Supreme Court to rule on Prop. 8 ban on gay marriage

WASHINGTON — The Supreme Court set the stage Friday for a historic decision on gay rights, announcing it would hear appeals of rulings striking down California's Proposition 8 and the federal law denying benefits for legally married same-sex couples.

The court could decide in the Proposition 8 case whether the Constitution's promise of equal treatment gives gays and lesbians a right to marry. But the justices also left themselves the option to rule narrowly or even to duck a decision.

In 2008, California voters approved the measure limiting marriage to a man and a woman. Last year, the U.S. 9th Circuit Court of Appeals said the proposition had illegally taken away a right to marry that gays had won in the state courts.

MAP: How gay marriage has progressed in the U.S.

This 9th Circuit decision, though limited to California, was the first by federal judges to reject a state's marriage law.

Ted Olson and David Boies, two nationally prominent attorneys who launched the legal attack on Proposition 8, served notice they would seek a broad ruling national in scope at a time when public opinion has turned in favor of gay marriage rights.

"We are going to address all the issues, focused on the fundamental constitutional right to marry of all citizens," Olson said Friday.

"We ought to have marriage equality as a constitutional right everywhere," Boies added.

Q&A: Prop. 8, gay marriage and the Supreme Court

They maintained they were not concerned that the decision to hear the case puts in jeopardy their court victory for California gays who wish to marry. If the justices had simply turned down the appeal, gay marriage would have once again been legal in the state.

John Eastman, a California law professor and chairman of the National Organization for Marriage, which supports traditional marriage, saw the court's announcement as a sign that Proposition 8 would be upheld. If so, gay marriage would remain illegal in California, barring another voter initiative.

"It's a strong signal that the justices are concerned with the rogue rulings that have come out of San Francisco. We believe the U.S. Supreme Court will overturn this exercise in judicial activism," said Eastman, a former clerk to Justice Clarence Thomas.

TIMELINE: Gay marriage since 2000

In a second case, the justices will review the constitutionality of the Defense of Marriage Act and its provision denying federal benefits to same-sex couples who are legally married. Judges in New York, New England states and California have ruled this law denies gays and lesbians the equal protection of the laws.

The court agreed to hear the case of Edith Windsor, an 83-year-old widow who was given a $363,000 tax bill by the Internal Revenue Service after her female spouse died in 2009. The two had lived together for 44 years and were married in Canada in 2007. The U.S. government said Windsor did not qualify as a "surviving spouse" under the federal law. A married heterosexual couple would not have had to pay any tax.

A ruling on this issue could affect more than 100,000 gays and lesbians who are married in the United States.

The justices will have at least four options before them in the California case.

First, they could reverse the 9th Circuit and uphold Prop. 8, thereby making clear that the definition of marriage will be left to the discretion of each state and its voters. The defenders of Prop. 8 argue that federal courts should allow this divisive social issue to be resolved over time by voters and state legislatures.

A second possibility would be for the justices to agree with Olson and Boies and rule broadly that denying gays and lesbians the fundamental right to marry violates the Constitution. This would be a historic pronouncement, akin to the 1967 ruling in Loving vs. Virginia, which struck down the laws against interracial marriages.

A third option would be to follow the approach set by the 9th Circuit and strike down Proposition 8 in a way that limits the ruling to California.

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New iPad mini orders will be delivered in time for Christmas

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Viral rapper PSY apologizes for anti-US protests

South Korean rapper and Internet sensation PSY is apologizing to Americans for participating in anti-U.S. protests several years ago.

Park Jae-sang, who performs as PSY, issued a statement Friday after reports surfaced that he had participated in concerts protesting the U.S. military presence in South Korea during the early stages of the Iraq war.

At a 2004 concert, the "Gangnam Style" rapper performs a song with lyrics about killing "Yankees" who have been torturing Iraqi captives and their families "slowly and painfully." During a 2002 concert, he smashed a model of a U.S. tank on stage.

"While I'm grateful for the freedom to express one's self, I've learned there are limits to what language is appropriate and I'm deeply sorry for how these lyrics could be interpreted," he wrote in the statement. "I will forever be sorry for any pain I have caused by those words."

The 34-year-old rapper says the protests were part of a "deeply emotional" reaction to the war and the death of two Korean school girls, who were killed when a U.S. military vehicle hit them as they walked alongside the road. He noted anti-war sentiment was high around the world at the time.

