[JURIST] A group of attorneys filed a civil lawsuit in Belgium against the North Atlantic Treaty Organization (NATO [official website] Thursday alleging it is responsible for killing 13 civilians in a bombing of a residential compound in Libya. The complaint was filed [AP report] on behalf of retired Libyan general and member of Libya's Revolutionary Council, Khalid el Hamidi, whose three children were killed and home was destroyed during an air strike on June 20. Marcel Ceccaldi, an attorney representing Hamidi, said that civil cases against NATO fall under Belgium jurisdiction. NATO benefits from diplomatic immunity from criminal cases given its status as an international organization. NATO has acknowledged targeting the area, but justified the attack, calling the compound a "command and control" center. The plaintiffs contend that the air strike violated the Geneva Convention [ICRC materials] rules of war because the targeted area was a residential compound. Ceccaldi also urged the International Criminal Court (ICC) [official website] to investigate the alleged war crime, suggesting the case would be a good opportunity for the ICC to restore credibility.
The ICC issued arrest warrants [decision, PDF; JURIST report] against Libyan leader Mummar Gaddafi [BBC profile; JURIST news archive] and two of his high-ranking officials in June. ICC Chief Prosecutor Luis Moreno-Ocampo [official website] said his office had gathered "direct evidence" [JURIST report] that shows Gaddafi personally ordered attacks on civilian protesters, that his forces used live ammunition on crowds, attacked civilians in their homes, used heavy weapons against people in funeral processions and placed snipers to shoot those leaving mosques after prayer services. Moreno-Ocampo announced [JURIST report] in May that his office was pursuing arrest warrants against Gaddafi and the two others in his inner circle. There have been numerous allegations of war crimes and human rights violations over the Libyan revolt. Earlier this month, the UN Human Rights Council (UNHRC) [official website], after an investigative panel, published a 92-page report on human righsts abuses in Libya, decided to extend its mandate [JURIST reports], instructing it to continue investigating allegations. The report claims Libyan authorities have committed varying crimes against humanity "as part of a widespread or systematic attack against a civilian population with knowledge of the attack."
[JURIST] A judge for the Superior Court of San Francisco [official website] ruled in Jewish Community Relations Council of San Francisco v. Arntz [materials] on Thursday that a San Francisco public referendum to ban circumcision cannot appear on the ballot in November. The Male Genital Mutilitation bill [text] would have made male circumcision illegal in San Francisco if the recipient is under the age of 18, with perpetrators penalized by a fine of $1,000 or imprisonment. Male circumcision is a religious practice in both Judaism and Islam, so there was an immediate protest to the initiative. Judge Loretta Giorgi ruled [Bloomberg report] against the referendum, stating that it served no legitimate purpose since it is pre-empted and thus prohibited by California's Business and Professions Code [text], which prohibits regulation of medical services. Giorgi also stated that a ban would violate the constitutional right to free exercise of religion. A spokesperson for the Jewish Community Relations Council [advocacy website] told the San Francisco Chronicle [report] that the group is delighted the measure will not appear on the ballot.
Supporters of outlawing male circumcision have pressed forward elsewhere in the US. MGMBill.org [advocacy website] is devoted to submitting legislation to ban the practice, and currently has bills pending in the Federal government as well as 46 states. Advocates for ending male circumcision believe it is a painful and archaic procedure that nets no benefits to the circumcised male. They frequently compare the practice to female genital mutilation, which is illegal under Title 18 [text] of the US Code.
[JURIST] The trial of former Egyptian President Hosni Mubarak [Al Jazeera profile; JURIST news archive] will be held in Cairo, a senior official said Thursday. The announcement comes amid speculation [Reuters report] that the trial would be held at a Red Sea resort because of Mubarak's alleged poor health. Many Egyptians contend that Mubarak is not ill and that members of the government have claimed the ex-president is sick in an effort to avoid a swift, public trial. Mubarak faces several charges [JURIST report], including murder, attempted killing of protesters and other charges related to general abuse of power [Al Jazeera report], as a result of his response to pro-democracy demonstrations in Egypt [JURIST news archive] earlier this year. The trial date for Mubarak is set for August 3 at the Cairo Criminal Court [MENA report; JURIST report].
