The Supreme Court opened its 1990 term yesterday by accepting cases involving the constitutional protections accorded nude dancing, whether anti-discrimination laws cover U.S. citizens working for American companies overseas and the ability of public figures to sue for libel over fabricated quotations.
On its first day back from summer recess, the court issued orders in more than 1,000 cases and added 25 to its docket for this term, including one that gives the conservative majority an opportunity to overrule a 1987 decision restricting the use of victim-impact statements in death penalty cases. The justices also agreed to consider whether lawyers in civil cases are barred from using peremptory challenges to keep blacks off juries.
Yesterday's session marked the first time in 34 years that William J. Brennan Jr., who retired from the court in July, was not on the bench for the first Monday in October. An empty seat marked his departure and the expected arrival of David H. Souter, whose nomination to the court will be voted on today by the Senate.
As Brennan sat with his wife in a section of the chamber reserved for justices' guests, Chief Justice William H. Rehnquist read from a Sept. 6 letter of tribute to the former justice from his eight colleagues.
"The personal warmth which you radiate has enriched all of our lives, and has inspired all of us to maintain the cordial relations so necessary among those who may find themselves in disagreement with one another in the work which they mutually undertake," the justices wrote.
The nude dancing case, Barnes v. Glen Theatre Inc., concerns a challenge to Indiana's public indecency law, which prohibits public nudity, including bare breasts. The law was challenged by two South Bend businesses -- Glen Theatre, an adult bookstore, and J.R.'s Kitty Kat Lounge -- and three dancers who said they did not want to have to wear pasties and G-strings.
The Supreme Court has said in previous cases that nude dancing is "not without its First Amendment protections" but has allowed states to regulate barroom dancing as part of their liquor licensing authority. Indiana's law is unusual because it does not rest on that ground.
The federal appeals court in Chicago struck down the statute, ruling 7 to 4 that non-obscene nude dancing performed for entertainment is "expression" entitled to limited protection under the First Amendment.
"Dance as entertainment is one of the earliest forms of expression known to man," the lower court said, adding that the "dominant theme communicated here by the dancers is an emotional one . . . of eroticism and sensuality." Nevertheless, the court said, the state is still entitled to impose reasonable restrictions on the time, place and manner of the dancing.
In asking the court to hear the case, Indiana said the appeals court's decision "calls into question the public indecency statutes of many states" and "brings within the First Amendment any person who appears nude in any public place, as long as he or she is dancing."
Five states filed a brief urging the court to grant review because of the importance of "preserving society's moral structure and decency" and the "paramount interest of preventing the sexual exploitation and degredation of women."
The overseas discrimination case, Equal Employment Opportunity Commission v. Arabian American Oil Co., concerns a naturalized U.S. citizen, born in Lebanon, who complained that he was subjected to a "campaign of harassment" by a supervisor who subjected him to racial, religious and ethnic slurs while he was working in Saudi Arabia for Aramco.
The federal appeals court in New Orleans ruled 9 to 5 that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, sex, religion and national origin, does not apply to U.S. citizens employed outside the United States.
The Bush administration, asking the high court to review that decision, warned that such an interpretation "would leave a serious gap" in Title VII and "withdraw the Act's protection from the many Americans who spend a portion of their careers abroad." It said the State Department estimated in 1988 that 2.2 million Americans live overseas, and that the EEOC was investigating 50 charges of employment discrimination abroad as of January 1989.
Lawyers for the company said Congress would have been explicit if it had intended Title VII to apply overseas. They warned that extending the law to cover overseas workplaces "would create conflicts with the laws of other countries and in the operations of multinational corporations that employ workforces composed of individuals from many nations."
The libel case, Masson v. The New Yorker Magazine, stems from a lawsuit filed by Jeffrey Masson, a former projects director of the Sigmund Freud archives, against the New Yorker, publisher Alfred A. Knopf and writer Janet Malcolm in which he charged that he was libeled by allegedly fabricated or deliberately altered quotes in articles and a book about him.
A number of quotations which Masson alleged defamed him did not appear on tapes of Malcolm's conversations with him, although Malcolm said they were in her written notes of untaped conservations.
The federal appeals court in San Francisco upheld a lower court decision throwing out the lawsuit before trial.
Even assuming the quotations were fabricated, the appeals court said, Masson could not prove Malcolm acted with "actual malice," as required in a libel case brought by a public figure, because they were either "rational interpretations" or did not "alter the substantive content" of remarks he had made.
A dissenting judge, Alex Kozinski, said the ruling gives authors "license to invent quotations on the basis of what they perceive to be a speaker's character."
The victim-impact statement case, Ohio v. Huertas, will allow the court to revisit its 5 to 4 decision in Booth v. Maryland that emotional statements about a murder's effect on the victim's family unduly inflame a jury that is weighing the death penalty. That 1987 decision has been on shaky footing since the retirement of its author, Justice Lewis F. Powell Jr., and only barely escaped being overruled in a 1989 case, before Brennan's departure.
Unlike the two previous rulings, the Ohio case involves a defendant who knew the victim, and prosecutors argue that the restrictions should not apply in situations where "the murderer intimately knew the victim and his family," and consequently the trauma his actions would cause. But they also note the case "presents this court with the opportunity to overrule these cases if it so desires."
The jury selection case, Edmonson v. Leesville Concrete Co., poses the question of whether the court will extend its 1986 ruling prohibiting prosecutors from using their peremptory challenges in a racially discriminatory manner to cover civil cases as well. A peremptory challenge allows a lawyer to remove a potential juror without stating a reason.
In other action yesterday, the court also:
Let stand the three-year prison term and $200,000 fine for a Pennsylvania man, John Pozsgai, convicted of violating the Clean Water Act.
Refused to block any future broadcast of part of a television documentary about the child custody battle over Hilary Foretich, daughter of Eric Foretich and Elizabeth Morgan, who was found in contempt of court and jailed for more than two years when she refused to reveal the child's whereabouts.
Declined to disturb a ruling that a private group may not display a nativity scene on the lawn of the county building in Charlottesville.
Turned aside an appeal by Virginia death row inmate Joseph M. Giarratano.