Supreme Court to rule on FCC indecency policy News
Supreme Court to rule on FCC indecency policy
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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday added 11 more cases [order list, PDF] to its 2011-2012 docket. In FCC v. Fox Television Stations, Inc. [docket; cert. petition, PDF], the court will rule on whether the Federal Communications Commission (FCC) [official website] current indecency enforcement regime violates the First or Fifth Amendment [text] to the US Constitution. The FCC sought Supreme Court review after the US Court of Appeals for the Second Circuit ruled last year that the FCC’s indecency policy, which places restrictions on profanity and nudity during television broadcasting, is unconstitutionally vague [JURIST reports] and could have a “chilling effect” on speech. The case hinges on indecency issues raised in two separate broadcasts, one in which a nudity scene appeared in a television crime show during prime-time hours, and the other involving celebrities using expletives during live broadcasting events. The Supreme Court originally remanded the case to the Second Circuit after ruling [JURIST report] in April 2009 that the FCC did not act arbitrarily and capriciously in changing its policy regarding fines for the broadcast of isolated expletives. That ruling overturned a previous decision [JURIST report] by the Second Circuit, which held that the 2004 policy was arbitrary and capricious under the Administrative Procedure Act [text] for failing to articulate a reasoned basis for its change in policy. The Supreme Court declined to address the constitutionality of the FCC policy in its decision and remanded the case to the lower court for further consideration of the constitutional issue.

In United States v. Jones [docket; cert. petition, PDF], the court will decide whether the warrantless use of a global positioning systems (GPS) tracking device on respondent’s vehicle to monitor its movements on public streets violated the Fourth Amendment [text] and whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent. The federal government sought Supreme Court review [JURIST report] after the US Court of Appeals for the District of Columbia Circuit ruled [opinion, PDF; JURIST report] last year that prolonged use of GPS to monitor suspects’ vehicles violates the Fourth Amendment protection against unreasonable searches and seizures.

In National Meat Association v. Harris [docket; cert. petition, PDF], the court will consider whether a California law requiring slaughterhouses to “immediately euthanize” any nonambulatory animal on its premises is preempted by the Federal Meat Inspection Act (FMIA) [text]. The provisions of the California law were considered and expressly rejected by federal regulators because they eliminate certain federally required ante-mortem inspection of possibly diseased animals. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that the California law was not preempted. The questions before the court are (1) Did the Ninth Circuit err in holding that a “presumption against preemption” requires a “narrow interpretation” of the FMIA’s express preemption provision, in conflict with the court’s decision in Jones v. Rath Packing Co. [opinion text] that the provision must be given “a broad meaning”?; (2) Where federal food safety and humane handling regulations specify that animals (here, swine) which are or become nonambulatory on federally-inspected premises are to be separated and held for observation and further disease inspection, did the Ninth Circuit err in holding that a state criminal law which requires that such animals not be held for observation and disease inspection, but instead be immediately euthanized, was not preempted by the FMIA?; and (3) Did the Ninth Circuit err in holding more generally that a state criminal law which states that no slaughterhouse may buy, sell, receive, process, butcher, or hold a nonambulatory animal is not a preempted attempt to regulate the “premises, facilities, [or] operations” of federally-regulated slaughterhouses.

In Messerschmidt v. Millender [docket; cert. petition, PDF], the court will consider whether police officers are entitled to qualified immunity [Cornell LII backgrounder] where they execute search warrants later determined invalid. The Ninth Circuit ruled [opinion, PDF] that the officers in this case were not entitled to qualified immunity. The Supreme Court has held in United States v. Leon and Malley v. Briggs [opinions text] that officers are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” The questions before the court are (1) Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on-point case law prohibited the search, and the alleged overbreadth in the warrant did not expand the scope of the search; and (2) Should the Malley/Leon standards be reconsidered or clarified in light of lower courts’ inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?

In Martel v. Clair [docket; cert. petition, PDF], the court will determine whether a condemned state prisoner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court-appointed lawyer just because he expresses dissatisfaction and alleges that his counsel was failing to pursue potentially important evidence. The district court denied respondent Kenneth Clair’s petition for habeas corpus and refused to allow him to replace his lawyer, but the Ninth Circuit reversed [opinion, PDF], ruling that the district court abused its discretion.

