Telephonic Oral Argument Allows Justices to Explore Neat First Amendment Puzzles

Today, the Supreme Court heard oral argument by telephone, live-streamed to us eager listeners, in Barr v. American Association of Political Consultants.  Because this case was about a ban on robocalls, which, as Justice Kavanaugh mentioned, everyone hates, the Justices deliberated over pure, legal puzzles with no obvious political valence.  Instead of dividing the Court on a hot-button political issue, this case will accomplish something more fundamental and legally interesting.  The Justices must decide the correct conceptual First Amendment framework to apply to cases involving a bans on the “manner” of speech (here, automated calls are prohibited) where the statute later adds a “content-based” exception (except if the call concerns a debt owed to or guaranteed by the federal government).

Before tackling the legal intrigue of the case, I want to say a word about telephonic oral arguments.  The format, where the Justices each get about two questions and answers per side before Chief Justice Roberts firmly interrupts counsel and moves to the next Justice, has some virtues.   Each Justice must grapple with the weaknesses of both sides.  The format forces them to work together, ideology aside, to answer tough legal problems instead of fighting for air time.  The telephonic oral arguments are yet another example of how technology and social isolation have combined to make people kinder and more cooperative.  Of course, argument is less lively, and it is difficult to get too much momentum on any given topic, but the Chief has an uncanny way of stopping a litigant right when the attorney has provided a semi-satisfactory answer.   Plus, as an added treat, Justice Breyer was not on the line when it was his turn to ask Respondent questions because he received another telephone call, but, as he noted, not an automated call.

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Coronavirus Protesters, Free Speech, and the Nature of Liberty

Until today, I had refrained from blogging about the coronavirus.  At this epidemiological moment, in the language of Ohio’s Stay at Home Order, the nuances of constitutional law doctrine did not seem “essential.”  A highly contagious, novel virus has killed over 40,000 Americans in just a few months.  Many grieving cannot have proper funerals or hug their loved ones.  Without social distancing measures, our health care system will be even more overloaded.  People are scared and alone.  Over the past few weeks, I continued teaching my students about the Establishment Clause and the Sixth Amendment’s right to counsel, but I can understand why these topics seem a bit irrelevant right now (students, if you are reading this, study hard for your finals.  Everything will matter in the end!).

However, happily and unhappily, the Constitution is always relevant.  This month, constitutional challenges were raised when cities tried to prohibit parking lot Easter services.  Currently, the issue of the constitutional rights of the protesters gathering in violation of social distancing laws – to protest those very social distancing laws – must be resolved.  In a very practical sense, we must decide whether the First Amendment’s rights of expressive association and free speech supersede social distancing and shut down orders.  And, as with any legal issue, resolution of the practical requires thinking deeply about the theoretical.  We must also contend with the nature of liberty, a term that is used reflexively yet has so many different meanings.  In this blog, I want to discuss the free speech implications of those protesting shut-down orders and also proffer my own conception of how liberty fits into these discussions, despite the urgent public health crisis we are facing.

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First Amendment Midterm

Respond fully in essay form to the question below. 

The mayor of Goldbergia, Ferica Foldberg, wishes to promote the eating of cheese in addition to instating a city beautification project.  Ferica believes that cheese is a low-carb, enjoyable snack that is aesthetically pleasing and can cause residents of Goldbergia to be friendlier to one another, reducing crime.  Ferica convinces the Goldbergia legislature to enact the following statute:

“Every resident of Goldbergia is entitled to $1,000 off of their state income taxes, but only if they use the money to create beautiful pictures placed on their lawns highlighting the virtues of cheese.  Further, no resident of Goldbergia is permitted to place obscene signs on their lawn, depicting patently offensive sexual content, unless the obscene signs portray humans embracing the sensuality of cheese.”

Vargas, a vegan, challenges both provisions of the law as violating the First Amendment.  Do not worry about standing – just look at the statute.  What is a court likely to rule?  Proceed through the analysis the way a court would, analogizing or disanalogizing to cases on point for the more difficult, open questions.  Think about Goldbergia’s and Ferica’s best arguments when doing your analysis.

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Free Speech Hypo

The state of Goldbergia has a problem with its citizens saying bizarre and inappropriate things on social media and embarrassing the governor, Ferica.  In response to this problem, the state enacts the following law.

“No resident of Goldbergia may drive over the speed of 55 miles per hour, unless that person can prove that he/she writes only appropriate posts on FB, Twitter, Instagram, and all other forms of social media.  Additionally, if anyone criticizes the governor, Ferica, that person must maintain a driving speed of 20 miles per hour on all roads.”

Roger, a resident of Goldbergia, posts the following message on FB:  “I am going to kill Ferica in her sleep.  I know her address”  He then drives 60 mph on the highway and is arrested pursuant to the new Goldbergia law.

Can Roger challenge this law?  Why or why not?

Assuming a court allows Roger to challenge the law, what are the challenges he should bring?

