12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

11/2/20  //  Commentary

I'm pretty nervous. But there’s also no reason to think that the rule of law has been entirely eroded in America in 2020. So far, the center has held.

7/5/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the D.C. Circuit's extraordinary intervention in the Michael Flynn case, and then move on to two lawsuits seeking to block publication of books: John Bolton's and Mary Trump's. Listen now!

4/27/20  //  Commentary

Certain kinds of government propaganda violate the Free Speech Clause. President Trump has crossed that line.

4/2/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss cases by the Trump campaign against the New York Times, CNN, and the Washington Post accusing each of these media organizations with defamation (sometimes also called libel). They have a bit of a laugh in explaining why the suits are frivolous, discuss whether the complaints are sanctionable, and debate whether the cases will have a major intimidating effect. Listen now!

8/5/19  //  In-Depth Analysis

The Second Circuit's ruling against President Trump for banning critics on Twitter invites a broader discussion about how legally to structure and regulate our increasingly digital public sphere.

1/28/18  //  Daily Update

Hundreds of thousands of people participated worldwide in Women's Marches on Saturday, protesting the first year of the Trump administration and supporting women's rights.

1/14/18  //  Daily Update

President Trump vows to strengthen libel laws after the release of Fire and Fury.

12/24/17  //  Daily Update

A federal district court in Michigan has upheld a right to display signs depicting aborted fetuses. Environmental Protection Agency employees who publicly criticized the Trump administration had their e-mails scrutinized by a Republican campaign research group.

12/4/17  //  Daily Update

Internet libel takedown orders may violate search engines' First Amendment rights. President Trump continues to criticize CNN.

10/31/17  //  Daily Update

Commentary continued on President Trump's hostility toward the press. The federal government released thousands of documents relating to the JFK assassination.

10/29/17  //  Daily Update

The Sixth Circuit granted President Trump's appeal of a denial of a motion to dismiss a complaint alleging that he incited violence at a rally in Kentucky, and new federal legislation includes protections for whistleblowers.

7/5/18  //  In-Depth Analysis

There are a few recyclable sentences lurking in lower-profile cases that may offer the best guidance to where the Court is heading next

3/15/18  //  Commentary

Disclosure laws further First Amendment values by ensuring that consumers have access to accurate information about their rights to state-funded care and how to access these benefits.

9/21/17  //  Commentary

On this week’s episode of Versus Trump, Easha and Charlie discuss all things FOIA—that is, the Freedom of Information Act. Listen now!

8/24/17  //  Commentary

Here I explore the interests asserted by GoDaddy and Google in denying service to neo-Nazis and their ilk. I then consider implications of my analysis for the pending Supreme Court case of Masterpiece Cake Shop v. Colorado Civil Rights Comm'n.

9/19/17  //  In-Depth Analysis

Trump has besieged freedoms of speech and press. We must prepare to fight back and defend our liberties.

5/1/17  //  Commentary

Unless and until the Supreme Court overrules Clinton v. Jones, that rule is that the president lacks immunity, regardless of where he is sued. Thus, Clinton v. Jones is indeed very damaging to Trump's defense against the various lawsuits against him on the basis of his pre-presidential conduct.

7/12/17  //  Quick Reactions

The Knight First Amendment Institute at Columbia University and seven Twitter users filed suit yesterday against the President, the White House Press Secretary, and the White House Director of Social Media.

6/12/17  //  In-Depth Analysis

There are strong First Amendment arguments against President Trump blocking Twitter followers due to disagreement with their views.

10/25/18  //  Commentary

On this week's episode of Versus Trump, Jason and Charlie talk about a new lawsuit by a group of journalists (filed by the legal group Protect Democracy) that hopes to stop President Trump from threatening adverse government action against those who criticize him. Plus, a Wilbur Ross update and a constitutional trivia question. Listen now!

10/30/18  //  Commentary

Judges should strive toward constitutional understandings that protect the interests of people on different sides of the ideological spectrum

7/19/18  //  Commentary

Sending unions into bankruptcy because they mistakenly trusted the Supreme Court when it stood by Abood in 2012 (and declined to overrule it again in 2014) would be more than a blow to middle class workers; it would be a serious danger to the rule of law.