PSY attended college in the U.S. and says he understands the sacrifices U.S. military members have made to protect South Korea and other nations. He has recently performed in front of servicemen and women.

"And I hope they and all Americans can accept my apology," he wrote. "While it's important that we express our opinions, I deeply regret the inflammatory and inappropriate language I used to do so. In my music, I try to give people a release, a reason to smile. I have learned that thru music, our universal language we can all come together as a culture of humanity and I hope that you will accept my apology."

His participation in the protests was no secret in South Korea, where the U.S. has had a large military presence since the Korean War, but was not generally known in America until recent news reports.

PSY did not write "Dear American," a song by the Korean band N.EX.T, but he does perform it. The song exhorts the listener to kill the Yankees who are torturing Iraqi captives, their superiors who ordered the torture and their families. At one point he raps: "Kill their daughters, mothers, daughters-in-law, and fathers/Kill them all slowly and painfully."

PSY launched to international acclaim based on the viral nature of his "Gangnam Style" video. It became YouTube's most watched video, making him a millionaire who freely crossed cultural boundaries around the world. Much of that success has happened in the U.S., where the rapper has managed to weave himself into pop culture.

He recently appeared on the American Music Awards, dancing alongside MC Hammer in a melding of memorable dance moves that book-end the last two decades. And the Internet is awash with copycat versions of the song. Even former Republican Sen. Alan Simpson, the 81-year-old co-chairman of President Barack Obama's deficit commission, got in on the fun, recently using the song in a video to urge young Americans to avoid credit card debt.

It remains to be seen how PSY's American fans will react. Obama, the father of two pop music fans, wasn't letting the news change his plans, though.

Earlier Friday, the White House confirmed Obama and his family will attend a Dec. 21 charity concert where PSY is among the performers. A spokesman says it's customary for the president to attend the "Christmas in Washington" concert, which will be broadcast on TNT. The White House has no role in choosing performers for the event, which benefits the National Children's Medical Center.

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The New Old Age Blog: A Son Lost, a Mother Found

My friend Yvonne was already at the front door when I woke, so at first I didn’t realize that my mother was missing.

It was less than a week after my son Spencer died. Since that day, a constant stream of friends had been coming and going, bringing casseroles and soup, love, support and chatter. Mom hated it.

My 94-year-old mother, who has vascular dementia, has been living in my home in upstate New York for the past few years. Like many with dementia, mom is courteous but, underneath, irascible. Pride defines her, especially pride in her Phi Beta Kappa intellect. She hates to be confronted with how she has become, as she calls it, “stupid.”

The parade of strangers confused her. She had to be polite, field solicitous questions, endure mundane comments. She could not remember what was going on or why people were there. It must have been stressful and annoying.

That night, like every night since the state troopers brought the news, I woke hourly, tumbling in panic. As if it were not too late to save my son. Mom knew something was wrong, but she could not remember what. As I overslept that morning, she must have decided enough was enough. She was going home.

In a cold sky, the sun blazed over tall pines. As I opened the door, the dogs raced out to greet Yvonne and her two housecleaners. Yvonne often brags about her cleaning duo. They were her gift to me. They were going to clean my house before the funeral reception, which was scheduled for later that week. This was a very big gift because, like my mother before me, I am a very bad housekeeper.

Mom’s door was shut. I cautioned the housecleaners to avoid her room as I showed them around. Yvonne went to the kitchen to listen to the 37 unheard messages on my answering machine; the housecleaners went out to their van to get their instruments of dirt removal.

I ducked into Mom’s room to warn her about the upcoming noise. The bed was unmade; the floor was littered with crumpled tissues; the room was empty.

Normally, I would have freaked out right then. I knew Mom was not in the house, because I had just shown the whole house to the cleaners. Although Mom doesn’t wander like some dementia patients, she does on occasion run away. But I could not muster a shred of anxiety.

“Yvonne,” I called, “did you see my mother outside?”

Yvonne popped her head into the living room, eyebrows raised.“Outside? No!” She was alarmed. “Is she missing?”

“Yeah,” I said wearily, “I’ll look.” I stepped out onto the front porch, tightening the belt of my bathrobe and turning up the collar. Maybe she had walked off into the woods. The dogs danced around my legs, wanting breakfast.

I had no space left in my body to care. Either we would find her, or we would not. Either she was alive, or she was not. My child was gone. How could I care about anything ever again?

