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:

Marijuana and the Commerce Clause

This clip from the 1938 movie "Reefer Madness" shows the prevailing view of the time - that the Federal government had no power to regulate marijuana as "there is no interstate commerce in it."  This clip can be used as a thoughtful introduction to Gonzales v. Raich since the Supreme Court came to the opposite conclusion. States continue to legalize marijuana, for medicinal purposes or otherwise, despite Supreme Court affirmation of Congressional criminalization. Is this a state or federal matter?

Life as an Accountant

Is this what our hardworking Accounting majors have to look forward to?

Brotherhood of Man

I know that I have posted this before, but I have found a few new videos and thought they might be useful.  I see a lot of smiling faces when I play one of these videos in class or before class starts.

I tell students that they have to get to the point where acting ethically is not a decision but instinct.  You have to inherently derive joy from doing the right thing.  Adam Smith in the Theory of Moral Sentiments, which preceded The Wealth of Nations, said that people will be inherently moral because it brings them joy to do so. Therefore, the basis of the free market economic theory is that everyone, inherently, as if "guided by an invisible hand," acts morally.

Ultimately, it is all about being part of the Brotherhood of Man:

American Hustle Goes Libelous

In the movie American Hustle, Jennifer Lawrence's character claims that the source of her belief that microwave ovens take all the nutrition out of food is an article written by Paul Brodeur. The real Brodeur is a science journalist who wrote for The New Yorker. But he never wrote such a scientifically erroneous proposition as was ascribed to him in the movie.  He claims the false attribution damages his reputation and has filed suit for libel in California state court.

The "Science Oven" allegedly libelous scene:

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:

Ethics: It's About the Brotherhood of Man.

Law is an expression of public policy decisions.  Sometimes the public policy intentionally permits less than laudable conduct.  The employment-at-will doctrine comes to mind as an example. To encourage employment, the law gives free reign to employers to dismiss employees - even if the grounds for the dismissal seem unfair. See posts: Fired For Racial Tolerance; Fired For Choice of Necktie; Fired For Wearing Orange Shirts.

Ethics, on the other hand, carry no such hidden agenda.  Ethical principles encourage doing the right thing, independent of considerations of expediency, efficiency, profit or other purportedly justifiable circumstance. In short, ethics is about the "Broterhood of Man."  As in:

There is a Brotherhood of Man,
A Benevolent Brotherhood of Man,
A noble tie that binds
All human hearts and minds
Into one Brotherhood of Man. 

Your lifelong membership is free.
Keep agivin' each brother all you can.
Oh aren't you proud to be
In that fraternity,
The great big Brotherhood of Man? 

Oh, that noble feeling,
Feels like bells are pealing,
Down with double-dealing,
Oh Brother! 

You, you got me;
Me, I got you, you! 

From "How to Succeed in Business Without Really Trying":

Daniel Radcliffe:


Robert Morse:


Matthew Broderick - click on image below:


Drew Carey:

Law Must Have Legitimacy - or at Least the Appearance of it.

Our legal system depends to a great degree on the voluntary compliance of the citizenry. And the voluntary compliance of the citizenry depends to a  great degree on the law's legitimacy - or at least the belief that the law is legitimate.  That belief is based largely on the appearance of legitimacy created by the system's outward manifestations (to borrow a concept from agency/apparent authority law).  Last week, this blog featured a video from Judge Posner talking about judicial decision-making.  In it he says that while judges may decide cases one way or another based on political ideology, they can't say that they do.  So they dress the justifications for their decisions up in fancy constitutional theories.  Those "fancy theories" serve to legitimize the decision.  That is why we teach about Legal Reasoning and Stare Decisis and we refer to quotes like being "a nation of laws, not of men" etc.  Although we know that all these institutional concepts leave enough wiggle room for judicial decision making to be based on ideology, we wink and stammer and continue to talk about law being insulated from politics.

Certainly, the judicial system is a different political animal from a legislature. Everyone expects legislatures to be political. But, so far, we have maintained the all important appearance of legitimacy in the courts. And that has a tremendous impact.

Here is Justice Breyer talking about the importance of legitimacy:


Here is a clip from the movie "The Man of the Year."  The scenario is that the nation is voting for the US President and, for the first time, employing a nationwide electronic voting system designed by a company called Delacroy.  On election day, one of the programmers has discovered a programming glitch that is resulting in the votes being miscounted. She tries to tell someone and gets a talking to from Delacroy's general counsel.
(Note: This is a YouTube clip.  If you find it useful, download it ASAP as it is likely to soon disappear subject to a copyright notice.  We wouldn't want any of that learning going on for free!)

