Something to Brighten Your Day

Librarians Rock!

Remarkable Free Exercise/Pandemic Opinion

I am not assigning this case. Just sharing it with you because it is the most remarkable religious liberty opinion I have ever read. I would gladly join in this opinion.

In this case, a local church was forbidden by the mayor of Louisville, Kentucky from attending Sunday services "even if they remained in their cars--and even though it's Easter." Although the city ordered the church not to have a drive-in service (where people remain in their cars in the church parking lot), it allowed drive-through shopping at liquor stores and restaurants. An interesting Lukumi fact pattern.

Federal District Judge Justin Walker issued a TRO enjoining Louisville from enforcing "any prohibition on drive-in church services at On Fire." The opinion explaining the injunction is remarkable. Some will hate it; some will love it. It is the strongest judicial defense of religious liberty as a fundamental human right I have ever read. I wish I had written it!

Here is a link: On Fire Christian Center v. Fischer

I love so much of this opinion, but especially this line, as Judge Walker explains the spirit of the Pilgrims: "The Pilgrims understood at least this much: No place, not even the unknown, is worse than any place whose state forbids the exercise of your sincerely held religious beliefs."

Fourth Tranche of Blog Posts: Expressive Association and the Right Not To Speak

The fourth tranche of extended blog posts for our on line classes has been uploaded just below.

Please comment on at least a few of these posts.

They are lighter than some of the previous posts, because you have extensive coverage of the right not to speak (the no-compelled-speech doctrine) in my law review article that was part of this assignment. Read that article carefully; it will give you a clear understanding of the doctrine and its justification.

Telescope Media Oral Argument

Here is the next oral argument we will be listening to. This one is of Telescope Media Group v. Lucero, what is know the leading federal decision on free speech and expressive wedding vendors. case. Here is the link

 Telescope Media Group v. Lucero


You should probably read the opinion I assigned before listening to the oral argument. Anytime by the middle of next week is fine. 

Although I haven't assigned my forthcoming Nebraska Law Review article on the decision, if you want to read it here is a link:

Duncan Article


Please comment below on the oral argument after you have had an opportunity to listen to it. It is very good.

Third Tranche of Blog Posts: O'Brien, Johnson, and Symbolic Speech

The third tranche of extended blog posts for our on line classes has been uploaded just below.

Please comment on at least a few of these posts

Texas v. Johnson: Oral Argument

Here is the next oral argument we will be listening to. This one is of Texas v. Johnson, the flag burning case. Here is the link:

                                      Texas v. Johnson




Here is the brief from Oyez:

                            

Facts of the case

In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court.

Question

Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?

Please try to post a comment below by April 10.

Was there any exchange that you thought was particularly interesting or particularly good? Any questions from the Bench that you found interesting.

One good thing about listening to oral arguments as part of our on line learning is that you get to see great lawyers in action on a case that we are reading and studying. Is there anything you learned about oral advocacy from this oral argument?

My Comments 

1. Texas argued that it wished to protect the "physical integrity" of the flag. That preventing a citizen from burning the flag to express dissent was somehow not restricting speech, but only physical conduct. But when you dig down into the argument, the concern is not about a physical shortage of flags, but rather protecting the symbol of the flag from desecration. That is a viewpoint-based concern, not one limited to "physical integrity."
2. Texas also seemed to view the symbolism of the flag as some kind of "national property" that calls for an ad hoc exception to the Free Speech Clause. Plus for the 50 state flags!
3. O'Connor asks whether a state could ban the burning of a copy of the US Constitution or of a state constitution. Great question! Then Scalia--being Scalia!--asks whether Texas could protect the state flower from symbolic desecration. [I miss him more every day!]
4. Justice Blackmun: the remedy for offensive speech is not censorship, but counter-speech: "Isn't the real way of opposing this kind of action by this man to have a large crowd out waving other flags in opposition to his posture rather than putting him in jail?
5. Notice also that Texas argues for a hecklers' veto; that there is a compelling interest in protecting against a breach of the peace when offended observers react violently to flag burning.
6. I loved that Johnson's lawyer ended with this quotation from: "J. Anthony Lukas, a very excellent former reporter for the New York Times, [who] said,  'Whatever pain freedom of expression may inflict, it is a principle on which we can give no ground.'" I agree!

Second Tranche of Blog Posts-Rust and Rosenberger Revisited

The second tranche of extended blog posts for our on line classes has been uploaded just below. These posts all deal with Rust and Rosenberger and how to distinguish them.

Please comment on at least a few of these posts