A Sociologist’s View Of Free Speech

That Katherine Cross’ last post was “Why Punching Nazis Is Not Only Ethical, But Imperative” shouldn’t put you off of reading what this sociologist, transfeminist, has to say about free speech. After all, who better to explain the Constitution?

Cross’ post takes liberals to task for ruining free speech by supporting it as a principle rather than a weapon to be used for, and against, evil. Her opening paragraphs set a definite tone:

Nothing proliferates speech quite like a debate about a white man’s inalienable right to it.

Ever since a bit of lighting equipment was set on fire at UC Berkeley, causing the cancellation of a planned rally by Breitbart editor and professional crypto-fascist troll Milo Yiannopoulos, we’ve seen endless handwringing and finger-wagging defending his right to free speech and chastising of the evil, violent protesters. Interestingly enough, there wasn’t anywhere near this much speech surrounding the attempted murder of an anti-fascist protester at the University of Washington by one of Milo’s supporters. Apparently, a right-winger trying to shoot someone to death matters less than an anarchist smashing a Starbucks window, but I digress.

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Making Sense Of An Unserious Position

The Ninth Circuit has ruled that it will not enjoin the order of Judge James Robart, granting a worldwide temporary restraining order on the implementation of Trump’s travel ban Executive Order. Noting the limits of what this decision addressed, because the procedure is fairly convoluted, it merely keeps the EO on ice for now. Trump ordered it. Robart said no. The 9th said not good enough to reverse Robart.

There is much for very thoughtful lawyers to take away from the Ninth Circuit’s per curiam opinion. If you want to take a deep dive into the arguments in support of the decision, read lawprofs Will Baude and Ilya Somin. For the less than supportive views, check out Josh Blackman and Eugene Kontorovich.

The decision has many moving parts, from the standing issue (is the State of Washington “injured” sufficiently to be able to assert its challenge to the EO?) to the “plenary power” doctrine (that decisions as to immigration and national security reside exclusively in the President, and are not reviewable by the courts). None of it is simple or obvious, though people assert them as if they are, and “it is because it is.” Continue reading

The One Data Point Of Oral Argument

They say 135,000 people listened to the Ninth Circuit’s podcast of the telephone argument in Washington v. Trump. The LA Times offers a headline:

U.S. 9th Circuit judges appear to agree that states have standing to challenge travel ban

That’s not the way courts work, of course, but what does the LA Times care? One will know what the panel holds when it issues its decision, and even then, the court may not issue any more than a cursory granted or denied. Having listened to the argument, it’s not that the Times is wrong, but that it’s wrong to leap to conclusions about what a court will ultimately do. Every lawyer knows better than to leap to assumptions. Every lawyer who has ever argued a cause knows the crush when it went brilliantly, and then they lost.

To some, the interest in the argument, a piddly telephone argument about a TRO of all things, showed that people do care about the law. It’s hardly as clear as that. They cared about the travel ban, and only what the law could do to serve their certainty that Trump was wrong. Then again, it has a 55% approval rating according to Business Insider. Continue reading

Best of Intentions In The Battle For Bucks

After Donald Trump twitted about how unfair Nordstrom was to his daughter, Ivanka, in dropping her line of whatever it is she sells, people were outraged that he used his presidency, not to mention his @POTUS twitter handle,* to back his child. On the bright side, word is that Nordstrom sold out of its Hermès “#TheResistance” Birkin bags, made of recycled toilet paper, on sale for $10,749.99.

In the meantime, the Senate confirmed the 84th Attorney General of the United States, Jeff Sessions. The combination of outrage at Sessions’ 30-year-old racism, plus McConnell’s making Liz Warren look sympathetic, consumed people’s daily dose of legalish outrage. Too bad so few paid much attention to things that Sessions might actually do with his hands on the wheel of the Department of Justice. You know, law stuff rather than racial injustice that makes you verklempt.

