UPDATED 3:25 p.m.

The Supreme Court agreed Monday to rule on the constitutionality of life prison terms without a chance for release for juveniles who commit crimes other than murder in their teen years.  The issue arises in two cases from Florida — one involving a 13-year-old, the other a 17-year-old.

In a separate order, the Court sent the famous “wardrobe malfunction” case — a TV broadcast of a performance in which a woman singer’s breast was exposed briefly — back to a federal appeals court for another review.  The case, involving the validity of a $550,000 fine of CBS-TV for the incident, returns to the Third Circuit Court, to consider the impact of the Justices’ ruling last week on government policy to ban fleeting expletives on radio and TV.  The returned case is Federal Communications Commission v. CBS Corp., et al. (08-653). The expletives ruling was in FCC v. Fox Television (07-582).

The Court’s agreement to rule on juveniles’ sentencing came in Sullivan v. Florida (08-7412) and Graham v. Florida (08-7621).  The order did not consolidate the cases, so presumably they will be heard separately, but one after the other; the oral arguments will be held in the Term starting Oct. 5.

The Court also granted review of two other cases: a test of a city’s right to sue under federal anti-racketeering law for a failure to pay city taxes (Hemi Group, et al., v. New York City, 08-969), and a state legislature’s power to bar federal courts from ruling on class action cases that are based on state law claims (Shady Grove Orthopedic Association v. Allstate Insurance, 08-1008).

The Court took no action, after its third examination of the case, on a constitutional challenge to a 2005 federal law giving a Cabinet officer wide authority to suspend federal, state or local laws that may get in the way of building a 700-mile-long “secure fence” along the U.S-Mexico border. The case is El Paso County, et al, v. Napolitano (Homeland Security Secretary), 08-751.  The Court presumably will look at the case again at its next Conference, on May 14.

The “wardrobe malfunction” label has been applied somewhat inaccurately to the CBS-TV case, since the FCC apparently believed that the exposure of performer Janet Jackson’s breast during the halftime show of a Super Bowl pro football game was not an accident.  Those preparing the show, the FCC found, had indicated they wanted to “push the envelope of propriety.”  CBS-TV disclaims any knowledge of a planned pulling away of the cup covering the performer’s breast, but the FCC expressed doubts about that.

By returning the case to the Third Circuit to reconsider, however, the Supreme Court was by no means mandating that the final outcome had to be restoration of the $550,000 fine that the FCC levied on the TV network.  The network still has an array of legal arguments, including not only its lack of knowledge that the incident would occur, but also its claim — not addressed in the case up to now — that the FCC’s flat ban on “fleeting nudity” violates the First Amendment.

In the “fleeting expletive” case decided last month, the Court had merely found that the FCC had not acted in an arbitrary manner in switching from a policy of banning only repeated uses of four-letter words on radio and TV to banning any single utterance of such a word.  The Third Circuit in the CBS-TV Pro Bowl case had found that the agency did act arbitrarily.  The Circuit Court said the Commission previously had banned only repeated nudity exposures on broadcasts, and switched to banning any isolated nudity. 

When the case returns to the Circuit Court, one of the issues will be whether the Commission ever had a policy of tolerating even fleeting nudity displays.  Presumably, the Circuit Court will reconsider that issue.

There were other significant differences between the FCC’s action on fleeting expletives and fleeting nudity: in the former, it imposed no fine, in the CBS case, it set a fine of $550,000; and, in the former, there was no question of the network’s role in live broadcast of the utterances of four-letter words, but in the CBS case the network’s blame is very much an issue.

In both cases, however, the broadcasters have argued that the bans on fleeting “indecency” were violations of the First Amendment — an issue not resolved in either case, and not decided by the Supreme Court in the fleeting expletive decision.  The Third Circuit will have to face that issue in the CBS case if it were to find in the FCC’s favor on CBS’ liability; the Second Circuit will have to face the isrsue in the Fox TV case when that is returned to it.

Thus, there is as of now no final resolution of radio and TV broadcasters’ liability for either fleeting expletives or fleeting nudity.

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