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Week In Review

By Chris Helsel

Controversial New Anti-Gay Indiana Law Creates Conundrum for NCAA and Others

On Thursday, Indiana governor Mike Pence signed a bill into law that allows businesses to refuse service to same-sex couples in the name of religious freedom. This creates quite a complicated situation for the National Collegiate Athletic Association (NCAA, association), as well as professional sports leagues, as Indianapolis is a highly attractive host city for major sporting events due to its central location and compact downtown area.

The NCAA, which is headquartered in Indianapolis and is staging the men's basketball Final Four in the city this week, released a statement regarding the new law. Mark Emmert, president of the NCAA, said that the association was "deeply committed to providing an inclusive environment for all our events. We are especially concerned about how this legislation could affect our student-athletes and employees."

Although it is not feasible to relocate this year's Final Four, Mr. Emmert hinted that the association may refuse to stage events in the state in the future. He said that the NCAA will "closely examine the implications of this bill and how it might affect future events as well as our work force."

Indianapolis plays host to the National Football League scouting combine and Big Ten conference football championship game every year, and hosted the Super Bowl and Final Four earlier this decade. It is also scheduled to host the women's Final Four next year and the men's Final Four again in 2021.

Importantly, the law does not require businesses to refuse service to same-sex couples - it merely allows it. Therefore, the NCAA or a professional league could decline to enact its right to refuse service and have no problem staging a major event in the state. However, the leagues will have no power (other than refusing to enter into sponsorship agreements) to protect same-sex couples from discrimination by local businesses while in town for the events. This fact alone may be reason enough for the leagues to steer clear of Indiana in the future.


Supreme Court Hears Arguments in Texas Confederate License Plate Case

On Monday, the U.S. Supreme Court heard oral argument in the case brought by the Sons of Confederate Veterans, who have contested the Texas Department of Motor Vehicles (the board)'s denial of a specialty license plate that would feature the Stars and Bars.

The board initially rejected the specialty plates in 2011, explaining that many people found the flag offensive. In its decision, the board explained that "A significant portion of the public associates the Confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups."

On appeal before the Fifth Circuit in New Orleans, the Sons of Confederate Veterans prevailed. The court held that specialty license plates constituted private speech and that Texas had discriminated against the veterans' heritage group's view that "the Confederate flag is a symbol of sacrifice, independence and Southern heritage."

In its argument before the Supreme Court, Texas asserted that all specialty license plates - of which there are 438 available in Texas - constitute government speech and are therefore immune from First Amendment scrutiny. Justice Ruth Bader Ginsburg questioned this interpretation, noting that one such specialty plate promoted a hamburger chain. "Is it government speech to say 'Mighty Fine Burgers' to advertise a product?" she asked.

Justice Anthony Kennedy focused on the vast amount of plates available, and likened the specialty plates to a public forum, noting that the government may not discriminatorily censor speech based solely on content in a public place.

The court questioned the standard applied by the board in determining which specialty plates were allowed and which were prohibited, with Justice Ginsburg describing the board's criteria as "a nebulous standard." Justice Stephen Breyer said that "I just think you have to have some kind of legitimate reason. It doesn't have to be much. It could be just a little."

The court also pressed the plaintiffs on whether allowing the Confederate plate would require the state to permit others with vulgar language, swastikas, or promoting al Qaeda and jihad. Yes, said the plaintiffs' attorney, R. James George Jr. "I just don't think the government can discriminate on content." To this, Chief Justice John Roberts responded that it could be possible to discriminate against certain language under a fighting words or incitement to violence theory. "Someone driving in Texas with a swastika is, you know, likely to trigger public violence," he said.

Justice Antonin Scalia suggested that perhaps the plaintiffs had an ulterior motive. "You're really arguing for the abolition for Texas specialty plates, aren't you?" he asked. Chief Justice Roberts seemed not to mind this approach, telling Texas solicitor general Scott Keller that an easy solution would be for the state to remove itself from the business of "selling space on ... license plates to begin with."

Justice Anthony Kennedy seemed to disagree, addressing the idea that all specialty plates should be discontinued: "In a way, your argument curtails speech," he said to the plaintiffs. "If you prevail, you are going to prevent a lot of Texans from conveying a message."

Justice Breyer offered perhaps the most sensible solution, suggesting that there were other ways for the Confederate heritage group to express its message: "Put up a bumper sticker."


