On June 24, 2019, the Supreme Court decided Iancu v. Brunetti, a case considering whether a provision of the Lanham Act prohibiting the registration of “immoral or scandalous” trademarks infringes the First Amendment.
Business owner Erik Brunetti applied to register his clothing brand’s trademark, “FUCT,” (pronounced as the individual letters F-U-C-T) but was refused by the U.S. Patent and Trademark Office (PTO) because the Lanham Act prohibits registration of marks that consist of or comprise “immoral or scandalous” matter. The PTO Trademark Trial and Appeal Board deemed the mark vulgar and indicated that it carried “negative sexual connotations,” and in association with Brunetti’s website imagery and products conveyed misogyny, depravity, and violence. Brunetti then appealed to the U.S. Court of Appeals for the Federal Circuit, which held that the Lanham Act’s prohibition violated the First Amendment. The Supreme Court then granted certiorari to address the lower court’s invalidation of the federal statute.
By a vote of 6-3, the Supreme Court upheld the judgment of the Federal Circuit. In an opinion delivered by Justice Kagan, the Court held that the Lanham Act prohibition on the registration of “immoral” or “scandalous” trademarks constitutes viewpoint discrimination that infringes the First Amendment.
Justice Kagan’s majority opinion was joined by which Justices Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh. Justice Alito filed a concurring opinion. Justice Breyer and Chief Justice Roberts filed opinions concurring in part and dissenting in part. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined.
To discuss the case, we have Thomas Berry, Attorney at the Pacific Legal Foundation.
Opening Arguments - OA301: The Good News Show!
Today's episode focuses on a number of actual good developments in the news! From the second half of the Mueller testimony before the House Intelligence Committee, to a court's issuance of an injunction blocking Trump's illegal efforts to change the rules on asylum, it's a (rare) week of good news! Oh -- and there's a brand new intro for your enjoyment as well!
We begin with an update on Mueller's second round of testimony before the House Intelligence Committee, and answer some questions about whether Rep. Nadler can launch "an impeachment inquiry" without Nancy Pelosi's approval.
Then, it's time for some good news out of the courts, including a sweeping injunction handed down in Arkansas with respect to three laws that restrict and/or prohibit abortion, including Act 493, which purported to ban all abortions after 18 weeks. This is exactly what we predicted would happen at the district court level -- and you can learn why this particular (159-page!) decision is particularly useful going forward.
But the good news doesn't stop there! We also break down the Northern District of California's injunction with respect to the joint DOJ/DHS rule regarding asylum that was rammed through without the appropriate notice-and-comment period last week.
Then, it's time for a fun segment regarding disciplinary proceedings against everyone's favorite crazy person, Larry Klayman!
Appearances
None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.
Show Notes & Links
- Don’t forget that there are just 10 tickets remaining for Opening Arguments Live in New York on August 10, 2019! Click here to get your tickets before they’re gone!
- Click here for Nadler's 2017 impeachment inquiry.
- This is the must-read Dana Leigh Marks article in the Washington Post that we discuss on this show.
- Finally, click here to read the DC panel's recommendations against crazy person Larry Klayman.
-Support us on Patreon at: patreon.com/law
-Follow us on Twitter: @Openargs
-Facebook: https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!
-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed! @oawiki
-And finally, remember that you can email us at openarguments@gmail.com!
Opening Arguments - OA300: Mueller Testifies!
It's Mueller Time! Today's episode drops early to give you our instant reaction to Special Counsel Robert Mueller's testimony before the House Judiciary Committee. (This only covers the testimony before the House Judiciary Committee, not the subsequent testimony before the House Intelligence Committee.)
There are just 10 tickets remaining for Opening Arguments Live in New York on August 10, 2019! Click here to get your tickets before they're gone!
We break down everything that transpired -- the high points, the low points, and whether anything Moved The Noodle(TM). Specifically, we point out the factual and legal background underlying Mueller's testimony, the 24 OLC memorandum that is the subject of Mueller's declination decision, and the standards for indicting a person under 18 U.S.C. § 1512(c).
Plus, you'll learn the totally misleading takes that right-wing sources are sure to run with, and we'll equip you with everything you need to rebut those.
After a lengthy breakdown of the day's events, we head to #T3BE, which involves a breach-of-contract claim against a bar exam tutor and a rather disappointed new lawyer.
