The BLT: The Blog of Legal Times

Supreme Court to Expedite Release of Audio for Health Care Arguments

Updated at 4:30 p.m.

The Supreme Court just announced that it will provide same-day release of the audio of the historic oral arguments in the cases challenging the Affordable Care Act beginning March 26.

Citing the "extraordinary public interest in those cases," the Court's announcement said that both the audio and an unofficial transcript of the arguments would be posted on the Court's Web site as soon as possible after they occur on each of the three days of argument. That represents no change when it comes to the transcripts, which already are posted on the same day of the argument. But it does mean a new policy for the health care cases when it comes to the audiotapes.

Under current policy, the audio of arguments is released by the Court on the Friday after they take place -- a timetable that makes the tapes of little use for news media. Same-day release used to be allowed in select cases, beginning with Bush v. Gore in 2000, but it was pushed back to Fridays last term.

Today's release is silent on the subject of television coverage of the health care cases, but it is safe to infer that the Court is rejecting that request, made by several news media organizations after the Court announced it would review the health care law last November.

In his letter to the Court last November, C-SPAN chairman and CEO Brian Lamb said the health care cases "will affect every American's life, our economy, and will certainly be an issue in the upcoming presidential campaign." He also said that because of the six-hour length of the arguments, "interested citizens would be understandably challenged to adequately follow audio-only coverage." 

The Reporters Committee for Freedom of the Press also asked the Court for video access to the proceedings, but as a fallback position asked for same-day release of the audio of the hearings.

Update: Responding to the Court's statement, C-SPAN has announced it will broadcast the audio of the health care arguments, as soon as they are available, on C-SPAN 3, C-SPAN Radio, C-SPAN.org.

C-SPAN also issued the following statement about the Court's action: "We appreciate that the Supreme Court has taken steps to expedite the release of audio recordings of the oral arguments in the Patient Protection and Affordable Care Act cases on March 26, 27, and 28. C-SPAN will provide same-day airing of these arguments on C-SPAN3, C-SPAN Radio and C-SPAN.org as soon as they are released. At the same time, we are disappointed that the Court has rejected C-SPAN’s request for TV camera coverage of the oral arguments in this landmark case. We continue to believe allowing video coverage of Supreme Court oral arguments is in the public’s best interest."

Senate Judiciary Committee chairman Patrick Leahy, (D-Vt.), also made a statement about the Court's decision today:

"I welcome today's announcement from the Supreme Court that they will make available the audio files and transcripts of this month’s arguments regarding the Affordable Care Act. With heightened public interest in this landmark law, I am especially pleased that they will make the audio of the arguments available to the public within hours of the completion of each day's arguments. This is a step forward, and one that I welcome during Sunshine Week. The Chief Justice and the Court are right to expand public access to their public proceedings. Nonetheless, I continue to support live audio streaming and permitting cameras in our nation’s courtrooms, including in the Supreme Court, so that Americans can witness these public proceedings as they happen."

The Morning Wrap

Watched: The Washington Post reports Rep. Spencer Bachus (R-Ala.), the chairman of the House Financial Services Committee, is under investigation for possible insider-trading violations. Bachus has long been a frequent trader on Capitol Hill. The Office of Congressional Ethics is leading the probe. Bachus said he welcomes "this opportunity to present the facts and set the record straight."

Renewed: The National Law Journal reports on the continued spat between Lincoln Memorial University Duncan School of Law and the American Bar Association. Attorneys for the law school want a federal judge to reconsider his denial of the school's request for an injunction against the ABA. The bar association earlier denied Duncan's request for provisional accreditation.

Scrutinized: The Mississippi Supreme Court on Thursday examined the constitutionality of the pardons former Gov. Haley Barbour issued in his last days in office. The hearing centered on ten pardons, but The New York Times said a ruling in favor of the state could jeopardize the nearly 200 pardons Barbour issued.

Concluded: Two former Bear Stearns hedge fund managers have reached a deal with the U.S. Securities and Exchange Commission over allegations they misled investors amid the crisis in the mortgage market, The New York Times reports. The deal is subject to court approval. Former Bear executives Ralph Cioffi and Matthew Tannin were scheduled for trial Monday in Brooklyn federal district court.

