Category: Constitutional Law

Constitutional Law, Courts, Politics, Supreme Court

Supreme Court Agrees To Hear Major Abortion Challenge

Over the strong opposition of pro-choice groups, the Supreme Court just granted cert in Dobbs vs. Jackson Women’s Health Organization, 19-1392.  The case could prove a turning point for the Court on reproductive rights. The Mississippi law at issue banned abortions after 15 weeks — seven weeks earlier than past laws passing constitutional muster.  State legislators have been passing laws like live torpedos on the water and this one just hit with a 6-3 conservative court. Continue reading “Supreme Court Agrees To Hear Major Abortion Challenge” →

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

The “Bonkers” Interview Of Bonny Prince Harry: Why The Attack On The First Amendment Should Concern Americans

The media went into a frenzy this weekend when the bonny Prince Harry gave a huge Hurrumpf to the First Amendment. On a show appropriately called “the Armchair Expert,” Harry declared the First Amendment “bonkers” and expressed frustration of how it protects the media in its “feeding frenzy” over his life. Harry’s criticism of the First Amendment can be dismissed as the unfamiliarity of a royal refugee. However, it is actually far more serious than that. Harry and his American wife Meghan Markle have attacked media rights in England and succeeded under the laws of the United Kingdom. They are now joining a growing anti-free speech and free press movement in the United States. Continue reading “The “Bonkers” Interview Of Bonny Prince Harry: Why The Attack On The First Amendment Should Concern Americans” →

Congress, Constitutional Law, Free Speech

Rep. Cicilline Demands The Censuring Of Colleagues For The “Mischaracterization” Of The Jan. 6th Riot

We have been discussing the effort in Congress to punish dissenting viewpoints among members on issues ranging from the Jan. 6th riot to the pandemic to racism. This has included sweeping calls for members to be disbarred or expelled for their criticism of the 2020 election or continued questioning of election irregularities. Rep. David Cicilline (D., R.I.) has been one of those calling for punishment of members who have the temerity to disagree with his view of the election or the riot.  Now, Cicilline is asking Democratic colleagues to sign on to a resolution to censure three House Republicans who are accused mischaracterizing the Jan. 6 riot, including refusing to call it an “insurrection.” It is the latest attempt to regulate how members and others discuss issues, dictating viewpoints by controlling speech used to express views.

Continue reading “Rep. Cicilline Demands The Censuring Of Colleagues For The “Mischaracterization” Of The Jan. 6th Riot” →

Academia, Constitutional Law, Free Speech

Gosh Oshkosh: University of Wisconsin Bans Any Speech Deemed “Insulting” or Demeaning”

There is a new controversy over university speech codes with a “red light” rating given to the University of Wisconsin (Oshkosh) and its prohibition of “insulting” or “demeaning” comments, including insulting someone over their political views. Continue reading “Gosh Oshkosh: University of Wisconsin Bans Any Speech Deemed “Insulting” or Demeaning”” →

Constitutional Law, Criminal law, Free Speech, Society

Fourth Circuit Overturns Conviction Of Retired Air Force Colonel For Using Racial Slur

In a major but likely controversial victory for free speech, the United States Court of Appeals for the Fourth Circuit overturned the conviction of a retired Air Force colonel for using a racial epithet at the shoe store on the Marine base at Quantico, Virginia. Jules A. Bartow, who is white, was arrested after a bizarre and disgraceful exchange with an employee, including the use of the “n word” with the African American woman. The highly offensive and repugnant language of Bartow was denounced by the court, but the unanimous panel still reversed T.S. Ellis III, Senior District Judge of the Eastern District of Virginia on First Amendment grounds. Continue reading “Fourth Circuit Overturns Conviction Of Retired Air Force Colonel For Using Racial Slur” →

Columns, Congress, Constitutional Law, Free Speech, Media, Politics

Free Speech Inc.: How Democrats Have Found A New But Shaky Faith In Corporate Speech

Below is an updated version of my column in The Hill on Facebook’s decision to uphold the ban on former president Donald Trump. Notably, this weekend, Twitter took it upon itself to add a gratuitous response to an observation made by Donald Trump Jr. after he tweeted “Biden isn’t the next FDR [Franklin Delano Roosevelt] he’s the next Jimmy Carter.” Twitter took it upon itself to say that many are “confused” by the remark since Carter was a great humanitarian and noble prize winner. It was a telling moment. These companies now act as either censors as officious intermeddlers when it comes to comments made on the platforms. They view themselves as a party to any postings and that viewpoints must be corrected or clarified to advance the corporate position.

Here is the column:

Continue reading “Free Speech Inc.: How Democrats Have Found A New But Shaky Faith In Corporate Speech” →

Constitutional Law, Courts, Free Speech

New York Court Orders Mother To Remove Confederate Flag Decoration or Risk Losing Custody of Her Daughter

There is an interesting First Amendment case brewing in New York after an appellate ruled that a mother identified as Christie could lose custody of her daughter unless she removes a rock with a small confederate flag image on it in the driveway. The child is of mixed races and the court has deemed the display as inimical to the best interests of the child.  The family court judge did not make such a determination and the ruling raises a very serious free speech concern over conditioning a right to custody on the curtailment of political speech. As will come as no surprise to regulars on this blog, I view the order as an unconstitutional infringement of the First Amendment.

