Month: February 2016

Apple’s First Amendment Computer-Code Argument Dilutes the Brand (of both Apple and the First Amendment)

Yesterday, Apple filed its opposition to the district court’s order compelling Apple to assist the FBI search San Bernardino shooter Syed Farook’s iPhone. As predicted, Apple’s motion focuses on the All Writs Act and the unreasonable burden the court order places on Apple, given Apple’s attenuated connection to the case. Apple also makes powerful points supporting the slippery-slope concern that the FBI will use this precedent to require Apple to compromise the security of its phones in other cases, including cases not involving terrorism. These arguments, in conjunction with the fact that the FBI could have avoided this situation if the Bureau simply hadn’t changed the iCloud password associated with Farook’s account, have firmly convinced me that the district court should vacate its order. That said, Apple’s First Amendment position, spanning just over two pages in a 35-page motion, misapprehends the First Amendment’s role in protecting computer code.


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Why the Georgetown/Justice Scalia Debacle May Ultimately Be the Best Thing For Law School Pedagogy and Free Speech Values

At first, the series of statements and emails to the Georgetown Law School community (and made public) after Justice Scalia’s death seemed to me an indication that free speech values are atrophying at our top law schools. I have since changed my mind. These emails, and their use of divisive, emotionally charged rhetoric, ultimately defeat themselves. In their wake, these emails can teach us important lessons about striking the right balance between sensitivity to others and airing of controversial views. It is critical that law school educators and students learn the right lessons.

Private universities, unlike state actors, can experiment with different ways of maximizing speech and optimizing learning, but certain fundamentals should remain. I am hopeful that these emails can teach us that no group or individual represents everyone’s views, that logic and principle should decide the worthiness of a cause, and that no one earning a legal education should be shielded from dissenting opinions.

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Ninth Circuit Gets it Right in “Hurt Locker” Case; SCOTUS Review Still Needed


Of all of the movies I have seen, The Hurt Locker has my favorite ending. The Ninth Circuit’s disposition of a lawsuit by the solider that inspired The Hurt Locker’s fictionalized main character similarly seemed right yet left me with a sense of unease. Supreme Court review is needed to resolve the complex, difficult issues presented in this case. As I have noted before, claims involving the right of publicity and the First Amendment are adjudicated using conflicting and easily manipulated standards. Further, although some have argued that right of publicity claims are mainly about money – or who has to pay for speech – right of publicity claims are quite different than copyright protections and likely will chill more speech if they are allowed to proceed.

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The FBI’s Attempts to Access San Bernardino Shooter’s iPhone: The All Writs Act and Slippery-Slope Arguments

A court order requiring Apple to create software allowing the FBI to crack Syed Farook’s iPhone password (in turn allowing the FBI to decrypt the phone data whose encryption key is derived from that password ) raises distinct but related legal and policy issues. On the legal side, Apple’s best argument is that the court order goes beyond the scope of its power under the All Writs Act. On the policy side, Apple’s chief Tim Cook claims that forcing Apple to create a “backdoor” to its own robust security protections will lead to an erosion of security in all our mobile devices. Apple and others claim that the technology that Apple creates to comply with the court order could lead to law enforcement privacy abuses or malicious attempts by criminals or spies from other countries to gain access to the data in all of our phones. Apple has not yet submitted its opposition brief to the federal court’s order. The persuasiveness of both the legal and policy arguments against the order relies, in part, on slippery slope arguments connecting altering Syed Farook’s phone to risking the privacy and security of all of us. This case shows both the force and the limitations of slippery-slope arguments. At this preliminary stage, I tentatively believe that the slope is too slippery, and the technology too complex, for one federal magistrate judge to force Apple to design an end-run around its privacy and security protections. These very protections were created, in part, in response to Edward Snowden’s revelations about massive, secret government surveillance programs.

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When Judging Judges (Seductive Missteps)

One of the loveliest challenges about the law is that everyone has a different vision of what it is. At the most abstract level, people disagree about how law gets its authoritative force. Legal positivists believe that law gets force when officials follow the social custom for making an enactment authoritative, while natural law theorists believe that law’s authority is limited by rights we are owed based on our humanity. Scholars throughout American history have also disagreed about the role of the judge and the appropriate parameters of legal reasoning and argument. Each age brings new views about the life of the law- what it is, how we should approach it, and which factors should affect judicial decision-making. I find it both delightful and sometimes maddening that everyone has a different vision of what judges do and how we should assess judicial opinions. Accepting a diversity of approaches to jurisprudence, broadly defined, here are my biggest pet peeves in evaluating judges. I believe these missteps obscure the complexity of the law and the nature of the judicial exercise. These errors also add cynicism and partisanship to the evaluation of judges, both of which may make judging worse, even if some cynicism and partisanship is either necessary or desirable.

