Subscript Law

Offensive Speech • Unprotected Speech • Permissible Government Restrictions • Levels of Scrutiny • Political Speech What are freedom of speech and expression? The Constitution’s First Amendment gives individuals the right to express themselves. Freedom of speech is a basic form of expression, but the First Amendment covers much more than just speech. An individual can express herself through religious practice; through political speech or actions; by associating with others; by petitioning the government; or by publicizing written speech. Even certain “speech actions” like flag burning are considered protected speech. Free speech and expression are rights against the government. They are not rights against other people. The government — whether federal, state or local — cannot prohibit an individual from expressing herself. That means all laws and policies must treat people equally based on their views. Government agents, from police officers to school board officials, must d...

Argument: October 5, 2020 Decision: TBA Petitioner Brief: John C. Carney, Governor of Delaware Respondent Brief: James R. Adams Court below: Third Circuit Court of Appeals   Delaware’s Attempts to Provide Political Balance in its Judiciary Leave One Independent Feeling Left Out In the late 1800s, Delaware had a problem with political imbalance in the state courts. Delaware high court positions were chosen by the governor of the state, who often chose judges and justices exclusively from his political party.  The Apolitical Judiciary Courts are supposed to be nonpolitical. In many states, like in Delaware, and in the federal government, judges are not elected. Not requiring them to pursue election or reelection allows them to escape the desire to please those who support their campaigns. Judges are meant to read and interpret the law, not to have policy preferences.  Delaware’s Political Balance Provisions Delaware resolved the issue of political imbalanc...

A “standard of review” is an important judicial concept. It determines how much respect an appeals court will give to a decision from the lower court. When a litigant appeals a case, she argues that the lower court made an incorrect conclusion. And if the court below had done it right, the case would have turned out differently.  However some conclusions from the trial court are more difficult to overturn on appeal than others. Some of them, specifically conclusions of fact , are very hard to overturn because appeals courts apply a high degree of deference to them. The “standard of review” dictates how much deference an appeals court will apply. Background: Roles of the Jury and the Judge To understand the difference between the standards of review, we consider the roles of the jury and the judge in the court system.  The jury serves an important role in the American court system. The jury consists of a diverse set of individuals from the community, a set of individual...

The Supreme Court will hear  Google v. Oracle  in the first week of the fall term. The case asks whether Google made "fair use" in copying Java computer code for development of its Android operating system. The parties submitted their merits briefs earlier this year, but since then the Court has asked them to file additional briefing on whether the appeals court used the proper standard of review to overturn a jury verdict in favor of Google. Background View our graphic explaining the software issues in Google v. Oracle In 2010,  Oracle sued Google  for copyright infringement. Oracle claims Google’s illegal use of its Java software code cost it $9 billion.  After trial, a jury concluded that Google’s use of the copied Java APIs was “fair” and therefore immune from copyright infringement and damages. The Court of Appeals for the Federal Circuit ruled “fair use” is a legal question for a judge to decide based on factual conclusions of the jury....

Photo by Element5 Digital from Pexels States are implementing new voting policies in light of the pandemic, increasing the opportunities for people to vote by mail, or by absentee voting. Some states require absentee voters to submit additional forms of verification, such as a copy of a photo ID and signatures of witnesses or a notary.  Given that health officials recommend social distancing during the COVID-19 pandemic, voters brought lawsuits against several states’ witnessing/notarizing requirements. Federal appeals courts agreed with voters in two states, Alabama and Rhode Island, ruling against the states’ witnessing/notarizing requirements. In each case, supporters of the witnessing requirements applied to the Supreme Court asking for an emergency order that would allow the state to keep the requirements. In the case arising from Alabama, the Secretary of State and the State of Alabama itself filed the Supreme Court application for relief . In Rhode Island, it was the...