Category: Politics

Columns, Constitutional Law, Politics, Supreme Court

Train Whistle Docket: The Supreme Court Returns With Blockbuster Cases On Guns, Abortions, and Free Speech

This week, the Supreme Court will again assemble for a new term and pundits and politicians are already handicapping the cases. This term however has more drama and tension as Democrats call for packing the Court with an instant liberal majority and others attack its members in anticipation of opinions that have yet to be written. The reality is summed up in one of my favorite stories about Supreme Court Justice Oliver Wendell Holmes when he was on a trip to Washington. Holmes forgot his ticket but the train conductor reassured him, “Do not worry about your ticket. We all know who you are. When you get to your destination, you can find it and just mail it to us.” Holmes responded, “My dear man, the problem is not my ticket. The problem is, where am I going?” Continue reading “Train Whistle Docket: The Supreme Court Returns With Blockbuster Cases On Guns, Abortions, and Free Speech” →

Constitutional Law, Politics, Supreme Court

“They Tell Me I Shouldn’t But . . .”: Sotomayor Calls on Law Students to Oppose the Texas Abortion Law
Modern justices have long chafed at the restraints of judicial ethical rules about public commentary. The late Ruth Bader Ginsburg was celebrated as “notorious” due in part to her controversial public speeches and discussions of pending or expected cases before the Court. Despite my long criticism of this trend, I was still taken aback by comments of Justice Sonia Sotomayor at an event organized by the American Bar Association. In her comments, Sotomayor appeared to call for political campaigns and discussed a matter just before the Court. Despite the discussion of the case and political opposition from a sitting justice, the ABA members were silent as were the many liberal activists who have been denouncing the Court as too “political.” Continue reading ““They Tell Me I Shouldn’t But . . .”: Sotomayor Calls on Law Students to Oppose the Texas Abortion Law” →
Constitutional Law, Free Speech, International, Media, Politics

YouTube Removes Videos of Putin Critic in Latest Act of Corporate Censorship

We have been discussing the rising support for corporate censorship among leading Democratic politicians, academics, and writers. Social media and Internet companies now actively respond to calls from government officials to silence those with opposing views. The latest such example is Google-owned YouTube removing videos of jailed Kremlin critic Alexei Navalny before Russia’s parliamentary elections.  Alphabet Inc.’s Google and Apple Inc. also pulled a voting app from Navalny ahead of the election. Nevertheless, CEO Susan Wojcicki bizarrely claimed in a Bloomberg interview Bloomberg Television that free speech remains a “core value” for the company. Continue reading “YouTube Removes Videos of Putin Critic in Latest Act of Corporate Censorship” →

Constitutional Law, Free Speech, Politics

Washington School Triggers Free Speech Fight Over Order to Remove Blue Lives Matter Flag

We recently discussed a controversy over a teacher being told to remove an Antifa flag and Gay Pride flag. We now have the inverse case. A teacher in Washington was told to remove a “Blue Lives Matter” flag that she put up to support her brother who was a former police officer. The flag was surrounded by pictures of her brother. She was told to remove the flag as a “political statement” that would disturb some students. These controversies raise questions of content-based discrimination over speech, particularly after the Washington teacher was reportedly told that she could have Black Lives Matter or Gay Pride flags in her class but not a Blue Lives Matter flag. Continue reading “Washington School Triggers Free Speech Fight Over Order to Remove Blue Lives Matter Flag” →

Constitutional Law, Courts, Free Speech, Politics, Religion

Ohio Professor Wins Major Free Speech Decision on Compelled Use of Pronouns in Classrooms

My column yesterday discussed the increasing trend to treat the failure to use a person’s preferred pronouns (called “misgendering”) a type of hate speech or discriminatory conduct. A new case highlights the free speech problems associated with the trend. In Meriwether v. Hartop, the United States Court of Appeals for the Sixth Circuit handed down a major ruling in favor of Shawnee State University Professor Nicholas Meriwether, who was disciplined for refusing to use a student’s designated pronoun choices.

