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Supreme Court declines to review cases on cable limits, presidential threats, movie tax

By The Associated Press

12.05.01

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The Supreme Court this week turned away three cases that contained free-speech arguments. One concerned cable companies, another involved threats against the president, and the third dealt with a movie-theater tax.

  • The justices, turning aside pleas from consumer groups, refused to consider reinstating government restrictions on the number of subscribers that cable companies can have.
  • The case, Consumer Federation of America v. Federal Communications Commission, turns on arguments by consumer groups that fear the possibility of a cable monopoly. The groups argued that, under present laws and government rules, one or two companies could control programming in most American homes.

    The court's refusal, announced Dec. 3, was not unexpected. The Bush administration had urged the justices to turn down the case because regulators are working on a second set of rules to address monopoly concerns.

    An appeals court decided earlier this year that the FCC's first rules were unconstitutional.

    Consumer groups said that since that decision, there has been talk of more consolidation in an industry that is already dominated by a few large companies. The largest, AT&T, serves about 40% of cable and satellite subscribers.

    "The very dangers Congress foresaw and sought to prevent are now rapidly coming to pass," attorney Andrew Jay Schwartzman said in urging the court to take the case. "Hamstringing the flexibility of the FCC prevents it from properly balancing the competing free-speech interests implicated in this case."

    The cable companies contend that subscriber limits infringe on their First Amendment free-speech rights by restricting their audience size.

    Lawyers for AT&T and Time Warner said the U.S. Court of Appeals for the District of Columbia was right that the FCC did not have evidence of "a realistic collusion risk."

    "Even ignoring that this fact-bound conclusion should be of no interest to this court, it was unquestionably correct," industry lawyer Henk Brands contended.

    At the time of the appeals court decision, AT&T was in violation of the rule that forbids one company from serving more than 30% of all cable and satellite subscribers. The court also questioned FCC limits on how many channels cable operators can fill with programming in which they have a financial interest.

    The appeals court ordered the commission to review the rules again.

    Solicitor General Theodore Olson said that review process has started, and the FCC was seeking economic evidence to determine the need for rules. He said a Supreme Court review now would be "premature and potentially unnecessary."

    Olson also said the dynamics of the industry had changed with the growing popularity of satellite television.

    The National Association of Broadcasters supported the consumer groups and told the court that cable companies use First Amendment arguments to contest "virtually any type of economic regulations."

  • A jailed Navy recruit who threatened to eat his guard and shoot then-President Clinton lost his bid to have the court explain when presidential threats are serious enough to break the law.
  • The Supreme Court refused on Dec. 3 to accept Ogren v. U.S., a case that arose after a jailed Navy recruit threatened to eat his guard and shoot the president.

    Seaman recruit Robert B. Ogren wanted the justices to explain when presidential threats are serious enough to break the law. The court declined.

    A military judge convicted Ogren of several offenses, including making a threat against Clinton in 1998. He was sentenced to a year in jail and given a dishonorable discharge.

    "There is little margin for legal error where the First Amendment and the safety of the president are at stake; what comes out of mouths may have grave consequences for both," the U.S. Court of Appeals for the Armed Forces wrote in affirming his conviction.

    A 1917 law makes it a crime to threaten the president. It is designed to deter people from attacking the nation's chief or inciting others to do so.

    At the time of his threat, Ogren had been held for about a month in a facility in Great Lakes, Ill., awaiting a hearing on a charge that he assaulted another seaman.

    He was described as a disruptive inmate who regularly beat on his cell door and yelled at guards.

    He told a female guard he planned to eat her and her children. The next day he was restrained after causing a series of problems, records show. He threw his breakfast onto the cell door and flooded the cell with water by stopping up the drain to his sink.

    He told guards that day he planned to buy a gun and go after Clinton.

    "If I could get out of here right now, I would get a gun and kill that … ," he reportedly said. "I'm going to find Clinton and blow his (expletive) brains out."

    The Secret Service was contacted, and a day later an officer interviewed him about the comments. He said he was not serious and wrote an error-filled note of apology to the president.

    "I would not entertain the thought of hurting him. I hope he live a happy live with his family. May God bless the Clintons," wrote Ogren, who suffers from anti-social personality disorder.

    At issue in Ogren's case was the seriousness of his threat. He said the military appeals court considered a stronger legal threshold than another appeals court.

    The 4th U.S. Circuit Court of Appeals had considered the threat-maker's actual intent in another case.

    The military appeals court said prosecutors did not have to prove that he actually intended to carry out the threat.

    "As long as this split exists, this court will continue to see mischief in future prosecutions" with the presidential-threat law, Ogren's lawyer told the Supreme Court in filings.

  • The high court also declined on Dec. 3 to review American Multi-Cinema, Inc. v. City of Warrenville, a challenge to a local tax by a movie theater complex in Illinois.

    In 1998, just before a 30-screen theater opened, the city council enacted a 2% tax on gross receipts of amusement businesses. The American Multi-Cinema complex comprised the only movie theaters in town, and some city officials referred to the new tax as the "AMC amusement tax."

    The theater owners challenged the tax on First Amendment grounds, claiming that it singled out expressive activities for taxation. But the Appellate Court of Illinois, 2nd District, upheld the tax under the U.S. Supreme Court's 1991 ruling in Leathers v. Medlock. That decision said taxes on First Amendment activities are permissible if they don't single out expressive activities and don't discriminate on the basis of content. Since the tax could also apply to activities such as rodeos and amusement rides without expressive content, the Illinois court found that the Warrenville tax did not single out expression for taxation.

    Related

    2001-2002 Supreme Court term coverage
    Analysis and other coverage of the 2001-2002 U.S. Supreme Court term.  11.01.01

    S.D. federal jury: Oregon man threatened president
    Meanwhile, Pennsylvanian says he'll fight disorderly conduct charges stemming from arrest during Bush visit to state last week.  09.09.02

    High court turns away challenge of cable-TV limits
    Justices reject Time Warner’s argument that provisions of 1992 law violate free-speech rights.  02.20.01

    Man's anti-Bush bumper stickers prompt visit by Secret Service
    ‘They aren't going to dictate what I put on my truck,’ says Jesse Ethredge, who got in trouble more than 10 years ago over similar slogans.  09.01.01

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