Author Topic: New Search and Seizure Ruling  (Read 4878 times)

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Re: New Search and Seizure Ruling
« Reply #15 on: June 12, 2020, 07:54:30 am »
Friday, 12th June 2o2o
As a judge, I have to follow the Supreme Court. It should fix this mistake.
by James A. Wynn Jr.

George Floyd’s unconscionable killing has properly brought renewed attention to the Supreme Court’s doctrine of “qualified immunity,” which shields law enforcement officers from civil lawsuits alleging excessive force.

The judge-made law of qualified immunity subverts the Civil Rights Act of 1871, which Congress intended to provide remedies for constitutional violations perpetrated by state officers.

Eliminating the defense of qualified immunity would improve our administration of justice and promote the public’s confidence and trust in the integrity of the judicial system.

I am not alone in my concerns about qualified immunity.

Commentators — and justices — from across the ideological spectrum rightly contend that this doctrine has wandered far afield from the text of the Civil Rights Act.

That landmark statute, enacted during Reconstruction, allows individuals to bring civil actions against state actors — including state and local law enforcement officers — for violating their constitutional rights.

But two lines of Supreme Court precedent have rendered qualified immunity an increasingly insurmountable obstacle to individuals seeking legal redress for violations of their constitutional rights.

First, the Supreme Court has ratcheted up the standard a plaintiff must meet to bring a claim by requiring the plaintiff to show that the violation of his or her constitutional rights was “clearly established.”

This means a plaintiff must demonstrate that the law enforcement officer’s challenged conduct was virtually identical to the facts of a previous Supreme Court or Court of Appeals decision finding a constitutional violation.

The slightest factual variations can render a constitutional right not “clearly established” — meaning that the officer faces no civil liability for the violation.

Second, the Supreme Court has allowed, and even encouraged, lower courts to dismiss cases once they determine that a law enforcement officer’s challenged conduct did not violate a “clearly established” constitutional right — without ever deciding whether the conduct did in fact violate the Constitution.

As a consequence, there are few judicial decisions against which to measure whether a law enforcement officer’s conduct amounted to a “clearly established” violation of constitutional rights.

In effect, those who allege that police officers have used excessive force are trapped in a never-ending self-fulfilling prophecy:

They cannot sue officers who harm them because the harmful conduct has never been “clearly established” as a constitutional violation in a factually similar case.

But because so many cases are dismissed without addressing whether the challenged conduct was in fact a constitutional violation, it is rarely “clearly established” that there was a violation.

This cycle prevents plaintiffs from pursuing their claims, gives officers little guidance on the contours of individuals’ rights and excuses ever more egregious conduct from liability.

There are, of course, other avenues for punishing police misconduct, including criminal prosecutions of officers, but criminal cases can be difficult to bring and win, and in any event civil lawsuits can add an important layer of consequence and deterrence.

Congress enacted the Civil Rights Act to deter the unlawful use of excessive force by law enforcement officers.

It provides that police officers and other officials “shall be liable” for “the deprivation of any rights” secured by the Constitution.

The Supreme Court’s creation and expansion of qualified immunity not only diminishes the law’s intended effect; it also harms individuals who are booted out of court before they can ever bring claims of excessive force before a jury.

And it strains the separation of powers.

By creating a defense unmoored from the text, the Supreme Court has undermined Congress’s intent to provide remedies to those whose rights have been violated.

When the judiciary effectively nullifies congressional legislation specifically designed to provide a remedy to those who have been subjected to constitutional violations, it necessarily moves our society closer to a Hobbesian state ungoverned by predictable rules.

Violence and looting are neither constitutionally protected nor morally acceptable.

But when the judiciary strips individuals’ constitutional rights of legal protection — when, for example, law enforcement officers can take lives unjustifiably, without legal consequence — it can be expected that the public will take matters into its own hands.

In my work as a judge, I follow the decisions of the Supreme Court because judges apply the law as it is, not as they believe it should be.

The Framers embodied that concept by carefully and thoughtfully drafting each of the Constitution’s 7,600 words with the intention and expectation that the judiciary — the branch constitutionally entrusted and obligated to interpret the Constitution — would give effect to each and every one.

We, as judges, must uphold that obligation.

When we fail to do so, our communities bear the consequences.

James A. Wynn Jr. is a judge on the U.S. Court of Appeals for the 4th Circuit.

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Re: New Search and Seizure Ruling
« Reply #16 on: June 18, 2020, 07:50:19 am »
Thursday, 18th June 2o2o
Supreme Court rejects trunk's bid to end legal protections for young immigrants
by Robert Barnes

The person pretending to be an American president has tried since 2017 to end the Deferred Action for Childhood Arrivals program, otherwise known as DACA, which President Obama authorized through executive action in 2012 to protect law-abiding immigrants brought by their parents.

The program does not provide a path to citizenship, but it does allow recipients to work legally.

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Re: New Search and Seizure Ruling
« Reply #17 on: October 12, 2020, 06:54:36 pm »
Monday, 12th October 2o2o

Today, the NAACP Legal Defense and Educational Fund, Inc. (LDF) announced its objection to the confirmation of Judge Amy Coney Barrett, President Donald Trump’s nominee to replace the late Justice Ruth Bader Ginsburg on the United States Supreme Court.

A report outlining the organization’s objection to the process undertaken by the President and the Senate since the death of Justice Ginsburg, and the stakes of this confirmation for core civil rights protections, accompanied the statement opposing Judge Barrett’s confirmation.

Judge Barrett’s confirmation hearing before the Senate Judiciary Committee began earlier today.

For over 30 years, LDF has prepared a detailed report outlining the civil rights implications of the background, judicial philosophy, and judicial record of Supreme Court nominees.

LDF prepared such reports when President Trump nominated then-Judges Neil Gorsuch and Brett Kavanaugh to the court.

The circumstances of Judge Barrett’s nomination are starkly different and LDF approached the preparation of its report and its decision to oppose Judge Barrett’s confirmation within the unique context in which it arises.

“This process should not occur until the next president has been inaugurated and the next session of Congress has been seated in January 2021,” said Sherrilyn Ifill, LDF’s President and Director-Counsel.

“The fact that the United States Senate is prepared to rush through a confirmation hearing and vote to fill a Supreme Court vacancy while millions of voters are engaged in early voting and casting absentee votes, and less than one month before the general election for the President and for Senate seats across 34 states – one in which millions of ballots have already been cast – is an unconscionable political power grab.

It taints the process, the nominee, and the legitimacy of the Supreme Court.

The troubling record of Judge Barrett makes the prospects of this confirmation even more objectionable.

From voting rights to affirmative action, to health care and abortion rights, the record and judicial philosophy of Judge Barrett constitutes a threat to the protection of core civil rights.

