Apple and the federal government continue to battle over whether the FBI can force Apple to unlock the iPhones of suspected criminals and terrorists.  These battles are occurring in the media, in the courts, and even before Congress.  Ultimately, the right resolution to these battles may be for Congress to give courts the power to allow unlocking, but only in very specific cases, and only if Congress is certain that all of our phone data won’t be at real risk.  I am not yet sure how to assess Apple CEO Tim Cook’s concern that the FBI’s requests to access individual phones will compromise all of our cell phones.  Until Congress has a better handle on that technological issue, it should resist taking any action. This is a tough issue, and all decisionmakers should proceed with caution.

Continue reading “Quick Update in Apple v. FBI and Tentative Thoughts on What Congress Could Do” →

Until now, I have avoided writing about the Harvard Law School/Milbank Tweed free speech incident because the events occurred at the institution where I happily teach.  More significantly, I avoided writing about Milbank’s decision to stop funding student organizations at HLS because the conflict between Israel and Palestine is so politically fraught that most people (potentially myself included) lose the ability to be objective/nonpartisan about the free speech issues involved.  However, dialog on these issues is so critically important that I have decided, in the name of free speech values, to express my thoughts.  My current views are that (1) Harvard Law School was absolutely correct to refuse to allow Milbank Tweed to selectively sponsor particular student organizations; (2) Milbank Tweed is well within its rights to use its money to sponsor only speech it favors, although its actions set a poor example for academic freedom values; and (3) The Palestinian Exception to Free Speech is overstated in ways that may sometimes undermine free speech values.

Continue reading “Milbank Tweed, Harvard Law School, and “The Palestinian Exception to Free Speech” Puzzle” →

Justice Scalia’s death has prompted even more discussion than usual about which Justice writes the best Supreme Court opinions.  Justice Scalia was considered by many to be the best writer on the Court, praised for his use of apt and colorful metaphors to illuminate complex legal concepts.  Students are often instructed to write like Chief Justice Roberts, who uses elegant, varied sentences and evocative factual descriptions to ground his legal positions.  But Slate recently advanced a convincing argument that Justice Kagan is Justice Scalia’s intellectual heir in both creating legal prose and interpreting legal texts.

I hope Justice Kagan, like Justice Scalia, continues to interpret statutes in a way that honors both the internal logic of the text and the commonsense logic of how people communicate.  I also hope she continues, like Justice Scalia, to draft opinions that incisively distill out the essence of complex points without oversimplying them.  However, I hope Justice Kagan avoids what I would call Justice Scalia’s “audience problem.”  Writing to make a splash and influence law students, Justice Scalia’s legal opinions often resulted in a deceptive accessibility that muddled his arguments and caused many to question his motives.

Continue reading “Supreme Court Opinions and The “Audience Problem”” →

Yesterday, Apple filed its opposition to the district court’s order compelling Apple to assist the FBI search San Bernardino shooter Syed Farook’s iPhone. As predicted, Apple’s motion focuses on the All Writs Act and the unreasonable burden the court order places on Apple, given Apple’s attenuated connection to the case. Apple also makes powerful points supporting the slippery-slope concern that the FBI will use this precedent to require Apple to compromise the security of its phones in other cases, including cases not involving terrorism. These arguments, in conjunction with the fact that the FBI could have avoided this situation if the Bureau simply hadn’t changed the iCloud password associated with Farook’s account, have firmly convinced me that the district court should vacate its order. That said, Apple’s First Amendment position, spanning just over two pages in a 35-page motion, misapprehends the First Amendment’s role in protecting computer code.

Continue reading “Apple’s First Amendment Computer-Code Argument Dilutes the Brand (of both Apple and the First Amendment)” →

At first, the series of statements and emails to the Georgetown Law School community (and made public) after Justice Scalia’s death seemed to me an indication that free speech values are atrophying at our top law schools. I have since changed my mind. These emails, and their use of divisive, emotionally charged rhetoric, ultimately defeat themselves. In their wake, these emails can teach us important lessons about striking the right balance between sensitivity to others and airing of controversial views. It is critical that law school educators and students learn the right lessons.

Private universities, unlike state actors, can experiment with different ways of maximizing speech and optimizing learning, but certain fundamentals should remain. I am hopeful that these emails can teach us that no group or individual represents everyone’s views, that logic and principle should decide the worthiness of a cause, and that no one earning a legal education should be shielded from dissenting opinions.

