After Stephen Colbert made a joke on The Late Show about President Trump performing fellatio on Russian leader Vladimir Putin, many across the political spectrum took to social media to call for CBS to fire Colbert.  Colbert remains unapologetic about the joke.  He stands by his right to make vulgar jokes, even to criticize the President, and noted in a later monologue that “anyone who expresses their own love in their own way is to me, an American hero.”  (He did, however, say that some of his terms were “cruder than they needed to be.”)

Continue reading “The FCC’s Investigation of Stephen Colbert Likely Violates The First Amendment” →

Today, I taught my last class as a professor at Ohio Northern University.  At the end of June, I will be moving to Dayton to become a professor at Dayton Law School.  Just like last year, when I transitioned from being a Climenko Fellow at Harvard Law to an assistant professor at ONU Law, I would like to share some reflections and hopes for the future.

Continue reading “My Last Class at ONU and My Future as a Law Professor” →

Below is a practice insurance hypo for my class to prepare for the exam.  Answers will be posted tomorrow.

Continue reading “Practice Insurance Hypo” →

Philosophy professor Rachel Tuvel has had a bad few days.  Hypatia, a journal of feminist philosophy, published her article “In Defense of Transracialism.”  As the name suggests, her article considered whether transracial identity should be given the same status as transgender identity.  (My short, somewhat reflexive answer would be “No,” but this is a question philosophers should consider.)  Academics then unleashed the most heated, brutal criticism against her and her methods – calling her work “violence” for using phrases like “male genitalia” and deadnaming Caitlyn Jenner, who also alternatively refers to her former name.  Hypatia, which accepted the paper after anonymous peer review with several referees, ultimately apologized for the article and claimed it should never have been published.

Some academics have come to Tuvel’s defense.  Philosopher and law professor Brian Leiter claimed the open letter and Hypatia’s apology are defamation.  I would not go this far.  The statements against Tuvel were based on opinion and judgment that did not imply the existence of untrue, defamatory facts.  To stifle discourse by threatening a lawsuit would be to engage in even more extreme forms of censorship than the feminist philosophers trying to ruin Tuvel’s career.  I would, however, say that this event illustrates the crisis of blurred lines in feminist rhetoric (and in academic and political discourse more generally).

Continue reading “Blurred Lines and Feminist Rhetoric” →

Last week, Howard Dean joined the ignominious club of politicians who have tweeted something obviously wrong about our First Amendment rights.  Dean tweeted that “hate speech is not protected,” a statement that would be true if uttered in any other Western democracy.  However, America’s exceptionally robust free speech protections mean that there is no such category of speech as “hate speech” that does not receive First Amendment safeguards.  Speech derogatory of people of different races or religions, which is banned elsewhere, cannot be banned here.  I believe this is a good thing.  Often those countries use their hate speech laws to arrest and imprison people for pure political speech.

I wonder how Howard Dean, a past Presidential candidate and physician, could be so wrong about our rights.  First Amendment doctrine is complicated, but we do not do a good enough job of teaching the basics, let alone the nuances, of free speech.  Perhaps this is because we don’t want people to know their rights –then they might invoke them.  This blog series begins a small effort to dispel the worst First Amendment myths, as seen on Twitter.

Continue reading “The Worst First Amendment Myths on Twitter (Part One)” →

As someone who wishes to dedicate her career to writing about First Amendment issues, I cannot shy away from controversial topics.  I manifest my own principles by entering important conversations many are afraid to have.  If I am silenced by fear of others’ reactions, what hope is there for those not so enamored of free speech ideals?  And so, it’s time to share my views about some of the corrosive, and some of the beneficial, ways that identity politics and a focus on privilege have affected our academic discourse.

Continue reading “The Positive and Negative Effects of Identity Politics and the “Privilege” Lens on Academic Discourse” →

If I had to select the two harms to which we, as a society, are currently most attuned, I would choose the serious harms caused by sexual violence and discrimination.  Perhaps unsurprisingly, these are also the two areas where individuals are least concerned about direct infringements and chilling effects on free speech.  I want to highlight some of the less-discussed ways in which our zeal to prevent sex crimes and bigotry has dramatic free speech consequences.  I also want to begin to make the case for why we should care about these consequences, despite the magnitude of these harms.

Continue reading “Sex Offenders, Bigots, and the First Amendment” →

This week, the Supreme Court ruled 8-0 that the Federal Employees Health Benefits Act (FEHBA) pre-empts state laws that prohibit insurance subrogation.  The Court’s opinion in Coventry Health Care of Missouri v. Nevils tracks my analysis of the issue here.  The Court considered FEHBA’s express pre-emption clause, which provides that the terms of contracts negotiated between the federal government and private health insurance companies override state law relating to health insurance coverage or benefits.  This pre-emption clause, according to a unanimous Court, applies to state anti-subrogation laws.

Absent from participating in the decision, of course, was newly minted Justice Gorsuch, who may have taken issue with the way one aspect of the case was analyzed.  The Court correctly analyzed the pre-emption issue based on unambiguous statutory text, thus deferring for another day consideration of how much deference is owed to the Office of Personnel Management’s regulations on point.   However, the Court’s Supremacy Clause analysis elides an interesting problem and unnecessarily disparages legal formalism in a troubling way.

Continue reading “The Court’s Cursory Supremacy Clause Analysis in Coventry Health Care” →

A public relations battle between Arturo Di Modica, the creator of Wall Street’s “Charging Bull” statue, and New York City Mayor Bill de Blasio highlights the difficulty of separating ideology from principled reasoning.  This difficulty is also rearing its ugly head in legal academia, which skews more liberal than the already liberal-skewing legal profession.

To combat this problem, affecting everything from Supreme Court nominations to our polarizing society, we need to hold each other more accountable for acknowledging facts and arguments that don’t support our positions.  We need to face the charging bull of our own senses of justice, which can destroy sound reasoning and viewpoint diversity.

Di Modica has threatened legal action against the city after a financial firm unveiled a new statue, Fearless Girl, which stands defiantly right across from the bull statue.  Now, instead of optimistically honoring prosperity, Di Modica’s statue represents the villainous force of the patriarchy.

Continue reading ““Charging Bull” versus “Fearless Girl,” and Ideological Diversity in Legal Academia” →

The powerful, new Netflix series, “13 Reasons Why” deserves praise for its important subject matter, its gripping narrative, and its unflinching look at historically taboo topics such as suicide, sexual assault, and bullying.  Although the show’s ability to provoke discussions on these topics is a great virtue, the treatment of these topics veers into the dangerous.  The show’s heavy-handed, cause-oriented approach saps the complexity from difficult issues.  Worse, the show’s internal logic of blaming all involved for one person’s emotional responses collapses upon itself.

If taken seriously and extrapolated beyond Hannah and her experience, the philosophical approach of the show would lead to problems, from a First Amendment perspective and from a social ordering perspective.  Here are thirteen reasons why.

Spoilers ahead:

Continue reading “13 Reasons Why the Netflix Series Has Some Dangerous Implications for Society” →