Free Speech

We all remember Schenck v. United States, the 1919 decision written by Justice Oliver Wendell Holmes that established the “clear and present danger” test and coined the oft-misquoted line “free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

Eloquent and well-reasoned.

You know what Oliver Wendell Holmes didn’t say? “Free speech would not protect a man in falsely shouting ‘BINGO!’ in a seniors home.”

But one judge has gone that far…

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You mean the guy who allegedly killed a tree over a football game might be crazy? WHO WOULD HAVE GUESSED?

I don’t mean to brag, but I took two different classes dedicated to studying the First Amendment during law school. The first, a semester-long meditation on the ideas behind that bill of right, was much like war: long stretches of boredom punctuated by moments of sheer terror. I don’t remember the two or three interesting things I learned in the class, but I remember feeling vaguely alive a few times. The second class, a more straightforward survey of the law, didn’t leave a mark on my consciousness the two times I actually went.

I’m a bit of a First Amendment scholar.

I do know that this most holy and invoked of all our rights has been the refuge of not a few rascals and reprobates. The adorable Larry Flynt is always available to slur a few words in support of free speech. And while I hate Illinois Nazis too, they play an outsized role in the history of the First Amendment.

To this estimable list of patriots comes an unabashed piece of redneck trash from the great state of Alabama. May it please the Court and roll damned tide, let’s talk Harvey Updyke, let’s talk sports.

Roll tide, y’all…

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Many lawyers keep blogs on the side. Most talk about amusing happenings in the legal community. But a few like to use the blog as a forum to describe their own legal careers.

But blogs like this raise numerous questions, such as, “Does the blog constitute an advertisement?,” and, “Does the blog violate client confidentiality?” and, “Why doesn’t the blog have more LOLcats?”

Now the Virginia Supreme Court has issued a ruling that settles some of these questions and opens the door for more lawyers to join the blogging community, at least in Virginia. And there’s a decent chance the U.S. Supreme Court will look at this case too….

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Ed. note: This post appears courtesy of our friends at Techdirt. We’ll be sharing law-related posts from Techdirt from time to time in these pages.

Silly reactions to violent video games are coming so fast these days it makes one’s head spin. Redundant labeling of games, doubling down on unconstitutional laws, and even special 1% taxes for games with a rating of “Teen” and above… It’s quite difficult to parse out the well-intentioned silliness from the grandstanding silliness. What’s clear, however, is that there are a great many people who don’t recognize games as the speech that they are.

One state representative from Connecticut, home of the Sandy Hook tragedy, is now upping the ante on that last idea and proposing a 10% tax on games that are rated “mature”….

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Some law schools want the bar to be so low they can crawl over it.

Whenever we ask the American Bar Association to make regulations with teeth that would actually improve the quality of legal education, the organization claims that law schools will sue them if they try.

The ABA has no stomach to seriously regulate its member institutions, but individual state bars also have authority to regulate the law schools in their jurisdictions. A new rule in California holds schools to a higher standard than the ABA is willing to impose.

So, of course, a California law school is suing 22 members of the State Committee of Bar Examiners over the new rule. They want to keep their rubber stamp of accreditation from the CBE, since they don’t yet have accreditation with the ABA.

If you think people running accredited law schools are willing to make spurious arguments to justify the value of legal education, wait till you see the stuff they try to pull at unaccredited law schools…

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Judge Lynn Hughes

* Above the Law promotes real-world change! Complaint filed against a Texas judge after we call him out for being RACEIST! [ABA Journal]

* If you were thinking of calling your friend from the Philippines a “skank” on Facebook, you may want to reconsider. [Philippine Inquirer]

* If you’re a powerful financial executive, lay off the bath salts. [DealBreaker]

* Judicial throwdown at the Second Circuit! Short version: Judge Raagi thinks Judge Jacobs should care way more about punishing guys sexting underage girls. Judge Jacobs thinks Judge Raagi watches too much Dexter. [Second Circuit / FindLaw]

* Federal District Judge John Lungstrum calls out a couple trial teams for terrible trial work. Biglaw litigators may not be the best trial attorneys? You don’t say. [New York Personal Injury Attorney Blog]

* Kenneth Anderson describes the U.S. government’s longstanding love affair with “imminence” in the context of the Obama drone strike white paper. To borrow from Rev. Lovejoy’s sermon: “Imminence…sweet imminence.” [Lawfare]

* Judges: If you’re going to base a decision on a particular fact… don’t include pictures in the opinion that directly contradict that finding. Check out page six, line two and Appendix 2 [Court of Appeals, State of Oregon]

* SCOTUSBlog and Bloomberg Law have a competition for law students. Beat your peers AND the SCOTUSBlog team and win $5000. [SCOTUSBlog]

Don’t be a sucker!

