Wednesday, February 24, 2021

COVID defeats free speech and the national anthem

Members of the East Tennessee State University men's basketball team knelt during the national anthem last week, with the support of the coach. This prompted Republican legislators to sign a letter calling on the heads of the state's universities to adopt policies prohibiting such protests because of a bad song written during a battle we lost in a long-ago war.

The judicial First Amendment questions here are genuinely open. Barnette imposes a clear command against compelled participation in patriotic rituals by the government. But it runs into different rules for job-related employee speech, which may include the power to compel employees to say things as part of their job. And that runs into how to treat unpaid college athletes--people whom universities have spent more than half a century denying are employees--when they "represent" the school and act on the school's behalf

One story on the controversy expressed particular concern for ETSU's upcoming game against VMI, a military institution uniquely offended because, of course, the flag is about the troops and the veterans and not about, you know, the right to peaceful protest. It turns out that will not be a problem, as ETSU's game with VMI has been cancelled--because of positive COVID tests in VMI's program.

Posted by Howard Wasserman on February 24, 2021 at 11:21 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Monday, February 22, 2021

Fuck everything

Today is the 50th anniversary of argument in Cohen v. California, the "fuck the draft" case. The argument famously began with an admonition from Chief Justice Burger to Cohen attorney Melville Nimmer that "it will not be necessary for you I'm sure to dwell on the facts." By the 1:40 mark, Nimmer began describing what Cohen had done and what was on the jacket. And Justice Harlan's opinion for the Court had no problem describing the jacket in full.

This is a notable anniversary because the Court and litigants have fallen into an unfortunate habit of deciding cases about the constitutionally protected nature of words while refusing to utter those words in argument or write those words in the pages of the U.S. Reports. In Iancu v. Brunnetti, on whether the PTO could refuse a trademark on FUCT, the government's attorney described the mark as the "equivalent of the past participle form of the . . . paradigmatic profane word in our culture." Justice Kagan's majority opinion quoted the SG to describe how someone might read the mark. In FCC v. Fox Television (2009), counsel said "F-word" during argument and Justice Scalia's majority opinion described the FCC as adopting a policy that the "nonliteral (expletive) use of the F- and S-Words could be actionably indecent."

SCOTUS will hear argument in April in Mahanoy Area Sch. Dist. v. B.L., arising from the suspension of a high school student for a snapchat post captioned "fuck school fuck softball fuck cheer fuck everything." (Many First Amendment advocates are concerned the Court will further damage the student-speech doctrine in the first case in which a court of appeals held that Tinker does not apply to out-of-school speech).

This case is different in that the words were used and their use is central to the case, as they were in Cohen. Fox was about FCC policy and Iancu was about (intended) misperception. The central question here is whether the phrase "fuck ____" enjoys First Amendment protection when uttered by a minor outside of school. It will be interesting to see how advocates and the Court argue and decide that question without mentioning the actual words. It will be unfortunate if the trend continues. We can learn a now-50-year-old lesson from Mel Nimmer and Justice Harlan.

Posted by Howard Wasserman on February 22, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Friday, February 19, 2021

VAP - Michigan State University College of Law

Michigan State University College of Law invites applications for a full-time, fixed-term Lecturer.  The position will be for one year with an option to renew for a second year.  The Law College’s curricular needs include health care law, torts law, trusts and estates, and tax law. The Law College seeks applicants with a commitment to excellence in teaching and scholarly achievement.

Successful candidates will teach two classes, one in each of the fall and spring.  The Lecturer will have ample time to pursue their own scholarship.  The Law College will provide access to library and legal resources and mentorship for teaching and scholarly work, including opportunities to present at faculty workshops and outside fora.

For more information on the position and the link to apply, please visit

Review of applications will begin on March 5, 2021.

Posted by Sarah Lawsky on February 19, 2021 at 09:56 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

The National Emergencies Act and Non-Delegation

Before I became a hedgehog on Section Three of the Fourteenth Amendment, I was working on a new article about Robert Jackson's understanding of the non-delegation doctrine. In that paper, I plan to sketch out a constitutional argument against the National Emergencies Act. Here's how this might go:

Instead of developing a broad theory of non-delegation, let's focus on the specific example of A.L.A Schechter Poultry. In that 1935 decision, the Supreme Court explained why a portion of the National Industrial Recovery Act was an invalid delegation of authority by Congress to the President. (You can't clearly say that this discussion was a holding because the Court also said that the provision at issue was beyond Congress's Commerce Clause authority.) The provision in question delegated to the President the authority to create codes of "fair competition" for nearly every industry so long as they did not lead to monopolies. The Court said that this delegation was exceptionally broad because the President was free to define "fair competition" and the codes could cover nearly every part of the economy.

Now consider the National Emergencies Act, which delegates sweeping powers to the President over a wide range of domestic subjects if, in his discretion, the President declares a national emergency. The Act does not define a national emergency. Why is this not in substance comparable to the delegation found invalid in Schechter Poultry? Granted, some parts of the National Emergencies Act relate to foreign affairs. And the Court in Curtiss-Wright more or less said that the non-delegation doctrine does not apply to foreign affairs. But isn't the rest of the Emergencies Act an invalid delegation?

One possible answer is that some people do not want to invoke the non-delegation doctrine against the National Emergencies Act because they are concerned that revitalizing that doctrine will threaten other legislation that they like. This is not so, though, if you accept Jackson's argument (which I discussed in prior posts) that only delegations to the President himself are constitutionally suspect. The National Emergencies Act is in that group, but most delegations by Congress are not.


Posted by Gerard Magliocca on February 19, 2021 at 11:38 AM | Permalink | Comments (2)

Thursday, February 18, 2021

JOTWELL: Mulligan on Main on snap removal

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing Thomas O. Main, Jeffrey W. Stempel, & David McClure, The Elastics of Snap Removal: An Empirical Case Study of Textualism (Aug. 17, 2020), which studies the demographics of the judges who follow the textualist approach to snap removal (allowing removal prior to service of a forum defendant, in the face of clear legislative intent). I considered snap removal in a prior JOTWELL essay and expand on that argument in a forthcoming essay; Main's article and a companion piece by the same authors were essential to the research.

Posted by Howard Wasserman on February 18, 2021 at 01:26 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Job Posting - Program Director - Karsh Center for Law and Democracy

The University of Virginia School of Law seeks a Program Director for the Karsh Center for Law and Democracy. The expectation is that the Program Director will pursue a career in the legal academy as a law professor. More information is available through the UVA website as well as the Inside Higher Ed posting.

Continue reading "Job Posting - Program Director - Karsh Center for Law and Democracy"

Posted by Sarah Lawsky on February 18, 2021 at 11:41 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Sunday, February 14, 2021

Section Three Enforcement Legislation

Now that the impeachment trial is over, the work of implementing Section Three of the Fourteenth Amendment begins. When the House of Representatives reconvenes on Tuesday, I hope that there will be an effort to introduce general Section Three enforcement legislation. This is not glamorous work. It involves old-fashioned legislating with hearings, markups, and careful deliberation. There is no rush. They can take their time and get this right.

For example, who should have a right of action or the authority to bring a Section Three case? What should the standard of proof be? Should there be a three-judge District Court to hear these cases? Or an expedited appeal process to the Supreme Court. We need these questions answered before 2023, otherwise what may come afterward will be chaos. 

Posted by Gerard Magliocca on February 14, 2021 at 07:23 PM | Permalink | Comments (7)