Category: Constitutional Law

Constitutional Law, Politics

Swalwell Laments Absence of A Single Reference To “Women” . . . In Constitution Without Single Reference To “Men”

I recently wrote about the announcement by Democratic presidential candidate Eric Swalwell that he would only consider women for vice president — refusing to consider a man regardless of his credentials for the second highest position in the country. Now Swalwell has publicly lamented that the United States Constitutional does not have a single reference to “women” as an “unacceptable” exclusion of women. Swalwell appears to have dismissed the fact that “men” is also absent to the document which refers to “people” and “person.” Sometimes it is as hard to find a noun in a constitution as it is a breakout issue in an election.

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Constitutional Law, Criminal law, Free Speech, International, Politics, Society

Israeli Ambassador Calls For The Criminalization of Antisemitic Speech

In the aftermath of another tragic shooting at another synagogue, Israel’s Ambassador to the United Nations Danny Danon has again called for the criminalization of antisemitic speech. I have previously written about such international efforts to criminalize speech, including a proposal supported by the Obama Administration. The implications of such laws for free speech are easy to dismiss amidst the sorrow of another attack. However, the free speech community must remain firm that free speech is not the cause of hate, it is solution to hate.

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Bizarre, Constitutional Law, Politics

Alabama Rep: “Some Kids Are Unwanted, So You Kill Them Now Or You Kill Them Later.”

The Alabama House of Representatives passed a bill designed to test the new conservative majority on the Supreme Court on the issue of abortion. The bill would ban abortion with the sole exception for protecting the life of or health of the mother. The bill is clearly unconstitutional under cases after Roe v. Wade but that is the point. Members want to force a new review of the fundamental question of Roe v. Wade. They could not have asked for more help from Alabama State Rep. John Rogers (D) who opposed the bill with a shocking statement that left many speechless: “Some kids are unwanted, so you kill them now or you kill them later. You bring them in the world unwanted, unloved, you send them to the electric chair. So, you kill them now or you kill them later.” The bill passed 74-3.

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Columns, Congress, Constitutional Law, Criminal law, Politics

The Black Jersey: How Trump And Congress Are Competing For Last Place

Below is my column in The Hill newspaper on a curious aspect to all of the posturing taking place in Washington. Putting aside the bluster on both sides, there is strange alliance coalescing between the Democratic Leadership and the White House in running out the clock for impeachment. The only essential element is that they do not look like they are playing for time. Both sides derive political benefit from stirring up their bases with impeachment talk but neither side actually wants to see an impeachment. The rest is classic D.C. kabuki.

Here is the column:

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Columns, Constitutional Law, Politics, Society

No Men Need Apply: Democrats’ Pledges To Bar Male Running Mates Raise Discrimination Concerns

Below is my column in The Hill newspaper on the expanding number of Democratic presidential candidates pledging to choose a woman as a running mate. What is striking is how these pledges have not even warranted a question in coverage over the propriety of such pledges since they would bar any males regardless of their qualifications to lead the nation. It raises an interesting conflict between the political and legal realms in stating such threshold conditions. What would be strictly forbidden for any business or agency or school is permissible in politics.

Here is the column:

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Constitutional Law, International, Politics, Society

Brunei: Please Show Tolerance Over Our Stoning Gays To Death
Emblem of Brunei

With Saudi Arabia facing global outcry for execution of gays and display of crucified prisoners, Brunei is facing its own opposition movement over the adoption of Sharia law (including the stoning of adulterers and gays). In a remarkable act of hubris, Brunei is complaining over the lack of “tolerance’ for its intolerance for gays and others.

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Constitutional Law, Criminal law, Environment, Justice

WA Appeals Court Allows Necessity Defense For Alleged Vandal In Shutting Down Pipeline As Environmental Protest

By Darren Smith, Weekend Contributor

I have been critical of the notion that a defendant may not always be permitted the opportunity to present evidence in their defense, especially the affirmative defenses of necessity and self-defense.  Yet in a case recently before the Washington State Court of Appeals, Division One, The Court held that in a particular case, a defendant charged in shutting down an oil pipeline to draw attention to environmental hazards posed by such industry–he is entitled to argue before the court his actions were necessary to protect the environment and common good of the people. 

While this case received nearly no attention in the recent media, the effects of this ruling can be both of benefit to the defendant and the environmental protection cause, but could also open some doors to those seeking to excuse criminal behavior using specious necessity claims.

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Constitutional Law, Courts, Society

Chalk One Up For The Fourth Amendment: Court Rules Parking Enforcement Officers Are Trespassing On Tires

In a surprising decision, the United States Court of Appeals for the Sixth Circuit ruled that the little chalk mark placed on your tire by parking enforcement officers is a violation of your constitutional rights. The Sixth Circuit describes Alison Taylor as a “frequent recipient of parking tickets” who challenged the practice as a warrantless trespass by the government and won under an extension of the Supreme Court’s decision in United States v. Jones, 565 U.S. 400 (2012), a case barring the placement of GPS devices on cars. Whether the Supreme Court would agree with the extension (or consider this a de minimus trespass) is a good question.

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Congress, Constitutional Law, Politics

Democratic Leadership: Trump Should Be Impeached But . . .