And that means it’s money time for the civil rights organizations that seem so very critical if you squint your eyes and don’t think too hard. They have no handbags to sell, so they are busy selling you what they can. Continue reading

Civil Forfeiture, From The Top

It’s like the last 40 years never happened. Sure, you’re all woke about in rem asset forfeiture now. The stories of travesties abound, of innocent people whose cash was stolen by cops, left to fight back if the cost of possibly winning didn’t exceed the cost of walking away. We’ve been here. We’ve done this.

From the early days of civil asset forfeiture, when almost everyone locked arms in support of the “take the profit out of crime” trope because it only happened to drug dealers, we’ve come a long way. And now gone back to square one.

President Donald Trump said on Tuesday there was “no reason” to curb law enforcement agencies that seize cash, vehicles and other assets of people suspected of crimes, a practice that some lawmakers and activists have criticized for denying legal rights.

The issue of civil asset forfeiture, created to disrupt the activities of organized crime groups, arose when sheriffs from around the United States told Trump at a White House meeting that they were under pressure to ease the practice. Continue reading

The Senate’s Insidious Hypocritical Rebuke (Update)

It’s a truism that free speech is usually defended on behalf of the most despised among us, putting me in the unpleasant position of speaking out for Elizabeth Warren. The junior senator from Massachusetts sought to read a 30-year-old letter from Coretta Scott King, dating to Attorney General nominee Jeff Sessions’ failed effort to be confirmed as an Article III judge.

Sen. Elizabeth Warren has earned a rare rebuke by the Senate for — believe it or not — quoting Coretta Scott King on the Senate floor.

The Massachusetts Democrat ran afoul of the chamber’s arcane rules by reading a 30-year-old letter from Dr. Martin Luther King’s widow that dated to Sen. Jeff Sessions’ failed judicial nomination three decades ago.

The chamber is debating the Alabama Republican’s nomination for attorney general, with Democrats dropping senatorial niceties to oppose Sessions and Republicans sticking up for him.

This was, of course, part of the dog and pony show put on by the nation’s most genteel deliberative body for public consumption. There was nothing new about the letter, or the characterization of Sessions it reflected. Warren was playing to her tribe, using the Senate as her stage. This isn’t exactly a new thing in Congress. Continue reading

Begging The Word Rape

Nebraska Senior District Court Judge Richard Kopf got an imaginative complaint for declaratory judgment. Rape? Federal judges don’t deal with rape.

The suit sought a declaratory judgment against a state court judge (a male) who was knee-deep in handling a high profile date-rape trial. The judge was named as the sole defendant in his official capacity only. In essence, [Wendy] Murphy (together with other lawyers) and her client, the alleged victim, wanted me to instruct the state court judge on the proper reading of the rules of evidence and the law regarding motions in limine in a date-rape prosecution then pending in the District Court of Lancaster County, Nebraska.

But for Judge Kopf, it wasn’t about the act of rape, but the word “rape,” an entirely different problem.  Not only did Judge Kopf dismiss the complaint, but he imposed Rule 11 sanctions for this novel action.

One of the lawyers for the plaintiff was Wendy Murphy, an “adjunct professor of sexual violence law at New England Law Boston.”  Ms. Murphy describes herself as an “impact litigator” on issues of sexual violence against women.

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Race To The Bottom, Audi Edition

Did it get you? Did it make you feel all sad for your daughter? Did it make you want to buy an Audi because they’re so very social justice-y? During Super Bowl 51, you were fed a diet of social justice marketing, with Audi offering one of the most flagrant.

Whether you think this was a substantively persuasive pitch, too politically overt, silly or disingenuous, Audi paid a lot of money to get us to see it. Some might suggest the money would have been better spent actually paying their underpaid women, but then nobody would have known of their concern.

Carl Marci, chief neuroscientist at Nielsen, the TV ratings company, said, “If you make people think too much or get too serious during a game where people are really looking to be entertained, you’re taking a risk.”

That risk can pay off, though.

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The Rubicon Of Knowledge

As the great legal philosopher, Ron White, warned, “you can’t fix stupid.” But ignorance isn’t the same as stupid. The latter is forgivable because stupid people can’t help themselves. That’s the best they can do. Ignorance, on the other hand, is a choice.

