Category: Current Events


FAN 196.1 (First Amendment News) Summertime: Free Speech Podcasts to Check Out

It’s summertime and the livin’ is easy (channeling Ella Fitzgerald & Janus Joplin). So, if you’re driving to the beach, or at the beach under an umbrella, or in a hammuck watching the stars, why not plug into a mind-opening podcast on free speech? Sound inviting?  If so, check out these great podcasts (all free!):

  1. Fire in a Crowded Theater (Ken White explores the origins of the phrase “You can’t yell ‘fire’ in a crowded theater” and whether or not it actually calls for exceptions to the First Amendment.)
  2. Street (In this episode, host Ken White examines Street v. New York, the Supreme Court case which concluded that the First Amendment allows freedom of expression towards the American flag.
  3. Crush (Ken White and guest Marc Randazza examine the question of whether the government can continually come to the Supreme Court with potential exceptions to the First Amendment._

  1. The Great Disruption: Part I: The Printing Press and the Viral Reformation (In episode 10, we cover the invention, spread, and effects of the Gutenberg printing press:
  • What significance did this new technology have for the dissemination of knowledge and ideas?
  • Why was the printing press instrumental in helping a German monk and scholar break the religious unity of Europe?
  • What happened when new religious ideas raged through Europe like wildfire?
  • And did Martin Luther’s Reformation lead to religious tolerance and freedom, or persecution and censorship?)

2.  Expert Opinion: Christime Caldwell Ames (Our last stop in the Middle Ages is an interview with professor Christine Caldwell Ames, who is an expert on medieval heresy and inquisition in Judaism, Christianity, and Islam. The discussion highlights the similarities and differences between Christianity, Catholic and Orthodox, Judaism, and Islam when it comes to defining and policing orthodoxy.)

3.  The Hounds of God — Medieval Heretics & Inquisitors (From the High Middle Ages, Europe developed into a “persecuting society,” obsessed with stamping out the “cancer” of heresy. But questions about how this was accomplished — and the consequences of these developments — abound)

  1. Supreme Court Review: Kennedy, Kavanaugh, and “weaponizing the First Amendment” (On this episode of So to Speak, we discuss President Donald Trump’s nomination of Brett Kavanaugh to the United States Supreme Court and what it might mean for the First Amendment. We also review Anthony Kennedy’s legacy, the free speech cases from this past Supreme Court term, and Justice Elena Kagan’s contention that some of her colleagues are “weaponizing the First Amendment.” The guests on today’s show are: Paul Sherman: Senior attorney, Institute for Justice Bob Corn-Revere: Partner, Davis Wright Tremaine Walter Olson: Senior fellow, Cato Institute)
  2. ‘HATE’ with Nadine Strossen (On this episode of So to Speak, we welcome back to the show former ACLU president and New York Law Professor Nadine Strossen. She is the author of “HATE: Why We Should Resist It With Free Speech, Not Censorship.” In this new book, she argues that America’s broad protections for hateful speech are a good thing, and that efforts to censor such speech has historically backfired or been proven ineffective.)
  3. Most memorable FIRE cases (In this episode of So to Speak, we take a trip down memory lane. We are joined by FIRE’s Greg Lukianoff, Samantha Harris, and Will Creeley to discuss memorable cases from FIRE’s 19-year history. You can watch a video of this conversation on FIRE’s YouTube channel(



Cunningham “Buffett Shareholder” Omaha Events 2018

Following are the public events during this year’s Berkshire Hathaway Annual Meeting surrounding the launch of our new book, The Warren Buffett Shareholder.  Hope to see some of you there, and regrets that our New York book launch event is already sold out.

Thursday Friday — Daytime Friday — Evening Saturday Sunday
U. Nebraska Mammel Hall

Berkshire System Summit

11:40 to 12

(talk 11 to 11:40)

CenturyLink Center

Shareholder Shopping Day


11 to 6


Embassy Suites

Yellow BRKers

4 to 7

(greetings at around 5)


CenturyLink Center

BRK Annual Meeting


7 to 4 pm

Hilton Hotel

Markel Brunch

8:30 to 10:30 a.m.

U. Nebraska Mammel Hall

Value Investor Conference

3 to 4 & 6 to 6:30


Creighton University

Value Investing Panel

2 to 3 & 5 to 6

(panel 3 to 5)


Hilton Hotel

Tilson/Kase Reception

8 to 12 midnight


Hilton Hotel

Tilson/Kase Reception

4 to 6


 ALSO: Visit the Bookworm in town and the Hudson bookstore in the airport for special displays and offerings around the book.

