Justice Alito claimed during his confirmation hearing that “results-oriented jurisprudence is never justified because … we are not policymakers.” In the ten years since Justice Alito’s confirmation, he has been labeled by many on the left as one of the most politically motivated on the Supreme Court. I think the American public is too cynical about the SCOTUS Justices. Advocacy groups and the media focus on the results of an opinion more than on its reasoning, leading the public to perceive Justices as being overly motivated by result. That said, although there may be results-neutral methods to Justice Alito’s jurisprudence, there are reasons to be skeptical of his approach to the First Amendment.
The Supreme Court will soon consider whether it should grant the cert petition in Electronic Arts v. Davis, a Ninth Circuit case involving whether a football video game manufacturer is liable for using the numbers and likenesses of retired football players. The manufacturer, Electronic Arts, already pays the NFL to use the names, likenesses, and numbers of current football players. However, Madden NFL, the game at issue, also features historic teams with the numbers and descriptions of former players. Around 6,000 of these former NFL athletes have now sued EA, claiming that the game infringes their right to publicity. (If EA instead has a First Amendment right to use the public information about former players, it likely can use current players’ names and numbers as well, and its current licenses may be overly cautious.) Although Madden NFL isn’t a perfect vehicle for deciding when free speech rights trump the right to publicity, it’s a good enough case for the court to at least articulate what test should apply. The Court should grant certiorari in Davis. The time to resolve the circuit split on free speech versus the right to publicity is long overdue.
Ted Cruz’s accusation during the Republican debates that Donald Trump embodies “New York values” has been called anti-Semitic, anti-New York, and both smart political strategy and poor political strategy. Although many have rightfully decried the crassness, ignorance, and reductionism of the comment, I believe the sentiment an indictment of so much more than Cruz. Cruz’s tossing around of “New York values” is an indictment of the simplistic, polarizing political rhetoric that pervades our conversations, but its effectiveness reflects the reality that there are many on the right and the left whose lives and views have come to personify this rhetoric.
I am from New York. I lived in Canarsie, Brooklyn as a child. My great grandparents came to Brooklyn from Eastern Europe, and each generation expanded the opportunities for the next. My mother grew up in the projects (NYC public housing) and went on to get her Master’s in Education. My father began at community college and eventually earned his MBA. As a child, I took baths in the kitchen of my grandmother’s tiny Chinatown apartment. Although I currently live in Boston, the actual enemy of New York, I still salivate when I think about buying a pretzel or a knish on the streets of Harlem, where I lived as an adult. My mother, my father, my brother (who lives happily in California), and I all have varying political views (although admittedly we’re mostly left of center), and there’s always lively debate. My Dad, who used to work on Wall Street, loves Bernie. I am an ardent supporter of broad free speech rights, which often places me at odds with second-wave feminists. None of us is particularly materialistic. Velveeta Shells and Cheese is my favorite food. I share an apartment with two guys and one bathroom. The only values we all share are a desire to be educated, a commitment to explore our passions, and a willingness to laugh at each other. It’s easy to say that Ted Cruz is factually and morally wrong to generalize, looking only at my family, a bunch of New York Jews.
But, in fact, Ted Cruz and his supporters may be responding to a caricature partially put forward by the left. In their efforts to fully promote gay marriage, many on the left do want to force individuals in business to provide services for gay weddings. And perhaps in response to the extreme anti-abortion stance of the right (where many Republican candidates for president wanted to ban abortion even in cases of rape or incest), many on the left clamor to celebrate (or take any possible moral questions out of) abortion. A Facebook post that received 86,000 shares and likes proclaimed that “I don’t care if [Planned Parenthood] is a million-story abortion superpark with abortion waterslides and an abortion electrical parade.”
Although marriage equality is a no-brainer, there are conversations to be had about religious liberty. And abortion is complicated. I am highly pro-choice, but I don’t think abortion should be celebrated. I do not have the view that some form of life hasn’t been terminated, and I have not become callous to the implications for our humanity. It’s unclear how many people actually would enjoy an abortion superpark, but I can understand why so many conservatives think liberals have lost their values. The conservative response, unfortunately, has been to erect unreasonable, pretextual barriers to deter women from exercising their legal rights.
As a free-speech lawyer, legal fellow, and lecturer on writing, I would like to use this platform to complicate the rhetoric espoused by both the right and the left. The only cause to which I unflinchingly adhere is broad free speech protections. This blog will be a place to openly and candidly explore the nuances of current legal issues, especially those relating to First Amendment rights and tort law, without getting bound up in reactionary polarization. I am an extreme moderate on most issues, but I am open to debate!