Then I saw my car was missing. My mouth fell open and my eyeballs rolled up to the right, gazing blindly at the abandoned bird’s nest on top of the porch light: What had I done with the keys?

Mom likes to run away in the car when she is angry. She used to do it a lot when my father was still alive — every time they fought. Since Mom took off in my car almost a year ago, after we had had a fight, I’d kept the keys hidden. Except for this week; this week, I had forgotten.

I was reverting to old habits. I had left the doors unlocked and the keys in the cupholder next to the driver’s seat. Exactly like Mom used to do.

“Uh-oh,” I said aloud. Mom was still capable of driving, even though she did not know where she was going. I just really, really hoped that she didn’t hurt anybody on the road. I pulled out my cellphone, about to call the police.

“Celia!” Yvonne shouted from the kitchen. She hurried up behind me, excited. “They found your mother. There are two messages on your machine.”

At that very moment, Mom was holed up at the College Diner in New Paltz, a 20-minute drive over the mountain, through the fields, left over the Wallkill River and away down Main Street.

Yvonne called the diner. They promised to keep the car keys until someone arrived. By that time, Yvonne had to go to work. She drove my friend Elizabeth to the diner, and Elizabeth drove Mom home in my car.

Half an hour later, they walked in the front door. Mom’s cheeks were rouged by the chill air and her eyes sparkled, her white hair riffing with static electricity. “Hello, hello,” she sang out. “Here we are.” She was wearing the flannel nightgown and robe I had dressed her in the night before. It was covered by her oversized purple parka, and her bare feet were shoved into sneakers.

I started laughing as soon as I saw her. I couldn’t help it. Elizabeth and Mom started laughing too. “You had a big adventure,” I said, hugging them both. “How are you?”

“I’m just marvelous,” said my mother. Mom always feels great after doing something rakish. We settled her on the sofa with her feet on the ottoman. By the time I got her blanket tucked in around her shoulders, she had fallen asleep.

Elizabeth couldn’t stop laughing as she described the scene. “Your mother was holding court in this big booth. She was sitting there in her nightgown and her parka, talking to everybody, with this plate of toast and coffee and, like, three of the staff hovering around her.”

The waitress said Mom seemed “a little disoriented” when she got there. Mom said she was meeting a friend for breakfast, but since she was wearing a nightgown and didn’t know whom she was meeting or where she lived, the staff thought there might be a problem. They convinced Mom to let them look in the glove compartment of the car, where they found my name and number.

It was then that I realized I was laughing – something I’d thought I would never be able to do again. “Elizabeth, Elizabeth, I’m laughing,” I said.

“Ha, ha, ha,” laughed Elizabeth, holding her belly.

“Ha, ha, ha,” I laughed, rolling on the floor.

And she who gave me life, who had suffered the death of my child and the extinction of her own intellect, snoozed on: oblivious, jubilant, still herself, still mine.

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Former IndyMac execs told to pay FDIC $169 million

Three former IndyMac Bank executives must pay the government $169 million for their role in the Pasadena lender's collapse, delivering a victory to the Federal Deposit Insurance Corp. in its efforts to recover losses from the financial crisis.

In verdicts delivered Friday, jurors in federal court in Los Angeles agreed with the government's claim that the executives, who ran a construction-lending division at IndyMac, had been negligent in approving 23 loans to developers and homebuilders who never repaid them.

Lawyers for the FDIC had argued that the executives — Scott Van Dellen, Richard Koon and Kenneth Shellem — violated bank safety standards in their eagerness to reap bonuses for generating higher volumes of the development and construction loans.

"The jurors gave us everything we asked for," said Thomas D. Long, an attorney from the outside law firm, Nossaman LLP, that represented the FDIC. "We are proud of and grateful to the jury for holding the bankers accountable and issuing the right judgment in a very important case related to the nation's financial crisis."

The FDIC and defense attorney Damian Martinez did not immediately respond to requests for comment. Martinez had argued that the defendants could not have foreseen the huge downturn in the housing market that punished IndyMac and other mortgage and construction lenders.

While not the largest bank to fail in recent years, IndyMac was the costliest to the nation's deposit insurance fund, with a loss of $13 billion. Socked by enormous losses, especially on home loans made with little verification of borrowers' incomes, it failed after a run on its deposits in 2008.

The FDIC victory contrasts with mixed results obtained by the Securities and Exchange Commission in its pursuit of damages against financial executives accused of contributing to the financial crisis.

