University of Washington University lawprof Ronald K.L. Collins has been doing a First Amendment news column at Concurring Opinions, and for criminal defense lawyers, it’s a “must read” given the overlap of speech and crime that’s poked its nose under the tent.  If you haven’t been following, we’ve gone beyond the place where conduct has been the target of criminalization, into the realm where speech and thoughts are the new targets of criminal prohibitionists.

While the cries of harms and fouls talk about the suffering of the victims and survivors, the actual target of laws sought and, too often, obtained, is the ideas that offend people. The only real trick has been how to couch speech and thought in terms of conduct, or of such severe harm, so as to blind those disinclined to critical thought so that they can join the team and rationalize away logic.  Collins, whose column is usually limited to First Amendment news, decided that the time has come to deal with what has become obvious to anyone not utterly bound by their feelz.

Say goodbye to John Milton and his claims in Areopagitica (1644): “And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”

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Wearing his official Houston oral argument cowboy boots, Mark Bennett stood at the podium on the sixth floor of the Georgia Supreme Court to argue that a law criminalizing dirty talk to kids was unconstitutional.  He was ready to fight.

His argument was legally beyond reproach, all speech that does not fall within a category established by the Supreme Court of the United States of unprotected speech is free speech.  If it’s free speech, it cannot be criminal to utter it.

But the Georgia law had great emotional appeal. Talking dirty to kids on the internet is hardly something most of us would find acceptable.  Certainly not valuable.  What about the children?  What about the harm done to them? Was the Georgia legislature not empowered, not required, to protect the children from predators who would seek sexual gratification from talking dirty to kids?

This is where the law is at its best and worst.  This is where reason and emotion clash.  While judges may be smart, they are also human.  Nobody can turn a blind eye to some of the awful things that happen online. Nobody feels good about the ugliness that some people do.  And indeed, Bennett’s adversary, Jay Sekulow, went for the feelz. Continue reading →

The Supreme Court heard oral argument in Utah v. Strieff yesterday. That cert was granted at all was cause for serious concern. It was an easy case. The Utah Supreme Court upheld suppression.  These factors added up to a huge problem, as nothing good could come of the Supremes taking the case.

The case, Utah v. Strieff, started in 2006, when the Salt Lake City police got an anonymous tip reporting drug activity at a house. An officer monitored the house for several days and became suspicious at the number of people he saw entering and leaving. When one of those people, Edward Strieff, left to walk to a nearby convenience store, the officer stopped him and asked for his identification.

A routine check revealed that Mr. Strieff had an outstanding “small traffic warrant.” The officer arrested him based on that earlier warrant, searched him and found a bag of methamphetamine and drug paraphernalia in his pockets.

At the time they seized Strieff, they had no reasonable suspicion that he had committed a crime. They just grabbed him. That they learned after the fact that he had an outstanding warrant was fortuitous. Based upon the existence of the warrant, they arrested him and searched. Boom. Drugs. Continue reading →

It was one thing for uber-elitist Larry Summers to carry the anti-cash banner, but the Times?  Yes. That Times:

Few Europeans use the 500-euro note, and most Americans rarely encounter the $100 bill. Yet hundreds of millions of these notes are in circulation around the world, where they are often used by drug cartels, corrupt politicians, terrorists and tax cheats to evade law enforcement. That’s why officials in Europe and elsewhere are proposing to end the printing of high-denomination bills.

Getting rid of big bills will make it harder for criminals to do business and make it easier for law enforcement to detect illicit activity.

So they say.  Almost a repeat, word for word, of Larry Summers’ pitch. They even threw in the “bin Laden” thing, though I’ve never heard anybody call it that. Then again, Larry and I hang in different circles.

Will getting rid of big bills help law enforcement? Sure. So will warrantless searches of homes at will. Are we making a list? It will be very long. Very long indeed. But since when did the New York Times extol the virtues of ease of law enforcement when it came at the expense of those people it loves so much? Continue reading →

A reflection of who reads, and perhaps comments, at SJ, few could conceive of a sound basis for the government’s efforts to compel Apple to comply with Magistrate Judge Pym’s order.  Even as the government sought to seize the narrative, neither the geeks nor lawyers seemed to be persuaded. But then, the world isn’t made up of only geeks and lawyers.  And FBI Director Jim Comey knows that.

The San Bernardino litigation isn’t about trying to set a precedent or send any kind of message. It is about the victims and justice. Fourteen people were slaughtered and many more had their lives and bodies ruined. We owe them a thorough and professional investigation under law. That’s what this is. The American people should expect nothing less from the FBI.

Do it for the children victims.  And, indeed, the victims agree.

