Luncheon Lecture features Phil Prygoski

By Roberta M. Gubbins Legal News For the first time in the thirty years that Professors Phil Prygoski and Bill Weiner have been giving an update of the past year's decisions of the U.S. Supreme Court, it was the Phil show rather than the Phil and Bill show. Prygoski discussed the civil cases of note, Weiner will appear for the criminal side of the docket on December 21st at noon at the State Bar in Lansing. "There were a number of interesting first amendment cases this past session, said Prygoski, beginning with Brown v Entertainment Merchants Association, a California case. The California law prohibited the sale or rental of "violent video games" to minors. The law covered games that included killing, maiming, dismembering or sexually assaulting a human being if those acts are depicted in a way that a reasonable person would find appeals to a morbid interest of minors. "For those of attune to the Constitutional law, what they are trying to do is take the obscenity standards and apply them to violence," he said. The Court ruled, 7-2, that the statute violated the First Amendment. Justice Scalia, writing the opinion, wrote that the government cannot create new categories of unprotected speech. He wrote "that he wasn't buying this attempt to make violent video games tantamount to obscenity," which is regulated by the government. Justice Thomas in a lone dissent denies that persons under the age of 18 have any constitutional right to speak or be spoken to without their parents' consent. In Sorell v IMS Health Inc., the court struck down a Vermont law that prohibited the sale of records of doctors' prescriptions if the information is used to market the commercial sale of drugs. Pharmacies sold the prescriber identifying information to data minors who created reports on the doctor's pattern of prescribing drugs. Justice Kennedy "wrote for the court and is unconstitutional. The Court said the law imposes content-based and speaker-based burdens on protected speech and is not supported by a sufficiently important state interest. Justice Bryer dissented, labeling it commercial speech and thus subject to a lower standard of review. Picketing of funerals was the subject of Snyder v Phelps, which involved the members of the Westboro Baptist Church picketing military funerals to express their belief that God hates the U. S. for its tolerance of homosexuality, especially in the military. The Court held that the First Amendment shields a church, here Westboro Baptist, from being sued for intentional infliction of emotional distress due to its protest at a funeral of a soldier killed in Iraq. "The government cannot prohibit speech just because it is offensive," Prygoski said. Justice Ilito dissented saying that the father, Snyder, who filed the lawsuit, was not a public figure (the majority held he was a public figure since his name was in the paper announcing his son's funeral) and therefore a different standard of review applied. Nevada Commission on Ethics v Carrigan involved Nevada's Ethics in Government Law, which required public officials to recuse themselves from voting on a matter to which they may have a conflict of interest. A unanimous court upheld the law. Justice Scalia took an historical view, arguing that recusal rules date back almost to the founding of the country and virtually every state has passed them. "He took a novel approach, ruling that a legislator's vote is not a personal power but rather is the 'commitment of his apportioned share of the legislator's power to pass or defeat a particular proposal. He casts his vote on behalf of his constituents and not as a personal power.'" The last first amendment case was Arizona Free Enterprise Club's Freedom Club PAC v Bennet, where the Court (5-4) struck down Arizona's Citizens Clean Elections Act, a campaign law, which created a "system of public financing for primary and general elections for state office. If you are a publicly funded candidate, you can get public money from the state," and if a privately financed candidate spends more than the publicly financed person, that person will receive more money from the state to balance the amounts spent by the candidates. Chief Justice Roberts struck the law down, "holding that the government does not have a duty to level the playing field. It becomes a first amendment case because 'it will limit the speech of the private contributors.'" "Justice Kagan dissented, arguing that the Arizona law simply created a content-neutral system of financing which was designed to combat corruption in state elections," Prygoski concluded. The next update on the 2010-2011 term of the United States Supreme Court with an emphasis on criminal law with Prof William Weiner as the speaker will be held on December 21st. Published: Mon, Nov 28, 2011

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