Category: Constitutional Law

Federal Judge Suggests Abortion May Be Protected Under 13th Amendment’s Ban on Involuntary Servitude

Judge Colleen Kollar-Kotelly in the District Court for the District of Columbia has caused a bit of a stir after a hearing in a criminal case where she called for briefing on the alternative grounds for the right to an abortion. At the hearing, Judge Kollar-Kotelly suggested that the Thirteenth Amendment’s ban on involuntary servitude could be used to guarantee a women’s right to an abortion notwithstanding the Court’s recent opinion in Dobbs v. Jackson Women’s Health Organization. The court stressed that the decision that there is no federal constitutional right to an abortion was based on the 14th Amendment, but was silent on the 13th Amendment or other grounds. The problem is that silence may be the most charitable response to this highly dubious theory, which has been bantered about in academic circles for years. The theory runs against the text, history, and case law of the Thirteenth Amendment.

Continue reading “Federal Judge Suggests Abortion May Be Protected Under 13th Amendment’s Ban on Involuntary Servitude”

Victim’s Family in the University of Idaho Murders Appeals Gag Order

The family of University of Idaho stabbing victim Kaylee Goncalves is appealing a gag order imposed upon them and others in the case against suspected killer, Bryan Kohberger. That appeal is supported by media organizations. As a long-standing critic of these gag orders on free speech grounds, it should come as no surprise that I believe that this order should be viewed as unconstitutionally vague and overbroad. However, courts have steadily increased the scope of these orders despite the curtailment of First Amendment rights. Continue reading “Victim’s Family in the University of Idaho Murders Appeals Gag Order”

Congress is Set to Expose What May be the Largest Censorship System in U.S. History

Below is my column in the Hill on the first hearings this week to be held by the Select Subcommittee on the Weaponization of the Federal Government. It could be one of the most consequential investigations for free speech in decades if it pulls back the curtain on government censorship programs. After the historic release of the Twitter Files by Elon Musk, questions remain on any similar coordination with other social media companies with federal agencies like the FBI to target views considered “disinformation” or “misinformation.”

Here is the column: Continue reading “Congress is Set to Expose What May be the Largest Censorship System in U.S. History”

“The Framers Weren’t Perfect, but They Weren’t Fools”: Biden Administration Loses Another Gun Rights Case

We recently discussed the ruling of the United States Court of Appeals for the Fifth Circuit striking down a ban on gun ownership by individuals accused of domestic abuse. Now, U.S. District Judge Patrick Wyrick in Oklahoma City dismissed an indictment against Jared Michael Harrison for violating a federal law that makes it illegal for “unlawful users or addicts of controlled substances” to possess firearms. It is only the latest such loss for the Justice Department as the Biden Administration pushes sweeping rationales for limiting Second Amendment rights in the wake of last year’s ruling in New York State Rifle & Pistol Association v. Bruen.

Continue reading ““The Framers Weren’t Perfect, but They Weren’t Fools”: Biden Administration Loses Another Gun Rights Case”

Bruen 2.0? Fifth Circuit Rules Against Biden Administration on Barring Gun Possession in Domestic Violence Case

There is a major ruling this week in the United States Court of Appeals for the Fifth Circuit where a three-judge panel ruled unanimously in United States v. Rahimi that the federal bar on gun possession for individuals under a domestic violence restraining order violates the Second Amendment. The opinion is most notable for its exploration of the historical analogues supporting the rule, as required under New York State Rifle & Pistol Association, Inc. v. Bruen. The case also relied on a dissenting opinion in an appellate case, Kanter v. Barr, by then Judge Amy Coney Barrett, which I discussed during her nomination.

Continue reading “Bruen 2.0? Fifth Circuit Rules Against Biden Administration on Barring Gun Possession in Domestic Violence Case”

Masterpiece Cakeshop Loses Appeal Over Gender Transition Cake

Jack Phillip, the Colorado baker who brought the challenge in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission has again lost an appeal in Colorado state court. After the Supreme Court effectively punted on the issue of his free speech and free exercise challenges to the Colorado Anti-Discrimination Act (“CADA”), which protects against the denial of service in a place of public accommodation based on one’s identity. After the 2018 decision, Phillip faced additional demands including the creation of a gender transitioning cake. The Colorado Court of Appeals ruled on Thursday that the refusal to make the cake requested by Autumn Scardina did not constitute free speech. Continue reading “Masterpiece Cakeshop Loses Appeal Over Gender Transition Cake”

Court Enjoins California’s Bar on Doctors Giving “False Information” on Covid

With the recent passage of AB 2098, California took a highly controversial step in barring doctors from offering “false information” on Covid-19 and related subjects. The law is an extension of Democratic efforts to block  or censor “misinformation” and “disinformation” in society from social media to medicine. However, this effort involves direct government action. As will come as little surprise to many on this blog, I opposed the measure as unconstitutionally vague and a threat to free speech. Nevertheless, Judge Fred Slaughter (C.D. Cal.) in McDonald v. Lawson held that this statute was likely constitutional and rejected a motion for a preliminary injunction. Now, however Judge William Shubb (E.D. Cal.) has reached the opposite conclusion in Hoeg v. Newsom, granting an injunction. Continue reading “Court Enjoins California’s Bar on Doctors Giving “False Information” on Covid”

