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Obama Recess Appointments Found Unconstitutional By Second Appellate Court

I have previously testified and written about President Barack Obama’s use of recess appointments, which I viewed as flagrantly unconstitutional. Recently, the D.C. Circuit agreed with that view and found that the Obama Administration had violated the recess appointment powers. Now a second appellate court has joined that view, the United States Court of Appeals for the Third Circuit. I have two law review articles coming out on these appointments and more broadly the abuse of recess appointment powers in modern presidencies. See Jonathan Turley, Recess Appointments in the Age of Regulation, 93 Boston University Law Review ___ (2013) and Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2103 Wisconsin Law Review ___ (2013)

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Plastic Fantastic Recycled Revisited

Published 1, May 12, 2013 Constitutional Law , Criminal law , Free Speech , Politics , Science , Society , Supreme Court 52 Comments

by Gene Howington, Gust Blogger

As previously discussed in the column “Fantastic Plastic?“, the advent of cheap 3-D printing (or additive manufacturing) is changing the nature of how we can manufacture anything including guns. At the time the original column was written, a pioneer in additive manufacturing of guns – Defense Distributed of Austin, Texas – was making headlines for using this technology to make lower receivers for AR-15 style assault rifles. Although in the proof of concept stage, Defense Distributed had rapidly shown that they could make such a component capable of firing over 600 rounds before stress failure. I speculated that such a weapon was not as threatening due to size and some materials constraints and that even more dangerous was the possibility of all (or nearly all) plastic handguns and other easily concealable weapons that escape normal detection techniques.

In this instance, we have a case of science rapidly catching up with speculation. Last week Defense Distributed released the following video of their plastic handgun design. The only metal component of the weapon is the firing pin. It is called (rather dramatically) the Liberator.

In a move that is not entirely unexpected as self-described crypto-anarchist Cody R. Wilson and his company Defense Distributed continue to push both the boundaries of the technology as well as gun laws, the government took action. It is no secret that escalation often begets escalation. Is this the first salvo by the government in their dealings with Cody Wilson and Defense Distributed?

Continue reading ‘Plastic Fantastic ~~Recycled~~ Revisited’

Just How American Should Corporations Be?

Published 1, April 28, 2013 Congress , International , Justice , Politics , Society , Supreme Court 20 Comments

Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

Lately we have been barraged with news stories that the recovery of the United States economy has been historically, a slow one. We have also seen stories that state that the vast majority of the gains in the economy since the recession started in December of 2007 have been enjoyed by the very wealthy. “According to a new analysis (pdf) of Census Bureau data published Tuesday by the Pew Research Center, since the economy officially emerged from the recession in mid-2009, the wealthiest 7 percent of households saw soaring gains of an estimated $5.6 trillion, while the remaining 93 percent—111 million households—saw their overall wealth fall by an estimated $0.6 trillion.” CommonDreams

As the Common Dreams quote suggests, the poor and middle-income portions of our economy have been left out in the cold when it comes to an economic recovery. Many of those who have benefitted during the recovery have their money and assets tied into shares of American corporations who are enjoying record profits, while the vast majority of Americans are unable to invest in the stock market or do not have 401K plans that could invest retirement funds in those same American corporations.

“Cha adds that the findings demonstrate, “how it is the rich, not the poor, that benefit from government handouts. It was direct government support with taxpayer funds that saved the big banks and, in turn, enriched their shareholders. It’s not social safety net programs that are bankrupting our country: it’s the rich.” -Mijin Cha, Demos Government policies following the recession drove an even larger gap in wealth disparity as the richest 7 percent’s slice of the nation’s wealth grew from 56 to 63 percent by 2011.

“The Fed has kept things pretty good for the wealthy,” said New York University economist Edward Wolff, of the policies that supported these gains in stock and bond markets. CommonDreams Continue reading ‘Just How American Should Corporations Be?’

Health Care, Boston and the Luck of the Draw

Published 1, April 27, 2013 Congress , Constitutional Law , Courts , Environment , Justice , Media , Politics , Science , Society , Supreme Court , Torts , Uncategorized 53 Comments

Submitted by: Mike Spindell, guest blogger

I must begin this guest blog with a bit of a confession. When I first started posting on Jonathan’s blog many years ago I found that he had recognized me in one of his end of the year posts. He wrote words to the effect that what he found appealing in my comments was my tendency to reveal much about myself in the course of them. He had seen into the essence of not only my writing style, but also of the way I interpret the world around me. For me it always starts from my personal emotions about an issue and then I work to try to see how my personal experiences can apply to the world around me. It is the key to my empathy, which allows extrapolating my personal experience into a more global view of the world I live in. I imagine that is how it is for most people, but we all live in the isolation of our own consciousness. It is in truth not the best writing style and certainly not the most creative one, but at least limited by my own ability to be self critical, it is the most honest writing that I am capable of producing.

With that caveat in mind, let’s talk about my own health care experiences. I was genetically endowed with the predisposition towards heart disease. Both my parents and many of their siblings died in their early fifties from variations of heart disease. My Mother had perhaps four heart attacks (MI’s) and three strokes. My father had two heart attacks. As a family we were far from wealthy, struggling to maintain ourselves at the lower end of the middle-class, but my father had prescience that kept us from disaster. He always paid for good medical coverage and back then and most importantly medical coverage was affordable. Given my seeing so many medical issues as a boy my families medical insurance made a big impression on me. As a civil servant in New York City in lieu of an adequate salary I was covered by good health insurance and always elected to have the best, most costly plan. Up until the age of 36 this “Cadillac” (to use the current verbiage) plan wasn’t necessary because I seemed to be in good health, although the high blood pressure that kept me out of the Viet Nam draft was a concern to Doctors, but then I rarely needed to see Doctors. Six months after I married though at age 37, I suffered my first massive heart attack. With the help of my wife who nursed me through the recovery I seemed to return to normal. The hospital costs were huge and would have bankrupted me but for my health insurance. As my life progressed I had two more MI’s and then finally Congestive Heart Failure so bad that it led to me being put on an artificial heart device LVAD to keep me alive and finally a heart transplant to give me a new life. http://jonathanturley.org/2012/01/22/from-the-bottom-of-my-new-heart/

Thanks to my Medicare and my secondary health insurance I am alive today and nearing 70 years. My health insurance has probably paid out many millions to keep me alive and I sm grateful for that and in truth very lucky that I chose to be an underpaid Civil Servant.

My personal experience with the health care system came to mind when the Boston Marathon bombing occurred leaving so many victims with dire health care problems, many with loss of limbs. I can remember that day thinking what the costs of these patients treatment would be and how many of them would pay for it, even with the Massachusetts Health Insurance system. You see even though my Heart Transplant was covered, it is estimated that costs to the transplant patient are $30,000 for the first year after the transplant. I can’t cry poverty, but let’s say that those ancillary costs wiped out most of my savings. The loss of a limb and the rehabilitation from it can take many years and is costly. Prosthetics wear out and must be replaced. Depending on ones occupation their income can be adversely affected and their family lives severely disrupted as a consequence. While it is true that thus far some $23 million dollars has been raised purportedly for the victims how far will that money go towards allowing them to return to their normal lives? Given this what are the implications of the response to this particular act of horror in terms of the entire health care debate that is far from settled in this country? Continue reading ‘Health Care, Boston and the Luck of the Draw’

SWAT: Is America Coming Under Martial Law, Redux

Published 1, April 20, 2013 Congress , Constitutional Law , Courts , Criminal law , International , Justice , Lawyering , Media , Military , Politics , Society , Supreme Court 113 Comments

Submitted by: Mike Spindell, guest blogger

Like most of us I have been watching the developments in the aftermath of the Boston Marathon tragedy throughout the week. Because I’m retired I probably logged more hours of viewing it on TV than most people who are younger. The initial bombings on Monday and their aftermath made me terribly sad at the loss of innocent lives and the maiming of so many, which will have future pain and consequences for the entire lives of the victims. As a father and grandfather how could I not feel painful tears for the death of an 8 year old and the lifelong pain of his parents? Yet beyond that sadness, I also felt a sense of anxiety in my chest as I listened to the hour upon hour of cable news coverage and the analysis of “terrorism experts” aligned with prognosticators telling us what it all means.

