Congress went and did it.

Today was a dark day for the Internet.

The U.S. Senate just voted 97-2 to pass the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865), a bill that silences online speech by forcing Internet platforms to censor their users. As lobbyists and members of Congress applaud themselves for enacting a law tackling the problem of trafficking, let’s be clear: Congress just made trafficking victims less safe, not more.

Sex trafficking sounds like a terrible thing, and it is, provided trafficking had a meaningful legal definition. It doesn’t. It’s a scary word that conjures up images of swarthy evil men driving trucks with young slave virgins to smoky rooms with purple velvet chaises. If that was what we were talking about, maybe a law could be fashioned to stop it and we would all applaud. But it’s not.  Continue reading →

Dersh is on the left. Toobin is on the right. Cooper is in the middle.

Some see Dersh as the voice of reason, fighting Trump Derangement Syndrome. Others, like Toobin, see him as a Trump apologist, pandering for the sake of keeping his mug on the telly as the former Harvard lawprof who takes a contrarian position to the more woke Larry Tribe. Continue reading →

People get miffed when they realize they’ve been played. Then again, they realize it so rarely that it’s not really a big deal for those doing the playing. Come up with something that, in the first few seconds of attention, gives people that warm and fuzzy feeling and you own them.

It worked for people, as the SJWs swoon for Preet Bharara, Sally Yates, Jim Comey and Andrew McCabe because they were unceremoniously fired by Trump, without the slightest clue what they were doing with the rest of their prosecutorial and law enforcement careers. It works for DoJ consent agreements, which tell tragic stories and change nothing.

And it works for things with cool sounding names, like Conviction Integrity Units. Continue reading →

Stephon Clark was killed in his backyard. His crime was holding a cellphone while being black. The cops made up some story about a crow bar, but there was video and it was a lie. Elie Mystal was rightly enraged, and wrongly lashed out.

If I tell you that Stephon Clark, a 22-year-old African-American male, was shot to death in his own backyard by the police, white people will immediately start making their peace with his execution. They’ll immediate start trying to justify the killing. Even “good” white people who know that I’m about to tell you another story of unvarnished police brutality will start imagining what combination of actions the VICTIM took that “caused” the cops to shoot him dead in his own yard.

Is that really what the “good” white people will start imagining? Well before Elie was hot on being hot, there were “good” white people trying to stop cops from killing unarmed, innocent people. We were trying to prevent the cops from killing anyone who didn’t need to die from being killed. Black, white, brown, green, they all deserved to survive.  Continue reading →

For the non-lawyers, moot court is where law students argue appeals as if they were real lawyers. All law students are required to do a moot court argument,* and thereafter they can be invited to join teams which compete against other schools.

For years, I judged moot court competitions, and loved it. Law schools invite real judges and lawyers to be the moot court judges, and the job is to question counsel during argument, score them and, after, critique their effort. For years, it was not only fun, but an excellent opportunity to watch some great, and occasionally some awful, law students at work. Most were quite good, and it gave us faith that the profession would survive.

But times changed, and with them, the nature of argumentation by students. I still get invited to judge a few times a year, but I politely decline. The last time I judged, we were prepped by the lawprof running the competition about what we were allowed to ask during argument and say during critique so as not to hurt the little darlings’ feelings. Continue reading →

Having just passed the 55th anniversary of the Supreme Court’s decision in Gideon v. Wainwright, holding that an indigent defendant is denied his fundamental right to a fair trial without assistance of counsel, Georgetown lawprof Paul Butler has revisited his 2013 Yale Law Review article on Gideon.

Have we failed indigent defendants by our societal refusal to adequately fund indigent defense? Nah, that’s not his problem at all.

A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon demonstrates this critique: it has not improved the situation of most poor people, and in some ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even full enforcement of Gideon would not significantly improve the loser status of low-income people in American criminal justice.

Continue reading →

The announcement of the Knight Columbia First Amendment Institute was encouraging, even if its first foray into the courts seemed a bit petty. Enough so that I expressed an interest in being involved, which was summarily ignored by Jameel Jaffer. Fair enough, though it would have been nice if he replied.

In any event, when the word came out that Knight/Columbia was holding a First Amendment symposium, that sounded interesting, and indeed it was, but not in the way I would have expected. The title was curious:

A First Amendment for All? Free Expression in an Age of Inequality

Continue reading →

It’s definitely a problem in cities, as you try to walk down the street only to have some jerk walk into you because his eyes are laser-focused on his iToy and he’s got absolutely no clue what’s happening around him and can’t bring himself to care. It’s likely a problem everywhere, as the problem occurs wherever people can’t manage to walk without staring at their phone.

And then there’s the schadenfreude that occurs when they walk into a wall or sign post, which can be very damaging and painful, even if caused by their own inability to get their head out of their…phone. But is making texting while walking a crime the way to fix it?

Officials in Montclair, in Southern California, decided that their 39,000 residents needed a heads-up — literally. There were accidents that resulted in part from pedestrians burying their noses in smartphones with their minds miles away. Something had to be done about these “cellphone zombies,” Edward Starr, the city manager, said. So Montclair made it illegalto cross streets while on a phone, texting or listening to music with buds in both ears. Fines of $100, and as much as $500 for repeat offenses, will go into effect in August.

Continue reading →

Spend time in the trenches and you get to know a lot of black and Hispanic kids very well. You take responsibility for their lives, and in the course of being their lawyer, you talk. You learn about them, their lives, their families. You learn about their education, their problems, their world. It’s not quite a representative sampling, since the people you get to know best have the common thread of being arrested and prosecuted, but you get close to a great many.

Unlike public defenders, private criminal defense lawyers get to spend far more time with their clients, and accordingly get to know them far better as people. We get to know their spouses, kids, parents and friends. These aren’t destitute people, but generally people who have sufficient funds to retain our services, so they aren’t exactly poor.

And one perpetual realization* has been that, had they not been black, not been Hispanic, they could be the CEO of a multinational corporation. You think it’s easy to create an organization where your competitors want to take away your market share with extreme prejudice? And beyond the competition, the 3-4 Precinct regulates your business with guns? Yet, they do. Some of these guys are quite brilliant, incredible organizers motivators and business people. So why aren’t they ruling the world? Continue reading →

If you’ve ever had the sense that no one takes note of what you put out on social media, maybe that you’re not quite as fascinating as you believe you are, there’s hope. At least if you’re a college student.

Campus Safety Magazine reports that the University of Virginia contracts with a service called Social Sentinel for $18,500 a year to monitor its students’ public social media posts. It works by scanning student social media accounts based on a “library of harm” of thousands of words curated by Social Sentinel in addition to words tailored to the specific school contracting with them. Posts from students containing words on these lists are forwarded to the police, who then decide whether or not to investigate the students.

Unless the school has a major donor with the last name “harm,” this is a bit disturbing. It likely surprises no one that there is a list of forbidden words, or that someone has created an algorithm to search students’ social media accounts for their appearance. That schools are doing so is Big Brother enough; but that they forward students’ posts to the police should they contain a verboten word reduces it to an entirely new depth of problems. Continue reading →