Earlier this week, an Egyptian criminal court postponed the trial [JURIST report] of former interior minister Habib el-Adly, who also faces murder charges in relation to the pro-democracy demonstrations, until August 3. Mubarak was hospitalized in April [JURIST report], just days before he was scheduled to appear before Egypt's public prosecutor for questioning about his alleged roles in protester deaths and embezzlement of government money. In March, a commission of Arab and Egyptian human rights groups accused Mubarak [JURIST report] and the police of murdering protesters during the demonstrations in Egypt. Mubarak could face the death penalty [JURIST report] if convicted of ordering attacks on protesters. Amnesty International (AI) [advocacy website] reported that at least 840 people were killed [JURIST report], and more than 6,000 were injured, during the Egyptian protests.
[JURIST] UK Lord Justice Brian Leveson [Guardian profile], head of an investigative panel into the recent media phone hacking scandal, said at a press conference Thursday that the panel will investigate the overall "culture, practices and ethics of the press." Prime Minister David Cameron [official website] announced earlier this month [speech transcript] the seven-member panel to investigate journalism practices in the nation. Leveson said the panel will investigate the media and reporters' relationship with police and politicians, as well as the tactics media agents use to get information. A report, with any recommendations for reform, will be published in a year. Leveson gave more details on the panel's role and powers Thursday, emphasizing that the panel will be calling witnesses and seeking "relevant documents." Leveson said that although he has the power to compel production of files of "inappropriate" practices, he would prefer editors and journalists to cooperate with his inquiry and volunteer information.
In addition to print media journalists, the panel will also investigate public broadcasters and bloggers. Leveson and his panel is empowered by the Inquiries Act of 2005 [materials]. The panel consists of Shami Chakrabarti, director of human rights group Liberty; George Jones, former Daily Telegraph political editor; Sir David Bell, former chairman of the Financial Times; Elinor Goodman, former Channel 4 political editor; Lord David Currie, former chairman of Ofcom; and Sir Paul Scott-Lee, former West Midlands chief constable. Hearings are set to begin in September.
Cameron created the panel after the recent allegations of "phone hacking" surfaced in the British media. Reports allege that journalists for the now-defunct British tabloid, News of the World [media website], a News Corporation (News Corp.) [media website] subsidiary, paid London police officers for private information, including telephone records, to use in various news stories, as well as hiring private investigators to "hack" into voicemail inboxes of notable people. Rebekah Brooks, former chief executive of News International (NI) and former editor of News of the World [media websites], was arrested [JURIST report] earlier this month by UK police on charges related to the scandal. She was questioned and released on bail hours later. Brooks was editor of News of the World from 2000 to 2003 when the phone of murdered teen Amanda Dowler was allegedly hacked. Brooks, along with a number of high-ranking executives and journalists, have been arrested in relation to phone hacking allegations. US Attorney General Eric Holder [official website] announced that the Federal Bureau of Investigation (FBI) [official website] will open an inquiry [JURIST report] into whether journalists working for News Corp. and its subsidiaries violated US laws by hacking into the mobile phones of 9/11 [JURIST backgrounder] victims. Read more about the scandal in the JURIST op-ed Recent Scandal One in a Series of Legal Issues for News Corp [JURIST op-ed] by Dave Saldana [official profile], Communications Director at Free Press [advocacy website].
[JURIST] The UK Supreme Court [official website] on Thursday granted leave of appeal in Ministry of Defence v. AB [docket] to British former servicemen seeking compensation for illnesses resulting from participating in nuclear weapons testing. The veterans are seeking to overturn [BBC report] a 2009 High Court ruling [judgment, PDF] that denied the men compensation for the adverse health consequences allegedly resulting from exposure to radiation. The men claim that between October 1952 and September 1958, the British government performed nuclear weapons testing in Australia and on Christmas Island, and that the radiation exposure from those tests caused illnesses including cancers, skin defects and birth defects in their children. The lower court ruled that 9 of the 10 lead cases were barred by the statute of limitations. The defendant, UK Ministry of Defence (MOD) [official website], contends that the group of over 1,000 veterans will not be able to show that the radiation caused their illnesses. The High Court will hear arguments for damages later this year.
