Category: Constitutional Law

The Kavanaugh Conspiracy: Demands To Reopen Investigation Ignore Both Key Facts and Law

Below is my column in The Hill newspaper on the renewed calls for the investigation of Justice Brett Kavanaugh.  The often over-heated coverage however omits key factual and legal context for a new report.

Here is the column:

Continue reading “The Kavanaugh Conspiracy: Demands To Reopen Investigation Ignore Both Key Facts and Law”

Could The Arrest of FBI Agent Undermine The Whitmer Kidnapping Case?

The arrest of an FBI agent would always be newsworthy. Richard Trask of Kalamazoo has gone from making cases to being a case for prosecution. He  faces up to ten years for allegedly assaulting his wife with intent to do great bodily harm. However, Trask was also key to the arrest of men in the alleged plot to kidnap Michigan Gov. Gretchen Whitmer. Those defendants — and some observers — have criticized the FBI for entrapping the men by pushing them into the conspiracy and facilitating their efforts.  The question is whether Trask’s arrest could undermine those cases.  The answer is yes. Continue reading “Could The Arrest of FBI Agent Undermine The Whitmer Kidnapping Case?”

Half Baked or The American Dream: Can States Ban Ben & Jerry’s Ice Cream?

The calls to boycott Ben & Jerry’s ice cream in states like Texas, Florida,and Oklahoma will give citizens the common choice between something Half Baked and the American Dream.  The American Dream for many is based on notions the free market and free speech. Government boycotts run against the grain of such principles but many are calling for barring sales of the ice cream after it announced it will no longer sell ice cream in “Occupied Palestinian Territory.”  Politicians have suggested barring sales within the state but there is still a lack of specificity in such plans. Indeed, some of these laws do not seem to support an actual boycott as opposed to a divestment in “listed companies.” Indeed, I am a bit confused by the disconnect between the rhetoric and the reality of these laws in calls for statewide boycotts.

Continue reading “Half Baked or The American Dream: Can States Ban Ben & Jerry’s Ice Cream?”

“No Safe Haven”: University of Iowa Again Found To Be Discriminating Against Religious Groups

A few months ago, we discussed the ruling against the University of Iowa in Bus. Leaders in Christ v. Univ. of Iowa, 991 F.3d 969 (8th Cir. 2021) where the court held that we held that the law was clearly established that the University could not engage in viewpoint discrimination involving a Christian club. In a July 16 decision, the Eighth Circuit affirmed that the University of Iowa administrators violated the First Amendment rights of a second group, the InterVarsity Graduate Christian Fellowship. While the group allowed anyone to join, it required its leaders to adhere to core Christian values.  It is another major victory for religious rights and their counsel the nonprofit Becket Fund for Religious Liberty. It is also a serious rebuke of the University which defiantly continued to discriminate at not just great cost to these students but the university as a whole.

Continue reading ““No Safe Haven”: University of Iowa Again Found To Be Discriminating Against Religious Groups”

New Jersey Woman Triggers Free Speech Case With Profane Anti-Biden Signage

I have previously lamented that we appear to be a nation addicted to rage. There is no greater example than Andrea Dick, a Trump supporter who has adorned her yard in Roselle, Park New Jersey with profane attacks on President Joe Biden. The signage led to a complaint and ultimately a ruling by Judge Gary A. Bundy of Roselle Park Municipal Court that she must remove the offending signs. One of the burdens of being a free speech advocate is that you often must defend the speech of people with whom you disagree, even despise. This is one such case. Dick’s signage is juvenile and highly offensive. However, it is also free speech. Judge Bundy is entirely right in his expression of disgust but, in my view, entirely wrong in his analysis of the First Amendment. Continue reading “New Jersey Woman Triggers Free Speech Case With Profane Anti-Biden Signage”

White House Communications Director: Big Tech Should be “Accountable” for Vaccine “Misinformation”

There was an unnerving conversation between between Biden White House Communications Director Kate Bedingfield and MSNBC host Mika Brzezinski that shows how much ground has been lost on principles of free speech. In an exchange on Morning Joe, Brzezinski asks Bedingfield why Biden has not completed his promised review of Section 230 and create an avenue to held social media companies “accountable in a real way” for spreading “misinformation” about vaccines. Brzezinski ignores not only the constitutional implications of such a move but ignores how such an approach would eviscerate free speech and free press rights.  Equally chilling is the response. Bedingfield agrees and assured Brzezinski that the Biden Administration believes these companies should be held accountable for allowing others to voice doubts or dissenting opinions on such questions.

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The Shadow State: Embracing Corporations As Surrogates For Government Action

Below is my column on the expanding role of corporations as surrogates for the federal government. The White House is openly calling for greater corporate action to address censorship, health care, and other issues.  That call is being supported by a growing list of Democratic members, journalists, and academics who have discovered the advantages of shared corporate governance.