Continue reading “Ohio Professor Wins Major Free Speech Decision on Compelled Use of Pronouns in Classrooms” →

Justice, Media, Politics

“Those People Will Pay”: Did Biden Just Prejudice the Border Investigation?

The comments of President Joe Biden on Friday left many of us surprised, if not stunned, when he appeared to announce a finding to the ongoing investigation into allegations that mounted Border patrol officers whipped or “strapped” Haitian migrants trying to enter the country. During the Trump Administration, many of us correctly chastised the President for crossing the line in discussing ongoing Justice Department investigations and calling for particular resolutions. The response to this inappropriate statement is more muted from the media but it should be no less concerning. Biden’s statements are clearly prejudicial to the investigation of the incident and should be corrected in the interests of a fair process for all involved.

Continue reading ““Those People Will Pay”: Did Biden Just Prejudice the Border Investigation?” →

Politics

Report: Hunter Biden Sought Millions To Help Unfreeze Libyan Assets While His Father Was Vice President

Recently, Politico finally conceded that the emails on the Hunter Biden laptop are indeed authentic. The story went largely without mention by others in the mainstream media where the laptop has been subject to an effective blackout since before the election when stories were actually banned by Twitter. Before the election, Politico and every major newspaper ran stories that the laptop and the embarrassing emails were likely Russian disinformation according to over 50 “former intelligence experts” including former CIA directors John Brennan, Leon Panetta, and Gen. Michael Hayden. Despite the clear evidence that the emails are real, the media has steadfastly refused to address the raw and open influence peddling by the Biden family in those emails. That now includes new emails showing an alleged effort by Hunter Biden to shake down the Libyan government for $2 million a year in order to use his access to his father to unfreeze assets held by the U.S. government. Continue reading “Report: Hunter Biden Sought Millions To Help Unfreeze Libyan Assets While His Father Was Vice President” →

Congress, Politics, Torts

Rep. Nunes Wins Major Victory In Defamation Case Against Ryan Lizza and Hearst

We have been following a slew of defamation lawsuits by political figures over the last few years. (See, e.g., here and here and here and here and here and here and here and here). For torts scholars, it has been a bonanza of interesting issues touching on every element of defamation law. There is now an important ruling out of the United States Court of Appeals for the Eighth Circuit that could have enormous implications not just for the media but anyone who retweets stories or claims. The appellate panel ruled unanimously for Rep. Devin Nunes against journalist Ryan Lizza who now writes for Politico. Nunes will be allowed to litigate his claim that Lizza defamed him by claiming that he secretly moved his farm from California to Iowa and linked the move to the alleged use of undocumented labor. Not only does Nunes have no reported stake or operational involvement with the farm, there is no evidence of his effort to hide the move or conceal any use of undocumented laborers. However, the interesting aspect of the ruling is how a retweet by Lizza resuscitated the case for Nunes. Continue reading “Rep. Nunes Wins Major Victory In Defamation Case Against Ryan Lizza and Hearst” →

Columns, Congress, Criminal law, Media, Politics

Clinton Lawyer’s Indictment Reveals “Bag of Tricks”

Below is my column in the Hill on the Sussmann indictment by Special Counsel John Durham. The single charge under 18 U.S.C. 1001 is not as significant as the supporting narrative and facts disclosed by Durham in this prosecution. The indictment fills in a number of blanks in how the Clinton campaign pushed a false Russian collusion narrative despite the objections of its own researchers.

Here is the column: Continue reading “Clinton Lawyer’s Indictment Reveals “Bag of Tricks”” →

Academia, Politics, Supreme Court

Berkeley Law Dean Calls Conservative Justices “Partisan Hacks”

Erwin Chemerinsky, dean of the UC Berkeley School of Law, has published a blistering opinion editorial entitled “Are Supreme Court Justices ‘Partisan Hacks’? All the Evidence Says Yes.” The column is unfortunately the latest example of how rage has replaced reason in our discussions of the Court. Chemerinsky previously declared  that “Congress would be totally justified in increasing the size of the court.” He has insisted that court packing is “the only way to keep there from being a very conservative Court for the next 10–20 years.”