11/16/18  //  Quick Reactions

By Victoria Baranetsky: If we wish to protect democracy, it would be helpful for judges to more clearly articulate protections under the Press Clause

9/26/17  //  Commentary

President Trump’s autocratic, anti-speech tendencies are blurring one of the key boundaries in existing First Amendment law, which draws a line between government suppression of speech and private suppression of speech.

1/4/18  //  Uncategorized

On the first episode of Versus Trump of 2018, Jason and Charlie look back at Versus Trump cases in 2017 and score them as Administration wins, losses, or not-yet-decided. They also look ahead at big issues to come in 2018. Listen now!

4/27/17  //  Commentary

The second episode of Versus Trump, Take Care's podcast, features discussion of a lawsuit against President Trump for inciting violence, the Muslim travel ban, and more. Listen or subscribe now!

6/14/18  //  Commentary

By Adav Noti: In Minnesota Voters Alliance v Mansky, the Supreme Court avoided the pitfall of expanding its conceptually unsound campaign finance jurisprudence into a new area

9/28/17  //  In-Depth Analysis

Trump’s potential violations of free speech and press have much in common with his apparent violations of other constitutional limits

7/12/18  //  In-Depth Analysis

By Catherine Fisk: The conservative majority's deregulatory use of the First Amendment will weaken it as a safeguard against tyranny

11/2/17  //  In-Depth Analysis

By Daniel I Morales: Can the federal government make it a crime to encourage or induce a noncitizen to illegally enter or reside in the United States?

6/26/18  //  Commentary

Let's not kid ourselves. Today's decision in NIFLA is an ideological decision.

10/20/17  //  In-Depth Analysis

A free press and a strong judiciary are among the best bulwarks against authoritarianism, and we need one to have the other.

9/27/17  //  In-Depth Analysis

Executive bullying creates a potential taint of illegitimacy, of arbitrariness, that could color the political and moral legitimacy of future governmental actions

10/5/17  //  In-Depth Analysis

By Sonja West: In response to Trump's attacks, we should embrace the unique constitutional status of journalists and mount defenses based on the First Amendment Press Clause.

7/24/18  //  Uncategorized

Shortly after I posted my initial take on the headline-grabbing set of class action lawsuits seeking millions of dollars in refunds from public sector unions after Janus, two interesting things happened.

10/6/17  //  Latest Developments

Take Care and Protect Democracy have teamed up to host a forum in which leading scholars consider how we can use the law (and litigation) to protect against Trump's use of the 'bully podium.'

2/27/18  //  Latest Developments

A new lawsuit seeks to protect freedom of speech and equal protection for LGBT people in Mississippi

10/18/17  //  In-Depth Analysis

DOJ's effort to to transform this case into a freedom of speech decision threatens the integrity of First Amendment rights. It should be rejected.

3/25/19  //  Commentary

The government’s brief is at war with itself with respect to the state action and government speech doctrines in the @realdonaldtrump litigation.

6/22/17  //  In-Depth Analysis

Thanks to the Supreme Court's ruling in Matal v. Tam, the government speech doctrine will not swallow the First Amendment.

12/4/17  //  In-Depth Analysis

Conservative legal activists have pushed a sweeping view of the First Amendment’s protection against compelled speech. These new complicity claims should fail.

7/9/18  //  Commentary

Sometimes the oncoming storm is easier to spot than the silver linings.

8/25/17  //  In-Depth Analysis

Why State Anti-Removal Laws are Oppressive and Unconstitutional

11/13/18  //  Commentary

By Bruce D. Brown and Joshua A. Geltzer: The United States has a long and proud history of journalists asking the President pointed questions without fear or favor

6/13/18  //  Commentary

Robert Post of Yale Law considers the status of free speech objections to serving same-sex couples in light of the Court's opinion.

