Month: April 2018

Criminal Procedure Final Essay

(Answers will be provided next week.)

John Paul goes to the police station to complain about the noise his neighbors make at night.  Unbeknownst to John, there is a valid warrant out for his arrest, for stealing a Dodge Viper.  When John shows up at the station, the officers politely tell him to sit in an interrogation room, and they offer him some water and cookies.  One of the officers says to him, “busy day?”  John replies, “Not doing much, just driving around in my Dodge Viper, but I walked here.”  At that point, several other officers enter the room and tell John he is under arrest for stealing a Dodge Viper.  John is read his Miranda rights.  The police officers also have John read back his rights and sign a form saying that he understands his rights.  The police then say to John, “So, you’ve been driving around in a Dodge Viper.  That’s exactly the car that your cousin Ringo claims you stole from him.”  John says, “yeah, I guess I admit it.  I took Ringo’s car.  It’s parked outside my girlfriend’s house.”

The police would like to admit the following pieces of evidence at John Paul’s trial:  (1) the statement made before John was Mirandized, (2) the statement John made after he was Mirandized, (3) the Dodge Viper, that police located based on John’s statement, and (4) John’s handwriting from signing the Miranda form (there were papers left in the Dodge Viper that match John’s handwriting).

Analyze the Fifth Amendment issues, discussing which of the evidence can likely come in at trial.  Show your work – go through the steps systematically.  It’s likely best to analyze the pieces of evidence in the order presented in this hypo question.

Hecklers of Campus Speakers: Easy Answers and Hard Questions

Last week, I blogged about how a planned Federalist Society talk at CUNY School of Law by Professor Josh Blackman was continuously interrupted for about eight minutes by protesters who believed that his views on constitutional law were equivalent to white supremacy.  (I recommend you watch the video.)  I wanted to draw sensible, constitutional lines between Blackman’s right to the forum and the protesters’ free speech rights.  Given the need to avoid fuzzy, subjective balancing tests in First Amendment jurisprudence and to ensure clear, robust, free speech liberties that protect us all equally, I argued (as many have) that coordinated efforts to disrupt a designated speaker are not protected speech.

Because disruptions executed with intent to seriously undermine a speaker’s use of a designated forum are unprotected, these types of protests-via-disruption can be punished by their public university.   Questions remain, such as whether the CUNY students must be punished.  Below, I will flesh out some easy answers to the campus heckling issue, and some difficult, open, constitutional and policy questions.  I also want to address some of the excellent critical feedback I received from the original blog post.

Continue reading “Hecklers of Campus Speakers: Easy Answers and Hard Questions”

Using Speech to Disrupt Speech – Drawing Sensible, Constitutional Lines

When constitutional law scholar and prolific blogger Josh Blackman visited CUNY School of Law this week, he was met with a chorus of “shame” from protesters.  The protesters, armed with signs labeling Blackman as a white supremacist and claiming that his legal analysis was “lazy and wrong,” talked over him in a coordinated way from the front of the room.  The protesters seemed to outnumber audience members, perhaps because prospective audience members were concerned about the stigmatizing effects of attending, given that the protesters also turned their displeasure on audience members.  When the protesters finally let Blackman speak, after admonition from an administrator, he began to engage an audience member about whether legal objectivity is a myth.  The existence of legal objectivity, although not the subject of the talk, was an important meta question, given that the protesters likely do not believe in the full breadth of our constitutional guarantee of freedom of speech, which applies fairly neutrally to everyone, despite the offensiveness of the viewpoint.

The irony is, of course, that these protesters also benefit from our free speech regime, which protects their right to protest, even when their underlying sentiment, as one expressed, is “Fuck the law.”  The way we have drawn lines to resolve the tension between the right to speech and the right to protest speech is the most sensible approach, except for those truly opposed to rule of law and process-based democracies.  Given that law schools have an intellectual and professional mission to educate students in civil, civic discourse and to use logic and argumentation in a restrained, adversarial way, the fact that some CUNY Law students oppose the lines we have drawn is deeply concerning.  Below, I will outline where the right to protest stops being protected speech and starts becoming conduct, and why this line benefits us all.

Continue reading “Using Speech to Disrupt Speech – Drawing Sensible, Constitutional Lines”

On the Framing of Kevin Williamson’s Firing

Last month, The Atlantic, a nonpartisan magazine that provides literary and cultural commentary, hired columnist Kevin Williamson, known for his conservative views and sharp writing.  This decision sparked outcry among those who believed his views, especially on gender issues, to be extreme and bigoted.  Twitter campaigns were launched to convince The Atlantic to fire Williamson, including the #FireKevin hashtag used by the abortion rights group Naral Pro-Choice America.  This week, The Atlantic fired Kevin Williamson.

Editor-in-chief Jeffrey Goldberg explained that while The Atlantic conceives of itself as a “big tent,” a recently uncovered podcast in which Kevin Williamson had previously spoken about hanging women who have abortions was “callous and violent,” and runs contrary to The Atlantic’s tradition of respectful, well-reasoned debate, and to the values of our workplace.”

This firing decision has begun a new round of debates, often (but not exclusively) with a right-left political valence, about which ideas should be accepted and facilitated in mainstream discourse.  The three major ways in which the issue has framed – the intellectual diversity argument, the bigotry against women angle, and the de-platforming angle – all have limitations.  Getting the framing of this issue correct is important to clarifying whether The Atlantic’s decision was appropriate.

Continue reading “On the Framing of Kevin Williamson’s Firing”