The Second Circuit smacked it down in Copeland v. Vance, when the attack was the lack of a mens rea requirement for New York’s misbegotten gravity knife law. It didn’t matter that you weren’t a criminal, that your possession had no criminal purpose, that it was, anywhere else, a perfectly lawful knife as any ordinary person would use. No, that wasn’t good enough.

The U.S. Court of Appeals for the Second Circuit acknowledged the law’s absence of a mens rea requirement but held that it makes no difference whether the defendant believed a knife was legal or not, whether he actually attempted a “wrist flick” to open the knife, or even if he received advice from a police officer that the knife was lawful. Ultimately, the court below suggested that challenges to such prosecutions could only be raised on an as-applied basis—meaning that when someone is prosecuted under this law for carrying a Swiss Army or other common folding knife, then he may be able to raise this defense.

The only solution was to buy a knife on Amazon, or at your local hardware store, and find out later whether some cop could, after as many tries as he felt inclined to give it, “flick” into movement, get arrested, spend a night in jail and await the joy of fighting it out. Continue reading →

The argument made by the Department of Justice before the Second Circuit, that this Trump guy blocks people on Twitter as a regular citizen exercising his First Amendment right, but twits as the president of the United States when he bans transgender people from the military, received the reaction it deserved.

The court appeared skeptical on Tuesday. Peter Hall, one of the judges on the panel, noted the oddity of the Justice Department representing Mr. Trump in his personal capacity. “It’s curious to me that the Department of Justice is here representing, essentially, a private entity,” he said.

Of course, this was a bit on the snarky side, given that it’s not only an “oddity” but an incongruity. If Trump used his @RealDonaldTrump twitter account to speak as president, then it’s inconsistent to claim that it was only when he wanted it to be viewed that way, and not when he didn’t. This would be true if the argument was made by his personal lawyer, MIchael Cohen, or by someone on the government payroll defending a petty man’s right to block citizens, even if it’s the least significant attack of things he does. Continue reading →

Were you outraged when the Cook County State’s Attorney’s office announced they dropped 16 counts of felony disorderly conduct against “Empire” actor Jussie Smollett? Or did you shrug and move on with your day? Your answer to that question is going to say a lot about how you really view our modern criminal justice system.

Smollett, in case you’ve been living under a rock, claimed two men in MAGA hats jumped him at 2 AM in Chicago on one of last January’s coldest nights. According to Jussie, the duo kicked him in the ribs, poured bleach on him, strung a noose around his neck and yelled, “This is MAGA country!” In Chicago, of all places. One understands why people would call “bullshit” on these claims from the start, but I digress.

Prominent politicians quickly dubbed the story a “modern day lynching.” Chicago police launched an investigation which led them to two Nigerian brothers Smollett met on the “Empire” set. The brothers claimed Smollett paid them $3,500 via check to help him stage the hate crime, and video apparently shows the two buying supplies for the attack. Continue reading →

San Antonio hates tasty chicken sandwiches. This isn’t my view, but the official view of Peter Kirsanow, a member of the United States Commission on Civil Rights.

If the City Council had banned Chick-Fil-A from the airport because its members hate the
tastiest chicken sandwiches in creation, there would be no constitutional violation. The City
Council, however, explicitly banned Chick-Fil-A because of the company’s charitable donations
to religious organizations. Fortune reports:

“With this decision, the City Council reaffirmed the work our city has done to become a champion of equality and inclusion,” said City Councilman Roberto Treviño. “San Antonio is a city full of compassion, and we do not have room in our facilities for a company with a history of anti-LGBTQ behavior.”

The lack of self-awareness in that statement is astonishing. Exclusion in the name of
ostensible inclusion; intolerance in the name of tolerance.

Continue reading →

Clarissa Byrne Hessick came at the problem from the perspective of rules. Not “mandatory” rules, as that was beyond what anyone could impose, but the creation of norms that would guide law professors in how to twit so as to neither embarrass the Legal Academy nor use the status of “professor” in a way that deceived the public by conveying the imprimatur of scholarly credibility when they were just blowing random personal opinions out their butt.

Not being a big fan of rules, it struck me as inflexible and censorious. Sure, prawfs have their areas of scholarship, where they may (or may not) be particularly knowledgeable. But they too get to have opinions beyond the narrow limits of what they teach and research, and this being America, they get to express them. Free speech doesn’t mean wise speech, or expert speech, but speech. Even prawfs are entitled to it. Even when they’re wrong. Even when a renowned Harvard legal giant endorses the views of Louise Mensch.

