Category: Constitutional Law

No Joke: Supreme Court Case Could Take a Big Bite Out of the First Amendment

Below is my column in The Hill on what is shaping up to be a major Supreme Court term on the issues of parody and satire under the First Amendment. The Court could reframe the constitutional limits for criminal and civil liability in two cases currently on the docket, including one recently granted review. Continue reading “No Joke: Supreme Court Case Could Take a Big Bite Out of the First Amendment”

A Constitutional Thanksgiving: Why We Should All Give Thanks for the “Least Dangerous Branch”

As families gather this year for our annual holiday feast, there remain many things for all of us to give pause and thanks for in our lives. Our friends, family, and faith remain central to this holiday. So is our freedom.  Despite economic, political, and social problems, we remain a free and prosperous nation committed to core values of individual rights and self-determination. Indeed, more than any year, there is particular reason to give thanks to the most besieged and resilient part of our constitutional system: the courts. Despite attacks from the left and right, our court system remains a bulwark against political impulse and excess. The Supreme Court in particular has faced unrelenting attacks ranging from a reprehensible leak to an attempted assassination of a justice to calls for court packing. It has stood its ground just as James Madison and other Framers had hoped in their original design of our constitutional system.

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Federal Court Strikes Down Another Provision of New York’s New Gun Control Law

I have previously written about how New York has proven time and time again as the gift that keeps on giving for the National Rifle Association (NRA) and gun-rights groups. New York Democrats continue to pass laws that are virtually guaranteed to be struck down and further reinforce Second Amendment rights. The latest provision involves the possible criminal prosecution for possessing a gun on private property if the owner has not approved such possession on the premises.

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Supreme Court Takes Jack Daniels Trademark Case with Major Free Speech Implications

Image from Supreme Court Petition

Recently, we saw the filing of a hilarious brief by the Onion in Novak v. City of Pharm in which an Ohio man was prosecuted for posting a parody of his local police department. Now the Court has accepted a different parody case involving Jack Daniels where the company is suing the maker of dog chew toys. The case is Jack Daniel’s Properties Inc. v. VIP Products LLC. Continue reading “Supreme Court Takes Jack Daniels Trademark Case with Major Free Speech Implications”

MSNBC Analyst Calls for Liability for Boebert and Carlson … for the Colorado Shootings

We have been discussing how attacking free speech has become an article of faith for many on the left. That includes embracing corporate censorship and recently even good old-fashioned state censorship. It includes banning books and preventing opposing voices to be heard on campuses. Now, MSNBC national security analyst Frank Figliuzzi has called for Rep. Lauren Boebert (R-CO) and Fox News host Tucker Carlson to face civil liability for their commentary on transgender policies or controversies after the recent tragic shooting in Colorado. It is part of a growing movement in the media in favor of imposing criminal or civil liability on opposing viewpoints — a call that is tantamount to sawing the very branch upon which journalists and analysts sit. Continue reading “MSNBC Analyst Calls for Liability for Boebert and Carlson … for the Colorado Shootings”

Stern Rebuke: Auburn University Hit With Punitive Damages in Free Speech Case

Auburn University has lost a major case involving free speech after a jury ruled in favor of Prof. Michael Stern, a tenured economics professor. The jury ruled that Auburn retaliated against Stern for his public criticism of the school’s treatment of student athletes, particularly their alleged favored treatment in the College of Liberal Arts. Notably, the jury awarded punitive damages against the university, a relative rarity for juries but well deserved in this case. Continue reading “Stern Rebuke: Auburn University Hit With Punitive Damages in Free Speech Case”

The Trump-Warren Alliance? A Curious Front Forms Over Banning Former Lawmakers from Lobbying

Well, we asked for bipartisanship. It seems to have arrived with a vengeance. It is rare to see Donald Trump, Sen. Elizabeth Warren, and Rep. Alexandria Ocasio-Cortez all campaigning on the same issue, but last night the former president added his voice to the call for a lifetime ban on former lawmakers (and cabinet members) working as lobbyists. This alliance is notable not only because it is uncommon but because it is pushing a reform that is likely unconstitutional. Continue reading “The Trump-Warren Alliance? A Curious Front Forms Over Banning Former Lawmakers from Lobbying”

Clovis Community College Loses Critical Decision over Free Speech

Clovis Community College in California lost a major ruling in its effort to quash a free speech lawsuit by students censored by the school. U.S. District Judge Jennifer Thurston  granted a preliminary injunction against the college, which requires a finding of a substantial likelihood of prevailing on the merits. The college ordered the removal of flyers promoting Freedom Week in November 2021, a week in which student groups oppose socialism and support conservative causes. Continue reading “Clovis Community College Loses Critical Decision over Free Speech”

