Category Archives: SCOTUS

Justin Pidot: “Tie Votes in the Supreme Court”

In light of Justice Scalia’s recent passing, check out my University of Denver colleague Justin Pidot‘s brand new paper on SSRN, “Tie Votes in the Supreme Court.” Justin gives us some empirical data on 4-4 splits in the Supreme Court and argues that the court should dismiss cases as improvidently granted if the result would be a tie.

The RightsCast, Episode 8: Anthony Kreis, “The History of the Freedom to Marry”

I had a wonderful conversation this week with Anthony Kreis of the University of Georgia about his work on the history of the freedom to marry. His most recent article talks about the parallels and contrasts between the move toward interracial marriage legality and same-sex marriage legality. We also chatted about marriage equality before the Supreme Court and what’s next for LGBT rights — made even more pertinent by Indiana’s recent bill allowing businesses to discriminate against LGBT people.

The Reappropriate Podcast Episode 12: Free Speech and Online Threats

I really enjoyed my guest stint on the Reappropriate video podcast, hosted by Jenn of Reappropriate.com. You can view the podcast on YouTube to hear my thoughts on the Supreme Court, judges and technology, free speech, online threats, subjective intent, the reasonable person, rap music, and much more.

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Argument Recap: Elonis v. United States

The following post originally appeared on the blog “Hamilton and Griffin on Rights.” The owners of the blog have kindly allowed me to cross-post it here.

The year 2014 has raised many issues relating to offensive, harassing, and threatening Internet speech. In January, columnist Amanda Hess wrote a piece called “Why Women Aren’t Welcome on the Internet,” sparking a wide-ranging and still-ongoing conversation about online speech. The debate over Internet speech has extended to other areas. New York’s highest court considered and ultimately rejected a state cyberbullying statute as overbroad, in violation of the First Amendment. More than twenty states passed or are considering statutes criminalizing revenge porn. Meanwhile, intimate photos of celebrities were stolen, downloaded, and shared over and over. GamerGate led to intense online harassment of women involved in the video game industry, with serious consequences in the offline world—after receiving graphic anonymous threats, pop culture commentator Anita Sarkeesian cancelled a talk, while video game developer Brianna Wu had to leave her home for several days.

It’s fitting, then, that the Supreme Court should hear argument today in Elonis v United States, a case involving involving arguably threatening posts on Facebook. The Supreme Court has held that “true threats” may be criminalized consistent with the First Amendment, although it has not defined the term “true threats” with any precision. The issue Elonis presents is whether a person can be convicted of making true threats if a reasonable person would have perceived the statements as threatening, or whether, as Elonis argues, the government must also prove that the speaker subjectively intended to make a threat. Continue reading

New Huffington Post Column on Marriage Equality: “Lost Rights Cause Harm Each Day”

My new Huffington Post column on the Supreme Court’s decision not to hear five same-sex marriage cases is up. I explain why Justice Ginsburg is wrong, and there is a “need to rush” to reach full marriage equality in all fifty states.

From my piece:

When the Supreme Court stayed the decision striking down the ban on same-sex marriage in Utah, over 1300 same-sex couples had already married in Utah. These already-married couples litigated to have their rights recognized, and Judge Dale Kimball held that those rights should receive recognition. “Legal uncertainties and lost rights cause harm each day,” he wrote.

It’s also worth thinking about what might happen if a Republican presidential candidate wins in 2016. I am not sure that those who think there is “no rush” now will still agree if that comes to pass.

“Gender Discrimination and Same-Sex Marriage”: forthcoming in Columbia Law Review Sidebar

I’ve coauthored a short essay with my University of Denver Sturm College of Law colleague Ian Farrell — “Gender Discrimination and Same-Sex Marriage” — and am now pleased to share that the piece will be forthcoming in the Columbia Law Review Sidebar. (For non-legal/non-academic folks, the Sidebar is the online companion to the traditional print format of the Columbia Law Review.) I’ll have more details about the timing of publication soon.

I’ve previously written about the gender diversity argument (or do I mean “argument”) against same-sex marriage here on nancyleong.com and on Prawfsblawg.

Federalist Society Review of 2013-2014 Supreme Court Term

I’ll be speaking today at an event sponsored by the the Colorado chapter of the Federalist Society, which reviews the Supreme Court’s 2013-2014 term. My co-panelists will be Judge Tim Tymkovich of the Tenth Circuit, Colorado Solicitor General Dan Domenico, Richard Westfall, and Rob Natelson. It should be a really interesting conversation. I’m particularly looking forward to discussing United States v. Riley, in which I was pleased to sign the law professors’ amicus brief that the Supreme Court ultimately cited in its unanimous opinion holding that  that police cannot perform a warrantless search of a cell phone as a search incident to arrest absent some other exception to the warrant requirement.

More information about the event, which takes place over lunch today, is available here.