The Fatalism of the Multitude

I recently read James Bryce’s The American Commonwealth for the first time. Bryce was British and, in the style of Alexis de Tocqueville, wrote a book in the late 19th century about his visits to America. One of Bryce’s fascinating ideas was “The Fatalism of the Multitude,” by which he meant that a danger in a democracy was that the minority would submit quietly to the will of the majority. In essence, the minority may conclude at some point that it will never be a majority and could not influence the majority. This acquiescence, Bryce thought, was a problem partly because it would allow the majority’s errors to go on uncorrected.

This phrase strikes me as an excellent description of excessive political polarization. The risk posed by polarized public opinion is that one side (or maybe both) will conclude that their efforts at persuasion are futile because the other side will not listen to what they have to say. I’m not saying that we are at that point, but you can certainly hear some people who sound exasperated in that sense.


The Normalization of Government Shutdowns

One unfortunate feature of the current budget standoff  is that Democrats appear to have accepted the idea that threatening or causing a partial government shutdown is a valid tactic. While there are precedents for government shutdowns from the 19th century, the modern use of that plan was initiated by congressional Republicans in 1995. Since then, Democrats have routinely attacked the idea of shutting down the government to achieve some political end as illegitimate.

Not anymore. Sadly, this means that this will became standard operating procedure. Granted, the more partial you make the shutdown the more symbolic it becomes.  I do not understand, for instance, how the national parks can be kept open while the government is closed, as a national park is definitely not an essential service, but there are reports that the Administration may keep them open this time in the event of a shutdown.

Democracy means caring more about the rules than about the partisan results. Alas.


John Bingham on the Expulsion Power

I’ve taken a closer look at Bingham’s final speech in the House of Representatives, in which he discussed expulsion. (The cite is Cong. Globe, 42nd Cong, 3d Sess. App. at 136-140 (1873). In that speech, Bingham rejected the argument that any house of Congress could expel a member for misconduct that occurred prior to his election. Since this point bears directly on what might happen with Roy Moore, I thought that I would provide some quotes from the speech. For the most part, JAB discussed the precedents of Parliament and Congress, though he also made a textual point that I’ll discuss at the end of the post.

Here is how Bingham summarized the internal precedents as of 1873:

It has been solemnly declared that no such power belongs to either House, to wit: to try and expel a member of either body for offenses, though infamous in their character, committed before his election.

He further denied that the House had “jurisdiction over the past life of every man who by the suffrages of the people may be elected a member of Congress.” At one point he hedged a bit and suggested that a criminal conviction during that Congress for past misconduct might present a different question, but that hypothetical does not cover the Moore case.

Bingham’s textual argument went something like this. Article One, Section Five of the Constitution states: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.” He argued that the language about disorderly behavior referred to only behavior as a member, and thus the next clause about expulsion should also be so limited. (In other words, expulsion is a specific punishment and thus linked to the prior clause.) He also, of course, argued more broadly that voters should be able to choose their representatives subject only to the qualifications in the Constitution (age, citizenship, residence).

I highly doubt that anywhere close to two-thirds of the Senate is interested in expelling Senator Moore, but if the idea is taken up seriously here is one source people should consider.

UPDATE: Or, if Jones wins, never mind.


Rurality and “Government Retreat”

The New York Times ran a story yesterday, dateline Roseburg, Oregon (population 21,000), headlined “Where Anti-Tax Fervor Means All Government Will Cease.”  This is not exactly breaking “news.”  This story has been around in some form, with varying degrees of urgency, for about five years.  See earlier installments here, here and here.  The gist of it is that many rural counties in the West which rely on federal funding streams (e.g., PILT, Secure Rural Schools and Community Self Determination Act monies, covered by stories herehere and here), have seen those monies taper off and in some cases dry up.

I want to be clear before going further that the federal funding streams these counties rely on are not giveaways, at least by my assessment.  They are intended to replace, in some small measure, tax dollars the counties cannot generate because property taxes cannot be levied on federal lands, which comprise vast portions of the West.  (The existence of such extensive public lands is also associated with other controversies, of course; read more here and here).  The existence of public lands may also have an impact on other ways local governments might choose to plump up their public coffers (read more here and here), and the existence of these lands limits the ways in which locals can earn a living, as in the timber industry or in ranching.

As a result of these funding cuts, many nonmetropolitan counties–those least likely to have other funding sources (taxes on robust business enterprises, for example)–are  cutting critical services.  Most news reports to date have focused on cuts to law enforcement, which has cultivated some “informal justice”/citizens “militias” type activity.  But this NYTimes story focuses on cuts to other services.  Highlighted in the story and illustrated by a photo is the fact that Douglas County–at 5,134 square miles, more than 2.5 times the size of Delaware and nearly as large as Connecticut–is about to close the last of the 11 library branches it previously boasted.  The one in Roseburg, the county seat, will be the last to go.  Kirk Johnson, NY Times reporter based out west, reports that Douglas County residents recently voted down a ballot measure that “would have added about $6/month to the tax bill on a median-priced home,” a measure that would have saved the libraries from crisis and closure.

