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ADMINISTRATIVE LAW FCC’s expletives policy is arbitrary, capricious The Federal Communications Commission’s policy of punishing “fleeting expletives” is arbitrary and capricious under the Administrative Procedure Act, the 2d U.S. Circuit Court of Appeals ruled on June 4. Fox Television Stations Inc. v. Federal Communications Comm’n, No. 06-1760. Section 1464 of the Federal Communications Act states that “whoever utters any obscene, indecent, or profane language” on air can be fined or imprisoned. Since the late 1970s, the Federal Communications Commission has not punished stations for single, “fleeting” or “isolated use” of obscene words. Nonetheless, after the musician Bono said at a 2003 awards ceremony that the award was “fucking brilliant,” the FCC notified the stations that broadcast the ceremony that they were on notice that monetary penalties would follow any further broadcasts of the “F-word.” On reconsideration, the FCC issued a new policy, complete with examples from television news, as well as live and scripted programs, stating that any use of the word “fuck” or “shit” was presumptively indecent and profane, regardless of whether their use was fleeting. The stations petitioned the 2d Circuit for review. The 2d Circuit vacated the FCC policy. In violation of the Administrative Procedure Act, the FCC had changed its policy without providing a reasonable explanation for why isolated incidents were now worthy of punishment, while at the same time allowing similar language to stand when it was “integral” to a work, such as in the movie Saving Private Ryan.   Full text of the decision Bankruptcy ‘Director emeritus’ isn’t insider under the code A ‘director emeritus’ of a bank is not a “per se insider” within sections of the Bankruptcy Code that void preferential prepetition transfers, the 10th U.S. Circuit Court of Appeals held on June 5 on an issue of first impression. Rupp v. United Security Bank, No. 06-4014. Before filing for bankruptcy, Ronald Kent made transfers to United Security Bank. He had been “director emeritus” of the bank, but had not attended meetings of the board, had no decision-making power, no office and no staff. He did receive a fixed monthly honorarium. The Bankruptcy Code provides that certain transfers to creditors before the filing of a bankruptcy petition can be set aside if they meet certain statutory criteria. The law recognizes that some creditors are especially likely to receive favorable treatment; the code calls them “insiders.” A trustee may void transfers to insiders. Stephen Rupp, the trustee of Kent’s estate, brought an adversary proceeding to void and recover the value of Kent’s transfers to the bank, contending that the bank is both a per se insider and an extrastatutory insider. A 10th Circuit bankruptcy appellate panel agreed, ruling that the bank was an “insider.” The 10th Circuit reversed, holding that Kent as “director emeritus” was not a “director” within the meaning of the definition. He lacked the necessary control. Thus his title does not make United a “per se insider” of the debtor. CONSTITUTIONAL LAW Government can raise taxes to fund its speech A federal district court erred in granting a preliminary injunction to a group of California pistachio growers challenging the constitutionality of dues assessed by the California Pistachio Commission because the commission’s advocacy on behalf of the pistachio industry constitutes government speech, not subject to the First Amendment, the 9th U.S. Circuit Court of Appeals held on June 8. Paramount Land Co. L.P. v. California Pistachio Comm’n, No. 06-55054. Paramount Land Co. L.P. and California pistachio growers sued the California Pistachio Commission, arguing that the annual subsidies mandated by the California Pistachio Act of 1980, which the commission administers with a view to promoting the state’s pistachio industry, constitute compelled speech in violation of the First Amendment to the U.S. Constitution. A California federal court granted a preliminary injunction to the growers. Reversing, the 9th Circuit held that the commission’s advocacy constitutes government speech not subject to the First Amendment. Citing the U.S. Supreme Court’s 2005 Johanns v. Livestock Mktg. Ass’n opinion, the court said, “The government . . . may support valid programs and policies by taxes or other exactions binding on protesting parties. Within this broader principle it seems inevitable that funds raised by the government will be spent for speech and other expression to advocate and defend its own policies.” FAMILY LAW Throwing child to floor isn’t necessarily abuse A trial court erred in holding that a parent had abused her minor, teenage daughter by throwing her to the floor, the District of Columbia Court of Appeals held on June 7. In re L.H. and A.H., nos. 06-FS-84 and 06-FS-156. K.H., the mother of two minor, teenaged daughters, L.H. and A.H., discovered that L.H. had created a Web site featuring sexually provocative photos of herself. K.H. slapped L.H. and threw her to the floor. A trial court held that K.H. had abused L.H. Reversing, the District of Columbia Court of Appeals, the district’s highest court, held that K.H.’s actions didn’t constitute abuse because there was no evidence of injury to the child. The court said, “[T]he legislature was careful to state that a parent must have ‘inflict[ed] injury to a child’ by ‘throwing [her]‘ before [it] may be deemed abuse.” IMMIGRATION Driver’s license policy no equal protection breach New York State Department of Motor Vehicles policy that requires driver’s license applicants to produce a Social Security number or documentation explaining why they are ineligible for one, doesn’t deprive illegal aliens of equal protection rights, the New York Court of Appeals ruled on June 7. Cubas v. Martinez, No. 74. New York’s Department of Motor Vehicles (DMV) requires applicants for driver’s licenses to produce a Social Security number. Before September 2001, those who didn’t have a Social Security number had to produce an “L676″ letter from the Social Security Administration that showed the rejection of an application for a Social Security number. After September 2001, those without a Social Security number were required to produce Department of Homeland Security (DHS) documents explaining why they were ineligible for one. A group of undocumented immigrants sued the DMV commissioner, claiming violation of their equal protection rights. The state trial court granted the plaintiffs a temporary restraining order, but an intermediate appellate court reversed. The New York Court of Appeals, the state’s highest court, affirmed, holding that “DMV’s right to insist on such documents is undisputed.” Since DHS documents are required a Social Security number in the first place, there is no reason why the DMV cannot require those same documents from New York driver’s license applicants. Also, DMV policy applies equally to all applicants who cannot produce the necessary documentation. TORTS Proof of asbestosis needs an exposure ‘threshold’ A person’s exposure to only “some” respirable fibers isn’t enough to show that a product containing asbestos was a substantial factor in causing asbestosis, the Texas Supreme Court ruled on June 8. Borg-Warner Corp. v. Flores, No. 05-0189. While working for 35 years as a brake mechanic in the automotive department of Sears, Arturo Flores handled Borg-Warner brake pads. Chrysotile asbestos fibers made up 28% of the pads’ weight. Flores sued Borg-Warner Corp., saying this exposure led to asbestosis. A Texas state trial court ruled for Flores, awarding him more than $160,000 in compensatory and punitive damages. An intermediate appellate court affirmed, ruling that because brake dust has been found to cause cancer, and because Flores was exposed to brake dust during his career, the dust was the cause of Flores’ injury. The Texas Supreme Court reversed, ruling that a plaintiff must prove a defendant’s product was a substantial factor in causing the alleged harm. There must be evidence that the exposure was of sufficient magnitude to exceed a threshold before causation can be inferred. If a single fiber could cause asbestosis, everyone would be susceptible.

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