My anxiety did not stem from fear of terrorism, because that fear is irrational. This is so not because terrorism is a chimera, but because this type of terrorism is an all too real fact of the lives of humanity and indeed while we in America have suffered it, so has the rest of the world to an even greater degree. Great Britain, Spain, Iraq, Israel, India, Afghanistan, Pakistan, Somalia etc. and so on and so forth. Life itself is always uncertain and unseen death lurks as a constant possibility for even the most protected of us. This has always been the human condition and the truth is that as the eons of human history have passed we are far safer now than our ancestors ever were. Yet it is also a human necessity to maintain the illusion of our own safety and indeed immortality. When horrors like the Boston Marathon bombings occur it tends to shake up our human illusions and engender fear. In the aftermath of these horrors though come the “explainers” whose attempts to soothe us only increase the fears. Following the “explainers” come those who would exploit the aroused fears for their personal gain or predilection. This happened in America from 9/11 and in its wake the false meme “This Changes Everything” was transformed into a reality of war, torture and the shredding of our Constitution. My anxiety was raised because as I watch this all unfold on TV I became fearful of how this new attention arousing horror would be used by those intent upon transforming this country into a Police State under the guise of saving it from terror. Continue reading ‘SWAT: Is America Coming Under Martial Law, Redux’

From Creator To Object: The Supreme Court To Consider Patent Claim To Human Genes

Published 1, April 14, 2013 Academics , Columns , Congress , Constitutional Law , Criminal law , Politics , Science , Supreme Court 67 Comments

The U.S. Supreme Court

Below is my column this week in USA Today (the print version will run Wednesday while the web-version ran today). We have been following the increasingly draconian copyright and trademark laws used against citizens and companies — laws secured by an army of lobbyists, lawyers, and an obedient Congress and White House. The impetus of the piece is the Myriad case to be heard on Monday, where the Supreme Court will have to decide whether a company can patent human genes. The company argues that it took considerable research to isolate the genes associated with breast cancer and that patent protection gives companies like Myriad to do such extensive research and development. For many others, the patent claim represents a virtual franchising of the human body – giving companies claim to something that exists in nature. It also gives these companies a critical gatekeeper control on research into key components of cancer, Alzheimer’s disease, asthma, and other health threats. While this column deals with statutory expansions of private property claims over genes, common phrases and images, there is an equal expansion occurring in the common law, including the “misappropriation of name or likeness.” Perhaps the most infamous such authority can be found in the case of White v. Samsung. In this case, Vanna White sued Samsung over a commercial that showed a robot with a blonde wig turning cards in a game show. It was an obvious parody but the federal court found the image of a blonde who did nothing but smile and turn large cards belongs exclusively to White.

This column is meant to show that there is a broader problem in the rush to claim common material, images, and terms. Perhaps it was inevitable that with the ever expanding patent, copyright, and trademark laws, mankind itself would become a form of property: the ultimate evolution from creator to object.
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Washington Attorney General Sues Florist Who Refused To Provide Flowers For Gay Wedding

Published 1, April 11, 2013 Constitutional Law , Free Speech , Politics , Religion , Society , Supreme Court 257 Comments

Washington Attorney General Bob Ferguson is suing Barronelle Stutzman, owner of Arlene’s Flowers and Gifts, after she refused to provide flowers for a gay wedding. I have been writing about the tension between free exercise rights and anti-discrimination laws — a subject that I discussed at the conference this week at the Utah Valley University’s Center for Constitutional Studies. This is now an issue that is arising with greater regularity, including conflicts over wedding cakes and other items.
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Loving v. Virginia

Published 1, April 6, 2013 Supreme Court 46 Comments

-Submitted by David Drumm (Nal), Guest Blogger

Loving v. Virginia (1967) was a case decided by a unanimous Supreme Court that invalidated all laws that prohibited inter-racial marriages. At the time, Virginia was one of 16 states that had statutes that prohibited and punished inter-racial marriages. Considering recent oral arguments regarding California’s Proposition 8 and the Federal Defense of Marriage Act (DOMA), the similarity to arguments made in support of anti-miscegenation statutes is striking.

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The Myth of Black Freedom in the U.S.

Published 1, March 30, 2013 Congress , Constitutional Law , Courts , Criminal law , Environment , Justice , Lawyering , Media , Military , Politics , Supreme Court 98 Comments

Submitted by: Mike Spindell, guest blogger

To some of us the transition from slave to citizenship by those Africans brought in chains to these shores for economic exploitation and horrific abuse ended with the “Emancipation Proclamation”. To others its’ end might have been marked by “Brown v. Board of Education”, or by the 1964 Civil Rights Act. Those of somewhat more insightful bent may have said that the true emancipation occurred when Barack Obama was elected President in 2008. In my view, as much of an impact as all those milestones (and more such as Jackie Robinson i.e.) made to American consciousness, Black people in the United States clearly still lack the benefits and rewards of citizenship. I would go further and say that in the United States, at this time; most Black people still suffer the degradation and challenges brought about by both institutional and emotional racism. This is not to say that in our country other groups, such as Latino’s and Native Americans are free of oppressive prejudice, but to assert that given their history in this country Black people are slotted into the bottom of the economic and social ladder and are still struggling to obtain even those most minimal of rights that most Americans see as their birthright. Continue reading ‘The Myth of Black Freedom in the U.S.’

Oral “Arguments” In The Prop 8 Case

Published 1, March 30, 2013 Supreme Court 128 Comments

-Submitted by David Drumm (Nal), Guest Blogger

On Tuesday, the Supreme Court heard oral arguments in the other same-sex marriage case, Hollingsworth v. Perrry, a case involving California’s voter approved ban on gay marriage, also known as Prop 8. UCLA professor of constitutional law Adam Winkler reminds us that oral arguments is the time when justices “hostile to a lawyer’s argument often reveal their disagreement through penetrating—sometimes devastating—questions.” Sometimes penetrating, sometimes devastating, and sometimes the court is not pleased.

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Supreme Court Takes Up The Defense Of Marriage Act

Published 1, March 27, 2013 Congress , Constitutional Law , Courts , Politics , Society , Supreme Court 768 Comments

The U.S. Supreme Court

Today, the Supreme Court will take up the Defense Of Marriage Act (DOMA), the law signed by Bill Clinton that denied benefits and equal treatment to same-sex couples. This follows yesterday’s interesting, and at times heated, debate over Proposition 8 in the Hollingsworth case. I will be on MSNBC today discussing the case with NPR’s Here and Now at 12 and then Martin Bashir at 4 p.m.

