First Amendment

Due Process 1, Trump 0

* After delaying the decision, Judge Tim Kelly will be releasing his ruling in CNN’s First Amendment case at 10 a.m. Is it lawful to revoke a reporter’s press pass after an argument with the president? We’ll soon find out. [USA Today]

* “[W]e’re not going to leave any judges behind over these next two months.” According to Senator Tom Cotton, the Senate is apparently planning to work through Christmas and New Year’s Eve to confirm all of President Trump’s judicial nominees in an effort to head off any obstruction by the Democrats. [Washington Times]

* “I’m not trying to be rude. I can see your résumé. You’re a rock star.” Despite her strong résumé, Allison Jones Rushing, the 36-year-old Fourth Circuit nominee, was repeatedly questioned by the Judiciary Committee about her “life experience” — or lack thereof, since she graduated from law school 11 years ago. [National Law Journal]

* What is David Boies planning for his next act? Is retirement on the table? He and the other name partners at Boies Schiller Flexner have apparently “been planning succession for 15 years.” He said if he retired today, “the firm would be in good shape,” but he thinks he “still [has] some things to contribute.” [New York Law Journal]

* Stormy Daniels says that while the “serious and obviously very troubling” domestic violence allegations against her lawyer Michael Avenatti are “only allegations” and that she’ll “reserve judgement” [sic] until the investigation ends, she’ll be “seeking new representation” if it turns out that the allegations are true. [New York Magazine]

Does retaliating against Jim Acosta finally cross a First Amendment line?

Moral culpability for inflammatory rhetoric is one thing, legal responsibility is entirely another.

College Republicans get really angry when they can't force people to do something.

The struggle between societal elevation via unchecked competition of ideas versus fear of societal unrest continues.

Serious fault lies with originalists, who distort Founding anti-establishment liberty as discrimination against religion.

* Trump’s now claiming that Stormy Daniels is impinging on his right to free speech because weaponizing that right’s worked so well so far, why not extend it to this? [NBC]

* In the same breath, we’re now talking about censoring Google to “own the libs.” [Recorder]

* And the First Amendment now protects sharing food with homeless people, because apparently we needed a rule to cover being a decent human being.

* Don McGahn may be on the way out after spilling the beans to Mueller. Trump insists on Twitted that McGahn is not a “rat” like John Dean, but just as this whole administration is “Nixon, but dumber” McGahn probably didn’t realize what he was doing while he did it. [Business Insider]

* People are up in arms over Lanny Davis being an anonymous source for CNN, but really what was CNN supposed to do? They couldn’t say, “Davis refused to comment on the record” because that would prove he was the anonymous source. It’s where dumb journalism rules hang people up because the right answer would be to make no mention at all of Davis, but journos feel they have to indicate that they tried to talk to principal figures in any given story. Anyway, Glenn Greenwald has thoughts on this and he used to be a real journalist before he went batshit crazy. [GQ]

* California ends money bail! California, man. They’re ahead on everything. Getting rid of bail, legal weed, regretting Reagan…. [Washington Post]

* One of the actions Trump is “most proud of” is one he never accomplished. Sounds about right. [Axios]

* Vermont changes its laws in bid to become a blockchain hub because it’s all about bad ideas. [VT Digger]

Spoiler: It does.

* Amy Howe has highlights from Judge Brett Kavanaugh’s completed questionnaire for the Senate Judiciary Committee — including the five different law firms where he worked as a summer associate. [SCOTUSblog]

* Despite Judge Kavanaugh’s impeccable qualifications, the battle to confirm him to the Supreme Court will be hard-fought — and Adam Feldman explains why. [Empirical SCOTUS]

* In other nominations news, Veronica “Ronnye” Stidvent, a prominent Latina lawyer, comes to the defense of Ryan Bounds, whose Ninth Circuit nomination was defeated last week. [Oregonian]

* Does the failure of the Bounds nomination spell trouble for the Kavanaugh nomination? Here are some thoughts from Elizabeth Slattery and me. [SCOTUS 101 / Heritage Foundation]

