Category: Constitutional Law

Protests and “First Amendment Exceptionalism”: A Response to Professor Richard Epstein

Recently, Professor Richard Epstein wrote a column in favor of prosecuting protesters targeting Supreme Court justices and criticizing what he calls  “First Amendment exceptionalism.” He specifically cites my writings as an example of those with extreme views of free speech. While I disagree with Professor Epstein on this issue, it is an interesting and insightful publication that I recommend to our readers as they develop their own views on this admittedly difficult issue. Continue reading “Protests and “First Amendment Exceptionalism”: A Response to Professor Richard Epstein”

The 10-year-old Rape Victim’s Abortion Leaves a Number of Glaring Questions

Below is my column on the case of the ten-year-old rape victim who allegedly was taken to Indiana because an abortion was barred in Ohio. (A shorter, edited version of this column ran in the New York Post). There is a Fox News report that it was able to confirm an abortion involving a ten-year-old girl in Indiana but could not confirm the other claims. Fox is also reporting that a HIPAA complaint has been filed against Dr. Caitlin Bernard. There remain, however, questions as to why the child had to leave Ohio, which has exceptions that would apply to the case. This may reflect confusion among these doctors, but the law seems clear on the available exceptions. There is also the question of what happened to this child and whether a police report was filed. There may have been such a report. It should not violate HIPPA or other laws to confirm that a report was filed and the victim has been protected by authorities.

Here is the original column: Continue reading “The 10-year-old Rape Victim’s Abortion Leaves a Number of Glaring Questions”

Georgetown Professor Denounces “Lawless” and “Actively Rogue” Justices, Lawyers, and Law Professors

In a series of tweets this week, Professor Heidi Li Feldman has denounced “lawless” and “actively rogue” Supreme Court justices and professors who disagree with her views on the Constitution. She has called for “genuine” law professors not to fall “into complicity with lawlessness” in teaching such subjects. It is the latest voice of intolerance and orthodoxy at a leading law school.

The Parade of Horribles: A Democratic Talking Point on Dobbs is Dangerous Disinformation

Below is today’s column on common talking point among Democratic members and pundits on how the recent Dobbs decision will present a barrier to women seeking treatment for ectopic pregnancies. It is not only legally and medically false but it is dangerous if women actually believe what they are hearing or reading from these figures. There are ample grounds for pro-choice advocates to oppose the decision without spreading alarm over a danger that does not exist.

Here is the column:

Continue reading “The Parade of Horribles: A Democratic Talking Point on Dobbs is Dangerous Disinformation”

Invasion or Evasion? Crisis at the Border is a Political, not a Constitutional Problem

Below is my column in the Hill on the effort to declare an “invasion” along the Texas border to allow the state to take greater control along the border to stem the flow of illegal immigrants. This week, Texas Gov. Greg Abbott signed an order allowing Texas law enforcement to return illegal immigrants apprehended in the state back to the U.S. border. The Biden Administration has already indicated that it will oppose such efforts. Whether such state enforcement is constitutional will be hashed out in the courts in light of the 2012 decision in Arizona v. United States.  Texas can legitimately raise the obligations of the federal government to protect the border under Article IV and even refer to this influx as an invasion in the colloquial sense. However, the argument that it constitutes an invasion in the constitutional sense would not be a compelling argument in federal court.

Here is the column:

Continue reading “Invasion or Evasion? Crisis at the Border is a Political, not a Constitutional Problem”

Harvard Journal Publishes Turley Free Speech Study

I am happy to report that my law review article in the Harvard Journal of Law and Public Policy is now out in print. The article entitled “Harm and Hegemony: The Decline of Free Speech in the United States,” explores the anti-free speech movement in the United States and the increasingly common claim that free speech itself is harmful. I wanted to thank the journal editors and staff for their tireless efforts to bring this rather lengthy work to print. It was a great pleasure to work with each and every one of the law students who contributed to the editing and sourcing of this law review.

Continue reading “Harvard Journal Publishes Turley Free Speech Study”

Doubting Thomas: Why The Failure to Cancel a Supreme Court Justice May Not Mean Much for Other “Contingent” Faculty

Below is my column in the New York Post on the recent cancel campaign targeting Associate Justice Clarence Thomas. It was always doubtful that a law school would take the unprecedented step of barring a sitting Supreme Court justice. However, the decision to stand with free speech and academic freedom was still a refreshing departure from the trend toward increasing viewpoint intolerance and orthodoxy. The problem is that most targets of these campaigns have neither the status nor the day job of a Supreme Court justice. Most do not have the option of securing a seat on the Supreme Court to guarantee their free speech and academic freedom. For every Thomas, there are a thousand other “contingency professors” who have little protection or expectation in the current intolerant environment.

