By now we should probably read a claim that the First Amendment doesn’t cover hate speech not as an ignorant flub, but more as a declaration of intent to curtail the First Amendment’s scope. More: Ken White, Los Angeles Times.
Supreme Court roundup
- DoJ reverses Obama predecessors’ stance on whether NLRA rights to collective action bar individual-arbitration clauses in employment contracts [BNA via Indisputably; consolidated trio of Murphy Oil, Ernst & Young, Epic Systems Corp. cases] Ninth Circuit OKs California end-run around Supreme Court’s jurisprudence on workplace arbitration class actions, time for review [WLF on Bloomingdales, Inc. v. Vitolo; update on cert denial: Deborah LaFetra, PLF]
- Roberts joins liberals to hold 5-3 that cities can sue alleging Fair Housing Act violations; damages theories are to be constrained, though [Josh Blackman, SCOTUSBlog roundup on Bank of America v. Miami, earlier here and here]
- How much deference should appellate courts give district courts in ruling on subpoenas issued by EEOC? [Ross Runkel and Federalist Society podcast with Karen Harned on McLane Co. v. EEOC]
- Court unanimously disallows stratagem by which class action lawyers voluntarily dismiss individual claim so as to secure immediate appeal of certification denial [Howard Wasserman, James Freije on Microsoft v. Baker]
- Chevron used racketeering law to fend off giant foreign judgment in Ecuador saga, losing side would like Supreme Court relief from that [Paul Barrett, Business Week on Donziger v. Chevron] Update Monday morning: Court will not hear;
- “To Be Liable for Fraud, You Have to Have Actually Defrauded Someone” [Ilya Shapiro and Thomas Berry on Cato cert amicus in SGE Management v. Torres]
Floyd Abrams on Citizens United
Why do so many in the press despise Citizens United, a decision whose point is to protect First Amendment liberties? One factor may be that the decision undermines their own sector’s claims to specialness by making clear that press liberty is meant for everyone, not just for media professionals and their organizations. [Floyd Abrams, guest-blogging at Volokh]
“Lawsuit Claims Bank Is Responsible for Employee Sending Naked Photo on LinkedIn”
A lawsuit filed by celebrity lawyer Mark Geragos asserts that a bank is responsible for the actions of an executive whose message exchanges with the complainant allegedly turned from professional exchanges to sexual overtures, including the sending of a naked picture. [Bloomberg/Insurance Journal]
Lawsuits to scrub search engine results
Schools roundup
- Georgia sheriff mass-frisks 900 students at a high school. Is that legal? [Scott Greenfield, Lowering the Bar]
- Federal judge dismisses “clock boy” discrimination suit against Dallas-area school district [CBS News]
- Ilya Shapiro on Gloucester County v. G.G., the transgender school bathroom Title IX case [Federalist Society]
- Social worker on public reaction against Named Person program in Scotland: families “had wanted a single point of contact for parents,” but Scottish government instead created “point of contact about parents” [No2NP campaign, earlier]
- “In places like New York City, schools have made it more difficult for principals to suspend disruptive or threatening students. The results? Increased violence, drug use, and gang activity, according to the Manhattan Institute’s Max Eden.” [Hans Bader/CEI, Eden paper, related on national policy]
- Rethink your assumptions about Betsy DeVos’s appointees [Erica L. Green, New York Times] More on appointee Candice Jackson [George Leef, Martin Center, earlier]
“Cultural appropriation: Make it illegal worldwide, Indigenous advocates say”
“Indigenous advocates from around the world are calling on a UN committee to ban the appropriation of Indigenous cultures — and to do it quickly….Since it began in 2001, the committee [a “specialized international committee within the World Intellectual Property Organization (WIPO), a United Nations agency”] has been working on creating and finishing three pieces of international law that would expand intellectual-property regulations to protect things like Indigenous designs, dances, words and traditional medicines.” [CBC/Yahoo]
Explains the WIPO site: “Traditional cultural expressions (TCEs), also called ‘expressions of folklore’, may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions.” Also under consideration are rules for “genetic resources” such as seeds, and folk or traditional knowledge.
