Tuesday, October 06, 2009Last Update: 10:36 AM PT

     WASHINGTON (CN) - In a case that came preloaded with publicity, the Supreme Court heard arguments before a packed courtroom Tuesday on whether the ban on dog fighting videos violates the First Amendment.
     Congress passed law in 1999 to outlaw dominatrix videos where women torture small animals with their bare feet or while wearing heels.
     But the statute here has been applied to more than just crush videos. It was loosely written to bar the recording where "a living animal is intentionally maimed, mutilated, tortured, wounded, or killed."
     "Or killed!" Justice Antonin Scalia exclaimed, noting that humans kill animals for food all the time.
     Justice Stephen Breyer appeared concerned that the rule could be interpreted to ban depictions of hunting or even the making of fois gras.
     The measure exempts the recordings for religious, political, scientific, educational, historic, journalistic, or artistic value.
     Patricia Millet from Akin Gump Strauss Hauer & Feld, represented Robert Stevens, who sold dog fighting videos. She argued that the government is simply banning something it doesn't like. "If it's just that we don't like the content, outside obscenity, Congress doesn't get to ban it," she said.
     She also said that the videos were sold to demonstrate the cruelty of dog fighting, which might put it under political exemption.
     Deputy Solicitor General Neal Katyal, who represented the United States, disagreed that the law was simply censorship, and argued that the ban on dogfight recordings helps to dry up the market. He said that stopping the actual dog fights has proven too difficult.
     Stevens sold three videos to undercover police of dog fights that had been filmed where it was legal. He was found guilty by the district court, but the Third Circuit concluded that the videos were protected speech and set aside the conviction.
     The issue now sits before the Supreme Court.
     Katyal, who argued in favor of the ban on dog fighting videos, compared the depiction of dog fighting to that of child pornography, but many of the justices dismissed this association.
     Justice Ruth Bader Ginsburg distinguished between the two. "The abuse of the child, it occurs only because the picture is being taken," she said. "The dog fight goes on whether Mr. Stevens is there with his camera or not."
     Scalia asked whether the government's interpretation would outlaw the marketing of bullfighting videos.
     Katyal replied that someone could market Spanish bullfighting videos because they are educational, and therefore exempt from the rule.
     "Well, I guess a dogfight is educational, too," Scalia replied.
     "It isn't illegal in Japan, and part of the video here were dog fights in Japan, legal where it occurred, no different from bull fighting," Ginsburg noted.
     But Katyal replied that it is difficult to establish where the films are made to allow for certain videos and not others.
     When it was Millett's turn to argue in defense of the dog fighting videos, Scalia showed his apparent favor for her side of the case.          
     "I really think you should focus, not on the educational value to make people hate bull fighting, but on quite the opposite, it seems to me," Scalia said. "On the right under the First Amendment of people who like bull fighting, who like dog fighting, who like cock fighting, to present their side of the debate."
     That way it would fall under the political exception, he explained.
     Of all the justices, Justice Samuel Alito may have posed the toughest questions of Millett. "What about people who like to see human sacrifices?" he asked. "Suppose that is legally taking place someplace in the world. I mean, people here would probably love to see it. Live, pay per view, you know, on the human sacrifice channel," he said to laughter.
     But before Millett could fully answer, Scalia jumped in. "You can create a lot of First Amendment horrible," he said.
     He brought up the scenario of a new Adolf Hitler. "Can we censor any depiction of that new Adolf Hitler and the horrible things that he is proposing, including extermination of a race?" He asked. "Is that proscribable under the First Amendment?"
     Millett jumped at the opportunity to say that even though something may be repulsive, depictions of it should not automatically be outlawed.
     Later, when Chief Justice John Roberts directed Millett back to Alito's question about the recording of human sacrifices, she answered that it could be banned only if it is done to be recorded, just as she argued in the case of child pornography.
     Breyer was skeptical of Millett's argument that Stevens sold the videos for a noble cause. "Promoting a thing which communicates nothing, but appeals to people's worst instinct," he said, "that is not to advocate it or not to advocate it."
     "It's not up to the government to tell us what our worst instincts are," Scalia said. "If the First Amendment means anything, that's what it means."

