Supreme Court rules on government Ten Commandments, other cases

[lawyerlee]

Supreme Court rules on government Ten Commandments displays (http://www.cnn.com/2005/LAW/06/27/scotus.commandments.ap/index.html)

WASHINGTON (AP) -- A sharply divided Supreme Court on Monday upheld the constitutionality of displaying the Ten Commandments on government land, but drew the line on displays inside courthouses, saying they violated the doctrine of separation of church and state.

Sending dual signals in ruling on this issue for the first time in a quarter-century, the high court said that displays of the Ten Commandments -- like in their own courtroom frieze -- are not inherently unconstitutional. But each exhibit demands scrutiny to determine whether it goes too far in amounting to a governmental promotion of religion, the court said in a case involving Kentucky courthouse exhibits.

In effect, the court said it was taking the position that issues of Ten Commandments displays in courthouses should be resolved on a case-by-case basis.

In that 5-4 ruling and another decision involving the positioning of a 6-foot granite monument of the Ten Commandments on the grounds of the Texas capitol, Justice Sandra Day O'Connor was the swing vote. The second ruling, likewise, was by a 5-4 margin.

Justice Antonin Scalia released a stinging dissent in the courthouse case, declaring, "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle."

The justices voting on the prevailing side in the Kentucky case left themselves legal wiggle room, saying that some displays inside courthouses would be permissible if they're portrayed neutrally in order to honor the nation's legal history.

But framed copies in two Kentucky courthouses went too far in endorsing religion, the court held. Those courthouse displays are unconstitutional, the justices said, because their religious content is overemphasized.

In contrast, a 6-foot-granite monument on the grounds of the Texas Capitol -- one of 17 historical displays on the 22-acre lot -- was determined to be a legitimate tribute to the nation's legal and religious history.

"Of course, the Ten Commandments are religious -- they were so viewed at their inception and so remain. The monument therefore has religious significance," Chief Justice William H. Rehnquist wrote for the majority in the case involving the display outside the state capitol of Texas.

"Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment clause," he said.

Rehnquist was joined in his opinion by Scalia, and justices Anthony Kennedy and Clarence Thomas. Breyer filed a separate opinion concurring in the result.

The rulings were the court's first major statement on the Ten Commandments since 1980, when justices barred their display in public schools. But the high court's split verdict leaves somewhat unsettled the role of religion in American society, a question that has become a flashpoint in U.S. politics.

"While the court correctly rejects the challenge to the Ten Commandments monument on the Texas Capitol grounds, a more fundamental rethinking of our Establishment Clause jurisprudence remains in order," Thomas wrote in a separate opinion.

Dissenting in the Texas case, Justice John Paul Stevens argued the display was an improper government endorsement of religion. Stevens noted in large letters the monument proclaims 'I AM the LORD thy God."'

"The sole function of the monument on the grounds of Texas' State Capitol is to display the full text of once version of the Ten Commandments," Stevens wrote.

"The monument is not a work of art and does not refer to any event in the history of the state," Stevens wrote. "The message transmitted by Texas' chosen display is quite plain: This state endorses the divine code of the Judeo-Christian God."

Justices O'Connor, David H. Souter and Ruth Bader Ginsburg also dissented.

Other cases

Also Monday, the Supreme Court rejected appeals from two journalists who have refused to testify before a grand jury about the leak of an undercover CIA officer's identity.

The cases asked the court to revisit an issue that it last dealt with more than 30 years ago -- whether reporters can be jailed or fined for refusing to identify their sources.

The justices' intervention had been sought by 34 states and many news groups, all arguing that confidentiality is important in news gathering.

Time magazine's Matthew Cooper and The New York Times' Judith Miller, who filed the appeals, face up to 18 months in jail for refusing to reveal sources as part of an investigation into who divulged the name of CIA officer Valerie Plame.

The Supreme Court also Monday overturned a ruling that required cable operators to open up their high-speed Internet lines to rivals. (Full story)

The decision is a big victory for the Federal Communications Commission and major telecommunications companies, including Charter Communications, Time Warner Cable and SBC Communications.

On the losing side are small Internet service providers, including Earthlink, consumer rights groups, and a host of local governments.

At issue in the case, FCC v. Brand X, was whether cable operators should be required under federal law to lease their cable lines to competitors, much the way local phone companies were forced years ago to open up their lines to long-distance phone companies.

[lawyerlee]

I understand why the Court didn't want to take this up on Cert, but I'm still extremely dissapointed.