Here is the column: Continue reading “The Shadow State: Embracing Corporations As Surrogates For Government Action”

Fear Free Speech: Biden Denounces Big Tech as “Killing People” By Not Censoring Speech

President Joe Biden slammed Big Tech companies this week for “killing people” by failing to engage in even greater censorship of free speech on issues related to the pandemic. It was a surprising condemnation of companies who have been loyal allies of Biden, including killing stories embarrassing to his family like the Hunter Biden laptop scandal before the election. It also has censored stories questioning his victory in 2020. Nevertheless, Biden denounced the range of uncensored free speech as the cause of death for many — the ultimate anti-free speech trope for those seeking to convince people to embrace their own censorship. Continue reading “Fear Free Speech: Biden Denounces Big Tech as “Killing People” By Not Censoring Speech”

YouTube Fined By Germany For Removing Pandemic Protest Video

Perhaps the most chilling aspect of the rising censorship in the United States is that countries like Germany (with histories of antagonism toward free speech) have criticized the trend as dangerous and wrong. While Democratic leaders and media figures have supported censorship, figures like Angela Merkel (long criticized for her attacks on free speech) have criticized moves like Twitter banning Trump. Now, Germany has fined YouTube for something that many on the left in the United States have supported: the removal of a video contesting Covid-19 limits. Continue reading “YouTube Fined By Germany For Removing Pandemic Protest Video”

The Illusion of Action: Cuomo’s New Gun Manufacturer Liability Law is a Colossal Misfire

Below is my column in The Hill newspaper on the declaration of a gun violence emergency by New York Gov. Andrew Cuomo.  The centerpiece of Cuomo’s plan is a new law to allow victims of gun violence to sue gun manufacturers under a nuisance theory. If it sounds familiar that is because it is painfully familiar.  It has failed repeatedly in various states, including New York. It is doubtful that Cuomo truly believes that the law will make a significant, if any, impact on gun violence. However, that is not the point. The point is the appearance of action, not the ultimate result of such action.

Here is the column: Continue reading “The Illusion of Action: Cuomo’s New Gun Manufacturer Liability Law is a Colossal Misfire”

The Rising Generation of Censors: Law Schools are the Latest Battleground Over Free Speech

Below is my column in The Hill on the rise of a generation of censors with attacks on both academic freedom and free speech throughout our educational system. This trend has reached law schools, which is ominous since these students are the future judges and lawyers who are expected to defend these core principles.

Here is the column: Continue reading “The Rising Generation of Censors: Law Schools are the Latest Battleground Over Free Speech”

Justice or Just Deserts? Trump, Cosby and Georgia Cases Show Rising Cost of Political Litigation

Below is my column in the Hill on a series of cases that appear propelled by political rather than legal considerations.  The costs to the legal system, the public, or victims in such cases are often overlooked but they are considerable.

Here is the column:

Continue reading “Justice or Just Deserts? Trump, Cosby and Georgia Cases Show Rising Cost of Political Litigation”

Georgia On My Mind: The Biden Administration Doubles Down on New Challenge Despite Victory of Arizona In Voting Case

Below is my column in USA Today on the Supreme Court’s rejection of the challenge to the Arizona’s new election rules. The 6-3 decision undermines the claims raised in the new challenge to Georgia’s election law.  Indeed, the Biden Administration is pursuing a new challenge that could result in a sweeping loss under the Voting Rights Act.

Here is the column:

Continue reading “Georgia On My Mind: The Biden Administration Doubles Down on New Challenge Despite Victory of Arizona In Voting Case”

Supreme Court Strikes Down California’s Donor Disclosure Law

In the final decision of the Supreme Court before its summer break, Chief Justice John Roberts delivered a major ruling striking down the California law requiring the disclosure of donors for charities. The law attacked so-called “dark money” but the Court ruled that the state was curtailing free speech in a 6-3 decision. Continue reading “Supreme Court Strikes Down California’s Donor Disclosure Law”

Tenth Circuit Rules Against The University of Denver In Sex Discrimination Lawsuit

The United States Court of Appeals for the Tenth Circuit has handed down a major ruling in favor of a male student who claimed sexual discrimination in the handling of a sexual assault claim against him. The court ruled that the lower court was wrong in ruling that John Doe had not “provided sufficient evidence for a jury to decide whether the investigation into allegations and subsequent disciplinary action discriminated against him because of his sex.”  The case highlights many of the due process failures that have been discussed on this blog at universities. However, there is an interesting twist in DU’s claim of lawful, self-righteous bias. Continue reading “Tenth Circuit Rules Against The University of Denver In Sex Discrimination Lawsuit”
Res ipsa loquitur – The thing itself speaks