In one setback involving wide-ranging civil fraud claims against former IndyMac Chairman Michael Perry, a federal judge in Los Angeles tossed out nearly the entire SEC lawsuit. Perry settled the single remaining negligence claim in October for $80,000.

"The contrast is striking," said John C. Coffee, a Columbia law school expert in fraud claims, contending that the SEC's own legal staff is weak. "If you want a large recovery, you need a private law firm that can staff the case with the bodies that it takes."

The FDIC lawsuit, filed in July 2010, went to trial in mid-November. It was the first of 39 suits the FDIC has filed against 308 insiders at banks that have failed in the five years since the subprime mortgage meltdown triggered the Great Recession.

The agency has settled before trial with some bank officers and directors.

Those include a settlement of up to $64 million with directors and officers of Washington Mutual Bank, the giant Seattle savings and loan whose collapse in 2008 was by far the biggest bank failure in U.S. history, and another $125 million settlement with the parent company, Washington Mutual Inc.

An FDIC lawsuit blaming Perry for the thrift's collapse is pending. A spokesman for the agency said the FDIC made a previously undisclosed settlement of $1.4 million with Richard Wohl, IndyMac's former president, most of it paid by officers and directors insurance.

It was unclear how much of the award Friday would be paid. The FDIC had hoped to recover funds from $80 million in insurance policies covering civil wrongdoing by IndyMac officers and directors, but another federal judge has ruled that insurance can't be tapped in this case. The FDIC has appealed that ruling.

scott.reckard@latimes.com

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An actor despairs in Tinseltown

Seth Burnham sat in a dim corner of Kaldi Coffee & Tea, clutching a mug as he tried to conjure some confidence.

Being here in L.A., I'm giving it everything, he thought.

But after three years of living in Los Angeles, he hadn't had a single role he could be proud of. In a cable TV comedy, he played Percy the Carjacker, a dimwit blown to shreds by an air hose. For an independent film, he had been the best friend of a beautiful woman — a role the script called Small Gay Man.

Hollywood is one big lottery. You have to play it if you want a career in movies or TV....You have to be here. You have to believe.

Sometimes that was tough. Take STARmeter, the entertainment insider's website that measures the popularity of Hollywood actors.

"I was No. 80,000," Burnham said, "for a while."

Frustrated and fatigued, he would retire to this worn, cave-like cafe in Atwater Village.

He had found his surrogate Los Angeles family here, a group of a dozen or so who eased his loneliness and shared his Hollywood ambition: Amy, the animator who had worked on "South Park," Nicholas, whose latest film was well received at the Sundance Film Festival, and Amad, a rising African American actor who worried about being typecast in criminal roles.

They stayed for hours, talking, typing, hunched hard over laptops, nursing lattes. They were actors, writers and directors; stragglers, success stories and hard-luck cases like Burnham.

Many days, he sat in a torn leather chair reading through newspapers and memorizing scripts. He seemed swallowed in the furniture — brown-haired, bearded, not much more than 5 feet tall, with worry lines marching from the corners of his eyes.

Time was against him. Asked his age back in February, Burnham paused. "Mid 30s-ish, early 40s-ish," he said.

Outside of the cafe, he had few Los Angeles friends. His wife, a medical student, moved to St. Louis last year for a residency, but he stayed here. They decided that if she was going to devote herself fully to her dream, then he would too.

But how much more rejection could he handle? And was the unrelenting struggle worth more to him than his marriage?

::

Since his college days in the early 1990s, the acting quest had taken Burnham to several cities. He lived in San Francisco and London, where he trained at a drama school in the classical English style and started a theater company. He lived in Portland, Ore., and Seattle, where he got good reviews for his role in a modern adaptation of Chekhov's "The Seagull."

Everywhere he put down roots he found a place like Kaldi. "The anti-Starbucks," he said. "Just my style."

In Los Angeles, he developed a cafe routine. Each morning, he awoke in his cramped apartment, fed kibbles to his cats, threw on his sneakers and walked across Glendale Boulevard.

He drank two iced coffees a day, no more. He couldn't afford more, not when he didn't have a job — he had to be free for auditions. He relied on credit cards and his wife's salary to pay his bills.

Burnham didn't want fame; he wanted to simply be a journeyman, a working actor, appreciated for his skill, making roughly the same yearly salary as a union electrician.