In the Chronicle of Higher Education, Tom Nichols contends that schools are turning out rubes.

You know,” then-candidate Donald Trump said during the 2016 campaign, “I’ve always wanted to say this: … The experts are terrible.” Trump has often been caught at a loss over basic issues of public policy and has repeatedly bashed intellectuals who criticized his lack of substance. He famously exulted, “I love the poorly educated,” demanded that President Obama prove his American citizenship, and cited the National Enquirer approvingly as a source in charging that the father of one of his opponents, Ted Cruz, was involved in the assassination of President John F. Kennedy.

Hah, the twitters laugh at this idiot. He’s so stupid. He’s such a moron. The critics range from teens to grandmas, every one of whom is so much smarter than this. There are two things that can be true at the same time: that President Trump is a dolt and that you are too. Continue reading

The Trump Effect: Criminal Law Reform From The Trenches

At Fault Lines, Sam Bieler called it out: If criminal law reform is over, blame the cowards.

Donald Trump’s inauguration has prompted a great wailing and gnashing of teeth over the many ways the United States is about to become less great. Now, with Jeff Session’s confirmation all but inevitable, the most piercing wails have been reserved for the fate of the Civil Rights Division of the Department of Justice, which oversees everything from voting rights to police abuse litigation.

It is this latter charge that has commentators particularly worried: given Session’s hostility to federal investigations of police, pundits expect a dramatic fall-off in the number of cases DOJ will bring. Will this be a substantial roadblock to police reform? Only if state and local leaders display the lack of backbone they have to date.

The vast majority of criminal law reform happens far from the beltway. We tend to obsess over Supreme Court decisions and federal laws, but the ones that impact most people are made in places like Jefferson City, Tallahassee and Salt Lake City. Use of force policies are decided by local police chiefs. Prosecutorial discretion is exercised in small offices with metal desks by young lawyers whose names are never mentioned. Continue reading

Greenhouse Trolls C.J. Roberts: Are You Manly Enough?

With public pressure on the judiciary, because that’s how it works, to rule in accord with their feelz, Linda Greenhouse, the Yale Law School lecturer who didn’t think it worth her while to go to law school, uses her Gray Lady soapbox to goad the chief justice of the United States.

But if the pre-election possibility of spending the next years or decades in the minority was scary for the chief justice, he now faces something even more daunting: responsibility.

Because the chief justice, heck, any justice, otherwise has no responsibility? Cool story, sis.

President Trump’s hyperactive first days in office, along with the evidence that the two Republican-controlled houses of Congress will do the president’s bidding with few questions asked, leaves the judiciary as the only branch of government standing between the new administration and constitutional chaos. Consider what would have happened last weekend had half a dozen federal judges not stepped in to prevent the immediate ouster from the country of legal permanent residents and carefully vetted refugees and visa holders.

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A Great Guy, A Lousy Judge: So What? (Update)

It’s a good bet that somewhere in his chambers, United States Senior District Court Judge James Louis Robart has a certificate proving that he is, without question, an Article III judge. He was nominated by President George W. Bush, confirmed by the Senate by vote of 99-0, and assumed office on June 21, 2004. He took senior status on June 28, 2016.

By some accounts, he seems like a swell guy, and I’m fully prepared to accept that premise that he is a particularly decent human being. That’s great, but irrelevant. So too is the identity of the president who appointed him or the vote count in the Senate that confirmed him. If he was appointed by Millard Fillmore by a vote of 51-49, he would still be the same human being he is, and still be an Article III judge.

After making a ruling in a controversial case, he was the target of a twit by the president that characterized Judge Robart as a “so-called judge.” This was a problem. By targeting criticism at Judge Robart’s authority to rule as a judge, it undermined the authority of a judicial officer to perform his constitutional function. It made people stupider, informing them that an adverse ruling raises questions of judicial legitimacy. As William Baude explained, there are two ways to criticize a court: Continue reading