Month: June 2017

What Justice Gorsuch’s Dissent in Pavan Means for Masterpiece Cakeshop

Part One in a Series on Masterpiece Cakeshop 

On Monday, certiorari was granted in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  The same day, Justice Gorsuch dissented from the Supreme Court’s summary reversal in Pavan v. Smith.  Because Pavan involves the treatment of same-sex spouses on a child’s birth certificate, many concluded that Justice Gorsuch would also rule against the same-sex couple in Masterpiece Cakeshop.  That case, Masterpiece Cakeshop, concerns whether a Christian baker has a First Amendment right to refuse to bake custom-designed cakes for same-sex weddings.

Much has been made of Justice Gorsuch’s dissent in Pavan v. Smith, and how it means Justice Gorsuch will be unsympathetic to gay rights in subsequent cases.  However, there are reasons to think that nothing can be gleaned from Justice Gorsuch’s dissent in Pavan, a Fourteenth Amendment case where Justice Gorsuch’s ruling may be more about the scope of Supreme Court review than anything substantive.  Below, I tackle both positions: that Justice Gorsuch’s dissent in Pavan means almost nothing about how he will rule in Masterpiece Cakeshop, and that it means almost everything.

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The Lawsuit Against John Oliver, and the Problem with Getting Your Views from Comedians

The CEO of Murray Energy, Bob Murray, has filed what appears to be a baseless defamation lawsuit against John Oliver, for a segment Oliver ran on Murray and his coal company.   Murray, in his complaint, accuses John Oliver of not “fairly characterizing the evidence” and of intentionally omitting information.  Neither of these charges satisfies the legal basis for a defamation lawsuit.  To win, Murray would have to prove that Oliver not only stated facts that are false (or stated opinions based on implied false facts), but that Oliver acted with reckless disregard for the truth.  This “actual malice” high standard applies to plaintiffs who are public figures, a category into which Murray likely falls due to his status as a business leader.

As has been well covered elsewhere, Murray’s complaint is likely meritless and objectionable, perhaps an attempt to chill speech or harass Oliver.  But, perhaps not.  There are lessons we can and should learn from this lawsuit, regardless of its underlying legal validity.

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Twitter and the Marketplace of Bad Ideas

This week, the Supreme Court held that there is a First Amendment right to access websites like Twitter.  The state of North Carolina is not permitted, therefore, to ban those on the sex offender registry from posting on sites like Facebook and Twitter.  This is a victory for free speech rights, especially in an era in which, as the Court notes, cyberspace is the locus of so many important conversations.   But how has Twitter shaped these conversations?

Like the comments section of websites (where society’s mantra has become “don’t read the comments”), many Twitter users respond reflexively, angrily, and simplistically to the weighty, complex issues of the day.  Even politicians at the highest levels condense nuanced issues into a small number of characters and appeal to the lowest common denominator to garner likes and retweets.  Some of  the worst effects of Twitter, however, are on those whose norms and pursuits should run exactly opposite to what Twitter encourages.  I want to briefly catalogue the ways that Twitter creates perverse incentives for academics.

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Otto Warmbier, White Supremacists, and the Ugliness of Internet Speech

Contributors to white supremacist Internet sites are basking in the tragic ordeal of University of Virginia student Otto Warmbier.  A brief foray into the world of the far-right Internet raises the specter that unregulated speech leads not to truth, but to poorly reasoned vitriol (and sometimes much worse).  Fighting speech with speech does not seem to work here.  The more these sites proliferate, the more women and minorities may fear expressing their opinions publicly (these sites even encourage readers to harass people).  Allowing the speech of the far right may thus chill the speech of others.  There is no great solution to this problem, an unfathomable sector of angry people echoing their own views.  Their presence on the Internet can, however, help us understand our own pathologies in discourse, and remind us of the justifications for First Amendment protections.  Plus, there are things we can and should do to engage with these websites.

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The Opinion in Matal v. Tam (Final Post in a Series)

Today, the Court announced its opinion in Matal v. Tam, previously (well) known as Lee v. Tam.  This post will be the final post in a series on that case.  The Court unanimously held that federal law prohibiting registration of disparaging trademarks violates the First Amendment.  Respondent Tam, a member of The Slants, now has the opportunity to register The Slants’ trademark, if the band name meets the other trademark requirements.  The cancellation of the Washington football team’s registration is now also likely illegal.  Speech, according to Justice Alito’s opinion, “may not be banned on the ground that it expresses ideas that offend.”