Appearances
Andrew was a guest on the latest episode of the Registry Matters podcast discussing the Supreme Court, as well as the most recent episode of Mueller, She Wrote from the live show in Philadelphia talking.. well, pretty much everything!
Show Notes & Links
- Don't forget that there are just 10 tickets remaining for Opening Arguments Live in New York on August 10, 2019! Click here to get your tickets before they're gone!
- Click here to read the Mueller Report.
- Click here to read the OLC opinion.
-Support us on Patreon at: patreon.com/law
-Follow us on Twitter: @Openargs
-Facebook: https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!
-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed! @oawiki
-And finally, remember that you can email us at openarguments@gmail.com!
SCOTUScast - The American Legion v. American Humanist Association – Post-Decision Podcast
On June 20, 2019, the Supreme Court decided The American Legion v. American Humanist Association, a case considering whether state funding of a war memorial in the form of a religious symbol is in violation of the Establishment Clause of the First Amendment.
In 1925, the American Legion erected a memorial cross (Peace Cross) in Bladensburg, MD, to honor 49 soldiers who died fighting in World War I. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the land and has maintained the memorial using public funding. In 2014, the American Humanist Association (AHA) and other civil associations filed suit in District Court, alleging that the presence and publicly-funded maintenance of the Peace Cross violated the Establishment Clause of the First Amendment. AHA sought relocation, demolition, or removal of the cross’s arms. The district court ruled in favor of the American Legion, applying the Supreme Court precedents Lemon v. Kurtzman (1971) and Van Orden v. Perry (2005), concluding that the Peace Cross did not violate the Establishment Clause.
A divided panel of the U.S. Court of Appeals for the Fourth Circuit reversed that judgment, applying the same precedents as the district court--but concluding that the Peace Cross conveyed to a reasonable observer the impression of state endorsement of Christianity, and excessively entangled the Commission with religion. The Supreme Court granted certiorari to address the Establishment Clause issue.
By a vote of 7-2, the Supreme Court reversed the judgment of the Fourth Circuit and remanded the case. In an opinion delivered by Justice Alito, the Court held that “[t]he Bladensburg Cross does not violate the Establishment Clause.” Justice Alito delivered the opinion of the Court with respect to Parts I, II–B, II–C, III, and IV, joined by Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh. Justice Alito’s opinion with respect to Parts II–A and II–D was also joined by Chief Justice Roberts and Justices Breyer and Kavanaugh, but not Justice Kagan. A concurring opinion was filed by Justice Breyer in which Justice Kagan joined. Justice Kavanaugh filed a concurring opinion and Justice Kagan filed an opinion concurring in part. Justice Thomas filed an opinion concurring in the judgment. Justice Gorsuch filed an opinion concurring in the judgment, in which Justice Thomas joined. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined.
To discuss the case, we have Christopher DiPompeo, Partner at Jones Day.
In 1925, the American Legion erected a memorial cross (Peace Cross) in Bladensburg, MD, to honor 49 soldiers who died fighting in World War I. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the land and has maintained the memorial using public funding. In 2014, the American Humanist Association (AHA) and other civil associations filed suit in District Court, alleging that the presence and publicly-funded maintenance of the Peace Cross violated the Establishment Clause of the First Amendment. AHA sought relocation, demolition, or removal of the cross’s arms. The district court ruled in favor of the American Legion, applying the Supreme Court precedents Lemon v. Kurtzman (1971) and Van Orden v. Perry (2005), concluding that the Peace Cross did not violate the Establishment Clause.
A divided panel of the U.S. Court of Appeals for the Fourth Circuit reversed that judgment, applying the same precedents as the district court--but concluding that the Peace Cross conveyed to a reasonable observer the impression of state endorsement of Christianity, and excessively entangled the Commission with religion. The Supreme Court granted certiorari to address the Establishment Clause issue.
