Category: Constitutional Law

Norway Criminalizes Hate Speech Against Transgender People . . . In Private Homes or Conversations

We have previously discussed the alarming rollback on free speech rights in the West, particularly in Europe. The move to criminalize speech has led to an insatiable appetite for new limitations and broader prosecutions. Norway is an example of this headlong plunge into speech controls and crimes in the West. This week the legislature adopted (without even a vote) a new criminal law that punishes people for saying anything deemed hate speech toward transgender people in their own home or private conversations. Continue reading “Norway Criminalizes Hate Speech Against Transgender People . . . In Private Homes or Conversations”

Pilgrim’s Progress: How Thanksgiving Should Be A Celebration Of Nonconformity

Below is my column in The Hill on the attacks on the Pilgrims this Thanksgiving and why they embodied a critical characteristic in our country’s history: nonconformity. Indeed, the first major act that these courageous people did upon their arrival on these shores was the signing of a compact of rights that affirmed:

 

 

“solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid: And by Virtue hereof do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions, and Offices, from time to time, as shall be thought most meet and convenient for the general Good of the Colony; unto which we promise all due Submission and Obedience.”

Here is the column: Continue reading “Pilgrim’s Progress: How Thanksgiving Should Be A Celebration Of Nonconformity”

The Supreme Court Bars Cuomo’s Pandemic Limits On Houses of Worship

The U.S. Supreme Court delivered a surprising blow to pandemic restrictions on house of worship in a late night order barring the enforcement of New York Gov. Andrew Cuomo’s Oct. 6 “Cluster Initiative” limiting attendance at religious services.  Five justices (including newly installed Justice Amy Coney Barrett) blocked the limits while allowing the United States Court of Appeals for the Second Circuit to hear the merits in the case. Notably, Chief Justice John Roberts voted with the liberal justices but only because he felt that the order was not needed since the plaintiffs were not currently subject to the most severe limits. Continue reading “The Supreme Court Bars Cuomo’s Pandemic Limits On Houses of Worship”

The Best Case For A Flynn Pardon May Be The Conduct Of The Court Rather Than The Defendant

President Donald Trump is reportedly considering a pardon for his former National Security Adviser Michael Flynn this week. As someone who has long opposed Trump’s pardons of Trump associates like Roger Stone and  Joe Arpaio, I do not come easily to the idea of pardon for someone like Flynn. However, the strongest case for a pardon for Flynn was not made by his lawyers as much as his judge, the Honorable Emmet Sullivan. Sullivan’s continued controversial actions in the case could be cited as a credible, if not a compelling basis, for a pardon of Flynn. Continue reading “The Best Case For A Flynn Pardon May Be The Conduct Of The Court Rather Than The Defendant”

Barrett Reloaded? A New Third Circuit Decision Could Prove The Perfect Base For A Second Amendment Blowout

The Third Circuit has issued an opinion that has received little attention over the right to bear arms, but it should. The decision in Folajtar v. The Attorney General of the United States may be one of the most perfectly tailored case for major Supreme Court decision. Indeed, the only thing lacking from the 2-1 decision is a mailing label directly to Justice Amy Coney Barrett. In ruling that a non-violent tax conviction can result in the denial of gun ownership, the panel presents a clean case to further define the contours of the individual rights recognized in District of Columbia v. Heller, 554 U.S. 570 (2008). It is also an opportunity that any new justice would relish: after being the lone dissenter on a similar case, Barrett could be the critical vote (and even the author) on the opinion changing the area in line with her prior position.

Continue reading “Barrett Reloaded? A New Third Circuit Decision Could Prove The Perfect Base For A Second Amendment Blowout”

Kentucky Attorney Files Challenge To Kentucky Governor’s Closure OF Religious Schools

There is an interesting fight brewing in Kentucky between Attorney General Daniel Cameron and Gov. Andy Beshear. Cameron has filed in support of a challenge to Beshear’s latest executive order closing religious schools to combat the pandemic. Beshear has correctly cited a major victory recently before the Kentucky Supreme Court — an unanimous decision in favor of his authority to issue pandemic orders. However,  Cameron is seeking a higher standard of review by focusing on religious schools that could change the result. Continue reading “Kentucky Attorney Files Challenge To Kentucky Governor’s Closure OF Religious Schools”

Michigan Attorney General Resumes Threats Of Criminal Prosecution Against Those Alleging Voter Fraud

We have been discussing the use of the criminal code by Michigan Attorney General Dana Nessel (D) to threaten people who post videos on alleged voter fraud or legislators who raise such objections in the state. These threats are coercive and abusive, particularly when targeting opponents of your party who are challenging the victory of your candidate for president. Yet, as shown by a congressman seeking to disbar dozens of Trump lawyers, such threats are popular in today’s rage-filled politics.  So, Nessel continued her threats of prosecution on Monday in warning that a former state senator could be prosecuted for alleging possible voter fraud at a meeting of the Michigan Board of State Canvassers.  So, raising voting fraud at the board overseeing voting is now a possible basis for prosecution in Michigan. Continue reading “Michigan Attorney General Resumes Threats Of Criminal Prosecution Against Those Alleging Voter Fraud”

The Death Star Strategy: Is Trump Contemplating The Ultimate Constitutional Trick Shot?

Below is my column in The Hill on the possibility of contesting electoral certifications by key states. With the adverse ruling in Pennsylvania, the Trump legal team is still pledging new evidence of massive fraud as certifications are completed. The options for the team seem more and more reduced to the ultimate constitutional trick shot in engineering a fight on the floor of Congress.

Here is the column:

Continue reading “The Death Star Strategy: Is Trump Contemplating The Ultimate Constitutional Trick Shot?”

