For years, I have criticized those who have called for increased censorship on the Internet, including regulation of political speech by companies like Facebook and Twitter. There is a legitimate debate over the continued use of Section 230 of the Communications Decency Act by these companies when they are engaged in such censorship (and alleged viewpoint bias). However, President Donald Trump’s call for Twitter to take down a parody of Senate Majority Leader Mitch McConnell is wrong on a number of levels. It would only fuel the erosion of free speech on the Internet in curtailing political commentary. Continue reading “No, Twitter Should Not Take Down The McConnell Parody”
Category: Constitutional Law
The U.S. Court of Appeals for the D.C. Circuit issued a major reaffirmation of congressional authority on Friday when it ruled Friday, 7-2 that the House has legal standing to use the courts to compel McGahn to appear in response to a House Judiciary Committee subpoena. I testified repeatedly in Congress in support of the McGahn subpoena (including in the Trump impeachment hearing) and said that I believed that the White House was not just wrong on the law but would ultimately fail in this effort. I have been a long advocate of congressional standing as an academic, columnist, and a litigator, including my prior representation of the United States House of Representatives in the Obamacare litigation (where we prevailed on standing for the House). I disagreed with an earlier decision against the House. I am obviously gratified by the result in this case. Continue reading “D.C. Circuit Rejects Key Challenge Of President Trump To McGahn Subpoena”
I have previously written, as a long supporter of the American Civil Liberties Union (ACLU), about my concern over how the venerable group has changed under its current leadership, including a departure from its long robust defense of free speech. Recently, the ACLU has abandoned its famed neutrality and has not supported some on the right while supporting those on the left. Now, the ACLU’s Samuel Crankshaw in Kentucky has targeted Transylvania University for admitting Nick Sandmann, who was falsely accused of abusing a Native American activist in front of Lincoln Memorial. (Crankshaw identifies as an ACLU staffer on social media) Despite various media organizations correcting the story and some settling with Sandmann, some in the media have continued to attack him. Yet, it is far more alarming to see an ACLU official rallying people against a young man whose chief offense appears to be that he is publicly (and unapologetically) conservative and pro-life.
A conservative student organization has flagged a quiz at Vanderbilt University where students were asked “Was the Constitution designed to perpetuate white supremacy and protect the institution of slavery?” A student who answered “false” was marked wrong by the professor. The class is taught by Professors Josh Clinton, Eunji Kim, Jon Meacham, and Dean John Geer entitled PSCI 1150: U. S. ELECTIONS 2020. Meacham is a regular guest on MSNBC and CNN and other networks as well as a contributing editor for The New York Times Book Review. Continue reading “Vanderbilt Quiz On The Constitution Marked Students Wrong If They Said It Was Not Designed To Perpetuate White Supremacy”
In the criminal justice system, most of us have seen the use of “spit hoods” when a suspect or defendant spits at officers or others. During the pandemic, such behavior is viewed as particularly dangerous. However, for years, the hoods have been associated with breathing and medical issues. The death of Daniel Prude in Rochester is spotlighting this controversy after a shocking video of a group of officers laughing as Prude, who was running nude in the area, complained about his breathing. He died on March 30 after being taken off life support.
Continue reading “Rochester Case Raises New Questions About Police Abuse and “Spit Hoods””
Below is my column in the Hill newspaper on the rising concern over compelled speech on our campuses and our streets.
Here is the column:
Continue reading “How “Silence is Violence” Can Become Compelled Speech”
Sarah Palin is about to get all mavericky in court. Indeed, the former Alaskan governor and vice presidential candidate just might be making new law in the area of defamation. Palin’s won a major victory in a decision by Judge Jed S. Rakoff, who ruled that she could go to trial o a particularly outrageous editorial by The New York Times in June 2017. The editorial suggested that she inspired or incited Jared Loughner’s 2011 shooting of then-U.S. Rep. Gabrielle Giffords, D-Ariz. The case also involves a curious twist due to the involvement of James Bennet, who resigned in the recent controversy over an editorial by Sen. Tom Cotton. I supported Bennet’s decision to publish that editorial and denounced the cringing apology of the Times after a backlash.
I have previously condemned both sides in our raging politics for labeling their opponents as “traitors,” “terrorists,” and “enemies.” That overheated rhetoric is continuing this week with Speaker Nancy Pelosi calling not just President Trump but her own congressional colleagues “enemies of the state.” I have been highly critical of President Trump in his use of such language. I also have long been critical of Pelosi’s conduct as Speaker, including her ripping up the State of the Union. This attack is particularly egregious from a sitting Speaker who represents the body as a whole. If we cannot agree on condemning even this language, we have lost any sense of decorum or decency in our public debate.
