Category: Constitutional Law

When the FBI Attacks Critics as “Conspiracy Theorists,” It’s Time to Reform the Bureau

Below is my column in the Hill on the need for a new “Church Committee” to investigate and reform the Federal Bureau of Investigation (FBI) after years of scandals involving alleged political bias. In response to criticism over its role in Twitter’s censorship system, the FBI lashed out against critics as “conspiracy theorists” spreading disinformation. However, it still refuses to supply new information on other companies, beyond Twitter, that it has paid to engage in censorship.

Here is the column: Continue reading “When the FBI Attacks Critics as “Conspiracy Theorists,” It’s Time to Reform the Bureau”

“Why She Had to Go…She Wouldn’t Say”: Movie Renters Allowed to Sue Over Absence of Featured Star

There was an interesting ruling by U.S. District Judge Stephen V. Wilson for the Central District of California last week in Woulfe et al. v. UniversalThe case was brought by Peter Michael Rosza and Conor Woulfe who were aggrieved when they rented the 2019 film “Yesterday” under the assumption that actress Ana de Armas was in the film. The trailer featured de Armas but she was later cut from the film. Judge Wilson ruled that, while such movies and their trailers are exercises of free speech, this is commercial speech that is subject to greater limitations. Wilson is allowing the plaintiffs to proceed to trial in the case over alleged misleading advertising. Many fear that this will change the free-wheeling approach to such trailers, or, as the Beatles said, “Yesterday, love was such an easy game to play Now I need a place to hide away.” Continue reading ““Why She Had to Go…She Wouldn’t Say”: Movie Renters Allowed to Sue Over Absence of Featured Star”

A Case of Hope Over Experience: The J6 Referral Falls Short of a Credible Criminal Case

This week the January 6th Committee voted to make criminal referrals to the Justice Department, including the proposed indictment of former President Donald Trump.  However, the Committee’s splashy finale lacked any substantial new evidence to make a compelling criminal case against former President Donald Trump. The Committee repackaged largely the same evidence that it has previously put forward over the past year. That is not enough. Indeed, the reliance on a new videotape of former Trump aide Hope Hicks seems a case of putting “hope over experience” in the criminal Justice system.

Continue reading “A Case of Hope Over Experience: The J6 Referral Falls Short of a Credible Criminal Case”

Eighth Circuit Upholds Injunction on Rule Requiring Gender Transition Surgeries

In a major decision, the United States Court of Appeals for the Eighth Circuit upheld a lower court on Friday that enjoined the Department of Health and Human Services (HHS) from forcing doctors with conscientious objections to perform gender transition surgeries. The case, Sisters of Mercy v. Becerra, concerns a 2016 rule that religious hospitals may be subject to non-discrimination provisions under the Affordable Care Act and that would require them to perform gender transitions.

Continue reading “Eighth Circuit Upholds Injunction on Rule Requiring Gender Transition Surgeries”

Twitter’s Trust Bust: New Documents Show How “Trust” Executives Misled Congress and the Public

Twitter LogoBelow is my column in the New York Post on the second release of the “Twitter Files.” The new material exposes the company’s system of censorship and suppression of disfavored views.  The documents shatter prior statements of Twitter, including statements made to Congress. As discussed below, there could be legal as well as political ramifications as the House moves forward with the long-delayed investigation of these social media companies.

For years, the “Trust” professionals have insisted that the public should “trust us, we’re Twitter.” Now the public has direct evidence that the company not only engaged in raw, biased censorship but misled them on how Twitter was manipulating the discussion of political issues. Ernest Hemingway said that “The best way to find out if you can trust somebody is to trust them.” That trust in Twitter was clearly misplaced.

Here is the column:

Continue reading “Twitter’s Trust Bust: New Documents Show How “Trust” Executives Misled Congress and the Public”

A Constitutional Mulligan? Trump Calls Again for a “Redo” of the 2020 Election

Last week, many of us expressed alarm over a statement by former President Trump that we might have to “terminate” constitutional rules in light of the release of the Twitter files. He has now denied saying that but repeats that the disclosures should mean that the election is “redone.”  There are no constitutional Mulligans in presidential elections.

Continue reading “A Constitutional Mulligan? Trump Calls Again for a “Redo” of the 2020 Election”

“Fool Me Once . . . ” Why the Public is Not Buying the Latest Media Campaign Against Twitter

Twitter LogoBelow is my column on the media response to the “Twitter Files,” including misleading narratives being repeated across various media platforms. The effort is to assure the public that there is “nothing to see here” but it may backfire. After Twitter employed one of the most extensive censorship systems in history to prevent people from reading opposing views on subjects from Covid to climate change, media figures are now insisting that the public should really not be interested.

The public, however, is not buying it. They are buying Twitter. With users signing up to Twitter in record numbers, a majority supports Musk’s efforts to restore free speech protections and to force greater transparency despite an unrelenting counter campaign in the media. Some of the media claims would meet the very definition of disinformation used by Twitter and its allies previously to censor information and discussions.  Indeed, the Wall Street Journal has noted that the greatest purveyors of disinformation turned out to be former intelligence officials who worked to kill the story before the election as “Russian disinformation.” The public seems to be following the old adage “Fool me once, shame on you; fool me twice, shame on me.”