Misled: U.S. District Judge Jed Rakoff says the federal government may have misled the U.S. Supreme Court about policies on helping deported immigrants return to the United States, The Wall Street Journal reports. Rakoff is forcing the Justice Department to disclose by Monday internal e-mails in which government lawyers discussed the claim that was pitched to the high court.

Threatened: A man who made threatening comments about the creators of the television show "South Park" has pleaded guilty in Alexandria federal district court. The man, Jesse C. Morton, admitted his defunct "Revolution Muslim" web site was a source for al-Qaida propaganda.

Senate Judiciary Approves Bill Requiring Cameras in Supreme Court

By an 11-7 vote, the Senate Judiciary Committee today approved a bill that calls for television access to Supreme Court proceedings. The bill, S.1945, faces an uncertain future in the full Senate and the House of Representatives, amid separation-of-powers concerns about Congress telling the Court how to conduct its business.

Senators who favored the bill cited the upcoming Supreme Court oral arguments on the health care legislation as but one example of the need for broadcast access. Committee chairman Sen. Patrick Leahy (D-Vt.), spoke of the "tremendous public interest in the historic arguments" over the Affordable Care Act. Media organizations have asked the Court for broadcast access, or at least expedited release of the audio of the arguments set for the week of March 26, without luck so far.

Sen. Dick Durbin, (D-Ill.), sponsor of the bill, said that there is no justification for the Court to be "outside the view of the American people." Durbin said several justices have said they oppose camera access in part because they think the public won't understand the proceedings. Durbin likened that argument to taking art out of art museums because visitors might not have the sophistication to understand what they are seeing.

Sen. Richard Blumenthal (D-Conn.), a former Supreme Court law clerk who voted for the bill, nonetheless balked at Durbin's analogy. "The fear is danger to the art itself," Blumenthal said, suggesting he sympathized with justices' concerns that the arguments and the dynamics of the Court might be affected by the presence of cameras. Several senators noted that the bill allows justices to close individual arguments to cameras if a majority believe that a party's due process rights would be violated.

The only Democrat to vote against the bill was Sen. Dianne Feinstein (D-Calif.), who voiced concerns about forcing cameras on a Court that clearly does not want them. "I don't believe we should tell the Supreme Court what to do," she said.

In addition to Leahy, Durbin and Blumenthal, senators voting in favor of the bill were: Herb Kohl (D-Wis.), Charles Schumer (D-N.Y.), Sheldon Whitehouse (D-R.I.), Amy Klobuchar (D-Minn.), Al Franken (D-Minn.), Christopher Coons (D-Del.), Charles Grassley (R-Iowa) and John Cornyn (R-Texas). In addition to Feinstein, those voting against were: Orrin Hatch (R-Utah), Jon Kyl (R-Ariz.), Jeff Sessions (R-Ala.), Lindsey Graham (R-S.C.), Michael Lee (R-Utah), and Tom Coburn (R-Okla.).

In his remarks, Grassley detoured from the cameras issue before the committee to applaud yesterday's decision by D.C. U.S. District Court Judge Emmet Sullivan ordering the public release of a 500-page report critical of the prosecution of former Alaska senator Ted Stevens. Sullivan appointed a special investigator to look into the flawed prosecution, over the objection of the Justice Department.

"The public has a right to know what the special investigator found and how pervasive the misconduct was inside the Public Integrity Unit at the Justice Department," said Grassley. "The American people need to hear the truth about what happened, not simply trust the Justice Department’s internal Office of Professional Responsibility review process."

DOJ Defends Keeping Bin Laden Death Photos Secret

The U.S. Justice Department has asked a federal judge to keep secret photos showing the death of Osama bin Laden, saying the images are classified because of their potential to incite violence against the United States.

The department filed court papers (PDF) Wednesday in a public records suit in Washington asking U.S. District Judge James Boasberg to keep the photos out of the public domain.

DOJ attorney Marcia Berman of the Civil Division’s federal programs branch said the photos “reveal specific intelligence activities and methods and specific military methods, tools, equipment, and techniques employed during or after the operation” that killed bin Laden in May.

