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Podcast FCC v. AT&T

By Marc Seltzer; the following podcast was originally broadcast at via iTunes on January 16, 2011 at Supreme Podcast.

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This week the Supreme Court heard oral arguments in a case titled Federal Communications Commission v. AT & T.

The case comes out of the third Circuit, which includes the states Delaware, New Jersey and Pennsylvania, after a three judge appellate panel there decided in favor of AT&T, and the Federal Communications Commission, or FCC, petitioned the Supreme Court for review.

The case concerns the potential release of documents contained in an FCC investigation file.

The FCC, a federal agency, conducted an investigation into potential overcharging of the government by AT&T on a technology project for the New London school district.  AT&T had called the billing issues to the government’s attention after its own internal investigation and subsequently reached an agreement to resolve the issue.  However, a trade association, including competitors of AT&T, filed a Freedom of Information Act request, commonly referred to as a “FOIA,” seeking release of the FCC file.  The file included internal e-mails providing pricing and billing information, the names of employees involved in the billing issue, and AT&T’s internal assessments of the employee’s violations.

The FOIA request required government officials to turn over documents unless an exemption applies.

AT&T asserted that a law enforcement investigation exemption, #7, applied to information in the government’s possession, which is private, and if released would be an “unwarranted invasion of personal privacy.”

Supreme Court precedent on FOIA generally has embraced a balancing act.  In one recent noteworthy case, United States DOD v. ACLU, over the release of photographs of prisoner abuse by the US military, the high court explained:
Congress established in FOIA a “basic policy”
favoring disclosure, but it simultaneously recognized
that “important interests [are] served by the exemptions.”
Those exemptions embody Congress’s commonsense
determination that “public disclosure is not always
in the public interest.”  For that reason, the “Court consistently
has taken a practical approach” in interpreting FOIA’s
exemptions, in order to strike a “workable balance.”

The FCC reviewed AT&T’s request to keep the government’s files secret and decided that the personal privacy exemptions did not protect corporations from the release of private information:  “A corporation, as a matter of law, has no ‘personal privacy.'”

AT & T challenged the FCC decision by filing a lawsuit in federal district court, claiming that Exemption 7 for personal privacy applied to corporations.  AT&T argued that “person” is defined in the FCC exemptions to include an individual, partnership, corporation, association, or public or private organization other than an agency.”  If person included corporation, AT&T argued, it followed that personal privacy would include corporate privacy.  However, the district court agreed with the FCC, finding that a corporation could not claim protection of a personal privacy exemption.  Person may be defined as corporation, but personal was not defined, and neither case law nor common usage conceived of personal as applying to corporations.

On appeal, the Third Circuit Court of Appeals reversed, agreeing with AT&T that the use of the world person included corporate or other entities and the words personal privacy included information of a corporation such as AT & T.  Neither the Third Circuit nor the district court conducted the second part of the exemption inquiry to determine, if the law protected corporations’ privacy interests, did the evidence in this instance require withholding documents in order to protect those interests.

The US supreme court will now decide if the FCC was right in rejecting AT&T’s claim to a personal privacy interest.

In oral argument, the justices appeared skeptical of AT &T’s attempt to include corporations or other entities within the language of personal privacy, especially given no traditional of doing so.  Discussing why the issue did not appear to have come up before, Justice Breyer said:

“Well, one reason might be that this has really never been a problem because all the legitimate — or most of them, anyway — that these organizations that have interests in privacy are actually taken care of by the other 17 exemptions here.”

Justice Scalia: “Another reason might be that personal — nobody ever thought that personal privacy would cover this.”

AT&T’s counsel,  Jeff Kleinberg, raised the issue of the use of FOIA by commercial competitors.

“Increasingly, FOIA is being used by – by competitors and legal adversaries to obtain information, not about what the government is doing, not about what the government is up to, but about what evidence the government might have gathered from private parties.”

But Justice Ginzberg asked: “Is that a reason to change what was the understanding of Exemption 7?”

The justices then inquired into the understanding of the exemption at the time that FOIA was created.

Attorney Kleinberg:
Well, Your Honor, the –Attorney General Levy’s memorandum did not go into a long discussion or description of the analysis. It simply said it does not appear or does not seem to apply to corporations.

Justice Scalia, somewhat rhetorically looking for congressional intent stated,
“But if Attorney General Levy’s description, which was — which was issued for the purpose of telling all the agencies of the Federal government what this new statute meant — and it had a lot of ambiguities in it — if that was wrong about -about this subject, you would have thought somebody would have objected.
I mean, did some members of Congress who -who had passed FOIA say, this is outrageous; what about the personal privacy of General Motors? I’m not aware of any objections along those lines.”

Protesting Homosexuality at Funerals

By Marc Seltzer; originally published at care2.com on October 18, 2010
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Last week the U.S. Supreme Court heard oral argument in the case of a Baptist Minister who claimed that his first amendment right to free speech entitled him to protest at the funerals of U.S. military service men and women. The case follows roughly in line with those that have accorded the greatest possible freedom to Americans who make public political statements — in this case, “God Hates You,” and “Thank God for Dead Soldiers” — however offensive.

However, unlike past cases that evidence a strong bias towards free expression in the public forum — for example, Neo Nazi marchers in Chicago, demonstrating in the streets, or the pornography of Larry Flint, published in print — the anti-homosexuality protests of the Westboro Baptist congregation disrupt private sacred rituals.

Not just in the United States, but in cultures far and wide, reaching back as far as archaeological evidence exits to document, burial rites have been among the most profound of human traditions.

Would barring protests at funerals really undermine our First Amendment freedom?

