First Amendment

Judge Richard Posner

From the Above the Law mailbag: “Is ATL ever going to call out Judge Posner for being so needlessly nasty to litigants?”

Ummm, no. I’m a big fan of Judge Richard Posner, who is brilliant and hilarious. (Yes, hilarious — if you doubt that, check out the awesome podcast that he and I did together, which you can download and listen to during your commute or at the gym.)

But in the interest of fairness, I will make this reader’s case. This correspondent cited the recent oral argument in Notre Dame v. Sebelius, which we alluded to yesterday, in which Judge Posner dispensed some benchslaps to Matthew Kairis, head of litigation in the Columbus office of Jones Day. The reader also mentioned the argument on remand in the Conrad Black case, alleging that Posner “was particularly nasty to Miguel Estrada, seemingly piqued that Estrada got him reversed by SCOTUS.”

Let’s focus on the Notre Dame v. Sebelius argument, since it just happened. How bad was it?

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Kate Moss

* For the first time, a federal appeals court extended First Amendment protections reserved for trained journalists at traditional news entities to bloggers. Yippee, thanks Ninth Circuit! [L.A. Now / Los Angeles Times]

* If you want a Biglaw firm with a really generous 401(k) plan, look no further than Sullivan & Cromwell. It’s the most generous law firm plan in the country, with O’Melveny & Myers in second place. [BenefitsPro]

* A brain-dead patient in Texas is being used as an incubator because a state law requires hospitals to continue life support for pregnant women. Calling this the “cruelest pregnancy” is much too kind. [New York Times]

* Here are some depressing facts: not only are lawyers 3.6 times more likely to be depressed than non-lawyers, but they also rank in fourth place in terms of suicides per profession. Call someone if you need help. [CNN]

* Florida A&M must be absolutely thrilled that the ABA canceled the school’s show-cause hearing. It appears that the law school will be able to keep its accreditation, for now. [Tallahassee Democrat]

* If you’re a parent considering going to law school with a young child at home, congrats, because you must be rich to be toying with an idea like that. [Law Admissions Lowdown / U.S. News & World Report]

* Playboy is suing Harper’s Bazaar for using its pictures of Kate Moss without permission. The men’s mag wants $150K per picture posted on the luxury mag’s website — that’s one lavish lapin. [Independent]

“Do you want me to write an opinion and say there’s no free speech right to quietly converse on an issue of public importance?”

– Justice Anthony Kennedy, in oral arguments for McCullen v. Coakley

On Wednesday, the United States Supreme Court heard oral arguments in McCullen v. Coakley, a constitutional challenge to a Massachusetts law creating buffer zones, sometimes called “zones of exclusion,” around abortion clinics. The law at issue, Mass. Gen. Laws ch. 266 § 120E ½ (2007), provides in part as follows: “No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet of any portion of an entrance, exit or driveway of a reproductive health care facility.” Eleanor McCullen, one of the challengers of the law, is a 76-year-old grandmother who in the past has stood on public sidewalks near abortion clinics in order to initiate one-on-one, non-confrontational conversations with women seeking abortions. The petitioners claim that, over the years, hundreds of women have accepted offers of help from McCullen and the other petitioners. They argue that the new law violates their right to free speech.

The First Circuit opinion below characterizes the plaintiffs’ appeal as advancing “a salmagundi of arguments, old and new, some of which are couched in a creative recalibration of First Amendment principles.” That opinion finds that “[t]he Massachusetts statute at issue here is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others.”

Unfortunately, the First Circuit is wrong about each of those points. Even more unfortunately, this law does the exact opposite of what most of us would hope . . . .

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Is belief in old St. Nick unreasonable?

One of the great things about religious liberty is the ability to believe unreasonable things.

– Professor Andrew Koppelman of Northwestern Law, speaking yesterday at the Federalist Society National Lawyers Convention, on a panel about religious freedom.

(If you’re curious, a little explanation appears after the jump.)

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Tennessee law enforcement authorities recently seized approximately 53 snakes, most of them poisonous, from the Tabernacle Church of God in LaFollette, Tennessee. The young pastor of the church, Andrew Hamblin, was arrested for violations of Tennessee Code § 39-17-101, which makes it an offense “for a person to display, exhibit, handle, or use a poisonous or dangerous snake or reptile in such manner as to endanger the life or health of any person.” The offense is a Class C misdemeanor.

The Pentecostal pastor and his flock believe that an oft-neglected passage of Scripture, Mark 16:15 – 18, instructs followers of Christ to handle poisonous “serpents” as a part of their worship, as a confirmation of their faith. Specifically, the verses read, “He said to them, ‘Go into all the world and preach the gospel to all creation. Whoever believes and is baptized will be saved, but whoever does not believe will be condemned. And these signs will accompany those who believe: In my name they will drive out demons; they will speak in new tongues; they will pick up snakes with their hands; and when they drink deadly poison, it will not hurt them at all; they will place their hands on sick people, and they will get well.”

Hamblin, who resembles a character from a Flannery O’Connor story with a Facebook page and a D-list reality TV show, told local reporters:

“I believe in the power of God and that it’ll let you heal [the sick] and it’ll move and it’ll cast out devils. It’ll move in tongues, it’ll move and take up serpents,” said Hamblin. “Here I am I’m getting snakes took, I’m facing jail time, I’m facing being taken away from my wife, my children, I’m facing being pulled out of my church just simply because I went out in the woods and caught a rattlesnake and I brought it to a service because I believe the Bible said they shall take up serpents.”

