Today's 5-4 Supreme Court decision addressing the FCC's 2004 "Golden Globe Order" -- which "declared for the first time that an expletive (nonliteral) use of the F-Word or the S-Word could be actionably indecent, even when the word is used only once" -- will be of primary interest to practitioners and students of administrative law. It does not address the more interesting question: whether the FCC's tough stance against the use of naughty language is constitutional. (For the record, the F-word in question is not fudge and the S-word is not sugar. Use your imagination.)

The FCC's prudish sense of "indecency" is out-of-step with the reality of modern American life. This isn't surprising since the FCC's new-found puritanism was dictated by the religious right, which is responsible for "the lion's share" of indecency complaints. According to the FCC's revised sense of indecency, not only are the fleeting mentions of common expletives on live broadcasts indecent, so are brief views of female (and presumably male) buttocks, Janet Jackson's n*pple, and even "pixilated body parts."

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This is terrific news:

Sen. Richard Lugar, R-Ind., said Tuesday he will support the nomination of an Indiana University law professor to head the Obama administration’s internal law office. Lugar, R-Ind., said Tuesday he will support the nomination of an Indiana University law professor to head the Obama administration’s internal law office. He is the first Republican to publicly declare his backing for Dawn Johnsen, whose selection to head the Office of Legal Counsel has grown into a fight about abortion rights and counterterrorism practices.

. . . Lugar has said that, barring something extraordinary, a president should be able to choose top aides even if they support policies the opposition party opposes. He has also said Congress should not require as many posts be reviewed and voted on; about 500 positions require Senate confirmation.

While Specter said he was not in favor of Johnsen, he has never said he would vote against cloture. With Lugar's open support of Johnsen, a GOP filibuster seems virtually impossible now.

h/t to Josh Glasstetter of PFAW. Speaking for me only

Via the Washington Independent (see also Glenn Greenwald's post, he will also have interview with the winning attorney, Ben Wizner of the ACLU), just as predicted by Obama supporters, his shrewd gambit to adopt the Bush Administration's position on the state ssecrets privilege has been soundly rebuffed by the Ninth Circuit in Mohammed v. Jeppesen Dataplan(PDF):

At base, the government argues here that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. . . . This sweeping characterization of the “very subject matter” bar has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.

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Must see TV tonight at 7 -- Game 5 of the Bulls-Celtics series.

This is an Open Thread.

Kos has the details. President Obama welcomes him with open arms:

[T]he president reached Specter to express his thrill at having him in the party and to offer his full support. According to a White House aide, the president found out about the switch at 10:25 AM while in the Oval Office receiving his Economic Daily Briefing.

The president was handed a note, the aide said, that read: "Specter is announcing he is changing parties." Seven minutes later, President Obama reached Specter to tell him, according to the aide, "You have my full support" and that we are "thrilled to have you."

My own theory is that President Obama is being entirely too modest. I find it hard to believe that President Obama was not an integral part of wooing Specter to the Democratic Party. I think this may be one of the most important achievements President Obama has yet had. He is denying involvement in the process, but I am giving him a lion's share of the credit for it.

Speaking for me only

I have come to a deep realization about Richard Cohen, columnist for the Washington Post. His failings are not so much moral and instead simply result from a lack of brain wattage. His column today demonstrates such a lack of intelligence that it becomes perfectly clear that whatever else one may say about what Mr. Cohen writes, the first principle one should adopt in reading him is to understand he just is not very smart. Today Cohen writes:

[I]t is important to understand that abolishing torture will not make us safer. Terrorists do not give a damn about our morality, our moral authority or what one columnist called "our moral compass." George Bush was certainly disliked in much of the world, but the Sept. 11 attacks were planned while Bill Clinton was in office, and he offended no one with the possible exception of the Christian right. Indeed, he went around the world apologizing for America's misdeeds -- slavery, in particular. No terrorist turned back as a result.