In Knox v. Service Employees International Union, Local 1000 [docket; cert. petition, PDF], the court will decide whether a state, consistent with the First and Fourteenth Amendments [text], may condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing notice that includes information about that assessment and provides an opportunity to object to its exaction. The Ninth Circuit held that no second notice was required under the Supreme Court’s opinion in Chicago Teachers Union v. Hudson [opinion text]. The court will also determine whether a state, consistent with the First and Fourteenth Amendments, may condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures.

In Kappos v. Hyatt [docket; cert. petition, PDF], the court will rule on an area of patent law. When the US Patent and Trademark Office (PTO) [official website] denies an application for a patent, the applicant may seek judicial review of the agency’s final action through either of two avenues. The applicant may obtain direct review of the agency’s determination in the US Court of Appeals for the Federal Circuit under 35 USC § 141 [text]. Alternatively, the applicant may commence a civil action against the Director of the PTO in federal district court under 35 USC § 145 [text] The court will decide whether a plaintiff in a § 145 action may introduce new evidence that could have been presented to the agency in the first instance. The court will also consider whether, when new evidence is introduced under § 145, the district court may decide de novo the factual questions to which the evidence pertains, without giving deference to the prior decision of the PTO. The Federal Circuit held [opinion, PDF] that “§ 145 imposes no limitation on an applicant’s right to introduce new evidence before the district court.”

In Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S [docket; cert. petition, PDF], the court will rule on drug patents. When the Food and Drug Administration (FDA) [official website] approves a drug for multiple uses, the Hatch-Waxman Act allows generic drug makers to avoid contested patent litigation by marketing generic versions of the drug solely for non-patented uses. The FDA lacks the authority and expertise needed to verify the patent information submitted by name-brand drug companies, however, so it defers to their descriptions of the scope of their patents. Such companies can therefore block the approval of generic drugs by submitting overbroad patent descriptions to the FDA, effectively extending their patents to cover non-infringing uses. To combat this problem, the Act allows [21 USC § 355(j)(5)(C)(ii)(I) text] a “counterclaim seeking an order requiring the [patent] holder to correct or delete the patent information submitted by the holder on the ground that the patent does not claim an approved method of using the drug.” The Federal Circuit held [opinion, PDF] that the counterclaim provision effectively authorizes only “delet[ing]” improperly listed patents, but not “correct[ing]” information that misrepresents the scope of the approved uses claimed by a patent. Petitioners claim that ruling expressly invalidates longstanding FDA regulations defining “patent information,” which the FDA deems “essential” to administering the Act, without seeking the agency’s views. The question before the court is whether the counterclaim provision applies when (1) there is “an approved method of using the drug” that “the patent does not claim,” and (2) the brand submits “patent information” to the FDA that misstates the patent’s scope, requiring “correct[ion].”

In Mims v. Arrow Financial Services, LLC [docket; cert. petition, PDF], the court will consider whether Congress divested the federal district courts of their federal question jurisdiction [28 USC § 1331 text] over private actions brought under the Telephone Consumer Protection Act [FCC summary, PDF]. The US Court of Appeals for the Eleventh Circuit held [opinion, PDF] that federal courts lack jurisdiction over private actions under the Act.

In Coleman v. Maryland Court of Appeals [docket, cert. petition, PDF], the court will determine whether Congress constitutionally abrogated states’ Eleventh Amendment [text] immunity when it passed the self-care leave provision of the Family and Medical Leave Act (FMLA) [DOL backgrounder]. Petitioner Daniel Coleman was terminated from his job at the Maryland Court of Appeals and filed suit under Title VII and FMLA. The US Court of Appeals for the Fourth Circuit affirmed [opinion, PDF] a lower court ruling that dismissed petitioner’s FMLA clams as barred by Eleventh Amendment immunity.

The court also agreed to hear Credit Suisse Securities LLC v. Simmonds [docket], case involving the statute of limitations for securities litigation.

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