Archives for January 2012

Billy Corriher

In a case that does not bode well for Section 5 of the Civil Rights Act, last week the Supreme Court unanimously threw out a federal judge’s redistricting map for the state of Texas. The Court’s per curiam opinion, released on Friday, said the judge failed to show enough deference to the Texas legislature’s map, which is still awaiting preclearance from a federal court in D.C. Like other states with a history of racial discrimination in voting, Texas is required by Section 5 of the Civil Rights Act to obtain “preclearance” for voting changes from the U.S. Department of Justice or the D.C. court. These states must demonstrate that the changes do not result in “denying or abridging the right to vote on account of race or color.”

While preclearance was pending, civil rights groups asked a court to rule the legislature’s map unconstitutional, arguing that it discriminated against Latino voters. The plaintiffs asserted that, even though Latinos accounted for 3/4 of the state’s population growth in the past decade, the legislature’s map would dilute Latinos’ voting power. The Texas judge delayed judgment, pending the results of preclearance. But as the state’s primary election approached, the judge drew up an alternate map. (The Supreme Court has said states covered by Section 5 cannot hold elections with new maps until they are precleared.) The Texas court said it drew an “independent map” based on “neutral principles.” [Read more…] about High court rejects Texas judge’s redistricting map

Yevgeny Shrago

While the Internet came together on Wednesday to protest Congressional consideration of the Stop Online Piracy Act in a recognition by citizens that intellectual property infrastructure matters, the Supreme Court struck a quieter, if still devastating blow against an open, vibrant public discourse in its latest IP opinion, Golan v. Holder.  While Golan seems to deal with a totally esoteric question involving treaty law, First Amendment rights and the historical understanding of the Copyright Clause, the ultimate upshot is that the Constitution provides basically no protections for the public domain.

Golan deals with the enforcement of the principal international copyright treaty, the Berne Convention.  The United States did not join the Convention until 1989 and therefore, many foreign works that were copyright protected in Berne signatories were in the United States public domain.  In 1994, the United States, under threat of WTO sanction, granted copyrights on all these works. Naturally, artists that had been using those works (such as orchestras), protested and brought suit, alleging that the Berne Convention violated the Copyright Clause and the First Amendment. After years of litigation, including a victory on First Amendment grounds in the Tenth Circuit, the case finally reached the Supreme Court, which reversed and upheld the United States government on all grounds. [Read more…] about Congress is master of the public domain

Peter Dunne

2012 is shaping up to be a bumper year for Presidential politics.

While the GOP candidates fight it out for their party’s nomination on this side of the Atlantic, the race to become France’s next President is just beginning to heat up.

As in the United States, the campaign appears to present two competing views of what society ought to be – lining up neatly along the traditional philosophies of Left and Right.

In one corner, there is the pro-business, Nicolas Sarkozy – the current office holder. He came to power in 2007, riding a wave of renewed optimism and promising to rewrite France’s social contract. Almost from the start, his tenure has been dogged by personal and political controversy – from his much-publicized romance with Carli Bruni, to the dealings of his close associates with L’Oreal heiress, Lilianne Bettencourt. [Read more…] about Presidential Politics in 2012 – Sarkozy vs. Hollande

Anne King

Last week the Supreme Court decided Hosanna-Tabor Evangelical Church and School v. EEOC, recognizing a ministerial exception to the Americans with Disabilities Act’s anti-retaliation provision under the First Amendment. The Court also held that the ministerial exception applied to Cheryl Perich, a teacher at a church-based school who threatened to bring an ADA claim.

The ADA and other workers’ rights statutes prohibit employer retaliation against an employee for protected activity, such as filing a discrimination claim. Normally, a retaliation case involves a pretext analysis, because the employer rarely admits that retaliation was the reason for an adverse employment action. Instead, an employer might cite performance, or perhaps insubordination, and the employee has to show that protected activity was the actual motivator. [Read more…] about Hosanna-Tabor and the Court’s Retaliation Decisions

Mark Wilson

Last week, the Supreme Court heard oral arguments in FCC v. Fox, where the Court must decide whether the FCC’s “fleeting” indecency policy, which includes isolated profanity and brief nudity, is unconstitutionally vague. The Second Circuit found that the FCC’s policy, which prohibits “all ‘patently offensive’ references to sex, sexual organs, and excretion,” did not adequately notify broadcasters what content might subject them to fines.

That’s all well and good, but there’s something missing from this discussion. One major omission in the Supreme Court’s “indecency” jurisprudence, famously described in FCC v. Pacifica Foundation, is that it deals almost exclusively with sexual indecency. Indeed, the Court’s non-broadcast-television obscenity standard leaves out any mention of non-sexual conduct. Obscenity, defined by Miller v. California, requires that the work in question appeal to the “prurient interest” (characterized by lustful thoughts) and describe “sexual conduct or excretory functions.” As far as the Supreme Court is concerned, a little bit of the ultra-violence does not fall outside the protections of the First Amendment. [Read more…] about Indecency, Hypocrisy, and Dennis Franz’s Bottom