Our report outlines the gravity of our concerns about this process and Judge Barrett’s judicial record.”

The report reflects three primary themes:

1) the illegitimacy of Judge Barrett’s nomination and confirmation process; 2) the damaging impact of a potential Barrett confirmation on this country’s trajectory, including its implications for civil rights; and 3) Judge Barrett’s concerning judicial record.

Report highlights from each of these areas are reflected below.

Illegitimacy of the Nomination and Confirmation Process

President Trump’s nomination of Judge Barrett during a pandemic and in the middle of an election in which nearly six million Americans have already cast their ballots is an unprecedented power grab that jeopardizes the integrity of the Senate, the court, and the rule of law.

Indeed, when President Obama nominated Chief Judge Merrick Garland to replace the late Justice Antonin Scalia in March 2016, Senate leadership refused to consider the nominee because, in their view, the vacancy arose too close to the presidential election — then over six months away — and the American people should have an opportunity to have their voices heard before the Senate considered a new Supreme Court justice.

If these concerns were valid in 2016, then they are even more valid now.

President Trump has actively sought to undermine this election and refused to commit to the peaceful transfer of power if he loses.

A president who does not respect the rule of law should not be appointing a judge to the institution charged with enforcing the rule of law amid a general election that he is seeking to undermine.

The Damaging Effects of a Potential Barrett Confirmation on Civil Rights

The stakes of this nomination could not be higher for racial equality and civil rights in this country.

The Supreme Court is already far more conservative than it has been at any point in modern history and it is bitterly divided on key issues.

The United States has already witnessed a great erosion of civil rights protections, including those related to voting rights, affirmative action, and fair housing.

Moreover, this country has also contended with repeated abuses of executive authority targeting people of color and immigrants.

Indeed, many of these issues will be before the court this term.

On five separate occasions, Judge Barrett was a paid speaker of the Alliance Defending Freedom, an organization designated as a hate group by the Southern Poverty Law Center as a result of its support for the recriminalization of sexual acts between consenting LGBTQ adults in the U.S. and criminalization abroad; defense of state-sanctioned sterilization of transgender people abroad; and its contentions that LGBTQ people are more likely to engage in pedophilia.

In addition, Judge Barrett, in a 2016 speech, contended that Title IX of the Civil Rights Act, which also prohibits discrimination on the basis of sex, does not protect transgender persons from discrimination because, in her view, “no one . . . would have dreamed of that result” at the time the law was enacted.

Judge Barrett’s Concerning Judicial Record

Judge Barrett’s writings, speeches, and sign-ons raise grave concerns about her fidelity to precedent and the rule of law, including core civil rights protections.

Although many have described Judge Barrett as being in the mold of Justice Scalia, her judicial philosophy is even more extreme than that of Justice Scalia.

Judge Barrett has advocated for a concerning approach to following judicial precedent (otherwise known as “stare decisis”) and has described constitutional stare decisis as especially weak.

She believes judges should generally decide cases as they see fit, rather than based on reliance interests or other stare decisis considerations – a notion which places longstanding civil rights protections in grave danger.

Judge Barrett’s adherence to an extreme version of constitutional originalism, a doctrine which purports that the Constitution should be interpreted based on its understood meaning at the time of ratification, appears to be fundamentally inconsistent with the Fourteenth Amendment’s express commitment to equal citizenship under law.

The judge’s writings suggest that, although she considers Brown v. Board a “super precedent,” she believes it may have been incorrectly decided in accordance with her interpretation of originalism.

Judge Barrett has also suggested that, while she does not think it would ever be invalidated by a court, the Fourteenth Amendment may also be “possibly illegitimate.”

Her understanding of originalism as potentially justifying the illegitimacy of the Fourteenth Amendment — and her continued adherence to the doctrine nonetheless — raises deep concerns about her fitness to serve on the nation’s highest court.

Without this amendment, Congress would lack the power to enforce civil rights laws, and Americans would be stripped of their rights under many constitutional provisions, including the rights to free speech and freedom of religious expression.

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Re: New Search and Seizure Ruling
« Reply #18 on: October 13, 2020, 05:23:43 pm »
Tuesday, 13th October 2o2o
A look at Judge Amy Coney Barrett’s notable opinions, votes
by The Associated Press

Judge Amy Coney Barrett, Individual-1’s nominee for the Supreme Court, has written roughly 100 opinions in more than three years on the 7th U.S. Circuit Court of Appeals.

Her opinions include cases on guns, sexual assault on campus, immigration and employment discrimination.

She also has signed onto several opinions, including two dealing with abortion, that are sure to be questioned in this week’s confirmation hearing.

Summaries of some of her notable opinions:


Barrett has twice joined dissenting opinions asking for decisions blocking laws enacted by abortion opponents to be thrown out and reheard by the full appeals court.

Last year, after a three-judge panel blocked an Indiana law that would make it harder for a minor to have an abortion without her parents being notified, Barrett voted to have the case reheard by the full court.

In July, the Supreme Court threw out the panel’s ruling and ordered a new look at the case.

In 2018, a three-judge panel ruled that Indiana laws requiring that funerals be held for fetal remains after an abortion or miscarriage and banning abortions because of the sex, race or developmental disability of a fetus were unconstitutional.

Barrett was among four judges who wanted the full court to weigh in and suggested that the laws, signed by then-Gov. Mike Pence, might be constitutional.

Supreme Court abortion decisions “hold that, until a fetus is viable, a woman is entitled to decide whether to bear a child. But there is a difference between ‘I don’t want a child’ and ‘I want a child, but only a male’ or ‘I want only children whose genes predict success in life,’” Judge Frank Easterbrook wrote for the dissenting judges.

Barrett also joined the part of the opinion on the fetal remains law. “Many states have laws that prescribe how animals’ remains must be handled,” Judge Frank Easterbrook wrote for the dissenters. “The panel has held invalid a statute that would be sustained had it concerned the remains of cats or gerbils.”

Last year, the Supreme Court reinstated the fetal remains law, but not the ban on abortions for race, sex and developmental disabilities.


In a dissent in the 2019 gun-rights case of Kanter v. Barr, Barrett argued that a conviction for a nonviolent felony — in this case, mail fraud — shouldn’t automatically disqualify someone from owning a gun.

The two judges in the majority agreed with Individual-1 arguments that the defendant, Rickey Kanter, could not own a gun under federal or Wisconsin law because of his criminal conviction.

Barrett used most of her 37-page dissent to lay out the history of gun rules for convicted criminals in the 18th and 19th centuries, consistent with her embrace of interpreting laws and the Constitution according to the meaning they had when they were adopted.

Barrett wrote that “while both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data that disarming Kanter substantially advances that interest.”

