- We’ll pass the bill first, and let the courts tell us later whether it violates the First Amendment. That’s not how it’s supposed to work [my Free State Notes on a Maryland “cyberbullying” bill]
- Local laws requiring government contractors to disclose/disclaim ties to the anti-Israel BDS movement have rightly come under criticism. Will that spill over to a constitutionally dubious new Los Angeles ordinance requiring contractors to disclose ties with an advocacy group devoted to a different issue, the NRA? [Eugene Volokh]
- “Lust on Trial,” new book by Amy Werbel on celebrated vice crusader Anthony Comstock [Kurt Conklin with Alex Joseph, Hue (Fashion Institute of Technology, NYC); podcasts at FIRE with Nico Perrino and ABA Journal with Lee Rawles]
- “The Rushdie affair became a template for global intellectual terrorism” from Paris and Copenhagen to Garland, Tex.; in a different way, it also foreshadowed the far pettier heresy hunts and sanctity trials of callout culture [Jonathan Rauch]
- $250 million libel suits as a fantasy way to own the libs? In real life meanwhile big-ticket libel suits are used to silence conservatives [Competitive Enterprise Institute press release (leading media orgs including RCFP, SPJ, ASNE support rehearing of D.C. court ruling favorable toward Michael Mann defamation action), NR editors, Jack Fowler] “The media’s Covington coverage was appalling, but Nick Sandman’s libel lawsuit is not the answer” [Robby Soave, Irina Manta] Another part of the forest: Justice Clarence Thomas criticizes New York Times v. Sullivan [Will Baude, Cass Sunstein, Ramesh Ponnuru]
- “A new documentary showcased by PBS presents Montana as a success story of campaign finance reform and Wisconsin’s John Doe investigations as a failure.” But “Dark Money” has some omissions [Cato Daily Podcast with Caleb Brown and Steve Klein of the Pillar of Law Institute]
Posts Tagged ‘Montana’
SCOTUS: state courts not on elastic jurisdictional leash
My new Cato post applauds the Supreme Court for its 8-1 decision yesterday in Bristol-Myers Squibb v. Superior Court of California correcting the Ninth Circuit on the permissible extent to which California can reach out to hear lawsuits arising from controversies and litigants in other states. A couple of weeks ago a companion 8-0 decision from the court addressed similar issues from Montana in BNSF v. Tyrrell.
…in both instances — with only Justice Sonia Sotomayor still balking — the Justices made clear that some states’ wish to act as nationwide regulators does not allow them to stretch the constitutional limits on their jurisdiction that far. …
…the contemporary Court is keenly aware of the danger that the tactical use of forum-shopping will eclipse the merits in many categories of high-stakes litigation, turning potentially losing cases into winners through the chance to file them in a more friendly court.
That insight might prove significant at a time when forum-shopping has come to play a prominent role in high-profile ideological litigation—with conservatives running to file suit in the Fifth Circuit, liberals in the Ninth.
(& welcome readers from SCOTUSBlog, which rounds up other commentary on the decision)
Free speech roundup
- “There are about 10 to 20 [criminal libel] prosecutions each year throughout the country” [Eugene Volokh on criminal defamation complaint by Montana judge against election opponent who had accused him of misconduct]
- “Shutting down Fake News Could Move Us Closer to a Modern-Day ‘1984’” [Flemming Rose and Jacob Mchangama, Washington Post/Cato]
- Glad to be in America with our First Amendment: EU acts to adopt Europe-wide rules requiring social media companies to take down so-called hate speech [Mashable, Engadget] More: DW. And a decree ordering media to take down news officially dubbed false is one that would *not* read better in the original German [Flemming Rose, Cato]
- Idaho defends its ag-gag law against First Amendment challenge before Ninth Circuit [Baylen Linnekin]
- “The playing field for independent speech has improved, but there are challenges still for small groups that want to influence elections.” [Cato podcast with campaign attorneys Michael G. Adams and Neil Reiff]
- On the origins of “no-platforming” [Mark Peters, Boston Globe, quotes me]
Montana legislature: ABA, take a hike with that 8.4 rule
In passing Senate Joint Resolution 15, the Montana legislature has expressed its view that it would be unconstitutional for the state to adopt the ABA’s controversial Model Rule 8.4(g), which purports to ban “discrimination” and “harassment” in the legal profession in such a way as to cut into rights of lawyers’ speech and association, some of them distinctive to their role as client advocates [text, status Gavel to Gavel] Eugene Volokh has more here. We’ve previously linked Volokh’s debates with prominent lawyers on the subject, and here’s another, under Federalist Society auspices, this time against Robert Weiner of Arnold & Porter. Earlier here, here, etc.
