Supreme Court Considers 'Valdez' Fine

The Supreme Court has agreed to hear Exxon-Mobil's appeal of the $2.5 billion judgment for the Valdez oil spill. The court is also hearing arguments this week on a child pornography case that hinges on First Amendment rights.

ALISON STEWART, host:

Dateline March 1989, this report from KTUU in Anchorage, Alaska.

(Soundbite of KTUU news recording)

Unidentified Man: By this afternoon, the Exxon Valdez had leaked 265,000 barrels of oil into the waters of Prince William Sound. At more than 11 million gallons, it's the largest spill in the 10-year history of the pipeline system. The oil is so thick on the surface that ice from nearby Columbia glacier turned black. It was apparently the same ice the captain of the tanker was trying to avoid when he swerved from the normal sea lane.

STEWART: Fast forward to yesterday when the Supreme Court announced it will review one part of the damages Exxon was ordered to pay after this oil spill, a 2.5 billion chunk. Now, the court also declined to hear a case fondly referred to as Strippergate. It actually involves a strip club parking lot and campaign contributions. And then today, the high court will hear a case to decide what decides what falls under the umbrella of Internet kiddie porn. There are dramatic times in Washington, D.C.

Here to help us suss it out is Mike Gerhardt, a professor of Constitutional Law at UNC Chapel Hill. Hi, Mike.

Professor MICHAEL GERHARDT (Samuel Ashe Distinguished Professor in Constitutional Law & Director, Center for Law and Government, University of North Carolina, Chapel Hill): Hi. Good morning.

STEWART: Thank you so much for joining us today. We really appreciate it.

Prof. GERHARDT: My pleasure.

STEWART: Let's get a start with the case the justices are hearing today. It's tackling this issue of whether claiming to have child pornography is tantamount to engaging in child pornography. What was at the basis for this case heading to the Supreme Court?

Prof. GERHARDT: Well, this case, in some respects, sort of derives from a couple of different things. One is a long term effort to try and regulate and prohibit child pornography particularly on the Internet. And Congress has had a really tough time doing that because it has been trying to characterize child pornography or the possession of it in such broad terms that it becomes vague as to what actually is covered. And then the second thing that's going on here, of course, is what's going on in this particular case, this particular man, Michael Williams, had apparently been involved in what's called pandering, trying to sort of not just get pictures of - solicit pictures of children but also trying to sort of distribute some and…

STEWART: Yeah, beside Michael Williams, just to catch people up, he claims…

Prof. GERHARDT: Right.

STEWART: …to have had pictures, child pornography pictures…

Prof. GERHARDT: Right.

STEWART: …I think of his daughter even?

Prof. GERHARDT: Right, and I think they did find in possession - his possession some photographs from some real children in some illicit, I guess, scenarios. And so the question, in part, is whether or not they can actually prosecute this man under the law as it is written now.

STEWART: That's one of the interesting things about this case is there are some mainstream organizations who are on board against some of these laws because they are so broad. Obviously…

Prof. GERHARDT: Right.

STEWART: …it's not because they're for child porn. What is the argument that they're making?

Prof. GERHARDT: Well, their argument, basically, is that the law is what's called overbroad and vague, and those are legal terms - I'll quickly explain them. I mean, it just means that they're phrased in such a broad way that protected activity would actually fall under them, and then they're also phrased in such a way that you can't even tell - specifically what might be under them. So if people don't know what is actually prohibited, then they might be prevented from engaging in protected constitutional activities.

STEWART: So, for example, if a movie company was advertising some film that maybe dealt with child porn - just the advertisement of it.

Prof. GERHARDT: Right. Maybe just the advertising of that or maybe, for example, in the classic example we often use is the history of art survey where you go back and look at things, like some of the great pieces - works of art of over our history which probably sometimes do depict naked children. They're not meant to be illicit or pornographic, but there are naked children in some great art.

STEWART: How has this court ruled on child pornography in the past? Is there anything that they've done or ruled on that might telegraph where this case could go?

Prof. GERHARDT: Well, there are - the most - recently what the court has done is it's been striking down attempts to regulate child pornography on the Internet, but it's been trying to - what it struck down are attempts to do that through this broad, vague language. And the real problem here is that what the federal laws are trying to do is regulate, not just actual pictures of children in horrible circumstances, but they're also trying to prohibit the virtual depiction of them. In other words, like some computer images. And it gets real problematic when you try and prohibit something that doesn't involve any real people but just involves an image that some people find disturbing.

STEWART: Let me ask you about this Exxon case. There's two things I find sort of interesting in this. The first is that Sam Alito has reportedly owned a significant amount of Exxon stocks, so he's not going to actually take part in this case. So does this happen often when a justice has to step away?

Prof. GERHARDT: It does happen fairly often that the justices or their families or wives or may happen to trust or somewhere, some stock and some of the businesses or corporations that end up having cases before the Supreme Court. It's not that unusual for these things to occur. Every now and then, you'll see less than nine people sitting on a case precisely because somebody's got a conflict of interest. It could even be, for example, John Roberts came from a very nice law firm in Washington D.C. called Hogan & Hartson. He might excuse himself from cases involving that firm just so he can avoid a conflict of interest.

STEWART: Now, Exxon has already paid out about $300 million to 11,000 Alaskans in small businesses. They spent 2.2 billion in cleaning up, so why is the court going to review the details of a case that's almost 20 years old and where so much has gone forward already?

Prof. GERHARDT: Well, this case involves what's called a constitutionality of punitive damages.

Punitive damages are damages that aren't just trying to make somebody whole, but they're extra damages that are put on somebody because they did something bad and you're trying to discourage other people from doing these bad things and maybe even just punish the person or the corporation because you think they deserve it.

So the Supreme Court has dealt with this question of punitive damages before. It comes down to a question of basically sort of due process in part whether or not it's just simply a violation of due process for there to be such an extraordinary amount of money imposed against, let's say, a corporation for doing something that may not be - there may be a disproportion between the amount that's imposed this punishment and the actual crime.

STEWART: Sure. Quick question - final for you. The court had just declined to hear this case of the Seattle strip club owner. He was accused of making illegal campaign contributions with the hopes of maybe getting an expansion of the club's parking lot - so say the prosecutors. So what criteria can the court use to turn down a case? I mean, is the ick factor, their holding their nose at a strip club case enough?

Prof. GERHARDT: Well, the Supreme Court has been known to take, you know, cases involving, you know, obscenity and pornography and things like that. They don't seem to be particularly immune to doing that. But…

LUKE BURBANK, host:

Yeah, bong hits for Jesus.

STEWART: That's right, Anna Nicole, hmmm, hmmm.

Prof. GERHARDT: Right. In fact, they used to have a - they had a movie screen in the '60s where they could watch obscene movies to decide if they were pornographic or not (unintelligible).

STEWART: Oh, the '60s.

Prof. GERHARDT: But they, I think what happens is you look at whether or not there's a so-called conflict in the circuits; whether different federal courts of appeals are in conflict over the issue that's one way. You might just look at the magnitude of the issue; whether or not this is something they think is so important that they have to decide now so they have immense discretion to make choices of which cases to hear.

STEWART: Mike Gerhardt is professor of Constitutional Law at UNC Chapel Hill. Big thanks to you, Mike.

Prof. GERHARDT: Sure. And my pleasure.

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