Of AfPak, Pomegranates, and Pentagon Papers

The Pentagon Papers case has been getting some recognition today after WikiLeaks gave the New York Times, the Guardian, and Der Spiegel nearly 100,000 classified reports from 2004-09 on the Afghanistan war.

CNN reports on Press Secretary Robert Gibbs’s addressing comparisons between today’s big story and the 1971 Supreme Court case over whether the government had the power to restrain the New York Times from publishing the Pentagon’s top secret history of American involvement in Vietnam:

“The Pentagon Papers are different in the sense that you are talking about policy documents, these are sort of on the ground reporting of different events. I don’t see in any way how they are really comparable,” Gibbs said.

Noting that the Pentagon Papers contained significant revelations in terms of policy, Gibbs said that Sunday’s publication has not “markedly changed” what “is known, about our relationship and our efforts in both Afghanistan and Pakistan by what is in these documents.”

“You don’t have some revelation that there is a systematic change of the course of events, that we have stepped up operations in a certain part in the war in Southeast Asia, that we’ve escalated, that’s just not, that’s not what these documents are,” Gibbs said.

Beneath all the huff-and-puff of this major story–a story, one should note, that has suffered no governmental attempt at prior restraint–comes an actual prior restraint out of the D.C. Superior Court.  Mike Scarcella of the Legal Times reports:

A D.C. Superior Court judge on Friday blocked The National Law Journal from publishing information from court records about a regulatory investigation into juice maker POM Wonderful.

An NLJ reporter had legally obtained the information from court files, but the judge, Judith Bartnoff, ruled the records should have been under seal. She issued a temporary restraining order just before the paper’s deadline on Friday to block publication of the information.

Attempts to restrain a publisher are exceedingly rare. But Bartnoff said that the court’s interest in maintaining the integrity of its docket trumped First Amendment arguments. […]

“If I am throwing 80 years of First Amendment jurisprudence on its head, so be it,” Bartnoff said at the hearing. “None of that First Amendment jurisprudence, to my knowledge, is dealing with this issue—the integrity of the functioning of the court system.”

If suppression of a top secret history of the country’s Vietnam war policies for the sake of national security did not overcome the Supreme Court’s heavy presumption against a prior restraint’s constitutionality, I have a hard time seeing how Judge Bartnoff’s justification for suppression–the court’s institutional integrity–can sustain its heavy burden upon appeal.

Read Scarcella’s report here for some great exchanges between the judge and the National Law Journal’s counsel, as well as POM Wonderful’s direct connection to the Pentagon Papers case.

UPDATE 7/30/10: The Legal Times reports that Judge Bartnoff lifted the restraining order this afternoon at POM’s request:

On July 30, just hours after a group of media companies filed an amicus brief in support of the NLJ in the D.C. Court of Appeals, POM’s lawyer moved to have the restraining order withdrawn. Judge Judith Bartnoff lifted the temporary restraining order about 4:30 p.m. Friday.

“Although we believe very strongly in our right to keep confidential documents shielded by attorney-client privilege, we never intended our protected communications with a governmental regulatory agency and a private law firm to become a First Amendment issue,” POM’s counsel, Barry Coburn of Washington’s Coburn & Coffman, said in a statement. “POM is, and always has been, fervent supporters of and believers in the freedom of the press, and takes very seriously its commitment to transparency in all aspects of our business.”

A Speculation Too Far

Jeff Greenfield at CBS News writes of the “possibility” that Obama could replace a conservative justice before 2012:

Now imagine it’s 2011, and the Senate has become more Republican than it is now; And imagine that Clarence Thomas or Antonin Scalia — or Roberts or Alito or even Anthony Kennedy (the “swing justice”) — has to leave the bench. […]

If there is a liberal nominee posed to replace a conservative, we are sure to hear Republicans arguing for the merits of a filibuster, while Democrats attack it as an invalid tactic. We will hear Republicans arguing that ideology is indeed a legitimate ground for voting against a nominee qualified by experience; while Democrats, who once asserted precisely that point, will argue that qualifications and competence are what matters. […]

The potential for gridlock and conflict becomes even greater if we imagine a Republican takeover of the Senate in November; meaning that the Judiciary Committee, and the Senate calendar, would come under the control of Republicans, In that case, try to imagine what kind of nominee Mr. Obama could get confirmed.

