The Four Lies and a Truth at the Heart of O'Keefe's Failed WaPo Sting Attempt

by Michael Dorf

Right-wing provocateur James O'Keefe and his organization Project Veritas were in the news this week, but not in the way that he hoped. O'Keefe sent a woman to talk to Washington Post reporters falsely claiming to have had an abortion as a teenager after she was impregnated by Roy Moore. Presumably, O'Keefe hoped that the Post would run the story, whereupon he would reveal that it was false, and this would show that: (a) the Post has a liberal bias that leads it to cut corners when reporting negative news about conservatives; and therefore (b) prior WaPo reporting on Roy Moore's sordid sexual history is not credible. The Post foiled O'Keefe's plans by fact-checking the woman's story. When it did not check out, the Post did not run her false story, instead running the story of how O'Keefe tried to fool the Post.

There the episode might have ended were it not for the fact that O'Keefe and his acolytes do not just run stings against liberal targets. To use the language of a forthcoming article in the University of Pennsylvania Journal of Constitutional Law by Prof Sid Tarrow and me, they combine stings--undercover reporting aimed at exposing wrongdoing--with scams--misrepresentation of the results of the stings through selective editing. Thus, even after the Post revealed that it was onto him, O'Keefe released a deceptively edited video suggesting that the Post was really just trying to cover up some other form of wrongdoing. This too was revealed by the Post.

Even as Prof Tarrow and I deplore scams, we acknowledge that there should be some protection for stings. We agree with Profs Justin Marceau and Alan Chen, who argue in a recent Columbia Law Review article that the First Amendment ought to be construed to permit some deception by journalists (and others performing journalistic activities) to gain access to persons or property in order to discover matters of public concern. Protecting scammers like O'Keefe may be the cost of protecting real investigative journalism by honest journalists and activists.

Why It's So Hard For The Senate To Purge Offenders

by Michael Dorf

My latest Verdict column explores the reasons for the difference in reaction time to sexual harassment, sexual assault, and other sexual misconduct in the private sector (thus far mostly Hollywood and the media) versus in government. I note that actors, directors, journalists, etc., have been meeting with swift termination, while elected officials have not been. I offer a couple of factors as key to the explanation of the disparity. First, polarization makes people likely to view both the seriousness and truthfulness of the allegations through a partisan lens. And second, even when people accept that "their guy" did the thing and it was bad, it is instrumentally rational to stick with your scoundrel if he will vote as you expect, rather than to jump ship in favor of an upstanding citizen of the rival party.

How Should a Committed Originalist Decide Masterpiece Cakeshop?

By Eric Segall

Next Tuesday, the Supreme Court will hear the case of the Colorado baker who refuses to allow his products to be used in same-sex wedding ceremonies or celebrations. Colorado courts found that his refusal violated a state law prohibiting vendors from discriminating on the basis of sexual orientation. The baker, Jack Phillips, claims that the Colorado law, as applied to him, violates the First Amendment’s speech and religion clauses. This collision between anti-discrimination laws protecting gays and lesbians on the one hand and opponents of same-sex marriage on religious and free speech grounds on the other hand is the latest battle in the national culture wars. 

Justices Gorsuch and Thomas both claim to be committed originalists. Since it is likely the four liberals on the Court will rule in favor of Colorado, one more vote for the State should result in its victory. How should a committed originalist decide this case? 

Dementor ideas—and how to survive them

By William Hausdorff

The glimmers of hope from the most recent state and local elections in Virginia and elsewhere paradoxically made me aware of how thick is the cloud of gloom that had descended on many of us since the previous US national election.  This gloom that has made many of us question, for the first time, the very resilience of the US political democracy.

In trying to cope with this, Masha Gessen drew on her previous life in a gloomy environment in an excellent essay:

…a decade and a half in Putin’s Russia taught me something about living in an autocracy. I am familiar with the ways in which it numbs the mind and drains the spirit. 

In contrast, I have recently been pondering the Dementors described by J.K. Rowling in her Harry Potter books:

Dementors are among the foulest creatures that walk this earth. They infest the darkest, filthiest places, they glory in decay and despair, they drain peace, hope, and happiness out of the air around them... Get too near a Dementor and every good feeling, every happy memory will be sucked out of you. If it can, the Dementor will feed on you long enough to reduce you to something like itself... soulless and evil. You will be left with nothing but the worst experiences of your life.