One wonders how the novel intellectual property regime being contemplated will diverge from earlier, longstanding IP regimes on such questions as which products of the human mind are subject to protection, how long property rights in cultural expression are to persist after original creation and dissemination, and when if ever creative expressions originating with individuals, whether recently or generations ago, may (or must) have their rights assigned to national or ethnic collectives claiming to represent them. Presumably it will be difficult to limit the idea of collective property rights in folkloric expression to indigenous or tribal groups only, and other national groups and ethnicities, including the economically advanced, will also get in line to stake future claims.
Ed Krayewski, writing at Reason, points out that the project could have a potentially welcome consequences if it serves to impede the patenting by sophisticated Western concerns of medicines that were already in traditional usage, and likewise for the copyrighting of traditional designs and the like. Of course, intellectual property systems already are not generally supposed to confer IP rights on knowledge, uses, or expressions that were in use or known about before the claimant’s purported act of creativity, but national IP systems may not always do a good job of recognizing prior art, use, or knowledge.
For the most part, however, this is an effort to restrict the public domain and the creative and expressive liberties it brings with it. Note that an American law professor, formerly United Nations Special Rapporteur on the rights of indigenous peoples, is helping push it; earlier on Prof. James Anaya, now dean at Colorado, here.
Crime and punishment roundup
- Clark Neily, who spent 17 years at the Institute for Justice and is the author of the constitutional law book Terms of Engagement, joins Cato as vice president for criminal justice [Cato press release]
- California is among 29 states that revoke drivers’ licenses for failure to pay tickets, which can knock poorer persons out of the workforce over minor offenses [Maura Ewing, The Atlantic]
- It’s quite rare for prosecutors to file felony charges against public defenders — unless you’re in New Orleans [The Guardian] “Jefferson Parish prosecutors used fake subpoenas similar to those in New Orleans” [Charles Maldonado, The Lens]
- To explain America’s love affair with incarceration, look first to ideology not race [Thaddeus Russell, Reason]
- North Carolina law bans persons on sex offender registry from using social media. Constitutional? [Federalist Society podcast with Ilya Shapiro, Cato on Supreme Court case of Packingham v. North Carolina, more on sex offender registries]
- Judge orders D.A. to return life savings seized from legal medical cannabis business owners; no charges had been brought [Institute for Justice press release] D.A. then files charges against him and his attorney [NBC San Diego]
“Pittsburgh or Paris?”
My new op-ed, at column syndicator Inside Sources, on why Trump’s “I was elected to represent the citizens of Pittsburgh, not Paris,” is a powerful slogan critics underestimate at their peril. On the objection that the city of Pittsburgh voted heavily against Donald Trump, I write, “it seems to me it is Trump’s speechwriters rather than his critics who are showing the sounder grasp of what ‘elected to represent’ means. It is not supposed to mean ‘elected by one faction of the country to advance its interests as distinct from the interests of the other faction.’ In fact, we specifically shouldn’t want presidents to feel that they have no responsibility to represent the interests and rights of voters or regions that went strongly against them.”
“Do You Have a Constitutional Right to Follow the President on Twitter?”
Probably not, says John Samples: “the fact that designated public forums may be non-physical, coupled with Trump’s status as President of the United States, is probably not a sufficient basis to deem his Twitter account a designated public forum. The courts have generally determined that designated public forums must be owned by the government in an official capacity, or used for official government communication….In effect, Trump’s becoming president does not nationalize the private Twitter account that he used before ascending to the nation’s highest office, and will likely continue to use when his tenure in the White House ends.” [Cato] More: Eugene Volokh (citing ruling on challenge about social media accounts used by officials in Fairfax County, Va.)