Answer key below:

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Teaching Law versus Teaching Justice

I will state my thesis in the way I instruct students to state theirs —  clearly, directly, and with several subparts that connect logically:   A focus on justice-oriented teaching is ultimately harmful to students; it robs them of time to devote to higher educational priorities, it is antithetical to how legal thinking and reasoning should proceed, and it risks imposing a one-sided view of the world onto students.  I appreciate that education can never be perfectly values-neutral, but the values we should mostly be instilling are process-based values and educational values over any subjective view of right and wrong.  Different teachers will balance the goals of teaching values-neutral critical thinking skills and imparting values differently, but our current trend in legal education is, in my view, favoring teaching “justice” in a way that will ultimately be to students’ and society’s detriment.

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In Offense, Against Plagiarism

Brian Frye and Agnes Callard both recently posted well-articulated essays defending plagiarism (Callard only “sort of” defends plagiarism).  My visceral response to both of these essays was “NO!”  Their essays have anticipated my reaction as motivated by a desire for the academic currency of accolades, recognition, gratitude, and perhaps some form of immortality.  Like any longstanding, largely accepted moral norm, the norm against plagiarism should be periodically reconsidered.

I would like to briefly add to this reconsideration by listing a few less obvious reasons for the norm.  I do not discuss the obvious (and, to me, extremely compelling) reason that plagiarism is dishonest, because without a norm against plagiarism, plagiarism would not be dishonest.  In that case, there would be no duty to disclose and no moral wrong in taking credit for one’s work.  Please feel free to add to my list — and DO cite to this blog if you build upon my reasons.

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Can the House Judiciary Committee Force Legal Experts to Reveal Who They Voted For?

At the first hearing of the House Judiciary Committee’s impeachment inquiry, House Judiciary Committee Member Tom McClintock asked law professors Pamela Karlan, Noah Feldman, and Michael Gerhardt to raise their hands if they voted for President Trump.  Professor Karlan, who expertly taught my constitutional litigation class, responded that she has a right to cast a secret ballot.  House Judiciary Chairman Jerrold Nadler then told the three legal scholars that they did not have to answer, but Rep. McClintock could still press the question.  Professor Feldman rightly noted that “not raising our hands is not an indication of an answer.”

Professor Karlan appeared to be alluding to a First Amendment right not to disclose her 2016 Presidential vote, in conjunction with a fundamental right to unfettered access to voting.  If experts must disclose their votes as a condition of offering testimony before Congress, this may compromise either their ability to vote freely or their desire to give their opinions on important matters.  Arguably, however, the three legal scholars’ views on impeachment are undermined by their antipathy towards President Trump, rendering their votes relevant to their Congressional testimony.  Federal law prohibits those who voluntarily appear before Congress to refuse to answer questions pertinent to the Congressional inquiry at issue.  So, is there some sort of right not to disclose one’s vote during Congressional testimony in which one’s vote is arguably relevant to the proceedings?  Unlike many areas of First Amendment law, the answer to this question relies on a balancing test that accounts for both the importance of the information to a legitimate Congress’s inquiry and the private interests at stake.

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The Un-nuanced and Unconstitutional (But Not Entirely Unreasonable) Views of the Ideologically Pure

Recently, I gave a presentation that afforded me the opportunity to ponder the connection between some hot-button free speech topics:  campus speaker disruptions, the arrests of two University of Connecticut students for using the n-word, and laws mandating that employers respect people’s preferred pronouns and titles.  What follows is my current thinking on these topics and their relationship to each other.

More so than in the past, younger generations have the view that civilly listening to certain types of speakers inappropriately gives these speakers a platform to perpetuate their harmful agendas.  The idea is that neutrality perpetuates the status quo, so champions of social and legal equality do not want to be bystanders to anyone whose views, if taken to the extreme, lead to genocide.  This is not a particularly nuanced approach, given that extreme views are then attributed to those who would never endorse them.  However, the approach is not entirely unreasonable, given our current cultural moment.

The problem is that these views are quite harmful to the free exchange of ideas and academic freedom – principles that are generally applicable and focus on process, not the identity of beneficiaries of particular policies, while also doing a significant amount to advance social and legal equality.

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The Legal Status of Aurora Protest at ICE Warden’s Home

On September 19, as part of a series of protests against Immigration and Customs Enforcement (ICE), a demonstration was held in the Aurora, Colorado neighborhood of the warden of an ICE Processing Center.  The warden works for GEO Group, a private company that contracts with the federal government to run the facility.  Three people were arrested during the protest.  Police also eventually diverted the protest by setting up blocks so protesters couldn’t follow the planned route, which looped back to the warden’s home, and perhaps intimidating protesters and journalists.  Whatever your view of the propriety of a political demonstration outside someone’s home (I am generally opposed to that tactic), the behavior of the Aurora police appears constitutionally suspect.

protest

My account of the facts is based on a conversation I had with a friend of mine who attended the protest.  His attendance was based on the understanding that the protest organizers, Denver Communists and Abolish ICE, ensured a constitutionally protected demonstration.  While trying to leave the protest, his way was blocked by screaming police officers.  I have not verified these facts, but I trust my source, who provided the picture above and sent me video of the protest.  I will proceed on the assumption that the facts as related to me are true; if there is something I am missing or have misunderstood, that changes the analysis.

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