7/12/19  //  Commentary

The decision is a victory for free speech, an important signal to government officials in the social media era, and a refreshing holding that the President is not above constitutional constraint

5/12/17  //  Commentary

Some people are trying to sue the President for violence that erupted at his campaign rallies. But if they're successful, it might make life more difficult for many others, like Black Lives Matter, who regularly speak passionately about controversial issues.

1/11/18  //  Uncategorized

On a new episode of Versus Trump, Jason, Easha, and Charlie tackle an unexpected new lawsuit against the Trump Administration by, of all people, Paul Manafort. And they discuss the President's threats to sue the publisher of Fire and Fury for defamation. Listen now!

8/31/17  //  Commentary

On this week’s episode of Versus Trump, we talk about web-hosting company Dreamhost's refusal to cooperate fully with the Trump Administration's broad request for information about the visitors to DisruptJ20.org, a website allegedly used by those involved in an Inauguration Day riot. Listen now!

9/26/17  //  In-Depth Analysis

Trump’s intemperate attacks on political speech he dislikes are inconsistent with democratic self-government.

8/20/17  //  Commentary

No, the First and Second Amendments do not add up to a right to publicly protest while carrying assault rifles.

9/28/17  //  Commentary

On this week’s episode of Versus Trump, Easha, Jason, and Charlie dive into the merits of a lawsuit brought by Twitter users who have been blocked by @realDonaldTrump. They claim the President's blocking violates the First Amendment. Listen now!

10/11/17  //  In-Depth Analysis

By Mark Joseph Stern: From the NFL to Puerto Rico to the impending ban on transgender troops, Trump uses his “free speech rights” to bully minority communities into silence.

5/12/17  //  Uncategorized

Freedom of speech is great. Nobody denies it. But the lawsuit against Trump for inciting violence at a campaign rally is legally meritorious, at least at the motion to dismiss stage. And the notion that finding liability against Trump here would imperil protests for all Americans just doesn't hold water.

3/29/17  //  Commentary

The First Amendment makes America great for everyone, not just for citizens.

10/3/17  //  Commentary

Recent developments could imperil constitutional protections for expressive freedom.

2/21/19  //  Commentary

Some argue that both anti-BDS and public accommodations laws protect against discrimination, and so the First Amendment should treat them the same. But the laws are nothing alike.

6/22/17  //  Commentary

Recent developments bolster claims that President Trump has violated the First Amendment by blocking people on Twitter.

10/6/17  //  In-Depth Analysis

Collective action has proven an effective response to the President’s attempted interference with the employment of Jemele Hill and NFL players.

7/18/19  //  Commentary

This week on Versus Trump, Jason and Easha are joined by guest host Melissa Murray of NYU Law and the new Strict Scrutiny podcast. They discuss the recent Supreme Court decision on gerrymandering (Rucho v. Common Cause), what's next in the fight, and where you can find Melissa's wonderful new podcast. Listen now!

4/25/17  //  In-Depth Analysis

Given enough time, a movement to treat hate speech as beyond the pale, perhaps as part of a backlash against Trumpism, could result in political changes and transformative judicial appointments that redefine the protections of the First Amendment.

9/13/18  //  Commentary

On this week's episode of Versus Trump, Jason gives a quick update on a case we're watching and then signs off, because, well, in the middle of recording this week's episode, Charlie's power went out. But we'll be back next week with a full show.

1/31/18  //  In-Depth Analysis

By Stuart McPhail: Money isn't speech. It's time to revision Supreme Court cases that say otherwise.

10/12/17  //  In-Depth Analysis

Especially in light of Trump's recent remarks, we must better protect media companies from targeted, life-threatening defamation suits

10/26/18  //  In-Depth Analysis

By communicating mainly through Twitter, Trump has asserted the power to define his own political community—and to exclude people from it.

11/9/17  //  Commentary

You want updates, so we've got updates! On this week’s episode of Versus Trump, Jason and Easha revisit several important cases and news items that we've previously mentioned so that you have the latest information on them. Listen now!