While it’s tempting to consider Trump the Dementor-in-Chief, a simple thought experiment reveals he is not the sole source—if he were removed from office tomorrow, even if a cause for great celebration, would the gloom lift overnight?  We would still have white nationalism, Pence, the Tea Party Congress, etc.  True dementors are much more insidious and subtle.

Of Magic Asterisks, Time Bombs, and Other Republican Deceptions

by Neil H. Buchanan

The Republicans' attempt to sell their damaging and regressive tax plan is proceeding pretty much as one would expect.  They are making unsupportable economic claims while endlessly repeating an up-is-down-freedom-is-slavery-everything-will-be-different-this-time big lie, claiming that their proposals are all about improving the lives of middle class people.  This has become standard operating procedure for Republicans in the twenty-first century.

Although we have long since become accustomed to most of this, we must constantly remind ourselves that it is a very sad state of affairs when we find ourselves saying, "Sure, one of the two major political parties cannot make an honest case even for its most fervently held policy goal, but what are you gonna do?"  Even so, at this point it would barely be worth writing yet another column on this topic if there were not some new aspect to the Republicans' relentless, pathological dishonesty.

And as it happens, there is something new going on in late 2017.  The Republicans have openly embraced not only fantasy economic forecasting but fantasy political forecasting as well.  They have decided to rest their political case on the assertion that the future tax increases for lower- and middle-class people that are necessarily built into their scheme will never happen, because today's Republicans just know that a future Congress will never let them happen.

This is even worse than it sounds.  Indeed, it represents an effort by Republicans to ignore very recent evidence about how the political process can go off the rails.  They are telling non-rich Americans to trust them, even though these same Republicans have shown no ability to predict their own future actions.

Remember the "sequester"?  That was the set of future automatic spending cuts that were included in a 2011 spending bill but that supposedly would never happen, because we all knew (or thought we knew) that everyone would find them so unacceptable that they would be repealed before they ever happened.  And then they happened.

Republicans apparently have conveniently forgotten all about that mess.  To understand why that matters so much today, we first have to expose the latest clumsy sleight of hand that is embedded in the Republicans' current strategy.

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.

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.

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.'"

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.

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?

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."

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.

Should Media Companies Remove Old Content Featuring or Made by Sex Offenders and Other Wrongdoers?

by Michael Dorf

In light of the revelations and accusations that Kevin Spacey sexually harassed and/or assaulted various men and boys over the years, Netflix has suspended production of the upcoming season of House of Cards, in which Spacey has hitherto starred. Reportedly, the show's writers are attempting to write Spacey's character, Francis Underwood, out of the show. In the meantime, Netflix subscribers can still watch the existing five seasons.

That is more than can be said for fans of comedian Louis CK, who admitted late last week that he had pressured women to view him naked. Women have alleged that CK masturbated in front of them; CK's apology admits that he "showed them" his penis but does not specifically mention masturbating. In any event, the incompleteness of CK's apology does not seem to be at issue, because HBO acted before CK published it. Within a day of the initial revelations, HBO canceled upcoming projects with CK and also pulled CK's existing shows from its streaming services. Although I have not seen a similar announcement from the FX Network, which produced CK's popular series Louie, FX seems to have followed suit. On Sunday night, my search for "Louie" on the FX website produced no results.

What should one make of the decision of Netflix to leave older Spacey content accessible versus the decision of HBO and, apparently, FX, to remove older CK content? Obviously, this is not a constitutional question, as the respective networks are private actors to which the First Amendment does not apply. It might be a contractual question, depending on the terms of the networks' contracts with Spacey, CK, and the very large number of other people and firms involved in the various shows. Many contracts have catch-all "morals clauses," but they vary. For example, until recently, Bill O'Reilly's contract with FoxNews forbade the latter from firing him over sexual harassment allegations unless they were proven in court. Networks confronting alleged and/or admitted sexual misconduct by actors, directors, producers, and others responsible for the content they provide will have to untangle their various contractual obligations.

In the end, each network will make a business decision based on its assessment of the costs (boycotts, etc) and benefits (loyal fans, new viewers attracted by the controversy) of each case. Those are difficult to tally up in the abstract. Accordingly, network executives at Netflix, HBO, Amazon, and the many other companies that now deliver content to a world of media-hungry viewers might want to consider a normative question: What is the right course of action?