* According to the Second Circuit, the long arm of the law doesn’t extend to the middle finger. You can’t just go around arresting dudes for flipping you the bird. [U.S. Second Circuit / FindLaw]

* President Obama jetted off to Hawaii before he could sign the fiscal cliff bill, so he ordered it be signed by autopen. Of course, people are losing their minds over it. [Volokh Conspiracy]

* Should we scrap the Constitution? Georgetown Law professor Louis Seidman continues to advocate for constitutional disobedience in this epic ConLaw throwdown. [HuffPost Live]

* Don’t celebrate your increase in California bar passage points yet. The state bar changed its tune, and a 40% pass rate is the new standard. That shouldn’t be hard, eh TJSL? [California Bar Journal]

* One of our former columnists, Jay Shepherd, has a great way to calculate what your actual hourly rate should be, if you don’t mind working for just pennies a day. Most lawyers would mind. [jayshep]

* For the love of God, even Gawker knows that going to law school these days is a fool’s errand, or in their own words: “IT’S A SUCKER’S BET. A CLEAR SUCKER’S BET.” Come on, stop being suckers. :( [Gawker]

* If you’d like to hear Dean Lawrence Mitchell of NYT op-ed fame sound off on why there isn’t a lawyer oversupply problem, and why it isn’t his job to get law students jobs, we’ve got a video for you to watch….

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* Dewey know how much money this failed firm has run up on its tab for legal advisers since May? It’s quite the pretty penny — $14.8 million — and that amount actually includes some pretty ridiculous fees and charges, like $21,843 for photocopies. [Am Law Daily]

* Everyone’s glad that we didn’t nosedive over the fiscal cliff, but the people who are the most excited about it seem to be Biglaw partners. This wasn’t the best bill, and more uncertainty means more work, which means more money. [National Law Journal]

* It looks like we’re never going to find out what the Justice Department’s legal justification was for the targeted killing of Anwar al-Awlaki, because a federal judge upheld the validity of its secret memo. [New York Times]

* Everyone flipped out over Instagram’s money filter, but they’re keeping relatively quiet about this mandatory arbitration provision. Quick, post some pseudo-legalese on your Facebook wall. [WSJ Law Blog (sub. req.)]

* Good news, everyone! Thanks to this ruling, in Virginia, you can be as nasty and negative as you want to be on Yelp without fear that your voice will be censored… kind of like the Above the Law comments. [All Things D]

You stole my building.

* Lawyers who re-argue 2,400 year old cases are lawyers with too much time on their hands, even if they’re doing it for charity. [ABA Journal]

* What do you know, free speech is allowed to exist on the internet. [Public Citizen Press Room]

* I shaved my balls for this fiscal cliff deal? [Huffington Post]

* Some law professors still don’t understand what the law school “disaster” is all about. [Associate's Mind]

* How much can you really charge for contract attorney work? [Point of Law]

* The best criminal law blog post in 2012 was… [Simple Justice]

* It never occurred to me that a building could be pirated, but here you go. [De Zeen Magazine]

* Seven out of nine sitting Supreme Court justices were silent when it came to the passing of Robert Bork. Justice Antonin Scalia, of course, issued a public statement, as did liberal Justice Ruth Bader Ginsburg (surprise!). [WSJ Law Blog (sub. req.)]

* No one ever really doubted that it would take an army of Biglaw lawyers from the likes of Sullivan & Cromwell, Shearman & Sterling, and Wachtel Lipton to handle a monumental deal like the proposed $8.2 billion NYSE/ICE merger. [Am Law Daily]

* Can you coach with Nick Saban and be a Miller Canfield partner at the same time? No. But you can sue (and win!) when the firm allegedly forces you out due to its “culture of fear and intimidation.” [Detroit Free Press]

* Justice Rolando Acosta, who wrote the opinion upholding the dismissal of the class action case against NYLS, rates well among his peers as a nominee for the New York Court of Appeals. [New York Law Journal]

* Peter Madoff was sentenced to ten years in prison for his role in Bernie Madoff’s Ponzi scheme, but the judge will probably let him go to his granddaughter’s bat mitzvah before shipping him to the pokey. [Bloomberg]

* Merry Christmas, now go f**k yourself. A federal judge has given a woman in Louisiana free rein to display holiday lights on her roof in the form of an extended middle finger. God bless America. [CBS 3 Springfield]

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