5/16/17  //  Commentary

A particularly brazen part of Trump’s attack on the press has been his assertion—both as a candidate and as President—that he will change the libel laws to make it easier to sue the media for unfavorable coverage. That won't work, for many reasons. But Trump’s outrageous threats are brilliantly successful in other ways, no matter how unlikely they are to formally succeed.

7/3/18  //  Commentary

The first in a series of posts on the uses and abuses of the First Amendment as a deregulatory tool

2/28/18  //  Latest Developments

Announcing a conference on how the First Amendment can advance the pursuit of social and economic equality

4/6/17  //  Commentary

A federal judge has refused to dismiss a suit alleging that President Trump incited violence against protesters at one of his campaign rallies last year. The bitter irony to Trump's defense is that it seeks to expand free speech rules; usually, he prefers to trash them.

4/7/17  //  Commentary

There might still be some lies that people won't tolerate. Even from lawyers. And even from lawyers who are also politicians. Should those lies be the basis for discipline under legal ethics rules?

6/14/18  //  Quick Reactions

By Ilya Shapiro: SCOTUS has ruled that a Minnesota law banning 'political' apparel at polling places violates the First Amendment

8/30/18  //  Commentary

On this week's episode of Versus Trump, Jason and Charlie talk about a case that fits our podcast on two levels: it's a lawsuit against the Trump Administration about grand jury secrecy, and any decision could impact the Mueller investigation, which is the biggest Versus Trump case of them all. Listen now!

1/8/18  //  Commentary

Can the author or publisher of a book be held liable for inducing the breach of a nondisclosure agreement (NDA)? Spoiler alert: The answer is almost certainly no.

4/25/17  //  Quick Reactions

In a civil suit against Trump for inciting violence at a campaign rally, Trump's lawyer argues that Trump is immune from suit as President of the United States (citing Clinton v. Jones). His argument is not simply wrong. It is sanctionable.

4/27/17  //  Commentary

This Week's Episode: "Get 'Em Out!" + Richard Primus

6/28/18  //  Commentary

The Constitution protects all speakers equally. Until it doesn’t – as the Supreme Court just made clear in Janus v. AFSCME.

3/9/18  //  In-Depth Analysis

Trump’s actions to quash the independence of federal law enforcement mirror the approach of autocratic leaders around the globe.

10/18/18  //  In-Depth Analysis

On this week's episode of Versus Trump, Jason and Charlie talk about the recent decision that dismissed Stormy Daniels' defamation lawsuit against the President. Listen now!

6/7/18  //  Commentary

On this week's episode of Versus Trump, Easha and Jason preview their live show at the ACS National Convention and then discuss the recent decision concluding that President Trump violated the First Amendment when he blocked seven Twitter users from responding to his tweets. Listen now!

8/31/17  //  Commentary

Cities need to be recognized as constitutional actors in their own right, worthy of protection and capable of self-determination.

12/14/17  //  In-Depth Analysis

On this week’s episode of Versus Trump, Charlie, Jason, and Easha talk about a defamation lawsuit brought by Summer Zervos, a woman who alleges that she was sexually assaulted by President Trump in a hotel room in 2007. Listen now!

4/12/18  //  In-Depth Analysis

On a new episode of Versus Trump, Jason and Charlie revisit two lawsuits in which the Plaintiffs have recently successfully fought off motions to dismiss and been allowed to proceed. And in a new installment of "Sanctions Corner with Uncle Charlie," Charlie answers questions about the FBI raid on the office of Trump lawyer Michael Cohen. Listen now!

3/1/18  //  Commentary

At oral argument in Janus v. AFSCME, Council 31, an important case about public sector unions, there were a lot of empirical questions—but not a lot of answers.

9/28/17  //  In-Depth Analysis

The Trump administration—in word and in deed—has engaged in enemy construction of the press.

11/30/17  //  In-Depth Analysis

On this week’s episode of Versus Trump, Charlie has an interview with antitrust expert Lina Khan, Director of Legal Policy of the Open Markets Institute, about the lawsuit filed by the Trump Administration to block the proposed AT&T/Time Warner merger. Listen now!