“For over two decades, bin Laden was the leader and symbol of al-Qaida, a terrorist organization at war with the United States,” Berman said. “The mere release of the images could be interpreted as a deliberate attempt by the United States to humiliate bin Laden, which could trigger violence, attacks, or acts of revenge against the United States.”

Judicial Watch, the conservative nonprofit organization that advocates for transparency in government, sued the U.S. Department of Defense and the Central Intelligence Agency in May in Washington federal district court.

Judicial Watch attorneys James Peterson and Michael Bekesha complained that the agencies did not conduct an adequate search and that the CIA violated classification procedures. The Justice Department said the intelligence agency has complied with its obligations.

Bekesha said in court papers (PDF) that Judicial Watch isn’t seeking any government records “that have been properly classified or would actually cause harm to the national security by revealing intelligence methods or the identity of U.S. personnel or classified technology.”

The Morning Wrap

Merger Power: President Barack Obama today is expected to ask Congress for more power to reduce the size of the federal government through combining six trade and commerce agencies, the Associated Press reports.

Blamed: Lawyers for Toyota Motor Corp. are citing driver error in a suit that seeks to hold the automotive company liable for alleged sudden acceleration, The National Law Journal reports. Blaming the driver provides a glimpse of Toyota's defense in what the NLJ calls the first bellwether case scheduled for trial in federal litigation over sudden acceleration.

Warning: The Obama administration says Iran "will cross a red line" if the country's leaders shut down the Strait of Hormuz, an important waterway that connects the Persian Gulf to the Gulf of Oman. The New York Times said the United States is using a secret channel of communication to warn Iran's leaders.

Uneasy: The New York Times reports on a case in South Carolina in which a black pastor will soon control "The Redneck Shop," one of the most famous White Supremacist retail outlets in the country. A state circuit judge has ruled that the pastor's church held valid title to the building. Church leaders, however, cannot immediately shut down the store.

Black Out: The Federal Communications Commission may move to end National Football League blackouts. The league's policy says a city's home game will be shown in the team's market if the match is sold out 72 hours before kickoff. The FCC is seeking comment on its rules that prohibit cable and satellite operators from airing a game that local broadcast stations have blacked out.

Delegating: The Washington Post examines the initiation and closure, without charges, of a federal bribery investigation of a California company called Sempra Energy. A presentation by Sempra's attorneys led federal investigators to conclude that no additional investigation was needed.

News Corp. Hires Williams & Connolly's Zweifach as New GC

News Corp. has tapped a Washington partner at Williams & Connolly to serve as the media giant’s group general counsel.

Gerson Zweifach, who has experience in patent, litigation, first amendment and media law, will serve as the senior executive vice president of News Corp.

Zweifach takes over for Janet Nova, the interim general counsel for the past six months, and will report directly to News Corp. Chairman and CEO Rupert Murdoch. He inherits a high-profile in-house job, especially as the company continues to deal with the phone-hacking scandal that included allegations against journalists at the now-closed London-based tabloid News of the World.

Zweifach said in an interview that it was tough to leave the firm he’s called home for 30 years. “I’m part of the furniture here. It’s family,” he said of the firm.

But he said he's looking forward to the “unique opportunity to play an important role in this global media company at a critical time in their history.”

It is clear that the biggest challenge he'll be facing, at least in the immediate sense, is the investigation into the phone-hacking scandal. Zweifach noted that it will important to understand where and how the activities in question unfolded—and then to put policies and procedures in place to “ensure it doesn’t happen again.”

Zweifach will still be working closely with some of his former Williams & Connolly partners who started representing News Corp. in June. They'll include renowned litigator Brendan Sullivan Jr. News of Sullivan's hiring broke in July.

Soon after, he said got a call from News Corp. president Chase Carey inviting him to discuss the general counsel position over a cup of coffee. Later that fall, their discussions became more serious. Zweifach said he also spent significant time meeting with Rupert Murdoch and his son, News Corp. executive James Murdoch, before accepting the position.

Federal Prosecutors Want $225K From IMAX Dinosaur Film Producer

Federal prosecutors in Washington are not giving up trying to get back the $225,000 that the government contends it mistakenly paid to the producers of an IMAX film about dinosaurs that is playing at the Smithsonian Institution.