Continue reading “Berkeley Law Dean Calls Conservative Justices “Partisan Hacks”” →

Academia, Free Speech, Politics

Law Professor: Tearing Down 9/11 Memorial is the Exercise of Free Speech

We recently discussed the controversy at Washington University in St. Louis after Student Senator Fadel Alkilani pulled up flags memorializing 9/11 and throwing them into the trash. At the time, I raised the issue of whether preventing or destroying the speech of others is itself an exercise of free speech. Now, Law Professor Gregory Magarian has gone public with his view that Alkilani was indeed engaging in free speech and criticizing the position of the school in condemning his actions without also recognizing the discomfort for many in seeing the flags as a “powerful, contestable political statement.”. Continue reading “Law Professor: Tearing Down 9/11 Memorial is the Exercise of Free Speech” →

Bizarre, Justice, Lawyering, Media, Politics

Legal Pundits and the Washington Post Line Up To Mock Durham’s “Zombie Investigation” in Stark Contrast to The Same Mueller Charges

In Washington, there is no greater indication of wrongdoing than the number of people denouncing efforts to investigate it. The “nothing to see here” crowd went into hyperventilation this week when Special Counsel John Durham indicted a former Clinton campaign lawyer, Michael Sussmann. Legal experts who spent years validating every possible criminal charge against Trump and his associates are now insisting that Durham needs to end his investigation. The Washington Post heaped ridicule on Durham despite an indictment detailing an effort to hide the connection to the Clinton campaign and a concerted effort to push false Russian collusion claims. Continue reading “Legal Pundits and the Washington Post Line Up To Mock Durham’s “Zombie Investigation” in Stark Contrast to The Same Mueller Charges” →

Columns, Criminal law, Military, Politics

Milley’s Mutiny? A New Book Raises Equally Serious Questions For The Pentagon and the Press

Below is my column in the Hill on allegations concerning Gen. Mark Milley in the final days of the Trump Administration. Milley is expected to answer questions in full this month before Congress.  However, if true, the statements made to subordinates and his Chinese counterpart would constitute serious violations for a military officer. What is striking is how many on the left applauded an account of the military unlawfully assuming control of such decisions to negate or countermand a sitting president. Much like the embrace of censorship, the embrace of such alleged a military challenge to civil control would once be viewed as anathema on the left.

Here is the column: Continue reading “Milley’s Mutiny? A New Book Raises Equally Serious Questions For The Pentagon and the Press” →

Media, Politics

The Atlantic’s Franklin Foer Allegedly Identified as “Reporter-2” in the Sussmann Indictment

I have a column today in the Hill on the indictment of former Clinton campaign lawyer Michael Sussmann by Special Counsel John Durham. The indictment fills in a great number of gaps on one of the Russian collusion allegations pushed by the Clinton campaign: Alpha bank. Sussmann and others reportedly pushed the implausible claim that the Russian bank served as a conduit for communications between the Trump campaign and the Kremlin. The indictment removes the identity of key actors like a “Tech Executive” who used his connections with an Internet company to help the Clinton campaign (and said he was promised a top cyber security position in the widely anticipated Clinton Administration). One of those figures however may have been identified: “Reporter-2.” Atlantic staff writer Franklin Foer wrote an article for Slate that seems to track the account of the indictment and, as such, raises questions over his role as a conduit for the Clinton campaign’s effort to spread the false story. Continue reading “The Atlantic’s Franklin Foer Allegedly Identified as “Reporter-2” in the Sussmann Indictment” →

Congress, Constitutional Law, Politics, Supreme Court

Our Crisis of Faith on Constitution Day

Not long after the ratification of our Constitution, the great Justice Joseph Story marveled “How easily men satisfy themselves that the Constitution is exactly what they wish it to be.” The Constitution is designed to be a type of waltz with a three rather than six-step pattern in our tripartite system of government. Many today however treat it more like an interpretative dance, an invitation for expressive individual moves.  Indeed, in the last few months, President Joe Biden often seems to be dancing alone. The improvisational element to constitutional interpretation reflects more than mere political opportunism. It reflects a crisis of faith on the Constitution Day.

Continue reading “Our Crisis of Faith on Constitution Day” →