Victims of radiation exposure have sought compensation on numerous occasions. In 2009, the Tokyo High Court granted an appeal [JURIST report] to consider 30 people for official recognition as atomic bomb victims resulting from the US atomic bomb attacks on Hiroshima and Nagasaki in August, 1945. Earlier that same year, the US Court of Appeals for the Federal Circuit [official website] affirmed the dismissal [opinion, PDF] of complaints brought by the inhabitants and descendants of the Bikini and Enewetak Atolls seeking further compensation arising out of bomb testing in the 1940s and 1950s. In 2006, a British veteran received £ 40,000 [BBC report] from the US under the Radiation Exposure Compensation Act [materials text] for his involvement in the allied British-US testing. The MOD did not compensate him due to a lack of evidence connecting the tests to the illness.
[JURIST] The Thomas More Law Center (TMLC) [advocacy website] on Wednesday filed [press release] a petition for writ of certiorari [text, PDF] in the US Supreme Court [official website] asking for review of an appeals court ruling declaring the federal Patient Protection and Affordable Care Act (PPACA) [HR 3590 text; JURIST Feature] constitutional. The petition comes in response to a June ruling [JURIST report] by the US Court of Appeals for the Sixth Circuit [official website] finding PPACA's individual mandate provision constitutional. TMLC, along with four individual plaintiffs, seek a declaration that Congress lacks authority under the Commerce Clause [Cornell LII backgrounder] to pass such a law. The plaintiffs contend that the individual mandate provision falls outside the regulation of "economic activity," and is therefore not authorized by the Commerce Clause:
The Act does not regulate economic activity, but rather the decision to not engage in commercial or economic activity. Consequently, the Act does not even pretend to fit within any of the Court’s previous Commerce Clause rulings. The individual mandate attaches to a legal resident of the United States who chooses to sit at home and do nothing. This resident, quite literally, merely exists (i.e., he is “living” and “breathing”). He or she is neither engaged in economic activity nor in any other activity that would bring him or her within the reach of even a legitimate regulatory scheme.
The group says that "review is necessary to establish a meaningful limitation on congressional power." The TMLC lawsuit is the first PPACA challenge to petition the Supreme Court out of the many lawsuits in the circuit courts.
[JURIST] A federal judge for the US District Court for the Northern District of Florida [official website] Wednesday heard oral arguments in a case challenging whether political speech from grassroots organizations can be regulated under campaign finance laws [JURIST news archive]. Judge Robert Hinkle, who heard the arguments, partially denied a preliminary injunction [opinion, text] in October to stop enforcement of the challenged campaign finance law prior to last fall's election. The plaintiffs, represented by the Institute for Justice [advocacy website], are four Sarasota residents who wanted to finance air radio ads that they created opposing a state constitutional amendment. The four plaintiffs intended to spend $150 each to air the ads and also wished to collect monetary contributions from others to air the ads more frequently. The Florida Department of State [official website] considered the group to constitute a "political committee" under Fla. Stat. § 106.011(1)(a) [text] and wants to require them to comply with the attendant campaign contribution regulations such as disclosure and filing requirements. At oral arguments Wednesday, the plaintiffs argued these requirements should not be applied to grassroots organizations [AP report] since they are stricter than the campaign financing requirements for labor unions and corporations. Their lawyer cited the US Supreme Court [official website] decision in Citizens United v. Federal Election Commission [Cornell LII backgrounder; JURIST report], which eased restrictions on political campaign spending by corporations and labor unions on First Amendment [text] grounds. Hinkle countered that Citizens United made no mention of political committees. The Florida State Department argued that such requirements are necessary for the electorate to know who is donating money since many grassroots organizations use ambiguous names. It is unknown when Hinkle will rule but the Institute for Justice announced plans to appeal if ruled against.
