Supreme Court Report

Sonar, F-Bombs and Public Parks

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The U.S. Supreme Court returns to the bench this month facing an eclectic mix of cases, including whether tel­evision viewers must tolerate the F-word on live broadcasts, whether whales can tolerate the Navy’s use of sonar, and whether public parks that include the Ten Command­ments must make room for the 1970s-vintage “Seven Aphorisms of Summum.”

On the liability front, the court will decide whether drug companies and the makers of “light” cigarettes are shielded from being sued. And as the Bush administration pre­pares to leave office, the court will consider whether ex-Attorney General John Ashcroft can be sued for alleged­ly ordering a roundup of Muslim immigrants in the aftermath of the Sept. 11 attacks.


The new term looks to be busier than those of recent years. Before going on recess for the summer, the court granted review in 43 cases, enough to fill the argument calendar into January. Oral arguments were scheduled for three cases a day during the fall, rather than two, which had become the norm.

Chief Justice John G. Roberts Jr. said he and his colleagues would prefer to front-load the term’s cases so more are heard in the fall and fewer are set for March and April. The notion is that the justices can do better work with more time to complete each of their opinions. While the court may have more cases this term, it may be lacking an attention-grabbing culture-wars clash on race, religion, guns, gays or abortion.

It has been 30 years since the justices last ruled on the indecency standards for broadcasters. Then, a mid-day radio broadcast of the late George Carlin’s “Filthy Words” monologue defined indecent language in the view of both the Federal Communications Com­mission and the court. In the landmark 1978 case FCC v. Pacifica Foundation, the court said the FCC had the authority to prohibit such broadcasts during hours when children were likely to be listening and gave the FCC broad leeway to determine what constituted indecency.

Much has changed since then. Many Americans no longer rely on the public airwaves to receive TV signals in their homes, and off-color language would not surprise viewers of many cable channels.

But the FCC is still charged with policing indecency on the airwaves, and two years ago the commission decided to crack down on “fleeting expletives” that were heard on live broadcasts. Hollywood awards shows appeared to be the prime culprits, and a wave of complaints hit the FCC after several shows. “This is really, really f—–g brilliant,” singer Bono said in 2003 on NBC after winning a Golden Globe Award. A few months later, Janet Jackson’s fa­mous “ward­robe malfunction” occurred during a halftime show at the Super Bowl, and CBS was hit with a $500,000 fine.

That fine is not directly before the court, but in FCC v. Fox Television the justices will consider whether the commission acted arbitrarily—and perhaps in violation of the First Amendment—when it came down hard on the networks. The broadcasters stress they have a firm policy against the use of expletives on the air. They insist they try to bleep out expletives, but they also say the networks should not face large fines if a guest or performer utters the banned words during a live broadcast.

The case of Pleasant Grove City v. Summum poses an unusual test of the First Amendment and freedom of speech. The Utah city’s Pioneer Park has a number of monuments and displays, including a Ten Commandments monument that had been donated by the Fraternal Order of Eagles.

Several years ago, city officials received a letter from Summum, a church founded in 1975 by Claude “Corky” Nowell, seeking permission to erect a similar monument with its seven aphorisms. They are the “principles of psychokinesis, correspondence, vibration, opposition, rhythm, cause and effect, and gender.”

When the city refused, Summum sued and won a ruling from the 10th U.S. Circuit Court of Appeals at Denver. The judges reasoned that if a city allows speakers in a public park, it cannot exclude some based on the content of their speech. In their appeal, the city’s lawyers say a monument becomes the city’s property, and it does not come with an obli­gation to add an opposite message. Otherwise, said acting U.S. Solicitor General Gregory Garre, every public park with a statue of Abraham Lincoln would be obliged upon request to include a like statue of Jefferson Davis.

The case of Wyeth v. Levine could reshape liability law for the phar­maceutical industry. Last term, the court shielded the makers of medical devices from most lawsuits in Riegel v. Medtronic Inc. (PDF). The 1976 Medical Device Amendments said states may not enforce any requirement that went beyond the federal standards; the justices said this pre-emption provision included common-law suits.

The Food, Drug and Cosmetic Act does not have a similar provision, but the industry’s lawyers say the same principle applies. Lawsuits in state courts can set duties of care for the drugmaker that conflict with the federally approved warning label, they say. Plaintiff Diana Levine had part of her right hand and forearm amputated after an anti-nausea drug, Phenergan, was wrongly injected into an artery. The FDA-approved label urged “extreme care” to avoid injecting the drug into an artery. Levine said Wyeth should have warned nurses and doctors against injecting this drug under any circumstances, and she won a $6.8 million verdict in a Vermont court.


The pre-emption defense is also at issue in Altria Group v. Good, the case about cigarettes. Federal law has set warning labels for cigarettes since the 1960s. In recent years, the tobacco companies have been hit with a second wave of lawsuits from smokers who say they were deceived by claims suggesting so-called light cigarettes were safer because they had less tar and nicotine.

Washington, D.C., lawyer Ted Olson of Gibson Dunn & Crutcher, representing Altria and its Philip Morris division, argues that all these suits should be thrown out because they rely on a common-law standard that goes beyond the required federal warnings.

Later in the term, Altria and Philip Morris will be back before the court again, seeking in Philip Morris USA Inc. v. Williams to have an $80 million punitive damages award overturned. Last year, the justices said the award to a single plaintiff was unconstitutional because it was calculated based on the harm allegedly suffered by thousands of other smokers. But earlier this year, the Oregon Supreme Court reinstated the full award based on other grounds.

The case of Ashcroft v. Iqbal asks whether high-level officials of the Bush administration are shielded from being sued by Muslim men who say they were jailed and abused after the 9/11 attacks. A fed­eral judge in Brooklyn and the 2nd Circuit in Manhattan allowed Javaid Iqbal to proceed with his suit against the former attorney general and FBI Director Robert Mueller.

Iqbal alleged he was mistreated because of his religion and national origin, and he maintained that Ash­croft and Mueller bear responsibility for this constitutional violation. The solicitor general said the attorney general and the FBI director are immune.

National security is also the backdrop to the case of Winter v. Natural Resources Defense Council, albeit in a different context. The Navy conducts training exercises off the coast of California, and sailors use sonar at frequencies allowing them to detect quiet-running submarines.

But some studies have said these sound waves disturb and, in some instances, may kill whales and other marine mammals. Lawyers for the NRDC in Santa Monica sued, and a judge in Los Angeles ordered the Navy to turn off the sonar when marine mammals are spotted within a mile of the ship. In their appeal, the government’s lawyers say military preparedness outweighs environmental concerns, and the judge’s order should be set aside.

David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.

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