The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at email@example.com
Friday, July 18, 2008
18 USC 48 found unconstitutional by en banc Third Circuit
According to the majority's opinion, the "case is the first prosecution in the nation under [the federal statute in question] to proceed to trial, and this appeal represents the first substantive constitutional evaluation of the statute by a federal appellate court."
The majority opinion, written by Circuit Judge D. Brooks Smith, begins:
The Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in over twenty-five years. Nonetheless, in this case the Government invites this Court to take just such a step in order to uphold the constitutionality of 18 U.S.C. sec. 48 and to affirm Robert Stevens' conviction. For the reasons that follow, we decline the Government's invitation. Moreover, because we agree with Stevens that 18 U.S.C. sec. 48 is an unconstitutional infringement on free speech rights guaranteed by the First Amendment, we will vacate his conviction.
In related coverage, a little over one year ago, Adam Liptak of The New York Times had an article headlined "First Amendment Claim in Cockfight Suit." Liptak's new beat for The NYTimes is the U.S. Supreme Court, which is where the case that the en banc Third Circuit decided today is likely heading next.
That lawsuit about cockfighting referenced at the end was the one I (and Rick Bascuas) filed, discussed here. Unfortunately, we had to dismiss the case as the client's business went under (after we had filed this motion for summary judgment). Looks like we would've won. We had a much stronger claim than the dog fighting case in the Third. DAMN! It's not often you get a chance to get a statute declared unconstitutional. Congrats to the PD's office who represented the defendant in the Third Circuit.