Payment in Meatballs

Thanks to Regina Robson at St. Joseph's University in Philadelphia for suggesting this movie clip.  Whilewere chatting at this past weekend's meeting of the North East Academy of Legal Studies in Business (NEALSB), Regina suggested a scene from the movie The Wedding Singer, to illustrates the principal of consideration. Robbie is helping Rosie get ready to sing at her 50th anniversary party by playing the piano for her rehearsals. Rosie pays him . . . in meatballs.

Click on the picture below to see the clip.

Condition Precedent from "Gung Ho"

From the movie Gung Ho comes this clip on condition precedent.  I show this clip in class and then ask students to tell me the contract terms.  Inevitably, the response is that the union will produce 15,000 cars in a month and the company will restore workers' pay and guarantee full employment. But that answer is wrong. The contract promises are that the union workers will work and the company will restore their pay and guarantee full employment.  But the company's promises need not be performed unless and until the workers produce 15,000 cars in a month. Production of the 15,000 cars is not a contract promise, but a  condition precedent to be met prior to the company's obligation to perform becoming absolute.  Otherwise, if the union had made a promise to produce the 15,000 cars/month, then failure to do so would be a breach of contract allowing the company to sue for damages. And that is clearly not the intent of the parties.

Can This be an Express Warranty?

In this post we pointed to the UCC Article 2 express warranty provisions.  In the video below, a bold statement is made by the retail sellers of coffee.  Is it a statement of fact or "puffing"?

Conversion!

. . . by means of destruction of personal property.  What are the remedies?



Justification defense?

Rejecting Non-Conforming Goods

Clark Griswold (Chevy Chase) rejects non-conforming goods under UCC 2-601.

Click here or on image below to see video:

"American President" Movie Speech Echoes Supreme Court

The American Rhetoric Website on Movie Speeches offers an opportunity to view President Andrew Shepherd's (Michael Douglas) address to the press from the movie The American President. Shepherd, running for re-election has been attacked by his opponent on "character issues." The widower president had begun dating an environmental lobbyist, Syndney Ellen Wade (Annette Bening), when an old photo of her surfaced. The image captured a college -aged Wade burning an American flag during a protest.

Shephard's impassioned words echo Justice Brennan's decision in Texas v. Johnson (flag burning case):

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.

I find this clip useful to describe the concept and legal principles surrounding political speech to set the stage for a comparative analysis of commercial speech.

To view the speech from The American President, click here or on the image below:

"We Both Reached For The Gun"

From the movie Chicago, attorney Billy Flynn orchestrates his client's story and manipulates the press to skew the legal system. How much is our legal system reactive to the result of impressions rather than evidence? This clip can be a good catalyst for that class discussion.

"It's Not What You Know, It's What You Can Prove in Court"

Students seem to be quite familiar with the movie Law Abiding Citizen and from time to time send me clips to illustrate a point.  I have not seen the movie, but from some of the scenes that I have viewed there seems to be a lot of action and swearing. The courtroom scenes that I have viewed exhibit that liberties have been taken in portrayals of the legal system.  Yet, the short clip linked below rang true for me.  If it speaks to students, all the better.

Click HERE or on the image below to see the video.

Negotiation Works Only When Both Parties Are Interested in Negotiating

 . . . as illustrated in this clip from the movie, Intolerable Cruelty.



Another option:

"OSHA Would Have a Field Day . . .

. . . at Willie Wonka's Chocolate Factory." Credit for this punch line goes to Rick Stromoski and his Soup to Nutz comic strip. The video below can be used as a unique introduction to the workings of administrative agencies.

Power Can Make You Go "Bananas!"

Sociological Jurisprudence theorists may debate the role of law as a means of social ordering. Law and Society scholars may debate the nature of the symbiotic relationship between the two. Those discussion may be relevant to considering what happens when the formerly weak and powerless become the law makers.  History gives us too many examples of a new regime forgetting its humbler beginnings and losing its ideological moorings upon achieving power. If the American Tea Party rises to  power will it protest against itself?



Click the picture below to see a clip from the classic 1970's Woody Allen movie, Bananas. This is what happens when the rebels win the revolution.

Law Music Video - Razzle Dazzle

This week's installment in the "Law Music Videos" series is Razzle Dazzle. This is not a true music video but a video clip from the movie "Chicago".  I use this video in the regular curriculum during a discussion about whether a trial is effective as a "search for truth." It is a little long (6:32) but its message is so effective that I think it is worth the investment of class time. In the alternative, I am sure that it would also be effective as a pre-class video. Law music videos played before your class starts will positively contribute to learning.