Month: July 2017

The Rule of Law and the First Amendment

A friend recently mentioned to me that he likes a legal journalist because she makes Supreme Court cases “accessible.”  I bristled at this word.  Although the public should understand the happenings of the judiciary, accessibility exists in tension with an appreciation of the rule of law.  Accessibility is deceptive.  A depiction of the Court that is easy on the layperson often requires removing legal jargon (or, the actual law) and glossing over the technical aspects of cases.  The sometimes meandering course of precedent is usually also simplified (I recall how in Citizens United, the narrative became that Citizens United overruled precedent, but that recent precedent had also broken new ground from previous precedent).  Supreme Court cases, argued by the best advocates and often involving the most difficult issues, cannot be rendered truly accessible without distorting the complex doctrinal edifice underlying the case and the nuanced, high-level arguments of both sides.

What remains, then, is mostly a discussion of the results of a case.  As a consequence, the public focuses on this result – the political or social ramifications of any case.  It’s no wonder that the judiciary has become increasingly politicized.  Many factors have contributed to our viewing of Supreme Court Justices as America’s royalty, but I believe that the way cases are presented to the public has enhanced this social problem.  When Justice Gorsuch claimed that he believes judges should not make law, and that a good judge must often issue decisions with which he disagrees, many were skeptical of both his sincerity and the propriety of the underlying ideal.  Perhaps this skepticism is well-founded, but it is pernicious.  One important fix for our rule of law crisis is the First Amendment.

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Sexual Assault and “Internet Vigilantism”

I remember learning in my Securities Regulation class in law school that, in securities fraud cases, securing a conviction or civil penalty against a company was somewhat beside the point.  Simply bringing accusations or filing a complaint against the company was enough to tank the company’s stock, regardless of whether the allegations were true.  The ability to secure this victory without having to prove anything armed prosecutors with a dangerous power, I thought.

I am reminded of this dynamic again after watching Beth Stelling’s Netflix comedy special.  After viewing her very funny, clearly feminist, totally fresh routine, I googled her.  On the first page of search results are her accusations against her ex-boyfriend, fellow comedian Cale Hartmann, of physical and emotional abuse and rape.   Stelling never names Hartmann, but her partner, comedian Sam Morrill, outed him on Twitter the day after her Instagram accusation.  I saw the pictures of bruises she posted.  I then read Hartmann’s denial of the accusations and listened to another victim, Courtney Pauroso, discuss on a podcast her own alleged rape by Hartmann when she tried to break up with him.  I read the polarized comments about the events.  I researched how rape survivors, not wanting to seek recourse in the criminal justice system (for a variety of reasons) often turn to Internet vigilantism to shame their attackers, and it often works.  The sexual harassment accusations against African American poet Thomas Sayers Ellis were described as a “lynching.”  Cale Hartmann’s career is basically dead, and almost everyone in the comedy community has turned against him.  Neither Stelling nor Pauroso ever filed charges against him, and he has never been prosecuted for a crime.

I want to use this space, and this case, to discuss the extremely complex issue of Internet vigilantism in sexual assault and harassment cases – both the propriety of using the medium and how the responses to it reveal defects in our ability to discuss nuanced issues on the Internet.  I have mixed feelings about most of this and simply want to open a discussion on the topic.  All comments are welcome, but please be respectful, as these events involve real human beings, not simply Internet avatars.

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No One in the Ring Has Clean Hands: CNN and the Anatomy of Politics by Meme

The battle between a Reddit user and a famous news organization, with Donald Trump’s reputation as the prize, has left our nation reeling.  All of the elements for a great wrestling drama are present, except that everyone is playing the heel.  Indeed, the closest thing to a protagonist is HanA**holeSolo, an anonymous Reddit user fond of posting racist and anti-Semitic content, who issued what may have been a forced apology to prevent CNN from exposing his identity.  This blog chronicles the events from the past few days.  I identify what is and is not problematic, from the perspective of both our First Amendment rights and notions of free speech values – the values that best foster open, productive dialog.

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Disingenuous Invocations of “Free Speech”

My favorite thing about this country is its exceptional First Amendment.  No other country affords the degree of protection that we do to political speech, artistic speech, and even offensive, hateful speech.  The current Supreme Court is doing its job in protecting our counter-majoritarian First Amendment liberties as against government intervention.  Outside of the courts, however, the term “free speech” is losing its cultural power.  Disingenuous invocations of free speech, by members of both the political right and the political left, are turning an apolitical idea into a partisan buzzword.

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