Scalia Speaks Well: But Not About Originalism

By Eric Segall

Justice Antonin Scalia lived a large life. There is no denying his remarkable ability to give speeches that dazzled those in attendance. His son Christopher Scalia and Ed Whelan have collected and published many of these speeches in their new book "Scalia Speaks: Reflections on Law, Faith, and Life Well-Lived." These talks, given around the world, provide the reader a wonderful account of Scalia the person, the philosopher, and the judge. On just about every topic, small and large, with one major exception, Scalia entertains, informs and energizes. My perspective is the same as other reviewers on this point so I will not elaborate further on the positive aspects of most of these fine speeches.

If the reader is looking for a strong justification for originalism in these speeches, however, she will be disappointed. The speeches on that topic, sadly, are cliche ridden, assume facts not in evidence, and most importantly, do not address the major issue many legal scholars had with Scalia's strong originalist stance--that he did not adopt that stance himself. Scalia's hypocrisy on the subject, the disconnect between what he practiced as a judge and what he preached off the Court and in dissent, is as large as the life the man lived.

I understand that this collection of speeches was not intended to present a full throttle defense of Scalia's views on either constitutional interpretation or originalism. Nevertheless, the editors did a wonderful job selecting those speeches that comprehensively, or at least accurately, cover Scalia's views on the topic. Moreover, although the speeches on such diverse topics as "Being Different" and 'The Arts" are wonderful, Scalia after all will be remembered most for his dogmatic views on judging and proper constitutional analysis. This post, therefore, focuses on how the collected speeches handle those topics.

Stupid Tax Tricks

by Neil H. Buchanan

As I write this column, Republicans in the U.S. Senate are doing their part to make sure that the debate about taxes becomes even more absurd and incomprehensible.  Not that that's a bad thing.  This whole process is a sham, and we would be much better off if they did nothing at all.

And it might well come to that.  I continue to believe, however, that Republicans will flail about for several months but then cobble together something at the last possible moment before some self-imposed deadline.  Whatever they ultimately pass, they will call it "reform" and Donald Trump will call it "tremendous."

Whatever emerges in the end will almost certainly be nearly unrecognizable compared to where they started.  In the meantime, I find it unfortunately necessary to pay attention to the process, because Republicans will stagger along and make some ad hoc and often accidental decisions that will somehow become accepted wisdom.  Path dependence matters.

To be honest, however, for people who follow politics or tax policy (or both), all of this is as close to mental masturbation as it could ever be without misusing the word "literally."  Hence the following disclaimer: This column will probably end up being as relevant to future tax analysis as the House Republicans' failed March 2017 health care bill is to doctors and hospitals today.  You have been warned.

Surrogacy and commodifying women

by Sherry F. Colb

In my column for this week, I discuss the topic of surrogacy in the context of a New York State bill under consideration that would legalize such arrangements and make them enforceable. My focus in the column is on the baby's interests and on the potential parents who wish to use surrogacy to expand their families. In this post, I want to look more closely at the woman who carries other people's babies, the surrogate herself. Why would those focusing on the woman wish to ban surrogacy?

The Diversity Lottery and the Lottery of Birth

by Michael Dorf

The NYPD and other first responders were still tending to the dead and wounded late last week when the news that ISIS-inspired killer Sayfullo Saipov had come to the U.S. from Uzbekistan as a "diversity lottery winner" prompted President Trump to denounce the diversity lottery and to take a stab at NY Senator Chuck Schumer, despite Schumer's efforts to repeal the diversity lottery. Another day, another killing, another presidential debasement. Although pundits immediately observed the inconsistency between Trump's willingness to leap to policy action when Muslim immigrants kill versus his go-slow approach when white Christian Americans (more frequently) kill, that observation may be beside the point in this case. Even a stopped clock is right twice a day, and this time Trump may have fortuitously said something sensible.

Yale law professor Peter Schuck, writing in the New York Times, followed his condemnation of Trump's characteristic factual errors with a careful critique of both the origin of the diversity lottery (as a means of boosting immigration from Ireland) and its current impact (it crowds out family members of people lawfully here as well as people with needed skills). Much to the same effect, my colleague Steve Yale-Loehr put the point bluntly: “A lottery is a crazy way to run an immigration system.”

Professors Schuck and Yale-Loehr know more than I do about immigration law and policy. I am thus happy to concede that they--and, inadvertently, Trump--could be right that we would be better off without a diversity lottery. That said, I'd like to register at least a tiny bit of skepticism.

What Loyalty Demands of Citizens and Soldiers

by Neil H. Buchanan

Another day, another mass shooting that -- despite the seemingly endless gun violence that this country needlessly endures -- has a high enough body count to (for now) constitute front-page news.