No, the Supreme Court Did Not Just Rule Against Gun Rights

Much has been made of the decision of the Supreme Court to reject a request for an injunction of a New York law limiting gun rights.  New York Attorney General Letitia James went public to celebrate the “decision” while saying that the “gun safety laws help save lives, and keep our state safer.” In reality, there is less than meets the eye in this action . . . far less. There are ample reasons for the Court to deny in motion even if the majority views the underlying law as likely unconstitutional. The celebrations, therefore, may be a tad premature. Continue reading “No, the Supreme Court Did Not Just Rule Against Gun Rights”

House Bill Would Criminalize Social Media Postings Supporting “White Supremacy” or “Replacement Theory”

The anti-free speech movement in the United States continues to grow with alarming speed among writers, journalists, academics, and most importantly Democratic members of Congress. Members now openly call for censorship and the manipulation of what citizens see and read. Yet, even in this environment, a recent proposed by Rep. Sheila Jackson Lee (D., Tx.) is a menacing standout. Jackson has introduced a bill that is an almost impenetrable word salad of convoluted provisions. However, what is clear (perhaps the only clear thing) is that the “Leading Against White Supremacy Act of 2023” would gut the First Amendment and create effective thought crimes. Continue reading “House Bill Would Criminalize Social Media Postings Supporting “White Supremacy” or “Replacement Theory””

Supreme Court Takes Major Religion Case: Postal Worker Asks Court to Toss Long-Standing Test for Religious Accommodation

The Supreme Court has granted certiorari in a potentially major case on the free exercise of religion.  Groff v. DeJoy involves evangelical Christian postal worker, Gerald Groff, who alleges that the the U.S. Postal Service (USPS) forced him out of his job when he refused to work on Sundays due to his faith. The case could either overturn or reaffirm the earlier ruling in TWA v. Hardison, which stated that employers need not offer religious accommodation if doing so would cause an “undue hardship” to the business. Continue reading “Supreme Court Takes Major Religion Case: Postal Worker Asks Court to Toss Long-Standing Test for Religious Accommodation”

Emory Law Professor Denounces the Late Antonin Scalia as “Basically a Klansman”

In the age of rage, it often seems that the most rageful reign supreme. That appears to be the case of Emory law professor, Darren Hutchinson, who has claimed that the late Supreme Court Justice Antonin Scalia was “basically a Klansman.”  The disgraceful attack was met by silence from most law professors despite the fact that Hutchinson’s support for the claim is breathtakingly off-base and would mean that a majority of the Court in 1986 were basically KKK members. Continue reading “Emory Law Professor Denounces the Late Antonin Scalia as “Basically a Klansman””

Set for a Supreme Showdown? The Fifth Circuit Rejects Bump Stock Ban In Contrast to Other Circuits

The United States Court of Appeals for the Fifth Circuit has handed down a major opinion in Cargill v. Garland, No. 20-51016, ruling 13-3 that the ATF ban on bump stocks is unlawful. The en banc decision found that a bump stock may be many things but it is not a machine gun. Continue reading “Set for a Supreme Showdown? The Fifth Circuit Rejects Bump Stock Ban In Contrast to Other Circuits”

“We Don’t Do This”: Adam Schiff and the Underbelly of American Censorship

Below is my column in the Hill on the recent disclosure of efforts by Rep. Adam Schiff (D., Cal.) to pressure Twitter to censor critics, including a columnist. This effort occurred shortly after Schiff’s office objected to one of my columns accusing him of pressuring social media companies to censor those with opposing views. While publicly denying that he supports censorship, Schiff was secretly pressuring Twitter to censor an array of critics.

Here is the column:

Continue reading ““We Don’t Do This”: Adam Schiff and the Underbelly of American Censorship”

Ninth Circuit Rules That an Advisory Board Member Can Be Fired Over Antifa Association

There is an interesting free speech decision out of the United States Court of Appeals for the Ninth Circuit this week. In Lathus v. City of Huntington Beach, a unanimous panel ruled that a member of a municipal advisory board can be fired for her association with Antifa. The opinion is clearly correct on a constitutional level, but there are some troubling elements given the underlying exercise of speech under the First Amendment.

Continue reading “Ninth Circuit Rules That an Advisory Board Member Can Be Fired Over Antifa Association”

Ninth Circuit Rules that Middle School Teacher’s MAGA Hat was Protected Speech

There is a major ruling out of the United States States Court of Appeals for the Ninth Circuit in favor of a middle school science teacher, Eric Dodge, who was barred from wearing a “Make America Great Again” baseball cap and later berated by the principal, Caroline Garrett, as a “racist” and a “homophobe.” The unanimous court ruled that the hat was protected speech under the First Amendment. Continue reading “Ninth Circuit Rules that Middle School Teacher’s MAGA Hat was Protected Speech”

Res ipsa loquitur – The thing itself speaks