By a vote of 7-2, the Supreme Court reversed the judgment of the Fourth Circuit and remanded the case. In an opinion delivered by Justice Alito, the Court held that “[t]he Bladensburg Cross does not violate the Establishment Clause.” Justice Alito delivered the opinion of the Court with respect to Parts I, II–B, II–C, III, and IV, joined by Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh. Justice Alito’s opinion with respect to Parts II–A and II–D was also joined by Chief Justice Roberts and Justices Breyer and Kavanaugh, but not Justice Kagan. A concurring opinion was filed by Justice Breyer in which Justice Kagan joined. Justice Kavanaugh filed a concurring opinion and Justice Kagan filed an opinion concurring in part. Justice Thomas filed an opinion concurring in the judgment. Justice Gorsuch filed an opinion concurring in the judgment, in which Justice Thomas joined. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined.
To discuss the case, we have Christopher DiPompeo, Partner at Jones Day.
Opening Arguments - OA299: Executive v. Judiciary (Worcester v. Georgia)
Today's episode takes a deep dive into an 1832 decision, Worcester v. Georgia, to try and answer the question of what happens when the executive and judicial branches come into conflict. Yes, there's a lesson to be drawn to today's Supreme Court-vs.-Donald Trump showdown over the citizenship question on the census.
We begin, however, with a pair of updates to previous shows, including "Joey Salads" and his nonsense "complaint" against AOC, and a listener email and update from our friend Seth Barrett Tillman regarding the status of the emoluments clauses litigation in both Maryland and DC. In fact, a late-breaking decision in the DC case led to a Patreon-only bonus extra on the topic!
Then, it's time for the main event: breaking down the case that led to the famous aphorism, "Justice Marshall has made his decision, now let him enforce it." As is usually the case with these deep dives, there isn't an easy answer as to what the outcome will be when the executive and judiciary stare each other down, but we can always learn from history.
In the "C" segment, we check out an update from friend of the show Randall Eliason, who taunts us with an Andrew Was Wrong about the future of Bridgegate (from Episode 232). Learn what issue is in fact going before the Supreme Court and why Prof. Eliason thinks the Bridgegate conspirators are going to get off scot-free.
After all that, it's time for #T3BE #135, in which Thomas once again manages to analyze a question absolutely perfectly... only to pick the wrong answer yet again. You won't want to miss the full discussion.
Appearances
Andrew was a guest on the latest episode of the Registry Matters podcast discussing the Supreme Court, as well as the most recent episode of Mueller, She Wrote from the live show in Philadelphia talking.. well, pretty much everything!
Show Notes & Links
- We last discussed the Emoluments Clauses litigation in Episode 297. and for more, check out our Patreon-only bonus extra on the topic!
- Here's the full text of the 1832 Supreme Court decision in Worcester v. Georgia.
- We last discussed Bridgegate in Episode 232, and you can click here to read Prof. Eliason's latest blog on the topic.
-Support us on Patreon at: patreon.com/law
-Follow us on Twitter: @Openargs
-Facebook: https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!
-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed! @oawiki
-And finally, remember that you can email us at openarguments@gmail.com!
Strict Scrutiny - Leg Day
In the second summer episode, Leah, Melissa and Jaime keep things light with a discussion of the Court's death penalty docket, the Armed Career Criminal Act cases from this past term, and Justice Kavanaugh's opinion in Flowers v. Mississippi. Kate also joins them to reflect on her time clerking for Justice John Paul Stevens. Last episode was our testing pancake, and this one is B-A-N-A-N-A-S.
Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025!
- 6/12 – NYC
- 10/4 – Chicago
Learn more: http://crooked.com/events
Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes
Amicus With Dahlia Lithwick | Law, justice, and the courts - The End of an Era, and the Cult of the Constitution.
In a week marked by rising rancor, when racist rhetoric ricocheted out of the president’s twitter feed and into a chanting crowd at his reelection rally, the end of an era almost slid under the radar. Dahlia Lithwick reflects on the passing of Justice John Paul Stevens, and the more than symbolic shift from his jurisprudence, his character, to our current state of affairs at the high court and beyond. You can read more here. And Dahlia is joined by Professor Mary Anne Franks of the University of Miami Law School to talk about her book, “The Cult of the Constitution”, how growing up among christian fundamentalists helped her write a book about constitutional extremists, and why there’s still hope for America’s faulty founding document.
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SCOTUScast - Franchise Tax Board of California v. Hyatt – Post-Decision SCOTUScast
On May 13, 2019, the Supreme Court decided Franchise Tax Board of California v. Hyatt, a case considering whether states maintain sovereign immunity from private suits in the courts of other states.