The Cuties and the “Younger” Doctrine: Netflix Prevails in Key Federal Ruling Over Controversial Movie

previously wrote a column opposing calls by GOP members for a federal investigation of Netflix and the movie “Cuties” (or Mignonnes). Now, federal Judge Michael Truncale (left) has issued a preliminary injunction in the Eastern District of Texas to stop the prosecution of the company. The move is relatively rare since the Younger abstention doctrine ordinarily shields state prosecutions from such interventions of federal courts. However, the court highlighted deep flaws in the prosecutorial case. Continue reading “The Cuties and the “Younger” Doctrine: Netflix Prevails in Key Federal Ruling Over Controversial Movie”

Are Runoffs Racist? The Media Coverage Ignores the Democratic Purpose of Runoffs

Below is my column in the Hill on the Georgia runoff and how media stories have focused on the runoff as a racist invention. As a long-standing advocate of runoffs, I view the majority requirement for election as not just an enhancement but an embodiment of democratic values. Indeed, with the mantra this election that “democracy is on the ballot,” one would think that both parties would support such runoffs not just in Georgia but throughout the country.

Here is the column:

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“China Was Right”? A Response to Professor Jack Goldsmith

Harvard Professor Jack Goldsmith has penned a column this week contesting my characterization of his past call for limiting free speech on the Internet.  Professor Goldsmith insists that when he and Professor Andrew Woods said “China was right” about such controls, he was not advocating censorship or in any way opposing free speech. I felt that I should respond. There are views that Professor Goldsmith and I share. I regret that we are at loggerheads over free speech, but this disagreement highlights a growing divide among academics and advocates over censorship.

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“Not Ruled by an All-Powerful Executive”: Federal Judge Declares Biden Loan Forgiveness Unconstitutional

We have previously discussed how the Administration stretched the 2003 Higher Education Relief Opportunities for Students (HEROES) to the breaking point as the basis for waiving roughly half a trillion dollars in debt owed to the public in college loans. Now, U.S. District Judge Mark Pittman of the Northern District of Texas has issued an opinion declaring that President Joe Biden violated the Constitution in unilaterally forgiving the debt before the midterm election. Judge Pittman wrote “[i]n this country, we are not ruled by an all-powerful executive with a pen and a phone.” It was former President Barack Obama who defied Congress with unilateral actions and declared that he would go it alone if needed because “I’ve got a pen, and I’ve got a phone.” Continue reading ““Not Ruled by an All-Powerful Executive”: Federal Judge Declares Biden Loan Forgiveness Unconstitutional”

“Giddy” as All Get Out? The Winners and Losers in a Shift in Control of Congress

Below is my column in the New York Post on why the self-described “giddy” White House might want to consider the impact of a loss of one or both houses of Congress. While many are still debating who will prevail in contested districts or states, the shift in power could produce its own “winners and losers.” Indeed, the President may find himself as giddy as all get out if he loses control of the House and possibly the Senate.

Here is the column:

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“[You] are not Included on the List”: Florida Warns the Justice Department on Positioning Federal Monitors Inside Florida Polling Places

I will be doing the coverage tonight on the election for Fox News and election day has already gotten off to a lively start in terms of legal conflicts.  There are already dozens of lawsuits from both parties filed across the country. We previously discussed Fetterman’s recent effort to enlist the firm of controversial Clinton lawyer Marc Elias to get a federal court to strike down a Pennsylvania election provision. Now Florida Gov. Ron DeSantis’ administration has told the Department of Justice that federal Election Day poll monitors are “not permitted” inside polling places under Florida law. That could lead to an interesting conflict between state and federal authority at these polling places. Continue reading ““[You] are not Included on the List”: Florida Warns the Justice Department on Positioning Federal Monitors Inside Florida Polling Places”

Fetterman Turns to Controversial Clinton Lawyer Marc Elias’ Firm to Strike Down Pennsylvania Election Provisions

Democratic Senate candidate John Fetterman and other Democrats have filed a federal lawsuit to strike down parts of Pennsylvania’s election law after the state Supreme Court ruled that mail-in ballots with incorrect dates or no dates should not be counted. Fetterman is challenging the state law on constitutional and federal statutes. He has turned to a controversial former lawyer for Hillary Clinton to seek to strike down the provision.

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