Recently in Constitutional Law Category

The Third Circuit has rightly thrown out the $550,000 fine against CBS for the Janet Jackson “costume malfunction” lasting 9/16^th of a second during the 2004 Super Bowl Halftime show. The Court concluded that the FCC's actions in imposing a fine for a fleeting incident were arbitrary and capricious. In its

          The FCC had relied on a single sentence in a 2001 policy statement to justify the single, isolated event as an “indecent standard.” The FCC had written: "even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness.” Judge Sirica found that the term "relatively fleeting" is not the same as one isolated incident to trigger indecency fines, adding: "While an agency’s interpretation of its own precedent is entitled to deference,” . . . deference is inappropriate where the agency’s proffered interpretation is capricious. Until its Golden Globes decision in March of 2004, the FCC’s policy was to exempt fleeting or isolated material from the scope of actionable indecency. Because CBS broadcasted the Halftime Show prior to [the introduction of the fleeting expletive standard] this was the policy in effect when the incident with Jackson and Timberlake occurred."

The Court also refused to hold CBS liable for the independent actions of the performers. The FCC had argued that CBS was vicariously liable under the doctrine of respondeat superior,. The Court would have none of it, holding: "CBS’s actual control over the Halftime Show performances did not extend to all aspects of the performers’ work. The performers, not CBS, provided their own choreography and retained substantial latitude to develop the visual performances that would accompany their songs. . . . [and] but the performers retained discretion to make those choices in the first instance. .  "

Alan Milstein

Here is the Supreme Court’s Opinion in Exxon v. Baker. The Court held that a punitive damage award three times the amount of compensatory damages was excessive, even to punish one of the world’s largest corporations for one of the worst and most egregious environmental disasters in history.

Alan Milstein

Here is the Supreme Court’s misfire on the Second Amendment. The Court held that a municipality such as the nation’s capital with a murder rate that is a national embarrassment cannot prohibit the purchase of handguns. Talk about blind justice. This is a Court that cares more about the rights of gun owners than victims of gun violence.

Alan Milstein

As hundreds of gay couples headed to California to take advantage of  a state declared right to be lawfully wedded, its impact could be felt in a rather unusual forum. The self-confessed mastermind of  the September 11th attacks appeared before a military tribunal last week and asked to be given the death penalty so he could become a “martyr.” Khalid Sheikh Mohammed told Col Ralph Kohlmann, a US military judge, that death was "my wish . . . I am looking to be martyred for a long time. I fought against the Russians [in Afghanistan] for a long time. Now it is maybe from you."

The Pakistan-born Kuwaiti also sang verses from the Koran, denounced the court at the US naval base in Guantanamo Bay, Cuba, as an inquisition and said he would represent himself.

"I will not accept any lawyer if they swear allegiance to the American constitution,” he said.  Why is he so opposed to the Constitution? For this, he had an answer that should sit rather uncomfortably at places like Fox News and the Family Research Council. “I am considering the American constitution evil laws in allowing for same sex marriage and many things that are very bad," he said.

If he thinks it’s bad you know its good.

Alan Milstein

Here is the Supreme Court Opinion in Meacham v. Knolls Atomic Power Laboratory. In a 7 to 1 decision, the Supreme Court, whose ages range fom 53 to 87, made it easier for employees to prove they have suffered discrimination because of their age. The Court held that when older workers are disproportionately affected by an employment decision, the employer bears the burden of explaining why.

          The case involved two dozen workers at an upstate New York federal research laboratory. When the federal government ordered the contractor that runs the lab to reduce its force, the contractor had its managers rate their subordinates on “performance,” “flexibility,” and “critical skills.” The contractor then fired thirty-one employees, all but one over 40, the age at which the age-discrimination law begins to apply. Most of the affected employees joined a suit contending there was no justification for using an evaluation system that had a disparate impact on older workers.

Justice Souter wrote that the ruling might "make it harder and costlier to defend" age discrimination lawsuits, but, with respect to the federal Age Discrimination Act,  "We have to read it the way Congress wrote it."

Alan Milstein

California's supreme court ruled that a ban on gay marriage was unconstitutional.

The seven-member panel voted 4-3 in favor of plaintiffs who argued that restricting marriage to men and women was discriminatory.

