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Court to rule on First Amendment exception

The Supreme Court agreed on Monday to consider a plea that it create a new exception to the First Amendment’s free speech clause, to allow the government to make it a crime to sell videotapes or other depictions of animal cruelty.  The Court will do so in U.S. v. Stevens (08-769) – a case involving videotapes of dog fighting. That was one of three cases newly granted review.

The Court also accepted for decision at its next Term starting Oct. 5 a significant new test case on prosecutors’ immunity to damage lawsuits for the way they conduct criminal investigations and then prosecute the cases in court.   In addition, the Court agreed to sort out the kind of pre-trial delays that are not to be counted in deciding whether the right to a speedy trial has been violated.

The prosecutors’ immunity plea came in Pottawattamie County, et al., v. Harrington, et al. (08-1065).  The Court will hear two questions: whether prosecutors are immune if they gather false testimony during an investigation of a crime, and whether they are also immune if they actually present that testimony as evidence at the trial.

The speedy trial case, Bloate v. U.S. (08-728), tests whether the time given to a defense lawyer to prepare pre-trial motions is a type of delay that is excluded from the time within which a trial must begin under the federal Speedy Trial Act of 1974.

The Court took no action on a new attempt to challenge the constitutionality of the sweeping powers Congress gave to the federal government in 2005 to set aside federal, state and local laws that may get in the way of building a 700-mile-long “secure fence” along the U.S.-Mexico border.  The Court turned down the first test, last June. The new case is El Paso County, et al., v. Napolitano (08-751).  The dispute could present the Court with an opportunity to make use of the rare power to strike down a federal law on the theory that Congress had given away too much of its legislative power to the Executive Branch.  That power has not been used for 74 years.

The Court also did not act on a new test case on the standard that federal courts are to use in judging the legality of rates charged for the wholesale purchase of electric power, for re-sale to using customers.  The case is NRG Power Marketing, et al., v. Maine Public Utilities Commission, et al. (08-674).

Among the significant cases the Justices declined to hear was a new challenge to the constitutionality of a jury verdict in a death penalty case, when the jury consulted a Bible during deliberations to help decide on a sentence.  One Texas case on that issue was denied review in October; a new case from that state, Oliver v. Quarterman (08-833), was denied Monday.

The Court also refused to hear a plea that it clarify the amount of proof that investors must produce to show that a decline in the price of stock they bought can be traced to fraud in violation of federal securities law.  The issue was the theory to be used for judging “loss causation” in securities transactions; the case was Gilead Sciences, et al., v. St. Clare, et al. (08-1021).

And the Court turned aside a case involving the major accounting firm of Ernst & Young, seeking clarification on how the Seventh Amendment right to a jury trial in civil cases applies to bankruptcy proceedings. The case was Ernst & Young, et al., v. Bankruptcy Services, Inc. (08-1042).

The new First Amendment case the Justices will be hearing next fall or winter involves the constitutionality of a 1999 federal law, passed by Congress in an attempt to curb animal cruelty.  The en banc Third Circuit Court struck down the law as written, thus barring its use in any case no matter what the specific facts.

Although the law has been in effect for ten years, it was used for the first time to prosecute Robert J. Stevens of Pittsville, Va., for selling videotapes of fighting among dogs of the Pit Bull breed.   He was convicted of three counts of violating the 1999 law, and was sentenced to 37 months in prison.

In nullifying the law, the Circuit Court refused to create a new exception to the First Amendment to apply to portrayals of animal cruelty. It noted that the Supreme Court “last declared an entire category of speech unprotected” by the Amendment in 1982 (in New York v. Ferber, involving child pornography).  The Circuit Court rejected a government argument that the depiction of animal cruelty was analogous to the depiction of child pornography.

In taking the case on to the Supreme Court, the Justice Department argued that the 1999 law is narrow in scope, applying only to a “particularly harmful class of speech,” only when that is done for commercial gain, and only when the particular depiction has “no serious societal value.”

The Department also argued that, even if the law does reach some forms of protected speech, it surely can be validly enforced against other expressions of animal cruelty, so the law should not have been nullified on its face.