9th Cir. Judges Ready for Their Close Up? En Banc Hearings Live-Streamed Starting Today

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The United States Court of Appeals for the Ninth Circuit was scheduled today to become the first appellate court in the nation to live stream all of its en banc hearings on its Website, the Los Angeles Times reported recently.

Although en banc hearings involving the court's chief judge and 10 other jurists amount to about 20 cases heard by the court annually, video streaming marks progress in the eyes of free press advocates who believe the First Amendment and Sixth Amendment of the Constitution should open all federal courts, including the Supreme Court, to video recording.

Most appellate court cases are decided by three-judge panels. The Times article last week noted the scheduled inaugural video streamed case concerned law enforcement officials collecting and storing arrestees' DNA profiles, even where charges against individuals subsequently dropped.

Supreme Court Leaves Telcom Cos. Shield in Place

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The United States Supreme Court this week declined to hear a challenge by the ACLU and the Electronic Frontier Foundation to legislation that provides legal immunity to telecommunications companies that assist the National Security Agency in monitoring citizens' email and telephone communications.

The Associated Press reported that the High Court left in place a unanimous ruling by a three-judge panel of the United States Court of Appeals for the Ninth Circuit on December 29, 2011, that upheld a lower court ruling that the 2008 surveillance rules enacted by Congress were constitutionally permissible.

The rules, which allegedly enabled the intelligence community to engage in warrantless monitoring of Americans' communications, were targeted by the ACLU and EFF in lawsuits against various telecommunications entities, including Sprint Nextel Corp. and Verizon Communications, Inc. that claimed violation of customers' privacy.

9th Circ. Okays Public Television Accepting Political Ads

In a 49-page decision, the United States Court of Appeals for the Ninth Circuit ruled 2-1 to overturn a federal law banning public television stations from accepting public issue and political advertising.

In Minority Television Project, Inc. v. FCC (Case No. 09-17311), the appeals court reversed the trial court, holding that the federal law restriction was unconstitutional. The FCC fined San-Francisco based KMTP-TV $10,000 for airing paid promotional messages from for-profit companies in violation of 47 U.S.C. sec. 399(b). The statute bars public broadcasters from being compensated for messages for (1) for-profit cos., (2) that express personal views and (3) political messages supporting candidates.

The Ninth Circuit upheld the proscription regarding for-profit companies (and therefore, the $10k fine), but found the law's remaining provisions violative of the First Amendment.

9th Cir. Rules Oregon Child Sexual Abuse Laws Violate 1st Amendment

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The U.S. Circuit Court of Appeals for the Ninth Circuit this week in Powell Books, Inc. d/b/a LLC v. Kroger (Nos. 09-35153, 09-35154) declared unconstitutional  two Oregon statutes intended to combat child sexual abuse as violating the First Amendment.


Oregon Rev. Stat. sec. 167.054 criminalized furnishing minors under age 13 with sexually explicit material, and Oregon Rev. Stat. sec. 167.057  imposed criminal penalties on those who lure minors under age 18 with visual, verbal or narrative descriptions of sexual conduct to arouse sexually the minor or the furnisher of the material or inducing the minor to engage in sexual activity.


Legislators claimed the laws were narrowly drafted to protect children from hardcore pornography. The validity of the statutes was challenged collectively by booksellers, nonprofit legal and health organizations, including the ACLU and Planned Parenthood of Columbia/Willamette, and a grandmother who argued the measures were over-broad and  criminalized otherwise protected speech.  The three-judge appellate panel agreed.

Writing the opinion joined by Senior Judge Ferdinand Fernandez and Judge Richard Paez, Judge M. Margaret McKeown said the statutes at issue, as drafted, "sweep up a host of material entitled to constitutional protection, ranging from standard sexual education materials to novels for children and young adults by Judy Blume."  The Court noted that materials that decidedly were not pornography, such as children's books Mommy Laid an Egg and Where Do Babies Come From? along with depictions of sex acts in  the best-seller The Joy of Sex, would be actionable under the Oregon statutes.

Federal Appeals Court Will Televise Civil Trials

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The U.S. Circuit Court of Appeals for the Ninth Circuit has given the go-ahead to an experiment that will allow the broadcasting of certain civil trials within the circuit's 15 district courts.

The unanimous vote by the circuit's Judicial Council will permit cameras in non-jury civil trials only. The chief district court judge will consult with the circuit's chief judge in choosing which civil matters will be included in the experiment.

Included in the Ninth Circuit are California, Alaska, Nevada, Montana, Idaho, Arizona, Montana, Hawaii, Oregon, Washington, Guam, and the ever-popular Northern Mariana Islands Commonwealth. Since 1991, the 9th Circuit has allowed video and audio recordings of oral arguments in about 200 cases, which are available on the Court's Web site http://www.ca9.uscourts.gov/media.