Barely anyone noticed any of the multiple shootings in the five weeks between the Las Vegas massacre and what was quickly labeled the Texas Church Shooting, but the body count in those killings totaled 29, which is three more than the current death toll in Sutherland Springs.

We already know that there will still not be a real political debate about guns, and the people who continue to enable this carnage will return to their usual talking points about it being "too soon" to discuss policy and that the real problem is mental health (or something else, as long as guns have nothing to do with it).

For now, therefore, it seems safe to assume that Donald Trump and the Republicans will continue to promote their paranoid, macho fantasies about how none of this would be a problem if everyone had a gun.  The rest of us are left to ponder the madness.

In this column, I will address the problem of gun violence indirectly by clarifying a point that I made last week in a column about the so-called insurrectionist view of the Second Amendment, a fringe theory holding that the reason The People need to be privately armed is to be able to rise up against a despotic government.  In so doing, I will also make a larger point about the importance of soldiers' and citizens' commitment to the rule of law.

Although I devoted last week's column to debunking the purported justifications for the insurrectionist view, I may have inadvertently reinforced a presumption that seems to support that view.  Specifically, I took as a starting point for my argument an insurrectionist claim that some large number of U.S. military personnel and citizens would join in a revolt against the government.

Whether or not I left the impression that I agreed with that assertion, I want to be clear here that I disagree strongly with any such claim.  I was, instead, trying to show how crazy the insurrectionist view is even if one assumes bad things about the loyalty of members of the U.S. military -- and, for that matter, of even most gun-owning American civilians.  I emphatically do not share those cynical and insulting views.

The Tax Cut Mess

by Neil H. Buchanan

For months, I have been pointing out that Donald Trump and congressional Republicans have been offering "non-plans" to change the tax code.  Issuing press releases containing nothing more than vague bullet points -- yet somehow also making it clear that their ultimate plan would be hugely regressive -- the ruling party promised that the final plan would deliver on their years of promises of fundamental tax reform.

Well, the House's plan is now in, and it is ... not tax reform.  It is a hugely regressive tax cut, but unless there is a new definition of "reform" such that that word now means "change in various uncoordinated and unprincipled ways," then this is not tax reform, and it is certainly does nothing to fundamentally change the nature of the tax system.

Complicity and Mandates

by Michael Dorf

In my latest Verdict column, I criticize the federal government's argument defending its initial refusal to permit a 17-year-old undocumented immigrant to temporarily leave federal custody for an abortion at private expense on the ground that thus releasing her would render the government complicit in the abortion. I explain that this is an extravagant view of complicity but that the government could be excused for thinking it might succeed because a similarly extravagant view of complicity might well have succeeded in the litigation challenging the exemption procedures from the Obamacare contraception mandate had the case not ultimately been resolved via a more or less forced settlement. There, the plaintiffs argued that having to ask for an exemption from the obligation to provide contraception insurance would itself implicate them in the provision of contraception insurance that would ultimately be provided by others. In the column, I liken that argument to the following hypothetical example:

Suppose that I, as an ethical vegan, do not wish to facilitate the consumption of animal products by others (as I most assuredly do not). It would be understandable for me to ask my boss to excuse me from, say, cooking and serving cheeseburgers at a company picnic. It would be absurd for me to complain that my boss should not make me ask to be exempt from such a duty, because when I ask, that will result in somebody else serving the cheeseburgers, which will implicate me. Even if that is actually how I feel, and even if I regard the raising, exploitation, and slaughter of cows and steers to make cheeseburgers as immoral (which I do), a definition of complicity that goes this far is unworkable.

My column then turns to Masterpiece Cakeshop and argues for a narrow definition of complicity more generally, essentially on grounds of democratic pluralism. We are a diverse People with diverse beliefs and practices. If we are to get along with one another, we must be able to understand that dealing with one another does not usually render us complicit in one another's choices. Here I want to add a few words about how that principle interacts with the difference between laws that prohibit conduct and laws that mandate conduct.

Writing About Law in an Avalanche: What is a Scholar to Do?

By Eric Segall

How people research and write about law has changed dramatically during the course of my academic career. Twenty years ago, although there was an abundance of relevant scholarship on most hard legal questions, there were reasonable ways of dealing with the quantity of relevant work. Today, there is virtually no way to keep up with the avalanche of high-level scholarly output devoted to most legal topics and current cases.