SUPREME COURT NOTEBOOK

Court says use new drug sentencing law in crack cases WASHINGTON (AP) -- The Supreme Court ruled last Thursday that people who committed crack cocaine crimes before more lenient penalties took effect and received their prison sentence afterward should benefit from the new rules. The court resolved a dispute in favor of Corey A. Hill and Edward Dorsey, who were arrested in 2007 and 2008 for selling crack cocaine and faced mandatory 10-year sentences in Illinois. But they weren't sentenced until after the Fair Sentencing Act went into effect in August 2010. That law reduces the difference between sentences for crimes committed by crack cocaine and powder cocaine users. Justice Stephen Breyer said in a 5-4 decision that the courts should have used the new law to sentence the two men. Breyer said the issue was difficult because the new law doesn't spell out how to treat people in circumstances like Hill's and Dorsey's, and a 19th century law says the old law applies in such cases. But Breyer said following the old law would result in greater disproportionality in sentencing. "Finally, we can find no convincing reason why Congress would have wanted these unfair consequences," Breyer said. Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented. Scalia said the 1871 law "dictates that the new, more lenient mandatory minimum provisions do not apply to such pre-enactment offenders." Civil rights groups and Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, praised the decision as another step toward reducing sentencing disparities between crack and powder cocaine crimes, a gap that has struck African-Americans especially hard. The cases are Dorsey v. U.S., 11-5683, and Hill v. U.S., 11-5721. Justices throw out FCC penalties for cursing, nudity By Mark Sherman Associated Press WASHINGTON (AP) -- Broadcasters anticipating a major constitutional ruling on the government's authority to regulate what can be shown and said on the airwaves instead won only the smallest of Supreme Court victories last Thursday. The justices unanimously threw out fines and other penalties against Fox and ABC television stations that violated the Federal Communications Commission policy regulating curse words and nudity on television airwaves. Forgoing a broader constitutional ruling, however, the court concluded only that broadcasters could not have known in advance that obscenities uttered during awards show programs on Fox stations and a brief display of nudity on an episode of ABC's "NYPD Blue" could give rise to penalties. ABC and 45 affiliates had been hit with proposed fines totaling nearly $1.24 million. Broadcasters had argued that the revolution in technology that has brought the Internet, satellite television and cable has made the rules themselves obsolete. The regulations apply only to broadcast channels. The justices said the FCC is free to revise its indecency policy, which is intended to keep the airwaves free of objectionable material during the hours when children are likely to be watching. The agency's chairman, Julius Genachowski, said the ruling "appears to be narrowly limited to procedural issues related to actions taken a number of years ago. Consistent with vital First Amendment principles, the FCC will carry out Congress's directive to protect young TV viewers." It was the second time the court has confronted, but not ruled conclusively on the FCC's policy on isolated expletives. Justice Anthony Kennedy said in his opinion for the court that "it is unnecessary for the court to address the constitutionality of the current policy." The narrow decision, coupled with the more than five months that elapsed between the argument in January and last Thursday's decision, could mean that the justices struggled and failed to reach agreement on a broader outcome. Broadcasters argue that viewers now have many options, unlike the handful of channels they had available in the 1960s and 1970s when the court last weighed in on indecency on the airwaves. In many cases, viewers don't even know when they are switching between the older broadcast channels and cable. Still, the regulated broadcast channels provide what the government has called a safe haven of milder programming, and those channels remain dominant, even in the Internet age, the administration argued. Paul Smith, a First Amendment expert and partner with the Jenner and Block law firm in Washington, said the court should expect more challenges until it rules definitively. "The Supreme Court decided to punt on the opportunity to issue a broad ruling on the constitutionality of the FCC indecency policy. The issue will be raised again as broadcasters will continue to try to grapple with the FCC's vague and inconsistent enforcement regime," said Smith, who wrote a brief supporting the broadcasters. The case arose from a change in the FCC's long-standing policy on curse words. For many years, the agency did not take action against broadcasters for one-time uses of curse words. But after several awards shows with cursing celebrities in 2002 and 2003, the FCC toughened its policy after it concluded that a one-free-expletive rule did not make sense in the context of keeping the airwaves free of indecency when children are likely to be watching television. But Kennedy, in the ruling throwing out the fines, said the commission did not adequately explain that under the new policy "a fleeting expletive or a brief shot of nudity could be actionably indecent." The stepped-up indecency enforcement, which included issuing record fines for violations, also was spurred in part by widespread outrage following Janet Jackson's breast-baring performance during the 2004 Super Bowl halftime show on CBS. That incident and the FCC's proposed fine of $550,000 are not part of the current case. The government has an appeal pending of a lower court ruling that threw out the fine in that case. The 2004 Super Bowl took place before the FCC later that year laid out its new policy and the possibility of fines for even one-time