Federal Court Rejects National Hockey League's Motion to Dismiss Retired Players' Concussion Suit

On Wednesday, Judge Susan Richard Nelson of the District Court of Minnesota rejected the National Hockey League (NHL, league)'s motion to dismiss a suit brought by retired players. The suit alleges that the league concealed the risks of repeated head trauma from players and promoted violence on the ice, in part by condoning fist-fights during games. The judge denied the league's arguments that the players' complaints were barred by the statute of limitations, that their fraud claims should be dismissed for lack of evidence and that jurisdiction was improper.

Instead, the court gave credence to the plaintiffs' argument that the NHL "concealed information about long-term neurodegenerative risks in the face of a duty to disclose."

However, Judge Nelson has yet to rule on the league's argument that the case should be dismissed because the claims are governed by the collective bargaining agreement between the NHL and the players' union. This line of argument has been used by the National Football League (NFL) in similar suits with frequent success.

Regardless, observers note that the judge's refusal to dismiss the case increases pressure on the league to settle the case, rather than risk losing at trial. The NFL settled a similar case in 2013, though that settlement has been challenged and is not yet finalized.


Both Sides Seek Alteration to "Blurred Lines" Verdict

Earlier this month, a jury awarded $7.4 million in damages to the family of Marvin Gaye after it found that Robin Thicke and Pharell Williams had infringed Gaye's copyright with their 2013 hit song, "Blurred Lines." Now, both sides to the dispute have filed documents in court seeking to alter the verdict.

Interestingly, the jury found that only Mr. Thicke and Mr. Williams violated copyright infringement. The verdict absolved Clifford Harris Jr. (aka T.I.), who contributed a rap verse to the song, and the two record companies who released the song from liability. Last week, the Gaye family members filed a motion in California federal court to add Mr. Harris and the labels to the verdict, arguing that "as a matter of law, all members of the distribution chain are liable for infringement." Obviously, adding additional defendants to the verdict would affect the financial responsibility of each liable party.

The Gaye family also filed a motion seeking an injunction that would halt distribution of the song until the two sides agreed on how to handle future royalties and credit.

Following the jury verdict, attorneys for the defendants said publicly that they intended to challenge the award. Last Monday, attorney Howard E. King filed a motion asking for more time to file for declarative relief, "due to the inconsistent jury verdict and complexity of issues arising therefrom."


Man Claims That Canadian Government-Approved Reality Show Defamed Him

Neil Lim of British Columbia has brought suit in Canadian court claiming that "Border Security," a government-approved reality television program, defamed him by accusing him of money laundering and drug use on an episode of the show. Mr. Lim alleges that Force Four Entertainment and the Canadian government wrongfully broadcasted his interaction with Canada Border Service agents in Vancouver, and that he has suffered reputation harm and post-traumatic stress as a result.

According to the complaint, Mr. Lim was singled out by security agents and searched three times before being made to answer questions about personal drug use. He claims he was detained for over an hour, threatened with a urine test, strip-searched and questioned about gang affiliations - and that the entire episode was filmed and broadcast without his consent.

He seeks damages from Queen Elizabeth and the Canadian government for misfeasance of public office, assault, battery, wrongful imprisonment, infliction of mental suffering, civil rights violations and slander. He also seeks damages for libel and invasion of privacy from Force Four Entertainment.


Letter Calls on Science Museums to Cut Ties With Energy-Industry Donors

The Natural History Museum (not to be confused with New York's American Museum of Natural History), a mobile museum that draws attention to "social and political forces that shape nature yet are left out of traditional natural history museums," has crafted a letter calling for museums of science and natural history to "cut all ties" with fossil fuel companies and philanthropists like David H. Koch. The letter, which is signed by dozens of climate scientists and environmental groups, was released Tuesday and asserts that such donations are tainted due to the donors' efforts to contest the role of humans in global climate change.

According to the letter, "When some of the biggest contributors to climate change and funders of misinformation on climate science sponsor exhibitions in museums of science and natural history, they undermine public confidence in the validity of the institutions responsible for transmitting scientific knowledge. This corporate philanthropy comes at too high a cost."

Mr. Koch, who sits on the board of the American Museum of Natural History and Smithsonian National Museum of Natural History and has donated tens of millions of dollars to the institutions, heads Koch Industries, a privately held corporation with subsidiaries in energy and other industries. He and his family have also funded numerous conservative causes, including organizations that deny humans' role in climate change.

Supporters of the effort to eliminate ties with energy companies and conservative donors believe that such donations improperly influence the content that the museums offer.


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This page contains a single entry from the blog posted on March 28, 2015 7:20 PM.

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