Supreme Court Case Preview: TV Indecency, GPS and ‘Peter and the Wolf’

BY Marcia Coyle  October 3, 2011 at 9:29 AM EST


Photo by Paul J. Richards/AFP/Getty Images.

The most closely watched case in the new term of the U.S. Supreme Court is not on the argument docket yet, but likely will be soon. The justices are expected to take a look at the numerous legal questions surrounding the federal health care reform act now that the Obama administration has urged the Court to do so.

If the court does take up a challenge to the Patient Protection and Affordable Care Act, the justices will step into a legal battle with political stakes not experienced since their rulings in Bush v. Gore, which decided the 2000 presidential election, and Citizens United v. Federal Election Commission in 2010, which unleashed corporate independent expenditures in federal elections.

The new term, which begins as per tradition on the first Monday in October, is by no means a snooze even without a case involving the health care act. There is plenty to keep everyone interested and the justices busy. The court hears arguments from October through April and the justices already have scheduled cases for argument in October, November and December.

The justices have granted review in 48 cases (counting consolidated cases as one) and they will add another 25-30 before the usual cutoff of mid-January for the current term.

The Supreme Court, headed by Chief Justice John Roberts Jr., has experienced substantial change in the last six years. Roberts joined the Court in 2005, and turnover due to retirements continued with Justices Samuel Alito joining in 2006, Sonia Sotomayor in 2009, and Elena Kagan in 2010. The new term will provide more insights into how these four justices approach the interpretation of statutes and the Constitution and into their relationships with the other five justices.

Here is a quick look at some of the cases on the docket that could generate some buzz during the term. And remember: you can hear the arguments in these cases. Every Friday of the week in which the justices hear arguments, the Court posts the audio on its website.

Nudity and ‘Fleeting Expletives’

Nudity and fleeting expletives make a return engagement to the Court this term courtesy of Fox Television and ABC. The case, FCC v. Fox Television Stations, stems from the use of fleeting expletives exclaimed by Cher and Nicole Richie during two live awards shows on Fox and scenes of a nude woman during an episode of the now-defunct show, “NYPD Blue.” The justices will decide whether the Federal Communications Commission’s standards for nudity and indecency on television are so vague as to be unconstitutional. The case involving the expletives was before the Supreme Court two years ago, but the justices ruled on a separate issue, not addressing the constitutional question. The government combined it with a separate case involving the “NYPD Blue” episode.

GPS Devices

FBI agents planted a GPS tracking device on a drug dealer’s car and used it to track the position of the car when it was moving on public roads for a full month– without securing a search warrant. The government lost the case in the lower court and now asks the Supreme Court in U.S. v. Jones whether the Fourth Amendment requires a warrant in these circumstances and whether the Constitution is violated when law enforcement uses the tracking device on cars.

Strip Searches

Albert Florence was arrested for failure to pay a fine. He protested that he had indeed paid the fine, but the police took him to jail where he was booked, strip searched and subjected to a visual body cavity search. Six days later, he was strip searched and given a visual body cavity search again when he was transferred to another jail. The charge against him was dismissed the next day and he was released. Florence filed a civil rights lawsuit charging that his Fourth Amendment rights were violated by the searches. He lost in the lower appellate court. The justices will decide whether Fourth Amendment permits a jail to conduct a strip search whenever an individual is arrested, including for minor offenses and when there is no reasonable suspicion that the individual has weapons or drugs.

Congress and ‘Peter and the Wolf’

In 1994, Congress passed a law taking a large bodies of foreign works, such as Prokofiev’s Classical Symphony and Peter and the Wolf, out of the public domain, where they were freely available for performance and distribution, and reviving their copyright protection. The law was intended to implement a global agreement on trade. Orchestra conductors, educators, performers, film archivists, and motion picture distributors who depend upon the public domain for their livelihood are challenging the constitutionality of the 1994 law. The Court in Golan v. Holder will decide whether the law violates the copyright clause in the Constitution as well as the First Amendment.

Job Bias and Religious Employers

The Equal Employment Opportunity Commission sued Hosanna-Tabor Evangelical Lutheran Church and School, charging that the school had retaliated against a teacher in violation of the federal Americans with Disabilities Act. The school had fired the teacher, who had taken disability leave for treatment of narcolepsy but whose doctor had certified her fitness to return. The school fired her after she refused to resign. The case asks the justices to examine the scope of the so-called ministerial exception, rooted in the First Amendment, which prohibits most employment-related lawsuits against religious organizations by employees who perform religious functions. The justices will decide whether the exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes.

Jerusalem and Birth Certificates

The Court will consider an unusual clash between a congressional statute and the president’s foreign policy powers in M.B.Z. v. Clinton. The justices will decide whether they have jurisdiction to decide whether a federal law infringes the president’s power to recognize foreign sovereigns by explicitly directing the secretary of state, if asked, to record “Israel” as the birthplace of an American boy born in a Jerusalem hospital on his passport and the consular report of birth abroad. (The United States has refused to recognize Jerusalem as an official part of Israel in matters of immigration and naturalization. People born in the disputed city are directed to write only “Jerusalem” on the place of birth section of U.S. passport applications, without specifying a country.) The lower appellate court ruled that the issue was a “political question” that courts has no authority to resolve. The parents brought the case to the Supreme Court.

Besides the health care challenge, two other noteworthy petitions are waiting in the wings for possible review: Arizona is asking the justices to review its very controversial immigration law, known as S.B. 1070, which has been challenged by the Obama administration and civil rights groups. And affirmative action case may return to the Court. A petition has been filed challenging the admissions policy at the University of Texas.

Marcia Coyle of the National Law Journal is a regular NewsHour analyst.