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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.

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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.

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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.

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The Meta Logic of Hughes v. United States and How to Get Guidance From Fractured Supreme Court Opinions

Although Supreme Court cases often leave room for various interpretations, seldom does the Court take a case solely to instruct lower courts on the best way to read a prior opinion.  In Hughes v. United States, the Supreme Court will consider both how to read each opinion in the prior case of Freeman v. United States and how to determine which opinion is controlling.  By resolving how to handle fractured cases with no majority rationale, Hughes will also offer meta guidance on how to read cases more generally.

Litigants and scholars have offered various solutions for determining the precedential effect of non-majority opinions.  This post will detail those solutions, which entail the finest, purest legal logic in a fantastically meta case.  My current thinking is that the Court should apply the “logical subset” rule to govern fractured opinions in most cases, except if the logical subset rule produces absurd results.

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A Return to A Liberties-Neutrality Mindset

A few days ago, I wrote an open letter to the American Civil Liberties Organization, a group I have admired, about their abandonment of civil liberties in favor of civil rights and partisan goals.  Politicizing fundamental civil liberties, enshrined in the Constitution, places these liberties in jeopardy.  Today, I read an excellent Twitter thread essentially making the same claim about the National Rifle Association – that politicizing gun rights has rendered these liberties just another part of the culture wars.  I agree with that sentiment.  The NRA should not have advanced its cause only on one political front, but should also have argued that police brutality harms minorities’ ability to exercise open carry, for example.

A deep cynicism has undermined the view that civil liberties should be neutrally applied.  This cynicism permeates our advocacy groups and our educational systems.  I understand this cynicism, but now is the time for its opposition.  We can all hold each other accountable for a more even-handed, consistent appreciation of our liberties.

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An Open Letter to the ACLU, on Civil Liberties

Dear American Civil Liberties Union:

I am a law professor who teaches Torts, Speech Torts, and Criminal Procedure.  I am also a longtime fan and donor.   I even met with one of your policy staffers in Ohio to discuss possible collaborations (he was highly competent, principled, and conscientious about free speech).   I write, in all sincerity, because I believe your current organizational priorities are undermining the very credibility that earned you prominence.  I think you are losing sight of the meaning of the term civil liberties.

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Thoughts on Enforcing Non-Disclosure Agreements

This month, two women have come forward who credibly claim to have engaged in sexual relationships with a married Donald Trump, prior to his becoming President.  These women cannot speak about the affairs because of non-disclosure agreements.  Fitness model Karen McDougal and pornography actress Stephanie Clifford (aka Stormy Daniels) have both sought declaratory judgments invalidating their NDAs.  Their lawsuits speak of their being “silenced,” and commentators discussing the cases frame them as involving free speech.

Although states can and do void some NDAs as violations of public policy, this “free speech” framing elides important distinctions between government suppression of speech and voluntary decisions to exchange one’s ability to speak for compensation.  Courts should be cautious about interfering with this right to contract by invoking vague notions of free speech.

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How to Create a Great Law School Outline

 

Most law students know that creating an outline for a law school class is a useful tool.  However, many students aren’t aware of the precise reasons that outlining is useful.  As a result, students create outlines that don’t serve them particularly well.

There are two main purposes for outlining.  An optimal outline helps a student (1) better understand how the material is organized as a coherent whole and (2) better apply the material to new hypothetical situations.  Throughout the semester, you learn the information in isolation. True understanding comes from appreciating how all of the rules and principles fit together, and how the cases illustrate the legal principles that logically flow from one to the next in an organized system.  Outlines are great for ensuring true understanding.

Here are some tips, with examples, for how to optimize your outline.

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Essay: “Good Orthodoxy” and the Legacy of Barnette

Free speech has become so politically polarized that I fear that the First Amendment is losing its legitimacy as a non-partisan tool.  Without consideration of ultimate viewpoint, the First Amendment safeguards dissenting voices, promotes expressive autonomy, and fosters both the search for truth and genuine participation in our democracy.  Some increasingly argue, however, that the First Amendment has become a Lochnerian de-regulatory political tool, while their opponents believe that respect for the First Amendment has waned simply because it has become politically inconvenient.

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