Fearless Speech: Breaking Free from the First Amendment

Professor Mary Anne Franks recently was a witness for the Democrats in a congressional hearing about the so-called censorship industrial complex." She criticized the claim of victimhood and noted the true censorship problem was Trump. 

Multiple Republican senators trolled her, including, without context, lashing out at an article about " Supreme Court as Death Panel," which is a criticism of their opinions striking down abortion rights and, in her view, too expansively defending gun rights. This results in lethal policies.

Franks wrote a book, for which I provided a book summary, entitled The Cult of the Constitution, critiquing the misguided worship (in her view) of the first two amendments. This does not mean free speech and self-defense are not worthwhile. It means a certain view is open to criticism.  

The first half foreshadowed her second book, which she covered years ago in an article on favoring "fearless speech" as a First Amendment model:

This Article proposes that First Amendment theory and practice should be reoriented around the ancient Greek concept of parrhesia, or fearless speech. As the philosopher Michel Foucault describes it, the speaker of parrhesia "chooses frankness instead of persuasion, truth instead of falsehood or silence, the risk of death instead of life and security, criticism instead of flattery, and moral duty instead of self-interest and moral apathy." Parrhesia is, in essence, the act of speaking truth to power.

Legal Theory Blog recommends her second book. A summary:

In Fearless Speech, Dr. Mary Anne Franks emphasizes the distinction between what speech a democratic society should protect and what speech a democratic society should promote. While the First Amendment in theory is politically neutral, in practice it has been legally deployed most visibly and effectively to promote powerful antidemocratic interests: misogyny, racism, religious zealotry, and corporate self-interest, in other words, reckless speech. Instead, Franks argues, we need to focus on fearless speech—speakers who have risked their safety, their reputations, and in some cases their lives, to call out injustice and hold the powerful accountable. Whether it be civil rights leaders, the women of the #MeToo movement, or pro-choice advocates, Franks shows us how their cases and their voices can allow us to promote a more democratic version of free speech.

She speaks about the book here. Okay. I read both books. I found both interesting and helpful. 

I disagreed with various aspects of both books. I also found the last chapter of this one, talking about possible avenues of reform, a slog. The earlier chapters were more down-to-earth. One provided snapshots of fearless speakers. 

She notes that Ancient Greeks had two types of free speech. One part allowed each citizen to have an equal role in society and government. The other is the "fearless speech" concept of bravely, with some risk, speaking truth to power. I think both matter. And, sometimes "reckless speech" is good.

Recklessness is doing something risky without considering the possible harm. It is not the same thing as purposely causing harm. Is a Nazi marching in a Jewish heavy neighborhood (the Nazis never did march in Skokie) reckless or just plain irresponsible? But that is somewhat a carp.

Franks in her first book talked about the dangers of free speech as well as the mythos of the "free market of ideas." For instance, Twitter/X promotes harassment in a variety of ways. The result is silencing people. Is that not a form of censorship?

A prime example of Christine Blasey Ford after she accused Brett Kavanaugh. Ford, in her book, spells out how her family had to go into hiding for months. This fact is woefully underreported. And, this is someone who is white and privileged in multiple ways.  

We cannot glorify the free speech value of the Internet and so forth without dealing with the problems. And, going with that metaphor, we regulate the market. An unregulated market leads to many harms. See also here and here for two related books. 

Franks also notes that historically that free speech has repeatedly only benefited some people. This is a valid argument, though it reflects the inequality of society. Free speech has repeatedly benefited more people. Her book only tells one side of the story. She provides a side that many other accounts also do not address.  

The book is also about promoting fearless speech as a concept. Free speech law generally protects us from the government. It includes the choice not to listen. The choice to join private groups that keep some people and views out. Twitter was not wrong to have more limits than Musk's X.

I do not agree with all of her line drawing. She criticizes a 1980s lower court opinion that struck down a law against discriminatory porn that harms women. 

I think the opinion was correct. How can we allow a law that turns on viewpoint? What is the stopping point? For instance, consider a law that blocks speech that says gay people are immoral and disgusting. Such speech most definitely harms people. Should we ban that as well?  

Fearless speech, brave, honest, and bluntly honest expression, has much value. It deserves a hearty defense. And, no, anti-women speech is not truly that. It quite often reflects the voice of those in power. Hello, Trump.  

It is not the only type of speech out there. There is a good criticism of the libertarian model, including the use of dark money and (though I think it is less necessary now) no fairness doctrine. The "fearless speech" model only covers part of that critique. 

And, it is wrong that the heroes we honor do not include many fearless speakers. The first set of free speech debates we often hear about were workers, sex radicals, and pacifists. We learn about opposition to the "gag rule" on anti-slavery speech.  

An argument can be made that too often the accounts emphasize the "people we hate." Still, I do think that is overblown even on that level. We talk about children who wore armbands. Those who didn't want to pledge allegiance or say Christian prayers. Fearless speakers are referenced.  

So, I have my problems with the book. Still, including the chapter about some fearless speakers, there is a lot to appreciate. I do wish the last chapter had been written in a crisper way. 

My traditional view on free speech was broadly libertarian. Over the years, I became somewhat more open to the reality that absolutism does not work in the real world. The lines to draw can be complicated. 

Also, different points of view can be reasonable even if they are wrong on certain levels. After all, democracies worldwide do not follow multiple of our constitutional principles in various ways. And, they are still pretty good. Bottom line, check it out. 

RIP Val Kilmer

Val Kilmer was in a few well-known films in the 1980s and 1990s. He continued to get work but was no longer in his heyday. I saw his first two films: Top Secret! (from the makers of Airplane!) and Real Genius (directed by Martha Coolidge, so better than many 1980s teen films).

