Anna Nicole to Nicole Richie: Celebs Put Spotlight on SCOTUS

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By Kimberly Robinson

Jan. 5 — Celebrities are everywhere—even at the U.S. Supreme Court. Professional athletes, actors and musicians have all popped up at the high court in various roles.

They have appeared as parties, amicus, commentators—and one, National Football League player Byron “Whizzer” White, even served as a Supreme Court justice.

A recent amicus brief filed by several professional musicians in a free speech case pending before the high court highlights the impact celebrities can have on Supreme Court matters.

While the involvement of celebrities probably doesn't impact the individual justices, “it draws a lot more public attention to the case that would otherwise be lacking,” Josh Blackman, a professor at South Texas College of Law, Houston, told Bloomberg BNA.

Vickie Who?

The “public seems interested in celebrities now more than ever,” Chad Baruch, a partner at Johnston Tobey Baruch, Dallas, told Bloomberg BNA.

Baruch recently filed a Supreme Court amicus brief on behalf of several famous rappers in a First Amendment case, Bell v. Itawamba Cty. Sch. Bd., 84 U.S.L.W. 3304, U.S., No. 15-666, filed, 11/17/15.

Baruch said the involvement of celebrities brings more public attention to a case, even if it doesn't—by itself—affect the justices.

Perhaps one of the best examples of this increased attention is a 2006 bankruptcy case about the probate exception to federal jurisdiction, Marshall v. Marshall, 547 U.S. 293 (2006) (74 U.S.L.W. 1655, 5/2/06).

Despite the technical nature of the question presented, the case was widely reported in the press because of the involvement of one famous litigant: Vickie Lynn Marshall, better known as Playboy playmate and potential heiress Anna Nicole Smith.

The multi-million dollar estate battle transformed an otherwise obscure jurisdictional issue into a much-followed Supreme Court case.

Unique Expertise

But Baruch said the benefit of celebrity participation isn't just about commandeering public attention.

Often celebrities have unique expertise that can be valuable to the justices in their consideration of an issue, Baruch said.

He said that what makes the brief he filed in Bell helpful “isn't that my clients are celebrities, but that they are experts in rap music and make their livings performing it.”

The case involves then-high-school student Taylor Bell, who was punished for graphic and violent rap lyrics he wrote to call attention to alleged sexual harassment by coaches at his school.

“This niggha telling students that they sexy, betta watch your back / I'm a serve this nigga, like I serve the junkies with some crack / Quit the damn basketball team / the coach a pervert / can't stand the truth so to you these lyrics going to hurt,” Bell said, according to the Fifth Circuit below.

The en banc U.S. Court of Appeals for the Fifth Circuit upheld Bell's punishment in 799 F.3d 379 (5th Cir. 2015) (en banc) (84 U.S.L.W. 247, 8/25/15).

Baruch said his clients “were really troubled by what seemed to be a punishment for artistic expression, and by the Fifth Circuit's failure to understand or appreciate rap as an art form. They thought the Court might benefit from some history and explanation of rap.”

Bell has asked the Supreme Court to reverse the appeals court.

Baruch's clients, including rappers T.I., Big Boi and Killer Mike, have weighed in to try and give some context to Bell's lyrics.

In their brief, they noted that although Michael Render performs as Killer Mike, “it probably is worth noting that he has never actually killed anyone.”

This kind of “exaggeration and hyperbole” is typical in rap music, the brief said.

“In its ruling, the Fifth Circuit focused on the violent rhetoric in Bell's song,” the brief said.

“Although the lyrics cited in the ruling are commonplace in rap and reflect some of the genre's most basic conventions, the Fifth Circuit ruled that they were ‘threatening, harassing, and intimidating.' As a result, the Government punished a young man for his art—and, more disturbing, for the musical genre by which he chose to express himself,” the brief said.

Spotlight on SCOTUS

The impact the amicus brief will have on the justices is still up in the air; the case hasn't even been set for conference yet.

But Blackman noted a number of times that high-profile celebrities have been entangled with the high court—from boxing legend Muhammad Ali to musical icon Cher.

These include:

• Associate Justice Byron White, who was nominated to the Supreme Court in 1962 by President John F. Kennedy. The former NFL halfback nicknamed “Whizzer” retired from the court in 1993.
• Muhammad Ali, whose draft evasion conviction was overturned by an 8-0 Supreme Court in Clay v. United States, 403 U.S. 698 (1971).
• Pro-golfer Casey Martin, who won the right to use a golf cart during PGA tournaments due to a disability in PGA TOUR, Inc. v. Martin, 532 U.S. 661 (2001).
• Arnold Schwarzenegger (R), who, in his capacity of Governor of California, initially filed the Supreme Court petition seeking to revive a state law restricting the sale or rental of violent video games to minors. Edmund Gerald “Jerry” Brown Jr. (D) took over as Governor of The Golden State by the time the Supreme Court handed down its opinion—deciding against the state on First Amendment grounds—in Brown v. Entertainment Merchants Assn., 79 U.S.L.W. 4658, 2011 BL 168066 (U.S. June 27, 2011) (79 U.S.L.W. 2783, 6/28/11).
• Cher and Nicole Richie, who were at the heart of two Supreme Court cases regarding the Federal Communications Commission's new policy of sanctioning “fleeting expletives” in FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009), and 80 U.S.L.W. 4493, 2012 BL 153978 (U.S. June 21, 2012) (80 U.S.L.W. 1798, 6/26/12).
• Robert De Niro, whose starring role in the 1980 film Raging Bull was the subject of a copyright suit in Petrella v. Metro-Goldwyn-Mayer, Inc., 82 U.S.L.W. 4361, 2014 BL 137694 (U.S. 2014) (82 U.S.L.W. 1737, 5/20/14).
• Susan Sarandon, who publicly called for Oklahoma Governor Mary Fallin (R) to stay the execution of Richard Glossip after the Supreme Court refused to halt the execution in Glossip v. Gross, 83 U.S.L.W. 4656, 2015 BL 206563 (U.S. June 29, 2015) (83 U.S.L.W. 1992, 6/30/15).
• Several former NFL players, who have sued Electronic Arts, the maker of the popular video game Madden NFL, for using their likenesses without their permission in Elec. Arts Inc. v. Davis, 84 U.S.L.W. 3203, U.S., No. 15-424, filed, 10/5/15.

 

This history suggests that regardless of the ultimate impact of the amicus brief in Bell, celebrities will continue to shine the spotlight on the Supreme Court.

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

For More Information 
Full text of the amicus brief filed in Bell v. Itawamba Cty. Sch. Bd. available at http://src.bna.com/bP9.