In the 1990s, Gilbert Hyatt moved from California to Nevada. Following an investigation and audit, however, the Franchise Tax Board of California (FTB) claimed that he had misstated the date of his move and therefore owed California millions in unpaid taxes, penalties and interest. Hyatt then brought a tort suit against FTB, which is a California state agency, in Nevada state court--and won a jury verdict of nearly $500 million. Although the Nevada Supreme Court set aside much of the award on appeal, it nevertheless affirmed an award of $1 million for fraud--even though a Nevada statute would have capped such damages in a similar suit against Nevada officials at $50,000. Nevada’s interest in providing adequate redress to its own citizens, the court concluded, superseded the application of any statutory cap for California’s benefit.
In 2016, the U.S. Supreme Court reversed that judgment, concluding that the Constitution’s Full Faith and Credit Clause required Nevada courts to grant the FTB the same level of immunity that Nevada agencies enjoy. The Court divided equally, however, on whether to overrule its 1979 precedent Nevada v. Hall, which holds that the Constitution does not bar private suits against a State in the courts of another State. By statute, the Court was therefore required to affirm the jurisdiction of the Nevada Supreme Court. On remand, that court instructed the trial court to enter damages against FTB in accord with the statutory cap for Nevada agencies. Thereafter the U.S. Supreme Court again granted certiorari to reconsider Nevada v. Hall.
By a vote of 5-4, the Supreme Court reversed the judgment of the Nevada Supreme Court and remanded the case. In an opinion delivered by Justice Thomas, the Court overruled Nevada v. Hall, holding that states retain their sovereign immunity from private suits brought in courts of other states. Justice Thomas’s majority opinion was joined by the Chief Justice and Justices Alito, Gorsuch, and Kavanaugh. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined.
To discuss the case, we have Stephen Sachs, Professor of Law at Duke University.
In the 1990s, Gilbert Hyatt moved from California to Nevada. Following an investigation and audit, however, the Franchise Tax Board of California (FTB) claimed that he had misstated the date of his move and therefore owed California millions in unpaid taxes, penalties and interest. Hyatt then brought a tort suit against FTB, which is a California state agency, in Nevada state court--and won a jury verdict of nearly $500 million. Although the Nevada Supreme Court set aside much of the award on appeal, it nevertheless affirmed an award of $1 million for fraud--even though a Nevada statute would have capped such damages in a similar suit against Nevada officials at $50,000. Nevada’s interest in providing adequate redress to its own citizens, the court concluded, superseded the application of any statutory cap for California’s benefit.
In 2016, the U.S. Supreme Court reversed that judgment, concluding that the Constitution’s Full Faith and Credit Clause required Nevada courts to grant the FTB the same level of immunity that Nevada agencies enjoy. The Court divided equally, however, on whether to overrule its 1979 precedent Nevada v. Hall, which holds that the Constitution does not bar private suits against a State in the courts of another State. By statute, the Court was therefore required to affirm the jurisdiction of the Nevada Supreme Court. On remand, that court instructed the trial court to enter damages against FTB in accord with the statutory cap for Nevada agencies. Thereafter the U.S. Supreme Court again granted certiorari to reconsider Nevada v. Hall.
By a vote of 5-4, the Supreme Court reversed the judgment of the Nevada Supreme Court and remanded the case. In an opinion delivered by Justice Thomas, the Court overruled Nevada v. Hall, holding that states retain their sovereign immunity from private suits brought in courts of other states. Justice Thomas’s majority opinion was joined by the Chief Justice and Justices Alito, Gorsuch, and Kavanaugh. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined.
To discuss the case, we have Stephen Sachs, Professor of Law at Duke University.
Opening Arguments - OA298: Hope Hicks & Weaponized Ticks
Today's episode tackles the recently-released trove of unredacted documents in the Southern District of New York in Michael Cohen's case and explains why Hope Hicks might have been ensnared by America's greatest legal mind, Stormy Daniels. Oh, and have you heard that the Congress ordered the DOJ to investigate... whether the military weaponized ticks and if so, whether those ticks were released against Americans? It's a weird story that can't possibly be true... can it?
We begin, however, with the resolution to last episode's #T3BE (formerly #TTTBE) controversy regarding the definition and conditions required for assault. Learn the results of whether "hissing" constitutes a physical threat... and whether that even matters!