She said that her colleagues were treating the Second Amendment as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” Barrett quoted from a 2010 opinion by Justice Samuel Alito that extended gun rights, but the phrase also has been used more recently by Justice Clarence Thomas and other conservatives to complain that the Supreme Court has shied away from recognizing gun rights.


In the same opinion on gun rights, Barrett dipped into constitutional history to note that states did more to protect the rights of people to own guns than their right to vote. In some states, people who were convicted of crimes lost the right to vote, but not the right to legally have a gun, she wrote.

“And as a right that was exercised for the benefit of the community (like voting and jury service), rather than for the benefit of the individual (like free speech or free exercise), it belonged only to virtuous citizens,” Barrett wrote.

The right to keep and bear arms conveyed by the Second Amendment, by contrast, protects “an individual’s right to protect himself — not in his right to serve in a well-regulated militia,” Barrett wrote, citing Justice Antonin Scalia’s 2008 opinion for the court in a major gun rights case.


Barrett wrote for a unanimous three-judge panel in 2019 that upheld the dismissal of a workplace discrimination lawsuit by Terry Smith, a Black Illinois transportation employee who sued after he was fired.

Smith’s claims included that he was called a racial slur by supervisor Lloyd Colbert.

“The n-word is an egregious racial epithet,” Barrett wrote in Smith v. Illinois Department of Transportation.

“That said, Smith can’t win simply by proving that the word was uttered. He must also demonstrate that Colbert’s use of this word altered the conditions of his employment and created a hostile or abusive working environment.”

Barrett went on to say that Smith “introduced no evidence that Colbert’s use of the n-word changed his subjective experience of the workplace.

To be sure, Smith testified that his time at the Department caused him psychological distress.

But that was for reasons that predated his run-in with Colbert and had nothing to do with his race.

His tenure at the Department was rocky from the outset because of his poor track record.”

A possible colleague of Barrett’s took a different view on racial slurs in 2013.

Justice Brett Kavanaugh, then serving as a federal appeals court judge in Washington, D.C, said one utterance was enough.
“But, in my view, being called the n-word by a supervisor ... suffices by itself to establish a racially hostile work environment. That epithet has been labeled, variously, a term that ‘sums up . . . all the bitter years of insult and struggle in America,’ ‘pure anathema to African-Americans,’ and ’probably the most offensive word in English,” Kavanaugh wrote.

“No other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans. In short, the case law demonstrates that a single, sufficiently severe incident may create a hostile work environment actionable” under federal anti-discrimination laws.


Barrett wrote a unanimous three-judge panel decision in 2019 making it easier for men alleged to have committed sexual assaults on campus to challenge the proceedings against them.

The case involved allegations by a female student at Purdue University that her boyfriend had sexually assaulted her. The students were identified in court documents as John and Jane Doe.

John Doe sued in federal court claiming sex discrimination after Purdue suspended him for a year and took away his Navy ROTC scholarship. Barrett concluded Purdue’s process was unfair and allowed his lawsuit to continue.

“The case against him boiled down to a ‘he said/she said’ — Purdue had to decide whether to believe John or Jane,” Barrett wrote.

The judge criticized the university official who ended up siding with the female student. “Her basis for believing Jane is perplexing, given that she never talked to Jane. Indeed, Jane did not even submit a statement in her own words,” Barrett wrote.


Barrett was in dissent in June when her two colleagues on a 7th Circuit panel put on hold, just in Chicago, Individual-1 policy that could jeopardize permanent resident status for immigrants who use food stamps, Medicaid and housing vouchers.

Under the new policy, immigration officials can deny green cards to legal immigrants over their use of public benefits.

She wrote that existing immigration law and a Clinton-era welfare overhaul had already limited public assistance to noncitizens. The administration was just using leeway those laws had given it, Barrett wrote. The objections of immigrants and their advocates “reflect disagreement with this policy choice and even the statutory exclusion itself. Litigation is not the vehicle for resolving policy disputes,” she wrote.


Barrett dissented in the case of a Wisconsin man who admitted that he fatally shot his wife seven times but argued that he had been provoked, making his crime second-degree homicide instead of first-degree homicide, which carries a higher penalty.

A federal judge reviewed the provoking claim in a pretrial hearing without prosecutors present and without allowing the lawyer of defendant Scott Schmidt to speak. The judge rejected Schmidt’s claim of provocation, and he was convicted of first-degree homicide and sentenced to life in prison. However, a 7th Circuit panel overturned that decision, saying that Schmidt had been denied his Sixth Amendment right to counsel.

Barrett, in her dissent, disagreed that the pretrial hearing where the judge questioned Schmidt about his provocation claim was a situation that required Schmidt’s lawyer and said the Supreme Court has never extended the right to counsel outside an adversarial proceeding.

The Supreme Court’s “’critical stage’ precedent deals exclusively with adversarial confrontations between the defendant and an agent of the state,” she said.

She added: “Perhaps the right to counsel should extend to a hearing like the one the judge conducted in Schmidt’s case. But (federal law) precludes us from disturbing a state court’s judgment on the ground that a state court decided an open question differently than we would — or, for that matter, differently than we think the (Supreme) Court would.”

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Re: New Search and Seizure Ruling
« Reply #19 on: November 17, 2020, 03:55:06 pm »
Tuesday, 17th November 2020
North Carolina’s First Black Female Chief Justice May Lose Her Seat To Aggrieved White Colleague
by Mark Stern

The North Carolina Supreme Court has confronted systemic racism, reckoned with the state’s confederate history, and protected voting rights under the leadership of Cheri Beasley, the first Black woman to serve as its Chief Justice.

Beasley is currently trailing her challenger, Paul Newby, by just 406 votes out of nearly 5.4 million cast.

The race will now head into a recount.

Newby, a white male republican who serves on the court alongside Beasley, has loudly and frequently objected to the court’s clear-eyed acknowledgement of racism, using his dissents to attack Beasley, a Democrat, as a judicial activist.

If Newby wins, his victory will be a major setback for racial justice in North Carolina.

Newby’s grudge against Beasley has simmered for years.

Beasley was first elected to the North Carolina Court of Appeals in 2008, becoming the first Black woman to be elected to any statewide office in North Carolina without first being appointed by the governor.

Governor Bev Perdue elevated Beasley to the state Supreme Court in 2012, and she won reelection to the seat in 2014.

When Chief Justice Mark Martin stepped down in 2019, Governor Roy Cooper selected Beasley to replace him, creating a 6–1 liberal majority.

Cooper’s decision angered Newby, who believed he was entitled to the chief justiceship as the most senior member of the court.

Newby then took the unusual step of challenging Beasley in 2020, running for her position rather than seeking to keep his own seat.