Here is the column:

Continue reading “Doubting Thomas: Why The Failure to Cancel a Supreme Court Justice May Not Mean Much for Other “Contingent” Faculty”

University of Idaho Loses Major Free Speech and Religious Freedom Case

The University of Idaho has lost a major free speech and religious freedom case after a federal judge ruled in favor of three Christian law students at the College of Law. Judge David Nye granted a preliminary injunction in favor of the students who objected to “no contact orders” issued against them. A faculty member, Professor Richard Seamon, was also made the subject of such an order. Continue reading “University of Idaho Loses Major Free Speech and Religious Freedom Case”

Harvard Poll: 72 Percent Oppose Abortion Beyond 15-Week

I previously wrote about how most Americans are not aligned by the most extreme views of both parties on abortion. Many Democratic leaders have been speaking of absolute abortion rights, as reflected in states like Colorado which recognize the right to abortion until the moment of birth at nine months. Many Republican leaders have been speaking of absolute or near absolute bans on abortion, as reflected in states like Arkansas with only limited exceptions for the life of the mother. Now a Harvard poll reaffirms earlier polling that shows most Americans embrace views closer to Mississippi than Michigan on abortion. Indeed, while Democratic leaders denounced the Mississippi law setting a 15-week limit on abortion, 72 percent of those polled opposed abortion generally after that limit. Continue reading “Harvard Poll: 72 Percent Oppose Abortion Beyond 15-Week”

Georgetown Law Professor Rosa Brooks: The Problem is the Constitution Which Enslaves Us

Georgetown University Law School Professor Rosa Brooks has drawn accolades and criticism for her appearance on MSNBC’s “The ReidOut” after declaring that Americans are “slaves” to the U.S. Constitution and that the Constitution itself is now the problem for the country. Continue reading “Georgetown Law Professor Rosa Brooks: The Problem is the Constitution Which Enslaves Us”

Illinois Gov. Pritzker Calls for More Gun Limits After Highland Shootings

Illinois Gov. J.B. Pritzker (D) and others responded to the massacre in Highland Park, Illinois with calls for more gun limits and bans. Pritzker repeated a dubious musket argument but also ignored that Illinois has some of the most stringent gun laws in the country, including bans on assault weapons and a red flag law. The media is reporting that Robert “Bobby” Crimo III, an aspiring rapper, is a person “known to law enforcement.” His postings reveal highly disturbing videos and bizarre images, including violent references. Continue reading “Illinois Gov. Pritzker Calls for More Gun Limits After Highland Shootings”

HAPPY FOURTH OF JULY!!!

Happy Independence Day!

The Fourth is one of my favorite holidays as an opportunity for all of us to celebrate our common article of faith in the independence of a nation committed to freedom and individual rights.  Despite protests opposing the Fourth, the defacing of churches, and calls for boycotts, this country remains the greatest hope for freedom in the world and these protests reaffirm those rights.  We celebrate the ideals of the people we strive to be — and the millions who came before us. With the adoption of the Declaration of Independence, the Framers placed themselves and their families at the greatest peril for the principles of self determination and democratic rule. The American Republic was always meant to be a work in progress.  Yet, our Constitution created the most successful and stable constitutional system in the history of the world. Continue reading “HAPPY FOURTH OF JULY!!!”

So You Say You Want a Revolution? You Can Count Me Out

Below is my column in the Hill on overheated rhetoric of revolution that seems to have overtaken our public discourse, particularly with regard to the Supreme Court. This week, Arizona Democrats pushed a “F–k the Fourth Event” and told people to “Bring comfortable shoes, water, lawn chairs, posters, and your anger.”  It appears that the open secret is that we are “always angry” in the new Hulk-like smash politics. Continue reading “So You Say You Want a Revolution? You Can Count Me Out”

The Supreme Court Marshal Calls on States To Crackdown on Protesters

In a rare move, Supreme Court Marshal Gail Curley has sent letters to Maryland Gov. Larry Hogan, Montgomery County Executive Marc Elrich, and Virginia Gov. Glenn Youngkin demanding that authorities put an end to picketing and “threatening activity” outside the homes of SCOTUS justices. The letter seeks to use state laws to achieve what the Justice Department has clearly rejected under federal law. If the letter prompts arrests, we could see a major free speech challenge in the courts. The timing of the letter, however, is particularly interesting and may reflect a recognition of the limits of the federal law.

Continue reading “The Supreme Court Marshal Calls on States To Crackdown on Protesters”

Texas Supreme Court Upholds State Law Banning Abortions

Continue reading “Texas Supreme Court Upholds State Law Banning Abortions”