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Supreme Court Watch: Unabomber, Racism in Drug Arrests, and Liquor Advertising

May 13, 1996 at 12:00 AM EDT


CHARLAYNE HUNTER-GAULT: It was an also all-over-the-lot day for the high court as they handed down opinions in a series of controversial cases. In a unanimous decision, the court struck down the Rhode Island ban on liquor advertising aimed at promoting sobriety. Also, in an eight to one decision, the court ruled against five black defendants on the issue of racial disparity in a California crack cocaine case, and finally the court refused to review Unabomber suspect Theodore Kaczinsky’s appeal for fast action to avoid prosecution. For more on these cases, we turn to NewsHour regular Stuart Taylor, a correspondent for the “American Lawyer” and “Legal Times.” Stuart, thank you for coming tonight. Tell us first about the 44 Liquor Mart vs. Rhode Island case. What was it all about?

STUART TAYLOR, The American Lawyer: Rhode Island had a law that bans all price advertising of liquor, except in the store itself. You can’t advertise in a newspaper, on a billboard, for an example, and the issue in the Supreme Court was whether that violates the First Amendment, freedom of speech, and the court was unanimous in holding that it did, although it took them four separate opinions in order to explain all the differences in their analysis, and that confuses the process of figuring out what this means for other laws and future laws and for such matters as the Clinton administration’s proposed limits on cigarette advertising, for example.

CHARLAYNE HUNTER-GAULT: So what are you saying, that this is not dispositive in terms of that–in terms of the cigarette advertising?

STUART TAYLOR: It certainly isn’t dispositive in terms of cigarette advertising but it may be a little bit of good news for the tobacco industry because the Supreme court seems a little bit more protective, if you read all the opinions in this case and add them up and see how many people signed which sentence, it seems a little bit more protective of what’s called commercial speech, including advertising, than other recent Supreme Court decisions have been. Commercial speech has traditionally enjoyed less protection than say political speech, but this decision seems to give a little bit more protection to advertising than recent trends would suggest.



CHARLAYNE HUNTER-GAULT: Reasoning that is. I’m sorry.

STUART TAYLOR: Yes. Justice–several of the justices–four by my count–indicated that they would give strong First Amendment protection to all forms of advertising, except if they’re false, misleading, or involved, particularly aggressive sales practices designed to take advantage of people. Now that and tobacco advertising probably would get that kind of protection, so those Justices may have indicated that they would give some protection to tobacco advertising. One question is whether they could get another vote to do so. Another question is whether the reasons that have been advanced for the administration’s proposals on tobacco advertising, including particularly protecting children, would distinguish them from this case, for example.

CHARLAYNE HUNTER-GAULT: What are the implications of this as far as you can see now? Are they grand implications, or is it just too murky right now to tell?

STUART TAYLOR: It’s a little murky, but there are about 11 other states that have limits on liquor advertising, different kinds of limits than the ones in this case perhaps, a range of limits, but all of those laws will at least come under attack and possibly be struck down on the basis of this decision and beyond that, there are other areas of advertising that states or the federal government might want to restrict that could be affected, but the big one is tobacco.

CHARLAYNE HUNTER-GAULT: All right. Let’s move on now to the U.S. vs. Armstrong. We visited this one when it went up, the crack cocaine and the, well, you explain it.

STUART TAYLOR: Well, the case involves a large controversy over whether the laws creating huge criminal penalties for crack cocaine offenses are racially discriminatory because crack is used predominantly by these acts because prosecutions, I should say, for crack use are predominantly black people and they get enormous punishments compared to users of other drugs. This case operated in the periphery of that controversy. The particular issue raised by five defendants was they want to prove that they were chosen on grounds of their race for prosecution, and the Supreme Court said here today that they have to do more to make a preliminary case of that before the court will allow the prosecution to be ordered to come forward with detailed data to help the defendants prove their case and before the prosecution will be required to explain just how it does choose who to prosecute for crack offenses.

CHARLAYNE HUNTER-GAULT: So what is the significance of this ruling today?

STUART TAYLOR: It makes it a lot harder for anyone claiming that the reason I was prosecuted is my race in any kind of a case to get to first base in attacking the prosecution for that reason.

CHARLAYNE HUNTER-GAULT: And you had said when we visited the case, when it went up, that you expected the Justices to go this way?

STUART TAYLOR: Yes. One reason I expected it is when you listened to the oral argument in the case, you could sort of tell that a lot of the Justices were coming that way and the vote in the case was eight to one so that forecast proved true. The other reason is that the defendants in this case made a particularly weak showing of selective prosecution. They came forth with the fact that 24 of the 24 people in a certain area of Los Angeles who were prosecuted for crack in a certain year–I think it was 1992, and they were all black, but that was not a large enough set in the view of the Supreme Court to prove very much in terms of–and in particular, the court said before we’re going to let you go to first base with this sort of a claim, you have to show us some non-black people who could have been prosecuted for crack use who were not prosecuted, and that was not done in this case.

CHARLAYNE HUNTER-GAULT: So the burden of proof is on the defendants.

STUART TAYLOR: And it’s a very heavy burden of proof.

CHARLAYNE HUNTER-GAULT: And so is this likely to be revisited, do you think?

STUART TAYLOR: Umm, someone else may come forward with a stronger showing because the statistics in the crack area really are dramatic in terms of over 90 percent of those prosecuted nationwide for crack are black, and the majority of crack users, according to some studies are white. So someone may come forward with better statistics and give it another try, but based on the lop-sided nature of today’s vote, it’s very doubtful they’ll get anywhere.

CHARLAYNE HUNTER-GAULT: Now briefly, there was also a ruling in the Unabomber case. Tell me about that.

STUART TAYLOR: The accused Unabomber who hasn’t been indicted for that yet, Mr. Kaczinsky, has argued that because of outrageous leaks by the government of, for example, what was allegedly found in his cabin being proof of his being the Unabomber, he can’t get a fair trial anywhere, or can’t even get a fair hearing before a grand jury before he’s indicted, and he’s asked the courts to throw his case out before it even really gets started for that reason, and the Supreme Court today–

CHARLAYNE HUNTER-GAULT: You mean throw the whole case out?

STUART TAYLOR: The whole case out.

CHARLAYNE HUNTER-GAULT: To say there’s no basis for this.

STUART TAYLOR: Not to say there’s no basis for it, but to say the government has poisoned the well of the prosecution beyond repair.

CHARLAYNE HUNTER-GAULT: And it can’t be repaired.

STUART TAYLOR: And he can’t get a fair trial. The Supreme Court, as everyone expected, said, we’re not, in essence, today–with that comment said we’re not ready to listen to your case yet. This doesn’t rule out the possibility that he could make the same argument later.

CHARLAYNE HUNTER-GAULT: So on what grounds did they say they weren’t ready to make the ruling?

STUART TAYLOR: There was no opinion. They simply declined his request for an expedited ruling in the case, as was expected. In fact, the Justice Department was so confident they would do this it didn’t even bother to file a brief arguing why they should.

CHARLAYNE HUNTER-GAULT: All right. Well, Stuart Taylor, thank you.