He sat in the cafe for entire mornings and sometimes entire days. "Wrestling demons," he said.

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No Grammy love for Justin Bieber, One Direction

LOS ANGELES (Reuters) – Irate fans of Justin Bieber and boy band One Direction took to social media on Thursday to voice their outrage after being snubbed by the Grammys for a chance to win the biggest honors in the music industry.

Indie-pop band fun and rapper Frank Ocean led the 2013 nominations, tying with The Black Keys, Mumford & Sons, Jay-Z and Kanye West for six nods. But The Recording Academy overlooked some of the year’s biggest and most commercially successful artists in Wednesday’s nominations.

While Bieber, 18, who won three American Music Awards in November, stayed quiet on his omission, his manager Scooter Braun took to Twitter.

“Grammy board u blew it on this one. the hardest thing to do is transition, keep the train moving. The kid delivered. Huge successful album, sold out tour, and won people over. … This time he deserved to be recognized,” Braun posted in a series of tweets.

Many of Bieber’s 31 million Twitter fans quickly followed suit, with hashtags such as #BieberForGrammys trending on the micro-blogging service.

The Canadian singer, who has never won a Grammy, in June released album “Believe,” showcasing a more grown-up image. The album, which produced top 10 hits “Boyfriend” and “As Long As You Love Me,” has sold more than 1.1 million copies.

British boy band One Direction was also left empty-handed despite their debut album “Up All Night” having topped the Billboard 200 album chart.

The quintet has performed sold-out shows across the world and won three MTV video music awards earlier this year.

The Grammy Awards are voted on by members of The Recording Academy and recognize achievement in 81 categories.

Lady Gaga, rapper Nicki Minaj and Korea’s Psy also failed to snag any nominations.

While Gaga hasn’t released new music this year, focusing on her global tour, Minaj released “Pink Friday: Roman Reloaded,” which topped the Billboard 200 chart and spawned singles such as “Starships.”

Psy may have YouTube’s most watched video ever with “Gangnam Style,” – over 897 million views – but he missed out on becoming the first Korean artist to receive a Grammy nod.

The Grammy Awards will be handed out at a live performance show and ceremony on February 10 in Los Angeles.

(Reporting By Piya Sinha-Roy; editing by Jill Serjeant and Todd Eastham)

Internet News Headlines – Yahoo! News

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George Zimmerman sues NBC and reporters

ORLANDO, Fla. (AP) — George Zimmerman sued NBC on Thursday, claiming he was defamed when the network edited his 911 call to police after the shooting of Trayvon Martin to make it sound like he was racist.

The former neighborhood watch volunteer filed the lawsuit seeking an undisclosed amount of money in Seminole County, outside Orlando. Also named in the complaint were three reporters covering the story for NBC or an NBC-owned television station.

The complaint said the airing of the edited call has inflicted emotional distress on Zimmerman, making him fear for his life and causing him to suffer nausea, insomnia and anxiety.

The lawsuit claims NBC edited his phone call to a dispatcher in February. In the call, Zimmerman describes following Martin in the gated community where he lived, just moments before he fatally shot the 17-year-old teen during a confrontation.

"NBC saw the death of Trayvon Martin not as a tragedy but as an opportunity to increase ratings, and so set about to create a myth that George Zimmerman was a racist and predatory villain," the lawsuit claims.

NBC spokeswoman Kathy Kelly-Brown said the network strongly disagreed with the accusations made in the complaint.

"There was no intent to portray Mr. Zimmerman unfairly," she said. "We intend to vigorously defend our position in court."

Three employees of the network or its Miami affiliate lost their jobs because of the changes.

Zimmerman is charged with second-degree murder but has pleaded not guilty, claiming self-defense under Florida's "stand your ground law."

The call viewers heard was trimmed to suggest that Zimmerman volunteered to police, with no prompting, that Martin was black: "This guy looks like he's up to no good. He looks black."

But the portion of the tape that was deleted had the 911 dispatcher asking Zimmerman if the person who had raised his suspicion was "black, white or Hispanic," to which Zimmerman responded, "He looks black."

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Drug Makers Challenge Pill Disposal Law in California

Brand name drug makers and their generic counterparts rarely find themselves on the same side of an issue, but now they are making an exception. They have teamed up to fight a local law in California, the first in the nation, that makes them responsible for running — and paying for — a program that would allow consumers to turn in unused medicines for proper disposal.