I’ve done some speculating on this blog, but Greenfield’s rests in the no man’s land between the patently absurd and entirely plausible.  That is, he’s peddling as possible an abject impossibility for the sake of clever commentary.  Two problems: his observations are obvious, not illuminating; and his starting hypothetical is a non-starter in reality.  Absent an unforeseen death, no member of the Court’s conservative bloc–or Justice Kennedy–is going anywhere in the next two (or even six) years.

Now, we can certainly talk about Obama’s lower court nominations in the next two years should the GOP gain majorities or at least more significant minorities in Congress this November.  And we can talk about whether such a potential change in Congress will impact the list of potential successors to Justice Ginsburg should she retire during Obama’s first term.  But please, no more futile talk of who will replace Scalia in the next two years.

Liptak on Roberts Court PoliSci

Adam Liptak of the New York Times has just written a long piece on the Roberts Court’s ideological leanings according to leading political scientists.  It’s well worth a read, especially for those trained in the law who are used to assessing the Court qualitatively – Liptak engages with the quantitative research that codes and crunches opinions that most of us just read.

Even more fun, the Times has included an interactive feature for us to test how we measure up to the Roberts Court on hot button cases.

If you really enjoy Liptak’s subject matter, I suggest you also give a look to some of the political science books under my “Foundational Texts” in the sidebar to the right.  In addition, give a click to the Supreme Court Database, which you can also find linked in my “Resources” sidebar section.

Mauro on Stewart

Tony Mauro at the National Law Journal has another piece up from his digging through the Potter Stewart papers, this time on the Justice’s friendships with President George H.W. Bush and Professor Larry Tribe, and their thoughts about what could have been.

Stewart died in 1986, so he never saw his friend George make it to the White House in 1989 – but Mauro finds that he did follow his friend’s 1980 Presidential run and VP nomination quite closely:

Stewart clearly had a keen interest in Bush’s electoral fortunes, collecting news clippings about Bush testing the waters for a 1980 run for the presidency, which turned into a campaign for vice president with Ronald Reagan at the top of the ticket. Stewart corresponded with Christopher Phillips, apparently a strategist who was urging Bush to stress his moderate views and not give in to pressure from the right that was fueling Reagan’s success. “My great fear is that even if the views stated in your memorandum are fully understood and completely accepted, the house may be irreparably late,” Stewart wrote. Stewart even shared his views with Powell, who wrote Stewart, “These are views you and I have shared. It may indeed be too late now.”

Indeed, for the Court, it was too late.  Under Reagan, Stewart and Powell’s moderate conservatism–political and jurisprudential–began its decline towards today’s near-extinction.

And from Stewart’s “Tribe” file:

In May 1969, after Nixon appointed Warren Burger as chief justice, Tribe wrote a letter to Stewart mourning the demise of a shared hope: that Stewart would be elevated to the position instead. “I had so hoped things would turn out differently,” Tribe wrote. “For you — and for the country — I am sorry.” Stewart’s reply note did not deny the ambition.

This note from Tribe seems at odds with The Brethren‘s prologue (see pp. 10-13), in which Woodward and Armstrong write that Stewart declined President Nixon’s overtures to elevate Stewart to Chief Justice.  Perhaps Stewart, now known as a significant source for The Brethren, fed Woodward and Armstrong this story for pride’s sake.  Perhaps Tribe did not know about this meeting.  Or perhaps Tribe was lamenting the underlying reasons why Stewart felt compelled to decline the President’s offer – “why”s that may have been lost forever in the fires Tribe told me about at the Kagan hearings and reiterated to Mauro:

Laurence Tribe remembers watching Potter Stewart, the U.S. Supreme Court justice for whom he clerked in 1967, feed his office fireplace around Christmas time.

Stewart was burning some of his Court papers, recalls Tribe, the Harvard law professor and now senior counselor at the Justice Department. “He told me that it was an annual affair.”

What papers did Stewart destroy that year? “I promised him I’d remain forever silent, and it’s a promise I feel bound to keep,” Tribe said.

Read the whole piece over at Law.com.

DC Obscenity Case Thrown Out

Judge Richard J. Leon of the federal district court here in DC just threw out the government’s obscenity prosecution I wrote about a few days ago.  Via Mike Scarcella of the Legal Times:

Leon today ruled that the prosecution, led by Criminal Division trial attorneys Pamela Satterfield and Bonnie Hannan, failed to give enough evidence to jurors to prove that any one defendant, including Stagliano, violated the law. On the original indictment, Stagliano faced up to 32 years in prison.

