President Elect Trump and Free Speech. Is it Good to Be King?

President elect Trump has opined that people who burn the American flag should be punished (jailed or lose citizenship).  However, he has failed to denounce use of the American flag as a symbol by the KKK, an avowed racist group, or of the Confederate Flag, an avowed racist symbol.

Justice Brennan, in Texas v Johnson:

The best way to preserve the flag’s special role in our lives is not to punish those who feel differently but to persuade them that they are wrong.  We do not honor our flag by punishing those who burn it, because in doing so we diminish the freedom that this cherished emblem represents.

Even Mitch McConell rejected a Constitutional Amendment to overturn Johnson, writing:

No act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution, and our country, is stronger than that. Ultimately, people like that pose little harm to our country. But tinkering with our First Amendment might.

Justice Scalia famously stated:

If I were king, I would not allow people to go around burning the American flag -- however, we have a First Amendment which says that the right of free speech shall not be abridged -- and it is addressed in particular to speech critical of the government.

Does Trump suppose himself to be King? 

He has suggested that he will change defamation laws to dilute freedom of the press and allow public figures to more easily sue the media for defamation. Is he unaware that defamation law is state common law and not federal law? And that if it were, he doesn't have the power to change them?  And in any event, there is the Constitution?

Perhaps he sees the Constitution as merely another of those vexing regulations that must be immediately eliminated.

Who would have thought that when Trump went to Washington to clean things up, he intended to throw out freedom and democracy with it?  -  other than the 70 Million people who voted against him.

Sad.

Fictional President Andrew Shepard explains why burning the American flag is as patriotic as saluting it:

Election Day!

It's election day!

 In the words of President Gerald Ford after he pardoned Richard Nixon:
“My fellow Americans, our long national nightmare is over.”

And in the words of another Republican President:
"I believe the mood and the time is now right for all Americans . . . to join together in a bipartisan effort to fulfill our constitutional obligation of restoring the United States Supreme Court to full strength."

Crash Course: Judicial Review

Here is the latest feature in the PBS series on Government. These videos cover a lot of ground in a short clip.  Maybe too long to show in class, but not too long for an out-of-class assignment.

Justice Scalia's Dissents Put to Music

Somehow, I think that Justice Scalia would have been amused.

Oral Argument Videos Are Hard to Find

The US Supreme Court does not allow cameras to record oral argument before the court. Audio files are available but are typically too boring for students.  In my experience, students' impression of oral argument is that it is in the form of a well rehearsed and practiced formal speech or presentation.  They don't understand that appellate oral argument is usually just the lawyer being peppered with pointed questions by the judges.  The judges have read the written briefs.  they don't need a re-hash. They want to explore the weak points and the edges of the lawyers' positions.

Thankfully, some state courts allow cameras so that we can show students what an oral argument looks like, instead of only what it sounds like.  The video below shows an oral argument before the Supreme Judicial Court of Massachusetts, the state's highest appellate court.




The video below shows part of the movie re-creation of the Supreme Court argument in the Hustler v. Falwell case:




The video below uses a couple of minutes of the audio recording of the Supreme Court argument in Heien v. North Carolina but the judges are played by adorable dogs:

Crash Course: SCOTUS Procedures

PBS has produced a series of Crash Course videos on Government that include many important topics relevant to a Legal Environment course. The video embedded below is an example.  They run between 6:00 and 10:00 long - which may be a little long to show in class, but are about the right length to assign for out of class viewing. They can provide a valuable resource for students who tend to eschew textbooks readings and note taking in lecture.

Citizen's United in Song

More social/legal/political commentary from Roy Zimmerman.

"Citizens United puts the 'mock' in democracy."

Falwell v. Hustler Supreme Court Oral Argument

There is great movie clip from The People v. Larry Flynt portraying the oral argument before the US Supreme Court in Hustler v. Falwell.

Unfortunately, I can't find an easily accessed public video of the whole argument.  The following video has part of it:



The video below has the whole audio part set to images of dogs as Supreme Court justices:

The Supreme Court Has Gone to the Dogs

The legal profession can sometimes be a dog eat dog world. Legal cases can be dogfights and there are so many dogggone precedents and procedures.

Even the Supreme Court is not immune.  Click here or on the image below to see how:



Note: This video is almost an hour and a half long!

Songs of the Supreme Court: Part Two

Here is the link to the original Songs of the Supreme Court post.  Now view Part Two:

Loving v. Virginia:



Burwell v. Hobby Lobby Stores, Inc.:



Citizen's United v. FEC:



For all federal judges:

The Flood Gates Have Opened

The recent Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. is described in this New Yorker article:

Hobby Lobby, a closely held corporation, is a secular, for-profit business, but the Court held that because the owners of Hobby Lobby held a sincere religious belief that certain forms of birth control caused abortions, they could deny employer-paid insurance coverage for them. Justice Samuel Alito insisted, in his opinion for the Court, that his decision would be very limited in its effect. Responding to the dissenting opinion by Justice Ruth Bader Ginsburg, who called it “a decision of startling breadth,” Alito wrote, “Our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.’ ”

Justice Alito, who pledged such fidelity to stare decisis during his confirmation hearings, apparently has no clue how the doctrine works.