Such so-called drug take-back programs are gaining in popularity because of a growing realization that those leftover pills in your medicine cabinet are a potential threat to public health and the environment.

Small children might accidentally swallow them and teenagers will experiment with them, advocates of the laws say. Prescription drug abusers can, and are, breaking into homes in search of them. Unused pills are sometimes flushed down the toilet, so pharmaceuticals are now polluting waterways and even drinking water. One study found the antidepressant Prozac in the brains of fish.

Most such take-back programs are run by local or other government agencies. But increasingly there are calls to make the pharmaceutical industry pay.

“We feel the industry that profits from the sales of these products should have the financial responsibility for proper management and disposal,” said Miriam Gordon, California director of Clean Water Action, an advocacy group.

In July, Alameda County, Calif., which includes Oakland and Berkeley, became the first locality to enact such a requirement. Drug companies have to submit plans for accomplishing it by July 1, 2013.

But the industry plans to file a lawsuit in United States District Court in Oakland on Friday, hoping to have the law struck down. The suit is being filed by the Pharmaceutical Research and Manufacturers of America, or PhRMA, which represents brand-name drug companies, the Generic Pharmaceutical Association and the Biotechnology Industry Organization.

James M. Spears, general counsel of PhRMA, said the Alameda ordinance violated the Constitution in that a local government was interfering with interstate commerce, a right reserved for Congress.

“They are telling a company in New Jersey that you have to come in and design and implement and pay for a municipal service in California,” he said in an interview.

“This program is one where the cost is shifted to companies and individuals who are not located in Alameda County and who won’t be served by it.”

Mr. Spears, who is known as Mit, said that the program would cost millions of dollars a year to run and that pharmaceutical companies were “not in the waste disposal business.” He said it would be best left to sanitation departments and law enforcement agencies, which must be involved if narcotics, like pain pills, were to be transported.

Nathan A. Miley, the president of the Alameda County Board of Supervisors and the champion of the legislation, said late Thursday, “It’s just unfortunate that PhRMA would fight this because it would be pennies for them.”

“We will win legally and will win in the court of public opinion as well,” Mr. Miley said.

The battle in Alameda could set the direction for other states and localities. Legislators in seven states have introduced bills to require drug companies to pay for take-back programs in the last few years, said Scott Cassel, founder and chief executive of the Product Stewardship Institute, a nonprofit group that advocates such programs. But none of the bills have passed.

Mr. Cassel said about 70 similar “extended producer responsibility” laws have been enacted in 32 states for other products, like electronic devices, mercury-containing thermometers, fluorescent lamps, paint and batteries. He said he was not aware that any had been struck down on constitutional grounds.

The pharmaceutical industry already pays for take-back programs in some other countries. The law in Alameda is modeled partly on the system in British Columbia and two other Canadian provinces. There, the industry formed the Post-Consumer Pharmaceutical Stewardship Association, which runs the programs.

Consumers can take unused drugs back to pharmacies, from which they are periodically collected. Drug companies pay for the program in proportion to their market share, said Ginette Vanasse, executive director of the association. The program for British Columbia, with a population over four million, costs about $500,000 a year, she said.

The extent of the problem of unused pills and how best to handle them are matters of debate.

The United States Geological Survey has found various drugs, including antidepressants, antibiotics, heart medicines and hormones, in waterways it has sampled. Sewage treatment plants and drinking water treatment plants are not meant to remove pharmaceuticals.

Still, it is not known what effect the chemicals might have. “It’s a hard-to-pin-down problem,” said Sonya Lunder, a senior analyst at the Environmental Working Group, an advocacy group. It is thought that trace amounts in drinking water are probably not harmful. But larger amounts found in wastewater could be having an impact on wildlife.

It is also unclear whether take-back programs will help. Experts generally agree that the bigger source of pollution is urine and feces containing the remnants of drugs that are ingested, not the unused pills flushed down the toilet.

PhRMA also argues that take-back programs will not help much with the problem of drug abuse either. Mr. Spears said that it was better to have consumers tie up unused pills in a plastic bag and throw them in the trash. That is more effective, he said, because people would not have to travel to a collection point. Such collection points could become targets for thieves and drug abusers.

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Appeals court puts 1st Amendment over public health

The Food, Drug and Cosmetic Act makes it illegal to sell a prescription drug for any purpose other than what's listed on the label.