Free speech roundup
- “And Hansel and Gretel (children!) kill their captor by baking her in an oven.” — Scalia, J., noting the commonness of violence in youthful entertainment over the centuries, in Brown v. Entertainment Merchants Association (2005), his landmark opinion confirming full First Amendment protection for videogames as works of expression [Jim Copland/City Journal, Owen Good/Polygon; contrasting Hillary Clinton position]
- Scalia made crucial fifth vote for many First Amendment liberties. Which ones are safe now? [Ronald Collins first, second posts]
- Wisconsin redux? Montana ethics official targets political adversaries with subpoenas [Will Swaim, Reason]
- Goaded by governments, Facebook now has big program in Europe “finding and then removing comments that promote xenophobia.” [Independent, U.K.] Sad to see Israeli official backing legal curbs on freedom of social media [Times of Israel]
- “Flemming Rose talks about the decision to publish 12 cartoons featuring the prophet Mohammed in the Danish newspaper Jyllands-Posten in 2005.” [“Free Thoughts” podcast with Aaron Ross Powell and Trevor Burrus, Cato’s Libertarianism.org]
- 2016 workplan from ACLU doesn’t include free speech as a main concern, and some aren’t surprised by that [Ronald Collins]
- “Appeals Court Tells City It Can’t Use Its Terribly-Written Zoning Laws To Censor Speech” [Tim Cushing, TechDirt; Fourth Circuit, Norfolk, Va.]
Medical roundup
- Scorecards on complication rates and outcomes may reveal little about who’s a bad doctor since best docs sometimes take hardest cases [Saurabh Jha, KevinMD] “Anatomy of error: a surgeon remembers his mistakes” [The New Yorker]
- When parents and doctors don’t agree, are allegations of “medical child abuse” levied too liberally? [Maxine Eichner, New York Times; Lenore Skenazy, see also “medical kidnapping” links]
- ABA’s Standing Committee on Medical Professional Liability derailed in bid for House of Delegates resolution endorsing unlimited punitive damages in product liability [Drug & Device Law first, second, third posts]
- Wisconsin repeals medical whistleblower law [Milwaukee Journal-Sentinel]
- “Politically Driven Unionization Threatens In-Home Care” [David Osborne, IBD]
- Ninth Circuit upholds Washington state regulations forcing family pharmacy to dispense morning-after pills [The Becket Fund]
- Pathologist who frequently diagnosed shaken baby syndrome loses Montana role [Missoulian]
Free speech roundup
- Weirdly, Europe is more willing to legislate against pro-ISIS views than openly to argue against them [Nick Cohen]
- City of Inglewood, Calif. sues for copyright infringement over videos by critic of Mayor Butts [CBS L.A., Volokh, Paul Alan Levy]
- “Department Of Justice Uses Grand Jury Subpoena To Identify Anonymous Commenters on a Silk Road Post at Reason.com” [Ken White/Popehat, Wired, Scott Greenfield]
- Bans on the singing of sectarian songs, as in the Scotland case mentioned here recently, are perhaps less surprisingly also a part of law in Northern Ireland [Belfast Telegraph, BBC] UK government “now arresting and even jailing people simply for speaking their minds” [Brendan O’Neill]
- Broad “coalition of free speech, web publishing, and civil liberties advocates” oppose provisions in anti-“trafficking” bill creating criminal liability for classified ad sites; Senate passes bill anyway by 99-0 margin [Elizabeth Nolan Brown; more from Brown on bill (“What, you mean grown women AREN’T being abducted into sex slavery at Hobby Lobby stores in Oklahoma?” — @mattwelch), yet more on trafficking-panic numbers]
- Group libel laws, though approved in the 1952 case Beauharnais v. Illinois, are now widely regarded as no longer good law, but a Montana prosecutor doesn’t seem aware of that [Volokh] No, let’s not redefine “incitement” so as to allow the banning of more speech [Volokh]
- Supreme Court’s ruling in Elonis, the “true threats on Facebook” case, was speech-protective but minimalist [Ilya Shapiro, Orin Kerr, Ken White, Eugene Volokh]
Supreme Court and constitutional law roundup
- “Laura & Marvin Horne’s Story”, video on raisin takings case, features the great Michael McConnell [YouTube, earlier]
- Actor Edward Gero shines as Antonin Scalia in new stage play The Originalist but script doesn’t really understand originalists or Federalist Society types, thinks John McGinnis [City Journal]
- McGinnis on the difference between “big”/philosophical cases and normal cases at the Supreme Court [Liberty and Law]
- Ninth Circuit should call foul on Montana’s racial preferences in state contracting [Ilya Shapiro, Cato]
- Narrowly divided court in Wynne v. Comptroller finds Dormant Commerce Clause forbids double taxation by Maryland, which might have implications for California’s power to regulate the whole world [Michael Greve/Law and Liberty, Daniel Fisher]
- Ilya Shapiro is keeping score of how many unanimous cases Obama administration has lost before Supreme Court [twenty, as of May 1; American Spectator, auto-plays ad]
- Spokeo lawsuit under Fair Credit Reporting Act gives Court chance to clarify standing for uninjured plaintiffs [Will Baude, New York Times; Daniel Fisher]
“How do you know it’s time to give up and dismiss your claim?”
“Well, if the judge is comparing you to the Black Knight from Monty Python and the Holy Grail, now’s probably a good time” [Kevin Underhill, Lowering the Bar, on the Montana case of Wallace v. Hayes]
“Hyundai Must Pay $73 Million Punitive Award, Judge Says”
The story from Montana, on Bloomberg, updates our earlier report [link fixed now] including this link. Writes correspondent R.T.:
Big difference in liability theories here:
Plaintiff: Defective steering mechanism;
Defendant: The fireworks that were going off INSIDE THE CAR at the time of the crash.