I could digress here into a long discussion about how critically important libraries are for all sorts of reasons, not least these days that–in my suburb and many other California locales–they accommodate many homeless people during the day, providing them a lifeline (the Internet) to identifying and getting services.  I know that my family and I use our neighborhood library on a weekly basis, even though I have ready access to a fabulous academic library.  A 2013 story about the particular benefits of libraries in rural communities is here, and broadband is a big part of the story.   A more recent library story out of rural northern California about the power of books in children’s lives is here.

But Johnson makes the point that libraries are not the only thing on the chopping block in Douglas County.  The failed library initiative is like many others in Douglas and neighboring counties (e.g., Curry and Josephine) that voters have rejected in the last decade.  Another very sobering illustration of the southwest Oregon situation is the fact that Curry County has only one full-time employee in the elections division of its clerk’s office and therefore may have difficulty holding an election this fall.  (I’ve documented here and here similar phenomena in my home county in Arkansas, another place heavily reliant on PILT because of the presence of public lands set aside as Ozark National Forest and Buffalo National River).

There is so much I could say about this particular rural trend to shrink government, sometimes to an extreme degree.  But I just want to make a few points in regard to theoretical legal geography regarding how spatiality and law are co-constitutive.   I have argued as a related matter that rural society and rural spatiality are co-constituting, as reflected in a less robust presence of law, legal actors, and other institutions and agents of the state in rural places.  I framed it as “space tames law tames space” in a frustrating feedback loop:  it is expensive for the state to do its work when the area to be governed is vast and when residents emotionally and intellectually resist vesting power (including via tax dollars)  in the state.  I would characterize this feedback loop as disabling, though I understand some rural residents of a more libertarian bent would see it as enabling–enabling the individual, that is, fostering self-sufficiency.

My argument about the relative “lawlessness” of rural and remote places has not been uncontroversial.  Lots of folks see small towns as the epitome of order and law-abiding-ness and have pushed back against my argument.  Yet it seems that my point is very well illustrated by this detail from Johnson’s article, which he offers as an illustration of “government retreat”:

It looks like the house on Hubbard Creek Road in Curry County, where owners went for more than 10 years without paying any property taxes at all because the county assessor’s office couldn’t field enough workers to go out and inspect. The house, nestled in the woods with a tidy blue roof and skylights, dodged more than $8,500 in property taxes that would have gone to support the schools, fire district and sheriff, because government had gotten too small to even ask. So things fall even further, with cuts to agencies that actually bring in revenue prompting further cuts down the line.

So there you have it:  a community envisages itself as not needing law, regulation and the state, so it underfunds government to such an extent that the state can no longer support itself and perform (m)any government functions.  This, in turn, further fuels the imaginary–and reality–of an anemic and unhelpful state.  The state is thus discredited, thereby further undermining the state’s ability to justify the raising of revenue or to do, well, much of anything.

Which came first, the chicken or the egg?  the state’s inability to be effective?  or the perception that it would necessarily be ineffective and a consequent decision not to fund it, thereby rendering it (more?) ineffective, unhelpful, and inefficient?

As for when a community goes too far in its retreat from public institutions…well, the defeat of the library tax crossed that line for some.  Johnson quotes a Douglas County resident, 54-year-old Terry Bean, a construction manager who supported the library tax, though he had opposed other local taxes.  In explaining his position he invoked another concept associated with rural livelihoods:  community.

There is conservative, said Bean, flicking a cigarette butt into the bed of his pickup truck, and then there is community. And people got them confused.

The library, he said, was something a person could use — for computers, if not for books — even if that person didn’t have a dime, and he still respects that.

And that, in turn, brings me back to my earlier point:  doesn’t everyone reap communitarian benefits from the public library?  even the richest of folks who may never darken its doors.


Judge Kevin Newsom

The New York Times is reporting that the President will nominate Kevin Newsom, the former Solicitor General of Alabama, for a seat on the Eleventh Circuit.  This is wonderful news. I met Kevin nearly twenty years ago when we were at the same firm (and shared the same office suite). He is an outstanding lawyer and a person of incredible integrity. (And wrote a terrific article in Yale Law Journal on the incorporation of the Bill of Rights). If we didn’t live in such a polarized age, he would be confirmed unanimously by the Senate. I will do what I can to make that happen.


Introduction to About Abortion Symposium

We are delighted to introduce Professor Carol Sanger and the participants in our online symposium on About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017).