* Had he been confirmed, Ryan Bounds would have replaced his (and my) former boss, Judge Diarmuid F. O’Scannlain — who just penned a landmark Second Amendment opinion, Young v. Hawaii, that could very well wind up before SCOTUS (and allow the Court to settle a circuit spit). [Volokh Conspiracy / Reason]

* Speaking of the Ninth Circuit, Chris Walker has some concerns about the late Judge Stephen Reinhardt casting the deciding vote in an important tax law case, some four months after his passing. [Notice & Comment / Yale Journal on Regulation]

* Why is the internet such a cesspool today? Media lawyer Charles Glasser identifies five factors behind the decline (and gives a shoutout to Above the Law’s dearly departed comments section). [Daily Caller]

* Elsewhere in the First Amendment world, Joel Cohen and Dale Degenshein argue that it should be easier for parties to have documents sealed in litigation. [The Hill]

* If you appreciate the dying art that is the book review, check out Alice Lloyd’s beautifully written review of Robert Anthony Siegel’s Criminals: My Family’s Life on Both Sides of the Law (affiliate link), which paints a portrait of his father, Stanley Siegel — “a big-hearted and brilliant,” but deeply troubled criminal defense lawyer. [Weekly Standard]

In defense of Juli Briskman

Whether you see leakers as patriots or pests, some have recently asked: What protections, if any, do these public employees have if the Trump administration follows through and fires them?

There's plenty of good news regarding Twitter and Trump this week.

Hey look, it's an actual application of the First Amendment

How should free speech flare-ups on public university campuses be handled?

* Kirkland & Ellis raiding Cravath is now officially “a thing”; it’s been covered in the newspaper of record. [New York Times]

* Extension requests: not just for law school papers, but for cert petitions too (and there’s no shame in seeking them; they’re often requested by prominent practitioners). [Empirical SCOTUS]

* Want to talk intelligently about the Michael Cohen mess case with your friends? Start by reading this primer on “privileged” versus “confidential” client communications, by Joel Cohen (no relation) and Dale Degenshein. [Law and Crime]

* Boycotts have a venerable history in terms of the law and the First Amendment — but they might be losing their effectiveness in the digital age, as noted media lawyer Charles Glasser explains. [Daily Caller]

* Eugene Volokh flags this interesting issue (and opinion): under what circumstances does denying a felon the right to own a gun violate the Second Amendment? [Reason / Volokh Conspiracy]

* Has the whole “emotional support animal” phenomenon gone too far at Yale? [Yale Daily News via Instapundit]

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David Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

If you're going to make legal threats, you should at least know the law.

* “Eat sh*t, Bob.” Last Week Tonight’s John Oliver convinced a judge to dismiss a defamation suit filed by Robert Murray of Murray Energy, finding that the comedian was well with his First Amendment rights to criticize the coal baron and his company on HBO. [Hollywood Reporter]

* Former Skadden associate Alex van der Zwaan has already pleaded guilty to lying in the Russia investigation, but special counsel Robert Mueller isn’t nearly done with the Biglaw firm. According to sources, “[l]awyers at Skadden are on edge,” which means we should get ready for some juicy Skaddenfreude. [New York Times]

* This weekend, Democrats on the House Intelligence Committee released their declassified rebuttal to Republican claims that FBI and DOJ officials abused their powers, calling those claims a “transparent” attempt to undermine the special counsel’s investigation into Russian election interference. [NBC News]

* “Do better NKU. Dont let him teach us.” Students and alumni of Northern Kentucky University Law School are demanding action after former dean Jeffrey Standen was allowed to resign and then return as NKU’s highest-paid full-time professor following sexual harassment allegations, but the school says it can’t fire him. [Cincinnati.com]

* How are you reacting to the scrutiny of sexual harassment in the workplace? That’s just one of the questions the ABA Journal and Working Mother want you to answer in this important survey for women and men working in law firms. [ABA Journal]

The Tragedy of the Barred Attorney.

Take a deep dive into the history of landmark Supreme Court opinions.