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Searching For Honest Atheists

Published 1, March 16, 2013 Constitutional Law , Religion , Supreme Court 57 Comments

-Submitted by David Drumm (Nal), Guest Blogger

Damon Linker doesn’t see the need of another book about atheism. This time it’s British philosopher A.C. Grayling’s The God Argument – The Case against Religion and for Humanism, to be published on March 26. Linker quotes honest atheist and philosopher Friedrich Nietzsche when Nietzsche proclaimed that the death of God would be an “awe-inspiring catastrophe” for mankind. Although numerous gods from humanity’s past have lost their imagined effect on the human condition without catastrophic results, Nietzsche seems to think the passing of this god will be different.

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SWAT: Is America Coming Under Martial Law?

Published 1, March 9, 2013 Congress , Constitutional Law , Courts , Criminal law , Environment , Free Speech , Justice , Media , Military , Politics , Society , Supreme Court 186 Comments

Submitted by: Mike Spindell, guest blogger

This blog, like many others has an internal search function that will lead you to past stories. It is located beneath the smiling countenance of our proprietor on the upper right. If you enter SWAT into search, you see that the first archive page shows 19 stories involving SWAT raids that were unnecessary and/or unwarranted. In those raids 4 people and 9 dogs were shot in error by the SWAT Team. Just a catalog of the shootings belies the terror that these raids can instill in people who are merely residing within their homes. Many of the articles detail doors suddenly smashed open, flash grenades and gas grenades tossed into the home, people thrown to the floor handcuffed and left for hours in that position, by invading SWAT teams that either had the wrong house, faulty leads and or in some cases enforcing what were clearly civil warrants. In one instance in California a SWAT raid was carried out due to the suspicion of a defaulted student loan. http://jonathanturley.org/2011/06/08/california-family-hit-with-swat-raid-ordered-by-the-department-of-education/

I believe that the rise of these SWAT teams is leading this country towards martial law and what we all commonly understand is a “police state” as repressive as any we’ve seen in the past century. We have seen constant encroachment on our citizens Constitutional protections and a continued erosion of “the Bill of Rights”. Free Speech, the right to peacefully assemble, Habeas Corpus and safety from unwarranted intrusion in our own homes, among others, have been steadily eroded under various guises, be it the drug war, or national security. In my opinion the SWAT team concept, which militarizes our police forces, is leading this nation to what I see as a state of Martial Law. Despite ones place on the currently inflamed political spectrum, this is a problem that I think concerns us all as citizens, not as partisans. I will present to you sufficient proof of my belief, the majority of which will come from what can be fairly described as a “Libertarian Think Tank” and which was founded by Charles Koch, among others. When I find myself on the same side on an issue as the Cato Institute, then I know with certainty that my fears are well grounded and unrelated to any personal partisanship of my own. Continue reading ‘SWAT: Is America Coming Under Martial Law?’

Oral Arguments In Voting Rights Case

Published 1, March 2, 2013 Constitutional Law , Supreme Court 77 Comments

-Submitted by David Drumm (Nal), Guest Blogger

The U.S. Supreme Court held oral arguments (pdf) in Shelby County v. Holder, a case involving Section 5 of the Voting Rights Act. Shelby County, Alabama, is challenging its requirement under Section 5 to get preclearance, from either the United States Attorney General or a three-judge panel of the District Court of the District of Columbia, before making any changes to their voting rules. Oral arguments before the Supreme Court seem to be one-sided with the Justices hammering the attorneys who seem totally unprepared with counter-arguments.

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Obama Administration Supports Gay Marriage . . . Sort Of

Published 1, March 1, 2013 Constitutional Law , Politics , Society , Supreme Court 39 Comments

The Obama administration appears to have celebrated the unveiling of the statue of Rosa Parks in the Capitol by arguing that same-sex couples should be allowed to move halfway up the marital bus. In its amicus brief filed his week in Hollingsworth v. Perry. The Administration spent much of its first term fighting to uphold the Defense of Marriage Act (DOMA) and refusing to accept that same-sex couples are entitled to the same protection as other couples. Now, the Administration is advancing a highly nuanced argument that conspicuously falls short of calling for a constitutional right to marriage for all couples. Instead, it is arguing for a type of constitutional balkanization where gay and lesbian couples would be given equal treatment under an “eight-state” solution.

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“Probable Cause On A Leash”

Published 1, February 23, 2013 Constitutional Law , Supreme Court 75 Comments

-Submitted by David Drumm (Nal), Guest Blogger

The United States Supreme Court recently issued a unanimous (9-0) decision in Florida v. Harris (2013) that deals with probable cause and drug detection dogs. The Court overturned the Florida Supreme Court ruling (pdf) and held that the police officer had probable cause, based on the dog’s reliability, to search Harris’s truck. The Court also held that: “If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, the court should find probable cause.”

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15,000,000

Published 1, February 21, 2013 Academics , Animals , Bizarre , Congress , Constitutional Law , Courts , Criminal law , Environment , Free Speech , International , Justice , Lawyering , Media , Military , Politics , Religion , Science , Society , Supreme Court , Torts 35 Comments

This morning, our blog passed our 15,000,000 viewers. Since just a few weeks ago that we passed the 14,000,000 mark, it is obvious that the blog continues to grow at an impressive rate. We continue to rank in the top ten most viewed legal blogs in the world and I would like to think that our civility policy adds to the appeal of the blog for new viewers.

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Tea Party: A Phony Movement Mantled as Legitimate

Published 1, February 16, 2013 Academics , Congress , Constitutional Law , Courts , Criminal law , Environment , Free Speech , International , Justice , Media , Politics , Science , Society , Supreme Court 93 Comments

Submitted by: Mike Spindell, guest blogger

In August 2011 I wrote a guest blog titled: Tea Party and the Myth of a Grassroots Movement”. Using various newspaper and internet sources I showed that the meme created about the “Tea Party” that it was a “grassroots uprising” of ordinary citizens to take back their country from the out of control liberals, was simply not true. The “Tea Party” is a movement fabricated by certain plutocratic corporate interests to maintain themselves as relatively tax free and maintain control over the fiscal state of our country. I’m revisiting it today because of the guest blog I’ve just submitted about CNN and the rest of the news media, in light of a post by Al Gore at Huffington Post, publicizing his new book which deals with the back-story of the creation of the “Tea Party” and its negative influence upon our country. Some of Al Gores’ evidence and that forming the basis of my original guest blog overlap, but the important difference is he’s Al Gore, former Vice President and a centrist. I on the other hand am merely an aging ex-hippy, who remains a political radical. The truth of the “Tea Party’s” inception is not hidden from view and the facts are blatantly out there. What is important though is that the cable news media, press and the Washington punditry continue to describe the “Tea Party” in terms of its meme and myth as a grassroots entity and thus are complacent in a deception of the American people.

