Category: Courts

Columns, Constitutional Law, Courts

The Trump Gag Order Should Be Struck Down

Below is my column in The Hill on the imposition of a gag order on former President Donald Trump by U.S. District Judge Tanya Chutkan. Despite my long-standing criticism of Trump’s personal attacks on judges and critics, this gag order should be curtailed or struck down on appeal. While the odds tend to favor the lower court in such orders, there is ample reason to object to the scope and language of the order. The ill-defined bar on criticizing the prosecution or witnesses (including one of Trump’s opponents in this election) raises serious free speech concerns. It is also unlikely to have any appreciable impact on the heated public debate over this and other prosecutions of the presidential candidate. Much of this campaign will focus on the alleged weaponization of the criminal justice system. While Trump is still allowed to criticize the case generally, the vague order cuts too deeply into his right to criticize the prosecutor, the judge, and witnesses in the case in this election.

Here is the column: Continue reading “The Trump Gag Order Should Be Struck Down” →

Constitutional Law, Courts, Politics

Gov. Newsom Attacks Federal Judge as Child-Killing, Extremist, Right-Wing Zealot Owned by the NRA

It seems that we continue to struggle with a chief executive who goes on social media to personally attack judges who have ruled against his laws or policies. No, it is not Donald Trump. This week, California Gov. Gavin Newsom (D) went on Twitter/X to denounce U.S. Judge Roger T. Benitez as “an extremist, right-wing zealot with no regard to [sic] human life.” Four years ago, I wrote how Democrats were becoming more Trump-like in their attacks on judges and hyperbolic rhetoric. There is no better example than Gavin Newsom. Continue reading “Gov. Newsom Attacks Federal Judge as Child-Killing, Extremist, Right-Wing Zealot Owned by the NRA” →

Constitutional Law, Courts, Free Speech

Federal Court Strikes Down Social Media Age-Verification Law on First Amendment Grounds

We recently discussed a federal court ruling that the Texas law requiring age verification and warning for porn sites was unconstitutional. Now, Judge Timothy Brooks in Arkansas has found that another state law imposing age verification requirements for social media violates the First Amendment. In Netchoice, LLC v. Griffin, Judge Brooks found that the law “will unnecessarily burden minors’ access to constitutionally protected speech.” Continue reading “Federal Court Strikes Down Social Media Age-Verification Law on First Amendment Grounds” →

Courts, Torts

Giuliani Loses Defamation Case By Default

Former Trump attorney Rudy Giuliani lost a defamation lawsuit by default Wednesday in Washington, D.C. In a 57-page ruling, United States District Judge Beryl Howell shredded Giuliani for not producing evidence in the case filed by election workers Ruby Freeman and Shaye Moss. She then ordered a default and the payment of the plaintiffs’ attorneys fees totaling tens of thousands of dollars as well as punitive damages. Continue reading “Giuliani Loses Defamation Case By Default” →

Constitutional Law, Courts

No, The New Mexico Supreme Court Did Not Uphold the Merits of a 14th Amendment Disqualification

There is a spirited debate growing among law professors over the claim that former president Donald Trump is disqualified under the 14th Amendment from holding office. Various law professors have argued that Trump is already barred, even without a charge or conviction for insurrection or even incitement. I have previously discussed my disagreement with this theory, including a column this week.  A number of critics have cited a New Mexico case where such a disqualification of a local politician named Couy Griffen was approved by a court and then upheld by the New Mexico Supreme Court. Such a ruling, even if true, would not negate the basis for these objections. It would be one state case to the contrary in what is likely to be an array of such challenges. Yet, it is untrue that “the New Mexico Supreme Court upheld the decision to disqualify” and established counter precedent on the issue.

Continue reading “No, The New Mexico Supreme Court Did Not Uphold the Merits of a 14th Amendment Disqualification” →

Constitutional Law, Courts, Free Speech, Politics

“A Monopoly in Expressing its Views”: D.C. Circuit Hands Down Major Free Speech Victory for Pro-Life Group

The U.S. Court of Appeals for the D.C. Circuit has handed down a major victory for free speech against the District of Columbia.  In Frederick Douglass Foundation v. District of Columbia, Judge Neomi Rao reversed district court judge James E. Boasberg who dismissed the challenge by pro-life protesters who alleged that they were treated differently from Black Lives Matter (BLM) protesters. The selective enforcement of city ordinances gave what Judge Rao called “a monopoly in expressing its views . . . the antithesis of constitutional guarantees.” Continue reading ““A Monopoly in Expressing its Views”: D.C. Circuit Hands Down Major Free Speech Victory for Pro-Life Group” →

Courts, Criminal law

Federal Court Declares Trump a Flight Risk in Secret Subpoena Decision

The disclosure of a subpoena of Twitter by Special Counsel Jack Smith was surprising in a number of respects, including the hefty $350,000 fine imposed by U.S. District Court Beryl Howell (left) for a three-day delay as the company sought to address the demand. However, the two most surprising, and concerning, elements were that the subpoena was secret and Howell justified it, in part, on Trump being a flight risk. Neither seems warranted in this case even assuming that the subpoena was in other respects warranted. Continue reading “Federal Court Declares Trump a Flight Risk in Secret Subpoena Decision” →

Courts, Politics

“Friends” with Benefits? Hunter Biden’s Team Accused of Ethical Violation Before Plea Hearing