He was also a joke in an episode of Friends. Ross gets a "celebrity suit jacket" and thinks it is from the premiere of Batman, but it is actually from a drama "chick flick" film he did. Chandler ultimately likes a suit jacket that turns out to be from Diane Keaton. 

Roger Ebert found Top Secret! very amusing. I re-watched it (part of the DVD was inaccessible) and found it amusing and clever. Unlike Robin Hood: Men in Tights, some moments made me laugh out loud.  

It is a fun movie to watch on television. LATRINE!!!!! Both films had a character named "Latrine," one of each sex. Both have music numbers too. Ha! 

I also checked out Psycho again after reading the book. I only watched the very beginning, not feeling like rewatching it after reading the book after all. 

The doomed shower person is more sexy in the film, the film starts with her in a hotel room with her boyfriend in her bra. The scene is not in the book. The boyfriend also is not as explicitly manly as in the film.

An Addendum with a General Lesson

I now often use my posts here as a first draft for my Substack (which gets single-digit more hits per entry!) as shown in the note at the top of yesterday's post. 

I added this to my book review. It deserves a freestanding mention.

Personal Comment

The book provides a lesson. It focuses on Ukrainians, including giving voice to victims, alive and dead. She provides personal accounts of her own experiences.

Amelina also believes it is fundamental to include history, including voices from those who spoke out in the 1960s. I am reminded of Heather Cox Richardson’s daily entries, which include pieces of history to remind us of context.

I try to include some context in my accounts. I acknowledge a significant focus on Trump and his enablers' acts. This is partially a result of the coverage. We should do more to turn things around and focus on the “good guys and gals.”

Remember when “empathy” was a bad word for judicial nominees? Empathy, when done correctly, is when judges step into the shoes of others to more completely understand their point of view. It is an important part of all kinds of judging.

It applies here too. I do not begrudge — up to a point — those who want to use certain platforms as a way to vent. Nonetheless, just spitting at people is not the whole answer. We need to think more broadly as the voice of resistance.

I ended last time with a summary. Trump’s way is stupid, harmful, and should be stopped. I added a fourth. There is another way. 

Let us try to express that too.

Looking At Women Looking At War (Ukraine)

[I talk about Trump's tariffs here. Also, an expanded version of this entry is found here.]

Victoria Amelina was (sigh) was a Ukrainian author and poet. When Russia invaded, she became a witness. This book is an unfinished account.

[S]he was thinking of a different kind of literary project: a book about the women who, like her, were taking huge risks to document the war. She would write this book in English, and in it she would deploy a purposeful jumble of interviews, diary entries, reports from field missions, Ukrainian history and even poetry. Such a book, she believed, wouldn’t only play its small part in holding the perpetrators accountable; one day, it would help to give “lasting peace a chance”. 

Victoria died from injuries after being injured by a Russian attack in mid-2023 while at a pizzeria. Her friends worked off her unfinished manuscript and notes. A collection of her poetry will also be released. 

Sirens:

Air-raid sirens across the country

It feels like everyone is brought out

For execution

But only one person gets targeted

Usually the one at the edge

This time not you; all clear

[A woman holds a photo of Victoria Amelina at a memorial service in Kyiv on 4 July 2023. Photograph: Alex Chan Tsz Yuk/Shutterstock]

The first section is a personal account of her reactions to the beginning of the invasion in 2022, including her trip back from vacation, leaving her son in Poland. His father was the head of international business and was not around. His funds helped her be independent. 

She opened her apartment to refugees and joined a group that reported war crimes and the stories of victims. She died shortly after taking part in the release of a war diary that she personally found buried. The author was killed by the Russians.  

Victoria Amelina left an twelve-year-old son and a message about the importance of telling stories, remembering history, and looking to the future. She noted that the law should be about people, collecting information in hope for future justice for victims. 

Ukraine fights on even if our nation is failing them.

SCOTUS Watch

Order List

The eleven-page order list suggested something was afoot. It was a mostly ho-hum Order List with Sotomayor (with Jackson) dissenting (with opinion) from cert denial in a case involving habeas: 

This case raises an entrenched Circuit split over an important question of statutory interpretation: Can a certificate of appealability be denied notwithstanding a circuit judge’s vote to grant it?

Alito and Kavanaugh recused without comment because, unlike the liberals, conservatives won't tell us why. I continue to find this wrong. 

Today In SCOTUS History

A blog provides a daily event in SCOTUS history, which also provides others to note opinions handed down that day, and a Japanese student provides Japanese cases. It also allows others to comment. 

A recent entry in the daily case lists was HUD v. Rucker, which I found distasteful when it came out. It was bothersome that no one dissented. 

Breyer did not take part since his brother handed down the district court opinion. The lower courts held for the challengers. 

My pre-blog discussion is found here. Some of the links are dead, including the Michael Dorf essay. 

Opinions 

April brought some more opinions. 

Alito wrote an opinion for a unanimous court (when you lose Alito, you are in trouble) overturning a Fifth Circuit ruling blocking an e-cigs regulation. Sotomayor wrote a brief concurrence arguing the case was even easier than he said. 

Barrett wrote a 5-4 opinion involving a company called "Medical Marijuana Inc." The issue turns on a medication that supposedly didn't have THC, but led to repeat tests that showed it did. This ultimately led to the person being fired, which led to this litigation.

Holding: "Under civil RICO, §1964(c), a plaintiff may seek treble damages for business or property loss even if the loss resulted from a personal injury."

Barrett's opinion underlined its limited reach and how the challenger still has a lot to prove. Jackson added a paragraph to further her "When Congress speaks, courts should listen" mantra. 

