Flag Burning in the News

After recent protests in Berlin where a pro-Palestinian group burned homemade Israeli flags, calls for a change in the law regarding flag burning became louder than usual. Students are encouraged to draw comparisons to how the U.S. Surpeme Court has handled this issue and consider how they would react to these calls.

Prior Restraint in the News

If students in my constitutional law courses didn't believe me when I told that prior restraints of the press are considered presumptively invalid, a recent decision by the Iowa Supreme Court shows just how seriously courts in the United States take attempts to silent the press. At the center of the dispute are a lawyer, a newspaper who was about to publish information about the lawyer, and a Supreme Court Justice who initially ordered the newspaper not to publish the information, and then lifted the order. The Des Moines Register has more. 

Restricting Indecent Trademarks: Not So Easy

Near the end of my lecture on freedom of speech, I touch upon the idea of whether indecent speech is less protected. My conclusion, as students might recall, is that indecent speech is basically fully protected, but there are certain circumstances where it's protection is limited (in schools and on public airwaves for example). A recent case handed down by the Court of Appeals for the Federal Circuit (one of the two federal courts of appeals located in Washington D.C.) illustrates why I think indecent speech generally received full First Amendment protection. To be clear, many others take this view as well.

The Hollywood Reporter helps us out here:

Barring trademarks that include immoral or scandalous language is an unconstitutional restriction of free speech, the United States Court of Appeals for the Federal Circuit ruled Friday.

Eric Brunetti founded the fuct clothing brand in the 1990s, but decades later was denied a trademark for the label because the U.S. Patent and Trademark Office found it violated the Lanham Act's ban on immoral or scandalous matter.

Here it might be useful to point out that according to the Urban Dictionary, the word "fuct" is the past tense of "fuck" in urban slang. The Reporter goes on:

Brunetti then took his case to federal court, arguing that fuct isn't vulgar — but, even if it was, barring immoral marks is unconstitutional.

The federal circuit agreed with him on the second argument — which wouldn't have been possible until June, when the U.S. Supreme Court overturned case law that held restricting someone's right to have a trademark didn't necessarily restrict that person's free speech. In that case, involving rock band The Slants, the court found the USPTO’s denial of trademarks had a chilling effect on speech. 

While the court finds the use of vulgar trademarks in commerce discomforting, it acknowledges that similarly offensive images and words have secured copyright protection.

In short, the courts have consistently held that even "discomforting" words enjoy full First Amendment protection.

Questioning of Federal Judge Appointees

Anyone interested in seeing how members of the Senate Judiciary Committee question people appointed by the President to fill lower federal court vacancies should check out this video. The five people being questioned are appointees from U.S. District Court Judge. As a trail judge, they will be responsible for ensuring that the parties are treated fairly and the trial operates according to well established procedural rules.

In class I have mentioned that while the qualifications to be a federal judge are not spelled out in the Constitution, the Senate usually takes its constitutional duty of "advice and consent" rather seriously. The Senator asking the questions in this video is a Republican. Thus, he is asking questions of people who were nominated by a Republican President to be a federal court judge. Recently, the Chair of the Senate Judicial Committee, also a Republican, expressed concern about some of President Trump's nominees for the federal judiciary

The Challenge of Keeping Jurors Honest in the Digital Age

Before a case begins, jurors are told not read anything about the case in which they are involved. Back in the day, this simply meant telling jurors to avoid newspaper or TV coverage of the case. Once the Internet become widely available, this meant that jurors were told not go home, turn on their computers and search for information on the case. The ability to do so surely made keeping jurors honest difficult, but it was still manageable. The advent of the smart phone, however, has complicated things. Having a mini computer in one's pocket that can immediately find information about the case is for some jurors too tempting, as the Law Society Gazette recently reported:

Although jurors are warned at the start of a trial not to research cases on the internet, Lord Justice Singh (Sir Rabinder Singh QC) told the Criminal Bar Association conference last week that the 'quick and easy use' of smartphones has made it impossible to guarantee that there will never be problems.

Singh said: 'When I tried a murder case at Lewes in 2014, there was a submission of no case to answer on behalf of one of the two defendants at half time. I rejected that submission. Of course all of that happened, as it must, in the absence of the jury. Very shortly afterwards my ruling was circulated on social media by someone who had been in the public gallery. Thankfully it was possible to have this material removed quite quickly and no one suggested that any member of the jury had seen it.'

In short, the Lord Justice is saying that information that the jury should not have seen was easily accessible to them, jeopardizing the proper process in the case. As an aside, the procedure "no case to answer" is similar to the American procedure of directed verdict. 

Old School Cease and Desist

Students taking my common law courses recently heard me talk about the various steps involved in getting a case heard before the court. As I told students, before parties even contemplate filing a lawsuit in the United States, informal communication will sometimes take place in the form of demand or cease and desist letters. It is rather unusual that the topic of cease and desist letters is covered by the media, and even more unusual for the coverage of such to be entertaining. But every once in a while the stars line up and such coverage occurs just when I am discussing the topic in class.

