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The Hitchin' Post and Section 1983 Can a prisoner sue state prison officials for violating his civil rights--here, subjecting him to the seemingly cruel and unusual punishment of being shackled to a hitching post (not to mention the accompanying "prolonged thirst and taunting")--if the officials didn't know their conduct was illegal? Court precedent says no, so the Justices considered this: did the fellows in charge have warning, under law, to know this particular disciplinary method is off limits? Six justices sided with the Bush administration and ruled you bet: y'all should have known better. Thomas, joined by Scalia and Rehnquist, says not so fast. The "petitioner’s specific allegations against respondents" is far from obvious. "What is 'obvious,' however, is that the Court’s explanation of how respondents violated the Eighth Amendment is woefully incomplete." Click here for Hope v Peltzer; click here for the SG's brief
Lapides v. Board of Regents of Georgia No. 01-298
City of Columbus v. Ours Garage & Wrecker Service No. 01-419
Are State Patient
Protection HMO Laws Preempted by Federal Statute?
Surf's up, but
Beware the Secondary Effects of those Bikinis
The Supremes remind that deference to the 9th Circuit is not unbounded, either. O'Connor, writing for a 5-4 Court, upheld the Los Angeles ordinance because it (1) is content neutral, (2) the city, in passing a content neutral regulation, need only show a link between suspect activity and harmful secondary effects--"it does not bear the burden of providing evidence that rules out every (other) theory." According to O'Connor, local experimentation should be respected: "municipalities will, in general, have greater experience with and understanding of the secondary effects that follow certain protected speech than will the courts." This may be the best the Court can do under the circumstances--Justice
Kennedy, earlier this term, praised the themes animating "American
Beauty" and "Traffic" (Ashcroft
v. Free Speech Coalition)--but there is a more compelling
option on the table. As Scalia states in his concurrence, "the
Constitution does not prevent those communities that wish to do so from
regulating, or indeed entirely suppressing, the business of pandering sex."
The First Amendment is not at risk when communities regulate conduct, or at
least conduct devoid of meaningful expression.
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Virtually
everyone agrees that cities can regulate "adult" merchants and
entertainers if they have an adverse enough effect on the community. Up
for debate: how does a city legitimately prove these adverse effects--can
it rely on partial evidence or does it need to produce a precise link between
cause and effect? According to the 9th Circuit, harmful impact on the
locals must be specifically proven before a smut restriction passes First
Amendment muster. Los Angeles failed to prove that adult entertainment
establishments, clustered in one building, have unpleasant secondary effects;
therefore, its prohibition of multiple sex shops under one roof (Municipal Code
12.70c) can not stand (click 