Thomas (alone, wanting to punt) and Kavanaugh (on the merits via an opinion longer than the majority) (with Roberts and Alito) dissented. Roberts rarely dissents, so that's notable. 

Alito's opinion was over forty pages. There were about sixty pages of opinions here. The justices split 5-3 on what Congress meant in the marijuana case. 

Solicitor General 

Sauer is a former federal prosecutor and Missouri solicitor general who successfully argued at the Supreme Court last year on behalf of Donald Trump in his bid for immunity from criminal prosecution related to the Jan. 6, 2021, riot at the US Capitol.

John Sauer, another Trump defense attorney, was confirmed as solicitor general by a party-line vote. He defended Trump in the well-named Trump v. U.S., and now the inmates have taken over the asylum. 

Harmeet Dhillon, an election denier, was also confirmed to lead the DOJ Civil Division. She also opposed masks and supported anti-trans policies. 

Trump's SCOTUS Does Him a Solid

[This opinion dropped sometime late Friday afternoon. We didn't have one of those surprises for a little while. We might want to expect some more.]

The justices are looking on as much litigation is going on in the lower courts. Sotomayor has spoken out generally about the rule of law. Roberts said you shouldn't attack judges. Let things play out.

A 5-4 majority (Roberts joined the liberals) held up a restraining order regarding education-related grants held up because of DEI. Which again is FINE.

The short per curiam was a mixture of procedural with limited hints that the merits were off. The main focus was the idea that the government wouldn't get the funds back, and the challengers didn't need them now. So, it's a limited Trump win. Okay.  

Steve Vladeck is a reasonable law professor and says, "wait until you get really upset, we don't know how bad this is so far."  Again, okay. If it was so trivial, why did Roberts dissent (without comment)?  

Kagan and Jackson followed the three pages of the majority with nineteen pages of dissents. Kagan had a short dissent arguing (1) it was a misuse of the emergency [shadow] docket, (2) there very well is evidence that the funds are necessary now.

Jackson (with Sotomayor) goes into more passionate detail. The majority is "beyond puzzling" and "baffling." There are "numerous" grounds not to do this. She doesn't think the "we won't get the funds back" concern is that credible. And so on. 

Coming Up

After the Order List on Monday, the next scheduled event is ten days later, before the holiday weekend. After the holiday, there are the final weeks of oral arguments. We might also see other orders, including one or more regarding April executions. 

ETA: The Order List had two criminal justice grants but was otherwise no drama. Alito recused, like the conservatives do, without saying why. 

Eric Adams Watch

Mayor Eric Adams was indicted on corruption charges.

For fake reasons, the Trump Administration was going to hold up the prosecution until after the election. Some conservative leaning prosecutors very publicly cried foul. It was a pressure campaign to coerce Adams to support Trump’s policies as shown by the Border Czar openly saying so in a joint television appearance.

Judge Dale Ho (aka the “good Judge Ho”) could not force the Trump Administration to prosecution. He did have the power to drop the prosecution with prejudice to deter future wrongdoing. Judge Ho spelled out why he did so in a long opinion.

The best of the bad options. The Trump Administration still has the power to bring new charges. OTOH, now the Adams does not even have the support warranting involvement in the Democratic Primary, hopefully long term that won’t matter.

If they want to prosecute (there are other possible charges) that’s fine. The problem is using the threat as a sword of Damocles to coerce a public official to support federal (immigration) policies. That has ethical problems as well as raised both due process and federalism problems.

For now, we are still stuck with Andrew Cuomo as an option in the Democratic Primary. One asshole down …

Dems Have a Good Day

Senator Cory Booker's speech was not technically a filibuster, but he did outlast segregationist Strom Thurmond. He had a lot to talk about with the Trump continuing to slash through government. Lots of people noticed and cheered him on, except for the usual "what does this matter" suspects. 

Rep. Anna Paulina Luna was in the news recently concerned about the JFK assassination. She's one of usual suspects in the Republican caucus. 

Luna, however, is also a young new mother (in her 30s). She supports proxy (remote) voting for mothers twelve weeks after birth. Luna suffered a difficult pregnancy and sounds a feminist message:

“You plan for one thing and it totally changes,” Ms. Luna said of her expectations of child birth in a recent interview from her office on Capitol Hill, while her 4-month-old son, Henry, napped in a rocker on her desk. (Ms. Luna says she has no child care and brings Henry to the Capitol almost every day she is in Washington, perching him on her desk through most of her meetings.)

“You’re being forced to choose between your career and having a family,” she said. “We’re in way too much of a tech age for that even to be acceptable. What happens if I have to vote on war?”

Yes, there is some selfishness here from someone who supports a party that doesn't care about the needs of mothers. As Prof. Liz Sepper noted on Bluesky:

The right scorns mothers. They hate us. They refuse to insure mothers, cut funding for infant and maternal health, work to defund public schools. No one mocks conservative women for their motherhood. But the right mocks liberals as ugly bad moms.

Rep. Luna, with the support of Democrats (including another new mother who had to go cross country with her new baby to vote against the continuing resolution) used a "discharge petition" to force a vote on her proxy message. Mike Johnson failed to block it, resulting in other votes this week being cancelled.

House Democrats allowed proxy voting during COVID. Republicans opposed it. Many said it was unconstitutional. Some, including Mitch McConnell, said it was wrong, but Congress has the power to make rules for its proceedings. The right answer if far from obvious. It's reasonable to have exceptions. 

On top it off, the Democratic candidate won in the Wisconsin Supreme Court race. This means sanity is retained there. Republicans (by smaller margins than before) did win both Florida special elections. 

