Court Cans Cop Cussing Case

CAROUSEL -- Political strategists Anita Dunn and Kevin Madden preview President Obama's State of the Union Address on "The Early Show" Wednesday, Jan. 27, 2010. CBS

The Supreme Court, sidestepping a dispute over cussing, refused Monday to consider whether a Montana man's foul language to a law enforcement officer was free speech protected by the Constitution.

Separately, the court declined to intervene in cases concerning Ozzy Osbourne's business practices, and the Tennessee Valley Authority's environmental power. The justices did act to reinstate a murder conviction against a bodybuilder who killed her bodybuilder husband.

The Montana man, Malachi Robinson, was walking down the street about midnight four years ago when he called the Missoula county deputy in a nearby squad car a "(expletive) pig." The deputy got out and confronted Robinson, who uttered another expletive at the officer.

His swearing earned Robinson a $50 fine for disorderly conduct. He was also sentenced to 10 days in jail, but the judge suspended that.

Justices declined without comment to review his appeal. Their refusal does not address the merits of the issue.

"The First Amendment ought to protect citizens who criticize officials, even if it's in a crude manner, as long as there was no threat involved," Robinson's attorney, Jeffrey Fisher of Seattle, said in an interview.

Fisher said while the comments may have been "crude, obnoxious and offensive," they did not rise to the level of threatening "fighting words" unprotected by the First Amendment.

Fisher said courts around the country are divided over what constitutes "fighting words," and that without clarification from the Supreme Court some people could be unfairly targeted.

"Officers whether consciously or not may selectively arrest some people for using profanity toward them, while turning the other cheek with respect to others," Fisher told justices in a court filing. "This is not an acceptable way to administer criminal law, especially where free speech concerns are at stake."

A criminal lawyers' group urged the court to hear the case of Robinson, who did not have enough money to pay the standard fees in his Supreme Court appeal.

The conviction stigmatizes Robinson and also stands in the way of his job opportunities, Washington lawyer Katherine Fallow, representing the National Association of Criminal Defense Lawyers, told justices.

With Monday's action, justices left undisturbed a Montana Supreme Court ruling that unprovoked utterances are not protected.

Also Monday, the court reinstated a murder conviction in the case of a California woman who claimed she shot her husband to end his physical and sexual abuse.

Sally and Ray McNeil were both bodybuilders and steroid users as well as former Marines, and had violently fought before over Ray McNeil's affairs and other things, according to court records.

The San Diego couple's final fight on Valentine's Day 1995 was over the cost of some chicken, which he was cooking when he was shot.

Sally McNeil was convicted of second-degree murder and sentenced to 15 years in prison.

The 9th U.S. Circuit Court of Appeals ruled that she was not properly allowed to argue that the death was manslaughter and that she was psychologically damaged from his abuse.

California authorities appealed to the Supreme Court, which ruled without hearing arguments in the case.

In a short, unsigned opinion, the high court said although the jury in Sally McNeil's case heard instructions that were technically incorrect, a prosecutor quickly resolved any confusion.

In the Ozzy case, justices refused to consider the appeal of bassist Robert Daisley and drummer Lee Kerslake, who sued in 1998 seeking royalties for their work on Osbourne albums "Blizzard of Ozz" and "Diary of a Madman."

Los Angeles attorney Nate Kraut said his musician clients have been denied credit for writing songs that are now used in television commercials and during National Football League games.

"Their music is literally everywhere," he told justices in a filing.

A California judge had dismissed the lawsuit that named Osbourne and his wife, as well as several music companies.

And the court refused to consider whether the government-owned Tennessee Valley Authority had the authority to disregard a demand from Washington to clean up its coal-fired power plants.

The justices had been asked by the Bush administration to step into a dispute over the authority of the Environmental Protection Agency. Justices declined, without comment, to use the EPA's appeal to clarify how conflicts between two executive branch agencies should be handled.

The TVA, which serves more than 8 million people in seven Southern states, had challenged the EPA's authority when it became a target of aggressive Clinton administration initiatives to reduce smokestack emissions from aging coal-fired power plants.

The Bush administration contends that the authority did not have the right to litigate the dispute, over the objection of the attorney general.

Supreme Court Justice David H. Souter was back on the high court bench Monday following a weekend attack while jogging in Washington.

Souter had no visible bandages, but above his robe, his neck appeared to be bruised.

Court spokeswoman Kathy Arberg said the justice, a member of the court since 1990, would not discuss the attack or his injuries.
  • Jarrett Murphy

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