Eugene and Jonathan and a host of others have joined in defending the pro bono work that some Justice lawyers did for Guantanamo detainees. To me, though, this seems to be a much harder question than the critics make it out to be. To start with, some of the arguments in favor of the attorneys […]
Archive | 2010
Do We Need to Subsidize Homeownership to Preserve Our National Identity?
Government efforts to subsidize homeownership helped cause or at least exacerbate the financial crisis, and left taxpayers on the hook for hundreds of billions of dollars in liability for dubious mortgages. In this recent New York Times op ed, Yale economist Robert Shiller, a leading expert on housing markets, concedes that such subsidies have little […]
Could National Juries Alleviate the Problem of Political Ignorance?
One of the most serious defects of modern democracy is that most voters know very little about the policies they vote on. Moreover, as I have pointed out on previous occasions, it is rational for them to remain ignorant and to do a poor job of evaluating what limited political information they do know. Political […]
The Good Faith Exception and Changing Law: Distinguishing Illinois v. Krull
This is my fourth post in a planned series on why the good faith exception to the exclusionary rule does not apply when a police officer conducts a search that is lawful when it occurs that is later ruled unlawful before the conviction is final. This issue is being litigated all over the country right […]
McDonald, Constitutional Theory, and the Confirmation Process
A lot of VC readers who have followed McDonald v. City of Chicago were quite disappointed last week by what they saw as the Supreme Court’s likely unwillingness to revisit the Privileges or Immunities Clause. At oral argument, the Justices seemed focused on the practical problems of reviving PorI, not on whether such a revival […]
Does the Presence of a Licensed Firearm Create A Threat to Officer Safety Justifying a Search?
No, says the Indiana Court of Appeals in Washington v. State. Correct, I think: The Supreme Court has repeatedly said that the standard for a Terry frisk is whether the officer reasonably suspects the person is “armed and dangerous.” “Armed” alone shouldn’t be enough, although of course in many cases the two will go together. […]
Federalist Society Speech at Florida International
On Wednesday March 10th, I will be commenting on the oral argument in McDonald v. Chicago in a speech at Florida International University law school in Miami. The event is open to the public and will be held at noon in room 2002 of the Rafael Diaz-Balart Hall. I also have upcoming Federalist Society student […]
New Supreme Court Case on the Constitutional Right to Informational Privacy
[1:58 pm: Bumped up above the other posts on today’s cases.] The Supreme Court has just granted cert in NASA v. Nelson, the Ninth Circuit case I blogged about here and here. Let me repeat below my thinking about the case from that last post: The case involves a challenge brought by various contract employees […]
Funeral Picketing / Intentional Infliction of Emotional Distress Case Going to the Supreme Court
[1:56 pm: Bumped up above the more specific posts on the case.] The Supreme Court has just agreed to hear Snyder v. Phelps, the funeral picketing case. I think the lower court decision is quite right, and I worry that the Court’s decision signals the Justices’ willingness to overturn it. But I hope the Justices […]
The Intentional Infliction of Emotional Distress Tort and the Freedom of Speech
[1:55 pm: Bumped up above the other posts on this case.] I’m blogging today about the Supreme Court’s decision to hear the funeral picketing case. That’s the one in which the jury entered a $10.9 million verdict (reduced by the trial judge to $5 million) against the Phelpsians for their offensive picketing 1000 feet away […]
The Phelpsians’ Speech, the Mohammed Cartoons, and the Slippery Slope
If the Phelpsians magically went to their reward tomorrow, public debate would suffer very little. But I think their speech needs to be protected, because allowing the restriction of such speech — especially using the “intentional infliction of emotional distress” tort — would lead to the restriction of much more valuable speech. Now it’s true, […]
Where’s the State Action in Tort Awards Based on Speech?
Occasionally I hear people ask this question. Criminal prosecution for speech of course involves the government prosecuting and imprisoning or fining someone; injunctions of speech involve a court order barring speech; but when one individual sues another, is that really “state action” that’s governed by the First Amendment? Why isn’t it like a private employer […]
Jury Discretion, Viewpoint Discrimination, and the Size of the Snyder v. Phelps Compensatory Damages Award
The jury awarded $2.9 million in compensatory damages to the plaintiff in Snyder v. Phelps. (It also awarded $8 million in punitive damages, which the judge reduced to $2.1 million.) Now I stress again that the speech here was extremely offensive (and, in my view, entirely unjustified); and of course the plaintiff, being a grieving […]
Funeral Picketing and Residential Picketing
I’ve tried to explain recent posts why I think this particular verdict based on funeral picketing is unconstitutional, because the intentional infliction of emotional distress tort and the invasion of privacy tort can’t properly be used to punish such speech. But may a legislature permissibly enact statutes banning funeral picketing, perhaps by analogy to many […]
The Phelpsians’ Picketing and Fighting Words
I’ve argued in earlier posts that the verdict against Phelps should be set aside because the intentional infliction of emotional distress tort is facially overbroad and thus unconstitutional as applied to speech. The tort might be constitutional if a court limits it to applying only to otherwise unprotected speech (such as threats, fighting words, and […]