Category: General Law


FAN 112 (First Amendment News) Is First Amendment “almost entirely without content”? Yes, writes Mark Tushnet

Over at Balkanization, Harvard Law Professor Mark Tushnet has some provocative things to say about the rule of law and the First Amendment. His post came in response to a New York Times story by Adam Liptak entitled “Donald Trump Could Threaten U.S. Rule of Law, Scholars Say.

Here is what Professor Tushnet wrote:

Professor Mark Tushnet

Professor Mark Tushnet

“I feel compelled to note that — except for blatantly strategic reasons that I actually wouldn’t find compelling — I almost certainly wouldn’t endorse the view that Trump shows contempt for the rule of law and the First Amendment — not because I agree with his views, of course, but because ‘the rule of law’ and ‘the First Amendment’ are almost entirely without content, so that I don’t know how someone could show contempt to ‘them’ — if there’s no there there, I can’t see how you could be contemptuous of ‘it.'”

Then, by way of a parenthetical comment, he added:

“Of course the claim that there’s no there there is backed up by a fairly complicated argument not worth developing here — an important component is that a reasonably well-socialized lawyer can mutter words showing that any proposition asserted to show contempt for the rule of law is actually consistent with the rule of law properly understood, and that those words are indistinguishable in principle from other words uncontroversially regarded as professionally respectable.”

Over at The Volokh Conspiracy, George Mason University Professor David Bernstein took exception: “I think that Donald Trump does show contempt for the rule of law and the First Amendment, which I believe have plenty of ‘content.’ In Trump’s case, I don’t think it’s a rejection of the concept of the rule of law as much as complete, willful ignorance of the principles underlying our legal system.”

Invitation: Given Professor Tushnet’s comment that his is a “fairly complicated argument not worth developing here,” I invite him to say a few more words about what he meant, and I will happily post them.

Elementary School Bans Trump Cap

Logan Autry

Logan Autry

Powers-Ginsburg Elementary School has barred Logan Autry, a nine-year student, from wearing a Donald Trump cap to school. As reported by  Sontaya Rose for ABC News, young Autry said: “The vice principal came up to me and told me to take my hat off because it brings negative attention from other students. And I said no a few times and then the principal told me again and I still said no and refused.”

“For three days straight,” wrote Rose, “the third grader wore the hat to class. But each day, more and more classmates began confronting him at recess. ‘I still want to keep my hat. It’s not the hat that draws attention, it’s just my personality that the other children do not like,’ said Autry.”

“Autry recently moved to Fresno from the foothills, he loves politics and American history. ‘He knows more than I do. He knows more about this election than I know, it’s kind of embarrassing. You know, like are you smarter than a third grader kinda thing. But he is just very adamant about his beliefs and his rights. He wants to be a politician that’s his goal,’ said Angela Hoffknecht, Logan’s guardian. . . .”

FIRE Podcast Interviews with Glenn Greenwald & David Baugh

Over at FIRE, the “So to Speak” podcast interviews continue. The first interview in the series was with Glenn Greenwald. Recall, Greenwald is best known as one of the journalists who coordinated the 2013 National Security Agency revelations made by whistleblower Edward Snowden.

The second podcast interview was with David Baugh, who was the ACLU lawyer who represented the petitioner in  Virginia v. Black(2003) — the cross-burning case.

Nico Perrino, Director of Communications for FIRE, conducted the interviews.

New Book on Free Speech & “Conservative Libertarianism”  Read More


What is the Appropriate Standard for Judicial Recall?

I want to weigh in on an issue that involves my alma mater, Stanford University.  As I’m sure many of you know, a former student there, Brock Allen Turner, was convicted of three felony sexual assault counts against a woman who was visiting campus.  The judge in the case, Aaron Persky, then sentenced Turner to six months in jail and three years of probation.  Lots of people are outraged by this lenient sentence and have initiated a recall campaign against Judge Persky.

From what I know about the case, the sentence is preposterous. Here, though, is what troubles me.  Is it appropriate for a judge to be recalled or denied reelection for one decision, no matter how stupid it is?  I have not heard anything else about the judge’s tenure.  Now maybe folks in the Bay Area think that he’s a dimwit and this was the straw that broke the camel’s back.  Or maybe he is excellent in some cases but unfair to women in rape cases or just generally.  I have no idea.

Let’s say, though, that he’s a good judge who made a terrible decision in this case. Recalling someone on that basis strikes me as rather dangerous.  It means that any judge who makes a decision lots of people hate could justify a recall based on that single fact.  (This, of course, happened in Iowa some years ago to State Supreme Court Justices who ruled in favor of a constitutional right to same-sex marriage.)  Is that really the standard that we want?  (Granted, maybe this is just an argument against having elected judges, but within that system I certainly think unprofessional or abusive judges should be booted out.)