That doesn’t mean, of course, that bootstrapping the ascribed credibility of the job to peddle nonsensical, if not dangerous, opinions isn’t a problem. Continue reading →

The farm was maintained as an homage to American history, or at least what was considered American history before it was reinvented to show that it was the history of awfulness. Still, students from the Claremont School District went there on field trips. Until they didn’t. David French explains why.

Though it was lost in the national news cycle, Central District of California Judge Jesus Bernal — an Obama appointee — issued a ruling that directly challenged government boycotts and reprisals against allegedly intolerant business owners. The case is called Riley’s American Heritage Farms v. Claremont Unified School District, and the facts are similar enough to  government actions against Chick-fil-A that the franchise’s lawyers should take notice.  The farm is a “living history farm,” and it frequently hosts school field trips. At the farm “immersive presentations focused on the American Revolution, Civil War, American colonial farm life, California Gold Rush, and pioneering homesteading history.” The presentations strive to be historically accurate and contain no political or cultural commentary. The farm maintains a social media presence, and its social media accounts are also politics-free.

Whether Riley’s farm is a testament to the American experience or our colonialism and original sin, it was there for students to see. But one of the farm’s owners, James Riley, also had some thoughts of his own. Continue reading →

When my buddy, Donald, and I backpacked around the continent after college, there was a running joke about how the kids in each country spoke their national language. “Isn’t it great how every kid in France speaks a foreign language?” We were so witty. But the reality was that most people we met spoke English as well as their native tongue.

But what about us? Back then, everybody took a foreign language in school. Our choices were generally French, German or Spanish, as Latin had fallen out of fashion. Few became even remotely conversant, but at least we had some exposure. No more.

In January, the Modern Language Association made an astonishing announcement in The Chronicle of Higher Education: From 2013 to 2016, colleges across the United States cut 651 foreign language programs. French was the hardest hit, losing 129 programs, followed by Spanish with 118, German with 86 and Italian with 56. Once these programs close, they are very hard to reopen.

Continue reading →

Indicted to the right. Indicted to the left. It was obvious from the start that he was playing Icarus, spewing bluster like any loudmouth fool can do, but with a standing invitation to sit with Rachel and Ari whenever he didn’t have someone more important to hang with. Sure, Mark Geragos tried that before him, albeit with somewhat less noise and more signal, and it failed to land him a prime time special, but the sun was shining on Michael Avenatti. Or at least the Klieg lights.

But Avenatti’s entrance to the studio was paved by Stormy Daniels, who had nothing nice to say about Trump, and so his bluster was not merely welcomed, accepted, but adored. Since then, he hasn’t been particularly useful, given his ridiculously hyperbolic introduction of a false accuser forward against Justice Kavanaugh that undermined the efforts to taint him as a teenage rapist.

Of course, there were also his claims that he was solely responsible for bringing down Trump’s hatchet man, Michael Cohen, even though it turns out that the feds were onto him years before anybody outside of bankruptcy court and the grievance committee knew Avenatti’s name. Continue reading →

The story is that Associate Justice Harry Blackmun was given authorship of the 7-2 majority opinion in Roe v. Wade because he was the Court’s medical maven. Before joining the Court, he had represented the Mayo Clinic, and so by some magic of osmosis, he absorbed medical knowledge sufficient to enable him to pen a more sound decision than the brethren.

This may well be true, not so much because Blackmun was personally capable of doing more than placing a band-aid on a boo boo, but because the rest of the Court was even more lacking in medical knowledge than Harry. In the land of the blind, the one-eyed man is king.

At Slate, Kyle Barry calls for the Democratic candidates for president to make a commitment. Continue reading →

Like Robert Mueller, Neal Katyal is widely viewed as an “honest broker” in the Trump Wars, having been engaged to write the regulations under which the Special Counsel was to investigate whether a United States president was elected with collusion of an historic enemy. He now suggests, without admitting that he may have neglected some salient details, that his product is tainted.

But the critical part of the letter is that it now creates a whole new mess. After laying out the scope of the investigation and noting that Mr. Mueller’s report does not offer any legal recommendations, Mr. Barr declares that it therefore “leaves it to the attorney general to decide whether the conduct described in the report constitutes a crime.” He then concludes the president did not obstruct justice when he fired the F.B.I. director, James Comey.

Of course Trump declares he was “EXONERATED,” notwithstanding the explicit language in Barr’s letter that says he was not. Continue reading →