Some victims of the San Bernardino attack will file a legal brief in support of the U.S. government’s attempt to force Apple Inc to unlock the encrypted iPhone belonging to one of the shooters, a lawyer representing the victims said on Sunday. Continue reading →

He’s an unabashed arch-conservative, whose twits tended to reflect his beliefs. They are, by no one’s definition, weak sauce. I’ve seen his twits occasionally, and found them too extreme for my taste.  Apparently, I’m not alone in that regard.

At the same time, they have never suggested any harm be done to anyone, as far as I’ve ever heard. Not physical, not sexual. Not even intellectual, provided one doesn’t subscribe to the belief that views with which one does not agree are “mind rape,” or whatever new phrase the kids are using these days.

So why did Twitter suspend @rsmccain?

The question is not whether Twitter had the power to do so. It did. It’s a private enterprise, fully allowed to remove anyone it decides to remove.  This is America, and every business is entitled to conduct itself as it wishes.

And that’s the question. Is this what Twitter, what Jack Dorsey, Twitter’s CEO, wishes?  Apparently so.

Unexpectedly, and without explanation, my @rsmccain Twitter accountwas suspended Friday evening. Based on past experiences, my guess would be that this resulted from a complaint by one of the leading “social justice warriors” (SJWs) who have been at war with #GamerGate since August 2014. However, there was no reason stated for the suspension, and who knows?

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It struck some as odd that such a resolution made it onto the agenda at all.  Diversity and inclusion?  Not just for law firms, or the practice of law, or the judiciary, but for . . . the world?  When did the American Bar Association decide that its mission was to make the world “socially just,” whatever that means?  When did the ABA decide that law, lawyers and clients was not enough to keep it busy?

But the ABA needs new blood, young blood, in order to keep its coffers filled, and this was just the type of issue that, in the minds of old men who don’t twit, would attract the babies.  That or free tattoos, which would have been wholly unacceptable.

And then there’s regulatory capture, the folks with a horse in the race and enough time on their hands to dream up important issues in need of the ABA’s attention. There’s a name for these folks. No, not terminally unemployed, you silly. It’s law professors, and they do a good deal of the heavy lifting in organizations that rule by committee. Because they can, while others either work for a living or just don’t give a shit. Because their livelihood depends on it. Continue reading →

Picking battles is often one of the most difficult things to do when everything, everything, provokes outrage and offense.  In the war over the Harvard Law School shield, the trauma of the Royall family’s history as slave owners compelled some students to demand its eradication.  They demanded a “debate.”

Over the past few months, many have accused student activists from Cape Town to Cambridge of engaging in polemic behavior and creating hostile campus environments. Critics have argued that, in doing so, activists are killing productive discourse, ignoring the implications of the sound of silence, and exploiting terms like “white privilege.”

In conversation last Monday, Professor Nesson described the recent debate about changing the HLS shield given its ties to slavery as an opportunity to distinguish ourselves from polemic student protests—we could set the standard for a dialogic process and protect its legitimacy.

Except the other side wasn’t sufficiently interested to play its role in the show. Continue reading →

Although Apple had yet to submit a piece of paper in response to the warrant granted by Magistrate Judge Pym, the government made a tactical decision to pre-empt its response by filing a motion to compel Apple to comply.  Its justification for jumping the shark?

Rather than assist the effort to fully investigate a deadly terrorist attack by obeying this court’s order, Apple has responded by publicly repudiating that order.

In itself, this is a remarkable claim.  After all, Apple has retained counsel to represent its interests in this matter, and its lawyers have yet to express Apple’s legal position. Public announcements, such as Tim Cook’s letter to Apple customers, are of no legal significance, and Apple’s opportunity to respond to the initial warrant had not elapsed.  But the government saw the opportunity, and seized it.

The motion to compel is a brilliant tactical move by the government. Continue reading →

There is no question, none, that there is a critical problem with police shooting when there is no imminent threat to life.  We’ve reached the point where the First Rule of Policing is used to justify firing at the mere anticipatory excuse of a potential threat. The difference is huge. It’s the difference between the guy reaching for his waistband because his butt itches and the guy reaching for a gun. One is not a good reason to kill.

But then, why not come up with a solution so mind-numbingly simplistic and wrong that it’s bound to help no one?

Responding to calls for reform after a fatal police shooting, the San Francisco Police Department on Wednesday unveiled new training methods that require officers to shoot only two rounds at a time.

The changes came more than two months after five officers shot 26-year-old Mario Woods 21 times on Dec. 2 last year. Woods’ death led to a federal review of the city’s police department. Continue reading →