Is there a slippery slope worry? Stop someone from protesting at a funeral today, and tomorrow they will be blocked from picketing in front of a factory or speaking on the steps of city hall?

I can think of nothing so precious — save maybe the moment of birth of a child — as the solemn ritual of family and friends gathering at graveside or place of worship, to eulogize, show support, to weep and to say goodbye to loved ones. To disturb people in either of these situations — and to use the Constitution to do so, is unacceptable.

It is not the type of speech which stands out here, it is the inappropriate context. Grief is not a public forum but a private rite. To undertake the necessary process of grieving requires not just the support of community but the immersion in the experience of loss. The funeral, however constituted by cultural tradition, leads us through both a conscious and unconscious transformation.

This sacred space must be preserved.

(For more on this story, including notes on the questions asked by new Justice Elena Kagan, check out my October 9, 2010, podcast review of the legal case Snyder v. Phelps at SupremePodcast.com)

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January 12, 2011 UPDATE:  Following the Arizona shootings of January 9, 2011, the Arizona legislature unanimously passed a law barring protests in the immediate vicinity of funerals.

Redefining America: Constitution and Leadership 2010 — Oil Spill #2

Podcast June 10, 2010, “Oil Spill #2”

Anti-Vaccine Crusader Wakefield Banned from Practicing Medicine

By Marc Seltzer; originally published on May 23, 2010, at care2.com

Andrew Wakefield, who published a study in 1998, linking autism to vaccines, has been banned from practicing medicine by the General Medical Council, which overseas and licenses doctors in the U.K.  The council found Wakefield guilty of serious professional misconduct.

The study published by Wakefield and several other authors was originally published in the leading medical journal Lancet.  The Lancet recently retracted the study and ten of the other original participating authors have renounced its conclusions.  Among the problems for Wakefield, he did not have approval for the research that made up the study and he took blood samples from children at a birthday party.  Numerous studies since 1998 have failed to show a correlation between vaccines and autism.

The official medical community has generally had harsh words for Wakefield because subsequent studies have shown that the measles, mumps and rubella vaccine is safe and effective and because children have become ill and died from the diseases such as measles that are stopped by the vaccine.

”That is Andrew Wakefield’s legacy,” said Paul Offit, chief of infectious diseases at the University of Pennsylvania. ”The hospitalizations and deaths of children from measles who could have easily avoided the disease.”

In the United States thousands of claims have been filed seeking compensation for children who are alleged to have been hurt by vaccines.  However, two rulings by the U.S. Court of Federal Claims in March of 2009 found no link between vaccines and autism.

Health care policy professionals are concerned that Wakefield’s claims, despite being discredited, have undermined confidence in vaccines and lowered the rate of vaccination of children, putting more children at risk of death or complications from illnesses.

Comment re Holding Back Miranda Warnings for Terrorism Suspects

Comment to politics blog at care2.com

I like what Holder said and how he said it. I think it was carefully put, unlike political barbs that over-simplify. Holder said that the “public safety exception” to the Miranda requirements allowed police to delay giving Miranda warnings for a few hours when the officers needed information about a crime in progress to protect the public. If they caught a suspect in the course of a bank robbery, for example, they getting information quickly and was more important than providing a lawyer quickly. The warning against self-incrimination and the lawyer would still be provided as soon as the emergency was over.

Holder is saying that in the terrorism context, the “public safety exception” should give law enforcement more time to interrogate a suspect and get information about ongoing terrorist activity before providing Miranda warnings and legal representation. There are a number of issues to be looked at about treatment of a suspect, but there is nothing wrong, in my book, with being practical and facing changing circumstances. Holder is saying that Congress and the administration, working together, can craft a law that will meet constitutional requirements while updating the public safety exception to meet the needs of law enforcement in facing terrorist attacks on U.S. soil. This is an incremental approach, respecting the laws and constitution, but also asserting that law enforcement needs new procedures to deal with current problems.

Redefining America: Constitution and Leadership 2010 – BP Gulf Oil

Marc Seltzer and Jessica Pieklo continue a podcast conversation about current issues:

May 12, 2010:  BP Gulf Oil Disaster Podcast (click to listen)

Stocks Tumble, Uncertainty Rises

By Marc Seltzer; originally published May 6, 2010, care2.com
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The U.S. stock market took a wild ride Thursday as the DOW index of stocks fell 1,000 points at its lowest and ended the trading day down 347, or more than 3%.  The economic concerns of the day centered on the turmoil in Europe as Greece needs a bailout to avoid default on its public debt.  However, the Securities and Exchange Commission (SEC) is investigating unusual trading activity to determine whether mistakes or manipulation caused a rapid drop of stock prices shortly after 2:30 p.m.

The crisis in Europe is serious.  Greeks have been rioting for several days over the economic hardships that are being imposed, as the government seeks to rein in public spending and convince European nations that it will show fiscal discipline, if given a new loan package.  Skeptics believe that even with new loans and belt tightening, Greece will eventually have to restructure its debt.

However, Greece is a small nation and its economy is only a small fraction of Europe’s economic power.  The market’s concern is that Greece’s problems might also surface in larger European economies such as Portugal, Italy or Spain.  Not unlike the U.S. bailouts to financial institutions in 2008, European governments today are stepping in to stop Greece’s failure from spreading.

While the decline in Greece is in itself too small to negatively impact the U.S. economy, greater weakness in Europe could hurt U.S. export sales and overall confidence in the recovery.  On the other hand, the U.S. stock market has risen dramatically since the financial crisis abated.  It may simply have been due for a correction.