Category: Constitutional Law

Could Cosby Sue For Wrongful Conviction?

Bill Cosby is a free man after the Pennsylvania Supreme Court overturned the conviction that sent him to jail roughly three years ago to serve 3-10 years for sexual assault.  The opinion (below) correctly found that the trial judge and prosecutors denied Cosby a fair trial and due process in 2018. The question now is whether Cosby might seek damages for his conviction and incarceration. Continue reading “Could Cosby Sue For Wrongful Conviction?”

Turley Testifies on Secret Orders Targeting The Media In Recent Leak Investigations

Today I will be testifying in the House Judiciary Committee on the use of secret surveillance and gag orders in recent investigations into unauthorized disclosures of classified information. The oversight hearing is in conjunction with investigations of Congress and the Inspector General following reports that the Department of Justice’s engaged in surveillance of Members of Congress, journalists, the White House Counsel and others.

The hearing will be held in Room 2141 of the Rayburn House Office Building at 10 am. The hearing is titled “Secrecy Orders and Prosecuting Leaks: Potential Legislative Responses to Deter Prosecutorial Abuse of Power” and will stream live here.  My testimony is below.

Continue reading “Turley Testifies on Secret Orders Targeting The Media In Recent Leak Investigations”

“A Half-in, Half-Out Regime”: Thomas Slams the Continued Criminalization of Marijuana in Little Noticed Opinion

As we wait for the final cases from the Supreme Court this week, Monday was confined to orders of the Court, including the granting and denial of review of cases. One of the cases that was declined was Standing Akimbo, LLC v. United States. That is hardly news on a Court that rejects most petitions for a writ of certiorari. However, this denial was accompanied by an opinion from Justice Clarence Thomas who slammed the current federal policy on marijuana as “a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.”  He is, of course, correct. The current position of marijuana criminalization is incomprehensible and conflicted. However, the criticism from one of the Court’s most conservative members was particularly notable. The timing is also notable. This week, the Mexican Supreme Court decriminalized recreational use of marijuana.

Continue reading ““A Half-in, Half-Out Regime”: Thomas Slams the Continued Criminalization of Marijuana in Little Noticed Opinion”

“Reimagining” History: Archives Racism Task Force Finds Rotunda Triggering

We discussed today how the term “triggering” itself can be triggering. Now, it appears that the racism task force for the National Archives has found the Archives themselves are triggering. The task force, created by National Archivist David Ferriero after the protests over the killing of George Floyd, released its report finding that the iconic Rotunda (containing the Declaration of Independence, Constitution, and the Bill of Rights) is a symbol of “structural racism” and should be countered with such reforms as staging dancing performances. It also found the emphasis and celebration of the Founders and Framers to be harmful. Continue reading ““Reimagining” History: Archives Racism Task Force Finds Rotunda Triggering”

The Right to Exclude: The Supreme Court Delivers Haymaker Reversal of the Ninth Circuit In Major Takings Ruling

While not one of the matinee cases often discussed in the press, the Supreme Court handed down a major ruling this week on takings under the Fifth Amendment. In a 6-3 decision that broke along ideological lines (a departure from a long line of unanimous or non-ideological rulings), the court ruled in Cedar Point Nursery v. Hassid that a California law was a takings under the Constitution. As I mentioned yesterday, I expect to be teaching this case in the fall and it represents a very significant new precedent in the area. Continue reading “The Right to Exclude: The Supreme Court Delivers Haymaker Reversal of the Ninth Circuit In Major Takings Ruling”

Supreme Court Rules 8-1 for Cheerleader in Mahonoy Case In Major Victory for Free Speech

For those seeking to portray the Supreme Court as, to use President Joe Biden’s words, “out of whack,” the Court itself continued to disappoint critics this week with another major and nearly unanimous decision in the long-awaited decision in Mahonoy v. B.L. While many of us in the free speech community hoped for a bright-line decision protecting student speech, the decision sharply rebuts the sweeping claims of schools (from high schools to universities) of authority to monitor and punish off-campus speech.  What is striking about the language is that the Court secures near unanimous decision by limiting the reach of the decision. Continue reading “Supreme Court Rules 8-1 for Cheerleader in Mahonoy Case In Major Victory for Free Speech”

Court Dismisses BLM Lawsuit Against Federal Agencies Over Lafayette Park Protests

We recently discussed the Inspector General report on the Lafayette Park protests and the debunking of claims that the federal government and specifically Attorney General Bill Barr cleared the area for the controversial photo op of President Donald Trump in front of St. John’s Church. For a year, legal and media experts have stated as fact that area was cleared for that purpose and that Barr was lying about the federal agencies using tear gas as opposed to pepper balls (even though the legal and practical difference is largely immaterial). Some tried to keep the myth alive by criticism the IG report and its scope. Now, federal judge Dabney L. Friedrich has dismissed the lawsuit by the ACLU and Black Lives Matter as based on unsupported and unsubstantiated claims against the federal agencies. Ironically, the court allowed the lawsuit against the MPD under Mayor Muriel Bowser to continue. The Bowser Administration admitted recently that it used tear gas near the park on that night and that such use was perfectly reasonable. Both the Bowser and Biden Administrations sought to dismiss the BLM lawsuit as unfounded and unsupportable — a striking departure from what Bowser has stated publicly. Continue reading “Court Dismisses BLM Lawsuit Against Federal Agencies Over Lafayette Park Protests”

“Educate Yourself”: Seattle Human Rights Commission Dismisses Complaint Over Requiring Whites To Pay “Reparations Fees” For Pride Event

There is a controversy in Seattle over plans for a pride event to charge people more based on their race. The Seattle Human Rights Commission is under fire this week after sending a letter dismissing a complaint over the announcement that the Taking B(l)ack Pride on June 26th would charge White entrants a “reparations” fee. The Commission told Charlette LeFevre and Philip Lipson of Capitol Hill Pride that they needed to “educate” themselves and consider the harm that they would cause by being participants in the event.  Update: While the response of the Commission caused outrage from many, Lipson and LeFevre quickly apologized for even raising the issue.