Daily we see stories about these “Tea Party” legislators elected to office on all levels of our government. They are falsely portrayed as populists, who are “fed up” and ran for office to “change things” and return to our Constitution. Large percentages of “Tea Party people in polls still believe that Barack Obama was born in Africa and is a Muslim intent on destroying Christianity and America. They see him as a communist, socialist and fascist simultaneously intent on dismantling our capitalist way of life and crushing American exceptionalism. I understand that one can be a reasonable person an oppose Barack Obama’s activity as President. I oppose some of his positions strongly and I voted for him. However, if you believe the “birthers” and those who call him radical names, then I must say in my opinion you are delusional. He is a slightly right of center Democrat, hawkish on foreign policy and deferential to the Corporate Plutocracy. He may be a Constitutional Scholar, but he certainly hasn’t done enough to protect our Constitutional Freedoms. Yet we see this ultra right wing faction of the Republican Party thinking Obama as the anti-Christ and believing they are part of a spontaneous revolution performed in the interests of “protecting” America. Here’s why that isn’t true. Continue reading ‘Tea Party: A Phony Movement Mantled as Legitimate’

The Evangelical Right’s Roots

Published 1, February 16, 2013 Politics , Religion , Science , Supreme Court 51 Comments

-Submitted by David Drumm (Nal), Guest Blogger

The Evangelical Right arose from the moral outrage triggered by the Roe v. Wade decision in 1973. That compelling portrait of their origins glosses over the movement’s less-than-heroic inception. While Roman Catholics condemned the ruling, W. Barry Garrett of Baptist Press wrote, “Religious liberty, human equality and justice are advanced by the Supreme Court abortion decision.” Wayne Dehoney, Southern Baptist Convention president in the 1960′s, noted, in 1976, the difference between Protestant and Catholic theology when he said: “Protestant theology generally takes Genesis 2:7 as a statement that the soul is formed at breath, not conception.”

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Privatized Prisons a Bad Idea Gets Worse

Published 1, February 3, 2013 Constitutional Law , Courts , Criminal law , Justice , Lawyering , Politics , Society , Supreme Court 28 Comments

Submitted by: Mike Spindell, guest blogger

I don’t usually hold with simplified solutions to certain problems we all face but one comes to mind based on an article I read just now. A reasonable person should vote against any, I mean ANY, politician who has done, or is willing to do anything positive towards continuing the practice of privatizing the prison system on any level of government. From a standpoint of our Constitution I believe that the concept violates it, in spirit, if not in fact. From a fiscal point of view I believe that there is no cost effectiveness in privatizing a prison system. From an ethical position I believe that punishment by our criminal justice system is a government function and can not be given to private contractors without abuses coming. Finally, from a humane standpoint I believe that running a prison on a for-profit basis will never live up to the standards of humane treatment even the worst of prisoners deserve. The institution of a private prison system is a call for corruption just as in the case of the two Pennsylvania Judges convicted of wrongly accepting bribes to sentence minors to a private prison run for minors. This was the infamous “Kids for Cash” case which resulted in prison for these venal, loathsome jurists. http://en.wikipedia.org/wiki/Kids_for_cash_scandal I believe that cases and corruption such as this are the inevitable result of prison privatization and I believe that we are going to see more and more of it today.

The article which appears in today’s Huffington Post is titled: “Lake Erie Correctional Institution, Ohio Private Prison, Faces Concerns About “Unacceptable” Conditions”. The issues discussed in this brief article highlight all that I think is wrong about maintaining a privatized prison system and about the abuses that spring naturally from the concept. The article even touches on why the initial cost benefit put forth by private companies and by the politicians they convince to back their idea, is unreal and actually leads to greater expense on borne by the government and its citizens. Continue reading ‘Privatized Prisons a Bad Idea Gets Worse’

7th Circuit Enjoins Contraceptive Coverage Mandate

Published 1, February 2, 2013 Constitutional Law , Religion , Supreme Court 23 Comments

-Submitted by David Drumm (Nal), Guest Blogger

In Grote v. Sebelius, (7th Cir., Jan. 30, 2013), a 2-1 decision by the U.S. 7th Circuit Court of Appeals granted an an injunction, pending appeal, where the defendants are enjoined from enforcing the contraception mandate against the Grote Family and Grote Industries. Grote Industries is a privately held, family‐run business headquartered in Madison, Indiana. Members of the Grote Family are Catholic and operate their business according to the “precepts of their faith, including the Catholic Church’s teachings regarding the moral wrongfulness of abortifacient drugs, contraception, and sterilization.”

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Carmen Ortiz: Prosecution for Political Ego?

Published 1, January 26, 2013 Congress , Constitutional Law , Courts , Criminal law , Free Speech , Justice , Lawyering , Media , Politics , Society , Supreme Court 66 Comments

Submitted by: Mike Spindell, guest blogger

One of the main concerns we Americans should have is about the state of our criminal justice system. How a society deals with the issue of criminality is one of the ways that we all can judge its freedom from oppression. This country has been selling our “democracy” to the world for 8 decades now as an example of how a modern nation should operate. Continue reading ‘Carmen Ortiz: Prosecution for Political Ego?’

America’s Broken Criminal Justice System

Published 1, January 19, 2013 Academics , Congress , Constitutional Law , Courts , Criminal law , Free Speech , Justice , Lawyering , Media , Politics , Supreme Court , Testimony , Uncategorized 75 Comments

Submitted by: Mike Spindell, guest blogger

While I’m not a lawyer, I do write for this legal blog by the invitation of its creator Jonathan Turley. I first arrived on the scene here many years ago because since the age of ten I have had been interested in the nature of the broad spectrum of civil rights issues faced by this country. My interest became an obsession at the age of ten. My parents, who were quite liberal, allowed me to stay up way past my bedtime to watch Ed Murrow bravely attack Sen. Joseph McCarthy for his Communist Witch Hunt, by documenting the anti-constitutional excesses he used to destroy people’s lives and careers. Months later they kept me home from school to watch the Army/McCarthy Hearings which directly led to McCarthy’s downfall. On our twelve inch, black and white TV I watched this famous scene:

“On June 9, 1954, the 30th day of the Army–McCarthy hearings, McCarthy accused Fred Fisher, one of the junior attorneys at Welch’s law firm, of associating while in law school with the National Lawyers Guild (NLG), a group which J. Edgar Hoover sought to have the U.S. Attorney General designate as a Communist front organization. Welch had privately discussed the matter with Fisher and the two agreed Fisher should withdraw from the hearings. Welch dismissed Fisher’s association with the NLG as a youthful indiscretion and attacked McCarthy for naming the young man before a nationwide television audience without prior warning or previous agreement to do so:

“Until this moment, Senator, I think I have never really gauged your cruelty or your recklessness. Fred Fisher is a young man who went to the Harvard Law School and came into my firm and is starting what looks to be a brilliant career with us. Little did I dream you could be so reckless and so cruel as to do an injury to that lad. It is true he is still with Hale and Dorr. It is true that he will continue to be with Hale and Dorr. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your reckless cruelty I would do so. I like to think I am a gentle man but your forgiveness will have to come from someone other than me.”

When McCarthy tried to renew his attack, Welch interrupted him:

“Senator, may we not drop this? We know he belonged to the Lawyers Guild. Let us not assassinate this lad further, Senator. You’ve done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?”

McCarthy tried to ask Welch another question about Fisher, and Welch cut him off:

“Mr. McCarthy, I will not discuss this further with you. You have sat within six feet of me and could have asked me about Fred Fisher. You have seen fit to bring it out. And if there is a God in Heaven it will do neither you nor your cause any good. I will not discuss it further.”

The gallery erupted in applause.”