Uncured: Federal Judge Dismisses Trump Challenge In Pennsylvania

On Saturday, U.S. District Court Judge Matthew Brann dismissed the challenge filed by the Trump campaign to stop the certification of the vote in Pennsylvania. The court acknowledged that vote negation may have occurred due to different “curing” rules, but balked at the legal and logical basis for blocking certification of the state electoral votes to remedy to such claims. The scathing order described the argument of Trump counsel Rudy Giuliani as a “Frankenstein monster” composed of disparate parts of different legal claims. Notably, the court did find that the “Individual Plaintiffs have adequately pled that their votes were denied.” However, that island of support is lost in a vast ocean of countervailing and caustic findings by the court. Continue reading “Uncured: Federal Judge Dismisses Trump Challenge In Pennsylvania”

Michigan Legislators Face Calls For Possible Criminal Charges After Meeting With President Trump On Certification

We have been discussing the campaign of The Lincoln Project and others to harass and abuse lawyers who represent the Trump campaign or other parties bringing election challenges. Similar campaigns have targeted election officials who object to counting irregularities.  Now, the Michigan Attorney General and others are suggesting that Republicans who oppose certification or even meet with President Donald Trump on the issue could be criminally investigated or charged. Once again, the media is silent on this clearly abusive use of the criminal code target members of the opposing party in their raising objections under state law.

Continue reading “Michigan Legislators Face Calls For Possible Criminal Charges After Meeting With President Trump On Certification”

No, Whitmer Should Not Be Impeached

I have been highly critical of Gov. Gretchen Whitmer for her misrepresentation of a state supreme court ruling that she violated the state constitution in her pandemic orders, a false account echoed by NBC’s Chuck Todd. However, the move today to impeach Whitmer is wrong for many of the same reasons raised in my testimony against the impeachment of President Donald Trump. Whitmer did violate the Constitution, as have other public officials in other states. However, this was a legal dispute on the scope of her discretion that was resolved by the state courts.  We cannot have impeachment as a type of “no confidence” vote on chief executives.

Continue reading “No, Whitmer Should Not Be Impeached”

Is “Curing” A Colorable Claim Under Equal Protection? [Updated]

#SCOTUS

There is more rage than reason being expressed in the country over election challenges, but there are some interesting legal issues. One is found in Pennsylvania where the Trump campaign is alleging that counties used different approaches to “curing” ballots. The issue brings back memories of Bush v. Gore, 531 U.S. 98 (2000), under equal protection. Notably, while academics have uniformly dismissed this claim, they largely refer not to the claim but to the relief.  The fact is that there does not seem a sufficient number of votes that could change the outcome of the election. The question however is whether there is still a colorable claim of an equal protection violation.  This could come down to the two distinct parts of Bush v. Gore.

Continue reading “Is “Curing” A Colorable Claim Under Equal Protection? [Updated]”

Twitter CEO Admits Censoring The Hunter Biden Story Was “Wrong” . . . Democrats Call For More Censorship

Twitter LogoWe previously discussed the unrelenting drumbeat of censorship on the Internet from Democratic leaders, including President-elect Joe Biden. This growing campaign against free speech is continuing to grow despite the hearing yesterday when Twitter CEO Jack Dorsey that the company wrongly blocked the New York Post story on Hunter Biden’s influence peddling before the election. There was no acknowledgement from the many academics or politicians who supported the action by Twitter. Instead, Democratic senators called for more such censorship. Continue reading “Twitter CEO Admits Censoring The Hunter Biden Story Was “Wrong” . . . Democrats Call For More Censorship”

“All Speech Is Not Equal”: Biden Taps Anti-Free Speech Figure For Transition Lead On Media Agency

For those of us who have been critical of the growing anti-free speech movement in the Democratic Party, the Biden transition team just took an ominous turn.  The New York Post reports that Biden tapped Richard Stengel to take the “team lead” position on the US Agency for Global Media, including Voice of America, the Middle East Broadcasting Networks and Radio Free Europe/Radio Liberty. As I previously addressed in a column, Stengel has been one of the most controversial figures calling for censorship and speech controls. For a president-elect who just called for everyone to “hear each other,” he picked a top aide who wants to silence many.  Since it would be difficult to select a more anti-free speech figure to address government media policy, one has to assume that Biden will continue the onslaught against this core freedom as president.  This is not the first Biden aide to indicate a crackdown on free speech in the new Administration and Biden himself has called for greater censorship on the Internet.

Continue reading ““All Speech Is Not Equal”: Biden Taps Anti-Free Speech Figure For Transition Lead On Media Agency”

The National Urging Plan: Biden Appears To Downgrade His Mask Pledge From A “Mandate” To An “Urging”

We have previously discussed the claim of President-elect Joe Biden that he will impose a nationwide mask mandate. While most of what Biden promised as part of his pandemic plan (like free vaccinations) are already part of the federal plan, Biden insistence that he would impose a nationwide mask mandate was a distinction between the candidates during the campaign. The pledge was questioned by some of us in terms of the federal authority to enforce such a mandate.  Now, Biden is emphasizing the mandate in his transition and his new Chief of Staff Ron Klain seemed to make a considerable qualification last night in an interview with MSNBC’s Lawrence O’Donnell.  Klain is now clarifying that the Biden Administration would fulfill its promise of a national mandate only “where the federal authority extends.” He then added that they would simply “urge” states to follow suit.  That again sounds like what is currently being done by the CDC and what is already required in federal buildings, enclaves, installations, and bases. A presidential urging is a considerable downgrade from a federal mandate. Legally, it is like going from a promise of a moon shot to a promise to visit the local planetarium.  Continue reading “The National Urging Plan: Biden Appears To Downgrade His Mask Pledge From A “Mandate” To An “Urging””

Res ipsa loquitur – The thing itself speaks