 5-4, avoiding constitutional questions, held this was a justifiable agency decision.
The ruling specifically noted that the First Amendment issue, which in this context is hard to avoid, was not decided yet below, so it would not decide it now. All the same, various justices wrote about it. Justice Thomas concurred, but noted that former cases upholding the fairness doctrine on scarcity principle grounds (limited outlets justified a right to reply rule that no longer is in place these days) and limits on indecent speech on public airwaves were dubious.
Justice Kennedy had a concurrence to reaffirm the importance of some judicial checks on powerful agencies, but joined most of the majority opinion as well. The agency issue led to a Scalia/Stevens dispute, including Stevens referencing his "unitary executive" theory and suggesting Scalia suddenly cared about a few statements of individual members of Congress. Scalia also alleged independent agencies were intended to guard against executive interference, not political or congressional pressures. He spoke of "increased subservience to congressional direction," citing various conservative commentary on the point. Lots of inside baseball here.
Justice Ginsburg dissented separately to note the later, aka the Pacifica case (Stevens baby, involving the "Seven Dirty Words" speech by George Carlin), should at best be interpreted narrowly. Breyer's primary dissent agreed, thus noting the broad rule change was particularly indefensible on the record here. Breyer is an expert at administrative law, so it is not surprising he provided one of his more expansive dissents here. Stevens also dissented separately, as noted, providing this charming tidbit among others:
It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom.
The justices furthered the mentality of the government here by not actually writing "fuck" and "shit," leaving us with things like "use of the F- and S-Words." Stop being weenies. Not that the NYT is any better -- when talking about cases like this, including in editorials, they don't either. Oh, LGM has another charming phony cheap shot Scalia makes comparing "foul-mouthed glitteratae from Hollywood" to small town folks.
Like the one referenced in my earlier post who made death threats when a college student bad-mouthed her town on her MySpace page?
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* To get a taste of what is at stake here, we might look at one of the alleged victims in question:
Plaintiff Agiza, an Egyptian national who had been seeking asylum in Sweden, was captured by Swedish authorities, transferred to American custody, and flown to Egypt. In Egypt, he was held for five weeks "in a squalid, windowless, and frigid cell," where he was "severely and repeatedly beaten" and subjected to electric shock through electrodes attached to his ear lobes, nipples, and genitals. Agiza was held in detention for two and a half years, after which he was given a six-hour trial before a military court, convicted, and sentenced to fifteen years in Egyptian prison. According to plaintiffs, "[v]irtually every aspect of Agiza’s rendition, including his torture in Egypt, has been publicly acknowledged by the Swedish government."
Obama wants to block litigation in this area, even though there is much public information on what happened, because the very "subject" is secret. The appellate court here said this does not bar use of the "underlying facts," noting the dangers of excessive secrecy claims and the role of the courts to protect against government violations of liberty.
Will they have en banc review? Will Judge Bybee be on the panel?