10/16/17  //  Commentary

There are two ways to look at one of the recent lawsuits against the organizers of the Charlottesville rally, the easy way and the right way.

12/21/17  //  Commentary

A pending defamation suit against President Trump in New York state court raises this important question.

6/27/18  //  Quick Reactions

The Supreme Court's ruling in Janus sounds like a pretty big problem for organized labor. But it doesn’t have to be.

11/15/18  //  Commentary

By Jonathan Backer: President Trump is not the first American politician to retaliate against a journalist or media outlet for coverage that he does not consider favorable

9/25/17  //  Commentary

Can Trump's Justice Department's position on Masterpiece Cakeshop be reconciled with his own views about professional athletes?

3/27/18  //  In-Depth Analysis

Partisan gerrymandering at its core is viewpoint discrimination pure and simple, and it cannot be squared with our Constitution’s promise that voters choose their representatives, not the other way around.

8/31/17  //  In-Depth Analysis

Are there legal remedies if Trump refuses to officially accept the Climate Science Special Report?

6/11/17  //  Daily Update

Discussion of President Trump blocking constituents on Twitter, and pro-Trump information spreading on the social media site.

10/1/17  //  Daily Update

Attorney General Sessions and President Trump both made comments slamming NFL players for protesting during the national anthem.

4/11/17  //  Daily Update

The Administration threatened Wikileaks with criminal action. Meanwhile, the Administration refused to release its visitor logs.

3/26/17  //  Daily Update

Developments in the First Amendment for the week of March 20, 2017.

6/18/17  //  Daily Update

Analysis continues whether the President violates the First Amendment by blocking Twitter followers due to disagreement with their views.

6/25/17  //  Daily Update

The President's decision to block users on Twitter may not amount to a First Amendment violation.

10/8/17  //  Daily Update

Commentary continued on the President's relationship to free speech in the wake of his attacks on the NFL protests.

5/14/17  //  Daily Update

A reporter in West Virginia was arrested after persistently questioning Health and Human Services Secretary Tom Price about the AHCA.

8/6/17  //  Daily Update

A federal district court ruled that a public official's social media pages can be public forums under the First Amendment.

6/25/17  //  Daily Update

Newly released Supreme Decisions set boundaries on the extent to which the government may limit speech on social media and in the market place.

8/13/17  //  Daily Update

The Trump Administration's "War on Leaks" risks journalists' FIrst Amendment rights.

9/24/17  //  Daily Update

As the Trump administration continues to attack the press and free speech, Take Care highlights legal avenues through which the press can push back.

4/2/17  //  Daily Update

President Trump highlights the need to fight for truth.

4/16/17  //  Daily Update

This week, Twitter sued to oppose a demand for the identity of a user critical of the Trump Administration by the Customs and Border Patrol. Erik Wemple writes that President Trump has undermined public trust in the media.

4/9/17  //  Daily Update

Take Care saw analysis of President Trump's free speech argument in the civil case alleging that he incited violence against protestors by Amanda Shanor, as well as an argument for an active "democracy agenda" by Daniel Tokaji.

5/7/17  //  Daily Update

Reince Priebus wants to limit American speech against the government, which is probably unconstitutional. President Trump will find no shelter from suit in Clinton v. Jones precedent.

8/20/17  //  Daily Update

DOJ defends the President’s right to block Twitter users, but is seeking identifying information of visitors to an anti-Trump website.

7/16/17  //  Daily Update

Twitter users blocked by President Trump sued him and other White House aides claiming the Twitter feed is a public forum. The President's personal lawyer argued that Trump's statements on the campaign trail should be held to a different defamation standard.

8/24/17  //  Daily Update

President Trump sharply criticized the press during remarks in Phoenix, sparking commentary and criticism.

4/30/17  //  Daily Update

Analysts wrestle with fake news, President Trump's comments at campaign rallies, and his tweets.

10/21/17  //  Daily Update

President Trump is actively stoking culture wars in the United States. President Trump's threats to punish NFL players who kneel may strengthen a free speech argument that works in favor of the players' rights.