Wednesday, November 22, 2017

Reconsidering the Heckler's Veto Principle

by Michael Dorf

As I noted here last week, on Monday, UC Berkeley Law School Dean Erwin Chemerinsky delivered two lectures at Cornell on "Free Speech on Campus." He was thoughtful and erudite, and I say that because it's true, not only because Dean Chemerinsky said he agreed with everything I said in my preview blog post!

I'm not going to try to recap everything Dean Chemerinsky said. Instead, I want to focus on what he described as a gray area: the scope of the obligation of government--including public universities like UC Berkeley--to pay the added safety costs associated with speakers with highly controversial views.

Tuesday, November 21, 2017

Viewing Old Movies and TV Shows from a (Somewhat) More Enlightened Perspective

by Neil H. Buchanan

The sudden wave of social acknowledgement of the ways in which men have long mistreated women is as unexpected as it is welcome.  We are in what seems to be a transformative moment in history, and we can only hope that it leads to a thoroughgoing change in men's behavior and everyone's expectations.

By far the most ink has been spilled recently discussing U.S. Senate candidate Roy Moore and his harassment (and worse) of underage girls when he was in his thirties.  I have nothing to add to that discussion, but I will note that Donald Trump's (mis)handling of the Moore mess includes this gem:
"[White House press secretary Sarah Huckabee] Sanders said Thursday that Trump considers the allegations against Moore 'extremely troubling' but does not plan to rescind his endorsement and thinks that Alabama voters should be the ones to pick their next senator."
Now, if Trump truly believed that Alabama voters should pick their next senator and that no outsiders should try to change the outcome, he would never have endorsed Moore in the first place.  But Trump's version of remaining "neutral" about Moore is to endorse him and then not to rescind his endorsement even in light of extremely troubling allegations, so that Alabamians can think for themselves.  Brilliant!

Of course, by Trump's degraded standards of reasoning, that is almost Aristotelian in its nuance.  And let us not forget that Sanders has also said that the difference between Moore and Senator Al Franken is that Moore denies the charges.  Trump is famous for believing people's denials, after all.  Just ask Hillary Clinton and Barack Obama.

Speaking of Franken, as of this writing we now have two accusers who have put his political career in a tailspin.  In the few short days since the first accusation against Franken became public, there has been an outpouring of very smart commentary on both sides of the question of whether Franken should resign his Senate seat.  It is not an easy call either way, but for the record, my immediate reaction was that he had to go (and that was before the second accuser came forward).  Although this column addresses a different subject, I can say that I continue to believe that he should resign.

But beyond the direct political questions, the first Franken accusation has caused me to think about what counts as funny.  More specifically, the interesting question is how our standards of humor will change because of this turbulent moment in history, and how we will look at popular entertainment from the past in light of our new and (one fervently hopes) permanently more enlightened attitudes about sexual harassment and abuse.

Monday, November 20, 2017

Text and History Fed Soc Style

By Eric Segall

Professors Randy Barnett and Akhil Amar had a fascinating, informative and entertaining debate at the Federalist Society Convention on Saturday. The question was "Resolved: Lochner Still Crazy after all These Years." I recommend you watch the entire debate, but I want to focus on what Barnett said at the very end. In response to a question concerning how far the legal academy has come in accepting the idea that maybe Lochner wasn't all that bad, Barnett attributed the development to the Federalist Society's thirty-year commitment to pushing judges to adopt a textualist-originalist approach to constitutional interpretation. Barnett's explanation echoed the overriding theme of the conference, which was that finally textualist-originalist judges were being appointed to the bench. The White House counsel said at the convention, to everyone's delight, that "The Trump Administration's philosophy on judging can be summarized in two words: "Originalism and Textualism.'"

Friday, November 17, 2017

Disaggregating Free Speech on Campus

by Michael Dorf

On Monday Nov 20, UC Berkeley Law School Dean Erwin Chemerinsky will be giving two talks at Cornell on the topic "Free Speech on Campus," which happens to be the title of his new book with Howard Gillman. I'll introduce Dean Chemerinsky at the law school event and, following his talk, moderate a discussion. I expect to have something to say by way of post-mortem on Tuesday. In this essay, I want to make a preliminary observation about Dean Chemerinsky's topic and then offer some illustrations.