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In a series of posts, I will be reviewing a series of disagreements that have arisen between he and I (from the legality, to the effectivness to the respect for the rule of law and many others, note also my apology for unfairly questioning Mr. Taylor's integrity) regarding his most recent article in the National Journal on torture (I wrote about that article here and other articles he authored or coauthored (see here and here) on this issues pertinent to the discussion. I want to start by praising Mr. Taylor, not burying him. In his most recent article, Taylor wrote that:

[President Obama] should commission an expert review of what interrogators learned from the high-value detainees both before and after using brutal methods and whether those methods appear to have saved lives. He should also foster a better-informed public debate by declassifying as much of the relevant evidence as possible, as former Vice President Cheney and other Republicans have urged.”

I am not sure that that is precisely what Vice President Cheney urged (Cheney wants certain documents HE selected declassified.) But to Taylor's credit, he wants it all declassified. As do I. Kudos to Mr. Taylor for his call for a Truth Commission. I'll explore other issues raised by Mr. Taylor in subsequent posts.

Speaking for me only

District Attorney Leon Cannizzaro doesn't get it.

District Attorney Leon Cannizzaro said Friday that his office isn't giving up on the death penalty, even after two capital trials this year ended in mistrials and a nightmarish child-murder case this month failed to persuade a jury to hand down the ultimate penalty.

Cannizzaro and his staff believe Louisiana should kill the "worst of the worst," like Barry Ferguson, who raped and strangled his mentally disabled daughter. Who, they asked, could be more deserving of the death penalty? Last week, Cannizzaro got his answer.

The jury of eight men and four women, unpersuaded, sentenced Ferguson to life in prison.

Voters elected Cannizzaro to represent their community in court. Juries are delivering the sense of the community again and again: killing is not the answer to killing. Orleans Parish juries haven't returned a death sentence in twelve years, despite New Orleans' reputation as the nation's murder capital. But Cannizzaro doesn't get it. He refuses to hear the message that juries continue to deliver, and so he spends the community's resources in futile efforts to kill defendants. It's time that Cannizzaro learned to listen.

Former Orange County Sheriff Joe Carona got whacked with 66 months for witness tampering today in federal court. While he was acquitted of many counts at the four month trial that resulted from lengthy corruption investigation, including counts he misused his office, the judge had no patience for the tampering.

“Lying will not be tolerated in this courtroom, especially by law enforcement, especially by the leading law enforcement official in the county," said [Judge Andrew]Guilford, who held up a copy of the book “The Importance of Being Honest” and read a passage to Carona.

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It's DWTS and "24" tonight for me. What are you watching? And if you're not watching anything, what else are you doing, reading of interest or thinking about?

Update: More injuries on DWTS. Melissa isn't there due to complications from rib injuries and Gilles has an injured collarbone requiring cortisone shots.

This is an open thread, all topics welcome.

Three groups have now filed amicus briefs in the Supreme Court supporting former Qwest CEO Joe Nacchio's cert petition for review of his insider trading conviction.

Here is the brief of the National Association of Criminal Defense Lawyers (pdf). The issues alone tell you why Nacchio's conviction has ramifications for all defendants:

• The Tenth Circuit’s Decision Effectively Eliminates Rule 16 And Forces Criminal Defendants To Comply With The Civil Expert Discovery Rules

• The Tenth Circuit’s Decision Is Inconsistent With Criminal Defendants’ Constitutional Rights And The Integrity Of The Criminal Judicial Process

• The Tenth Circuit’s Decision Makes It Less Likely That Juries Will Have Access To Essential Expert Opinion Testimony In Complex Criminal Cases

The other groups are the U.S. Chamber of Commerce and the Washington Legal Foundation.

The evening news reports the number of swine flu cases in the U.S. is now at 45. The U.S. is officially warning against travel to Mexico. The World Health Organization has upped the pandemic alert level.

More cases are expected. On NBC's Nightly News, expert Robert Bazell said those masks you see people wearing do very little. And it's okay to eat pork.