Continue reading “New York Court Orders Mother To Remove Confederate Flag Decoration or Risk Losing Custody of Her Daughter” →

Constitutional Law, Criminal law

The Justice Department Announces Civil Rights Indictments Against All Four Former Officers In Floyd Death

The Justice Department has secured indictments of  the four former Minneapolis police officers involved in George Floyd’s arrest and death.  The three-count indictment unsealed Friday names Derek Chauvin, Thomas Lane, J. Kueng and Tou Thao.The indictment creates as new front for the officers and a type of insurance for state prosecutors if they fail to convict the three remaining officers (or Derek Chauvin is given a new trial).

Continue reading “The Justice Department Announces Civil Rights Indictments Against All Four Former Officers In Floyd Death” →

Constitutional Law, Free Speech, Politics

New Jersey Police Officer Fired For Calling BLM Protesters “Terrorists”

We have been discussing the termination of public employees and others for their postings on social media or public displays.  The latest case is out of New Jersey where former Hopewell Township police officer Sara Erwin was fired recent over a June 2020 posting on Facebook in which she referred to Black Lives Matter (BLM) protesters as “terrorists.”  There remains an uncertain line of what political or social views are tolerated and what are barred on social media.  Indeed, Sgt. Mandy Gray was suspended and demoted for simply liking the June 2020 post.

Continue reading “New Jersey Police Officer Fired For Calling BLM Protesters “Terrorists”” →

Congress, Constitutional Law

The Supreme Court Fails To End The Feres Doctrine . . . Now It Is Up To Congress

Below is my column in The Hill on the Supreme Court’s rejection of the case of a former West Point cadet who was barred from suing over the handling of her alleged rape. The case would have allowed a reconsideration of the Feres Doctrine, one of the most damaging and pernicious doctrines ever created by the Supreme Court. Continue reading “The Supreme Court Fails To End The Feres Doctrine . . . Now It Is Up To Congress” →

Academia, Columns, Congress, Constitutional Law, Free Speech, Media, Politics

Facebook Upholds Trump Ban But Admits Permanent Ban Lacked Any Objective Standard

Facebook’s Oversight Board just voted that the company may want to give Trump back his boots.

The decision of the board to uphold the decision to ban Trump but reconsider his lifetime ban may seem transparently convenient for many. However, there is precedent. One of my favorite trial accounts is from Ireland where an Irishman was accused by an Englishman of stealing a pair of boots. The guilt of the defendant was absolutely clear but the Irish jury could not get itself to rule for the Englishman. Instead, it acquitted the Irishman but added a line, “We do believe O’Brien should give the Englishman back his boots.” Case closed. Continue reading “Facebook Upholds Trump Ban But Admits Permanent Ban Lacked Any Objective Standard” →

Academia, Constitutional Law, Free Speech

“Kierstien Hening Refused To Kneel”: Virginia Tech Sued By Student Who Alleges Abuse Over Her Refusal To Support BLM and Diversity Displays

The lawsuit of Virginia Tech student Kierstien Hening begins with a simple statement: “Kierstien Hening refused to kneel.”  The lawsuit filed this week against Virginia Tech soccer coach Charles “Chugger” Adair (in his official capacity) alleges that when Hening refused to kneel and support Black Lives Matter, she was benched, harassed and ultimately forced off the team. If the allegations are true, she could have not only a winning case but a case that could set important precedent for the freedom of speech. Continue reading ““Kierstien Hening Refused To Kneel”: Virginia Tech Sued By Student Who Alleges Abuse Over Her Refusal To Support BLM and Diversity Displays” →

Constitutional Law, Courts, Media, Supreme Court

Juror 52: Does Chauvin Have A New Challenge Over Juror Brandon Mitchell?

The conviction of former Minneapolis police officer Derek Chauvin was undermined this week after the previously anonymous Juror #52 went public with interviews to discuss his experience on the jury and support the movement to curtail police abuse. The problem was not the public disclosure of his identity (which jurors can elect to do) but what his self-identification triggered on the Internet. A picture soon emerged showing Brandon Mitchell wearing a Black Lives Matter T-shirt with a reference to the death of George Floyd. The image was raised as contradicting his answers in voir dire and raising an appellate question as to juror bias that could be used to challenge the conviction. Continue reading “Juror 52: Does Chauvin Have A New Challenge Over Juror Brandon Mitchell?” →

Columns, Congress, Constitutional Law, Free Speech, Media, Politics, Society

Evolving With Big Tech: Facebook’s New Campaign Should Have Free Speech Advocates Nervous

In 1964, Stanley Kubrick released a dark comedy classic titled “Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb.” The title captured the absurdity of getting people to embrace the concept of weapons of mass destruction. The movie came to mind recently with the public campaign of Facebook calling for people to change her attitudes about the Internet and rethink issues like “content modification” – the new Orwellian term for censorship. Continue reading “Evolving With Big Tech: Facebook’s New Campaign Should Have Free Speech Advocates Nervous” →

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

Police Groups Ask The University of Minnesota To Investigate Student’s Call To Make Life “Hell” For Officers

Minnesota Police and Peace Officers Association and the Law Enforcement Labor Services has taken the unusual (if not unprecedented) step of asking the University of Minnesota to investigate a student for her call to make the lives of campus police a living “hell.” In a video conference captured on video, student Lauren Meyers is caught making the statements in her capacity as Chief Financial Officer of the Minnesota Student Association Executive Board. Continue reading “Police Groups Ask The University of Minnesota To Investigate Student’s Call To Make Life “Hell” For Officers” →