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My Thoughts on Justice Scalia (From Law School Until Now)

Justice Scalia’s passing is a monumental event, and many important voices have remarked upon his legacy as a jurist, his exemplary friendship with judicial foe Justice Ginsburg, and the fate of close, controversial cases given Justice Scalia’s vacancy on the Supreme Court.  Partisans have also inserted their opinions about whether President Obama should fill Justice Scalia’s seat before the President’s term ends.  In my shock and sadness over Justice Scalia’s death, I have really enjoyed reading the myriad views on Justice Scalia – the essays that are scathing, the pieces that are laudatory, and the articles that offer a complicated depiction of the Justice.  I write now to share how my (one-sided) relationship with Justice Scalia has both tracked and transformed the lawyer and teacher I am today.  This is personal.

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Uber’s First Amendment Argument

Uber, the company that allows consumers to procure rides using a cell phone app, has invoked the First Amendment in an attempt to overturn court orders regulating its communications with drivers.  My tentative view is that Uber’s First Amendment interests are minimal and should not defeat the court orders.  Uber may have a better claim that the district court’s rulings contravene the Federal Arbitration Act, which places arbitration on equal footing with judicial proceedings, because the court is discouraging arbitration in favor of litigation.  However, the Ninth Circuit should rule against Uber on its First Amendment claim.  Uber’s case is distinguishable from cases involving restrictions on communications between lawyers and their own prospective clients.  The case is also distinguishable from regulations compelling commercial disclosures to consumers on controversial topics.

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The Conflict Between Free Speech and Equality (and Why We Shouldn’t Frame It That Way)


A few months ago, Yale University became the epicenter of a debate about potential tensions between free speech and equality.   An Associate Master of one of Yale’s residential colleges resigned after protests sparked by an email she wrote to her residents. The email was a response to a campus-wide email by the administration urging students to avoid culturally insensitive costumes. Her response indicated that, in the spirit of free expression and youthful exploration, her residents could experiment with edgy, offensive Halloween costumes. The ensuing outrage about her email and the racial climate at Yale came on the heels of another widely reported protest. Video footage went viral when a professor, who had joined activists seeking to raise awareness about racial issues at the University of Missouri, attempted to remove a student journalist from a public space. These incidents solidified the terms of a longstanding debate between free speech and equality. Free speech has the power to seriously degrade others on the basis of race or other immutable characteristics. Free speech also disrupts the safe spaces that some members of vulnerable minority groups desire to share their own ideas. These incidents framed the choice as a dichotomous one between free speech and the equality or dignity of members of minority groups. As a matter of both constitutional law and sound policy, I believe we need to reframe the terms of this debate.

The choice between free speech and equality is a false one, both from legal and policy perspectives.   Arguments that courts should balance away our strong free speech protections in the name of unspecified equality or dignity interests would complicate and distort constitutional law, and may be counterproductive.

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The Treatment of Campus Sexual Assault: Misinformation has Real Costs

President Obama’s Office of Civil Rights has made reducing sexual assault, and specifically campus sexual assault, a priority.  The government’s narrative surrounding campus sexual assault has resulted in concentrations of power in governmental agencies and university administrators who, in my view, are promoting civil rights at the expense of important civil liberties. The treatment of campus sexual assault, both by the government and by some journalists, shows an unfortunate inclination to prioritize one’s policy agenda over truthful discourse and democratic engagement on a subject.  The narrative, media reporting, and even statistics presented on campus sexual assault are so politicized, it is currently impossible to know how to strike the right balance between the civil rights and civil liberties implicated in investigating and punishing campus sexual assault.  Unfortunately, many fervently trying to solve the problem of campus sexual assault have obscured the contours of the problem.

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Serial versus Making a Murderer: On Neutrality, Objectivity, and Legal Writing

After SCOTUSblog announced that it would be providing only facts and no analysis of cases involving the law firm that financially supports the blog, commentators questioned the viability of SCOTUSblog’s mission to provide objective, impartial coverage of Supreme Court cases.  One legal blogger went further to argue that there is “no such thing as viewpoint neutrality in any form of publishing,” and that the blogging revolution has released us from having to hide behind “false objectivity.”  I disagree.  Although neutrality is impossible to achieve, objectivity is an honorable aspiration that betters the quality and trustworthiness of news or analysis.  The difference between the approaches of the sensational docu-series Making a Murderer and the popular podcast Serial reveal important lessons for maintaining objectivity in legal blogging — and extend beyond, to legal teaching and approaches to the law generally.

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