USLegal Reporter

April 29, 2008

The U.S. Supreme Court has agreed to hear a case that will determine the legality of the Federal Communications Commission’s (FCC) policy that even a single utterance of an obscene word on radio and television broadcasts during daytime and early evening hours may be penalized. It will be the first time in 30 years for the court to rule on the use of expletives on television and radio.

The lawsuit arose when Fox Broadcasting sued the FCC after being reprimanded for the use of vulgar language by Cher and Nicole Richie during televised awards shows in 2002 and 2003. Fox claims the enforcement of the indecency policy is arbitrary and unconstitutional. The reprimand came after the FCC reversed its position in 2004 and said even “fleeting” expletives could subject a network to sanctions.

In June 2007, the U.S. Court of Appeals for the 2nd Circuit in New York found that the FCC’s policy was “arbitrary and capricious” under the Administrative Procedure Act because the commission had “failed to articulate a reasoned basis for its change in policy.” The court also raised questions about its constitutionality under the First Amendment.

In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), involving a monologue by the comedian George Carlin, the Court held that the federal government has the authority to police over-the-air radio and television broadcasts for “patently offensive” material of a sexual or excretory nature from 6 a.m. to 10 p.m., when children are mostly likely to be in the audience. However, Justice John Paul Stevens noted in the decision that “We have not decided that an occasional expletive in either setting would justify any sanction.” It was not until a wardrobe malfunction involving Janet Jackson at the Super Bowl in 2004 that the FCC changed its enforcement policy.

The FCC claims that technology has made it possible for the networks to edit the use of expletives. The networks argue that variants of expletives are used which don’t reference sexual or excretory organs or activities, and that the FCC has exceeded its authority when it issues sanctions for a word that does not convey a sexual message.

Source:

http://www.washingtonpost.com/wp-dyn/content/article/2008/03/17/AR2008031700842.html?sub=new

In a unanimous decision, the New Jersey Supreme Court today ruled that medical doctors do not have to refer to embryos as “existing human beings.”

The case stems from a New Jersey woman who sued a doctor for medical malpractice because she said he failed to inform her at the time of her abortion that the embryo was a “complete, separate, unique and irreplaceable human being.” Rosa Acuna said in her lawsuit that not only was this medical malpractice, but also that the doctor had caused her emotional distress.

In its decision, the New Jersey Supreme Court noted that the instructions Acuna wanted are not part of the norm of the medical profession.

“A physician has a common law duty to provide a woman with material information concerning the medical risks of terminating her pregnancy; however, there is no common law duty requiring a physician to inform a pregnant patient that an embryo is an existing, living human being and that an abortion results in the killing of a family member,” the Court said.

Sources: http://www.judiciary.state.nj.us/opinions/supreme/A-15-06%20Acuna%20v.%20Turkish.pdf,

http://ap.google.com/article/ALeqM5jrs9m50NDTbUyvg4Gy0ZyVfdRedg

South Dakota has enacted a law to ban protests within 1,000 feet of a funeral from one hour before until four hours after the ceremony. The law was passed in response to picketers who appeared at the funerals of U.S. soldiers who died in Iraq. Lawmakers rewote the bill before passage to ensure it would not violate constitutional guarantees of free speech and the right of assembly.

Similar legislation is under consideration in Oklahoma. The Oklahoma bill is partly a response to the protests by the Westboro Baptist Church at the funeral of fallen soldiers. The church claims that the deaths of U.S. soldiers are due to U.S. acceptance of homosexuality.

Source:

http://www.firstamendmentcenter.org/news.aspx?id=16475

A group of farm workers in Bridgeton, New Jersey filed suit today against city officials for charging them to hold an immigration rights rally. The group held a rally March 1 and received a $2,000 bill from the City of Bridgeton. The bill was reduced to $1,500 which the city said was necessary for police expenses.

The Farmworkers Support Committee had previously held a rally in 2006 and was not charged at that time.

The The American Civil Liberties Union of New Jersey and the Farmworkers Support Committee now claim present fees violate the First Amendment because they amount to a “user’s tax on free speech.”

Source: http://www.forbes.com/feeds/ap/2007/07/09/ap3895872.html

The U.S. Supreme Court on Monday ruled that a student’s message can be restricted when it appears to advocate illegal drug use. Joseph Frederick, a high school student from Alaska, was suspended from school after displaying a 14 foot banner that read “Bong Hits 4 Jesus.”  

Juneau Douglas High School principal Deborah Morse said the banner had no place at a school sanctioned event beacuse it promoted a pro-drug message. Frederick had argued that the message was nonsensical and that the school had violated his First Amendment rights.

The decision was 5-4. The case is Morse v. Frederick, 06-278.

Source: http://www.supremecourtus.gov/opinions/06pdf/06-278.pdf

Following mediation, a settlement has been reached between the City of Round Rock, Texas, the Round Rock School District, and high school students who were issued citations for leaving school to participate in an immigration protest. Students from Stony Point and Round Rock high schools held marches in March 2006 to rally against immigration legislation which had been introduced in Congress.

The students and their families previously filed a federal lawsuit claiming that their civil rights to free speech and to assemble were violated when police officers issued 209 citations for curfew violation or class disruption. Fifty-two of the curfew cases were previously dismissed, and the students pled guilty or no contest in 103 of the curfew or disruption cases. Juries heard two cases, issuing a not-guilty verdict in one and a guilty verdict in another. Of the cases remaining prior to settlement, 40 were pending with not-guilty pleas. The settlement reached on April 12, 2007 applies to the 70 students included in the lawsuit, and officials believe that there are no more open cases. 

As part of the settlement, the city has agreed to drop charges against the students, pay legal fees and remove reference to the incident from the students’ records. The students have agreed to attend a civics education seminar. City officials claim the settlement was entered into in an effort to save the time and expense of a federal lawsuit.

Source: http://www.statesman.com/news/content/news/stories/local/04/14/14settlement.html

2/23/07- Universal Communication Systems, claiming it had been defamed by comments on a message board regarding the value of its stock, sued message board operator Lycos. Dismissal in favor of Internet message board operator Lycos was upheld in 1st Circuit Court, reasoning that 1) Section 230 of the Communications Decency Act grants broad immunity to entities that facilitate the speech of others on the Internet; 2) defendant was a provider of an interactive computer service; 3) the “construct and operation” of the web site which may influence the content of the postings do not remove message board postings from category of “information provided by another information content provider” ; 4) immunity extends beyond publisher liability in defamation law to cover any claim that would treat Lycos “as the publisher;” and 5) Florida anti-dilution statute inapplicable merely by using a company’s trade name to label a message board on which the company is discussed.

Section 230 of the Communications Decency Act provides that “[no] provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” and that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

See: UNIVERSAL COMMUNICATION SYSTEMS v. LYCOS, INC.

Source: http://www.acsblog.org/economic-regulation-employment-federal-court-reaffirms-immunity-of-bloggers-from-suits-brought-against-commenters.html