The drama of this distinguished lawyer chastising one of the most powerful men in the United States and silencing his cruelty was one of the defining moments of my life. It spurred a lifelong interest in the Constitution, the Law and the rights of the American People. Today, among other ills, I believe that our American Criminal Justice System is broken. Let me explain why I believe that. Continue reading ‘America’s Broken Criminal Justice System’

Hobby Lobby CEO Files Lawsuit

Published 1, January 19, 2013 Religion , Science , Supreme Court 51 Comments

-Submitted by David Drumm (Nal), Guest Blogger

Oklahoma City-based Hobby Lobby’s founder and CEO David Green has filed a lawsuit challenging the health care mandate to provide what Green “believe[s] are abortion-causing drugs as part of our health insurance.” Green goes on to say: “Being Christians, we don’t pay for drugs that might cause abortions, which means that we don’t cover emergency contraception, the morning-after pill or the week-after pill.”

The District Court for the Western District of Oklahoma denied Green’s motion for a preliminary injunction The Court of Appeals for the Tenth Circuit denied the applicants’ motion for an injunction and Justice Sotomayor also denied the application for an injunction pending appellate review.

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Missouri v. McNeely

Published 1, January 12, 2013 Constitutional Law , Supreme Court 60 Comments

-Submitted by David Drumm (Nal), Guest Blogger

This case, recently argued before the U.S. Supreme Court, involves a Missouri state highway patrolman who stopped McNeely’s truck for speeding at 2:08 a.m. The officer noted signs of intoxication and ordered McNeely out of the vehicle and performed a field sobriety test. McNeely performed the tests poorly and was placed under arrest. McNeely refused to consent to a breathalyzer test and was driven to a local hospital where blood was drawn without consent and without a warrant. The results of the blood test showed that McNeely’s blood-alcohol ratio was over the legal limit.

Continue reading ‘Missouri v. McNeely‘

FISA Extension Gets a Bipartisan Pass

Published 1, January 6, 2013 Congress , Constitutional Law , Courts , Free Speech , Justice , Media , Politics , Supreme Court 56 Comments

Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

It is always rare in Washington these days when a bipartisan majority passes any bill in the House of Representatives or the Senate. However, while most of the media interest last week was fixed on the so-called “fiscal cliff” negotiations and the subsequent legislation that was passed and signed into law, maybe the media missed the more important legislation. That missed legislation was a 5 year extension of the FISA amendments that was granted by the Senate in a bipartisan 72-23 vote last week. “The Senate voted 72-23 last week to extend the FISA Amendments Act another five years, which President Obama signed Sunday. Unfortunately, the public discussion of George W. Bush’s warrantless wiretapping program may soon fade back into the shadows.” ACLU

This is a continuation of the same Bush-era FISA bill that was alleged to spy on almost anyone’s electronic communication, all without warrants. So, instead of sunshine being used to bring some accountability and transparency to this secret spying, for Five more years, American’s phone calls and text messages can be monitored almost at will by the government with little or no judicial restraint. What is Congress and the Intelligence community hiding from the American people? Continue reading ‘FISA Extension Gets a Bipartisan Pass’

Who Occupied the Occupy Movement?

Published 1, December 30, 2012 Constitutional Law , Courts , Criminal law , Free Speech , Justice , Media , Military , Politics , Society , Supreme Court 100 Comments

Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

If you are like me, you remember the violent response by the FBI, DHS and local police forces to the many “Occupy” movement protests last Fall. In those protests, the police used incredible force and firepower to break up peaceful protests and make a mockery of the First Amendment. The police responses always seemed to be coordinated from city to city and there were allegations that the FBI and other governmental agencies were aiding the local authorities in stamping down the First Amendment rights of the Occupy protestors. Now, a treasure trove of documents was released pursuant to a Freedom of Information request by a group called The Partnership for Civil Justice Fund. Those documents expose a level of governmental intrusion into the privacy of protestors and governmental and private bank partnerships designed to crack down on legal protestors. Continue reading ‘Who Occupied the Occupy Movement?’

Merry Christmas!!!

Published 1, December 25, 2012 Academics , Animals , Bizarre , Congress , Constitutional Law , Courts , Criminal law , Environment , Free Speech , International , Justice , Lawyering , Media , Military , Politics , Religion , Science , Society , Supreme Court , Torts 58 Comments

Best wishes to everyone celebrating Christmas and Hanukkah. Continue reading ‘Merry Christmas!!!’

Rosenberger v. UVa (1995)

Published 1, December 22, 2012 Constitutional Law , Religion , Supreme Court 20 Comments

-Submitted by David Drumm (Nal), Guest Blogger

bill of rights The 5-4 Supreme Court case of Rosenberger v. University of Virginia has been cited by those arguing that the government may not impose viewpoint-based restrictions by revoking the tax-exempt status of the Westboro Baptist Church. The case involved the University’s refusal to use the Student Activities Fund (SAF) to pay for a Christian student newspaper, Wide Awake. The University argued that an SAF Guideline prohibited funds going to an activity that “primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality.” The District Court ruled for the University, and the United States Court of Appeals for the Fourth Circuit disagreed saying that there is a “presumptive violation of the Speech Clause when viewpoint discrimination was invoked to deny third party payment otherwise available.”

Continue reading ‘Rosenberger v. UVa (1995)’

The Specious Roots of the Anti-Abortion Controversy

Published 1, December 15, 2012 Academics , Congress , Constitutional Law , Courts , Criminal law , Justice , Lawyering , Media , Politics , Religion , Science , Society , Supreme Court , Uncategorized 29 Comments
Tags: freedom, government, justice, law, politics, religion, society, Supreme Court

Submitted by: Mike Spindell, guest blogger

I originally had a guest blog planned for today on a completely different topic, but I ran across an article in Friday’s Huffington Post, that changed my direction. Since I was a youth I have been aghast at the fact that I grew up in a country where such things as homosexuality and abortion were prohibited by law. It seemed like this was too personal an interference by the State into the personal affairs of people and that this interference often ruined people’s lives. Then too, I grew up in New York State, where for so many years divorce was unobtainable leading to such ridiculousness as Governor Nelson Rockefeller’s wife having to establish Nevada residence in order to obtain a divorce from him. It seemed to me then, as it seems to me now, that religious dogma had no business invading our legal system.

Although there were many prior years of a movement building up in support of abolishing Abortion Laws, the decision of Roe vs. Wade in 1973 http://en.wikipedia.org/wiki/Roe_v._Wade was a breathtaking and welcome surprise. Immediately after, however, there started the blow-back against that decision that almost forty years later continues with fervor and intensity. The opposition cites “The Bible” as the source of their angry opposition and claims that their religion, as encoded in “The Bible” describes abortion as murder, with the life of the child beginning at fertilization. When they quote “The Bible” of course they mean the “New Testament” and what they call “The Old Testament”. Jews actually don’t recognize the term “Old Testament”, to us it is called the “Torah”, since Jews believe that their “Torah” was never replaced by a “New Testament”. The anti-Abortionists need to cite the “Torah” for their beliefs, since the Gospels don’t discuss the abortion issue. Like much that exists in Christian Dogma today, there is a need to cite the “Torah” for their beliefs since there is no evidence in the Gospels that Jesus ever spoke on some matters. Christian “Torah” citation though is haphazard in that they choose what portions to recognize and what portions to ignore. The sentiments of those Christians against abortion are based in the “Torah”. What if their citation of this venerable book stemmed from an incorrect translation of it many, many centuries ago? If they cited it incorrectly in the first instance, doesn’t that destroy their whole argument that abortion is murder in God’s eyes, especially if the writers of the “Torah” never understood abortion to be murder? This is what I’d like to discuss. Continue reading ‘The Specious Roots of the Anti-Abortion Controversy’

