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The Nation

A new term opens for high court

September 28, 2008|David G. Savage | Times Staff Writer

WASHINGTON — Against the backdrop of a tight presidential election that probably will shape its future, the Supreme Court goes back to work this week, facing cases on whether the government can forbid foul language on television, whether drug makers can be sued by injured patients, and whether environmentalists can protect whales off California from the Navy's sonar.

The court also will decide whether high officials can be held liable for violations of rights that took place on their watch. In a Los Angeles case, the justices will decide whether the former county district attorney can be sued by a man who was wrongfully convicted of murder based on the testimony of a jailhouse informer with a record of lying. And in a New York case, the justices will decide whether John Ashcroft can be held liable for the arrest and alleged mistreatment of Muslim immigrants after the Sept. 11 attacks, when he was attorney general.

On Monday, the justices will meet behind closed doors to sift through more than 2,000 appeal petitions that have piled up over the summer. They are expected to announce Tuesday that they will hear a handful of those cases.

On Oct. 6, the court will begin hearing oral arguments. First up is a case that tests whether the makers of "light" and "low tar" cigarettes can be sued for allegedly seeking to fool smokers into thinking these cigarettes are safer.

On major issues -- among them abortion, race, religion, the death penalty, gun rights, gay rights and presidential power -- the court regularly splits 5-4, with Justice Anthony M. Kennedy casting the deciding vote. The outcome of the election could have broad implications for the court, because the president nominates new justices: The retirement of a single justice could tip the balance.

John Paul Stevens, a liberal, is 88 and considered likely to step down during the next president's term. Ruth Bader Ginsburg, also a liberal, is 75.

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Drug regulations

This fall the most far-reaching case for consumers as well as corporations, Wyeth vs. Levine, tests patients' right to sue if a federally approved drug harms them.

Bush administration lawyers have quietly pressed the theory that if a product is regulated by a federal agency, its regulations "preempt" lawsuits that set stricter standards.

This approach has manufacturers' backing. Product makers want "national, uniform standards," not different rules set by states or juries, said Robin Conrad, a lawyer for the U.S. Chamber of Commerce. "This is the top priority of the business community."

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Decency in broadcasts

It has been 30 years since the court last dealt with offensive language on TV and radio. Then, the court upheld a fine against a radio station for broadcasting George Carlin's "seven dirty words" monologue.

The Federal Communications Commission, which regulates broadcasters that use public airwaves, forbids "any obscene, indecent or profane language." Two years ago it announced that it intended to levy big fines for broadcasts of unscripted expletives. It cited several examples from live award shows, such as Cher's use of the F-word upon winning a Billboard Music Award for career achievement

Fox TV, which broadcast that show, sued, contending the crackdown was arbitrary and a free-speech violation. A U.S. appeals court in New York agreed and barred the FCC from enforcing its new policy. The court will hear FCC vs. Fox TV on Nov. 4.

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Officials' liability

In the wrongful-conviction case from Los Angeles, Thomas L. Goldstein spent 24 years in prison before his murder conviction was overturned in 2004, and he wants to hold the county's top prosecutors liable.

"This is about accountability," he said. He sued former Dist. Atty. John Van de Kamp and his top deputy, alleging they let prosecutors put on the witness stand unreliable jailhouse informers in multiple cases. But Van de Kamp is urging the court to rule in Van de Kamp vs. Goldstein that district attorneys, like trial prosecutors, are shielded from being sued.

Similarly, Bush administration lawyers say Ashcroft, the FBI director and other top officials are shielded from being sued by Muslim men who say they were picked up and roughed up in the wake of the Sept. 11 attacks.

Javaid Iqbal, a Pakistani native who lived on Long Island and who was arrested on a charge of credit card fraud, was sent to a maximum-security wing of a jail in New York City. He said he was subjected to daily "strip and bodily cavity searches" and twice was handcuffed and taken into a room where officers kicked him in the stomach, punched him in the face and screamed he was a "terrorist" and a "Muslim killer." Nine months later, he pleaded guilty to a fraud charge and was deported. He sued, alleging he was abused because of religion and race.

In Ashcroft vs. Iqbal, the administration's lawyers say the former attorney general did not know of or approve such mistreatment and should not be held liable.

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Whales and sonar

The case of the Navy and the whales is a test of a judge's power to enforce protections for the environment.

Alarmed by reports that marine mammals were hurt, disoriented and even killed by the piercing sounds of sonar, environmentalists went to court in Los Angeles. A judge ordered the Navy to turn off sonar when whales or other marine mammals were spotted within 1.2 miles of a ship.

Government lawyers said this order jeopardized the Navy's training exercises off California, and they urged the court to rule that the judge had exceeded her authority.

The case, Winter vs. NRDC, will be heard Oct. 8.

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david.savage@latimes.com

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