It still was a good day. 

Trans Day of Visibility

 

Each year on March 31, the world observes Transgender Day of Visibility (TDOV) to raise awareness about transgender people. It is a day to celebrate the lives and contributions of trans people, while also drawing attention to the disproportionate levels of poverty, discrimination, and violence the community faces compared to cisgender (non-transgender) people.

This is an annual celebration. One year it overlapped with Easter, leading to the usual suspects making things a conspiracy. President Biden respected the rights of trans people. For him, they existed:

As kids, they deserve what every child deserves:  the chance to learn in safe and supportive schools, to develop meaningful friendships, and to live openly and honestly.  As adults, they deserve the same rights enjoyed by every American, including equal access to health care, housing, and jobs and the chance to age with grace as senior citizens.  But today, too many transgender Americans are still denied those rights and freedoms.

Trump goes another way, including alleging that trans people are not "physically or mentally prepared to serve" in the military. He wants to be Orwellian about "biological truths," including allegedly to protect women's sports (how about men's sports?). 

I will let Karen tell you about the "protection racket" here and the true goals involved.  The attack on trans are vicious and often just plain gratuitous. 

Not surprisingly, trans issues are repeatedly referenced on a blog involving religious themed legal issues. Nonetheless, religion is often used as an excuse to channel hateful and ignorant non-religious views. Remember too that "Christian" is not the same as "conservative fundamental Christian." 

Trump and other Republicans want to erase trans people. Trans people are the core legitimate target for many these days. Parents are threatened if they want to provide their children medically accepted care. 

Trans people are blocked from bathrooms reflecting their gender identity, blocking people who otherwise "look the part" from basic human needs. Nicole Maines can tell you how absurd that can be. 

A few trans athletes (sometimes not even trans) are wrongly labeled grave threats to sports. Harmful conversion therapy is accepted licensed medical care. Not unlicensed therapy at a church. Care provided by personnel licensed by the government.  

Erin Reed is a good place to go to keep up with current trans legal issues. She provides some optimism about the future. There is some reason to be optimistic. The attacks of trans people often is a result from fear. Trans people are visible. They exist.

That scares some people. Holidays often celebrate things that exist each day. Parents should be honored daily. That's hard. So, we have a special day for mothers, fathers, and grandparents. We honor certain "history months." We honor saint days.

Today is a day to celebrate trans people. Farmer v. Brennan (1994) recognized the needs of trans prisoners. Trans history goes back to ancient times. 

Some trolls continue to ridicule when Justice Jackson had trouble defining "woman" during her confirmation hearing. Biologists have problems drawing lines. Sex and gender is complex. There are not just XX/XY chromosomes. There are more than two genders. 

It is not surprising that an administration who is so scared about DEI (which is again a fine concept) is not a big fan of diversity. Our nation should celebrate it. 

Trans people exist. Even if you are not a big fan -- and you have issues -- there is no reason to be so gratuitously cruel as so many people are. 

Today's a day to celebrate and honor trans people. We should respect their particular needs as we should respect the needs of each one of us. And we should oppose all the patent bullshit done to oppress them. 

Happy Trans Day of Visibility. 

Royal-ish

The current Hallmark Channel films premiering on Saturday are a collection of films involving different members of a foster family watched over by Mindy Cohn, who some best know from The Facts of Life. 

They don't interest me so far. Before them, there were multiple royal-themed films. I enjoyed The Royal We and Royal-ish. Nicole Sakura, who comes from a Japanese/American/Irish background, has an interesting voice. She is a somewhat atypical choice for a Hallmark film. The guy is more standard. 

The young daughter is cute and has a good performance with the typical posh-sounding European-y accent found in these royal films. The royals nearly always come from some imaginary West European location. Why not have some coming from other parts of the world? There are lots of Pacific islands, for instance, they can be from. 

Anyway, Royal-ish went pleasantly along and there was even the kiss (the "rule" usually is that it is at the very end, but not always). I was waiting for the "complication." And, there it came with about twenty minutes left. It was forced but obligatory. 

The Royal We handled things better. Still, I enjoyed Royal-ish, especially because of the lead actress. 

==

I also re-watched Robin Hood: Men In Tights. I saw the film but have not seen the whole thing for quite some time. The sheriff character is the best. There are many familiar faces, and it is easy to take like Spaceballs. Good for television viewings. 

Mel Brooks had a short-lived Robin Hood television show parody in the 1970s that is on Catchy Comedy Channel. Looks good, but I can see why it didn't last.  

("Looks good" means the sets and so on are good for a television series, but the scripts from the bits of a few episodes were lame comedy-wise.) 

==

Saving Hope was a Canadian medical drama. NBC ran the first season. I checked out the first season DVD from the library. Four episodes in, I enjoyed it, though I might get bored with it after a while. 

It starts with a male chief of surgery going into a coma (he came out of it later) and being able to see dead people while walking around in the hospital. His fiancée is the chief surgical resident and is the focus of the show at the beginning.  

One member of the supporting cast was in many Hallmark Channel movies (many Canadian actors pop up there). I like Julia Chan as a young doctor, too. 

Generally well acted with good stories. 

ETA: Breast milk ice cream? Seems animal friendly.

Republican Values and Ultimate Solutions

I will have a Substack about Trump's attack on immigrants and their pressure to self-deport. I end with a discussion of what long-term strategy we as a nation need to have to address the current situation.

Heather Cox Richardson cites "the Left" trope:

Their definition of “the Left” includes all Americans, Republicans and Independents as well as Democrats, who believe the government has a role to play in regulating business, providing a basic social safety net, promoting infrastructure, and protecting civil rights, and who support the institutional structures Americans have built since World War II.