Nevertheless, a divided federal appeals court this week tossed out the conviction of a former drug sales rep who was recorded pitching a doctor on other uses of a medicine approved by regulators solely to treat the sleep disorder narcolepsy.

And here's the kicker: The court ruled that the sales rep had a free-speech right to promote the drug's unapproved uses.

I'm as big a fan of the 1st Amendment as anyone, but this decision strikes me as fundamentally flawed.

We're not talking about a right to express yourself. We're talking about selling stuff — stuff that could harm or even kill you if used improperly.

Moreover, it would seem that a serious blow has been dealt to the Food and Drug Administration's power to ensure the safety of prescription meds. The drug industry can now pitch any use for its products, regardless of what regulators say.

"This is a complete disgrace," said Steven Miles, a professor of medicine and bioethics at the University of Minnesota. "What this basically does is destroy drug regulation in the United States."

Felicia Cohn, director of medical bioethics for Kaiser Permanente Orange County, was more circumspect. But only slightly so.

"This completely undermines the FDA's authority over how drugs are marketed," she said. "I can't imagine that the marketing folks in the drug industry won't seize upon this as an excuse to sell almost all drugs beyond their approved usage."

The case before the U.S. 2nd Circuit Court of Appeals in Manhattan this week began in 2005 when Alfred Caronia, a former sales rep for Orphan Medical, later acquired by Jazz Pharmaceutical, was targeted in a federal investigation into questionable drug-industry sales practices.

He was recorded telling a doctor that the narcolepsy drug Xyrem could also be used to treat insomnia, fibromyalgia and other conditions, even though the FDA hadn't approved such uses. Caronia was convicted by a jury in 2008.

In his appeal of the verdict, Caronia argued that the 1st Amendment gave him the right to discuss so-called off-label drug uses, and the court agreed.

"The government clearly prosecuted Caronia for his words — for his speech," the majority wrote in the 2-to-1 decision. It concluded that "the government cannot prosecute pharmaceutical manufacturers and their representatives" under the Food, Drug and Cosmetic Act for speech promoting off-label drug uses.

Judge Debra Ann Livingston, the sole dissenter on the panel, countered that by overturning Caronia's conviction, "the majority calls into question the very foundations of our century-old system of drug regulation."

The government is expected to challenge the ruling, either before the full appellate court or at the U.S. Supreme Court. The high court already has determined that unlimited political donations can be made in the name of free speech.

R. Alta Charo, a professor of law and bioethics at the University of Wisconsin, explained it to me like this:

Let's say a drug company came up with a medicine that the FDA approved for controlling a patient's blood pressure. But later on, the company discovered that the medicine has an interesting side effect: It grows hair.

A cure for baldness, obviously, has blockbuster potential. But under the old rules, the drug company would have had to go back to the FDA and receive approval for the blood-pressure medicine to be marketed as a hair restorer.

Now, it wouldn't have to. It could claim a free-speech right to say whatever it wanted about the drug's usage.

The drug Viagra was originally intended to lower blood pressure and treat angina. It was only during testing that its maker, Pfizer, noticed that Viagra had an unexpected effect on another aspect of the male anatomy.

So Pfizer asked the FDA for permission to market its heart drug as a remedy for erectile dysfunction. The federal agency, in turn, gave Pfizer's research a good going over before giving its nod.

"What we're losing with this court decision is the safeguard of an independent arbiter," Charo said. "It's very problematic."

Alexander Capron, a professor of law and medicine at USC, called the ruling "enormously significant" and said it eliminates an important hurdle that drugs have had to clear before reaching the market.

"The danger to consumers is that a drug will be marketed without having the relative balance between efficacy and safety adequately addressed," he said.

Businesses and their conservative friends in Congress routinely argue that regulations get in the way of commerce and innovation and that the market should be left to work its magic.

The flip side of that pie-in-the-sky perspective is GlaxoSmithKline agreeing to pay $3 billion in July for promoting antidepressants and other drugs for unapproved uses. Or Johnson & Johnson agreeing in August to pay $181 million to settle cases over the questionable marketing of an antipsychotic drug.

FDA rules are there for a reason, and that reason is to protect public health.

Drug companies have everything to gain by being able to sidestep regulatory oversight. The rest of us gain nothing.

David Lazarus' column runs Tuesdays and Fridays. He also can be seen daily on KTLA-TV Channel 5 and followed on Twitter @Davidlaz. Send tips or feedback to david.lazarus@latimes.com.

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