Findlaw Case Summaries: Constitutional Law 10

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March 16 – 20, 2009:

U.S. 1st Circuit Court of Appeals, March 19, 2009 Levesque v. Doocy , No. 08-1814
In a defamation action against the Fox News Network, district court’s grant of defendant’s motion for summary judgment is affirmed where plaintiff did not prove with convincing clarity that the defendants acted with actual malice or a reckless disregard for the truth when it reported on the challenged statements.

U.S. 5th Circuit Court of Appeals, March 16, 2009 Croft v. Perry, No. 08-10092 In an Establishment Clause challenge to a Texas law providing for a mandatory moment of silence in public schools, summary judgment for Defendant is affirmed, where the legislative history of the statute suggested that its purpose was to foster patriotism, and not to advance Protestant Christianity. .

U.S. 6th Circuit Court of Appeals, March 16, 2009 Pagan v. Glendale, No. 08-3679 In a First Amendment challenge to Defendant-Village’s restriction on commercial speech, summary judgment for Plaintiff is affirmed where the Court of Appeals had reached the merits of Defendant-Village’s motion for summary judgment in a prior opinion, and thus the District Court’s entry of final judgment for Plaintiff was proper.

U.S. 6th Circuit Court of Appeals, March 19, 2009 Am. Booksellers Found. for Free Expression v. Strickland, No. 07-4375 In a First Amendment challenge to an Ohio obscenity statute, the Court of Appeals certified the following questions to the Ohio Supreme Court: 1) Is the Attorney General correct in construing O.R.C. section 2907.31(D) to limit the scope of section 2907.31(A), as applied to electronic communications, to personally directed devices such as instant messaging, person-to-person e-mails, and private chat rooms?; and 2) Is the Attorney General correct in construing section 2907.31(D) to exempt from liability material posted on generally accessible websites and in public chat rooms?..

U.S. 9th Circuit Court of Appeals, March 18, 2009 Colwell v. Dept. of Health & Hum. Servs., No. 05-55450 The dismissal of Plaintiffs’ challenge to a Department of Health and Human Services Policy Guidance is affirmed, where Plaintiffs’ suit was unripe because the Policy Guidance was ambiguous as to whether it was mandatory or a general statement of policy, and further regulations would likely clarify this issue.

California Appellate Districts, March 17, 2009 Am. Civil Rights Found. v. Berkeley Unified Sch. Dist. , No. A121137 Trial court’s judgment in favor of defendant is affirmed where a school board policy aiming to achieve social diversity by using neighborhood demographics in assigning students to schools is not discriminatory as it does not show partiality, prejudice, or preference to any student on the basis of race. Educators who include a general recognition of the demographics of neighborhoods in student assignments without classifying a student by race do not discriminate against or grant preferential treatment to an individual or group on the basis of race

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