Congratulations to the Iowa Civil Liberties Union which won its federal lawsuit today challenging a sex offender banishment law.

A federal judge issued an order Friday blocking enforcement of a state law that prohibits sex offenders from living within 2,000 feet of a school or day care center.

The lawsuit said the requirement makes it nearly impossible for an offender to find a place to live ``because there is virtually no place in towns or urban areas in Iowa that is not within 2,000 feet of a school or daycare center.''

The Judge will decide in September whether to make the termporary restraining order permanent. He also allowed the civil liberties group to include prosecutors as defendants.

Don't miss the concurring opinion of Judge Bright in United States v. Flores, decided by the 8th Circuit Court of Appeals on July 18, 2003. Disseminate it widely. While the court approved an upward departure, Judge Bright wrote separately about judicial discretion, and about the unfairness of the sentencing guidelines. He concluded with a plea to his colleagues:

I want to conclude by making a plea to the district judges of this country who feel that they should have some say and some discretion in sentencing. Let your opinions disclose your views about the injustice in the sentencing decision or decisions you are obligated to impose by Congressional mandate and/or the Sentencing Guidelines.

Let me say further that judges generally do not object to appropriate guidelines for sentencing decisions but the time has come for major reform in the system. I say in this concurring opinion, as I have said in other sentencing opinions that I have written, "Is anyone out there listening?" United States v. Alatorre , 207 F.3d 1078, 1080 (8th Cir. 2000) (Bright, J., concurring)."

(Received via e-mail from Neal Sonnett, Esq., Miami)

The Nevada Supreme Court today overturned the convictions of Sandy Murphy, a topless dancer and Rick Tabish, a trucking contractor,for the murder of Ted Binion, a Las Vegas casino exec who came from a long line of prominent casino owners.

The appeals court said the trial judge improperly allowed a kidnapping and extortion charge against Tabish pertaining to a different victim to be tried with the murder charges, and improperly allowed prejudicial testimony from one of Binion's estate attorneys at trial without proper limiting instructions.

This was a very high profile trial in Nevada, televised on Court TV. It had a lot of lurid details, you can read all about it here.

Jurors found the pair staged Binion's death to look like a drug overdose. After an unsuccessful bid for a new trial citing wrongdoing by jurors, counsel, and a jailhouse snitch, Murphy and Tabish were sentenced to 22- and 25-years to life, respectively.

Mark Glaser of OnLine Journalism Review writes a long article about the recent 9th Circuit decision exempting online publishers from liability for material posted by third parties on their websites. We are among those interviewed, as is Yale Law Professor Jack Balkin, who writes the estimable blog Balkanization. You can read Jack's insightful analysis of the case here. Our analysis of the case is here.

An appeals court today rejected Bush and Chenecy's attempt to block a lawsuit delving into Cheney's energy task force.

A judge in Fairbanks, Alaska has dismissed a man's marijuana conviction, ruling that the Alaska Constitution guarantees one the right to possess pot in one's home.

In a decision rendered last week, Superior Court Judge Richard Savell dismissed the Fairbanks man's conviction for pot possession, ruling that a 1975 Alaska Supreme Court decision legalizing personal marijuana use by an adult in their home is still the law.

Since that decision, Ravin v. State, came down, a voter initiative passed in Alaska prohibiting the possession of any amount of pot in any location. Judge Savell ruled this law is unconstitutional, and the prior decision allowing first up to four ounces of marijuana, now up to eight ounces, for personal possession in one's home, is still valid:

The defense argued that the portion of the law prohibiting possession of marijuana for personal consumption by an adult in their home is unconstitutional. "A direct conflict in the law exists between the right to privacy guaranteed under the Alaska Constitution and the statutory prohibition ... which criminalizes the personal use of marijuana by an adult in the privacy of the home, regardless of the quantity of the prohibited substance," reads a portion of Thomas' motion to dismiss his conviction.

Savell granted the motion on June 25, writing in pen under his signature of approval that "Ravin stands."