By granting the defendant’s motion to dismiss the case for lack of evidence, Leon likely short-circuited any future Supreme Court case resolving the circuit split over internet obscenity.  The Stagliano case may be the last live Bush-era obscenity prosecution, and neither sets of counsel from the Ninth or Eleventh Circuit cases sought certiorari to hash out whether national or local community standards should apply in a jury’s assessment of obscenity sent over the internet.

Meanwhile, the grounds for appeal in the Stagliano case to the DC Circuit would appear to rest not on any First Amendment issue, but rather on Leon’s procedural and evidentiary judgment.  However, I question whether there would even be an appeal in this case, given the Obama administration’s apparent return to more lax Clinton-era enforcement of federal obscenity law.

UPDATE: The Washington Post provides some stats:

“The government said, ‘We have been getting convictions on the most extreme stuff, so we can be a little more aggressive and put pressure on the entire industry,’ ” Richards said. “This case was the tail end of Bush administration obscenity prosecutions. Now it remains to be seen whether the Obama administration makes enforcement a priority.”

Justice Department statistics show prosecutors charged 361 defendants with obscenity violations during President George W. Bush’s years in office, nearly twice as many as under President Bill Clinton. In 2009, 20 defendants were charged, compared with 54 the previous year.

UPDATE II: Politico’s Josh Gerstein notes that “the judge’s ruling cannot be appealed.”

Jack Kevorkian: Born-Again Ninth Amendment Activist

When Jack Kevorkian went to prison for assisting suicides, he didn’t find God.  He found the Ninth Amendment.

This documentary is in the background while I’m working on some other projects, and my ears pricked up when he mentioned the constitutional revelation that prompted his quixotic congressional run in 2008 with the late Justice Arthur Goldberg as his spiritual guide.

The Court, however, is not sympathetic.  It dispatched Kevorkian’s earthly calling, assisted suicide, in 1997; denied certiorari in 2004 to Kevorkian’s own appeal of his conviction; and has barely uttered a word about the Ninth Amendment since Goldberg’s 1965 Griswold concurrence, spare for a little Scalian brush-off in 2000.

(h/t Josh Blackman for reminder of Scalia’s take on the Ninth.  For those more interested in the Amendment, see Josh’s December post on current Ninth Amendment scholarship divides.)

UPDATE: Just peeked at Kevorkian’s denied SCOTUS petition for certiorari to see his Ninth Amendment argument.  It’s pretty paltry.  He seems to have thought much more about it since submitting the petition, or, more likely, his lawyers thought making the case to the Court was a waste of time.  This is the entire section:

II. THIS PETITION SHOULD BE GRANTED BECAUSE DR. KEVORKIAN’S RIGHTS UNDER THE NINTH AND FOURTEENTH AMENDMENTS WERE VIOLATED.
As a threshold matter, the District Court erroneously determined that Dr. Kevorkian’s claim of a violation of the Ninth Amendment was procedurally defaulted on the basis that such issue was purportedly not properly placed before the Michigan Court of Appeals. In fact, this issue was properly put before the Michigan Court of Appeals, but the Michigan Court of Appeals nonetheless deliberately and wrongfully ignored the issue. Specifically, Dr. Kevorkian clearly stated that his Constitutional claim is based uponboth the Ninth and Fourteenth Amendments jointly. In fact, the Michigan Court of Appeals did render an opinion on the merits regarding Dr. Kevorkian’s position under the Fourteenth Amendment which included intertwined aspects of the Ninth Amendment. Because Dr. Kevorkian’s claim for relief in his Habeas Petition is premised upon the intertwined aspects of both the Ninth and Fourteenth Amendments, and the Michigan Court of Appeals did in fact address the merits of Dr. Kevorkian’s position, there can be no procedural default because the Michigan Court of Appeals did rule upon such issue.

Although the District Court determined that no violation of the Fourteenth Amendment had occurred on the basis that there is no constitutional right to commit euthanasia, Dr. Kevorkian never asserted a right to commit euthanasia as a basis for his appeal.  Instead, Dr. Kevorkian expressly asserted only a right of the patient to be free from unbearable and irremediable pain and suffering, which right can be asserted by a treating physician when the treating physician is accused of a crime as a result of his actions in aiding the patient in obtaining medical treatment for unbearable and irremediable pain and suffering, which treatment is constitutionally permitted. Washington v. Glucksburg, 521 U.S. 702, 737 (O’Connor, J., concurring), 791-792 (Breyer, J., concurring) (1997). Indeed, the clear precedent of this Court approves of “aggressive palliative care,” such as the care provided by Dr. Kevorkian. Id. at 745,750-751 (Stevens, J., concurring).