Supreme Court refuses to hear reporters' appeals (http://www.cnn.com/2005/LAW/06/27/scotus.reporters.ap/)

WASHINGTON (AP) -- The Supreme Court rejected appeals Monday from two journalists who have refused to testify before a grand jury about the leak of an undercover CIA officer's identity.

The cases asked the court to revisit an issue that it last dealt with more than 30 years ago -- whether reporters can be jailed or fined for refusing to identify their sources.

The justices' intervention had been sought by 34 states and many news groups, all arguing that confidentiality is important in news gathering.

"Important information will be lost to the public if journalists cannot reliably promise anonymity to sources," news organizations including The Associated Press told justices in court papers.

Time magazine's Matthew Cooper and The New York Times' Judith Miller, who filed the appeals, face up to 18 months in jail for refusing to reveal sources as part of an investigation into who divulged the name of CIA officer Valerie Plame.

Plame's name was first made public in 2003 by columnist and CNN contributor Robert Novak, who cited unidentified senior Bush administration officials for the information. The column appeared after Plame's husband, former Ambassador Joseph Wilson, wrote a newspaper opinion piece criticizing the Bush administration's claim that Iraq sought uranium in Niger.

Disclosure of an undercover intelligence officer's identity can be a federal crime and a government investigation is in its second year. No charges have been brought.

U.S. Attorney Patrick Fitzgerald of Chicago, the special counsel handling the probe, told justices that the only unfinished business is testimony from Cooper and Miller.

Cooper reported on Plame, while Miller gathered material for an article about the intelligence officer but never wrote a story.

A federal judge held the reporters in contempt last fall, and an appeals court rejected their argument that the First Amendment shielded them from revealing their sources in the federal criminal proceeding.

Every state but Wyoming recognizes reporters' rights to protect their confidential sources of information, justices were told in a brief filed on behalf of 34 states, and without those privileges "reporters in those states would find their newsgathering abilities compromised, and citizens would find themselves far less able to make informed political, social and economic choices."

But Fitzgerald said in his own filing that the federal government is different. "Local jurisdictions do not have responsibility for investigating crimes implicating national security, and reason and experience strongly counsel against adoption of an absolute reporter's privilege in the federal courts," he said.

In the last journalist source case at the Supreme, the 1972 Branzburg v. Hayes, a divided court ruled against Louisville, Kentucky, reporter who had written a story about drug trafficking and was called to testify about it. Justices said that requiring journalists to reveal information to grand juries served a "compelling" state interest and did not violate the First Amendment.

That decision has been interpreted differently and clarification is needed because dozens of reporters around the country have been subpoenaed over the past two years, said Washington lawyer Miguel Estrada, representing Time magazine.

The cases are Miller v. United States, 04-1507, and Cooper v. United States, 04-1508.

[lawyerlee]

High court hands big victory to cable (http://money.cnn.com/2005/06/27/technology/broadband_ruling/index.htm?cnn=yes)

Court overturns ruling requiring cable companies to open up high-speed Internet lines to rivals.

NEW YORK (CNN/Money) - The U.S. Supreme Court on Monday overturned a prior ruling that required cable operators to open up their high-speed Internet lines to rivals.

At issue in the case, FCC v. Brand X,was whether cable operators should be required under federal law to lease their cable lines to competitors, much the way local phone companies were forced years ago to open up their lines to long-distance phone companies.

The justices overturned the U.S. appeals court ruling by a 6-3 vote.

In appealing to the Supreme Court, the government and cable companies argued the U.S. appeals court had not extended the required deference to the FCC's expertise and decision-making process.

Justice Clarence Thomas agreed in the majority opinion that the appeals court had erred.

Justices Antonin Scalia, David Souter and Ruth Bader Ginsburg dissented.

The decision is a big victory for the Federal Communications Commission and major telecommunications companies, including Charter Communications, Time Warner and SBC Communications.

On the losing side are small Internet service providers, including Earthlink, consumer rights groups, and a host of local governments.

The case, which turned on the technical classification of cable modem services under federal communications law, has been described as crucial to the future of competition in the market of high-speed, or broadband, Internet service -- including how fast broadband service becomes available, what features it has, and what it costs consumers.