The American website Digg.com has more:

Modist Brewing Company, a microbrewer based in Minneapolis, Minnesota, just released a Double IPA called "Dilly Dilly," referencing a nonsense phrase coined and trademarked for a series of Bud Light ads. The Bud Light people stepped in with their warning — a decree from a King's messenger:

Verbally Attacking a Store Clerk? Still not fighting words

As students in my U.S. Constitutional Law courses learn, the second step of the free speech analysis involves determining whether the speech being restricted by the government has been deemed as "non-speech" by the courts. The non-speech categories are few and seldom used by courts asked to determine the validity of a speech restriction. The Hartford Courant recently ran a piece that illustrates just how seldom these non-speech categories are applied.

At issue was "a shocking tirade" leveled at a store employee by a customer who "became infuriated when told that the customer service desk had closed and she could not collect a Western Union money order." The customer was subsequently arrested and charged with a breach of the peach, for which she was convicted by a jury. On appeal the state tried to convince the Connecticut Supreme Court that the customer's outburst amounted to so-called fighting words, which is one of the non-speech categories recognized by courts. As the Courant reports:

Writing for the majority in July, Justice Andrew McDonald said courts must consider the context of verbal confrontations before labeling speech as fighting words. He said the manager of a 65,000-square-foot grocery store should, through training or experience, be able to act with restraint in the face of verbal assaults, in much the same fashion as police officers.

In short, the Connecticut Supreme Court held that the conviction was invalid because even this tirade is protected speech! The U.S. Supreme Court ultimately refused to hear an appeal of this decision, leaving in place the ruling that not even an in-your-face, profanity laden tirade qualifies as "fighting words." Yet more proof that the fight words exception has no practical application. 

When Judges Are Called for Jury Duty

Recently the Chief Justice of the Kansas Supreme Court was called for jury. The Topeka Capital-Journal reports that when the judge:

reported for duty on Tuesday, he came to court expecting to serve. He checked in at the jury coordinator’s office, watched the orientation film about jury duty, then waited for the trial to start. . . . However, the defendant in what was expected to be a one- or two-day trial pleaded guilty to felony theft, and a jury wasn’t needed. Nuss (the Chief Justice) was one of 52 Shawnee County residents summoned for duty in that pool of prospective jurors.

According to the Capital-Journal, this was actually the third time the Chief Justice has been called to jury duty, however, the first two did not result in him actually needing to serve.

Changes Afoot to Barrister Training Program in England?

My favorite legal website in England, Legal Cheek, had a recent post that might interest my students taking one of the common law courses I teach. The short, and always entertaining, article highlights how the cost and über competitive nature of the barrister training process is forcing the powers that be to rethink how this process can be improved. The article is worth a quick look.

Judicial Qualifications

As students in my courses have learned, the process for filling vacancies in the U.S. federal court system involves the President nominating a candidate and a majority of the Senate voting to confirm that person. As I have also mentioned, the constitution is silent as to what qualifications one needs to be a judge. A cynic might say that the only qualification is catch the President's eye and convince a majority of the Senate you can be a judge. While the Senate usually takes its job of ensuring that candidates for these positions are qualified, politics sometimes gets in the way. And so it seems with one of President Trump's recent nominees for U.S. District Court Judge

The Los Angeles Times recently had a scathing editorial taking the President and Senate to task for seriously considering a 36 years old candidate who "has practiced law for only a few years and never tried a case." Read the rest to get a taste of how the qualifications of judicial nominee can be become quite contentious and why being cynical about the process is sometimes warranted.

Rarely Discussed Process Being Discussed

Just when you thought that American politics couldn't get more dysfunctional, or as one commentator likes to say, more stupid, along comes a special election in Alabama to fill one of its seats left vacant by Jeff Sessions becoming Attorney General. The election was already "special" in that it features a candidate who had already been removed from sitting on the Alabama Supreme Court because he refused to follow the U.S. Constitution. Now this candidate is accused of dating minors when he was a 30 year old government lawyers. As more and more women come forward telling the same story about this candidate, and as polls in Alabama seem to indicate that the voters of Alabama might still elect him (!!), leaders in the United States Senate have been openly saying they will not allow this candidate to sit in the Senate should he be elected.

Can do they do that, you might ask? Students in my American Constitutional Law course should know the answer to this, but I'd be surprised if they do as we spend all of about five seconds talking about this topic. Early on I tell students that the Constitution gives both the Senate and House the power to make internal rules and punish their own. Punishment can include removal.

As a recent New York Times article correctly points out, while the Senate cannot refuse to accept this candidate should he be elected, it most surely can vote to remove him.

Criminal Case Against U.S. Senator Might be Stalled

An article a few days ago on NJ.com had a headline reading "Defense in Menendez case pushes for mistrial as jurors fail to reach verdict." Oh, where to begin. So far all of my groups studying common law have been exposed in one way or another to the use of juries. Coming up will be a discussion on "mistrials" and "hung juries." If you want a preview of this topic, do yourself a favor and check out the article from which the headline is taken.

