Month: September 2019

The Legal Status of Aurora Protest at ICE Warden’s Home

On September 19, as part of a series of protests against Immigration and Customs Enforcement (ICE), a demonstration was held in the Aurora, Colorado neighborhood of the warden of an ICE Processing Center.  The warden works for GEO Group, a private company that contracts with the federal government to run the facility.  Three people were arrested during the protest.  Police also eventually diverted the protest by setting up blocks so protesters couldn’t follow the planned route, which looped back to the warden’s home, and perhaps intimidating protesters and journalists.  Whatever your view of the propriety of a political demonstration outside someone’s home (I am generally opposed to that tactic), the behavior of the Aurora police appears constitutionally suspect.


My account of the facts is based on a conversation I had with a friend of mine who attended the protest.  His attendance was based on the understanding that the protest organizers, Denver Communists and Abolish ICE, ensured a constitutionally protected demonstration.  While trying to leave the protest, his way was blocked by screaming police officers.  I have not verified these facts, but I trust my source, who provided the picture above and sent me video of the protest.  I will proceed on the assumption that the facts as related to me are true; if there is something I am missing or have misunderstood, that changes the analysis.

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What Has the Constitution Done For Me Lately?

Happy Constitution Day.  Today is the day that the delegates to the Constitutional Convention in Philadelphia signed the Constitution and submitted it to Congress, which transferred the document to the States for ratification.  Just like how you didn’t ask to be born, but are (one hopes) glad your parents imposed life upon you, you should be profoundly grateful for the birth of this document, whose creators did not ask your permission – and likely did not represent your interests – but nonetheless imposed rights upon you.

It has become fashionable, for reasons both thoughtful and reflexive, to deride the Constitution and shun attempts to remain faithful to its text.  After all, the Constitution was created and ratified by a bunch of dead, white men, some of whom owned slaves.  (The 13th, 14th, and 15th Amendments were a start to remedying that moral blight and hypocrisy.)  Plus, the document, by design, is undemocratic; it limits the powers of the federal and state governments and provides individuals rights as against democratic legislation.  There have been calls, even by serious scholars, to do away with the Constitution, or to pack the Supreme Court to achieve a reading of the Constitution more sympathetic to certain preferred judicial outcomes.  In honor of Constitution Day, here are just a few reasons why the dead hands of our Framers should still be guiding our lives today.

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First Amendment Cynicism and Redemption

Here’s a draft of my latest paper for downloading.  I’ve been bouncing these ideas around for a while and am glad I got the chance to think about them more deeply and systematically — and to memorialize them in a full-length article.  The abstract is below.


In this article, I propose a way out of the vicious cycle of “First Amendment cynicism.” I define this term as the disingenuous application or non-application of the First Amendment to further political ends unrelated to freedom of expression. The cycle is facilitated by either accurate or inaccurate perceptions of First Amendment cynicism by one’s political opponents.

As one example, the perception by those on the political left that the right is applying the First Amendment cynically –turning the First Amendment into the “New Lochner” — leads the left to lose faith in First Amendment principles. Some on the left then engage in First Amendment cynicism, not applying the First Amendment to those that harm their agenda. This approach is then observed by the right, and the cycle continues. Further, improper accusations of First Amendment cynicism, or what I term “second-order First Amendment cynicism” render this cycle ever more vicious.

To restore both the perception and the reality of a First Amendment that serves the entire political spectrum, I first demonstrate why the increasing accusations of First Amendment cynicism are overstated and ahistorical. I then argue that the First Amendment can be both nonpartisan — treating equally speech of all political stripes — and apolitical — leading to outcomes and social arrangements that favor no political ideology. The best way to ensure that free speech doctrine remains nonpartisan and apolitical is to favor a civil libertarian approach.  However, courts should ensure that the First Amendment is egalitarian in cases where the government must intervene, such as cases involving speech on government land or cases involving the heckler’s veto. Finally, I propose ways for the Supreme Court to manage its docket and refine existing First Amendment doctrine so that the First Amendment serves those who most need its protections.