[lawyerlee]

This is an awful, awful ruling. :mad:

Court: File-Sharing Services May Be Sued (http://news.yahoo.com/s/ap/20050627/ap_on_go_su_co/scotus_file_sharing&printer=1;_ylt=Al1Z9sp4hN.rxLAl8U1zdNBAw_IE;_ylu=X 3oDMTA3MXN1bHE0BHNlYwN0bWE-)

By HOPE YEN, Associated Press Writer 56 minutes ago

Internet file-sharing services will be held responsible if they intend for their customers to use software primarily to swap songs and movies illegally, the Supreme Court ruled Monday, rejecting warnings that the lawsuits will stunt growth of cool tech gadgets such as the next iPod.

The unanimous decision sends the case back to lower court, which had ruled in favor of file-sharing services Grokster Ltd. and StreamCast Networks Inc. on the grounds that the companies couldn't be sued. The justices said there was enough evidence of unlawful intent for the case to go to trial.

File-sharing services shouldn't get a free pass on bad behavior, justices said.

"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties," Justice David H. Souter wrote for the court.

At issue was whether the file-sharing services should be held liable even if they have no direct control over what millions of online users are doing with the software they provide for free. As much as 90 percent of songs and movies copied on the file-sharing networks are downloaded illegally, according to music industry filings.

The entertainment industry said it needed protection against the billions of dollars in revenue they lose to illegal swapping. Consumer groups worried that expanded liability will stifle the technology revolution of the last two decades that brought video cassette recorders, MP3 players and Apple's iPod.

Companies will have to pay music and movie artists for up to billions in losses if they are found to have promoted illegal downloading.

Two lower courts previously sided with Grokster without holding a trial. They each based their decisions on the 1984 Supreme Court ruling that Sony Corp (NYSE:SNE - news). could not be sued over consumers who used its VCRs to make illegal copies of movies.

The lower courts reasoned that, like VCRs, the file-sharing software can be used for "substantial" legal purposes, such as giving away free songs, free software or government documents. They also said the file-sharing services were not legally responsible because they don't have central servers pointing users to copyright material.

But in Monday's ruling, Souter said lower courts could find the file-sharing services responsible by examining factors such as how companies marketed the product or whether they took easily available steps to reduce infringing uses.

"There is substantial evidence in MGM's favor on all elements of inducement," Souter wrote.

In the closely watched case, supporting the effort to sue the companies were dozens of entertainment industry companies, including musicians Don Henley, Sheryl Crow and the Dixie Chicks, as well as attorneys general in 40 states.

About 20 independent recording artists, including musician and producer Brian Eno, rockers Heart and rapper-activist Chuck D, supported the file-sharing technology to allow for greater distribution of their works.

Monday's ruling gives the entertainment industry another legal option to the more costly and less popular route of going directly after millions of online file-swappers believed to distribute songs and movies illegally.

It's unclear how much the decision will actually deter the widespread problem of piracy since software programs created abroad won't be subject to the tougher U.S. copyright laws. Still, analysts say the court's stern rebuke should provide a boost to many file-sharing services that offer legal downloading for a fee.

Industry observers have said a ruling against Grokster could also prompt stiffer enforcement from European regulators, who were watching the case for guidance on tackling copyright questions in their countries.

Recording companies in the United States have already sued thousands of individual users; at least 600 of the cases were eventually settled for roughly $3,000 each.

The case is Metro-Goldwyn-Mayer Studios v. Grokster, 04-480.

[lawyerlee]

Breyer casts decisive vote on religious displays (http://www.msnbc.msn.com/id/8378199/) MSNBC
Justice: Old monuments with Commandments are OK; new displays are not

By Tom Curry
National affairs writer
WASHINGTON - What do the two apparently contradictory decisions on displays of the Ten Commandments announced Monday by the Supreme Court mean for religious expression in America?

In a nutshell, the effect of the court’s two rulings was to say, “Old religious displays are OK; new ones are not.”

By the barest plurality, the court approved historical exhibits of the Ten Commandments on public property, displays that put the Decalogue in “a museum-like setting,” as Texas attorney general Greg Abbott repeatedly described it when the court heard oral arguments in Van Orden v. Perry on March 2.

Perhaps the best way to look at the cases is through the eyes of Justice Stephen Breyer, the swing vote in the Texas case, in which the court by a 5-4 vote allowed the state of Texas to continue displaying on the grounds of the state capitol in Austin a monument with the Ten Commandments engraved on it.

As long as the display is pretty old and as long as almost no one has objected to it over the 40 years it has stood on the capitol grounds, then it passes muster, Breyer said.

How old is old?
He did not answer the question of “how old is old?” In other words, how long would a monument engraved with the Decalogue have to have been displayed — 10 years? 15 years? — in order to achieve protected status?