The court said "... limiting the designation of marriage to a union 'between a man and a woman' is unconstitutional and must be stricken from the statute.”

Before Thursday only one other state , Massachusetts , allowed gay marriage.  California, New Jersey and Vermont, however,  have legislation which grants same-sex partners many of the same legal rights as married couples.

Thursday's ruling came after a long-running legal battle that erupted in 2000 when California voters approved a law declaring that only marriages between men and women could be legally recognized.

John M. Hanamirian

The Supreme Court issued its anxiously awaited

          This opinion simply ignores the history in this country, including recent history in the last two presidential elections, of state authorized attempts to discourage minorities from voting. As the well reasoned dissent of Justice Souter makes clear, Indian’s law “poses nontrivial burdens on the voting rights of tens of thousands of the State’s citizens.” Republicans were quick to applaud the Court’s opinion and Democrats to condemn it. One day, hopefully, both parties will encourage attempts to make it easy for all Americans to vote and resist attempts to place burdens in the path of the democratic process.

Alan Milstein

A grizzly bear featured in the recent Will Ferrell film "Semi-Pro" and touted as one of the "best trained" in show business has killed its handler. Officials familiar with the incident said on Wednesday they were puzzled by what provoked the attack. Yes, what would provoke a 700 pound bear filming a television commercial to attack?

The bear, which stands 7 1/2 feet tall, bit the handler in the neck on Tuesday at a facility where wild animals are trained for film and TV productions. How about we don't do that anymore.  We do not need live animals in movies or for any entertainment purpose. To fit into the law blog, let's call this Animal Rights.

John M. Hanamirian

In a remarkable opinion, the Second Circuit decided Christine Todd Whitman was immune from personal liability when, as Secretary of the Environmental Protection Agency,  she gave false assurances about the air quality in and around Ground Zero following the attacks on September 11. The court in Benzman v. Whitman, 06-1166 (2^nd Cir., April 22, 2008),  rejected the claim that Whitman could be held liable for injuries sustained by nearby residents and workers who relied on her representations that it was safe to return to or stay in the area when the EPA knew, but did not disclose, that the air around Ground Zero had dangerous levels of toxins and carcinogens.

The plaintiffs argued that Whitman’s statements were not just reflective of “deliberate indifference,” the constitutional standard addressed in prior cases, but were “intentional lies.” The court concluded: “We understand the Plaintiffs’ concern, supported in substantial part by the report of the EPA’s own Inspector General, that the agency’s performance in discharging its responsibilities in the aftermath of the 9/11 attacks, which involved an attack on America’s largest city unprecedented in our history, was flawed. But legal remedies are not always available for every instance of arguably deficient governmental performance.”

Not always for ever instance, but should be if the allegations in this case are accurate. 

Alan Milstein

Yes, the Department of Justice announced the creation of a national "tax defier" or TAXDEF (it's the government, there has to be an acronym) inititative the purpose of which is "to reaffirm and reinvigorate the Tax Division's committment to investigate, pursue and prosecute those who take concrete action to defy and deny the fundamental validity of the tax laws". Apparently, the term "tax protestor" is now out of favor due to the potential it had for representing some "noble effort" says Assistant Attorney General Nathan J. Hochman. Hochman further stated:

"These folks link themselves to so-called patriotism, but at the end of the day, all it is about for them is their greedy self-interest." This TAXDEF initiative should send an unequivocal message to honest taxpayers that, to the extent any of their neighbors on their right or on their left engage in tax defier conduct, their neighbors will go to bed knowing that tomorrow may be the day when their crime will be prosecuted to the fullest".

I don't even know where to begin. Okay, first the TAXDEF or Defier Intitiative is obviously a response to Mr Snipes' acquitttal of the felony offenses for which he was charged. Second, I quoted Hochman because if I hadn't, some would have said something was lost in the translation. I actually checked the announcement date to see if it was April 1, but it was April 8. 

Let's make this deal. How about next time you lose a case where a major motion picture actor admits his crimes in a 500 page written statement and there is a website that details how the crimes were committed, we don't thereafter spend tens of millions of dollars on nonsensical deterrence efforts. Next time, just spend the money to prosecute the case. Then, just then, my neighbors might sleep. 

John M. Hanamirian