A clerk for the defense attorney, Jim McClain said:

. ...the 1990 voter initiative that criminalized all pot use in the state is not binding, considering voters do not have the power to change the constitution through the initiative process.

The article says that the 1975 judicial decision "became part of the state's criminal code."

From John Wesley Hall at Fourth Amendment. Com:

Important forfeiture case: In United States v $242,484 (2003, CA11, Fla) 2003 US App Lexis 13273, the Eleventh Circuit on a petition for rehearing from (2003, CA11, Fla) 318 F3d 1240 (withdrawn), finding it could avoid even deciding the legality of the stop of the claimaint, held that possession of large amounts of cash is not alone indicative of criminal activity. The claimant had no criminal record and was carrying cash not bundled in a bank. On the totality of circumstances, the government could not show probable cause to link the money to criminal activity and reversed ordering judgment for the claimaint. The government claimed that its drug dog could differentiate between money that was in close proximity to drugs and money that merely had residue, but it put on no proof to support that claim. (In 1988, the DEA admitted that 80% of the money supply had cocaine residue on it, simply passed on by the money sorting machines at the Federal Reserve.)

In other fourth amendment news, John writes of this Texas case:

As bloggers, we have had some concerns about whether we would be liable for libelous comments posted by Talkleft readers. Last week the 9th Circuit Court of Appeals said online publishers are not responsible for material written by others that gets published on their sites--with one caveat:

In order for the provider or publisher of the information to receive immunity, the publisher reasonably must have determined that the author/sender/user meant for his communication to be published. In cases where a user directly posts his own comments, this is obvious.

But when a user sends an email to an online publisher, such as a blog, and does not intend for it to be published, the immunity issue gets murky. The Ninth Circuit determined in this decision that the test should not be the intent of the author, but rather, whether the provider (publisher) reasonably could assume that the information was sent with the intent for it to be published.

A federal appeals courts says do-it-yourself online publishers can post material generated by others without being legally liable for its content. Although the case concerned an e-mail discussion list, publishers of online journals, called blogs, hailed last week's ruling by the 9th Circuit as also extending speech protections to them.

"It clarifies the existing law," said Eric Brown, who represented the defendant in the suit. "It expands it in the sense that no court had really addressed bloggers, listserv (e-mail list) operators and those people yet" at such a high level.

The court said noncommercial publishers are only liable when they post information that a reasonable person would have known wasn't meant to be published.

"Now we can publish information we receive from someone else without fear of getting sued," said Jeralyn Merritt, a lawyer and blogger who manages TalkLeft, a Web site about crime-related news and politics.

Merritt said it would be impossible to monitor the nearly 200 messages posted onto her site every day. "We write for the enjoyment of it," said Merritt. "If we could get sued, I'm not sure it would be worth it."

We'll have more to say about the decison next week. Here's another version of the article, with a greater explanation of the facts in the 9th Circuit case.

The 11th Circuit Court of Appeals has affirmed a lower court's ruling ordering the removal of a monument to the Ten Commandments from the Alabama Supreme Court building. The monument was the size of a washing machine, made of granite and weighs 2 1/2 tons.

Both courts found that the monument violated the constitutional requirement of separation of church and state.

Update: The opinion is here. For commentary, visit Sam Heldman and People for the Amercian Way.

Cornell's Legal Information Institute has created a page with highlights of the Supreme Court's 2002-2003 term. The site contains rich background and links to access briefs, oral argument, commentary, decisions of the lower courts, and more on twenty-four key opinions.

"A federal appeals court in California on Monday ordered the U.S. Drug Enforcement Agency to stop enforcing rules that prevent businesses from selling hemp products that contain trace amounts of the active ingredient in marijuana. In a 2-1 ruling, the Ninth Circuit Court of Appeal ruled that banning the sales of consumable hemp products was invalid and unenforceable. "

The opinion is here.

The LA Times reports on the decision in "Still Can't Smoke It, But Court Says You Can Eat It."

The National Coalition to Abolish the Death Penalty speaks out on Thursday's Supreme Court ruling overturning a death sentence.