Continue reading “Pelosi Accuses Trump and Colleagues Of Defining Domestic Enemies”
We have previously discussed courts in the United States seeking to punish lawyers for making critical comments about judges or legal commissions on social media. We have also followed such actions taken against lawyers in other countries like Saudi Arabia. As will come as no surprise on a blog emphasizing free speech, I have long been critical of such actions. However, India is facing a far more serious controversy after the Supreme Court demanded an apology from one of India’s most prominent lawyers for, among other things, blaming the Supreme Court for its role in undermining democracy in India. The justices proceeded to make his point by threatening him with jail unless he offered an unconditional and public apology. Continue reading “Prominent Indian Lawyer Accuses Supreme Court Of Destroying Democracies . . . Supreme Court Threatens Imprisonment”
I testified in the Senate about the erosion of free speech and rise of violence on our campuses and in our streets. Antifa and related groups have succeeded in advancing anti-free-speech agendas as students and faculty justify attacks on those with opposing views. An example of the growing intolerance can be found in an editorial at the Daily California by staff writer Khaled Alqahtani. The August 12th column calls for violent resistance and denounced notions of civility in the public debate over racial and economic justice.
There was a curious moment this weekend when a member of Congress, Rep. Bill Pascrell (D., N.J.) called upon New Jersey Attorney General Gurbir Grewal to use a grand jury to investigate criminal charges against President Donald Trump and U.S. Postmaster General Louis DeJoy for “the subversion” of the upcoming election. From a Madisonian perspective, a member of Congress calling for a grand jury to investigate wrongdoing by a federal agency is like a NASA calling up NOAA to explore Mars. Pascrell is a sitting member in a house, controlled by his own party, with the constitutional authority of oversight over the postal service. Our system of separation of powers commits this question to the political branches rather than criminalizing political disputes.
Three years ago, I wrote a column questioning the constitutional and practical effect of gun control reforms pushed through after the Las Vegas massacre, including limits on the capacity of magazines. The moves were being oversold in the media as reforms that would make such attacks less likely or deadly while also ignoring the constitutional standard for the review of such measures. Now, one of those reforms, California’s ban on high-capacity gun magazines, has been struck down by a panel on the United States Court of Appeals for the Ninth Circuit. Notably, the magazine laws were one of the most promising areas of gun control laws after the Court’s 2008 decisions in District of Columbia v. Heller. Indeed, while I doubted its efficacy, I thought that limits on magazines could potentially pass constitutional muster under Heller with a properly crafted and supported law.
Continue reading “The Ninth Circuit Strikes Down California’s Ban On High-Capacity Magazines”
The media is alight today after the publication of a piece in Newsweek by Chapman University Professor John C. Eastman that raised the question of whether Sen. Kamala Harris is a citizen and eligible to be Vice President. She is. The courts have long recognized that individuals born in the United States are citizens under the Fourteenth Amendment. In fairness to Professor Eastman and Newsweek, this has been a debate that has been raised during prior elections over candidates ranging from Chester Arthur to Barack Obama to John McCain. Continue reading “Yes, Kamala Harris Is Eligible For Vice President”
I have been critical recently of the torrent of lawsuits filed by the American Civil Liberties Union (ACLU) during the Trump Administration. The over 400 lawsuit represent a shift from the prior careful litigation strategy of the ACLU, which was once as concerned with creating bad precedent as it was creating good precedent. While the ACLU has had some major wins, it has also lost many of these cases. The latest loss was a case rejected by U.S. District Judge Amy Totenberg based on a claim that the postage on mail-in ballots constitute a type of poll tax.
This week I testified in the Senate about the erosion of free speech and academic freedom in our universities where professors are being punished or even fired for expressing viewpoints that challenge a new orthodoxy on our campuses, particularly with regard to racial and political issues. The latest example can be found this week at the University of Pittsburgh. The University of Pittsburgh Medical Center (which is separate from the university) has removed Associate Professor of Medicine Norman Wang was removed from his position as Program Director of the Electrophysiology Fellowship. The removal was in direct response to Wang publishing an article in a peer-reviewed journal that questioned the use of affirmative action in medical schools admissions. The action raises serious concerns over both free speech and academic freedom. The only thing more unsettling than the actions of the university was the relative silence of his colleagues throughout the University of Pittsburgh as he was punished for expressing his academic views.