Then, it's time for long trip up Yodel Mountain. We begin by discussing the... conclusion? of the citizenship question and Andrew lets you know what's still to come in those cases. After that, it's time to discuss the House's resolution of criminal contempt against Bill Barr and Wilbur Ross, and what that likely means going forward. And while we're still on Yodel Mountain... hey, how about those Michael Cohen docs? Now that the other cases have been concluded, the judge ordered the Cohen search warrants to be released in (mostly) unredacted form, and you won't believe what they show.
After all that, it's time for the segment you've all been waiting for: WEAPONIZED TICKS. This is a segment so powerful, you won't believe it (and we won't spoil it here in the show notes)!
And then it's time for a new #T3BE involving the rules of evidence and an oral contract. Think you have what it takes to hang with Thomas? Play along online by sharing out this episode, using our new hashtag, #T3BE, and we will reward one winner with Never Ending Fame & Fortune (TM).
Appearances
Andrew was a guest on the latest episode of the Left at the Valley podcast discussing abortion, as well as the most recent episode of Mueller, She Wrote talking.. well, pretty much everything!
Show Notes & Links
- It's not too late! Click here to get tickets for the Opening Arguments LIVE SHOW, live in New York City on August 10th.
- If you want to read the Cohen docs yourself, they're linked here.
-Support us on Patreon at: patreon.com/law
-Follow us on Twitter: @Openargs
-Facebook: https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!
-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed! @oawiki
-And finally, remember that you can email us at openarguments@gmail.com!
SCOTUScast - Stokeling v. United States – Post-Decision Podcast
On January 15, 2019, the Supreme Court decided Stokeling v. United States, a case considering whether Florida’s robbery law, which requires victim resistance that is then overcome by the physical force of the offender, qualifies as a “violent felony” under the Armed Career Criminal Act (ACCA).
ACCA imposes a 15-year mandatory minimum prison sentence on any federal firearms offender who has three or more convictions for a “violent” felony or serious drug offense. In determining whether any given predicate felony conviction qualifies as “violent,” federal courts typically apply a “categorical” approach that looks only to the elements of the predicate offense and not the underlying facts. If the elements include “the use, attempted use, or threatened use of physical force against the person or property of another,” the conviction qualifies as a violent felony. The issue here was whether Stokeling’s Florida conviction for robbery categorically qualified as a violent felony for ACCA purposes. The U.S. Court of Appeals for the Eleventh Circuit held that it did.
By a vote of 5-4, the Supreme Court affirmed the judgment of the Eleventh Circuit. In an opinion delivered by Justice Thomas, the Supreme Court held that ACCA’s elements clause encompasses a robbery offense that, like Florida’s law, requires the criminal physically to overcome the victim’s resistance. Justice Thomas’s majority opinion was joined by Justices Breyer, Alito, Gorsuch, and Kavanaugh. Justice Sotomayor filed a dissenting opinion, in which the Chief Justice and Justices Ginsburg and Kagan joined.
To discuss the case, we have Luke Milligan, Professor of Law at the University of Louisville Brandeis School of Law.
ACCA imposes a 15-year mandatory minimum prison sentence on any federal firearms offender who has three or more convictions for a “violent” felony or serious drug offense. In determining whether any given predicate felony conviction qualifies as “violent,” federal courts typically apply a “categorical” approach that looks only to the elements of the predicate offense and not the underlying facts. If the elements include “the use, attempted use, or threatened use of physical force against the person or property of another,” the conviction qualifies as a violent felony. The issue here was whether Stokeling’s Florida conviction for robbery categorically qualified as a violent felony for ACCA purposes. The U.S. Court of Appeals for the Eleventh Circuit held that it did.
By a vote of 5-4, the Supreme Court affirmed the judgment of the Eleventh Circuit. In an opinion delivered by Justice Thomas, the Supreme Court held that ACCA’s elements clause encompasses a robbery offense that, like Florida’s law, requires the criminal physically to overcome the victim’s resistance. Justice Thomas’s majority opinion was joined by Justices Breyer, Alito, Gorsuch, and Kavanaugh. Justice Sotomayor filed a dissenting opinion, in which the Chief Justice and Justices Ginsburg and Kagan joined.
To discuss the case, we have Luke Milligan, Professor of Law at the University of Louisville Brandeis School of Law.