Supreme Court Will Decide Aerial Reconnaissance Issue / Lawyer Ad Case Remanded

THE JOURNAL RECORD, June 11, 1985 | Go to article overview

Supreme Court Will Decide Aerial Reconnaissance Issue / Lawyer Ad Case Remanded


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 plant.''

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 facility.''

""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 ExchangeCommission.

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. …

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