If any of the Stanford faculty who are involved with the recall effort would like to write a guest post here offering their thoughts, I invite them to do so.


Remedies for Violating the Religious Test Oath Ban

Article Six of the Constitution provides: “[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” A federal statute that imposed such a requirement would, of course, be struck down as unconstitutional.

Suppose, though, that President X were to announce in the Rose Garden:  “My Administration will not appoint any Muslims to any office or public Trust under the United States.”  Other than impeachment, would there be any remedy for the Muslims in that case, some of whom would certainly have standing?  The President would enjoy absolute immunity from a tort damage suit under Supreme Court precedent.  In theory a court could reinstate a federal official fired because of his or her faith, but someone who was simply not considered could not obtain any equitable relief (I would think), although again in theory a court could order some sort of remedial hiring.  What is the right answer here?


Can Art Change the Law?

This is one question posed in Richard Primus’ new piece in the Atlantic on the musical “Hamilton.” (In the interests of full disclosure, Richard is my friend and was my c0-clerk). Part of his point is that the popularity of “Hamilton” and its casting could make originalist arguments more accessible to minorities that may have previously dismissed those views as the product of white slaveholders.  Another possibility is that a jump in Hamilton’s profile could give his arguments in the Federalist or elsewhere greater weight as compared to, say, someone like Jefferson.

It is hard to think of a work of popular culture with a greater impact on popular views of our history than “Hamilton.”  The closest comparison is “Birth of a Nation,” the racist celebration of the Ku Klux Klan that is considered one of the classics of silent cinema (in terms of its technique). Some think that “Birth of a Nation,” which came out in 1916, played a significant role in the revival of the KKK in the 1920s, which led to some substantial legal and political changes.  I’ve never seen “Birth of a Nation,” but now I’m thinking that I should to probe this comparison further.



FAN 111.1 (First Amendment News) Court Denies Review in Defamation Case — Larry Tribe Counsel for Petitioner

Earlier today the Supreme Court denied review in Scholz v. Delp in which Harvard Law Professor Laurence Tribe was counsel for the Petitioner. The issue in the case was whether the First Amendment creates a categorical presumption that statements about a person’s motive in committing suicide are matters of “opinion” rather than “fact” and thus cannot be the basis of a defamation action.

Professor Laurence Tribe

Professor Laurence Tribe

Professor Tribe filed a cert. petition on behalf of Petitioner Donald Thomas Scholz. Professor Tribe began his brief by stating:

“This case presents the fundamental question of whether the First Amendment creates a categorical presumption exempting from defamation actions statements about a person’s motive in committing suicide, on the basis that such statements are generally matters of ‘opinion’ rather than ‘fact.’ The Massachusetts SJC held that the First Amendment does create such a presumption and that, as a result, Petitioner Scholz – the producer, primary songwriter, and lead musician in the rock band ‘Boston’ – cannot proceed with his defamation actions against the Boston Herald, two of its reporters, and its principal source, for falsely accusing Mr. Scholz of causing the suicide of the band’s lead singer, Brad Delp.”

“The SJC deepened a significant conflict among many state and federal courts as to whether statements about the cause of a particular suicide, and about motive more generally, are categorically exempt from claims of defamation. It also departed from this Court’s core holding in Milkovich v. Lorain Journal Co. (1990), that there is no need to create a special First Amendment privilege for statements that can be labeled opinion. This Court emphasized that creating such a privilege would tilt the balance too far against the important interest in protecting personal reputation against unjustified invasion. And it explained that existing First Amendment limits on defamation actions suffice to protect freedom of expression.”

 The the three arguments advanced by Professor Tribe in his cert. petition were:

  1. “This Court Should Grant Review to Resolve a Deep and Abiding Conflict among Courts as to Whether Statements about Motive Generally, and about Motive for Suicide Specifically, are Categorically Exempt From Defamation Claims”
  2. “This Court Should Grant Review Because the SJC’s Ruling Conflicts with Malkovich by Creating a First Amendment Exemption from DefamationActions Not PreviouslyRecognized by this Court,” and
  3. “This Court Should Grant Review Because of the Importance of the Question Presented.”

Professor Tribe closed his brief by stating:

“These sensational stories also can cause severe harm to those falsely accused of causing the suicide. In instances, like the one in this case, where a friend or family member is blamed for a suicide, the reputational and emotional toll exacted from the person wrongly accused can be particularly significant. “Suicide exacts a heavy toll on those left behind as well. Loved ones, friends, classmates, neighbors, teachers, faith leaders, and colleagues all feel the effect of these deaths.” This heavy toll is dramatically compounded when friends or loved ones are falsely blamed for contributing to the suicide. But the SJC’s decision below shields from suit those who propound such false stories no matter how reckless they are in doing so. And, to compound the harm further, the SJC, far from resting its judgment on Massachusetts law, wrongly blames the First Amendment for that travesty of justice.”

