5 cases turned away

Monday, October 2, 2006

The Supreme Court today refused to hear appeals in five cases of interest to First Amendment watchers.

The high court refused to consider:

  • The case of a noted California lawyer who claimed a gag order imposed on her during a murder case violated her First Amendment rights.
  • An appeal brought by a conservative group in Maine that had wanted to air ads opposing gay marriage.
  • The case of a former Georgia sheriff who allegedly violated the First Amendment rights of political opponents.
  • A bid to revive a libel lawsuit filed against two Philadelphia newspapers by a critic of violent rap lyrics.
  • A Texas adult-bookstore worker's challenge to a state law making it a crime to promote sex toys shaped like sexual organs.

Allred v. Superior Court of the State of California, 05-1505
The Supreme Court refused today to step into a First Amendment issue involving Gloria Allred, a prominent California lawyer who was the subject of a judge's gag order in a high-profile murder case that is now over.

Allred, an outspoken television personality, represented a teenage girl who testified at the trial of Scott Dyleski, now 17. Dyleski was sentenced last week to life in prison without parole for the killing of Pamela Vitale, the wife of television legal analyst Daniel Horowitz.

Allred's client, Jena Reddy, is Dyleski's ex-girlfriend. She told the jury that while Dyleski never admitted or denied killing his neighbor, he told her he would take the blame to protect her and his best friend. Reddy also testified that hours after Vitale was slain, Dyleski told friends it would take at least three dozen blows to bludgeon someone and it would likely be a slow, painful death.

Late last year, amid intense media attention, a Superior Court judge in Contra Costa County issued a gag order aimed at attorneys for witnesses in the case, as well as police, prosecutors and defense lawyers.

Allred's lawyers, including constitutional lawyer Erwin Chemerinsky, say judges increasingly are engaging in prior restraint of free-speech rights in important cases.

The Supreme Court has never articulated a legal standard for when, if at all, gag orders on lawyers, parties and witnesses are permissible, said Allred's lawyers. They said that in the absence of guidance from the Supreme Court, judges have developed “quite different standards” on whether and when to gag the speech of attorneys, parties and witnesses.

Horowitz found his wife, who had been beaten to death, in the mobile home of a hilltop estate where the couple were building their dream home, up the road from where Dyleski lived.

Allred also represented Amber Frey, the former lover and star witness against Scott Peterson, who is on Death Row for murdering his pregnant wife, Laci, in 2003.

Christian Civic League of Maine v. FEC, 05-1447
Justices refused today to consider a lawsuit by a conservative group blocked from airing ads about same-sex marriage.

Last spring, the Christian Civic League of Maine attempted to run ads about the state's two U.S. senators, but a three-judge panel of the U.S. District Court in Washington, D.C., halted the effort and the Supreme Court refused to step in at the time. The Court issued a one-line order today saying the appeal is dismissed as moot.

Federal-election law bars corporations or labor unions from paying for any radio or TV broadcast referring to a candidate for federal office within 30 days of a federal primary election or 60 days of a general election.

The league had wanted to run the ads in time for the Senate debate on a constitutional amendment to ban gay marriage. The proposal was defeated June 7.

The proposed ad asked the public to call Maine's two senators, Republicans Olympia Snowe and Susan Collins, and urge them to vote for the amendment. Snowe is running unopposed.

The Christian Civic League asked the Supreme Court to consider whether the prohibition violated the group's free-speech rights.

The FEC and key lawmakers in Congress said the group's appeal is moot because the preliminary injunction sought last spring would no longer have any effect. The league asked for the injunction against “electioneering communication” provisions of the Bipartisan Campaign Reform Act of 2002.

Hendrix, et al. v. Bennett, 05-989
The Supreme Court said it would not consider the case of a former Georgia sheriff who allegedly violated the First Amendment rights of political opponents.

The dispute involves former Forsyth County Sheriff Dennis Lee “Denny” Hendrix and private citizen supporters of a referendum to strip the sheriff's department of primary law enforcement powers and create a new countywide police force supervised by the county commission.

In a lawsuit, Hendrix's opponents said he retaliated against them by engaging in surveillance and harassment and by disseminating campaign fliers attacking them by name when Hendrix ran for re-election.

The 11th U.S. Circuit Court of Appeals in Atlanta last year ruled in favor of Hendrix's opponents, saying they were likely deterred from exercising their First Amendment rights.

In asking the Supreme Court to take the case, Hendrix said the opponents must demonstrate the sheriff's actions had some actual, non-speculative chilling effect on their First Amendment rights.

Hendrix was elected sheriff in 1996 and lost a 2000 re-election bid.

Tucker v. Philadelphia Daily News, 05-1597
Justices declined today to revive a libel lawsuit filed against two Philadelphia newspapers by a critic of violent rap lyrics.

Longtime civil rights activist C. DeLores Tucker, who died last year, accused the papers of mischaracterizing her dispute with the estate of slain rapper Tupac Shakur and others. Shakur wrote lyrics that rhymed Tucker's name with an obscenity.

Tucker had sued Shakur, alleging, among other things, that her husband, William Tucker, had suffered loss of “consortium” because of the emotional distress brought on by Shakur.

The Philadelphia Daily News and The Legal Intelligencer, a daily newspaper covering legal affairs in Philadelphia, were among the news organizations that reported on the lawsuit and interpreted loss of consortium to mean harm to the Tuckers' sex life. Tucker said the claim had nothing to do with sex, but with “advice, society, companionship, i.e., defendants' effect upon the 'family union.'”

William Tucker pursued a libel suit on his and his late wife's behalf. Pennsylvania state courts dismissed the libel claims.

The Supreme Court previously rejected Tucker's appeal in a similar libel case against Time and Newsweek magazines. The original lawsuit against Tupac's estate also was dismissed.

Acosta v. State of Texas, 05-1574
The high court refused today to consider whether a Texas law making it a crime to promote sex toys shaped like sexual organs is unconstitutional.

An adult-bookstore employee in El Paso, Texas, sued the state after his arrest for showing two undercover officers a device shaped like a penis and telling the female officer the device would arouse and gratify her.

The employee, Ignacio Sergio Acosta, says a Texas law outlawing the manufacture, marketing or dissemination of an “obscene device” including those shaped like sex organs is unconstitutional because it prevents individuals from using such devices, violating their right to sexual privacy.

Colorado, Kansas and Louisiana have held such laws unconstitutional, while Georgia, Mississippi and Texas have upheld them, said Acosta's lawyer in urging the Supreme Court to take the case.

An El Paso County court granted Acosta's motion to dismiss a criminal complaint against him, but an appeals court reinstated it, saying the Texas law did not infringe on private sexual behavior.

The bar against promoting obscene devices has been found in other court cases not to infringe on a right to use obscene devices at home, the court of appeals for the 8th District of Texas ruled.

Acosta also said the Texas law should be examined in light of the U.S. Supreme Court decision in Lawrence v. Texas that struck down a state criminal law banning gay sex as an unconstitutional invasion of privacy.

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