UPDATE: last night, after speaking individually to each juror, the judge declare a mistrial because the jury could not reach a verdict.

Unanimous Jury Issue Might be Heading to Court

Most of our knowledge about juries comes from popular culture where more often than not it said that in order to convict someone, the jury must be unanimous. As it turns out, this is not always the case in the United States, as two states allow for 10-2 jury convictions. The Washington Post recently ran an Op-Ed that is not only critical of these two states, but makes the argument that their policy regarding unanimous decisions has a racist history:

Louisiana and Oregon are not often thought of in the same vein. But on the issue of non-unanimous juries, they are kindred spirits. 

In these two states, the prosecutor needs to persuade only 10 of 12 jurors for a felony conviction that does not involve the death penalty. All other states require unanimous jury decisions in felony cases — as does the federal system, including federal courts in Louisiana and Oregon.

These jury systems are largely unnoticed vestiges of white supremacy and oppression in our legal system. The Supreme Court now has the chance to accept a case that could end the use of non-unanimous juries in criminal cases. It should take this chance.

 The rest of the piece is worth a look.

No Lawyers Necessary

A great piece over at The Conversation reminds us that having a lawyer is a requirement for accessing the court system in the United States, it is increasingly necessary:

Eighty percent of state criminal defendants cannot afford to pay for a lawyer, and only those who are actually incarcerated are constitutionally entitled to appointed counsel. Many people facing misdemeanor charges can, if convicted, be subjected to significant fines and fees, or face the loss of benefits (including housing) or deportation. Yet, they have no right to an attorney, and those who cannot afford a lawyer will go without one.
Unlike in the criminal context, there’s no federal constitutional right to counsel in civil cases. Civil cases can involve a range of critical issues, including housing, public benefits, child custody and domestic violence. And while some civil litigants may be entitled to counsel in certain jurisdictions, in most of these cases, people who cannot afford a lawyer will be forced to go it alone. Doing so may mean that they fail to make it through the process, have their case dismissed or lose what otherwise would have been a winning case.

The article goes on to cite statistics like: "In some states, as many as 80 to 90 percent of litigants are unrepresented, even though their opponent has a lawyer.

Before working for the ACLU, I was employed for almost two years by the Legal Services Corporation, which represents low-income individuals in civil cases. We only had the resources to take a handful of the cases that came through our door, meaning that those we turned away had to maneuver through the court system on their own as a so-called pro-se litigant.

The United States prides itself on the idea that everyone has access to justice, and while in theory that is true because obtaining a lawyer is not technically required to access the courts, as this article points out, it is increasingly necessary in the face of courts who are hostile to so-called pro-se litigants.

As an aside, this is also an issue in England and Wales, and pointed out in this recent Guardian article.

Removing Their Own

The Constitution Daily blog asks an intriguing question to which my constitutional law students should know the answer: "Can a senator serve in Congress after a conviction in court?" The answer to the question can be found in my lecture slides about the legislative branch or in the above linked to blog post.

Supreme Court Preview Podcast

Looking for some legal listening to improve your legal English, expand your knowledge of American Constitutional Law and be in the know about what is coming up this term in the U.S. Supreme Court? You can do no better than the Amicus podcast featuring the Legal Director of the American Civil Liberties Union (my former employer). If you do a quick Google search for "Supreme Court Preview 2017 Term" you will find all kinds of previews from various points of view.

First Monday in October

Legal watchers in the United States know exactly what "the first Monday in October" means. This is the day on which each new term of the U.S. Supreme Court begins. But why the first Monday in October? The Constitution Daily blog explains.

The Origins of the Term Gerrymander

Recently I have started discussing the topic of gerrymandering in my Constitutional Law courses. The term itself must sound funny to a non-native speaker. What on earth is a "gerrymander?" I suspect most native speakers also do not know the origin of this term and simply throw it around without ever wondering about this. A recent post by the National Constitutional Center explains that the "gerry" part of the term is linked to founding father and former Governor of Massachusetts Elbridge Gerry. Gov. Gerry notoriously pushed a plan to redraw the lines of the political districts within the state. Critics of the plan were quick to point out that one of the districts looked like a salamander, and a political cartoon (see above) coined his plan as "gerrymandering." The term has stuck ever since.  

Executive Privilege: A Primer

The National Constitution Center recently posted a piece on Executive Privilege that is a must read for my students in Introduction to U.S. Law and Fundamentals of Constitutional Law. As students will remember, Executive Privilege allows the President and his advisers to keep their conversations private. Of course, like many of the things we have talked about in class concerning executive power, President Trump has made this once boring topic come to life. As the National Constitution Center writes:

Currently, the Trump administration has requested that a federal district court based in Detroit consider an executive privilege claim related to memos prepared by Trump campaign adviser Rudy Giuliani about an alleged Muslim ban – written before Trump became President. The request is under consideration.

Breaking Presidential Ties

Here is a nice review for students in my Fundamentals of U.S. Constitutional Law and Introduction to U.S. Law courses. It touches on what happens when no one gets a majority of the votes in the Electoral College. If students understand the prior sentence, they are in good shape for the exam!