The supposed enemy, using various labels [including "Democrat Biglaw"], is some catch-all to explain people who support basic principles that have support crossing ideological lines. In these dark times, I support allies wherever they might come. They support principles and values built long before WWII.

The above is a comment to a blog post regarding Paul Clement (with support of Ed Whelan), both strong conservatives whom I generally find wrong in opposing Trump's tactics against law firms.

Yes, this mob boss thuggery violates multiple constitutional provisions and principles. Clement's brief provides the details. So many wrongs. 

Quickie Thoughts

I discuss the various aspects of the FUBAR nature of SignalGate.

==

SCOTUS handed down two rulings. Ghost gun regulations were so obviously valid that Justice Gorsuch wrote a 7-2 opinion upholding them. 

No kewpie doll for predicting the two dissenters. Gorsuch had a brief dissent to Jackson's opinion in a bankruptcy case. Meanwhile, as flagged by Paul Clement supporting the government, it looks like the big oral argument won't bring any big changes. 

==

I planned to reserve the Psycho DVD, but instead accidentally received the novel. Don't recall the film too much, but the two seem to mostly mesh. 

(Norman Bates in the book is more pudgy and somewhat older than Anthony Perkins at that time.)

The book is a straightforward account, basically of novella length, that helpfully shows things through multiple points of view. The ending matches the film. 

I was sort of bored since it was not a surprise. Nonetheless, it was a good, steady read.

==

Also went to the old Mid-Manhattan Library, which has a good selection of DVDs, both films and television series. I found After Words, a film starring Marcia Gay Harden, one of those actors who you say "she's pretty good, I wish she had bigger roles."  

To be fair, she had a sizable number of roles, including as "Susan" in the Spenser for Hire films. She plays a quiet, lonely librarian who comes out of her shell.

The role is stereotypical and lacks a certain amount of depth, but the Costa Rica locations are nice to look at, and its shortish running time helps. The actor who plays the guide is also a bit rough but interesting.

Overall, it was okay, and I watched the whole thing. That's saying something for me these days. After all, I also recently borrowed more than one series DVD, and have not yet watched a full episode yet.

Democrats Aren't Quite Learning Yet

After a major mess involving the security of a sensitive military discussion came out, twelve Democrats voted for an inexperienced Trump donor for Navy Secretary. What are you doing? 

The idea is that the person has the business acumen to reform the mess of the Navy Department, which sounds like a dig on the Biden Administration. It's on some level reasonable to argue management experience is enough here. There is precedent on both sides. Nonetheless, it's politically easy to defend grounds to vote "no," especially given the number of inexperienced incompetents in this administration.  

This was a lay-up ground for Democrats to refuse to vote to confirm anyone, at least top military people until something is done. Hegseth is responding with ranting and Trump is doing a Mr. Magoo routine. 

Schumer and others are going after the Trump Administration for the screw-up. It would be blatant incompetence not to do so. What is appropriate is a demand for people to be fired, backed up with a usage of the power Democrats have to block appointments at least temporarily. Or, at least, not to vote to confirm! 

One libertarian/conservative Trump opponent argued on Bluesky that if Trump was so gung ho about a shutdown, he wouldn't have pushed for the Republicans to pass a continuing resolution. 

I have not seen this bit discussed. I did see Trump taunt Schumer by praising his support. That sounded like a dare to vote against the CR. Either way, this adds to the ammunition against Schumer's vote and strategy. The party needs new leadership. 

There is also a chicken/egg problem here. The vote suggests a split among Democrats on how far to go in the response to Trump. Schumer would be an understandable choice for the caucus. We can blame Schumer, but as I did before the CR vote, we should also blame those who helped him.  

BTW, when I tried to discuss this online, the Disqus system on a website blocked me from posting a list of the Democrats who voted along with a link to a discussion. Someone responded and said the problem might be that Senator Coons (D-DE) has a name that looks like a racial slur. Really?

Comment: "How Israel plans to escalate its war on Hamas in Gaza"

A kneejerk type found a forty or so second clip on Twitter to further his message. And, even then, had to expand it from a comment against Israeli attacks on Palestinians under their control to ANY use of force. 

(When foreign nations attacked Israel, the international law argument made was not applicable.)

My recent comments about Schumer included a reference to an interview that covers his new book on anti-semitism. I was happy to see, though it was not addressed in the interview, he criticized settlements in his recent big speech. They are a major barrier to any conceivable lasting peace.

It is quite true that they are not the only problem. Nonetheless, we cannot ignore how troublesome they are for multiple reasons. A Swiss Cheese West Bank makes a two-state solution especially unlikely. We are talking about a speck of land even without them. 

Also, settlements are a major cause of psychological unpleasantness. Palestinians feel like prisoners who have to undergo multiple checkpoints to move around. The spittle coming from the comments on the blog makes me wonder how they would feel if they had the empathy to see themselves in Palestinians' shoes.

A tragic part of all of this is that the resistance has some valid arguments but uses horrible tactics. Violence against civilians is going to lead to a lot of hatred. And, the math is horrible. One article:

But if the maximalist tactics are implemented, they would represent an escalation of a 17-month operation that the Gaza Health Ministry says has killed nearly 50,000 Palestinians, more than half of them women and children. The war also has killed more than 400 Israeli soldiers.

NPR:

On Oct. 7, 2023, Hamas led an attack from Gaza into Israel that killed almost 1,200 people and took 251 captive, according to Israeli government figures. Israel responded with a military campaign to destroy Hamas and free the hostages. Negotiations to end the war broke down last week.

