U.S. Supreme Court
SCOTUSBlog's Amy Howe reports that there was bipartistan backing for the introduction of cameras in the Supreme Court at a House Judiciary Committee subcommittee hearing Wednesday. The bill under consideration would authorize, but not mandate, the Supreme Court to allow televised proceedings. Mickey Osterreicher, the GC for the National Press Photographers Association, "noted that interest in the Supreme Court is high when, as now, the Court has a wide variety of landmark cases on its docket, but public seats at the Court are very limited. By contrast, he emphasized, the many state supreme courts that have allowed their proceedings to be televised have not experienced problems." The Supreme Court justices, however, continue to generally oppose cameras in the highest courtroom in the United States, Howe notes.
The New York Times' Adam Liptak reports on the U.S. Supreme Court's oral arguments today on whether Peggy Young was unlawfully discriminated against by UPS when the company refused to assign her to lighter duty during her pregnancy: "The basic question in the case, Young v. United Parcel Service, No. 12-1226, was what to make of language in the pregnancy law that requires employers to treat 'women affected by pregnancy' the same as 'other persons not so affected but similar in their ability or inability to work.'"
The UPS has said it will start offering light duty to pregnant women next year, but defends its old policy as legal and fair.
SCOTUSBlog's Amy Howe reports that, after oral argument in the U.S. Supreme Court today, there is no clear path for victory for Anthony Elonis or the federal government in a case testing the First Amendment boundaries of "true threats." At issue is whether Elonis' criminal liability for his violent, rap-like Facebook posts should be judged by whether he intended to place his ex-wife, an FBI agent and others in fear or if a reasonable person would perceive his posts as truly threatening.
Whether a subjective standard would actually protect more speech is an open question. In fact, Howe notes, "Justice Sonia Sotomayor was puzzled about whether there was actually any difference between the two standards. If you can infer someone’s state of mind from the circumstances 'of how and what was said in words,' she asked, isn’t the jury really looking at what a reasonable person would think anyway?"
Chief Justice John Roberts asked if the government's standard might result in prosecutions for violent rap lyrics and "did not appear" satisfied by the government's answer that rap artists wouldn't face prosecution because they are in the business of entertainment, Rowe further reports.
Justice Elena Kagan suggested a middle ground of a recklessness standard.
The Los Angeles Times' David G. Savage reports that President Obama's use of executive action to shield immigrants from deportation won't just raise the ire of Congressional Republicans: "By claiming the power to forge ahead based on his executive authority, the president may well lose the one conservative he still really needs: Chief Justice John G. Roberts Jr." Savage wonders if Obama's immigration action could influence how Roberts views the latest challenge to the Affordable Care Act: "At issue is whether the administration must abide by one provision in the healthcare law, which says subsidies may be paid to those who enrolled in state health exchanges, or whether the president can extend those benefits to include people who signed up on the federally run exchange."
Journalism professor Will Nevin writes about the U.S. Supreme Court case, United States v. Elonis, that'll be heard in oral argument this week. At issue is whether a conviction for making "true threats" on-line requires that the speaker subjectively intended the threat or if a reasonable person would objectively view their speech as a threat. Anthony Elonis says he was writing rap songs and satire instead of wanting to make his estranged wife, law enforcement, coworkers and others fear for their safety.
Matthew D. Bunker, a professor and media law expert in the University of Alabama's College of Communication and Information Sciences told colleague Nevin that true-threat jurisprudence is "'not a fully developed area of the law. There are a few broad pronouncements from the Supreme Court, but I don't think the court has worked out the intricacies of the doctrine.'" Ronald Krotoszynski, a constitutional law professor at the University of Alabama School of Law, asked why Elonis should escape liability for threats made through speech when he would face liability for brandishing a gun, but Woodrow Hartzog, an associate professor and media and privacy law expert at Samford University's Cumberland School of Law, warned that a ruling against Eloni could limit more speech than is necessary.
The Washington Post's Robert Barnes has a preview of arguments next week in the U.S. Supreme Court in the case of United States v. Elonis. Anthony Elonis made several threats on Facebook in rap-style lyrics toward his estranged wife, law enforcement, schoolchildren and co-workers, and he was convicted in federal court of making "true threats" toward most of those people. At issue in the Supreme Court is whether the test for proving someone guilty beyond a reasonable doubt of making a true threat should be whether they subjectively intended to make good on the threat or if a reasonable person would view the speech as a threat. At issue are " the unique qualities of social media," Barnes writes. "In this rapidly evolving realm of communication, only the occasional emoticon may signal whether a writer is engaging in satire or black humor, exercising poetic license, or delivering the kind of grim warnings that have presaged school shootings and other acts of mass violence."
The U.S. Supreme Court has taken up another existential challenge to Obamacare. The plaintiffs in King v. Burwell allege that the Affordable Care Act doesn't allow the federal government to provide tax credits and subsidies to low-income and moderate-income consumers shopping for insurance on the federally-run insurance exchange, The Huffington Post's Jeffrey Young reports. The Obama administration argues that Congress intended to provide tax credits to people shopping for health insurance whether an exchange is state-run or federally run, but the plaintiffs allege the Affordable Care Act only allows subsidies for insurance bought on an "'exchange established by the state,'" Young also reports.
If the Supreme Court rules in favor of the plaintiffs, "absent financial assistance, many fewer people would be able to afford coverage and likely would drop their insurance or never purchase it. Higher prices also would discourage healthy people who are cheaper to insure from buying policies, leaving a sicker pool of customers on insurers' books," Young further reports.
Earlier today I posted about how Missouri's ban on same-sex marriage was struck down by a state-court judge, and I was feeling a complacent sense of happiness that social change was proceeding apace. Well, no more. The Sixth Circuit ruled today in favor of same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee. The decision reverses the district court judges who struck down the various states' bans as unconstitutional. As a result, there is now a circuit split on same-sex marriage. The U.S. Supreme Court refused to take up same-sex marriage cases earlier this year, but that was when there wasn't a split among the circuit courts of appeals on the issue. The justices are much more likely to take up cases when there is a split about the circuits, so we may get a same-sex marriage case on the court's docket before June after all. Here's the opinion from the Sixth Circuit: