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Today in the Community: January 9, 2012

This week we discuss the regulation of broadcast and other media.

On Tuesday the Court will hear oral arguments in Federal Communications Commission v. Fox Television Stations. The Court will consider whether the wording of the FCC’s policy banning “fleeting” indecency – including the “s-word”, the “f-word”, and images of nudity – is unconstitutionally vague.

Today’s topic is: Should the FCC have the power to regulate broadcast media, or have changes in the media landscape (such as the Internet) made the distinction between broadcast and other media irrelevant? Relatedly, should the Court overrule FCC v. Pacifica?
Some great comments on the Texas redistricting cases follow the jump

Kal Renzi 1

This case provides an ugly mechanism for an overall repeal of S5. The South Carolina voter ID case provides a much stronger argument given Marion v Crawford County rejecting the bulk of Holder’s arguments.

In any case, a couple things are in my view likely.

1. Plaintiffs here argue that TX-25 is a S5 covered district while conceding that is is NOT a S2 covered district. San Antonio court sided with the plaintiffs here in the interim map by giving them their desired TX-25. Likely outcome here is that Justice Kennedy will declare that S5 cannot be a stronger standard than S2, ie, no non S2 district can be subject to a S5 claim.

2. Neutral state rules and policies will be given more deference. The San Antonio court openly and explicitly violated the Texas Whole County provision in Nueces County, again, at the request of the plaintiffs. Similarly, the state made a decision that Nueces County will stay whole in its congressional map and that should be respected.

The Court *might* do these things.

3. The current S5 procedure uses a ‘backwards’ burden of proof that puts the onus on the state to make its case for its districts. This could possibly be flipped to put the burden of proof on the DOJ/plaintiffs.

J.B. Howard

I’m not sure which way this cuts, but it is worth noting that two days after the Texas redistricting argument, the Court will hear argument in Coleman v. Maryland Court of Appeals, which will revisit the scope of the enforcement power under Section 5 of the 14th Amendment. As the Court has noted in the City of Boerne line of cases, the 14th Amendment, Section 5 power is virtually identical to the 15th Amendment, Section 2 enforcement power.

The question in Coleman is whether Congress validly exercised its power under Section 5 of the 14th amendment when it purported to abrogate State sovereign immunity from damages claims under the “self-care” provision of the Family and Medical Leave Act. In Nevada v. Hibbs, the Court held that the family-care provision was a valid abrogation because it responded to unconstitutional conduct rooted in gender stereotypes. Self-care/sick leave arguably does not implicate those stereotypes, and the record of unconstitutional state conduct in this area is, at best, thin.

The Roberts Court hasn’t yet weighed in on the City of Boerne “congruence and proportionality” test of the scope of congressional power under Section 5 of the 14th Amendment. As NAMUDNO indicates, that will be the applicable test if and when the Court reaches the constitutionality of the VRA.

Jim King – 1 Promoted Comment

Even though the merits of Texas’ maps are not before the court, I think Justice Kennedy may be swayed toward Texas’ position by what has happened since his opinion in LULAC v. Perry where he was the swing vote in deciding that CD 23 needed to be redrawn to create a Hispanic opportunity district. At that time, Texas had reduced CD 23 below 50% HCVAP and Kennedy saw this as a clear violation. The district was redrawn to raise the HCVAP above 50% and it did indeed elect a Latino Democrat in 2006 and 2008. But much to the chagrin of the Democratic Party, it elected a Latino Republican in 2010. In 2011, the state’s map further increased Hispanic CVAP in comparison to the 2006 benchmark. But that wasn’t good enough for DOJ, the plaintiffs, or the District Court because, apparently, many of the Hispanics in CD 23 aren’t voting often enough, or when they do, they’re voting for a Latino from the “wrong” party. That CD 23 was redrawn in 2006 but nonetheless evolved into a swing district capable of electing a Latino Republican in 2010 is not unlike school desegregation cases where district boundaries and other factors were adjusted by the courts to correct illegal segregation, but population changes eventually resulted in re-segregation. Justice Kennedy addressed this situation in his concurrence in Parents Involved in Community Schools v. Seattle School District No. 1 where he wrote “Where there has been de jure segregation, there is a cognizable legal wrong, and the courts and legislatures have broad power to remedy it. The remedy, though, was limited in time and limited to the wrong.” The remedy in 2006 for CD 23 was to raise the HCVAP above 50%, and the state has now further increased the district’s HCVAP to a robust 58.5%. This is a significant level because the 50% mark appears to hold some significance for Justice Kennedy. His opinion in Bartlett v. Strickland said “Mandatory recognition of claims in which success for a minority depends upon crossover majority voters would create serious tension with the third Gingles requirement…”. It follows that if success for racial minority voters cannot depend upon “white majority” crossover voters, surely it cannot similarly depend upon the votes of “white minority” voters in a district that is 58.5% Hispanic. CD 23 is discussed in Texas’ reply brief, and I think the situation there will cause Justice Kennedy to look askance at the underlying legal proceedings that have slowed recognition of Texas’ maps. That may be enough for him to decide to agree with the state’s position that the lesser harm is to use Texas’ maps for one election cycle pending the outcome of the San Antonio and DC lawsuits.

Recommended Citation: Kali Borkoski, Today in the Community: January 9, 2012, SCOTUSblog (Jan. 9, 2012, 8:24 AM),