Constitutional Interpretation – Page 23 – Marquette University Law School Faculty Blog

Fleeting Indecencies and Enduring Constitutional Doctrine

Post author:Scott C. Idleman
Post published:November 4, 2011
Post category:Constitutional Interpretation First Amendment Public

[Editor’s Note: This month, faculty members will discuss upcoming judicial decisions of particular interest. This is the first post in the series.]

On June 27, 2011, near the end of its October 2010 Term, the U.S. Supreme Court granted certiorari review in FCC v. Fox Television Stations, a case arising in 2010 out the Second Circuit Court of Appeals following a 2009 remand from the Supreme Court.

At issue, in this round of the litigation, is the FCC’s expansion of its broadcast prohibitions to include so-called “fleeting indecencies,” isolated (uncensored) utterances that “describe or depict sexual or excretory organs or activities” and, when used, are “patently offensive as measured by contemporary community standards for the broadcast medium.” Perhaps the most notorious fleeting indecency in recent years was Janet Jackson’s unfortunate “wardrobe malfunction,” precipitated by Justin Timberlake, during the halftime show of Super Bowl XXXVIII.

Orcas and the Thirteenth Amendment

Post author:Scott C. Idleman
Post published:November 1, 2011
Post category:Civil Rights Constitutional Interpretation Public

This last week, a lawsuit was filed in the U.S. District Court for the Southern District of California alleging that SeaWorld’s captivity and exploitation of five wild-captured orcas, or so-called killer whales, amounts to slavery and involuntary servitude in violation of the 13th Amendment to the U.S. Constitution. The nominal plaintiffs are the orcas themselves—Tilikum, Katina, Corky, Kasatka, and Ulises—although the suit is technically being brought by PETA and several individuals. The complaint seeks “an injunction freeing [the orcas] from Defendants’ bondage and placing them in a habitat suited to their individual needs and best interests.”

The Extrajudicial Killing of Anwar al-Awlaki

Post author:Christopher Ehrfurth
Post published:October 10, 2011
Post category:Constitutional Interpretation Human Rights International Law & Diplomacy President & Executive Branch Public

On Friday, September 30, 2011, Anwar al-Awlaki (Aulaqi), a U.S. citizen and well-known al-Qaeda figure, was targeted and killed during a U.S. drone strike in Yemen. Samir Khan, also a U.S. citizen, was killed in the same attack. Khan was the editor of Inspire, an English-Language al-Qaeda magazine that, among other things, publishes how-to articles designed to help terrorists build bombs for jihadist attacks against Americans. Awlaki was perhaps best known in the U.S. for planning the failed underwear bombing of a commercial airliner over Detroit in 2009 (the alleged bomber’s criminal jury trial is currently underway), and for helping plan the 2009 massacre at Fort Hood.

Al-Awlaki’s assassination continues to draw heavy criticism both in the U.S. and abroad because he is believed to be the first U.S. citizen targeted and killed by the executive branch of the federal government without regard for Fifth Amendment due process. Ron Paul published an op-ed in the New York Daily News expressing his outrage at al-Awlaki’s execution. Paul, in response to what he calls the illegal murder of a U.S. citizen, is calling for President Obama’s impeachment.