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As Supreme Courts around the world return from long legal vacations, a number of them have kicked off the new legal term by jumping into some controversial and fascinating cases. This week in the US arguments have been heard in Fisher v University of Texas. The case concerns the constitutionality of race based affirmative action policies in education. The petitioner is a white student who was turned down from the University of Texas in 2008 and who claims that she is the victim of illegal race discrimination under the university’s affirmative action admissions procedure. You can read an excellent summary of the case on the UK Human Rights Blog.  As ever, our excellent sister blog, SCOTUS, has been following arguments closely and has suggested that the Chief Justice, whom some thought was edging towards greater liberality in his decision making following his opinion in the Affordable Care Act case, appears to have returned to his conservative roots during the summer vacation. Chief Justice Roberts closely questioned the counsel for the university, expressing apparent skepticism of claims that considerations of race were merely one part of a holistic admissions policy.

In the South African Constitutional Court, a vital judgment on the freedom of speech was handed down at the end of September.  In Print Media South Africa v Minister of Home Affairs the Court struck down a legislative provision contained in the Films and Publications Act 1996, which required prior restraint of certain types of publication. The provision required that any person who creates, publishes or advertises a publication that “contains sexual conduct which violates or shows disrespect for the right to human dignity, degrades a person, or constitutes incitement to cause harm”, must submit the publication for examination and classification to the Films and Publications Board before distributing the publication.  As outlined by Dario Milo in an article published in the Mail and Guardian and re-posted on Inforrm, both ‘sexual conduct’ and ‘publication’ were very broadly defined. The provision affected, among other things, sexual education materials and law reports involving violent sexual crimes.  The Court ruled that the provision was a clear breach to the right of free expression and “an effective ban or restriction on a publication by a court order even before it has ‘seen the light of day’ is something to be approached with circumspection and should be permitted in narrow circumstances only”.

Finally, the Canadian Supreme Court ruled last week that people with low levels of HIV who use condoms during sex do not have a duty to disclose their condition to sexual partners. The Court reasoned that the decision reflected medical advances in treating the virus that causes AIDS. The ruling modifies a 1998 law that rendered failure to reveal HIV status was a form of aggravated sexual assault.