utterances of certain words. Tim Winter, president of the Parents Television Council, said he read the new decision as a "green light" for the FCC to rule against broadcasters in the many pending complaints of indecent material that aired after the FCC explained its new policy. "Once again the Supreme Court has ruled against the networks in their yearslong campaign to obliterate broadcast decency standards," Winter said. The material at issue in last Thursday's decision included the isolated use of expletives as well as fines against broadcasters who showed a woman's nude buttocks on a 2003 episode of "NYPD Blue." In December 2002, singer Cher used the phrase "F--- 'em" during the Billboard Music Awards show on the Fox television network. A month later, U2 lead singer Bono uttered the phrase "f------ brilliant" during NBC's broadcast of the Golden Globes awards show. During the December 2003 Billboard awards show on Fox, reality show star Nicole Richie said, "Have you ever tried to get cow s--- out of a Prada purse? It's not so f------simple." But the challenge went beyond just the penalties for the use of fleeting expletives. The broadcasters wanted the court to free them from all regulation of content around the clock. The court's 1978 Pacifica decision upheld the FCC's reprimand of a New York radio station for airing a George Carlin monologue containing a 12-minute string of expletives in the middle of the afternoon. Justice Ruth Bader Ginsburg said in a brief opinion that she would have overturned the Pacifica ruling, which she called wrong even when it was decided. Justice Sonia Sotomayor did not take part in the current case because she was involved in an earlier version while sitting as an appeals court judge in New York. The case is FCC v. Fox, 10-1293. ---------------- AP Technology Writer Peter Svensson in New York contributed to this report. Union must give fee increase notice By Jesse J. Holland Associated Press WASHINGTON (AP) -- The Supreme Court ruled last Thursday that unions must give nonmembers an immediate chance to object to unexpected fee increases or special assessments that all workers are required to pay in closed-shop situations. The court ruled for Dianne Knox and other nonmembers of the Service Employees International Union's Local 1000, who wanted to object and opt out of a $12 million special assessment the union required from its California public sector members for political campaigning. Knox and others said the union did not give them a legally required notice that the increase was coming. The union, and the 9th U.S. Circuit Court of Appeals, said the annual notice that the union gives was sufficient. The high court disagreed in a 7-2 judgment written by Justice Samuel Alito. "When a public-sector union imposes a special assessment or dues increase, the union must provide a fresh ... notice and may not exact any funds from nonmembers without their affirmative consent," Alito said. Justices Sonia Sotomayor and Ruth Bader Ginsburg agreed with the judgment but wrote their own opinion. "When a public-sector union imposes a special assessment intended to fund solely political lobbying efforts, the First Amendment requires that the union provide non-members an opportunity to opt out of the contribution of funds," Sotomayor wrote. But Sotomayor and Ginsburg said they did not join in the majority opinion that the First Amendment requires an opt-in system for other circumstances like "the levying of a special assessment or dues increase." Justices Stephen Breyer and Elena Kagan dissented from the opinion. "If the union's basic administrative system does not violate the Constitution, then how could its special assessment have done so?" Breyer said. But Breyer said he agreed with Sotomayor on the court's decision to expand the decision beyond special political assessments. "No party has asked that we do so," he said. "The matter has not been fully argued in this court or in the courts below," said Breyer, who read his dissent aloud. Alito said there is "no merit" to Breyer's and Sotomayor's complaints. Court dismisses Southern Union's $18 million fine By Mark Sherman Associated Press WASHINGTON (AP) -- The Supreme Court threw out an $18 million penalty last Thursday against a natural gas company convicted of violating an environmental law. The court voted 6-3 in favor of Texas-based Southern Union Co. in an appeal of a penalty imposed for its improper storage of mercury in a building in Pawtucket, R.I. The case turned on whether a series of cases limiting judges' discretion in increasing prison sentences also applies to criminal fines. Justice Sonia Sotomayor said in her opinion for the court that the same limits apply. "While the punishments at stake in those cases were imprisonment or a death sentence, we see no principled basis ... for treating criminal fines differently," Sotomayor said. Justices Samuel Alito, Stephen Breyer and Anthony Kennedy dissented. Southern Union had used the building to store outdated mercury-sealed gas regulators that it removed from customers' homes. Although the mercury was initially removed and shipped to a recycling center, that work stopped, and the regulators, along with loose mercury, were left to accumulate in bags, containers and jugs inside the building. A judge decided that the company should pay a $6 million fine and $12 million in charitable contributions. He arrived at those numbers after taking the maximum fine of $50,000 a day and multiplying it by 762 days, as specified in the indictment. The judge said he could have imposed a fine of more than $38 million. But Southern Union said the jury did not specifically determine how long the mercury was stored improperly and that the judge should have capped the fine at $50,000, the one-day maximum. The 1st U.S. Circuit Court of Appeals in Boston said the penalty was reasonable and rejected Southern Union's arguments. The high court, however, said the appellate judges were wrong. The case is Southern Union Co. v. U.S., 11-94. Published: Mon, Jun 25, 2012