Here is the column:

Continue reading ““Fool Me Once . . . ” Why the Public is Not Buying the Latest Media Campaign Against Twitter”

Censorship by Surrogate: Why Musk’s Document Dump Could be a Game Changer

Twitter LogoBelow is my column in the Hill on the recent disclosures in the “Twitter Files” on the coordination of censorship between the company and both Biden and Democratic party operatives. Beyond personally attacking Elon Musk and Matt Taibbi, many have resorted to the same old saw of censorship apologists: it is not censorship if the government did not do it or direct it. That is clearly untrue.  Many groups like the ACLU define censorship as denial of free speech by either government or private entities.  It is also worth noting that this censorship (and these back channels) continued after the Biden campaign became the Biden Administration. Moreover, some of the pressure was coming from Democratic senators and House members to silence critics and to bury the Hunter Biden influence peddling scandal.

Here is the column: Continue reading “Censorship by Surrogate: Why Musk’s Document Dump Could be a Game Changer”

Eleventh Circuit Ends the Use of a Special Master in the Mar-a-Lago Case

The United States Court of Appeals for the Eleventh Circuit rejected the use of a special master in the Mar-a-Lago case as well as broad challenges from the lawyers of former President Donald Trump. Notably, the three-judge panel included three Republican appointees, including two Trump appointed judges. While Democratic members and pundits have attacked Trump appointees as activists and ideologues, these jurists have repeatedly ruled against the former president in major cases like this one. Continue reading “Eleventh Circuit Ends the Use of a Special Master in the Mar-a-Lago Case”

No Joke: Supreme Court Case Could Take a Big Bite Out of the First Amendment

Below is my column in The Hill on what is shaping up to be a major Supreme Court term on the issues of parody and satire under the First Amendment. The Court could reframe the constitutional limits for criminal and civil liability in two cases currently on the docket, including one recently granted review. Continue reading “No Joke: Supreme Court Case Could Take a Big Bite Out of the First Amendment”

A Constitutional Thanksgiving: Why We Should All Give Thanks for the “Least Dangerous Branch”

As families gather this year for our annual holiday feast, there remain many things for all of us to give pause and thanks for in our lives. Our friends, family, and faith remain central to this holiday. So is our freedom.  Despite economic, political, and social problems, we remain a free and prosperous nation committed to core values of individual rights and self-determination. Indeed, more than any year, there is particular reason to give thanks to the most besieged and resilient part of our constitutional system: the courts. Despite attacks from the left and right, our court system remains a bulwark against political impulse and excess. The Supreme Court in particular has faced unrelenting attacks ranging from a reprehensible leak to an attempted assassination of a justice to calls for court packing. It has stood its ground just as James Madison and other Framers had hoped in their original design of our constitutional system.

Continue reading “A Constitutional Thanksgiving: Why We Should All Give Thanks for the “Least Dangerous Branch””

Federal Court Strikes Down Another Provision of New York’s New Gun Control Law

I have previously written about how New York has proven time and time again as the gift that keeps on giving for the National Rifle Association (NRA) and gun-rights groups. New York Democrats continue to pass laws that are virtually guaranteed to be struck down and further reinforce Second Amendment rights. The latest provision involves the possible criminal prosecution for possessing a gun on private property if the owner has not approved such possession on the premises.

Continue reading “Federal Court Strikes Down Another Provision of New York’s New Gun Control Law”

Supreme Court Takes Jack Daniels Trademark Case with Major Free Speech Implications

Image from Supreme Court Petition

Recently, we saw the filing of a hilarious brief by the Onion in Novak v. City of Pharm in which an Ohio man was prosecuted for posting a parody of his local police department. Now the Court has accepted a different parody case involving Jack Daniels where the company is suing the maker of dog chew toys. The case is Jack Daniel’s Properties Inc. v. VIP Products LLC. Continue reading “Supreme Court Takes Jack Daniels Trademark Case with Major Free Speech Implications”

MSNBC Analyst Calls for Liability for Boebert and Carlson … for the Colorado Shootings

We have been discussing how attacking free speech has become an article of faith for many on the left. That includes embracing corporate censorship and recently even good old-fashioned state censorship. It includes banning books and preventing opposing voices to be heard on campuses. Now, MSNBC national security analyst Frank Figliuzzi has called for Rep. Lauren Boebert (R-CO) and Fox News host Tucker Carlson to face civil liability for their commentary on transgender policies or controversies after the recent tragic shooting in Colorado. It is part of a growing movement in the media in favor of imposing criminal or civil liability on opposing viewpoints — a call that is tantamount to sawing the very branch upon which journalists and analysts sit. Continue reading “MSNBC Analyst Calls for Liability for Boebert and Carlson … for the Colorado Shootings”

Stern Rebuke: Auburn University Hit With Punitive Damages in Free Speech Case

Auburn University has lost a major case involving free speech after a jury ruled in favor of Prof. Michael Stern, a tenured economics professor. The jury ruled that Auburn retaliated against Stern for his public criticism of the school’s treatment of student athletes, particularly their alleged favored treatment in the College of Liberal Arts. Notably, the jury awarded punitive damages against the university, a relative rarity for juries but well deserved in this case. Continue reading “Stern Rebuke: Auburn University Hit With Punitive Damages in Free Speech Case”