Television Indecency!

I wrote last night of internet obscenity.  Today, the Second Circuit handed down its opinion in Fox v. FCC, declaring unconstitutional the FCC’s indecency policy of fining network television stations for broadcasting fleeting expletives.

The Second Circuit heard this case on remand from the Supreme Court, which last term upheld the FCC’s regulation as a matter of administrative law by a 5-4 vote.  The Court refused to address the constitutional question of whether the policy violated the First Amendment – the issue the Second Circuit answered in the affirmative today.

Justice Thomas concurred in last year’s conservative majority, expressing his willingness to strike down the regulation on constitutional grounds even though he did not believe it to be impermissibly arbitrary or capricious under the Administrative Procedure Act.  Thomas advocated for overturning precedents that gave less First Amendment protection to broadcast speech than otherwise given to utterances in printed media or cable television.  “Red Lion and Pacifica,” he wrote, “were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity.”

Thomas has made a career out of similar separate opinions calling for breaks from incorrect precedents.  While commentators may debate the long-term influence of Thomas’s lone cry in McDonald this term to overturn over a century of precedent so to exhume the Privileges or Immunities Clause of the Fourteenth Amendment, they may find more immediate satisfaction if FCC v. Fox (captioned Fox v. FCC in today’s Second Circuit opinion) gets back to the Court on the constitutional issue.

Here’s the money quote from Judge Pooler’s opinion, which echoes Thomas’s concurrence:

The Networks argue that the world has changed since Pacifica and the reasons underlying the decision are no longer valid. Indeed, we face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a “uniquely pervasive presence in the lives of all Americans.” Pacifica, 438 U.S. at 748.

The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control. See In re Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 24 FCC Rcd. 542, at ¶ 8 (2009). The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs. […]

Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. […] In short, there now exists a way to block programs that contain indecent speech in a way that was not possible in 1978. In fact, the existence of technology that allowed for household-by-household blocking of “unwanted” cable channels was one of the principle distinctions between cable television and broadcast media drawn by the Supreme Court in Playboy. The Court explained:

The option to block reduces the likelihood, so concerning to the Court in Pacifica, that traditional First Amendment scrutiny would deprive the Government of all authority to address this sort of problem. The corollary, of course, is that targeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners – listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt.

We can think of no reason why this rationale for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television in light of the V-chip technology that is now available.

Nevertheless, Pooler refused to defy Supreme Court precedent and instead struck down the regulation as an impermissibly vague restriction on speech:

We agree with the Networks that the indecency policy is impermissibly vague. The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. Omnibus Order, 21 F.C.C. Rcd 2664, at ¶¶ 127-128. Other expletives such as “pissed off,” up yours,” “kiss my ass,” and “wiping his ass” were also not found to be patently offensive. Id. at ¶ 197. The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words “dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This hardly gives broadcasters notice of how the Commission will apply the factors in the future. […]

[T]he absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all “patently offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to what “patently offensive” means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.

What seems certain from last year’s vote is that the Supreme Court, should it grant certiorari in this case, will affirm the Second Circuit’s judgment.  If the four liberals–Stevens, Souter, Breyer, and Ginsburg–would have invalidated the policy on administrative law grounds, they would likely strike it down on constitutional grounds as well.  And Thomas would surely provide a fifth vote, given his concurrence.  Because no other member of the Court’s Fox majority joined Thomas’s concurrence, I question whether Roberts, Scalia, or Alito will side with the dissenters on the constitutional question, though I fall back on conventional wisdom in thinking that Kennedy is up for grabs.

The question now is whether the Court would follow Thomas’s suggestion and remove the constitutional distinctions between broadcast and other mediums, thereby submitting all speech restrictions to strict scrutiny.  We don’t know how Sotomayor or Kagan would look towards uprooting precedent, especially one of Kagan’s (assuming she gets confirmed) predecessor’s landmark rulings.  Stevens himself intimated in his Fox dissent that “Justice Thomas and I disagree about the continued wisdom of Pacifica,” implying that he would follow the Second Circuit’s void-for-vagueness ruling rather than overturn himself.

