Communications Infrastructure as Public Utility
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.
Versus Trump: The Past And Future Of Gerrymandering
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!
Updates | The Week of January 22, 2018
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.
Updates | The Week of December 18, 2017
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.
Updates | The Week of October 23, 2017
Commentary continued on President Trump's hostility toward the press. The federal government released thousands of documents relating to the JFK assassination.
Updates | The Week of October 30, 2017
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.
Versus Trump: The FOIA Spectacular!
On this week’s episode of Versus Trump, Easha and Charlie discuss all things FOIA—that is, the Freedom of Information Act. Listen now!
Neo-Nazis, Wedding Cakes, and Compelled Speech
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.
How Damaging is Clinton v Jones to Trump's Defense Against Various Lawsuits?
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.
Versus Trump: Can Courts Tell Trump To Stop Violating The First Amendment?
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!
State Action Doctrine Under An Autocrat
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.
Versus Trump: 2017 Scorecard
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!
Compulsion and Complicity
By Catherine Fisk: The conservative majority's deregulatory use of the First Amendment will weaken it as a safeguard against tyranny
Protecting Against Arbitrary Government
Executive bullying creates a potential taint of illegitimacy, of arbitrariness, that could color the political and moral legitimacy of future governmental actions
The Bully and the Press
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.
Inside the Doomed Union Refund Lawsuits, Part II
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.
Forum on Defending the First Amendment from Trump
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.'
Protecting Protesters'—And The President's—Freedom Of Speech
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.
Versus Trump: Manafort Sues, and Trump Threatens
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!
Versus Trump: Waking Dream(host)
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!
Versus Trump: [This Episode Blocked]
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!
Jason Harrow is Wrong About the First Amendment
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.
Free Speech Solidarity
Collective action has proven an effective response to the President’s attempted interference with the employment of Jemele Hill and NFL players.
Hate Speech Is Free Speech, But Maybe It Shouldn't Be
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.
Versus Trump: The Power's Out. Literally.
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.
Twitter and the Political Community
By communicating mainly through Twitter, Trump has asserted the power to define his own political community—and to exclude people from it.
Versus Trump: Updates, Y'all!
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!
Trump & Libel
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.
When Free Speech Suits the President
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.
Versus Trump: A Two-Level Versus Trump Case
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!
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.
Versus Trump: Trump Wins One Versus Stormy
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!
Versus Trump: ACS Live Show Preview + Twitter Case Update
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!
Versus Trump: #MeToo vs. Trump
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!
Versus Trump: Movin' Right Along
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!
Where are the Facts?
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.
Versus Trump: Trump The Trustbuster (Interview with Lina Khan)
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!
The Bearable Lightness of Janus
The Supreme Court's ruling in Janus sounds like a pretty big problem for organized labor. But it doesn’t have to be.
Partisan Gerrymandering Returns to the Supreme Court
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.
Updates | The Week of June 5, 2017
Discussion of President Trump blocking constituents on Twitter, and pro-Trump information spreading on the social media site.
Updates | The Week of June 12, 2017
Analysis continues whether the President violates the First Amendment by blocking Twitter followers due to disagreement with their views.
Updates | The Week of May 8, 2017
A reporter in West Virginia was arrested after persistently questioning Health and Human Services Secretary Tom Price about the AHCA.
Updates | The Week of June 19, 2017
Newly released Supreme Decisions set boundaries on the extent to which the government may limit speech on social media and in the market place.
Updates | The Week of September 18, 2017
As the Trump administration continues to attack the press and free speech, Take Care highlights legal avenues through which the press can push back.
Updates | The Week of April 10, 2017
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.
Updates | The Week of April 3, 2017
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.
Updates | The Week of May 1, 2017
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.
Updates | The Week of July 10, 2017
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.
Updates | The Week of October 16
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.