As Newby fought to seize the chief justiceship from Beasley, the North Carolina Supreme Court addressed a major controversy in the state’s criminal law: what to do about the Racial Justice Act.

The act, passed in 2009, allowed death row inmates to contest their capital sentences by providing proof of racism, including statistical evidence.

Marcus Robinson, the first person to secure a hearing under the RJA, prevailed after demonstrating systemic racism in the prosecution of capital cases.

His evidence included racist handwritten notes by North Carolina prosecutors, in addition to the fact that Black people are substantially more likely to be struck from the jury than all other jurors in capital cases.

Alarmed by Robinson’s success and worried that the statistics he presented would prevent the state from executing any Black person, the newly Republican-controlled legislature  narrowed the RJA’s scope and limited inmates’ ability to use statistical evidence to show systemic racism.

Yet the next three people to seek relief under the act also succeeded in overturning their death sentences.

The legislature then repealed the whole act in 2013, cutting short the appeals in process and reinstating the death sentences that had already been overturned.

In June, the North Carolina Supreme Court ruled that this retroactive repeal violates the state constitution.

The majority opinion—written by Justice Anita Earls, also a Black woman—found that the legislature could not “retroactively impose a greater penalty” on prisoners by revoking their right to challenge a racist death sentence.

Earls also held that the RJA amendment curtailing the use of statistical evidence could not be applied retroactively.

The state, she explained, had given death row inmates “a new substantive claim” in passing the RJA; in seeking to strip away that claim, it violated the rule against ex post facto punishments.

Only Newby dissented, accusing the court of “intrud[ing] upon the right of the people” to “decide death penalty policy” and writing that the RJA itself may be unconstitutional.

More than 100 death row inmates had already filed an RJA claim when the legislature abolished the law, and Earls’ opinion allowed them to continue pursuing these claims.

But what about the four people who’d already won their cases under the law?

In August, the North Carolina Supreme Court ruled that executing individuals who defeated their death sentences under the RJA violates the state Constitution’s bar against double jeopardy.

This time, Beasley authored the opinion of the court.

Her opinion discussed the North Carolina criminal justice system’s persecution of Black people throughout history.

It also acknowledged the extensive evidence of present-day racism that Robinson presented at his RJA hearing.

Beasley’s opinion infuriated Newby.

In an intemperate dissent, he claimed that the court’s three Black justices “may have a larger purpose: to establish that our criminal justice system is seriously—and perhaps irredeemably—infected by racial discrimination.”

Newby accused these justices of “extraordinary judicial activism” that will undermine “public trust and confidence in our judicial system.”

And he compared them to King Louis XVI for acting like a “monarch,” huffing that they were “legislating changes in the law from the bench.”

This stark divide between Beasley and Newby—the former recognizing the existence of racism, the latter denying it—extended beyond legal opinions.

In June, Beasley delivered an extraordinary speech urging action to eradicate racism in the North Carolina judiciary.

“In our courts,” Beasley said,

“African-Americans are more harshly treated, more severely punished and more likely to be presumed guilty.”

Newby, by contrast, launched an attack on the integrity of Beasley and her court, one with troubling racial undertones.

At a campaign event, he derided Earls as an “AOC person,” referencing New York Congresswoman Alexandria Ocasio-Cortez.

“Imagine seven AOCs on the state Supreme Court,” he cautioned.

Newby then alleged that Earls’ election to the court was part of “a long term strategy by Obama and those who were part of his inner circle.”

Although he did not mention Beasley by name, Newby depicted her and Earls—the court’s two women of color—as indistinguishable.

He once again complained that the governor named Beasley chief justice instead of him.

And he closed by urging progressives to move to another country.

“If we’re as bad as the other side says we are,” the justice declared,

“I will buy you a ticket to leave. I mean, just leave. You’ve got freedom here in America to leave. We don’t build laws to keep you in. We ought to have a wall to keep you out if you’re trying to get here illegally.”

(Newby’s wildly unprofessional comments flouted the North Carolina Code of Judicial Conduct.)

In the wake of the election, Newby has adopted a individual-1-like position on voter fraud, asserting without evidence that the state has counted illegal ballots that detract from his total.

When vote tabulation was still underway, Newby filed frivolous protests with eight county election boards raising baseless claims of misconduct.

(Historically, candidates do not file such protests, let alone in their own races.)

He asked these boards to throw out a large number of mail ballots, which skew disproportionately Democratic.

The boards rejected his requests after he failed to provide any proof to substantiate his allegations.

Had voters delivered a resounding defeat to Newby, they would have demonstrated that white male candidates can no longer rely on thinly veiled race-baiting.

Instead, they split almost evenly, and the race will come down to the wire.

If Beasley loses, the North Carolina Supreme Court’s liberal bloc will hold a bare 4–3 majority, since her Democratic colleague, Justice Mark Davis, lost his seat.

The future of the court remains uncertain.

And there’s more at stake than Beasley’s career, or even North Carolina’s future.

In 2019, the Brennan Center reported that women of color face a number of obstacles in judicial elections:

On average, they raise less money than any other demographic group, face more attack ads from outside groups, and are more likely to lose re-election than their white counterparts.

They routinely face racist attacks that accuse them of undue sympathy for racial minorities who committed crimes. 

The few Black women in state judiciaries bring sorely needed perspectives to the bench.

Their white colleagues are surely watching Newby’s dog-whistle campaign, taking note from his playbook.

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Re: New Search and Seizure Ruling
« Reply #20 on: November 21, 2020, 12:56:35 pm »
Saturday, 21st November 2o2o
Justice Alito and Supreme Court Ethics
by Janna Adelstein

On November 12th, Justice Samuel Alito gave a controversial speech to the Federalist Society, an influential conservative legal group with close ties to the judiciary.

Bemoaning what he characterized as growing threats to free speech and religious liberty, Alito took aim at the Supreme Court’s historic decision that same-sex couples have a right to marry, along with recent cases on abortion rights and restrictions imposed to prevent the spread of Covid-19.

It was an unusually political speech for a justice at a time of growing scrutiny about the Supreme Court’s public legitimacy.

His remarks didn’t do the Court any favors in that regard — and it’s time to hold the Court to a higher standard.

Alito began his speech by arguing that the Covid-19 pandemic “has resulted in previously unimaginable restrictions on individual liberty,” though he added that he was “not diminishing the severity of the virus’s threat to public health.”

Among other things, Alito criticized the Supreme Court’s July decision to reject a Nevada church’s challenge to state-imposed social distancing restrictions, arguing that Nevada “blatantly discriminated” against houses of worship because its restrictions on casinos were less strict.

The justice also pointed to constitutional strides for gay rights and abortion access as some of the greatest threats to the First Amendment.