At some point, there have to be some proportional response rules. One Lancet study summarized:

We estimated 64 260 deaths (95% CI 55 298–78 525) due to traumatic injury during the study period, suggesting the Palestinian MoH under-reported mortality by 41%. 

[More data at Wikipedia.]

Israel had broad support in the U.S. after being attacked. Justifably so and it underlines why Hamas has so much to answer for. They had to know what would happen. It was an ugly calculus. 

The WP article suggests the idea:

Israel has destroyed nearly all of Hamas’s 24 fighting battalions, it says, leaving a few thousand fighters in Gaza. But to fully eradicate the remnants, it would have to hold the territory — which some officers and analysts say carries high risks for Israel.

“If you look at the French in Algeria, [the U.S.] Operation Iraqi Freedom, the Americans in Afghanistan, the history of counterinsurgency attempts teach us that even the Israelis will fail,” said Sascha-Dominik Dov Bachmann, an expert on warfare at the University of Canberra. “It would undermine the moral and ethical basis of Israel.”

So, although Israel can succeed in a large fashion short time there is still a danger that long term they lose. The question is how badly. For instance, France's colonial effort in Algiers is not the same as Israel's situation. France had a country to fall back upon. Algiers was not as basic to its sense of itself.  

The article also reminds people that there is a dime's worth of difference between Biden and Trump.

Last year, the Biden administration refused to send a shipment of 2,000-pound bombs to Israel unless it allowed more humanitarian aid into Gaza and did more to prevent civilian casualties.

But Trump, who took office in January, has approved the sale of the heavy bombs. And officials have said that Israel consulted with the Trump administration before cutting off all aid to Gaza in March.

I try to largely keep out of debates over Israel and Palestine. I rather not "Talk about Israel." It will lead to people on each side having over-the-top positions, including tossing a lot of data in along the way.  

Overall, the whole thing is so tragic. And, whatever your position, one side -- especially women and children -- are suffering much more. 

Anatomy of Fascism

I checked out the classic study of fascism, Anatomy of Fascism by Robert Paxton. The book is hard to read since it comes off as required reading for an upper-level political science course. It has a helpful summary at the end.

Samantha Powers provided a good book review. She provides his definition:

A form of political behavior marked by obsessive preoccupation with community decline, humiliation or victimhood and by compensatory cults of unity, energy and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion.

Fascism arises in various ways, including as a result of a broken political system. Republicans are no longer the conservative party, resulting in one party trying to do too much. Trumpism fits the “fascism” label in various respects.

Paxton argues that authoritarianism and dictatorships are not the same as fascism, which is more of a populist movement with a concern Borg-like of bringing in all other institutions. I see some of that here too. Not completely but some signs.

I will let others “deep dive” into the question, but Trumpism is fascist adjacent. 

==

I also checked out The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms by Alison LaCroix. 

The book argues that 1815-61 was its own constitutional era in the area of federalism. The book has a lot of material but is a mix of too much and too little. The book was too long and still left me wanting. It was something to skim. 

For instance, there are multiple personal stories and intriguing details. I enjoyed this bit from John Quincy Adams, talking about fellow Cabinet member William Wirt, then the Attorney General:

He said that doctrine was too bold for him: he was too much of a Virginian for that. I told him that Virginian Constitutional scruples were accommodating things, whenever the exercise of a power did not happen to suit them, they would allow of nothing but powers expressly written; but when it did, they had no aversion to implied powers.

How apt for many people today. Also, a lot of interesting tidbits are dropped in. For instance, the Steerage Act of 1819 is an early regulation of immigration. OTOH, the discussion of what federal power was involved (commerce? implied by Art. I, sec. 9?) is handed in passing. 

The law is part of a wider discussion but the lack of details shows up in more significant ways. An important case as Cooley v. Board of Wardens is merely noted in passing. We do not get a full summary of even the cases given a wider discussion.  

The book also sometimes has a curious tone, which perhaps is a matter of taste. I can clearly understand why many people felt this book was a worthwhile work of scholarship. There is still a lot to say about constitutional developments pre-20th Century. 

I did not care for the book's style. I know the author will be upset. More seriously, it is unfortunate, since the subject matter is definitely interesting. 

Paul Weiss Caves

We talk about ongoing events here and there continue to be updates. The latest on the recent Paul Weiss post is that they caved. Way to go leading a big law firm with supposed liberal leanings! Pathetic. 

The Hill notes in its story on this that:

The Wall Street Journal reported that days later, the law firm was fired by a prominent client over concerns regarding Trump’s order.

I have visions of Dan Ackroyd in Driving Miss Daisy telling his mom about how supporting civil rights can lead to business problems.

I see from the media coverage that Paul Weiss seems to be -- understandably -- lying low and not commenting. Politico notes the Administration includes a sort of hostage statement:

“We are gratified that the President has agreed to withdraw the Executive Order concerning Paul, Weiss,” Karp said. “We look forward to an engaged and constructive relationship with the President and his Administration.”

Anna Bower on Bluesky posted an internal Paul Weiss email sent to employees. It requests people "refrain from any social media postings" about the whole matter. It includes a promise to spend 40M on pro bono work involving "mutually agreed projects" with the Trump Administration. 

As NYT notes, "The agreement is a significant development in the retribution campaign." Yes.

Of course, there are reports that the agreement involves a promise to address DEI policies. It's useful to remember that DEI is fine. It stands for "diversity, equity, and inclusion" ("A" would be for "access"). 

The statement from Paul Weiss does not specifically toss the former employee under the bus that seemed to start this whole process. Trump, however, (mostly rightly) took the firm's cave as a full win. 

