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Re: [dvd-discuss] 2600 Loses in 2nd Circuit

Another lame part of the opinion is the dismissive attitude they took to the
"Within Constitutional Powers" question. They noted it was only argued in a
footnote and by one of the amici and sidestepped the whole issue saying the
case didn't have a record developed to get into it. 

I think this is reversible error because the O'Brien intermediate scruitiny
standard requires the court to find de novo that the regulation meets that
plank of the test. Had no mention been made at all in any briefs, the court is
still required to apply "scrutiny", ie independent consideration. If the record
below does not allow the issue to be probed then the Court in applying
intermediate scruitiny should have vacated the lower court and ordered that
such inquiry be made to defend the statute. The burden of meeting intermediate
scutiny must rest with those defending the statute once it is established that
the First Amendment is implicated as this Court clearly ruled was the case.

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