My basic claim is that some free speech issues might be resolved differently in a college or university (what I'll call "campus") setting from how they might be resolved in general (what I'll call non-campus settings), but that the difference the campus setting makes depends on the question. In some contexts, the fact that speech claims are made on campus should make them stronger relative to competing claims; in other contexts, the fact that speech claims are made on campus should make them relatively weaker; and in still other contexts, the campus setting should make no difference.

That might not seem like much of an insight, but I think it is nonetheless worth highlighting, because there is a tendency in public debate about campus speech for conservatives to accuse liberal academics of hypocrisy--of wanting to deny conservatives freedom of speech (by campus speech codes, say) in the one setting where it should be sacrosanct (via academic freedom). There may indeed be hypocrisy afoot (by liberals, conservatives, and/or others), but the fact that some speech claims are weaker in virtue of occurring in the campus context is not necessarily evidence for that fact. The difference that the campus context makes is multivalent.

Thursday, November 16, 2017

What Would a Frustrated Republican Say On the Way Out?

by Neil H. Buchanan

A surprisingly large number of Republicans have announced their departures from Congress this year.  Including those who are retiring, resigning, and running for other offices, there are currently 25 members of the House who are either already gone or will not be back in January 2019.  Most are not well known.  More prominently, Senators Bob Corker and Jeff Flake are also quitting in disgust.

This is more than a bit unusual, because it is usually the minority party that suffers big losses of experienced people.  Why stick around, especially in the majority-is-everything House, when you are in the minority and when there are no White House perks or photo ops to make your job exciting?

But Republicans are leaving in droves.  I will leave it to others to ponder what this means about the majority party's leadership and Donald Trump.  My question today focuses on what the Republican leavers will say and do as they walk out the door.  Will they unload a political version of "take this job and shove it," revealing their true thoughts about the policies that they were expected to support?

Wednesday, November 15, 2017

The Free Speech and Equal Protection Exclusionary Rule

by Michael Dorf

My latest Verdict column asks whether the Justice Department is violating the First Amendment by conditioning its approval of AT&T's acquisition of Time Warner on divestiture of either DirecTV or Turner Broadcasting, the parent company of CNN. I conclude that there is probably enough prima facie evidence that the decision is in retaliation for CNN's "fake" (i.e., appropriately negative) coverage of Trump to justify discovery regarding subjective motivation should the issue end up in court.

En route to that conclusion, I compare and contrast the legal approach that prevails in free speech and equal protection pretext cases, on one hand, with the legal approach that prevails in Fourth Amendment pretext cases. Here I want to explore a point that seems to be insufficiently appreciated: the existence and strength of what I'll call the "Free Speech and Equal Protection exclusionary rule."

Tuesday, November 14, 2017

What If We Were Only Trying to Improve the Tax Code?

by Neil H. Buchanan

Imagine a world, not at all like our own, in which the Republican majorities in Congress had decided to update the tax code in a way that truly deserved to be called "reform."

Rather than proceeding from the firm commitment that they must cut taxes on large corporations and the superrich (especially the "lazy rich"), Republicans instead could have approached the tax code realistically and productively, noting that it must necessarily be complicated -- because life is complicated, and people want the tax code to take into account life's realities -- but doing everything that they can to repeal or change tax provisions that simply do not make sense.

Again, that is most definitely not what Republicans are actually doing.  They have proposed a melange of unrelated changes to the tax code that will hit various groups of taxpayers, but this is only happening because Republicans imposed restrictions on themselves that required them to offset some of the huge revenue losses that their dearly desired regressive tax cuts will create.

Even so, there is an interesting -- if entirely coincidental -- possible overlap between what Republicans have proposed and what responsible legislators might have proposed.  It is thus useful to think about a few Republican proposals from the standpoint of whether they are defensible ideas on their own merits, ignoring the undeniable fact that these changes are up for debate only because Republicans are hellbent on delivering huge windfalls to their mega-patrons.