Another firm targeted by Trump was not as chickenshit and took him to court. Paul Weiss should continue to lose clients (would you trust them?) for this sort of cave. Others will make a business decision that a Trump-friendly firm is a good move.  

Rachel Cohen was willing to put her long career at Skadden Arps at risk to firmly meet the times like a true heroine. She was not satisfied with her firm (again, from Anna Bower on Bluesky; her legal reporting is now on my rotation):

When I went to law school and to Skadden, I did so in pursuit of agency. I was driven by a desire to be in rooms where decision-makers were, to get to play a role in things that mattered, because things felt so needlessly terrible. 

It never occurred to me that the people in those rooms might feel that they were powerless. 

I am forced to hope that our lack of response to the Trump administration's attacks on our peers, both those at other large firms and the many people in this country with far fewer resources, is rooted in feelings of fear and powerlessness, as opposed to tacit agreement or desire to maximize profit. 

I still hope that is true. But it has not yet been borne out.

Also in the news, to quote one article, "Columbia University has agreed to a list of demands by the Trump administration." I support that wording. Trump is a mob thug. He sets forth "demands."

I think we should try to mix the good with the bad. We cannot just talk about all the horrible things out there. So, this entry includes a reference to two different firms who reacted differently. We also need to talk about values. The DEI is fine link goes to my discussion defending it. 

Erin in the Morning has a recent entry on how "Eight Michigan Democrats Defect To Pass Anti-Trans Resolution," including from heavy blue districts. 

The good news that "one of the largest schisms" involves eight people. Democrats have repeatedly -- including in Congress -- refused to help the Republican effort to dehumanize trans people.

Those who give in will justify it as unfortunate necessities that are only modest compromises. Now is not the time to compromise with injustice and thuggery. I understand some people without power doing that. Paul Weiss doing it is pathetic.  

===

Note: I stopped posting on Twitter though checked in now and then for such things as videos of a sports journalist who is not on Bluesky. 

Bluesky has not reached Twitter level and does not have the usefulness, including engagement, that I had pre-Elon Musk over there. There also are a few trolls and spammy accounts. 

Still, it's much better, including the lack of ads. 

SCOTUS Watch

The justices are back and were a bit busy. 

Attacks on the Courts 

We already talked about the Supreme Court handling two executions and Chief Justice Roberts responding to Trump's call to impeach a lower court judge. It also handed down a couple rulings today. 

I was wary of Roberts doing that since impeachment is largely a political question. Nonetheless, given Trump (and others) broadly going after the courts, it is understandable that Roberts responded. His response had wider implications. Breyer agreed with Roberts.

There are additional Roberts connections:

The chief justice himself appointed Boasberg to the Foreign Intelligence Surveillance Court as presiding judge; in that position, he regularly reviewed, and ruled upon, extraordinarily sensitive requests by intelligence agencies to surveil communications between suspected spies and foreign powers. 

He also appointed Boasberg as chief judge of the U.S. Alien Terrorist Removal Court, where he would hear similarly sensitive information to determine if terrorists should be deported. 

It’s notable, too, that George W. Bush appointed both Roberts and Boasberg to the bench. 

(Barack Obama later elevated Boasberg to his current position.)

This is the guy that Trump wants to go after? He was even Kavanaugh's roommate at Yale! 

Orders

We already dealt with the death penalty-related orders. SCOTUS appointed someone to argue a case that the federal government did not defend. 

On Friday, the Court dropped a housekeeping order regarding assigning time for argument.

Opinions

I was not aware of opinions coming down today. Checking, the court calendar available on the home page, noted on Monday -- a day with nothing scheduled -- of possible opinions. Tricky.

Roberts handed down a unanimous opinion with Alito and Jackson with brief concurrence arguing its limited reach. He can still lose on remand. It involved the reach of a federal law criminalizing false statements. The opinion was one of several that limited the reach of federal anti-corruption laws in recent years with supermajority support.

Thomas upheld a criminal conviction via a 7-2 opinion that has law school hypo vibes. Gorsuch, starting off in a conversational tone (he has improved his writing style), dissents with Jackson. He is a possible "get" when attacking federal power.  

Back to Work

The opinion announcements show the justices are back to work. They had a conference, will drop an Order List on Monday, and will have oral arguments next week. They never did clear up that "what happened to the cert grant" in the capital case. 

ETA: The Monday Order List was ho-hum except for Alito (who also recused in another case without explanation as conservative justices do) and Gorsuch dropping statements (taking somewhat different approaches) proposing taking a case in the future to tweak how to apply the Confrontation Clause. 

Two More Executions

During a home invasion in Blaine County, [Wendell] Grissom entered Dreu Kopf’s home, injuring her and killing her friend, Amber Matthews, who was there helping take care of Kopf’s two young children. Grissom fatally shot Matthews and fired and hit Kopf multiple times.

That was November 3, 2005. You can learn more about the victims here. 

Grissom’s accomplice, a hitchhiker named Jessie Johns, is serving life in prison without parole. The jury foreman later said that would probably be appropriate for Grissom. 

Grissom’s lawyers argued he should not be eligible for the death penalty because of significant developmental issues. During his clemency hearing, attorneys showed the five-member board detailed reports on abnormalities in Grissom’s brain, as revealed by CT and MRI scans. 

Oklahoma said Grissom rejected clemency. The board rejected it 4-1. He was executed without final appeals. Regarding how smoothly it went, you can see the comment from a witness yesterday. 

Fla. Man Who Raped and Killed 8-Year-Old Girl and Then Murdered Her Grandmother Asks SCOTUS to Halt His Execution

A blunt headline provides the basic information behind the second lethal injection today. Edward Thomas James was convicted over thirty years ago. So, yes, check out Glossip v. Gross (Breyer's dissent). 

