Issue 110, Summer 2009

FCC Challenge, Again

The Supreme Court ducked the First Amendment issues in Federal Communications Commission v. Fox (See CN 109), a challenge to the FCC’s ban on “fleeting expletives.” Fox was fined because Cher, commenting on her critics, said “fuck ’em” and Nicole Ritchie uttered the words “fuck” and “shit” during broadcasts of the Billboard Music Awards. Fox argued that the rule is applied in an arbitrary and capricious manner, and that it violates the First Amendment.

In a 5 – 4 decision, the Court ruled that the FCC’s actions were a rational response to “foul-mouthed glitterati from Hollywood.” Given the FCC’s inconsistent application of the rule, however, it is hard to imagine what would qualify as “arbitrary and capricious.”

The Court sent the case back to the Second Circuit Court of Appeals to consider the First Amendment claims. A week later, the Court also vacated a Third Circuit decision (FCC v. CBS) holding that the FCC had been arbitrary and capricious in fining CBS for “fleeting nudity” over Janet Jackson’s “wardrobe malfunction” at the 2004 Super Bowl broadcast and sent it back for reconsideration in light of Fox.

Are Depictions of “Animal Cruelty” Protected Speech?

United States v. Stevens, a major First Amendment case coming up next fall, challenges a federal law prohibiting the commercial creation, sale or possession of depictions of animal cruelty that lack serious value. The plaintiff was convicted and sentenced to 37 months in prison for videotapes about pit bulls, which included historical footage of dog fights and dog fights in Japan, where they are legal, and commentary about the care and training of pit bulls. The Solicitor General, in defending the law, is asking the Court to declare that depictions of “animal cruelty,” constitute a category of unprotected speech, like obscenity, unless a jury decides they have serious value.

Such a holding would affect documentary film and art, as well as depictions of hunting, bullfights, and the like. While the “serious value” exemption might appear to mitigate the effects of the statute, it is inadequate because the definition of protected expression would depend on whether judges and juries think it has serious value. Even more alarming is the government’s suggestion that whole categories of speech might not be protected if their “societal costs” outweigh “the value of the speech.” By this logic, almost anything controversial could be up for grabs, including videos games, rap music, depictions of violence, flag desecration, racially charged speech, etc., etc.

The End of Gene Patents?

Who owns your DNA? The answer might surprise you. The US Patent and Trademark Office grants property interests in certain types of living organisms and their constituent parts, including genes, the building blocks of human life.

Gene patents prevent anyone other than the holder of the patent from conducting research on that particular gene. The control exercised by gene patent holders not only raises ethical and public health concerns, but also constitutes governmentsanctioned restrictions on medical research and information.

The ACLU and the Public Patent Foundation are challenging the constitutionality of this practice in a recently filed case, Association for Molecular Pathology, et al. v. United States Patent and Trademark Office, et al. At issue are two patents, owned by Myriad Genetics and the University of Utah Research Center, on mutations of the BRCA gene — indicators for increased risk of breast and ovarian cancer.

Myriad has aggressively enforced its patent, precluding other scientists from doing research on the BRCA mutations. Its monopoly on testing, and its $3000 charge, impedes the ability of many poor women to be tested for the mutations.

The case is a creative attack on suppression of scientific research facilitated by the government through its power to grant patents. Like the ACLU, we think this violates the First Amendment. We will keep you posted on developments in the case.