The Absurd Reduction: Scalia Reaffirms Comparison of Homosexuality To Bestiality

Published 1, December 11, 2012 Academics , Constitutional Law , Courts , Society , Supreme Court 87 Comments

AntoninScalia U.S. Supreme Court Justice Antonin Scalia was at it again yesterday. I have previously criticized Scalia’s apparent insatiable appetite for public notoriety, including violating judicial ethical rules by discussing issues in pending cases. He is the very model of the new celebrity justice that I have criticized in past columns (here and here and here). Now, at Princeton while pitching his latest book, “Reading Law,” Scalia succeeded in not only discussing an issue in two pending same-sex marriage cases but reaffirming homophobic prejudices. Scalia was questioned about his controversial comments equating homosexuality with bestiality by a gay student. Scalia admitted that such comparison are “not necessary, but I think it’s effective.” That appears to be the standard used by this justice in using profoundly insulting language: whether it is effective prose or argument. I will be appearing on Lawrence O’Donnell tonight on MSNBC with the student, freshman Duncan Hosie.

Continue reading ‘The Absurd Reduction: Scalia Reaffirms Comparison of Homosexuality To Bestiality’

NDAA Double Cross

Published 1, December 9, 2012 Congress , Constitutional Law , Courts , Criminal law , Free Speech , Justice , Media , Military , Politics , Supreme Court 57 Comments

Respectfully submitted by Lawrence E. Rafferty (rafflaw)- Guest Blogger

When United States District Judge Katherine Forrest blocked the implementation of Section 1021 of the infamous National Defense Authorization Act in May of this year, I thought that legal civilians of all stripes were saved from being at risk of imprisonment without trial or due process. However, an appeals court stayed Judge Forrest’s injunction and the appellate court has allowed the indefinite detention provision to be reinstated during the appeal time frame. Business Insider

Naomi Wolf of the Guardian explains why a group of journalists sued to block the implementation of Section 1021 in the first place. “As I reported here, last spring a group of journalists and activists including Chris Hedges, Noam Chomsky and Tangerine Bolen, led by counsel Bruce Afran and others, sued President Obama to halt the implementation of Section 1021 in the National Defense Authorization Act (NDAA), which would have allowed for the indefinite detention of Americans without charge or trial. The vague definition of who could be detained included individuals who were seen to provide “substantial support” to al-Qaida’s “associated forces” – wording that provided no protection for journalists interviewing, for example, detainees in Guantánamo, or activists and advocates working with prisoners on their cases.” Readersupportednews Continue reading ‘NDAA Double Cross’

West Point and Religion

Published 1, December 8, 2012 Academics , Congress , Constitutional Law , Courts , Free Speech , Justice , Media , Military , Politics , Religion , Society , Supreme Court 120 Comments

Submitted by: Mike Spindell

A young man named Blake Page resigned from West Point this week with five months left to go until graduation. This will no doubt be a life changing event for him and could potentially have drastic consequences. His reason for resigning was his belief that there was a pervasive influence of religious proselytizing at this famed military academy. He and other non-religious cadets are retaliated against for their beliefs and for their refusal to go along with a program that makes Christian Faith the standard for success and for receiving privileges.

He wrote an article for the Huffington Post which I will discuss and link to below. First though I want to add my own thoughts on this because I think this young man is credible and because his charges regarding West Point are not the first complaint of intolerance towards non-religious cadets at a U.S. Armed forces Academy. The U.S. Air force Academy is located in Colorado Springs, Colorado. It is said that this community of 416,000 people can be considered the nexus of Evangelical Christianity in the United States, if not the world.

“Although houses of worship of almost every major world religion can be found in the city, Colorado Springs has in particular attracted a large influx of Evangelical Christians and Christian organizations in recent years. At one time Colorado Springs was counted to be the national headquarters for 81 different religious organizations, earning the city the tongue-in-cheek nickname “the Evangelical Vatican“^[57] and “The Christian Mecca”.

Religious groups with regional or international headquarters in Colorado Springs include: the Association of Christian Schools International, the Christian and Missionary Alliance, Compassion International, Every Home for Christ, Focus on the Family, HCJB, the International Bible Society, The Navigators, the Roman Catholic Diocese of Colorado Springs, WAY-FM Media Group, Andrew Wommack Ministries, and Young Life.”

In addition to the Air Force Academy there is Fort Carson and two air force bases located in the City. Twenty percent of this County’s employees work for these facilities. Besides this large military presence: “Colorado Springs is home to the United States Olympic Training Center and the headquarters of the United States Olympic Committee. In addition, a number [15] of United States national federations for individual Olympic sports have their headquarters in Colorado Springs” http://en.wikipedia.org/wiki/Colorado_Springs,_Colorado#Religious_institutions

Call me paranoid perhaps, but I think that it is no coincidence that this small city, but sixty miles from Denver, at the base of Pikes Peak, has drawn such a large influx of Evangelical Christians and their national organizations. I think it is potentially an ominous sign and I’ll explain my thoughts and feelings. Continue reading ‘West Point and Religion’

14,000,000

Published 1, December 5, 2012 Academics , Animals , Congress , Constitutional Law , Courts , Criminal law , Environment , Free Speech , International , Justice , Lawyering , Media , Military , Politics , Religion , Science , Society , Supreme Court , Testimony , Torts 9 Comments

One hour ago, our blog passed the 14,000,000 viewer. The fact that we only recently passed the 13,000,000 viewer mark reflects the impressive growth of this blog. Congratulations everyone. Now if we could only get .000001 of those viewers to vote for us on the ABA blog competition we could crush the competition! If you (are any distant relative, incompetent ward, or pet) has not voted, you can vote here and cast your vote today!

Continue reading ’14,000,000′

Supreme Failure: Chicago’s Anita Alvarez and the Campaign To Criminalize Citizen Monitoring of Police

Published 1, December 2, 2012 Academics , Columns , Constitutional Law , Criminal law , Free Speech , Media , Politics , Society , Supreme Court , Torts 37 Comments

mosaic_anita143x176 Below is my column today in the Sunday Chicago Tribune on the recent denial of review by the Supreme Court in the Illinois eavesdropping case that we discussed earlier.

Continue reading ‘Supreme Failure: Chicago’s Anita Alvarez and the Campaign To Criminalize Citizen Monitoring of Police’

TURLEY BLOG MAKES ABA TOP 100 — NOW IT IS TIME TO VOTE FOR THE TOP BLOG!

Published 1, November 27, 2012 Academics , Animals , Bizarre , Columns , Congress , Constitutional Law , Courts , Criminal law , Environment , Free Speech , International , Justice , Lawyering , Media , Military , Politics , Religion , Science , Society , Supreme Court , Testimony , Things That Tick Me Off , Torts 50 Comments

The ABA Journal has released its list of the top 100 legal blogs in the world and we are once again in this august group of blogs. Congratulations to all of our regulars contributors and weekend bloggers. We have previously taken the top spot under the opinion category in the past but the ABA has now eliminated that category. Even more ominous was the decision to put the largest blogs in direct competition under an expanded “News/Analysis” category. This includes the long dominant “Above the Law” site. We would have to punch considerably above our weight to beat “Above the Law,” which is ranking regularly in the top two most visited legal sites in the world. Frankly, it is like a dingy going up against a battleship. However, we have never flinched in the face of superior numbers. So it is time to vote! It takes a very quick registration. Just click here and cast your vote today!

