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Courtesy of Utah Highway Patrol Association

Decided on appeal

Law | Circuit court panels issue what could become far-reaching rulings

Issue: "On the rails," Oct. 9, 2010

Supreme Court decisions make headlines, but decisions at the level just below (which are rarely overturned) often go unreported. Here are three:

10th Circuit Court of Appeals: Roadside crosses are unconstitutional

White crosses pepper roadsides across the country, memorializing those who died in car accidents. Their presence needs no explanation. The Utah Highway Patrol Association (UHPA), a private entity, honors fallen state troopers with 12-foot white crosses bearing the trooper's name, badge number, and the patrol's beehive logo. UHPA chose the cross symbol because, when placed on a roadside, it simultaneously conveys messages of death, remembrance, honor, gratitude, sacrifice, and safety.

American Atheists, Inc., a Texas-based nonprofit, sued the UHPA, claiming the crosses represent state endorsement of Christianity in violation of the Establishment Clause. Because the crosses stand on government property, they constitute government endorsement of Christianity, the group said. UHPA's response emphasized the roadside location: A cross atop the state capitol is an endorsement; a roadside cross honoring the deceased is not.

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The U.S. 10th Circuit Court of Appeals agreed with the American Atheists, finding a passerby would reasonably believe Utah's state troopers extend preferential treatment to Christians. Appeal to the U.S. Supreme Court is likely, but the crosses will stand until all appeals are exhausted.

Federal Circuit Court of Appeals: No link between vaccines and autism

Born Aug. 30, 1994, Michelle Cedillo was a normal, healthy baby. At 15 months, she received a measles vaccination, as do most American infants. Within days, Michelle developed symptoms of autism and other disabilities. Today, at age 16, Michelle is confined to a wheelchair, diapers, feeding tubes, and struggles with hand signals and tapping as the sole means of communication to her family.

The Cedillos and over 5,500 other families filed claims against the U.S. Department of Health and Human Services alleging a mercury-based vaccine preservative, thimerosal, caused the children to develop autism and other related diseases. The claims seek compensation under the federal Vaccine Injury Compensation Program, which shields vaccine companies from direct liability and instead allows the federal government to assess each claim and determine whether the vaccine caused the injury. Court-appointed attorneys, serving as "special masters," act as judge and jury of each case.

Last year the special master for Michelle's case found the evidence too unreliable, weak, and contradictory to establish causation. Michelle's attorneys appealed to the U.S. Federal Circuit Court of Appeals, but on Aug. 27 the three-judge panel unanimously agreed with the special master. Autism advocacy groups speak of a conflict of interest when government lawyers represent government-backed vaccination programs in hearings overseen by government-appointed judges. Nevertheless, absent new scientific findings, this decision sheds light on the outcome of the thousands of pending vaccine cases.

9th Circuit Court of Appeals: Lies are free speech

California water board member Xavier Alvarez purportedly had a colorful past: hockey player, heroic Iranian hostage rescuer of the American ambassador, secretly wed to a Mexican starlet. Such fables eventually caught up with him. Recently elected, Alvarez introduced himself at a water board meeting as a retired marine and recipient of the Medal of Honor. It was a lie. The Stolen Valor Act of 2005 makes it a federal crime to lie about military service or military honors. Alvarez is the first person to be charged and convicted under the Act.

Despite pleading guilty, Alvarez challenged the Act's constitutionality, claiming it infringes upon his First Amendment free speech rights. The 9th U.S. Circuit Court of Appeals agreed and overturned the Stolen Valor Act. The majority with sweeping rhetoric seemed to establish any lie as protected First Amendment speech. If lying about receiving the Medal of Honor is a crime, the Court reasoned, many other lies may also be criminalized. In a spirited dissent, one judge argued that the Act was not unconstitutional because it is limited to a specific context-to preserve respect for true American heroes and to penalize "false, self-aggrandizing statements by public servants."
Lauren Sneed is a lawyer living in Austin, Texas.

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