Justice Ginsburg, however, signaled her openness to joining Thomas by citing Justice Brennan’s Pacifica dissent:

The Pacifica decision, however it might fare on reassessment, see ante,at 6 (Thomas, J., concurring), was tightly cabined, and for good reason. In dissent, Justice Brennan observed that the Government should take care before enjoining the broadcast of words or expressions spoken by many “in our land of cultural pluralism.” 438 U. S., at 775. That comment, fitting in the 1970’s, is even more potent today. If the reserved constitutional question reaches this Court, see ante, at 26 (majority opinion), we should be mindful that words unpalatable to some may be “commonplace” for others, “the stuff of everyday conversations.” 438 U. S., at 776 (Brennan, J., dissenting).

Justice Stewart’s Papers are Now Open

Tony Mauro of the National Law Journal is reporting on the opening of Potter Stewart’s papers at Yale:

Stewart died in 1985 at age 70, but he stipulated that his papers would not be made public until the retirement of all justices with whom he served. Justice John Paul Stevens was the last justice in that category, so his departure was the trigger for the release of Stewart’s papers, at long last.

[…] From an initial scan of his case and correspondence files, it does not appear, however, that scholars will learn much about how his brethren won over his vote. The case files generally contain just successive drafts of opinions, with little else.

Mauro’s initial impression of a lack of juicy behind-the-scenes details is corroborated by what I learned in a brief exchange with Professor Larry Tribe at the Kagan hearings.  Tribe was a Stewart clerk in the 1967-68 term and told me that Stewart burned much of his more sensitive papers.  Learning this dampened my enthusiasm to make a trip to New Haven to go digging through Stewart’s records, but perhaps I may still head up there at the end of the summer.

Readers of F1@1F may know that I’m a big fan of Stewart’s “scrupulously non-ideological” jurisprudence, as Mauro describes it. Indeed, if I were ever to write a biography of a Supreme Court justice during his tenure on the bench, I would look to Stewart.  He is of a dead breed of judicial conservatism that will be due for a resurrection in the next decade or two.

As the public begins to recognize that originalism is not at all a safeguard against–but rather a thin veil masking–results-oriented, unprincipled judging, we will see a return of confidence in judges who need no theory of everything to be good, careful, honest judges.  At least so I hope.  Today’s liberal bloc is often derided for being too pragmatic and moderate, that the left needs ideological liberals in the molds of Douglas, Black, Warren, Brennan, and Marshall.  But I think the answer is in more Stewarts, Harlans, Whites, and O’Connors on the right.  A perfect court, in my mind, would have its Brennan/Marshall’s and Scalia/Thomas’s on the wings, with a broad and heterodox middle taking each case as it came.  That would be a diverse bench.  The question remains, however, whether in the age of movement conservatism there remain any pragmatic right-leaning judges or lawyers for future Republican presidents to appoint.

Perhaps some of Stewart’s papers that survived the fireplace may hold a blueprint for a resurgent pragmatic conservatism on the Court.

Capital Obscenity!

Back in February I wrote about the circuit split between the Ninth and Eleventh Circuits over the application of federal obscenity laws in the Internet age.  This is a major issue of law that a majority of the Court, in concurring and dissenting opinions of 2002’s Ashcroft v. ACLU,  first telegraphed its interest in updating, revisiting, or outright abandoning.

This week, another obscenity trial begins in Judge Leon’s federal district courtroom here in DC.  Via Mike Scarcella of the National Law Journal:

Stagliano and two of his companies were indicted in federal district court in Washington in April 2008 on seven counts of distributing obscene, sexually graphic videos that U.S. Justice Department prosecutors allege have no artistic or scientific value and cut against the community standard of what is acceptable. He faces up to 32 years behind bars if convicted.

Jury selection is under way and opening arguments are expected to begin this week in the first adult porn obscenity case in the U.S. District Court for the District of Columbia in more than 20 years. “There won’t be any falling asleep in this courtroom,” Judge Richard Leon said at a hearing in the case June 14. “I can assure you of that.” […]

[Stagliano’s lawyers are] arguing that Stagliano has a right to possess and to distribute sexually explicit material. The lawyers contend federal obscenity standards are too vague to govern Internet speech. The sexual acts in the movies were lawful, the lawyers said, and the participants were consenting adults. “The right of sexual privacy has evolved as society’s attitudes about sexuality have evolved,” Corn-Revere said in court papers in July 2008. “Liberty now gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. This protection is broad enough to encompass a right to buy and sell obscene materials.”

In declining to dismiss the indictment earlier this year, Leon said the federal obscenity statutes are not unconstitutionally vague as applied to Internet speech. “Although public morality may be an insufficient justification for regulating private conduct in some cases, it is certainly a sufficient justification for regulating the sort of public conduct at issue here,” Leon wrote.