He argued that “now it is considered bigotry [to] say that marriage is the union between one man and one woman,” adding that Americans who don’t believe in gay marriage are facing unjust restrictions on their free speech.

And he criticized a state rule requiring a pharmacy to provide morning-after pills when the owners of the store had a religious objection to abortion.

It was an unusual speech in tone and content, and it drew widespread criticism from legal scholars, advocacy groups, senators, and others, who suggested that Alito exercised poor judgment and may have crossed ethical lines.

Erwin Chemerinsky, the dean of Berkeley Law, said that he could not “think of any speech like this one that discussed so many issues and in a clearly ideological, partisan way.”

Georgia State University law professor Eric Segall observed that “we’re living in a very partisan moment” and that judges should recognize “this is not the time to stir this pot.”

Constitutional law professor Daniel Epps said that Alito’s speech made a strong argument for court reform, because it demonstrated that there is “no good justification for a system that gives an angry partisan like this a veto on legislation.”

On the other hand, some legal commentators did not take issue with Alito’s comments.

Ilya Shapiro of the Cato Institute, a libertarian think tank, said that he didn’t find Alito’s comments inappropriate because he doesn’t think that “we should keep judges out of the public sphere,” especially because the justice didn’t express views in his speech that were not covered in previous writings.

Alito is not the only Supreme Court justice to draw scrutiny for partisan-sounding statements.

In 2016, the late Justice Ruth Bader Ginsburg called Individual-1 a “faker” and said she “can’t imagine what the country would be” with Individual-1 pretending to be president.

Her statements were denounced by several legal scholars as well as the editorial board of the Washington Post for being overtly political. Ginsburg later apologized for her remarks, calling the comments “ill-advised.”

Alito’s remarks occurred against the backdrop of new scrutiny about the politicization of the Supreme Court following the unprecedented confirmation of Amy Coney Barrett just days before the 2020 election.

Progressive groups, members of Congress, and some legal experts have been discussing options for reform, including imposing term limits for the justices, jurisdiction stripping, and most notably, expanding the size of the Court.

These suggestions have clearly struck a chord with Alito.

In his speech, he described a 2019 friend-of-the-court brief from five Democratic senators that called for a potential restructuring of the Court “an affront to the Constitution and the rule of law.”

However, the justice’s own speech underscores how few steps the Supreme Court itself has taken to shore up public confidence in its integrity as an institution.

Alito weighed in on politically charged controversies — including ones that may appear before him in the future.

Yet strikingly, Alito and his fellow justices are the only judges in the entire country who do not have to adhere to a code of ethics — something the Court could choose to adopt at any time.

The Supreme Court’s silence on this — and Justice Alito’s willingness to give a caustic and politically charged speech in the current moment — both speak volumes.

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Re: New Search and Seizure Ruling
« Reply #21 on: March 20, 2021, 10:58:38 am »
Saturday, 20th March Twenty One
A Crying Shame

On Wednesday, Lawrence VanDyke, individual-1’s nominee for a seat on the 9th U.S. Circuit Court of Appeals, made news by crying at his confirmation hearing.

He began weeping after he was confronted with a letter from the American Bar Association that had deemed him “Not Qualified,” a ranking based on 60 interviews with 43 lawyers, 16 judges, and one other person who had worked with him.

In their dealings with VanDyke, these individuals found him to be “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.”

When Missouri Senator Josh Hawley asked him, sympathetically, about the ABA concerns over whether “VanDyke would be fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community,” the nominee sobbed openly.

Despite his years of anti-LGBTQ writings and advocacy, VanDyke was the one who felt persecuted.

Did he believe, Hawley asked, that he would treat LGBTQ litigants unfairly?

“I do not believe that,” VanDyke said.

“It is a fundamental belief of mine that all people are created in the image of God,” he insisted.

“They should all be treated with dignity and respect.”

What, exactly, does VanDyke have to cry about?

That someone hurt his feelings?

That after a career spent maligning and excluding gay Americans from everyday civic life, he feels entitled to glide onto an Article III court without answering for any of it?

For his entire career, he has been the one defending invidious discrimination, not suffering it.

But upon being asked to answer for his anti-gay work, VanDyke did what many anti-LGBTQ advocates do today:

He played the victim.

He literally cried.

He talked about God.

And he centered his own pain.

Imagine the indignity of having to answer for your years of tireless toil in opposition to marriage equality, civil rights protections for LGBTQ Americans, and the rights of gay students to join school clubs!

How awful.

Along with the crying, VanDyke tried to explain that his views have changed since he penned a 2004 op-ed at Harvard Law School insisting that same-sex marriage “will hurt families, and consequentially children and society.”

He also distorted his more recent advocacy work defending anti-gay discrimination.

In 2010, he filed an amicus brief in Christian Legal Society v. Martinez on behalf of Gays and Lesbians for Individual Liberty—a small group that brings together “classical liberals, market liberals, limited-government libertarians, anarcho-capitalists, and objectivists” to oppose nondiscrimination laws.

VanDyke’s brief argued that student groups at public universities have a constitutional right to discriminate against gay students.

On Wednesday, though, he was unwilling to say out loud that he had joined a group to side with religious liberty against gay students, so he pretended to have been for both.

What was VanDyke and his not-qualified rating and record of anti-gay advocacy doing in front of the Senate, anyway?

Let’s pause to remember that individual-1 could have selected a fit conservative for this seat.

(Indeed, VanDyke testified alongside Patrick Bumatay, who was rated “Qualified” by the ABA, has no history of inflammatory remarks and is openly gay himself.)

But instead, individual-1 picked someone who, by the accounts of 60 interviewees, “lacks humility, has an ‘entitlement’ temperament, does not have an open mind and does not always have a commitment to being candid and truthful.”

VanDyke is the ninth judge individual-1 has nominated who has received such a rating from the ABA, which has been conducting evaluations of judicial nominees since 1953 (five of these “not qualified” judges have been confirmed, two were denied, and, like VanDyke, one’s nomination is still pending).

It claims the assessments are nonpartisan evaluations and based on three metrics: professional competence, integrity, and judicial temperament.

Of the 255 evaluations the ABA standing committee has completed for individual-1 nominations, 97 percent have been rated “qualified” or “well qualified.”

Having assessments from local counsel and judges who actually work with the nominee is generally useful, which is why Senate Judiciary Chairman Lindsey Graham continues to say the ratings are helpful.

But at this most recent confirmation hearing, republicans decided they’d had enough of the ABA.

As Utah Senator Mike Lee insisted on Wednesday, any group that doesn’t rate 100 percent of individual-1’s judicial picks as qualified is by definition biased and useless.

Or as Lee put it, “The ABA has essentially called you a homophobic bigot … with no apparent basis.”