     WASHINGTON (CN) - The Supreme Court heard arguments Monday over whether an order to disclose materials supposedly covered by the attorney-client privilege meets the criteria for immediate appeal.
     Generally, appeals can only be sought once a final decision is reached. There are only limited exceptions to that general rule.
     In the Cohen v. Beneficial case, the Supreme Court established 3 requirements for a category to be allowed immediate appeals. First, that the outcome of the case would be determined by the issue. Second, that the matter appealed must be collateral to the merits, and third, that immediate appeal be vital in reviewing the case.
     The case now before the Supreme Court is associated with a class action that was filed against Mohawk Industries Inc., a carpet company. The class action charged the company with hiring illegal aliens, resulting in lower wages for legal workers.
     In a separate occasion, Norman Carpenter, who worked as a supervisor at the company, was fired after he complained that many of the employees were illegal.
     Carpenter said that he was required to meet with Juan Morillo, Mohawk's outside counsel in the class action, to talk about his complaint. He alleged that Morillo tried to convince him to withdraw his report, which would have surely looked bad for the company in the class action.
     When the plaintiffs in the class action learned of Carpenter's dismissal, they sought an emergency evidentiary hearing to collect evidence on the circumstances of his dismissal.
     At the same time, Carpenter's lawyers tried to gain access to documents from Mohawk that were linked to his communications with Morillo, as well as the reasons behind his termination.
     Mohawk refused to release the documents, citing the attorney-client privilege.
     After Carpenter filed a motion to compel production, the district court found that the attorney-client privilege did apply, but that Mohawk had waived the privilege in relation to the class action.
     Mohawk did not agree that it had waived its privileges.
     The district court judge ordered that Mohawk release the documents, but the company appealed and the judge stayed the order.
     Mohawk pursued an immediate appeal to the Eleventh Circuit Court of Appeals to get the district court judge to vacate the order, but the supervisor, Carpenter, claimed the court of appeals lacked jurisdiction to review the district court's discovery order, arguing for the dismissal of the appeal.
     The Eleventh Circuit determined that Mohawk should indeed release the documents, but recognized a circuit split on the issue.
     A major point of debate is whether the attorney-client privilege is important enough to merit collateral order review.
     Mohawk argued that the importance of the attorney-client privilege in the legal system is such that it merits a status that allows for immediate review.
     Carpenter, disagreed, saying the privilege is less important than some categories that have already been denied for immediate appeals, like constitutional rights. He argued that such an allowance could flood the appellate courts with appeals.
      "Do you really think that confidentiality right is any more important to the proper functioning of society than, let's say, the protection of trade secrets?" Justice Antonin Scalia asked Mohawk's lawyer Randall Allen.
     Justice Stephen Breyer expanded on that point.
     "Husband-wife, priest-penitent, psychiatrist and patient... all of those are privileged," he said, noting at the same time that none justify a collateral appeals, nor do trade secrets.
      "If we grant your collateral appeal," Breyer continued, "don't we have to equally grant it in every situation where a judge arguably makes an erroneous ruling on a question of privilege?"
     Allen said he was worried the adversary lawyer could use the information against his client.
     "So there is a remedy," Justice Sonia Sotomayor said. "After final judgment, if the information was disclosed erroneously, the court sets aside the judgment, sends it back, and says, you can't use it in the future and so make your case without it."
     But the fact that cases which get immediate appeal often have the government or government officials as a party brought scrutiny from Chief Justice John Roberts.
     "Does that distinction make sense to you?" Roberts asked of Judith Resnik, lawyer for the respondent. "Government lawyers get the privilege, private lawyers don't?"
     Roberts then answered the question many of the justices asked of Allen of Mohawk. "This is not like the other privileges, priest-penitent, other evidentiary privileges," he said, "because it is the privilege that allows lawyers to protect the interests in those other cases."

     (CN) -- The U.S. Supreme Court on Monday refused to hear an anti-abortion group's claim that Illinois' refusal to create "Choose Life" vanity license plates discriminated against their pro-life message.
     Choose Life Illinois Inc. got more than 25,000 signatures to create the specialty license plate, but state officials refused to issue one because they said they didn't want to take an official position on the abortion issue. The group sued, arguing that they were discriminated against.
     But the Supreme Court let stand the 7th Circuit's decision in 2008 that said the state didn't have to enter the abortion debate.

     (CN) - The U.S. Supreme Court on Monday declined to hear a songwriter's claim that his tune was stolen by the producers of the "Titanic" soundtrack.
     John Jorgensen sued Sony BMG Music, claiming that his song, "Long Lost Lover," was infringed by the songs "My Heart Will Go On" and "Amazed."
     "My Heart Will Go On," sung by Celine Dion, was the Oscar-winning love theme from the record-shattering film "Titanic," while "Amazed" was a hit for the country band Lonestar.
     In 2003, the New York City-based 2nd Circuit dismissed Jorgensen's pro se complaint on the basis that his suit was already decided in a similar case against the company's predecessor, Sony Records.
     "The factual allegations with respect to Sony in this complaint are identical to those in the previous complaint," the 2nd Circuit wrote.
     Jorgensen had argued that his tune was stolen as a result of his unsolicited mass mailings of the song to several record companies.
     On Monday, the nation's highest court decided not to disturb the lower court's ruling.
     Newly elected Supreme Court Justice Sonia Sotomayor took part in the 2nd Circuit decision, so she did not participate in the high court's refusal to take the case.