After oral argument, in a Court without Justice Gorsuch, I predicted that the Court would split 4-4.  In that event, the Federal Circuit’s decision striking down the disparagement clause would be affirmed by an equally divided Court.  This prediction was mostly wrong.  Every Justice voted to strike down the disparagement clause, although the Court did split 4-4 in its reasoning.  This post will cover the fractured opinions in Matal v. Tam.

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Are All-Female Screenings of Wonder Woman Illegal?

Since the opening of Wonder Woman, the Internet has erupted into a debate about all-female screenings of the superhero flick.  The debate involves who is more sexist:  the movie theaters and female moviegoers excluding those who identify as men (even as employees), or the men complaining about a small number of showings intended to celebrate a milestone in women’s representation in film.  Even the film’s director, Patti Jenkins, has mixed feelings about the all-female screenings.  Because it’s Friday, and because I am going to see Wonder Woman this weekend, I thought I would lasso up a discussion about the cultural and legal dynamics of this case.

My view is that these screenings likely violate public accommodations laws.  Further, the First Amendment likely won’t prevent the operation of those anti-discrimination laws, unless courts deem these screenings sufficiently selective and expressive.

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Suicide by Manslaughter, Bachelor in Paradise, and Personal Responsibility Versus Exploitation

Michelle Carter is currently on trial for the 2014 suicide of her boyfriend, Conrad Roy.  The then-17 year old Carter texted and called then-18 year old Roy, urging him to continue with his suicide plan after he expressed fear.  “Yes, no more thinking,” she wrote, “You just need to do it.”  She then listened on the phone while he cried in pain and died from the carbon monoxide pumped into his truck.  Carter’s defense attorney is now presenting evidence that Carter was herself troubled and taking Celexa, an anti-depressant that affects decision-making and empathy.

Separately, the hit reality-TV show Bachelor in Paradise has stopped production in Mexico amid allegations of sexual misconduct.  After a day of drinking, Corinne Olympios jumped into the lap of DeMario Jackson, and some amount of sexual activity ensued in a pool before producers intervened.  Olympios now blames the show for not stopping non-consensual sexual activity.  DeMario claims Olympios was the fully consenting instigator, inviting him into the pool and initiating much of the sexual activity.  Olympios does not fault DeMario, who was too drunk to perform actual intercourse.

These two current events, while factually different, raise a similar question – when can someone be held responsible for the “uncoerced” actions of another person?  This post will explore some of the legal issues in both cases and discuss the tension between incentivizing personal responsibility and preventing exploitation.

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Objections to “On Harvard and Humor”

Harvard’s student newspaper, The Harvard Crimson, broke the story that Harvard rescinded the acceptances of at least ten students for participating in an offensive Facebook chat group.  I then wrote a blog post criticizing the decision.  Harvard should not be policing the speech of students who voluntarily sign up for a chat forum. Although the students found each other through an official Harvard group, the private dark memes chat group was, as Harvard notes, unconnected to Harvard.  I believe both the tactics Harvard used (requiring students to turn over all communications within this chat group) and the severity of the punishment set dangerous and scary precedents. Even if a private (non-state) university is legally permitted to act as arbiter of what off-campus speech is acceptable for its students, that does not mean Harvard should do so.

After my piece was quoted in the Washington Post, I received a great deal of feedback from both supporters and opponents of my view.  The supporters were glad I was advancing a position that many keep to themselves.  The opponents expressed a range of views, many of which included thoughtful, important points.  Below, I reply to some of the most compelling objections.  Although I think Harvard is making a terrible mistake, this is a difficult issue.  I am glad to see so many engaging on a topic at the intersection of speech issues, privacy issues, and bigotry concerns at our nation’s premier university.

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On Harvard and Humor

According to the Harvard Crimson, Harvard has revoked the acceptances of at least ten students admitted to the Class of 2021.  These prospective students formed a private Facebook group chat to exchange offensive memes.  They mocked child abuse, made racist jokes, and endeavored to deride all of the stances that we, academics and students, promote and hold hear.  These students behaved immaturely and offensively.  What Harvard did in response was much worse.

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President Trump’s Travel Ban and His Campaign Statements (A Series)

Part Two: Judicial Legitimacy and Governing Law

This is the second post in a series on whether, and how, President Trump’s campaign statements should be considered when deciding the constitutionality of his travel ban, Executive Order 13780 (EO-2).  The first post in this series, on the Fourth Circuit’s division over whether campaign statements can be considered in the Establishment Clause analysis, is here.   In this post, I explain why campaign statements matter to the constitutional calculus.  I also sketch out possible ways of treating the campaign statements to best comport with rule of law principles.

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