Never mind that as Montana solicitor general in 2013, he advocated for the state to join two abhorrent briefs arguing against marriage equality that disparaged LGBTQ families, suggesting legal recognition of same-sex partnerships would harm children.

The first claimed that a prohibition on same-sex marriage was necessary to promote “optimal childrearing” because gay couples “cannot provide” the optimal “family structure” (the position he claimed to have disavowed after 2004).

And the second alleged that states “may rationally conclude” that “it is better” for parents to have a “biological” connection to their children.

Why does the individual-1 believe that someone who has done nothing but push fringe legal notions into the mainstream is fit to serve on a federal appellate bench?

It’s a puzzler.

But unlike some of individual-1’s nominees, VanDyke at least has legal experience on which he can be judged.

He served as solicitor general of Montana and Nevada, in 2013–14 and from 2015–18, respectively.

While he served as Montana’s solicitor general, he spent much of his time working on amicus briefs filed in other states, giving us a clear sense of his ideology.

Many of those briefs dealt with constitutional challenges to state and federal gun laws, abortion, and same-sex marriage.

(VanDyke has a knack for controversy: He also penned a discredited article arguing that “intelligent design,” a form of creationism, should be taught in public schools. He did it in this century!)

In 2013, VanDyke co-authored a brief in an abortion case seeking the wholesale reconsideration of Roe v. Wade.

As the Las Vegas Sun editorialized this week about his extreme tendencies, “VanDyke was so gung-ho about joining Montana into one politically charged case that he committed to it without even bothering to review the legal document at issue.”

The Sun went on to note that “emails from Montana also showed that VanDyke worked hand-in-hand with the Federalist Society, the hugely powerful conservative legal organization, from which VanDyke asked for help while ‘having trouble coming up with any plausible (much less good) arguments’ in a guns case.”

And while he served as Nevada’s solicitor general, VanDyke was not even admitted to the state bar, even after a temporary two-year waiver expired.

But Republican senators did not dig into most of this, nor did they probe VanDyke’s record of extreme and punitive anti-gay, anti-women, pro-gun advocacy on Wednesday.

Rather, they took turns bashing the ABA for its scathing assessment.

To discredit the group’s rating, Republicans drew from a playbook laid out by Mike Davis, a former clerk for Justice Neil Gorsuch who lobbies for individual-1’s judicial nominees, on Twitter Tuesday night.

Lee accused the ABA of having “lost its credibility as a neutral arbiter” and operating as a “special interest group.”

He urged the Executive Mansion “to suspend the unique access that the American Bar Association has” to nominees “until such time as a thorough investigation and review is undertaken to inquire into” its investigative methods.

Hawley zeroed in on the fact that Marcia Davenport, the ABA’s chief evaluator of VanDyke, donated $150 to his opponent in a 2014 Montana Supreme Court race.

Let’s stipulate that Davenport was not an ideal candidate to lead the ABA’s assessment of VanDyke.

But let’s also remember that after Davenport filed her initial report, a full committee of 15 ABA members supported, by majority vote, the rating of “not qualified.”

And that after this vote, the organization conducted a supplemental review and held a second vote, which led to the same result.

And that 60 interviewees delivered the opinion that VanDyke was an entitled partisan.

The GOP’s talking points reek of cynical hypocrisy.

Davis complained on Tuesday that the ABA is a “dark-money group.”

That is an unusual description of an organization that boasts more than 400,000 dues-paying members, since a typical “dark-money group” receives secret donations from a few high-dollar donors.

In fact, Davis’ own Article III Project certainly fits that definition—as does the Judicial Crisis Network, another organization that lobbies for individual-1’s nominees, including VanDyke.

In fact, VanDyke himself has reaped the benefits of dark money.

The same year that Davenport donated her $150 to his opponent for the Montana Supreme Court, VanDyke was boosted by hundreds of thousands of dollars in dark money spending on his candidacy.

(He still lost badly.)

Apparently Davis’ attack on a storied legal institution and a $150 donation from a single member, is not, in his view, compromised by the multimillion-dollar dark money campaigns at work to goose spectacularly ill-qualified nominees to lifetime appointments.

It is more than likely that the Senate will confirm VanDyke — just as it has confirmed other nominees who are flagrantly partisan, or lacking in judicial temperament or experience.

These are the qualities individual-1 seeks in his judges, and these are the judges that Senate Republicans want.

Yes, it will further degrade the institution of the judiciary to put objectively unqualified zealots on the bench. But degrading the institution is part of the game plan.

individual-1 has told us on many occasions of his contempt for an independent judicial branch.

The mystery isn’t so much why VanDyke cried when confronted with his own legal legacy, but why he didn’t embrace it.

After all, he probably wouldn’t have been sitting under the klieg lights in the first place if he hadn’t spent his career trying to strip rights from others.

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Re: New Search and Seizure Ruling
« Reply #22 on: March 29, 2021, 04:06:07 pm »
Monday, 29th March Twenty One
Supreme Court rules: Hillary Clinton can't be deposed in lawsuit over private email server
by Ariane de Vogue and Devan Cole

The Supreme Court on Monday left in place a lower court order that blocked the conservative group Judicial Watch from deposing former Secretary of State Hillary Clinton about her use of a private email account in a lawsuit related to the 2012 attack on the US consulate in Benghazi, Libya.

A federal appeals court ruled last August that Clinton cannot be compelled to appear for a deposition in a lawsuit about State Department emails, a ruling that came after a federal judge said earlier in 2020 that the former secretary must appear for a deposition in the case.

The court's denial on Monday was unsigned.

Judicial Watch had asked to depose Clinton, top aide Cheryl Mills and other former State Department employees in a case seeking public access to the emails from the State Department.

Clinton's emails were already investigated by Congress, the State Department inspector general and the FBI, and she previously gave written answers in another lawsuit, the appeals court noted last year.

Judicial Watch President Tom Fitton claimed in a statement Monday that Clinton "received special protection from both the courts and law enforcement," adding that "Americans would never have known about Hillary Clinton's email and related pay for play scandals but for Judicial Watch's diligence."

News broke in March 2015 that Clinton used personal email addresses connected to a privately owned server, rather than a government email, during her four years as President Barack Obama's first-term secretary of state.

The email controversy became an issue that hounded Clinton's 2016 presidential campaign.

In 2019, the State Department released details of an investigation saying that there was no "persuasive evidence" of widespread mishandling of classified information in the controversy surrounding Clinton's use of a private email server.

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Re: New Search and Seizure Ruling
« Reply #23 on: June 17, 2021, 02:18:48 pm »
Thursday, 17th June  Twenty One
U.S. Supreme Court rules for Nestle, Cargill over slavery lawsuit

(WASHINGTON, DC) - The U.S. Supreme Court on Thursday threw out a lawsuit accusing Cargill Inc and a Nestle SA subsidiary of knowingly helping perpetuate slavery at Ivory Coast cocoa farms, but sidestepped a broader ruling on the permissibility of suits accusing American companies of human rights violations abroad.