Continue reading ““Educate Yourself”: Seattle Human Rights Commission Dismisses Complaint Over Requiring Whites To Pay “Reparations Fees” For Pride Event”

Biden’s Bad Run: Is The Biden Administration Doing Worse Than The Trump Administration In The Courts?

Below is my column in the Hill on the growing number of losses by the Biden Administration in courts around the country, including a particularly embarrassing loss before the United States Supreme Court. What is notable is that such losses in the early days of the Trump Administration led to coverage declaring a war on the “rule of law” and even indications of authoritarianism. The Biden losses have received little coverage despite what could be a worst record in the early days of his Administration. The fact is that such adverse decisions are not uncommon as Administrations try to fast track changes. However, the Biden Administration has actually had some very serious losses, including some which are being appealed. Yet, many previously outspoken legal experts have either blamed conservative judges  or simply ignored the losses all together. It is a continuation of an interesting pattern where Democrats are adopting the very rationales that they once denounced.

Here is the column: Continue reading “Biden’s Bad Run: Is The Biden Administration Doing Worse Than The Trump Administration In The Courts?”

E Pluribus Unum: The Supreme Court Continues to Defy and Debunk its Critics

Below is my column in USA Today on the remarkably united and non-ideological line of cases handed down by the Supreme Court.  As Democratic leaders demand to pack the Court to create a liberal majority, the Court itself appears to be speaking through these cases.

Here is the column:

Continue reading “E Pluribus Unum: The Supreme Court Continues to Defy and Debunk its Critics”

The Leak Investigation: If We Want To Protect Journalists, We First Need To Define Them

Below is my column in USA Today on the controversy involving the acquisition of metadata evidence on members of Congress and the media in the leak investigation launched during the Trump Administration. We recently discussed the questionable reporting by the New York Times concerning the lead prosecutor, but far more serious questions remain if we are going to reach any resolution on protecting journalists, including the question of what is a journalist.

Here is the column:

Continue reading “The Leak Investigation: If We Want To Protect Journalists, We First Need To Define Them”

Confounding Its Critics: The Supreme Court Issues A Line Of Inconveniently Non-Ideological Opinions

Fred Schilling, US Supreme Court

Below is my column in The Hill on decisions issued by the Supreme Court in recent weeks and how they have served as a retort to those who are calling for court packing or major changes in the institution. As noted below, we expect to see more ideological divisions emerge this and next week in some of the outstanding “big ticket” decisions. However, the Court seems to have front-loaded a line of cases refuting the arguments that it is dysfunctionally and hopelessly divided along ideological lines.  Today, the Supreme Court issued two more nearly unanimous decisions (with only Justice Sotomayor concurring and dissenting in part in both decision). The decisions were Terry v. United States and Greer v. United States.

Here is the column:

Continue reading “Confounding Its Critics: The Supreme Court Issues A Line Of Inconveniently Non-Ideological Opinions”

“Discrimination at the Hands of Their Government”: Another Federal Court Has Halted a Federal Relief Program As Racially Discriminatory

(Official White House Photo/Adam Schultz)

President Joe Biden is facing an embarrassing and growing problem as he continues to declare his focus on ending racial discrimination: another federal court appears close to ruling that his Administration is engaging in raw racial discrimination. Milwaukee District Judge William Griesbach issued a temporary restraining order in Wisconsin halting Biden’s controversial $4 billion race-based federal relief program for farmers.  The awarding of relief based on race immediately raised objections of racial discrimination. The ruling is based on the court’s view that the white farmers challenging the program are likely to prevail. Continue reading ““Discrimination at the Hands of Their Government”: Another Federal Court Has Halted a Federal Relief Program As Racially Discriminatory”

No, The Second Amendment Was Not Primarily About Suppressing African Americans

The media has given highly favorable coverage to a new book by Dr. Carol Anderson, chair of Emory University’s Black Studies Department, that argues that “[the Second Amendment] was designed and has consistently been constructed to keep African Americans powerless and vulnerable.”  In interviews with media outlets like CNN and NPR Anderson’s theory is not challenged on the history and purpose of the Second Amendment. Like the contested claims of the “1619” project (which posited that slavery was the motivation for the establishment of the colonies), there might be a reluctance by academics to raise the countervailing historical sources out of fear of being labeled insensitive, defensive, or even racist.  However, this is not a new theory and, while there were concerns at the time about slavery and uprisings, the roots of the Second Amendment can be traced largely to England and the fears of government oppression. The point is not to dismiss this consideration for some pro-slavery figures at the time but to put those statements in a more historically grounded and accurate context. Continue reading “No, The Second Amendment Was Not Primarily About Suppressing African Americans”

A “Slippery, Bootlicking A.G.”? The Media Goes Silent As Garland Adopts Previously Denounced Positions Of Barr

Below is my column in The Hill on the recent decisions of Attorney General Merrick Garland to support the prior positions taken by his predecessor, William Barr, on issues ranging from the Lafayette Park protests to immigration to withholding information related to the Mueller investigation. Positions that were once denounced by media and legal experts as raw partisanship have now been adopted by the Biden Administration with little acknowledgement from those same figures.

Here is the column:

Continue reading “A “Slippery, Bootlicking A.G.”? The Media Goes Silent As Garland Adopts Previously Denounced Positions Of Barr”