In Ashcroft v. Free Speech Coalition, scheduled to be heard Oct. 30th, the court will weigh the government's interest to protect children from being exploited by pedophiles using computer-generated child pornography against the First Amendment rights of those who would distribute and possess this "virtual" pornography. The Free Speech Coalition, a trade association of businesses involved in the production and distribution of adult-oriented materials, is challenging a provision of the Child Pornography Prevention Act that prohibits images, such as computer-generated representations of children depicted in a sexually explicit manner. The 9th U.S. Circuit Court of Appeals struck down thefederal law on the basis of a First Amendment challenge, concluding that it was vague and too broad.

In Kansas v. Crane, scheduled to be heard Oct. 30th, the court will decide whether it was constitutionally permissible to commit Michael T. Crane as a sexual predator absent a showing that he was unable to control his dangerous sexual behavior. The Supreme Court of Kansas reversed Crane's commitment because prosecutors presented evidence only that Crane had a mental abnormality that predisposed him to sexually dangerous behavior. The court is faced with interpreting its prior decision in Kansas v. Hendricks, which appears to support the conclusion that Crane's confinement was constitutionally permissible.

In Los Angeles v. Alameda Books Inc., the court will decide whether a Los Angeles city ordinance that prevents adult businesses from locating too closely to each other violates the First Amendment rights of Alameda Books, which operated an adult business that both sold adult products and contained facilities for the viewing of adult movies or videos at the same location. To demonstrate its compelling interest, Los Angeles relied on a 1977 study linking adult businesses to negative secondary effects, such as prostitution and theft. Alameda Books argues that the study only considered what impact a concentration of adult businesses had on an area, not what impact a single business had. The 9th U.S. Circuit Court of Appeals agreed with Alameda Books and held the ordinance was an unconstitutional content-based regulation. In so doing, the court appears to have created a circuit court split with the 3rd and 4th U.S. Circuit Courts of Appeals, both of which have upheld similar statutes.

In McCarver v. North Carolina, the court will determine whether the Eighth Amendment's prohibition against cruel and unusual punishment precludes the executionof a mentally retarded man. While the court has previously upheld the execution of the mentally retarded, the Eighth Amendment analysis requires a review of the national consensus against a particular kind of punishment. Ernest Paul McCarver argues that the national view has changed since 1989, when the court last visited the issue, with 25 stateseither not permitting the death penalty at all or precluding its use against the mentally retarded. There are an estimated 200 to 300 mentally retarded inmates on death row for whom the court's decision is a matter of life or death.

In Kelly v. South Carolina, the court will determine whether a judge was required to tell the jury that if it gave William Arthur Kelly a life sentence in lieu of capital punishment he would not have any chance for parole. Kelly argues that a prior U.S. Supreme Court decision required such a jury instruction. According to Kelly, in light of the evidence of his future dangerousness the jurors would have been less inclined to sentence him to death if they had known that he would be ineligible for parole. The Supreme Court of South Carolina concluded that Kelly was not entitled to his requested jury instruction because the state did not put his future dangerousness at issue by putting on evidence that he presented an escape risk. More importantly, the South Carolina court concluded that a parole-ineligibility charge is required only where life in prison without the possibility of parole is the only available sentence the jury could return.

In Correctional Services Corp. v. Malesko, scheduled for argument on the first day of the court's session, the court will determine whether an individual can maintain a civil suit against a private corporation under federal civil rights laws. John E. Malesko, convicted of securities fraud in 1992, developed a heart condition while in prison and was moved to a halfway house operated for the New York prison system by Correctional Services Corp. (CSC), a private corporation. Malesko fell, injuring himself, when he suffered a heart attack while climbing the stairs to his fifth-floor room, even though CSC staff had allowed him to take the elevator in the past. Malesko is suing CSC for federal civil rights violations, but CSC says only the government, not a private corporation, can be sued under that law. The2nd U.S. Circuit Court of Appeals agreed with Malesko and reinstated that part of the lawsuit the district court threw out, thus expanding the reach of federal civil rights laws with respect to private corporations.

In Owasso Independent School District No. I-011 v. Falvo, the court will determine whether a federal law requiring schools to preserve the confidentiality of education records prohibits students from grading each other's papers in class. The Owasso school district argues that the practice of exchanging papers in class does not fall within the scope of the federal law requiring schools to keep students' records confidential. The 10th U.S. Circuit Court of Appeals sided with Kristja J. Falvo concluding that the practice violates the Family Educational Rights and Privacy Act.

For more information on these and other U.S. Supreme Court matters, or to arrange an interview with appellate law expert Rob Scott, please contact Mark Annick at Androvett Legal Media 214-559-4630 or mark@legalpr.com.