Professor Sanger, in her inimitable style, updates us on the state of the abortion debate in the age of Trump.  She explains how the experiences of women who have abortions have disappeared into the shadows while those who would outlaw it control the public discourse.  She explores the explosion of hostile legislation in state legislatures, as the new laws “treat abortion not as an acceptable medical decision—let alone a right—but as something disreputable, immoral, and chosen by mistake.”  Sanger’s book captures the reasons why the discourse has changed, and how abortion, which has always been a contentious issue, drives its emotional force from its connection to underlying debates about sex, religion, gender, politics, and identity.  She nonetheless seeks to reclaim women’s perspectives on the practice of abortion.   She argues that as women become more willing to talk about their experiences, “women’s decisions about whether or not to become mothers will be treated more like those of other adults making significant personal choices.”  In short, she seeks to normalize the topic of abortion.

The book covers original material that Sanger has assembled documenting the legal infrastructure for abortion decision-making.  She presents the experiences of vulnerable teens, forced to appear before hostile judges in an effort to secure permission to proceed without parental consent.  Courts deem many of the teens too immature to make such decisions on their own, but not apparently too immature to become mothers against their will.  She also describes the women required to undergo involuntary ultrasounds, the debate about whether the women are allowed to look away, and the insidiousness of this alleged effort to “help” women make the abortion decision.

Throughout, Sanger connects these practices to law, medicine, the organization of intimate relationships, the shape of a woman’s life, and national identity.  She takes pains to present  the objections to abortion accurately even as she also counters the depiction of decisions to end pregnancies as “selfish” or casual decisions to put women’s interests ahead of their children.  She distinguishes between abortion privacy, a form of nondisclosure based on a woman’s desire to control personal information, and abortion secrecy, a woman’s defense against the many harms of disclosure.   She captures women’s varied views, whether they treat abortion as unthinkable or as a measure necessary to allow them to become “good” mothers in circumstances of their choosing.

Indeed, Sanger’s original treatment of abortion includes a chapter on the views of men.  She asks not what decisions men would make about abortion; instead, she explores how they in fact decide whether to become fathers when they are faced with the choice of what to do with their frozen embryos.  The men in such circumstances express concern over the potential child’s future welfare, distress over an ongoing relationship with the other parent, an unwillingness to consider adoption as an acceptable alternative; in short, they express the same concerns that women do about whether to proceed with a pregnancy.  Yet, the right to life forces, while they often champion the rights of frozen embryos,  do not subject the men’s decisions  to the same intrusion and vilification they reserve for women.  Sanger speculates that if the same law that governs decisions about frozen embryos applied to women’s reproductive decisions, it “would not look quite the same as it does now, with assumptions of incompetence, layers of second-guessing, and invasive counseling.”

About Abortion adds to our understanding of the abortion debate.  It confronts the dishonesty and distortions that characterizes much of the public debate.  It acknowledges the way the issue is deeply intertwined with fundamental questions about the organization of society.  It advocates bringing the experiences of those who have chosen abortion out the shadows, and it succeeds in providing a richer foundation for public consideration of the issue.

About Abortion is an important book that has already received wide attention, including a New Yorker review that coincides with our consideration of it here.

For this Concurring Opinions book symposium, we have invited an all-star cast of thinkers who have a variety  of different perspectives on abortion:  Helen Alvare, Caitlin  Borgmann, Khiara Bridges, David Cohen, Leslie Griffin, Linda McClain, David Pozen, Lisa Pruitt, and Rachel Rebouche.


Stop Citing Trump’s Campaign Statements

Some recent judicial opinions on the President’s immigration Executive Orders have cited or referred to statements that he made as a candidate about immigration policy. I hope that this practice is rejected soon, as it’s terrible.

The problems with relying on political statements in interpreting an executive are greater than the well-known criticisms of using legislative history to interpret a statute.  First, candidates say many contradictory things on an issue depending on their audience and on the news flow. Trying to make sense out of that is an almost impossible legal ask. Second, statements made during a campaign are not necessarily connected with an executive order. Legislative history at least has the virtue of being part of a formal process that culminates with a statute. Third, if public comments by a candidate are fair game, then why not private comments? (Say, a leaked tape of statements made to a group of donors? Or Richard Nixon’s presidential tapes?) Finally, it’s worth pointing out that candidates lie sometimes–how is that supposed to be taken into account?

Judges are certainly aware of what was said in the campaign–they do watch the news.  But relying on that as authority is ill-advised.


The Supreme Court Decision on Brexit

Today the British Supreme Court held (by an 8-3 vote) that Parliament must approve the invocation of Article 50 for the country to leave the European Union. I think this conclusion is correct, but the decision does open up at least one can of worms.

The House of Commons will almost certainly approve such a bill, but what about the House of Lords?  The Lords still have the power to delay the enactment of any legislation passed by the Commons for up to one year. If they do that (and they well might, given that the Lords are far more pro-EU than everyone else), then that would delay the start of the exit process until 2018. I wonder what elected representatives and voters will think about that if it happens.