As a result of Monday’s ruling, religious displays will be allowed on state property under a "grandfather clause," as a respectful nod to the past.

A moral message is permissible, said Breyer, and a display of the Ten Commandments does send one.

But in Breyer’s view — and he is the rule-maker by default because he was the deciding vote in this case — the Texas display "conveys a predominantly secular message" and therefore is permissible.

One important factor for Breyer: The Austin Ten Commandments monument was in a park with other historical monuments around it. “The setting does not readily lend itself to meditation or any other religious activity,” Breyer decided.

Hinting at practical political consequences, Breyer also worried that if the court banned long-standing displays of the Ten Commandments, it might spark public outrage, “the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.”
article continues at above link

This decision seems fairly consistent with past rulings on holiday displays.

[lawyerlee]

Court May Revise Death Row Appeal Rules (http://www.washingtonpost.com/wp-dyn/content/article/2005/06/28/AR2005062800689_pf.html) Washington Post

By Charles Lane
Washington Post Staff Writer
Wednesday, June 29, 2005; A09

The Supreme Court announced yesterday that it will reconsider the rules for permitting appeals by death row inmates who claim they have been wrongly convicted, in the case of a death row inmate who says DNA evidence proves he did not commit the crime of which he was found guilty in 1985.

Separately, just a day after its split rulings on the public display of the Ten Commandments in government buildings, the justices declined to hear four additional cases in which lower courts had struck down displays in public school classrooms, on school property and in an Ohio state judge's courtroom.

The death penalty case, House v. Bell , No. 04-8990, brings the court face to face with an issue that has shadowed the administration of capital punishment in recent years: the possibility that an innocent person could be executed.

Paul G. House is seeking release from Tennessee's death row because of what his appeal petition to the court calls "powerful new evidence of innocence."

He says that DNA tests show that the semen found on murder victim Carolyn Muncey's clothes belonged to her husband, Hubert Muncey, and not to House, as a jury in Union County, Tenn., found 20 years ago.

The issue before the Supreme Court, however, is not whether House is guilty, but how strong his case for innocence must be to win a new hearing in federal court.

The court has never quite said it is unconstitutional to execute an innocent person.

Instead, in a 1993 case, Herrera v. Collins , the court, in a 5 to 4 opinion written by Chief Justice William H. Rehnquist, said that Leonel Torres Herrera had no right to reopen his case 10 years after conviction, based solely on a claim of new proof of innocence. Justices Sandra Day O'Connor and Anthony M. Kennedy joined that opinion with the proviso that they saw little doubt of Herrera's guilt.

In 1995, however, the court ruled 6 to 3 in the case of Schlup v. Delo that a convicted murderer who had other constitutional claims in addition to an actual innocence claim could get a new hearing even after exhausting all otherwise permitted opportunities, if he could show new evidence that makes it probable "no reasonable juror would have found him guilty beyond a reasonable doubt." O'Connor and Kennedy joined that ruling, which was written by Justice John Paul Stevens.

Last year, the full 14-judge U.S. Court of Appeals for the 6th Circuit voted 8 to 6 that House's evidence did not meet this standard.

Citing the 6th Circuit majority opinion, Tennessee said in its Supreme Court brief that the evidence presented by House, "far from demonstrating his actual innocence, was countered and undermined in virtually every respect by opposing evidence presented by the State" during his federal appeal.

The Ten Commandments cases turned down by the court yesterday had been held for consideration until the court finished weighing the display of the commandments in two different public settings -- framed copies on the wall of Kentucky courthouses and a six-foot granite monument on the Texas Capitol grounds in Austin.

The Supreme Court's decision not to hear the cases is not a ruling on their merits, but it strongly suggests that the court feels the lower court rulings were at least consistent with the court's decisions on Monday.

In all four cases the court refused to review the displays were ruled unconstitutional by the U.S. Court of Appeals for the 6th Circuit.

Two cases, Johnson v. Baker , No. 03-1661 and Adams Cty./Ohio Valley School Bd. v. Baker , No. 04-65, involved the placing of Ten Commandments monuments on the front lawns of four new high schools in Adams County, Ohio. A third, Harlan County v. ACLU , No. 03-1698, involved the posting of a Ten Commandments-centered display in Harlan County, Ky., school classrooms.

The fourth, DeWeese v. ACLU of Ohio , No. 04-841, involved a poster of the Ten Commandments in the court of Judge James DeWeese.