Oyez! Oyez! Oyez! The Supreme Court of the United States is now in session. God save this honorable court (and let the games begin).

Today is the first Monday of October, which signals the opening of the new Supreme Court term. So far there are some interesting cases, but no judicial blockbusters. That doesn’t mean that there might not be big cases filed later this term. The Court has only completed a portion of its hearing schedule. Of the cases so far, an interesting early case (Winter) arises out of the Navy’s use of sonar to train for anti-sub warfare. Environmentalists claim that this harms whales, and the lower court enjoined the Navy from such use unless it complied with environmental impact testing and filing.

Other interesting cases involve the administrative and constitutional validity of a recent FCC policy that allows the agency to go after even fleeting, unscripted indecent words uttered on live shows on network TV (Fox), and whether a city may refuse the request of a “religion” to set up a monument with a statement of its tenets in a city park when the city has allowed a monument with the Ten Commandments in that park (Pleasant Grove City). In the Fox case, I hope they address the First Amendment argument and hold against the FCC, because Fox argues that there is no longer a need for special control of speech on traditional network TV so as to protect children. Fox argues that over-the-air network TV today is just one of many methods of communication, including cable TV, and that children are exposed to such words in those other settings. I support that reasoning because it can help thwart any attempt to reintroduce the “Fairness Doctrine” on the grounds that over-the-air radio has bandwidth scarcity that allows the government greater regulatory power to insure diversity of political views. Radio competes with many other sources of information, including the internet, so I think the bandwidth argument is as outdated for radio as Fox says it is for over-the-air TV.

I posted on the religious monument case before. Usually these cases are establishment clause cases, but this one intersects with the murky free speech doctrine of “government speech.” If government is speaking, rather than regulating private speech, and that is generally understood by the viewer/listener, the government has more leeway to exclude speech with which it disagrees. In the Pleasant Grove City case, it would be government speech if people understood the Ten Commandments monument in the park to be that. But the city would be on thinner ice if it is seen as having opened the park to public display of monuments and then discriminates against this religious group that wants to set up its own monument. The more it can be shown that the city has allowed access to other groups to post its messages in the park, the more likely the city has opened the forum. On the other hand, allowing people to set up temporary displays is not the same thing as a permanent monument.

Another interesting case that has been filed for review but where review has not yet been granted involves the question whether an alien taken into custody while lawfully living in the U.S. can be detained indefinitely in the U.S. on the President’s orders based on a Congressional authorization to use force, because he is an enemy combatant assisting al Qaeda (Al-Marri). Another, already scheduled, case that arises out of the war on terror deals with whether high level officials can be sued by a detainee over alleged abuses suffered at a Brooklyn jail. The officials, such as former Attorney General Ashcroft, claim broad immunity (Iqbal).

Finally, there is the Phillip Morris case about the validity of excess punitive damages. The case is more about the relationship between the U.S. Supreme Court and a recalcitrant state supreme court jockeying for position. Shades of Bush v. Gore and Martin v. Hunter’s Lessee, two other famous cases that prominently featured such disputes.

There is also an interesting lower court case that addresses the administration’s power to continue to hold detainees at Guantanamo after they have been found no longer to be a threat. The detainees can’t be returned to their native China because they and the administration agree that China will torture them. Officials want to hold the detainees at Gitmo while they try to find a resettlement country that will take the detainees. The detainees want to be held in the U.S., near Washington D.C. The case is currently on docket in the District Court.