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Bong goes the court in free-speech ruling
Lawyer Blog News | 2007/06/26 15:44

The U.S. Supreme Court needlessly chipped away at First Amendment free-speech guarantees with a ruling elevating a high-school prank to a dangerous promotion of drug use. The 6-3 ruling miscast the case before the court as about drugs. But it was about a student's right to speech. Five years ago, high-school senior Joseph Frederick stood across the street from his school and unfurled a 14-foot banner that read "Bong Hits 4 Jesus." Frederick and other students from the Juneau, Alaska, school were just off school property attending a nonschool event, an Olympic Torch relay.

Frederick's sign was ambiguous. Was the 18-year-old supporting drugs or Christianity? The ambiguity matters because it places Frederick's sign within the confines of protected speech.

Supreme Court members, in a majority opinion written by Chief Justice John Roberts, convinced themselves that Frederick's banner was a public promotion of the use of illegal drugs. School authorities, according to Roberts — joined by Justices Thomas, Scalia, Alito and Kennedy — did not violate Frederick's constitutional rights when they went across the street, snatched his sign and ripped it to shreds.

The Supreme Court recognized student political speech with its 1969 decision, Tinker v. Des Moines (Iowa) School District. Justice Stephen Breyer, while siding with the majority, asserts that Frederick and his bong-hits banner make for an inadequate foundation on which to limit students' right to political speech.

The court's dissenters - Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg - go further. Stevens, penning the dissent, called the student's banner "nonsense" and the court's ruling a reach for broad censorship that would ban speech that advocated for medicinal marijuana use or other related messages.

The majority worries that illegal drugs are a serious danger in schools. This argument gets some sympathy but not enough to trample on the First Amendment.



Supreme Court Eases Campaign Finance Restrictions
U.S. Legal News | 2007/06/26 14:42

Free speech rights take precedence over government restrictions on political advertising, the Supreme Court ruled Monday in a decision that opens the door for greater influence by interest groups in the closing days of an election. In a 5-4 ruling, the court eased legal barriers aimed at corporate- and union-financed television ads, a decision whose tone suggests greater hostility on the court to federal limitations on money in politics.

The decision upheld an appeals court ruling that a Wisconsin anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections. The law unreasonably limits speech and violates the group's First Amendment rights, the court said.

The law, a provision in the 2002 campaign finance act, banned corporations and unions from paying for political "issue ads" that mentioned a candidate for federal office within 60 days of a federal election and 30 days of a primary or caucus.

"Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election," Chief Justice John Roberts wrote for the majority. "Where the First Amendment is implicated, the tie goes to the speaker, not the censor."

The law's provision not only applies to organized labor and business corporations, but also to any special interest that operated as a corporation, such as the U.S. Chamber of Commerce, the National Rifle Association and the Sierra Club -- groups frequently involved in elections. The ruling does not change a ban on ads that specifically call for the election or defeat of a candidate.

"This decision helps put the NRA in the same playing field as the politicians and the big media conglomerates going into the 2008 elections," Wayne LaPierre, executive vice president of the National Rifle Association, said in an interview.

A first test of the impact of the court's opinion could come as early as December, a month before presidential caucuses and primaries in Iowa, Nevada, New Hampshire and South Carolina open the nomination process.

The case addressed television ads by Wisconsin Right to Life that asked voters to contact the state's two senators, Democrats Russ Feingold and Herb Kohl, and urged them not to filibuster President Bush's judicial nominees. Because Feingold was up for re-election at the time, the Federal Election Commission said the ads violated the 2002 campaign finance law that Feingold and Sen. John McCain helped write.

Campaign finance experts said that while the court's decision, written by Roberts, applied specifically to the Wisconsin case, the ruling has far-reaching implications.

In making his argument, Roberts said ads that focus on a legislative issue, take a position on an issue and urge the public to contact a public official is a legitimate "issue ad" that should run no matter how close to the election. Whether the ads intend to affect an election, Roberts said, does not matter.