The 8-1 ruling authored by Justice clarence thomas reversed a lower court decision that had allowed the lawsuit, brought on behalf of former child slaves from Mali who worked at the farms, filed against the companies in 2005 to proceed.

The court ruled the claim could not be brought under the Alien Tort Statute, which lets non-U.S. citizens seek damages in American courts in certain instances.

The business community has long sought to limit corporate liability under this law.

The lawsuits targeted the U.S. subsidiary of Swiss-based Nestle, the world's biggest food producer, and commodities trader Cargill, one of the largest privately held U.S. companies.

The plaintiffs accused the companies of aiding and abetting human rights violations through their active involvement in purchasing Ivory Coast cocoa and turning a blind eye to the use of slave labor on the farms despite being aware of the practice in order to keep cocoa prices low.

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Re: New Search and Seizure Ruling
« Reply #24 on: June 21, 2021, 09:13:32 am »
Monday, 21st June  Twenty One
U.S. Supreme Court sides with college athletes in NCAA compensation dispute
by  Will Feuer

The Supreme Court on Monday unanimously sided with a group of former college athletes, ruling that the National Collegiate Athletic Association’s tight limits on education-related compensation — things like computers and graduate scholarships — violates antitrust law.

The court rejected the NCAA’s argument that offering compensation through education-related benefits would alienate fans who appreciate players’ amateur status.

The ruling means that the NCAA cannot prevent schools from offering compensation beyond tuition costs, such as scholarships for graduate school or study-abroad programs, for student athletes.

However, the compensation must be related to education.

The NCAA’s rules that restrict athletes from being paid to play or for endorsing products were not in question before the court.

« Last Edit: June 22, 2021, 07:27:42 am by Battle »

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Re: New Search and Seizure Ruling
« Reply #25 on: June 23, 2021, 08:38:24 am »
Wednesday, 23rd June  Twenty One
U.S. Supreme Court Rules Cheerleader's F-Bombs Are Protected By The First Amendment
by Nina Totenberg

The U.S. Supreme Court sided with students on Wednesday, ruling that a cheerleader's online F-bombs about her school is protected speech under the First Amendment.

By an 8-1 vote, the court declared that school administrators do have the power to punish student speech that occurs online or off campus if it genuinely disrupts classroom study.

But the justices concluded that a few swear words posted online from off campus, as in this case, did not rise to the definition of disruptive.

"While public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B. L.'s interest in free expression in this case," Justice Stephen Breyer wrote for the court's majority.

At issue in the case was a series of F-bombs issued on snapchat by Brandi Levy, then a 14-year-old high school cheerleader, who failed to win a promotion from the junior varsity to the varsity cheerleading term.

"I was really upset and frustrated at everything," she said in an interview with NPR in April.

So she posted a photo of herself and a friend flipping the bird to the camera, along with a message that said,

"Fvck the school,... Fvck cheer, Fvck everything."

Suspended from the team for disruptive behavior, Brandi and her parents went to court.

They argued that the school had no right to punish her for off-campus speech, whether it was posted online while away from school, as in this case, or spoken out loud at a Starbucks across the street from school.

A federal appeals court agreed with her, declaring that school officials have no authority to punish students for speech that occurs in places unconnected to the campus.

The decision marked the first time that an appeals court issued such a broad interpretation of the Supreme Court's landmark student speech decision more then a half century ago.

Back then, in a case involving students suspended for wearing black armbands to school to protest the Vietnam War, the court ruled that students do have free speech rights under the Constitution, as long as the speech is not disruptive to the school.

Although Brandi Levy is now in college, the school board in Mahanoy, Pennsylvania appealed to the Supreme Court, contending that disruption can come from outside the campus but still have serious effects on campus.

And it pointed, for instance, to laws in 47 states that require schools to enforce anti-bullying and anti-harassment policies.

The high court, however, focused instead on the facts in Levy's case, concluding that while her posts were less than admirable, they did not meet the test of being disruptive.

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Re: New Search and Seizure Ruling
« Reply #26 on: June 23, 2021, 08:41:15 am »
Wednesday, 23rd June  Twenty One
U.S. Supreme Court Restricts Police Powers To Enter A Home Without A Warrant
by Nina Totenberg

The U.S. Supreme Court ruled Wednesday that police cannot enter a home without a warrant when pursuing someone for a minor crime.

By a largely unanimous vote, the court declared that police violated the rights of a California man by pursuing him into his garage for allegedly playing loud music while driving down a deserted two-lane highway late at night.

Writing for the court majority, Justice Elena Kagan said police had no right to enter the man's home without a warrant for such a trivial offense.

The court's ruling came in the case of Arthur Lange, who was playing loud music in his car late one night, at one point honking his horn several times.

A California highway patrol officer, believing Lange was violating a noise ordinance, followed him, and when the motorist slowed to enter his driveway, the officer put on his flashing lights.

Lange, who later said he didn't notice the police car, drove into his garage.

The officer, in "hot pursuit," got out of his car and put his foot under the closing garage door sensor to force the door open again.

He had no warrant to enter the home, but once inside, he said, he smelled liquor on Lange's breath and arrested him, not only for the noise violation, but also for driving under the influence.

Lange appealed all the way to the Supreme Court, contending that the officer had no right to enter his home without a warrant and that the DUI evidence had been illegally obtained.

The Supreme Court has long held that police may conduct a warrantless search when pursuing a fleeing felon.

The question in Lange's case was whether police are free to do the same thing when pursuing someone suspected of a minor offense like playing loud music.

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Re: New Search and Seizure Ruling
« Reply #27 on: June 23, 2021, 09:08:17 am »
Wednesday, 23rd June  Twenty One
U.S. Supreme Court Hands Farmworkers Union A Loss
by Nina Totenberg

The Supreme Court on Wednesday tightened the leash on union representatives and their ability to organize farmworkers in California and elsewhere.

At issue in the case was a California law that allows union organizers to enter farms to speak to workers during non-working hours—before and after work, as well as during lunch—for a set a number of days each year.

By a 6-3 vote along ideological lines, the court ruled that the law—enacted nearly 50 years ago after a campaign by famed organizer Cesar Chavez—unconstitutionally appropriates private land by allowing organizers to go on farm property to drum up union support.

The decision is a potentially mortal blow that threatens the very existence of the farmworkers' union.

However, the ruling stopped short of upending other laws that allow government officials to enter private property to inspect and enforce health and safety rules that cover everything restaurants to toxic chemical sites.

