I am rather perplexed by a ruling by U.S. District Judge Richard M. Berman to order not just four more years of community service for filmmaker Dinesh D’Souza but continuation of psychological counseling despite the countervailing findings of two experts in the case. Judge Berman was on solid ground in much of his opinion on the conditions of the prior sentencing order. While tough, the defense was trying to curtail key aspects of the order. However, the counseling component does concern me.
Category: Courts
The Redskins lost a major challenge this week to the cancellation of the their trademark protection by the Patent and Trademark Office. I have previously written about my disagreement with the U.S. Patent and Trademark Office decision to rescind federal trademark protections for the Redskins as a racially disparaging name as well as the underlying law used to strip the team of its trademark protection. The law allows for a small administrative office to effectively dictate the outcome of a long simmering societal debate over the team name. More importantly, the standard for determining what names or words are disparaging remains dangerously undefined with striking contradictions as we have previously discussed in permitted and disallowed trademarks.
Continue reading “Federal Court Upholds Decision Stripping Redskins Of Trademark Protection”
There is an interesting criminal appeal filed in Pennsylvania by a convicted murderer Robert Urwin Jr., 58 who has serious reservations about the judge who presided at his trial. He should know. Former Washington County Common Pleas Judge Paul Pozonsky was later sentenced in the same courthouse for stealing cocaine from the evidence room and replacing it with baking soda.
In an obviously awkward and (for one) emotional reunion, Judge Mindy Glazer recognized a former high school acquaintance standing before her awaiting his bond decision. Arthur Booth is accused of burglary and broke into tears after Glazer identified him. Glazer clearly did not view the prior relationship (which was clearly long ended) a basis for recusal.
Below is my column today in the Washington Post on the ruling in Obergefell on the basis for the Court’s ruling in favor of same-sex marriage. Due to limitations on space, I could not go into great depth in the opinion which primarily dealt with the notion of the “right to dignity.” The Court did not pursue an equal protection analysis beyond the following highly generalized statement:
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way,even as the two Clauses may converge in the identification and definition of the right.
Since the Court did not substantially address whether homosexuals are a protected class or the other Equal Protection line of cases, the opinion appears to craft a right around the inherent right of self-expression and dignity in intimate affairs. That is very appealing to many in the expansion of due process concepts, but the column explores what it portends for future rights.
Here is the Sunday column:
I am doing some coverage at CNN but, in addition to the predictable rejection of the lethal injection challenge, the Court handed down two major decisions. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court ruled 5-4 that states could effectively take away redistricting decisions from state legislatures — a key move to try to end the scourge of gerrymandering. In Michigan v. EPA, the Court again split 5-4 in ruling that the EPA must consider the costs to industry in setting environmental limitations — in the case involving arsenic emissions — under the Clean Air Act.
Continue reading “Good Day For Election Reformists; Bad Day For Environmentalists”
I am still doing commentary on today’s history ruling in favor of same-sex marriage. It was a remarkable day for all of us outside of the Court. As many of us quickly read through the opinions, hundreds of people broke out into song: singing our national anthem. It never sounded so beautiful or so meaningful. As I went live with Jake Tapper on CNN, I noticed a familiar reference however. The Chief Justice cited to the Sister Wives litigation now pending before the United States Court of Appeals for the Tenth Circuit. I am lead counsel for the Brown family, which prevailed in striking down the criminalization of cohabitation in Utah. The Wall Street Journal and other media outlets also discussed our case.
Continue reading “Sister Wives Case Cited In Supreme Court’s Historic Same-Sex Marriage Ruling”
I spent most of the day opining in front of the Supreme Court and in studies on the 6-3 ruling in favor of the Obama Administration in King v. Burwell. I will not subject you to more of that analysis. I have previously indicated that I found the opposing view of the Halbig decision against the Administration to be compelling, though I have always viewed this to be a difficult question upon which people of good-faith could disagree. Yet, in both my prior congressional testimony and my columns, I have never accused the Administration of “jiggery-pokery” — largely because I was not sure what jiggery-pokery is. However, Associate Justice Antonin Scalia has written a stinging dissent to King that contains the memorable accusation that the majority was engaging in “interpretive jiggery-pokery.”
Continue reading “Obamacare Spared Through “Jiggery-Pokery”?”
By Darren Smith, Weekend Contributor
The Ninth Circuit Court of Appeals issued a ruling permitting the Washington State Department of Corrections (DOC) to designate a number of open positions within its prison system that are available solely for female candidates.
The Court held that the DOC articulated a well-founded and researched interest in designating a specific number of female only positions to address issues related to privacy interests of women inmates and to reduce the number of sexual improprieties involving male employees, especially within the state’s prison facility for women located in Washington. The state also articulated successfully the need to employ female only positions for the normal and regular operation of its women’s prisons.
Kentucky Judge Steven D. Combs in Pike County has been temporarily suspended after an array of charges of bizarre comments and actions, including calling officials such names as “Fishface,” “cokehead,” and “Dumbo.” Worst yet, he threatened to put a “bullet in the head” of the next police officer who pulled him over. A temporary suspension until resolution of the 10 charges seems quite modest punishment but his counsel, Stephen Ryan, still conveyed Combs’ “disappointment” with the action taken by the Judicial Conduct Commission.
Saudi Arabia’s Supreme Court reaffirmed yesterday that it rejects the most fundamental notions of due process, free speech, freedom of religion, and the free press. It was able to do all of that in one case — perfectly capturing the inherently abusive elements of Sharia law and religiously based legal systems.
LawDragon has released the results of its increasingly popular survey of the top lawyers in America. I was fortunate to again make the list this year. This year is the 10th anniversary of the annual report which has become very popular in the profession. I have been honored to be on the list in prior years and it is always gladdening to see so many friends and GW graduates on the list.
Continue reading “Turley Selected Among The Top 500 Lawyers in Annual Ranking”
The English court system is considering a controversial new report by Dame Elish Angiolini that would establish a rule that women cannot be viewed as consenting to sex if they are found to be intoxicated. The report is pushing an amendment of the Sexual Offences Act to establish the rule.
Below is my column today in USA Today on the decision of the Supreme Court to reject the Obama Administation’s argument for a low standard in criminalizing speech on the Internet and other forums. The Court did not have to directly deal with the free speech implications of the case since it ruled on the standard for criminalization. The Court rejected the lowest standard of a reasonable person in establishing a criminal threat. However, with the remand, the issue may come back to the Court under another effort to adopt an alternative standard of recklessness.
Continue reading “ELONIS AND THE NEAR MISS FOR INTERNET FREE SPEECH”
The Supreme Court has handed down its decision in Elonis v. United States, a case that had sweeping implications for free speech on the Internet. The Obama Administration sought to establish a low standard for criminalizing speech based on a reasonable person standard that would have gutted the requirement of scienter or intent in establishing a criminal threat. The Court adopted the narrowest basis to remand the case but it clearly rejected the lower standard sought by the Administration. In doing so, free speech dodged a bullet today and the Obama Administration came perilously close to rolling back on protections for free speech on both the Internet and social media.
Continue reading “SUPREME COURT RULES AGAINST ADMINISTRATION ON CRIMINALIZING INTERNET SPEECH”