"I don't think (Chief) Justice Roberts is naive," Richard L. Hasen, a professor at Loyola Law School Los Angeles, said. "He knows full well that the test that the court has articulated today will lead to a great deal of corporation- and union- funded election advertising."

Writing more broadly, Roberts said the court has upheld contribution limits and some limits on expenditures in the interest of preventing corruption and the appearance of corruption. But he said that interest "must be stretched yet another step" in the Wisconsin case.

"Enough is enough," Roberts wrote.

Some campaign finance experts said Roberts' phrase carried a deeper meaning.

"For anybody who is looking for trouble ahead, that's certainly one of the places you would look," Robert Bauer, a campaign finance lawyer who is representing Barack Obama's presidential campaign. "He wants to remind everybody that having reviewed the entire line of argument up to this point he had quite enough of it."

The court's decision does not address the more far-reaching component of the campaign finance law -- it's ban on the ability of political parties to raise unlimited and unrestricted amounts of money from unions, corporations and wealthy donors.

But some campaign finance experts said that by opening the door to corporate and union-financed advertising, the court set the stage for a broader challenge to the law.

"Fundamentally what this case does is destabilize the state of campaign finance law as it existed when Justice (Sandra Day) O'Connor was on the court," said Nathaniel Persily, professor of law and political science at Columbia Law School.

The decision means the FEC likely will have to step in and write specific rules about advertising that reflects the court's opinion. The commission may face pressure to act before the end of the year.

The decision is a setback for McCain, who is now running for president. McCain has come under criticism from conservatives for attempting to restrict political money and political advertising.

"Obviously, I regret that decision, but it was very narrow," McCain told reporters in Columbia, S.C.

Presidential rival Mitt Romney cheered the ruling: "It's the beginning of an opening, I believe, to remove McCain-Feingold and its provisions that affect free speech and hopefully its broader provisions." Another candidate, Rudy Giuliani, praised the ruling as "a welcome victory for free speech and personal liberty." He previously had expressed support for the campaign finance reform act.

The court's majority was itself divided on the issue, with Roberts and Justice Samuel Alito saying only that the Wisconsin group's ads are not the equivalent of explicit campaign ads. They specifically said they were not overruling a 2003 court opinion that upheld the campaign finance law provision.

The three other justices that formed the majority -- Anthony Kennedy, Antonin Scalia and Clarence Thomas -- would have overruled the court's 2003 decision.

Justice David Souter, joined by his three liberal colleagues, said in his dissent that the court "effectively and, unjustifiably, overruled" the earlier decision.

Justices Stephen Breyer, Ruth Bader Ginsburg and John Paul Stevens joined Souter's dissent.



Class-action lawsuit against DIA dismissed
Class Action News | 2007/06/26 13:55

Two former employees who claimed their illnesses were caused by mold and fungi exposure at Denver International Airport had their class-action claim dismissed by the Colorado Supreme Court. The two United Airlines employees - Terri Crandall and Joann Hubbard - claimed they experienced pneumonia, headaches, nausea, shortness of breath and bronchitis beginning in 1995 and suspected environmental contamination.

Colorado Supreme Court justices say the women didn't file their notice of claim with Denver within a 180-day time period required by law.

John Fognani, an attorney representing the women, says his clients were extremely disappointed. Chris Doering, an assistant Denver city attorney, says the city is pleased with the decision. Doering says the city has not found a major mold issue at the airport.



U.S. Marshal "Guilty" of Selling Information
Court Feed News | 2007/06/26 12:54

Jose Magallan, a Deputy assigned to the United States Marshal's  McAllen office, has pleaded guilty to two counts of exceeding his authorized access to information on a U. S. Government computer and accepting money for the information, United States Attorney Don DeGabrielle and Special Agent in Charge of the Department of Justice Office of Inspector General Dallas Field Office announced today. 

At a hearing before United States District Judge Vanessa Gilmore held today,   Jose Magallan, 52, of  McAllen, TX, admitted that on two separate occasions, in November 2006 and in January 2007, he accepted money from a private citizen to conduct an unauthorized search of the U. S. Marshals Service's computer system to obtain and deliver information.   Magallan admitted to receiving $500 for information he obtained in the first unauthorized access to information search and $450 for the second such search.  