The court's decision on Wednesday was only the latest in a series of decisions that have aimed directly at the heart of organized labor in the United States.

Most recently, in 2018 the court hamstrung public-sector unions' efforts to raise money for collective bargaining.

In that decision, the court by a 5-4 vote overturned a 40-year precedent that had allowed unions to collect limited "fair share" fees from workers not in the union but who benefitted from the terms of the contract that the union negotiated.

The case decided by the court on Wednesday began in 2015 at Cedar Point Nursery, near the Oregon border.

The nursery's owner, Mike Fahner, claimed that union organizers entered the farm at 5 a.m. one morning, without the required notice, and began harassing his workers with bullhorns.

The general counsel for the United Farm Workers, Mario Martinez, countered that the people with bullhorns were striking workers, not union organizers.

When Cedar Point filed a complaint with the California Agricultural Labor Relations Board, the board found no illegal behavior and dismissed the complaint.

Cedar Point, joined by another California grower, appealed all the way to the Supreme Court, arguing they should be able to exclude organizers from their farms.

The court's decision could be disastrous for unions in general, but especially those that represent low-income workers.

The growers asserted that unions should have no problem organizing workers in the era of the internet.

But many of the workers at Cedar Point don't own smartphones and don't have internet access.

What's more, many speak Spanish or indigenous languages and live scattered throughout the area, in motels, labor camps, or with friends and family, often moving after just a few weeks when the seasonal harvest is over.

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Re: New Search and Seizure Ruling
« Reply #28 on: August 05, 2021, 08:51:24 am »
Thursday, 5th August   Twenty One
From a High-School Cheerleader, a Lesson in Free Speech
by Elie Mystal

The rhetoric around the First Amendment tends to be incredibly misinformed.

On one side are the First Amendment absolutists who act like proscribing any speech—even hate speech, or even when the prohibition is made by a private company—is tantamount to an assault on the very concept of freedom and liberty.

Usually, these absolutists are screaming at people on the other side who haven’t actually thought through how wide-reaching government restrictions on speech—

“Ban Fox News!”

“Ban people who lie!”

—would lead to an utter dystopia.

Invariably someone shows up to say, “You can’t shout ‘Fire!’ in a crowded theater” (which is not true—you absolutely can shout fire in a crowded theater, so stop quoting this line), and everybody turns off the television less informed than when they started.

The reality of our First Amendment freedoms is altogether more boring, and more nuanced.

The government does and must have the authority to regulate speech in all kinds of situations.

But that authority is and should be treated with deep skepticism.

The government should always be challenged to come up with the least restrictive means to achieve its legitimate ends.

But when courts adhere to that principle, when judges issue practical rulings that balance the right to free speech against the government’s legitimate interest in restricting certain kinds of speech, the cases don’t make the news.

That’s why the decision at the end of the Supreme Court’s term in Mahanoy Area School District v. B.L.—better known as the “cheerleader case”—garnered comparatively little attention, even though the underlying controversy was widely publicized.

At issue was a Snapchat post from Brandi Levy.

As a first-year high school student, Levy failed to make the varsity cheerleading team.

Disappointed, she posted a picture of herself with the caption “Fvck school fvck softball fvck cheer fvck everything.”

Students who made the squad saw Levy’s post and showed it to the cheerleading coach.

The coach then suspended Levy from the junior varsity team.

Levy sued the school.

If Tina Fey and Amy Poehler want to write a movie about this starring Zendaya, I will probably watch it.

The case got the media engine churning for another round of speech wars.

(Levy is white. I imagine if she were dark-skinned, the white-wing media would have wanted her deported to a country she’s not from.)

I, like most people who have been 14, think the school was clearly wrong and over-punished Levy for harmless vulgarity.

But teasing out why the school should be constitutionally prohibited from this kind of punishment is a little tricky.

State-run schools have broad authority to regulate speech inside their walls, and while Levy’s Snapchat post clearly occurred off campus, we live in an age of wonders when off-campus speech can instantly spread to the entire school community.

It’s not hard to imagine an off-campus Snapchat post that could require in-school discipline.

Most people would probably agree, for instance, that the school could punish Levy if she had joked about doing violence to her coaches, even if the message did not rise to the level of “true threat” required to get law enforcement involved.

Other, more subtle forms of intimidation also might warrant punishment from the school.

And yet Levy’s particular post was clearly not that, and schools should generally be prohibited from policing students after hours.

That is the job of their parents, not the state.

The current federal standard for school restrictions on speech was set in Tinker v. Des Moines, in 1969.

The Supreme Court ruled that students do not lose First Amendment protections simply by showing up to school, but they do not enjoy absolute freedom of speech either; schools can punish students whose speech “materially and substantially” interferes with school business.

In the years since, Tinker has been extended to things like field trips, but it has never been applied to fully off-campus speech like Levy’s.

And it has never contended with the age of social media

In Mahanoy, the Supreme Court, by a vote of 8-1, ruled to protect Levy—and declined to extend the Tinker standard all the way off campus.

In his majority opinion, Justice Stephen Breyer issued a limited and exceedingly pragmatic ruling that made clear that Levy’s conduct is constitutionally protected and sent a signal to schools that their authority to police off-campus speech is much more limited than their authority to police speech within their buildings.

But Breyer’s tolerance for angsty Snapchat posts was not absolute.

At the lower level, the Third Circuit Court of Appeals had ruled for Levy but found that public schools have no authority to punish students for off-campus speech disseminated on social media.

Breyer disagreed.

Instead, he listed a number of instances in which a school may have cause to regulate off-campus speech, including when a student uses social media to bully or harass other students.

Breyer’s approach is the right one.

An absolute rule that says schools can never police students on social media would open the door to racial epithets, sexual harassment, and threats of violence.

But a Tinker-like rule in which schools get to police everything from dirty words to collegial etiquette would essentially take away the free speech rights of students at all times.

The First Amendment requires the courts to balance legitimate state interests against the presumption of freedom, and here Breyer walked that tightrope expertly.

Which is probably why the ruling wasn’t covered with the same fanfare as the initial argument.

In the run-up to the case, right-wing stalwarts like David French hoped the court’s decision would “limit the reach of cancel culture.”

But the ruling offered nothing to aid conservatives in their endless self-victimization.

Nor did it swing the door open to the kind of virulent racism that they are always quick to defend under the guise of free speech.

The decision was just a logical ruling that offered a practical way to think about the First Amendment in relation to social media.

So I guess those looking for the next culture war will pivot away from the white cheerleader whose vulgar social media posts were completely defended by most people, including the three liberal justices on the Supreme Court, and go back to crying about persecution from the left because they can’t organize a coup on Twitter.

Real First Amendment issues are never quite as sexy as the people who scream about the First Amendment want them to be.