Continue reading ‘TURLEY BLOG MAKES ABA TOP 100 — NOW IT IS TIME TO VOTE FOR THE TOP BLOG!’

HAPPY THANKSGIVING!

Published 1, November 22, 2012 Academics , Animals , Bizarre , Columns , Congress , Constitutional Law , Courts , Criminal law , Environment , Free Speech , International , Justice , Lawyering , Media , Military , Politics , Religion , Science , Society , Supreme Court , Testimony , Things That Tick Me Off , Torts 28 Comments

Happy Thanksgiving to everyone. This is my favorite holiday with all of the essential elements of joy: food, friends, and football. Continue reading ‘HAPPY THANKSGIVING!’

Separation Of Church And Hospital

Published 1, November 18, 2012 Politics , Religion , Science , Supreme Court 42 Comments

-Submitted by David Drumm (Nal), Guest Blogger

Savita Halappanavar, a 31-year old dentist, had the bad fortune to have her pregnancy go wrong in Ireland, referred to, by hospital officials, as a “Catholic country.” Savita was 17 weeks pregnant when, on October 21, she arrived at University Hospital Galway complaining of back pain. She was found to be miscarrying.

Savita was in severe pain for three days in the hospital and requested a termination. Savita and her husband were led to believe that the law would not allow a termination until there was no fetal heartbeat. Savita died of septicemia a week after entering the hospital.

Continue reading ‘Separation Of Church And Hospital’

Democracy in America: What Does it Mean?

Published 1, November 17, 2012 Academics , Congress , Constitutional Law , Courts , Criminal law , Free Speech , Justice , Media , Military , Politics , Society , Supreme Court 64 Comments

Submitted by: Mike Spindell, guest blogger

While the United States of America is many things to many people, it is not as is popularly conceived a Democracy and it never has been. This view is not coming from a perspective of politics, but one of stark reality. The thinking of the overwhelming majority of our Founding Fathers, as embodied in the Constitution they wrote, was certainly not to give power to the masses. I don’t believe this point is in dispute by the majority of Constitutional experts, despite their various positions on the political spectrum. Most politicians with self-awareness and intelligence have always known that we are not a Democracy as a country, despite the fact that most also proclaim it to be a Democracy. The problem with what I just wrote is that defining Democracy is a very slippery process and as I will show, the word means very different thing to many different people.

Permit me to begin by defining Democracy in terms of the myth that has been created around it in American parlance: “Democracy represents both the Will and the Rule of the People over their government. As such it is the best form of government for all”. Whether we believe it or not all Americans have grown up under this national myth and its’ use is ubiquitous to both domestic and foreign policy. The many wars this country has fought were prosecuted in the interests of this myth of Democracy, whether in destroying the Axis in World War II to save the world, or to nurture its creation and existence in numerous foreign lands. A student of history understands that the reasons for the wars America has fought are far more complex and ultimately self-serving than protecting Democracy. Nevertheless, to initially go to war, a populace must be energized by the belief that it will be fought for a higher purpose, in order to send it young adults to fight and potentially die. This energy in America usually has come from a combination of the myth of protecting democracy and a general threat to all the people. The simple rubric in my lifetime and in the history before it, is that we are fighting for Democracy. I will explore this myth, so central to our lives of citizens and discuss its implications. Continue reading ‘Democracy in America: What Does it Mean?’

The Watering Down of the Fourth Amendment

Published 1, November 4, 2012 Constitutional Law , Courts , Criminal law , Justice , Lawyering , Supreme Court , Uncategorized 49 Comments

Respectfully submitted by Lawrence E. Rafferty (rafflaw)- Guest Blogger

We all know or should know the Fourth Amendment and how it protects all citizens from an illegal search and seizure of our property and person. ‘ “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ “ Cornell Law

Over the years, this valuable right has been watered down. Recently, the Roberts Court heard arguments in a case that did not get much media attention. That case involved a man who was arrested and detained after a traffic stop just because he had been in an apartment that the police had just exercised a search warrant. The name of the case is Bailey v. United States and oral arguments in front of the Supreme Court were heard on November 1st, 2012. Bailey v. United States The narrow issue that the Supreme Court is deciding is whether an individual can be detained by the police merely because he recently left a residence before the police executed a search warrant at that location. Sounds like a no brainer, doesn’t it? Continue reading ‘The Watering Down of the Fourth Amendment’

Too Much Democracy?

Published 1, November 4, 2012 Academics , Congress , Constitutional Law , Courts , Criminal law , Free Speech , Justice , Lawyering , Media , Politics , Religion , Society , Supreme Court , Testimony , Uncategorized 71 Comments

Submitted by: Mike Spindell, Guest Blogger

I’m a legal resident of Florida and this week I took advantage of early voting. While I’ve been a political activist for most of my life and usually have a good idea of the issues involved in any particular election, this vote brought home to me that I wasn’t as smart and informed in this election as I supposed. This thought occurred to me the night before I voted, when I carefully looked over the sample ballot sent to me by my County Board of Elections. The sample ballot had six pages and the opportunity to vote twenty six separate times. The first seven of the twenty-six votes, were “no brainers” since it started with the Presidency and ended with County Commissioner. I was familiar with each of these elective offices and the issues entailed in each particular race, but that’s where my familiarity with the issues involved in the next nineteen votes ended. The next possible votes were on whether each of three particular State Supreme Court Judges should be allowed to continue their terms? Not knowing these Judges and/or their judicial views how was I to make such a decision? The next vote was also on whether a particular Justice of the Court of Appeals should be retained in office. The final electoral decision was a vote between one of two people for a four year term to the County Soil and Water commission. This was not a party affiliated position, so other than their names, I had no idea who to vote for, or what their particular conservation philosophy entailed.

Needless to say, I went on the web and found out what was going on in the Judges recall. This is the story and its’ Washington Post link: A Koch Brothers-backed campaign is seeking to vote out three Florida Supreme Court justices.

“A loosely organized Internet campaign against the court two years ago has been fortified by the conservative group Americans for Prosperity, founded by billionaire activists Charles and David Koch. And then came the surprise announcement that the Republican Party of Florida had decided to oppose all three justices, an unprecedented move in the nonpartisan vote.

Party leaders said that “collective evidence of judicial activism” showed the jurists to be liberals who are out of touch with the public. Opponents point to the court’s death penalty decisions and a ruling that kept an “Obamacare” referendum off the 2010 ballot. But the justices’ supporters say an effort is underway to pack the court with new appointees and deliver Republicans the only branch of state government they don’t control.”

While it is true that I had no clue that such a Campaign was going on, in my defense I was out of State for the entire summer and not paying attention to local affairs. This guest blog, however, is not about the Koch’s judicial ploy, but about what followed it on the Florida Ballot. This was the vote on eleven Florida Constitutional Amendments and why I believe that the nationwide movement for voter ballot initiatives is an idea to support democracy, which in practice is anti-democratic in nature. Continue reading ‘Too Much Democracy?’