Today the Court declined to hear the case.


Is Fraud an Impeachable Offense?

The fraud litigation currently pending against Donald Trump poses this question:  Is a civil judgment of fraud for private conduct a high crime and misdemeanor under the Constitution?  My tentative answer is yes, if the fraud were especially egregious.

One thought is that the answer is no because only official misconduct should lead to impeachment.  But this cannot be correct.  Consider the example of Dennis Hastert.  Suppose he had become President.  (He was third-in-line to the succession after all.)  If after that the news of his sexual abuse of students came out, then I would think that he could have been impeached for that alone.

Perhaps the only private conduct that can lead to impeachment is a crime. But I think not. Civil liability for something like wrongful death could be impeachable–consider something like what Ted Kennedy did at Chappaquiddick (if that were unknown to the voters). Fraud is an intentional tort that requires proof by clear and convincing evidence.  If the damages from that fraud were substantial (including punitive damages), then I don’t see why that couldn’t rise to such a level that would warrant impeachment.   What do you think?


FAN (First Amendment News, Special Series #4) Apple Hires Encryption Specialists to Beef Up Security


Encryption industry legend Jon Callas is reportedly one of many security specialists that Apple will be employing, and it would appear that Apple is taking a proactive approach to scaling up their security in response to its clash with the FBI earlier this year. (ITPRO)

According to a story in ITPRO, “Apple has hired encryption industry legend Jon Callas in a bid to strengthen security in the wake of its privacy battle with the FBI.Callas is perhaps best known for co-founding PGP – or ‘Pretty Good Privacy’ – and has been an expert on security and encryption for decades.In addition to developing the OpenPGP standard, he also established Silent Circle and Blackphone, makers of secure communication tools and hardware.This is in fact the third time that Callas has been employed by Apple. He first joined the company in 1995, working on encryption. He also worked on OSX’s security from 2009 to 2011.Callas is reportedly one of many security specialists that Apple will be employing, and it would appear that Apple is taking a proactive approach to scaling up their security in response to its clash with the FBI earlier this year.”

(News story by Jane McCallion, Joe Curtis, Rene Millman, Aaron Lee, Adam Shepherd, Caroline Preece, & Clare Hopping)

See also Apple rehires the man who build Blackphone to help create unhackable iPhone, TechWorm, May 26, 2016

Interest in Proposed Legislation Diminishes

“Draft legislation that Senators Richard Burr and Dianne Feinstein, the Republican and Democratic leaders of the Intelligence Committee, had circulated weeks ago likely will not be introduced this year and, even if it were, would stand no chance of advancing . . . sources said.” — Apple vs FBI: Support for encryption fizzles out, Reuters, May 27, 2016


If you have yet to register for the Newseum Institute’s  June 15th event concerning the Apple-FBI encryption controversy, there is still time to do so. Information concerning the upcoming event is set out below:

Date:  June 15th, 2016

Time: 3:00 p.m.

Location: Newseum: 555 Pennsylvania Ave NW, Washington, DC 20001

Register here (free but limited seating):

The event will be webcast live on the Newseum Institute’s site.

Screen Shot 2016-05-18 at 1.10.36 PM


The issues involved in the Apple cell phone controversy will be argued in front of a mock U.S. Supreme Court held at the Newseum as “Pear v. the United States.”

Experts in First Amendment law, cyber security, civil liberties and national security issues will make up the eight-member High Court, and legal teams will represent “Pear” and the government. The oral argument, supported by written briefs, will focus on those issues likely to reach the actual high court, from the power of the government to “compel speech” to the privacy expectations of millions of mobile phone users.

The Justices hearing the case at the Newseum:

  • As Chief Justice: Floyd Abrams, renowned First Amendment lawyer and author; and Visiting Lecturer at the Yale Law School.
  • Harvey Rishikof, most recently dean of faculty at the National War College at the National Defense University and chair of the American Bar Association Standing Committee on Law and National Security
  • Nadine Strossen, former president of the American Civil Liberties Union; the John Marshall Harlan II Professor of Law at New York Law School
  • Linda Greenhouse, the Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School; long-time U.S. Supreme Court correspondent for The New York Times
  • Lee Levine, renowned media lawyer; adjunct Professor of Law at the Georgetown University Law Center
  • Stewart Baker,national security law and policy expert and former Assistant Secretary for Policy at the U.S. Department of Homeland Security
  • Stephen Vladeck, Professor of Law at American University Washington College of Law; nationally recognized expert on the role of the federal courts in the war on terrorism
  • The Hon. Robert S. Lasnik, senior judge for the Western District of Washington at the U.S. District Court

Lawyers arguing the case:

  • For PearRobert Corn-Revere has extensive experience in First Amendment law and communications, media and information technology law.
    • Co-counsel is Nan Mooney, writer and former law clerk to Chief Judge James Baker of the U.S. Court of Appeals for the Armed Forces.
  • For the U.S. governmentJoseph DeMarco, who served from 1997 to 2007 as an Assistant United States Attorney for the Southern District of New York, specializes in issues involving information privacy and security, theft of intellectual property, computer intrusions, on-line fraud and the lawful use of new technology.
    • Co-counsel is Jeffrey Barnum, a lawyer and legal scholar specializing in criminal law and First Amendment law who argued United States v. Alaa Mohammad Ali before the U.S. Court of Appeals for the Armed Forces while in law school.