Rep. Adam Schiff, the head of the House Intelligence Committee, maintained the curious line of the Democratic leadership this weekend in declaring Trump’s conduct as more serious than Nixon but trying to dampen demands for impeachment. I have written for the last year that the calls for impeachment leading to the midterm elections as a transparent bait-and-switch in the making. As made clear by Speaker Nancy Pelosi, impeachment is not on their “agenda.” Indeed, it is doubtful that the leadership ever wanted to impeach Trump. However, they must look like they want to impeach so Schiff and others are just blaming the expected opposition by Republicans as relieving them of the need to impeach. It doesn’t. While I think this would be a difficult impeachment case given the mixed and incomplete findings of Robert Mueller, that has nothing to do with Schiff and others fulfilling their oaths if they believe impeachable conduct has occurred. Nixon was certain to be impeached when he resigned and Schiff is saying that Trump’s conduct is “far worse.”

The line was apparent last night when Speaker Nancy Pelosi fought back members demanding impeachment proceedings and insisted that they would just continue to investigate out of fear of possible political backlash.

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Constitutional Law, Criminal law, Free Speech, International

France Launches Investigation Into Protesters Insulting Police

We have previously discussed the alarming rollback on free speech rights in the West, particularly in France (here and here and here and here and here and here and here). Much of this trend is tied to the expansion of hate speech and non-discrimination laws. We have seen comedians targeted with such court orders under this expanding and worrisome trend. (here and here). The insatiable appetite for speech criminalization and regulation was apparent this week. The government continues to struggle to deal with the “yellow vest” protests in Paris, but it has now opened a criminal investigation into protesters who yelled that police should commit suicide. Despite being treated as clearly protected political speech in the United States, such protest chants will be charged as crimes in France where free speech is being eradicated under a variety of speech codes and criminal provisions.

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Columns, Congress, Constitutional Law, Criminal law

Mueller’s Mess On Intent Leaves Democrats In A Muddle On Impeachment

Below is my column in The Hill newspaper on a missing element in the Mueller report not just for obstruction but impeachment: intent. As I discuss, I am still baffled by the logic of Mueller in not reaching a conclusion on obstruction. It simply makes no sense given his actions on collusion and the ultimate rendering of a decision by Main Justice on obstruction. While the Justice Department (wrongly) maintains that a sitting president cannot be indicted, there is no bar on finding probable cause to believe that a president has committed a crime.

Here is the column:

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Academics, Congress, Constitutional Law

Turley To Speak On Trump Border Emergency Order At National Constitution Center

On Monday, I will be traveling to Philadelphia to debate National Review editor Rich Lowry on President Donald Trump’s emergency declaration to build the wall on the Southern border. I have previously testified and written on the subject. Jeffrey Rosen, president and CEO of the National Constitution Center, will moderate the debate to be held 6:30 – 7:30 p.m at the National Constitution Center.

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Columns, Congress, Constitutional Law, Criminal law, Free Speech, International, Lawyering, Media, Politics, Society

Roughly 300 Years Later, Is Julian Assange The New John Peter Zenger?

Below is my column in the BBC on the historical and potential legal significance of the prosecution of WikiLeaks founder Julian Assange. Much of the prosecution could turn on whether Assange is a journalist. Notably, Assange just received a European journalism award from the European parliamentarians. Assange is this year’s recipient of the 2019 GUE/NGL Award for Journalists, Whistleblowers & Defenders of the Right to Information.

In the meantime, there are some interesting comparison between the Assange and Zenger cases in the long-standing debate over what constitutes press freedoms.

Here is the column:

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Columns, Congress, Constitutional Law, Courts, Free Speech, International, Lawyering, Media

“He Is Our Property”: The D.C. Establishment Awaits Assange With A Glee And Grudge

Below is my column in USA Today on the Julian Assange arrest. We are still learning more about Assange’s confinement, including bizarre accounts of Assange’s conduct in the Ecaudorian Embassy in London. The key question will be the highly generalized allegation in the single count indictment from the Justice Department that Assange played an active role in the hacking. That would cross the Rubicon for journalists and make this an even more difficult case for those worried about free speech and the free press. Yet, the indictment is strikingly silent on details or an assertion that Assange actually used the password. We will likely learn more as the May hearing approaches for his extradition.

Here is the column:

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Columns, Congress, Constitutional Law, Courts, Criminal law

The Trolling Of Bill Barr: How Politics Has Outstripped Meaning

Below is my column in the Hill newspaper on the rising attacks against Attorney General Bill Barr even before the redacted report has been released. Many in the media has notably omitted critical facts like Deputy Attorney General Rod Rosenstein helped write the summary and also concluded that there was not case for criminal obstruction to be made against President Trump. There may be grounds to criticize Barr for his redactions, but critics omit the fact that Robert Mueller’s office is assisting in those redactions. I have a long relationship with Barr and testified in favor of his confirmation. However, I will not hesitate to criticize his actions when it is warranted. For example, I do not approve of the Justice Department refusing to defend the Affordable Care Act — disregarding the function of the Department to defend duly passed laws. Yet, Barr’s conduct with regard to the report and thus far been open and consistent with what he said in this confirmation hearing.

Here is the column:

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