THE DEATH OF FREE SPEECH

Published 1, October 14, 2012 Constitutional Law , Courts , Criminal law , Free Speech , Media , Politics , Religion , Society , Supreme Court 118 Comments

Below is my column today in the Washington Post on the decline of free speech in Western countries. Speech is being balkanized into prohibited and permitted areas by redefining speech in terms of its social impact. Increasingly, it seems that the West is re-discovering the tranquility that comes with forced silence. What is fascinating is that this trend is based on principles of tolerance and pluralism — once viewed as the values underlying free speech.

* * *

Continue reading ‘THE DEATH OF FREE SPEECH’

Double Jeopardy

Published 1, October 13, 2012 Academics , Bizarre , Constitutional Law , Courts , Criminal law , Justice , Lawyering , Media , Military , Society , Supreme Court , Testimony , Uncategorized 62 Comments

Submitted by: Mike Spindell, Guest Blogger

One of the main problems with any legal principle is that we humans are so complex in our interactions that even the most hallowed of legal principles are bound to run into conflict with a real life situation that turns it on its end and leaves even the most principled among us at a loss. This is why the timeless practice of training lawyers to be able to argue both sides of a case arose. Even those who are most respectful of our legal system and our Constitution, recognize that with the variety of human situations, sometimes the legal process leads to results that are far short of the mark of what a person might consider to be justice. Recently, while watching a TV real life murder show called “Unusual Suspects” I came across a case, whose resolution, left me confused as to whether the result was correct in a Constitutional sense. The first ten amendments to our Constitution that are known as “The Bill of Rights” are legal principles that I hold sacrosanct. Historically, the founders put them in place to safeguard the people from the tyrannies that often flowed from autocratic systems of government. These were principle that history and experience had taught them were necessary to protect and preserve the freedom of citizens.

The Fifth Amendment became famous in the 40’s and 50’s when it was invoked at congressional hearings striving to root out “communists”. People in the glaring spotlight of Congressional Hearings, sworn under oath, would be forced to invoke the Fifth Amendment to assert their right not to incriminate themselves. What was unfortunate about these “witch-hunts” was that according to legal procedure, if the person under oath answered any kind of question it was deemed that their Fifth Amendment Rights had been forfeited, since any answer, no matter how innocuous could be considered to have opened up a line of questioning. Thus if one was asked to discuss where they worked they would have to invoke the “Fifth”, or otherwise be opened to questions on who they worked with. The result of this was that by exercising their Constitutional Rights, these witnesses were made to seem guilty of hiding something, merely by asserting their right to remain silent. People’s careers were destroyed having been guilty of nothing more than associating with people who believed in a different economic system, that wasn’t inherently illegal. As the title indicates I’m writing about another aspect of the Fifth Amendment and the result of a particular murder case that left me intellectually and emotionally conflicted. Continue reading ‘Double Jeopardy’

Supreme Court Takes Up Affirmative Action In Higher Education

Published 1, October 10, 2012 Academics , Constitutional Law , Politics , Society , Supreme Court 72 Comments

This week the Supreme Court will find itself facing yet again the question of the use of race in higher education. It is question that the Court failed to definitively answer in 1978 and then again in 2003 and will now try again in 2012. Fisher v. University of Texas Austin however has the makings of a decision that could not only answer the question with finality but effectively bar the use of race in admissions in higher education. While the Court has repeatedly allowed the limited use of race for the purposes of achieving diversity in classes, the record of these programs suggests that this one factor is difficult to confine and tends to overwhelm other considerations. The Court now appears to have the votes to adopt a bright-line rule that ends decades of experimentation with this controversial factor.

Continue reading ‘Supreme Court Takes Up Affirmative Action In Higher Education’

No Sweat: Scalia Publicly Declares Abortion, Death Penalty, Criminalizing Homosexuality “Absolutely Easy” Questions

Published 1, October 8, 2012 Constitutional Law , Courts , Criminal law , Justice , Media , Politics , Society , Supreme Court 84 Comments

Associate Justice Antonin Scalia is again making headlines with controversial public statements. I have previously written about Scalia and the advent of the celebrity justice. Scalia clearly relishes the public attention, even though his public controversies likely cost him the Chief Justice position on the Court. Continuing his celebrity tour before conservative groups, Scalia thrilled his “base” by declaring that the criminalization of homosexuality, abortion, and the death penalty are “absolutely easy” questions.

Continue reading ‘No Sweat: Scalia Publicly Declares Abortion, Death Penalty, Criminalizing Homosexuality “Absolutely Easy” Questions’

Affirmative Action And Measuring Merit

Published 1, October 7, 2012 Politics , Society , Supreme Court 36 Comments

-Submitted by David Drumm (Nal), Guest Blogger

The Supreme Court will soon hear arguments on the affirmative action case of Fisher v. University of Texas at Austin. Opponents of affirmative action claim that the process is inherently unfair: a non-white student gains admittance over a more qualified white student. That certainly seems unfair.

A key question in verifying the unfairness of affirmative action is an objective measure of each student’s qualifications.

Continue reading ‘Affirmative Action And Measuring Merit’

Pastors Take on the IRS

Published 1, September 23, 2012 Congress , Constitutional Law , Courts , Free Speech , Justice , Politics , Religion , Supreme Court , Uncategorized 78 Comments

Respectfully Submitted by Lawrence Rafferty (rafflaw)-Guest Blogger

In light of the ever-increasing influence on National and local politics by churches and clergy, I was interested in the recent news that over 1,000 churches will be challenging the IRS by telling their parishioners who they want them to vote for in the upcoming national elections. The event is dubbed “Pulpit Freedom Sunday” by its organizers and it is designed to challenge the IRS on its prohibition of churches from intertwining politics and religion, as a requirement of maintaining their tax-free status. Continue reading ‘Pastors Take on the IRS’

Is “Innocence of Muslims” Protected Speech?

Published 1, September 23, 2012 Constitutional Law , Free Speech , Supreme Court 83 Comments

-Submitted by David Drumm (Nal), Guest Blogger

The film “Innocence of Muslims” and the violence in Libya, Egypt, and Yemen, are at the heart of a debate as to whether the film falls within the category of “freedom of speech.” In an Op-ed in the LA Times, Sarah Chayes writes that it’s not “free speech protected under the U.S. Constitution.” In USA Today, Anthea Butler calls for the arrest of the filmmaker and writes that the film denigrates religion and “is not about expressing a personal opinion about Islam.”

Continue reading ‘Is “Innocence of Muslims” Protected Speech?’

Brown Family Files Final Brief On Summary Judgment

Published 1, September 18, 2012 Constitutional Law , Courts , Criminal law , Free Speech , Media , Politics , Religion , Society , Supreme Court 8 Comments

We have received a lot of requests for the briefing just filed in the Sister Wives case in Salt Lake City. As lead counsel, I am limited in what I can say about the case publicly. However, here is the final brief on the merits of the case, which is limited to 25 pages of argument under the local rules.

Continue reading ‘Brown Family Files Final Brief On Summary Judgment’

Deplorable

Published 1, September 15, 2012 Constitutional Law , Free Speech , Politics , Religion , Supreme Court 178 Comments

-Submitted by David Drumm (Nal), Guest Blogger

A press statement issued in the name of Secretary of State Hillary Rodham Clinton, condemns the attacks on the mission in Benghazi. Also include in the statement is:

The United States deplores any intentional effort to denigrate the religious beliefs of others.

What is deplorable is that nowhere in the statement is a commitment to free speech that goes back to the very beginning of our nation. Continue reading ‘Deplorable’

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