Each side will have 35 minutes to argue its position before the Court and an additional five minutes for follow-up comments. Following the session, there will be an opportunity for audience members to ask questions of the lawyers and court members.

→ The program is organized on behalf of the Newseum Institute by the University of Washington Law School’s Harold S. Shefelman Scholar Ronald Collins and by Nan Mooney.


FAN 111 (First Amendment News) Flying Dog Brewery Launches First Amendment Society

L-R: Jim Caruso, Alan Gora & Ilya Shapiro

L-R: Jim Caruso, Alan Gora & Ilya Shapiro

Free beer was being served as the audience gathered yesterday for a press conference at the National Press Club in Washington, D.C. to hear Jim Caruso (CEO of Flying Dog Brewery), Alan Gura (a DC-based constitutional law litigator), and Erin Weston (senior Director of Communications for Flying Dog). The three were there to discuss their First Amendment victory in Flying Dog Brewery v. Michigan Control Commission (6th Cir., 2015). More importantly, they were there to formally launch a new free-speech initiative. Ms. Weston will oversee the initiative.

The “First Amendment Society” is a non-profit initiative started by Flying Dog. The seed money for the campaign came from the damages award the brewery received from its victory in the Sixth Circuit.

Dean Lucy Dalglish

Dean Lucy Dalglish

One component of the initiative will be a First Amendment scholarship program done in conjunction with the  Philip Merrill College of Journalism at the University of Maryland, of which Lucy Dalglish (former executive director of the Reporters Committee for Freedom of the Press) is dean. Dalglish was present at yesterday’s press conference

Another component of the initiative will involve a a partnership with a public library. Staring next week, the Frederick County Public Library will host a series of lectures focusing on banned books and the First Amendment. The first three of those events will be held at 6:00 p.m. on the following dates:

  1. June 8Garrett Epps will discuss Whitman’s Leaves of Grass
  2. July 13: Michelle Markey Butler  will discuss Harry Potter and the Sorcerer’s Stone
  3. August 10: Ronald Collins, “The Poem that Howled Against Censorship: The Story of the Attempt to Ban a Book of Poems”
L-R: Jim Caruso, Erin Weston & Robert Corn-Revere

L-R: Jim Caruso, Erin Weston & Robert Corn-Revere

Moved to action by the Michigan Liquor Control Commission’s attempt to ban the company’s “Raging Bitch” beer from being sold within the state, Jim Caruso tagged the experience as “an outrageous violation of our First Amendment rights.” It was that experience that prompted him to launch the First Amendment Society. In the course of the press conference, Caruso was emphatic that “this is not a marketing tactic.” Alan Gura, the lawyer who successfully argued the case, echoed that point as he discussed the merits of the case and why it was important to litigate it.

Some of those present at the press conference were Robert Corn-Revere, Walter Olson, Nico PerrinoIlya Shapiro, and Bryan Thomas Hissing, Community Services Coordinator for the Frederick County Public Library

New Book on Child Pornography Law Read More


UCLA Law Review Vol. 63, Issue 4

Volume 63, Issue 4 (May 2016)

Accidents of Federalism: Ratemaking and Policy Innovation in Public Utility Law William Boyd & Ann E. Carlson 810
Protecting Disfavored Minorities: Toward Institutional Realism Joy Milligan 894
Insider Trading and Market Structure Yesha Yadav 968



Defending Criminal(ized) “Aliens” After Padilla: Towards a More Holistic Public Immigration Defense in the Era of Crimmigration Andrés Dae Keun Kwon 1035
Public-Private Divide in Parker State-Action Immunity Sina Safvati 1110

UCLA Law Review Vol. 64, Discourse

Volume 64, Discourse

Citizens Coerced: A Legislative Fix for Workplace Political Intimidation Post-Citizens United

Alexander Hertel-Fernandez & Paul Secunda

Lessons From Social Science for Kennedy’s Doctrinal Inquiry in Fisher v. University of Texas II Liliana M. Garces 18
Why Race Matters in Physics Class Rachel D. Godsil 40
The Indignities of Color Blindness Elise C. Boddie 64
The Misuse of Asian Americans in the Affirmative Action Debate Nancy Leong 90