The track record of judicial decisions since the Hobby Lobby decision show that Justice Ginsburg was likely right. A U.S. District Court judge in Utah has ruled that a leader of a religious sect was not required to answer U.S. Department of Labor questions about potential child labor violations because to do so would place a "substantial burden" on his "sincere" religious beliefs against publicly disclosing church business.  

It's hard to imagine what would not be protected at this point.  Remember the furor over the Catholic Church failing to turn in pedophile priests?  Now they can simply claim to do so would be a substantial burden. In states where teachers are mandated reporters of suspected child abuse, can religious school teachers claim an exemption from reporting severe physical abuse because of a sincere religious belief in corporal punishment? 

Put on your life jackets, folks because the floodgates are open. 

Faces of the Supreme Court

Thanks to the Slate website here is a fun 10 question quiz involving identifying parties to famous Supreme Court cases.  I think that it is useful for students to understand that the cases we talk about in class are not merely academic exercises. Real people were involved and real lives are affected.

Here are some additional faces of the Supreme Court;

Richard and Mildred Loving.
Loving v. Virginia 
Source:


Steve Garvey
MLBPA v. Garvey
Source


Estelle Griswold
Griswold v. Connecticut
Source


Jerry Falwell
Hustler Magazine, Inc. v. Falwell 
Source


Larry Flynt
Hustler Magazine, Inc. v. Falwell 
Source


L.B. Sullivan
NY Times Co. v. Sullivan
Source


Fred Phelps
Snyder v. Phelps
Source


Albert Snyder
Snyder v. Phelps
Source

The Nuance of Judicial Decision-Making

Below are two videos about Judicial Decision-Making. The first is from Supreme Court Associate Justice Samuel Alito's confirmation hearings. In it, he describes how justices are bound in their decision-making to follow the rule of law as expressed through precedent.  The second video features U. of Maryland Law Professor Sherrilyn Iffel explaining how diversity in a court's make-up is important to the decision-making process.

Students may wonder if the views expressed in these videos are inconsistent. If there is a "rule of law" and judges are bound to follow it, then why would diversity on a court make a difference? Of course, these videos are not inconsistent.  But it is this nuance of what a "rule of law" means and what goes into judicial decision-making that is often difficult to convey to undergraduate students.

One of the most rewarding aspect of teaching undergraduates is feeling a part of this process where students evolve out of their "civics class" type understandings of the legal system into educated adults with a more mature understanding of the relationships between law and society.

MLK Day: Brown v. Board of Education

Today is the celebration of Martin Luther King, Jr.'s birth and his life and legacy.  In honor of his vision and his accomplishments, below please find videos on Brown v. Board of Education that you may find a place for in your classes.

From the PBS Documentary on the Supreme Court:



The song:

Federal Judges Serve For Life . . .

. . . and, therefore, are "Appointed Forever."

Corporations Are Persons Now

Tell us how you really feel ladies.  Don't hold back, now! See also the The Story of Citizens United.

Mildred and Richard Loving Photos Released

Newly discovered photos of Mildred and Richard Loving taken in 1965 have been made public. The Lovings were the plaintiffs in the Supreme Court case that struck down Virginia's anti-miscegenation laws. The photos were discovered during the making of a documentary, The Loving Story, due for release in February.  Click here to see the newly released photos.

Featured case: Loving v. Virginia.

The video below is a new release of a live performance of Nanci Griffith's musical tribute to the Lovings.

Songs of the Supreme Court

This is Thanksgiving Week and there are no classes at UConn. I thought it would be a good week to make a fun post and leave it up until classes resume next week.

This post is made up of songs realted to U.S. Supreme Court cases. I found songs on a few cases, but I am sure that there are more out there that readers will be able to share.  Please us the comment section at the end of the post to add your favorites and suggestions.

1. Brown v. Board of Education
The song Black and White written by David Arkin (Alan Arkin's father) and Earl Robinson.was inspired by the Brown case. The most famous recording of the song was by Three Dog Night in the 1970's.  However, that version inexplicably removed all the poignant references to the court. The version below is from Pete Seeger.



2. Loving v. Virginia
Singer/songwriter Nanci Griffith wrote and recorded this song to commemorate the 50th anniversary of this landmark decision.



3. United States v. US District Court
The song John Sinclair was written by John Lennon prior to this Supreme Court decision. Sinclair was one of the defendants whose case made up the subject of  the Supreme Court case.  Lennon famously performed the song at the "John Sinclair Freedom Rally" in Ann Arbor, MI in 1971.



4. Snyder v. Phelps (Westboro Baptist Church)
There are a large number of songs available on-line in response to the Westboro Baptist Church protests that were upheld by this decision. Many of them cannot be shared in polite company. I chose the one embedded below because I thought it best exemplified Justice Holmes' "marketplace of ideas" (although the phrase was coined by Justice Brennan).



If you have a song related to a Supreme Court case that you would like to share, please feel free to send it to me for a future post at mark.deangelis@uconn.edu.  I look forward you  to your comments and suggestions.