Eminent Domain

Terence Jeffrey of the Washington Times has an interesting piece today examining the First Amendment rulings of the Ninth Circuit Court of Appeals. The Ninth, the red-headed stepchild of the federal appeals court system, has had some interesting (some would say maddeningly contradictory) rulings in this area...

In 1999, for example, the court declared "virtual" child pornography a "right." "The First Amendment," it said, "prohibits Congress from enacting a statute that makes criminal the generation of fictitious children engaged in imaginary but explicit sexual conduct."

Last October, however, the court took a far more cramped view of free speech. The murder conviction of Mathew Musladin must be thrown out, it ruled, because the victim's family sat in the front row of the trial, wearing buttons depicting nothing more than the victim's photograph. This mute expression, the judges ruled, may have prejudiced the jury and thus violated Musladin's right to a fair trial. In October, the Supreme Court will hear an appeal.

One wonders how the 9th Circuit might have ruled had the victim's family worn "virtual" child pornography, instead of a photo of their slain loved one.

The piece goes on to explain the facts of the Musladin case, which are quite interesting. Here is where things got really interesting though. Enter Judge Stephen Reinhardt, official whipping boy of Eminent Domain...

The problem for Musladin is that the Supreme Court has never "clearly established" or even hinted that something worn by courtroom spectators could deny a defendant a fair trial. Accordingly, the state appeals court let Musladin's conviction stand. A federal district court declined to overrule the state court, and Musladin's appeal arrived in the 9th Circuit.

Judge Stephen Reinhardt, a Carter appointee, wrote that court's opinion overturning Musladin's conviction. This is the same Judge Reinhardt who has voted over the years for 9th Circuit opinions that claimed doctor-assisted suicide was a constitutional right and -- in another take on the freedom of expression -- that it is unconstitutional for children to recite the Pledge of Allegiance in public schools.

Lacking a Supreme Court precedent to back up his decision that the Studers' buttons made Musladin's conviction unconstitutional, Judge Reinhardt ignored the letter of the law and used a 1990 opinion by the 9th Circuit itself as his justification. That opinion threw out a rape conviction because a few women had attended the trial in question wearing buttons that read, "Women Against Rape."

I have no idea what the Court is going to do here. This will be another case to watch Kennedy, Roberts, and Alito closely. It will tell us a lot about how the Roberts Court views Free Expression issues.