Hamblin is scheduled to appear in court on November 15. The charges carry with them fines of up to $2,500 per count and 11 months and 25 days of jail time for each of the 53 counts. He vows to fight the charges in court, arguing that his religious liberty has been violated. Does he have chance in Hell of prevailing?

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A person expects that the area under their clothing is private and protected against hostile intrusion … but if a clothed person is out in public and reveals areas under their clothing, whether inadvertently or otherwise, to plain view, she or he no longer has an expectation of privacy.

– Attorney Michelle Menken, arguing that the Massachusetts Peeping Tom law does not apply to her client, a man who was arrested for exercising his right to free speech — by taking “upskirt” pictures of women on the Boston subway.

This week, the Supreme Court heard oral arguments in McCutcheon v. FEC. In McCutcheon, the Court will rule on whether certain campaign finance restrictions violate the First Amendment. ATL’s Joe Patrice offered his thoughts on the oral arguments yesterday. Today, I offer an alternative perspective.

Currently, byzantine election laws restrict the total political contributions that a person can make in a two-year period, as well as the number of candidates a person can contribute the maximum amount to. The plaintiff, Shaun McCutcheon, is a suburban Alabama businessman, the owner and founder of an electrical engineering firm. McCutcheon wanted to contribute $1,776 (a very patriotic sum, indeed) to 27 candidates across the country. Each of those individual contributions in isolation was legal, falling below the $2,600 maximum amount allowed for individual contributions. Yet, had McCutcheon done so, his total contributions would have run afoul of the maximum total allowed, currently $48,600.

Supporting political causes and candidates of your choice is an exercise of your First Amendment rights. Like all constitutional rights, though, it is subject to an overriding compelling governmental interest. In the case of campaign finance restrictions, your speech rights are trumped by the government’s interest in preventing political corruption or the appearance of political corruption.

Here, McCutcheon was expressing his political values, innocently — even laudably — participating in the democratic electoral process as he contributed up to 2600 bucks to individual candidates . . . until he supported one candidate too many. Suddenly, the First Amendment no longer safeguards his political expression. Suddenly, the threat of corruption or the appearance of corruption is so great that democracy just cannot stand if Shaun McCutcheon is allowed to give a penny more to support a candidate who shares his values….

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At the end of August, the New Mexico Supreme Court ruled in Elane Photography v. Willock that a Christian wedding photographer violated the New Mexico Human Rights Act (NMHRA) when it refused to photograph a lesbian couple’s commitment ceremony. (New Mexico does not currently permit same-sex marriage, though all the parties and the court frequently refer to the ceremony as a wedding.) This week, one of the parties in a similar controversy in Oregon, Sweet Cakes Bakery, announced that it would be closing shop, citing its opposition to baking wedding cakes for same-sex couples.

Elane Photography argued that it did not violate the NMHRA but, if it did, this application of the law violated the photography business’s Free Speech and Free Exercise rights under the First Amendment. The court disagreed, writing that “when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races.”

Personally, I’d vote for same-sex marriage if I lived in a state considering such laws. Polygamy too, for that matter. If you are listening for a full-throated defense of traditional, heterosexual marriage to the exclusion of state recognition of any other arrangement, you won’t hear it here. I’m inclined to support religious understandings of traditional marriage, but I’m libertarian enough to let everyone — straight, gay, or otherwise — suffer through the headaches of having the government divide your assets when you get divorced.

Still, using anti-discrimination laws to mandate that all businesses operating as public accommodations provide services to same-sex couples’ weddings sounds like an unnecessary imposition on the sincere religious beliefs of others — and a great way to end up with lousy wedding photos….

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She’s basically Boss Tweed in Tuscaloosa.

Ed. note: Above the Law will not be publishing on Monday, September 2, in observance of the Labor Day holiday.

* Municipal election fraud is being alleged in Tuscaloosa after a sorority bribed people with free drinks to get a University of Alabama Law grad elected (defeating the incumbent, another lawyer — and wife of a UA Law professor). The big question here is how f**king terrible is voter turnout in Tuscaloosa that a sorority can rig an election? [AL.com]

* A banned food truck launched a First Amendment suit after officials banned the truck for using an ethnic slur in the name. I haven’t seen a food truck shut down like that since “Steak Me Home Tonight.” [WSJ Law Blog]

* The NFL looks to London. Tax laws are one of many obstacles. [Grantland]

* From partner to delivery boy. But hey, definitely go to law school kids! [St. Louis Post-Dispatch]

* A thorough look at the legality of the pending Syria strike. Obama administration addresses these grave concerns with the phrase, “Talk to the hand.” [Foreign Affairs]

Pope Gregory XIII be RACEIST.

A Catholic lawyer, a Jewish lawyer, and a Muslim lawyer all walk into a bar. The Muslim lawyer says, “I’m filing an injunction to stop this den of sin from serving alcohol.” The Jewish lawyer says, “I’m suing you for working on the Sabbath.” The bartender looks at the Catholic lawyer and says, “Jesus, what do you want?” The Catholic lawyer says, “How the hell should I know? But I’ll take a scotch while you wait for an answer.”

It’s not every day that you see a person specify that they want a lawyer who is from a certain religious background. Law is generally a secular profession. Sure, Moses is the first law giver in the Judeo-Christian tradition, but the only God most lawyers consult before deciding whether or not to take a case is the one bathed in green.

Still, when you are a whack-job on Craigslist who is trying to mount an assault on the calendar, I suppose the only way you’re going to get help is with the aid of a true believer.

Yeah, you heard me right, I’m talking about a guy who wants to sue… somebody… over the calendar

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