WASHINGTON (UPI) - The Supreme Court expanded its study of the
Constitution's reach into the air Monday, agreeing to decide whether
the Environmental Protection Agency can conduct aerial reconnaissance
of suspected polluters.
The justices will hear arguments next term on a case brought by
the Dow Chemical Co. challenging the right of the agency to conduct
flyovers of its Midland, Mich., plant.
The court already has agreed to weigh a California case seeking to
overturn a state appeals court ruling that aerial observation by
police of marijuana plants in a fenced yard is ""a direct and
unauthorized intrusion into ... the home'' and that a search warrant
is needed to conduct such activity.
The EPA case is an appeal by Dow Chemical of a ruling by the 6th
U.S. Circuit Court of Appeals, which concluded no privacy was invaded
by photographing from the air the ""outdoor spaces of a chemical
The agency conducted the surveillance as part of an investigation
into whether two power plants at the 2,000-acre fenced facility were
violating clear air standards.
Dow claimed that its Fourth Amendment rights to be free from
unreasonable searches was violated by the reconnaissance because the
EPA did not have a warrant to conduct the search. Dow argued that it
had an interest in privacy to ""protect the internal details,
confidential business information and trade secrets of its open-air
""If complex manufacturing facilities are deemed to be open fields
in which the owners have no reasonable expectation of privacy with
respect to visually enhanced intrusions, then companies such asDow
cannot maintain that their technology discernible through such
visually enhanced means has been maintained secret,'' Dow said.
The government, arguing on behalf of the EPA against high court
review, said the ""public is allowed to take aerial photographs ...
and nothing in the Clean Air Act prevents EPA from using the
sametechnique in discharging its duties.''
Newsletters Ruled Exempt WASHINGTON (UPI) - The Supreme Court,
sidestepping a constitutional question, Monday exempted financial
newsletters from federal licensing rules as long as the publications
are of general interest and do not offer individualized advice.
The justices, voting 8-0, reversed the 2nd U.S. Circuit Court of
Appeals, which had barred Christopher Lowe from publishing a
newsletter because he was not licensed with the Securities and
The majority opinion, written by Justice John Paul Stevens, said
the publication of a general interest newsletter did not qualify Lowe
as an adviser under the Investment Advisers Act of 1940.
Because Lowe was exempted from the act, the court said, it was not
necessary to consider the constitutional issue of whether the First
Amendment prohibits licensing of any type of investment newsletter.
""As long as the communications between (Lowe's newsletters) and
their subscribers remain entirely impersonal ... we believe the
publications are, at least presumptively, within the exclusion and
thus not subject to registration under the act,'' Stevens wrote.
In a separate opinion, Chief Justice Warren Burger and Justices
Byron White and William Rehnquist said they believe the 1940 law
""may not constitutionally be applied to prevent persons who are
unregistered from offering impersonal advice through publications.''
The case before the court began in 1981, when Lowe's license as a
financial adviser was revoked by the SEC after he was convicted of
serious misconduct related to his investment advisory business. …