The Florida federal courts have been a battleground over campaign finance regulation. Last month, Judge Hinkle enjoined a campaign finance law [JURIST report] providing matching funds for publicly-financed candidates. The lawsuit was brought by now Florida Governor Rick Scott (R) [campaign website] during last year's Republican gubernatorial primary when he was running against a publicly-financed candidate. Scott argued the law violated his First Amendment rights because it limited his campaign expenditures to $24.9 million since every dollar over would be matched in public funding for his opponent. Hinkle struck down the law after issuing a temporary injunction blocking it during the primary campaign. Hinkle's reasoning in that case closely followed the 5-4 Supreme Court decision in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett [Cornell LII backgrounder; JURIST report] striking down a similar Arizona campaign finance law, also on First Amendment grounds.
[JURIST] The United Kingdom's High Court of Justice [official website] ruled [judgment text, PDF] on Thursday for the Motion Picture Association (MPAA) [corporate website], requiring internet provider British Telecom (BT) [corporate website] to block access to a file-sharing website, Newzbin2 [official website]. Newzbin2 is an aggregator of content, but does not develop any illegal content itself, simply making the content more accessible. BT recently developed a filtering service that prevents its users from accessing child pornography, which the court now requires it implement to block Newzbin2, but not other file-sharing sites. Although the filtering system can be evaded, Justice Richard Arnold said if the system stops a minority of users from file-sharing, it is enough, and rejected arguments that users of BT did not have knowledge of copyright infringement. However, Arnold downplayed the possibility of a "wave" of suits to block other file-sharing sites.
Turning to other websites that provide access to infringing copies of copyright material, I accept that it is likely that rightholders will wish to obtain similar orders relating to those. It should be borne in mind, however, that in this case the Studios started from the point that they had already obtained judgment against Newzbin Ltd. Even so, the Studios have had to obtain and put before the Court a substantial quantity of evidence in support of the present application. In addition, the application involved the preparation by counsel for the Studios of a lengthy and detailed skeleton argument, a two-day hearing and written submissions following the hearing. Thus this will have been a costly application for the Studios to bring. ... Furthermore, although I cannot prejudge later arguments in this case, it is not inevitable that future applicants will recover all their costs even if successful. ... For these reasons, even if the present application is successful, I think it is clear that rightholders will not undertake future applications lightly. On the contrary, I consider it probable that they will concentrate their resources on seeking relief in respect of the more egregious infringers. I therefore do not anticipate a flood of such applications.
The MPAA declared [press release] the ruling a great victory, and said it rejects the arguments that Internet Service Providers (ISPs) have no responsibility to fight copyright infringement. Open Rights Group [advocacy website], a group devoted to protecting internet freedoms, called the blocking "pointless and dangerous" [press release].
The British Department for Business Innovation and Skills [official website] in 2009 proposed stricter sanctions [JURIST report] against illegal file-sharing that would include restricting and suspending user Internet access. The changes targeted repeat offenders by requiring ISPs to block download sites, reduce a user's broadband speeds and ultimately shut down the user's Internet access. Costs to implement these measures would be shared between users and service providers. This eventually became the Digital Economy Act [materials] passed in 2010. It is currently under judicial review.
[JURIST] The US Court of Appeals for the Sixth Circuit [official website] heard oral arguments on Wednesday in Discount Tobacco City & Lottery v. USA [Justia backgrounder] on cross-appeals from a tobacco advertising decision [JURIST report] in January 2010. The January ruling upheld [opinion, PDF] the majority of restrictions on cigarette advertising imposed by the Family Smoking Prevention and Tobacco Control Act (FSPTCA) [HR 1256 text], a law designed to limit the tobacco industry's ability to advertise to children, including a ban on distributing clothing and goods with logos or brand names, as well as sponsorship of cultural, athletic and social events. Several tobacco companies are appealing this ruling. Although this was considered a victory for anti-tobacco activists, the judgment did permit the continued use of color and graphics in tobacco advertisements and labels, striking down those portions of the law, and the Department of Justice (DOJ) [official side], joined by a variety of anti-smoking groups are appealing that part of the judgment. The DOJ argued [AP report] for the reinstatement of those provisions, explaining that the government has a right to regulate tobacco as they see fit, due to its lethal and addictive nature. The Public Health Law Center [advocacy website] filed an amicus brief [text, PDF] agreeing with the DOJ:
It was the tobacco companies who turned seemingly straightforward terms like "lights" into misleading Orwellian caricatures; it was they who so corrupted the market for MRTPs ["modified risk tobacco products"] that the only way to make it safe was to require FDA approval beforehand; it was they who through deception and manipulation created the need for the graphic warning labels. The FSPTCA is an appropriate response to a continuing catastrophe.