The final appeals focus on other issues. The use of a nonanimous jury [11-1] to sentence him to death is again tried though it has not gained much traction (Sotomayor has cited it in the past).  

Other procedural issues are raised. The other main allegation is that cognitive decline makes it cruel and unusual to execute him. Others might deem it a sort of forced euthanasia after over thirty years. 

The justices rejected the final stay and cert requests Thursday morning without comment. I continue to think that is wrong; someone should at least briefly explain. Florida then executed him.  

Four more executions are scheduled next month, which gives me a break from examining these depressing and very unpleasant crimes and criminals. I continue to oppose the death penalty, both on policy and constitutional with varying degrees of concern. 

NYC Non-Citizens Voting Law Struck Down

New York City passed a law in December 2021 allowing non-citizens to vote. I talked more about the general issue after D.C. passed a similar law. 

(My then outgoing council representative, a Democrat, scare tacticked allowing noncitizens to vote. Mayor Adams was wary but let it be. So much time has passed that we are on a third local rep, this time a Republican, which just still seems wrong.) 

Voting and citizenship go together like a horse and carriage, to quote the theme song of Married ... with Children. I do not say that ironically in this context. 

Many states over our history -- until at least the 1920s -- allowed at least some noncitizens to vote. Current federal law bans voting in federal elections. Only a few localities allow them to vote in local elections. 

Some Republicans, generally the sorts who don't like voting rights, challenged the law on state constitutional grounds. New York City Council members include lawyers and they did their due diligence, I suppose, before passing the law.  

Looking at the law, it seemed to me to be valid. The New York Court of Appeals, the highest state court, disagreed 6-1. They are in charge. I still think the dissent has the best argument. Shrugs. 

Local Law 11 would vastly expand the franchise in New York City, a locality that is home to approximately 3.1 million immigrants, of whom 27 percent (over 800,000) are lawful permanent residents or hold another form of lawful status.[FN15] It provides a means for this significant part of the City's population to have a voice in their government.

The state constitution says that citizens have the right to vote. This does not necessarily mean that is the ceiling. It very well might be the floor. The discretion given to localities over a choice of self-government also warrants the text to be interpreted liberally. 

The fear of noncitizens voting is exaggerated, both as to some significant number doing so illegally or doing so anyway. The law does not apply to so-called "illegals," who are here without legal authorization. 

A large segment of our city is disenfranchised regarding those who govern them. It is appropriate to allow them to vote. I think the state constitution probably can be reasonably interpreted to allow it.

A specter is given in some localities allowing 13-year-olds to vote. The raising of slippery slope arguments generally has problems no matter who does it. Yes, only up to a point. Nonetheless, I hold to that.

Why would a locality do that? I can very well see a locality giving sixteen and seventeen-year-olds the right to vote in certain elections. I think the line at 18 makes sense. But, a lower line is not absurd.  

Any line under that age is unlikely. I will give you a possibility. Maybe, a locality will let students vote in a school election, perhaps for a student representative on a school board. Or, some limited proposal, silly (local bird) or more serious (school uniforms?) might warrant giving under-18s the right to vote. 

A locality might perhaps give those under 18 the right to vote in a limited fashion to prepare them for voting completely as an adult. You can formulate various scenarios as to why it is rational for minors to vote. 

I find this result unfortunate. 

Continuing Resolution and Holidays

I provide an answer to a liberal's defense of Chuck Schumer's vote for the continuing resolution here. Again, I respect it is not a simple issue.

Spring has begun. The weather already has been warm. There is not much "lion" this March so far. I heard the birds chirping outside my window now. 

March 17-19 also involves my personal holidays from St. Patrick's Day (mom) and St. Joseph's Day (dad). You can find a discussion of Joseph, father of Jesus, from a historian's perspective on this website. 

The middle day is one of my own creation, St. JP Day (Joseph Paul), a holiday for Irish/Italian mutts. 

And, it's about time to play real baseball!

Aaron Gunches Execution

I have consistently provided a link to Justice Breyer's dissent against the death penalty which includes a section on constitutional problems with long delays. 

A long stay on death row is cruel and unusual. It also is problematic to execute someone so long after the fact. They are not the same person. It is not the same situation. Things have changed.  

Sometimes, people want to die. They are "volunteers" though it is not always clear how voluntary and competent the decision-making is. Nonetheless, yes, I think it can be rational to want to die. 

The 53-year-old Arizona death row inmate has always his admitted to murdering his girlfriend's ex-boyfriend in the desert in 2002, and has long sought a swift execution, saying in one handwritten court filing that he wanted it to move forward "so that justice may be lawfully served and give closure to the victim's family."

Aaron Gunches was arrested after shooting an Arizona Public Safety Officer at a traffic stop (the officer survived). Gunches defended himself with an advisory counsel. The state, even if he doesn't like it, still has to follow minimal standards. This delayed his execution. 

Repeated problems with lethal injections led Arizona to have a moratorium since 2022. The former federal magistrate judge assigned to study the matter still thinks they aren't ready. The Democratic governor disagrees. Meanwhile, the legislature -- stop me if you heard this before -- is thinking about the firing squad.

Gunches got his wish and was executed this morning. A witness warned that appearances can be deceiving:

“The witnesses did not see is what happened under the jumpsuit and sheet. We know from scientific studies that rapid administration of a high dose of pentobarbital is excruciatingly painful. Pulmonary edema develops in seconds as the lungs fill with water and one is not able to breathe," Baich told reporters afterward.

Twenty years on death row isn't easy either.