The U.S. Attorney’s Office for the District of Columbia in April sued Comet Distribution Ltd. to recoup the alleged overpayment. But the case hit a snag. For months, according to prosecutors, the government was unable to serve the necessary court papers to let the case move forward.

The hitch now appears resolved. U.S. District Judge Beryl Howell this month was preparing to dismiss the case for the prosecutors’ failure to find Comet’s agent to serve the suit.

An assistant U.S. attorney, Judith Kidwell, said the government has now delivered the suit to Comet’s agent, Valerie Thibault, in Dade City, Fla. Kidwell said in court papers (PDF) this month that the government had trouble finding Thibault because she had moved.

A spokesman for the U.S. Attorney’s Office, William Miller, on Monday confirmed Comet has been served a copy of the suit. Miller, however, declined further comment about the status of the civil case.

Thibault was not reached for comment Monday afternoon. Carl Samson, a producer of “Dinosaurs 3D: Giants of Patagonia,” the 40-minute film that is playing at the National Museum of Natural History, did not immediately respond to an e-mail seeking comment.

In June, Samson sent Kidwell an e-mail asking for a “proposal agreement,” court records show. Samson responded to a message from Kidwell that inquired about Thibault’s whereabouts. Neither side in the dispute has filed court papers suggesting the dispute has settled. There is no attorney of record identified for Comet.

The suit against Comet alleges unjust enrichment stemming from the government’s mistaken extra payment for the licensing and exhibition of the dinosaurs film. The government claims it sent in mistake an extra $300,000 to Comet. Comet, according to the suit, returned $75,000.

The Smithsonian and Comet entered into a 50-year contract for the dinosaurs film. The Smithsonian, according to the contract, agreed to pay a one-time fee of $600,000.

The contract allowed two installments—one before March 1, 2008 and the other before October 1, 2008. Prosecutors contend the government paid an extra $300,000 in October 2008.

Supreme Court Is Asked to Allow Cameras for Health Care Arguments

It may be a quixotic campaign, but the Supreme Court is being requested to permit live televised coverage of oral arguments in the litigation over the health care reform law set for next March.

In separate letters to Chief Justice John Roberts Jr., C-SPAN chairman and CEO Brian Lamb and Sen. Charles Grassley (R-Iowa) asked that the Court allow cameras to record the proceedings for immediate broadcast, a first for the high court.

"It is a case which will affect every American's life, our economy, and will certainly be an issue in the upcoming presidential campaign, wrote Lamb, a longtime advocate for cameras in the high court.

Lamb also pointed out that in granting review in the cases on Monday, the Court laid out a schedule in the health care cases that would mean an extraordinary 5 1/2 hours of argument. "Interested citizens would be understandably challenged to adequately follow audio-only coverage of an event of this length with all the justices and various counsel participating," Lamb wrote. The Court currently releases the audio of oral arguments on the Friday of the week in which they occurred. Since the justices hear arguments only on Mondays, Tuesday and Wednesdays, the audio of the health care arguments would not be available for same-day coverage or broadcast.

Grassley, who has introduced legislation calling for broadcast access to federal courts, also told Roberts that "given the nature of the topic, everyone in the country would benefit from following the proceedings in this threshhold case." He added, "Providing live audio and video coverage of the oral arguments will be of great benefit to the Court and to the public. Letting the world watch these historic and important proceedings will bolster confidence in our judicial system and the decisions of the Court."

Most of the current justices, including Roberts, have indicated varying levels of opposition to camera access when they are asked about the issue at public appearances. In explaining their reasoning, justices assert the uniquely apolitical, unelected status of the federal courts, as well as a reluctance to tinker with what they see as a Court tradition that works well.

In comments at a judicial conference in June, Roberts said he was interested in seeing the results of a three-year experiment launched recently to study the impact of camera access to civil proceedings in selected lower federal courts around the country. That suggests a re-examination of the Court's policy is unlikely before 2014, but both C-SPAN and Grassley are asking for a one-time exception to the policy. New justices Sonia Sotomayor and Elena Kagan are the only members of the current Court who have indicated their support for camera access.