Continue reading “Why the Georgetown/Justice Scalia Debacle May Ultimately Be the Best Thing For Law School Pedagogy and Free Speech Values” →

Of all of the movies I have seen, The Hurt Locker has my favorite ending. The Ninth Circuit’s disposition of a lawsuit by the solider that inspired The Hurt Locker’s fictionalized main character similarly seemed right yet left me with a sense of unease. Supreme Court review is needed to resolve the complex, difficult issues presented in this case. As I have noted before, claims involving the right of publicity and the First Amendment are adjudicated using conflicting and easily manipulated standards. Further, although some have argued that right of publicity claims are mainly about money – or who has to pay for speech – right of publicity claims are quite different than copyright protections and likely will chill more speech if they are allowed to proceed.

Continue reading “Ninth Circuit Gets it Right in “Hurt Locker” Case; SCOTUS Review Still Needed” →

A court order requiring Apple to create software allowing the FBI to crack Syed Farook’s iPhone password (in turn allowing the FBI to decrypt the phone data whose encryption key is derived from that password ) raises distinct but related legal and policy issues. On the legal side, Apple’s best argument is that the court order goes beyond the scope of its power under the All Writs Act. On the policy side, Apple’s chief Tim Cook claims that forcing Apple to create a “backdoor” to its own robust security protections will lead to an erosion of security in all our mobile devices. Apple and others claim that the technology that Apple creates to comply with the court order could lead to law enforcement privacy abuses or malicious attempts by criminals or spies from other countries to gain access to the data in all of our phones. Apple has not yet submitted its opposition brief to the federal court’s order. The persuasiveness of both the legal and policy arguments against the order relies, in part, on slippery slope arguments connecting altering Syed Farook’s phone to risking the privacy and security of all of us. This case shows both the force and the limitations of slippery-slope arguments. At this preliminary stage, I tentatively believe that the slope is too slippery, and the technology too complex, for one federal magistrate judge to force Apple to design an end-run around its privacy and security protections. These very protections were created, in part, in response to Edward Snowden’s revelations about massive, secret government surveillance programs.

Continue reading “The FBI’s Attempts to Access San Bernardino Shooter’s iPhone: The All Writs Act and Slippery-Slope Arguments” →

One of the loveliest challenges about the law is that everyone has a different vision of what it is. At the most abstract level, people disagree about how law gets its authoritative force. Legal positivists believe that law gets force when officials follow the social custom for making an enactment authoritative, while natural law theorists believe that law’s authority is limited by rights we are owed based on our humanity. Scholars throughout American history have also disagreed about the role of the judge and the appropriate parameters of legal reasoning and argument. Each age brings new views about the life of the law- what it is, how we should approach it, and which factors should affect judicial decision-making. I find it both delightful and sometimes maddening that everyone has a different vision of what judges do and how we should assess judicial opinions. Accepting a diversity of approaches to jurisprudence, broadly defined, here are my biggest pet peeves in evaluating judges. I believe these missteps obscure the complexity of the law and the nature of the judicial exercise. These errors also add cynicism and partisanship to the evaluation of judges, both of which may make judging worse, even if some cynicism and partisanship is either necessary or desirable.

Continue reading “When Judging Judges (Seductive Missteps)” →

Justice Scalia’s passing is a monumental event, and many important voices have remarked upon his legacy as a jurist, his exemplary friendship with judicial foe Justice Ginsburg, and the fate of close, controversial cases given Justice Scalia’s vacancy on the Supreme Court.  Partisans have also inserted their opinions about whether President Obama should fill Justice Scalia’s seat before the President’s term ends.  In my shock and sadness over Justice Scalia’s death, I have really enjoyed reading the myriad views on Justice Scalia – the essays that are scathing, the pieces that are laudatory, and the articles that offer a complicated depiction of the Justice.  I write now to share how my (one-sided) relationship with Justice Scalia has both tracked and transformed the lawyer and teacher I am today.  This is personal.

Continue reading “My Thoughts on Justice Scalia (From Law School Until Now)” →

Uber, the company that allows consumers to procure rides using a cell phone app, has invoked the First Amendment in an attempt to overturn court orders regulating its communications with drivers.  My tentative view is that Uber’s First Amendment interests are minimal and should not defeat the court orders.  Uber may have a better claim that the district court’s rulings contravene the Federal Arbitration Act, which places arbitration on equal footing with judicial proceedings, because the court is discouraging arbitration in favor of litigation.  However, the Ninth Circuit should rule against Uber on its First Amendment claim.  Uber’s case is distinguishable from cases involving restrictions on communications between lawyers and their own prospective clients.  The case is also distinguishable from regulations compelling commercial disclosures to consumers on controversial topics.

Continue reading “Uber’s First Amendment Argument” →