R.J. Reynolds Co. [corporate website], the manufacturer of several popular cigarette brands, argued that the limitations on free speech were so sweeping that it restricts adults unfairly. It is unknown when the three-judge panel for the Sixth Circuit will rule on the case.
In 2009, US President Barack Obama [official website] signed the FSPTCA into law [JURIST report] granting the FDA certain authority to regulate tobacco products. The legislation heightens warning-label requirements, prohibits marketing "light cigarettes" as a healthier alternative and allows for the regulation of cigarette ingredients. The bill gives the FDA authority to regulate tobacco products but does not permit the agency to regulate tobacco leaf that is not in the hands of tobacco product manufacturers or producers of tobacco leaf, including tobacco growers, tobacco warehouses and tobacco grower cooperatives. Cigarettes and other tobacco products have been subject to strict marketing regulations on both the federal and state levels. Earlier this month, a judge for the US District Court for the Northern District of California [official website] dismissed [JURIST report] a lawsuit over the constitutional right to sell cigarettes in pharmacies. The court upheld the ordinance citing health risks associated with smoking cigarettes and said, "through the sale of tobacco products, pharmacies convey tacit approval of the purchase and use of tobacco products, which sends a mixed message to consumers who generally patronize pharmacies for health care services." Earlier this year, two tobacco companies filed a lawsuit [JURIST report] in the US District Court for the District of Columbia [official website] against the Food and Drug Administration (FDA) [official website] to enjoin a recent opinion by the agency's advisory committee due to conflicts of interest. Last year, the FDA announced a final rule [text] restricting tobacco sales and promotions [JURIST report] directed at youth. The Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents are a set of broad regulations "designed to significantly curb access to and the appeal of cigarettes and smokeless tobacco products to children and adolescents in the United States."
[JURIST] The Italian Chamber of Deputies [official website, in Italian] on Tuesday rejected by a vote of 293 to 250 legislation [C. 2802 materials, in Italian] that would have provided greater penalties for hate crimes committed against homosexuals and transsexuals. The legislation was rejected on the grounds [assembly discussion, in Italian] that it violated the concept of equality in Article 3 of the Italian Constitution [text, in Italian] by providing differential treatment for crimes committed due to sexual orientation and gender identity compared to crimes committed for other discriminatory purposes. Amnesty International [advocacy website] called the vote "a wasted opportunity to take a step in the right direction" and urged [statement] Italian authorities to promote diversity and raise awareness of prejudices against LGBT people and other groups at risk for discrimination. Arcigay [advocacy website, in Italian], an Italian LGBT rights group, denounced the decision [statement] as a betrayal of civil rights and called on the European Union for assistance in what it classified as a "democratic emergency."
As a member of the UN Human Rights Council (UNHRC) [official website], Italy is a party to the "Human rights, sexual orientation and gender identity" resolution [text, PDF], which was passed [JURIST report] last month. The resolution is the first to call for an end to sexuality discrimination worldwide and to recognize it as a "priority" for the UN. However, the resolution does not address any penalties for violating the act nor is it binding for members. Italy is one of few Western European nations that does not offer legal recognition to same-sex couples. In April 2010, Italy's Constitutional Court [official website, in Italian] rejected [JURIST report] a challenge to the constitutionality of the country's ban on same-sex marriage [JURIST news archive]. In 2007, Italy's Cabinet approved a controversial proposal [JURIST report] to grant a number of legal rights to unmarried couples, including those of the same sex. The proposal, harshly criticized by the country's justice minister and bishop [JURIST reports], ultimately failed.
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Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible, ad-free format.
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Legal news from Thursday, July 28, 2011