There is a long history of unsuccessful media requests to the Supreme Court for television coverage of high-profile cases. In 1986, for example, a media coalition asked then-Chief Justice Warren Burger to allow camera coverage of Bowsher v. Synar, a challenge to the constitutionality of the Gramm-Rudman budget law. At the bottom of the letter he wrote back turning down the request, Burger added a handwritten postscript: "When you get Cabinet meetings on the air, call me!"

Company Sues to Remove 'Negative' Content from TV Reality Show

Updated at 2:44 p.m.

Janod Inc., a company that specializes in stopping rock slides, is suing a production company and the National Geographic Channel over Janod’s right to remove "negative" content from an upcoming reality show.

"Rock Stars," according to the complaint (PDF) filed Nov. 7 in U.S. District Court for the District of Columbia, was supposed to be a show about Janod’s rock stabilization business. The Champlain, N.Y.-based company's work would make for good television, it wrote in the complaint, because it's “potentially dangerous” and involves being “suspended at great heights above the ground.”

The contract between Janod and Studio City, Calif.-based Echo Entertainment Inc. included a clause allowing Janod to have editorial control over any content that might show them in “a negative light,” according to the complaint.

Over the summer, Janod claims that Echo, at first, didn’t allow the company to review the show as promised. When they did get access to episodes, the company claims that Echo and National Geographic Channel, which is based in Washington, refused to make any revisions Janod wanted as per the contract.

Janod claims that Echo used an “overly dramatic narration” to imply that the company runs behind schedule, using statements like “the crew is already hopelessly behind schedule.” The company also complains that producers falsely imply that employees aren’t properly trained, and magnify “minor mishaps” to seem like major problems.

According to the complaint, the show is set to air on Nov. 22. Janod wants a temporary restraining order or preliminary injunction to stop the show from airing until they can exercise editorial control, and is also suing for damages.

Janod is being represented by Henry Platt of Washington’s Saul Ewing, Jeffrey Patton of Spilman Thomas & Battle in Winston-Salem, N.C., and Richard Wallace of Spilman’s Charleston, W.V., office.

A spokesman for National Geographic Channel said they were aware of the lawsuit but declined to comment. A representatives for Echo could not immediately be reached for comment Wednesday morning.

For Unknown Reasons, Lawyers for House Oppose Cameras in Court

A pilot program to allow video recording in some federal courts is getting resistance from a new source: lawyers for the U.S. House's Republican leadership.

The federal judiciary began the experiment in July in 14 district courts around the country, responding to pressure from Congress and elsewhere to accept more electronic media. The program includes some strict limits, including a rule that gives any party to a case the power to veto camera access.

Lawyers for the House have chosen to exercise that power in a case in the Northern District of California. In a one-paragraph filing on Friday, the lawyers wrote that House leadership “prefers not to participate in this district’s pilot project permitting video recording of courtroom proceedings,” according to a story in The Recorder, a California-based sibling publication of The National Law Journal. The filing doesn’t give a reason.

The case involves the constitutionality of the federal Defense of Marriage Act, and the other party, plaintiff Karen Golinski, agreed to the video recording. Golinski is a staff attorney for the U.S. Court of Appeals for the 9th Circuit who is seeking health benefits for her wife.

The House’s filing objecting to video recording is signed by House General Counsel Kerry Kircher. He represents a five-member House leadership group on which Republicans have a 3-2 majority, and he ultimately reports to Speaker John Boehner (R-Ohio). Kircher and a Boehner spokesman did not respond to requests for comment today.

It’s not clear whether the House’s lawyers have ever before weighed in on the subject of cameras in court. “I am not aware of the issue ever having arisen before. I would be surprised if it had,” wrote Michael Stern, a former senior counsel in the House General Counsel’s Office, in an e-mail today. Stern writes about congressional legal issues at his blog, Point of Order.

At least in recent years, Boehner did not sign on as a co-sponsor to legislation that would open up the federal courts to cameras, but another Ohio Republican, Rep. Steve Chabot, has been a lead sponsor of the legislation.

Thomas Burke, co-chair of the media law practice at Davis Wright Tremain in San Francisco, told The Recorder he did not think the House’s resistance would have a long-term impact on the video experiment. “I think it will pick up momentum,” Burke said.