Hunter Biden‘s lawyers were accused last night of an ethical violation in misrepresenting their representation in the case. Jessica Bengels of Latham & Watkins, the head of the firm’s litigation group, is accused of lying to the court clerk in seeking to remove an amicus (or “friend of the court”) brief from access to the public. The clerk insisted that Bengels stated that she was representing the amicus, House Ways and Means Committee Chairman Jason Smith, who filed the details on recent evidence showing a “sweetheart deal” behind the plea bargain. Continue reading ““Friends” with Benefits? Hunter Biden’s Team Accused of Ethical Violation Before Plea Hearing” →

Columns, Courts, Supreme Court

The Django Syndrome: What the Latest Racist Attacks on Clarence Thomas Say About Our Rage Politics
In July 1991, Clarence Thomas, a relatively unknown D.C. Circuit judge, was nominated by President George H.W. Bush to replace Thurgood Marshall on the United States Supreme Court. Thomas soon found out that the only thing more perilous than replacing a historical icon on the Court is replacing a liberal with a conservative. Thomas would become an icon in his own right for conservatives: an unyielding defender of textualism and conservative jurisprudence. Yet, liberals seem more preoccupied by his race than his rigidity. This week, a leading Democrat, Minnesota Attorney General Keith Ellison unleashed another openly racist attack on Thomas and neither the media nor the political establishment condemned the remarks.

Continue reading “The Django Syndrome: What the Latest Racist Attacks on Clarence Thomas Say About Our Rage Politics” →

Constitutional Law, Courts, Supreme Court

Locked and Loaded: Third Circuit Declares Federal Gun Law Unconstitutional Over Ex-Felon Rights

Yesterday, the United States Court of Appeals for the Third Circuit handed down a major ruling in favor of the Second Amendment rights of ex-felons. At issue was the federal “felon-in-possession” law—18 U.S.C. § 922(g)(1), which bars ex-felons from possession of firearms. While it is always risky to bet on granting of review before the Supreme Court, this en banc decision is well positioned for a Supreme Court showdown over the Second Amendment. Continue reading “Locked and Loaded: Third Circuit Declares Federal Gun Law Unconstitutional Over Ex-Felon Rights” →

Constitutional Law, Courts

Federal Judge Enjoins Illinois’ Assault Weapon Ban

In a major victory for gun rights advocates, U.S. District Judge Stephen McGlynn has granted a preliminary injunction of Illinois’ ban on assault weapons and large capacity magazines. The decision comes after two other district courts ruled in favor of the law — sending this issue to the United States Court of Appeals for the Seventh Circuit and potentially the Supreme Court.  These long-awaited challenges will test the Democratic calls for removing all AR-15s and similar weapons, including calls from President Joe Biden.

Continue reading “Federal Judge Enjoins Illinois’ Assault Weapon Ban” →

Courts, Media, Politics, Supreme Court

Alito: I Know Who Likely Leaked the Dobbs Decision

In a surprising statement to The Wall Street Journal today, Supreme Court Justice Samuel Alito says he has a “pretty good idea” who leaked a draft opinion in Dobbs v. Jackson Women’s Health Organization. He strongly suggested that it was someone who opposed the opinion and wanted to pressure the justices not to go forward with the overturning of Roe v. Wade.

 

Continue reading “Alito: I Know Who Likely Leaked the Dobbs Decision” →

Columns, Constitutional Law, Courts, Free Speech, Politics, Supreme Court

Floral Free Speech: Liberals in Tennessee are Making the Case for Conservative Justices

Below is my column in The Hill on the recent controversy of a Tennessee Florist shop refusing to serve Republicans and encouraging others to do the same. It is a timing boycott as we await the decision in 303 Creative v. Elenis.

Here is the column:

Continue reading “Floral Free Speech: Liberals in Tennessee are Making the Case for Conservative Justices” →

Academia, Courts, Free Speech, Lawyering

“WTF is Wrong with You”: Columbia Center and Law Students Protest Meeting With Justice Kavanaugh

Columbia University law students and alums are in an uproar over an Instagram post that showed students in the Federalist Society meeting with Supreme Court Justice Brett Kavanaugh at the Court. It would ordinarily be a singular experience for law students to spend time with one of the nine justices. That is not how it went over at Columbia where some are outraged by the meeting and Columbia’s posting the picture on its social media account. The Empowering Women of Color group announced it was “withdrawing our participation from Columbia Law School recruiting events.” Columbia’s own Center for Engaged Pedagogy, simply declared “WTF is wrong with you.” Continue reading ““WTF is Wrong with You”: Columbia Center and Law Students Protest Meeting With Justice Kavanaugh” →

Courts, Lawyering, Politics

New Orleans Judge Under Fire for Failing to Disclose Interest in Mayoral Recall Effort

Jennifer Medley is one of many citizens who appear fed up with the crime and poor management of New Orleans. Medley reportedly joined thousands of others in signing a petition to recall New Orleans Mayor LaToya Cantrell. As a single mom working in the city, she has good reason to be concerned. However, Medley is also a judge. Indeed, she is the very judge that just ruled on the recall effort without disclosing that her name is one of those seeking the recall. Continue reading “New Orleans Judge Under Fire for Failing to Disclose Interest in Mayoral Recall Effort” →