Judge Gilmore, who accepted the guilty pleas and convicted Magallan of two counts alleged in the indictment, has set sentencing for October 9, 2007.  Magallan faces up to five years imprisonment and up to a $250,000 for each count of conviction.

Magallan, who has been free on bond since his arrest in April 2007 following return of the two count indictment,  has been permitted by the court to remain on bond pending his sentencing.

The investigation leading to the indictment of Magallan was conducted by Special Agents of the Dallas Field Office of the Department of Justice Office of Inspector General.  The case is being prosecuted by Assistant U. S. Attorney Jim McAlister.  



$54 million for some pants? Court doesn't buy it
Headline News | 2007/06/26 12:44

A judge ruled Monday that no pair of pants is worth $54 million, rejecting a lawsuit that took a dry cleaner's promise of "Satisfaction Guaranteed" to an extreme.
 

Roy Pearson became a worldwide symbol of legal abuse by seeking jackpot justice from a simple complaint -- that a neighborhood cleaners lost the pants from a new suit and tried to give him a pair that were not his. His claim was based on a strict interpretation of the city's consumer protection law -- which imposes fines of $1,500 per violation, per day -- as well as damages for inconvenience, mental anguish and attorney's fees for representing himself.

"A reasonable consumer would not interpret 'Satisfaction Guaranteed' to mean that a merchant is required to satisfy a customer's unreasonable demands," wrote District of Columbia Superior Court Judge Judith Bartnoff.

Bartnoff ordered Pearson, an administrative law judge, to pay clerical court costs of about $1,000 to the defendants. A motion to recover their tens of thousands of dollars in attorney fees will be considered later.



Court bars suit on faith-based plan
Legal Career News | 2007/06/26 11:46

A divided Supreme Court yesterday stopped an atheist group's lawsuit against President Bush's faith-based initiative, ruling that the plaintiffs do not have standing in the case and thus enabling Bush to continue a program he created by executive order without congressional approval.

The decision was made on a day when the high court showed its increasingly conservative tilt, approving restrictions on student speech, loosening limits on corporate- and union-paid advertising close to Election Day, and siding with developers in an environmental suit.

All four cases were decided by 5 -to- 4 votes, with both of Bush's picks -- Chief Justice John G. Roberts Jr., who replaced the late William Rehnquist, and Justice Samuel Alito, who was confirmed after Sandra Day O'Connor retired -- siding with the majority. Rehnquist was a solid conservative, while O'Connor was widely viewed as a centrist swing vote.

The decisions show that "President Bush got exactly what he hoped for, a court substantially further to the right," said Tom Goldstein, a Harvard Law School lecturer on Supreme Court litigation who has also argued cases before the high court. If O'Connor were still on the court, he said, all four cases might have been decided differently.

The faith-based case is particularly important, Goldstein said, because it protects Bush's programs from legal challenges and indicates that the court will be "less concerned about keeping church and state separate, so later decisions will be more sympathetic to government's cooperating with religious institutions."

The plaintiffs in the case, including taxpayers from the Freedom From Religion Foundation, had argued that the funding of the White House Office of Faith-Based and Community Initiatives, violated the established separation of church and state, putting the government in the position of steering hundreds of millions of taxpayer dollars to groups with strong religious affiliations. The plaintiffs argued that Bush was spending taxpayer funds to hold conferences at which religious groups were urged to apply for federal grants.

But the Supreme Court, while not ruling directly on the First Amendment church-state issue, found that the taxpayers who sued the government can not do so simply because they pay taxes.

Writing for the majority, Alito said the federal budget is so big "it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm. And if every federal taxpayer could sue to challenge any government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus."

Alito noted that the Supreme Court had previously made an exception under which taxpayers could sue if Congress appropriates funds in a way that violates the separation of church and state. But in this case, Alito wrote, the faith-based initiative funds were "paid for out of general Executive Branch appropriations" and therefore were not directly funded by Congress.



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