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Supreme decisions

Law | In the first weeks of a new term, the high court meditates on bad words, Gnostic gambits, dolphin rights, and compulsory union payments

Issue: "Bleeding economy," Oct. 18, 2008

Fourteen: That's how many times the National Right to Work Legal Defense Foundation has argued before the U.S. Supreme Court in its fight to roll back compulsory unionism. They're going at it again in a high court term that, among other battles, pits environmentalism against national security, and defines the limits of free speech.

Fleeting profanity

On Nov. 4 the high court justices will hear arguments in a case prompted by entertainers' apparent affinity for the F-word. In 2002 and 2003, singer-actress Cher and actress Nicole Richie each used variations of the word in separate broadcasts of the Billboard Music Awards. In 2003, U2 lead singer Bono dropped an F-bomb during the Golden Globe Awards broadcast on NBC. Following the Bono offense, the FCC in 2004 declared that it would treat as illegal even a single use of particular profanities.

Fox Television, joined by other broadcasters, filed suit. Television executives argued that they have a First Amendment right to broadcast "fleeting profanity," and also that the FCC's regulatory move was "arbitrary" and "capricious." The 2nd Circuit appeals court agreed with the second argument. And though they did not affirm a First Amendment right to broad-casting fleeting profanity, the justices did suggest in their ruling that the FCC's prohibition, as written, would not survive a higher First Amendment challenge.

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"This is a skirmish in the general culture war over public decency and the degradation of the media," said Walter Weber, senior litigation counsel for the American Center for Law and Justice, which filed an amicus brief in the case. "The FCC was responding to the expansion of crudity during supposedly child-safe viewing hours by drawing a line at certain profanities, and saying, 'You can't use these words, even once.'"

Oral argument in the case will take place on Election Day, political timing Weber said may prove significant. If Barack Obama is elected president, he will be able to install his own, pre-sumably more liberal, people at the FCC. "If the broadcasters can win this skirmish [on public decency]," Weber said, "they may win the war for the foreseeable future."

Gnostic monuments

On Nov. 12, the court will hear arguments in Pleasant Grove City, Utah v. Summum, yet another riff on the issue of Ten Commandments monuments. At the core of the case is the question of whether monuments on public property constitute government speech or private speech.

Summum, a Salt Lake group begun in 1975 that claims to hold to the teachings of Gnostic Christianity, contends they are the latter. And since Pleasant Grove City officials approved a Ten Commandments display in a public park, Summum says it has a First Amendment right to erect a monument to its "Seven Aphorisms." The group claims these sayings-involving, among other things, "psychokinesis," "rhythm," "vibration," and "gender"-predate the Ten Commandments: Summum asserts its aphorisms were on the first two stone tablets Moses brought down from Mt. Sinai and broke in anger.

The American Center for Law and Justice (ACLJ), which is defending Pleasant Grove, argues that public-property monuments are government speech. "The basic question is whether a city gets to decide which permanent, unattended monuments, if any, to install on city property," the ACLJ argued in a brief to the high court. "The answer is 'Yes.'"

A federal district court agreed, but the 10th Circuit appeals court reversed that ruling. It's not an easy case: If a monument is government speech, First Amendment concerns about "establishment" of religion kick in; if it's private speech, the door is open for tax-funded parks and other forums to be filled with displays and counter-displays erected by anybody with money and a beef.

Summum's argument is clever. Kelly Shackelford, chief counsel for Liberty Legal Institute, a Texas public-interest law firm that filed a friend of court brief in the case, noted that municipalities are more likely to remove a Ten Commandments monument than to allow construction of monuments not related to city or national heritage. Shackelford said Summum is "trying to destroy the mechanism cities use to honor that part of American history."

Dolphins v. America

At issue is whether the U.S. Navy must limit its use of high-powered sonar off the Southern California coast. A coalition of environmental groups in 2007 filed suit, claiming sonar emissions used during submarine training exercises were harming marine mammals. U.S. district judge Florence-Marie Cooper ruled the Navy, in not preparing an environmental impact report, had violated federal law. Cooper issued an injunction, saying sonar could not be used within 12 miles of the coast, or when marine mammals come within 2,200 yards of a ship. But President Bush intervened and signed a waiver so that training critical to national security could go forward.

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