Beyond the racy subject matter and evidence to be presented to the district court this week, we will also witness some scintillating constitutional law discussions.  The above passage points to Stagliano’s use of Lawrence to argue invalidation of federal obscenity laws under the Due Process Clause of the Fifth Amendment’s right to privacy.*  This argument worked in the Western District of Pennsylvania in 2005, but ever since the Third Circuit rebuked and reversed the district court and the Supreme Court denied certiorari, appeals to Lawrence have gone unheeded.

So to further push the issue of federal obscenity laws before the Supreme Court, expect also to see attacks on the “community standards” prong of the Miller test, which courts use to determine whether material is obscene:

Lawrence Walters, a First Amendment lawyer who specializes in representing clients in adult entertainment, said obscenity cases have historically been filed in districts that are generally viewed as conservative. “It may result in one of the first cases where a more cosmopolitan jury has made a determination of obscenity with regard to adult material,” said Walters of Walters Law Group in Altamonte Springs, Fla.

Although the Supreme Court and lower courts ultimately came to implicitly interpret “community standards” to be those of the location in which the material was sent, the Ninth Circuit in late 2009 stated that national community standards should apply in a jury’s determining Internet obscenity.

Depending on how this jury rules, the inevitable appeal will likely feature an attack on local community standards – either as too permissive in a big city should Stagliano get acquitted or too arbitrary should he get convicted.  Either way, however, the recent circuit split over the community standards prong will be made more ripe for Supreme Court review.

The question, then, becomes whether the Court will conform to its opinions in Ashcroft I or not.  Thomas, Scalia, and Rehnquist were perfectly satisfied with local standards.  Might Roberts, given his First Amendment protectiveness this term, deviate from his predecessor’s vote?  In refusing to extend the Court’s obscenity jurisprudence to dogfighting in United States v. Stevens, Roberts said nothing of material that actually does fall within the Court’s sex-tethered definition of obscenity.  But in siding with the government in Holder v. Humanitarian Law Project for national security concerns, the Chief showed himself willing to favor traditionally conservative concerns–of which the protection of morals-based laws have long figured–over First Amendment absolutism.

Meanwhile, O’Connor wrote in favor of a national standard, but her successor, Alito, will likely go with local standards, given his lone Stevens dissent this term.

Kennedy wrote for Ginsburg and Souter suggesting that the local standards should be reconsidered, but didn’t tip his hand on what side upon which he’d come down until he had more evidence to make such a determination.  Adding uncertainty upon that concurrence’s uncertainty, we don’t know how Sotomayor would have voted then or now, and Ginsburg may not even be on the Court by the time this case may make it up there.

And finally, Justice Stevens, the lone dissenter in Ashcroft arguing to toss community standards altogether as applied to the Internet, may not have as zealous of a successor in Elena Kagan.

This trial, and its aftermath, will surely be something worth watching.

*Lawrence concerned state laws, so the Fourteenth Amendment’s Due Process Clause governed; this case tests federal obscenity laws, which implicate the Fifth Amendment’s analogous language securing against deprivation of liberty without due process of law.

UPDATE: 7/13 – Scarcella provides a report from today’s introduction of evidence to the jurors.

SCSW IV: Gen. Lee Shelton

Gen. Lee Shelton

For the final installment of F1@1F’s Supreme Court Side Walk series, meet General Lee Shelton.  Hailing from Noname, Alaska (a town he said situated itself 875 miles northwest of Anchorage, but may not exist if Google Maps has anything to say about it), Shelton showed up at 1:30am on June 28 to spend half an hour telling us stories with factual moorings as dubious as his whereabouts.

Shelton had come to the Court via a flight from Alaska to Washington State, then a bus to Ft. Worth and onward to DC, where he had been wandering for hours by bus, train, and foot.  His performance began humbly enough when he asked for directions to Union Station, where he hoped to catch a train to Virginia Beach.  But then he put his bags down and started to talk.

Here’s some footage of the Shelton telling us about the grizzly bear that licked his face (pardon the dark exposure):

When Shelton finished his monologue–which included the heartwarming tale of Moose, the white moose that Noname adopted as its mascot–the eight of us gave him the heartiest applause we could muster.

Glowing from this reception, Shelton said that he may not have much money, but “I got a pocket full of smiles and I love giving them out.”  He then picked up his bags and headed north up First Street towards Union Station.

UPDATE: Here’s the “Moose the Moose” story, courtesy of Daniel Rice: