Attorney @ Blog: Recent Comments

Comment on Free Legal Advice

Anderson — Wed, 10 Mar 2010 23:11:11 GMT

I always assumed those aliases were filled in on a form that pro se prisoners use ....

Comment on I've Got a Bad Feeling About This

Bardwell — Wed, 10 Mar 2010 16:10:33 GMT

Maybe, but two thoughts about that, and then I'll shut up.

No. 1, I'm unaware of any case in which the Court has prescribed a time-place-manner restriction. Typically, of course, they simply field a time-place-manner restriction passed by a state or municipality and pass on its constitutionality. So what you're proposing would require the Court to engage in even greater jurisprudential gymnastics than it already faces.

No. 2, this is all academic, because this case does not arise within the context of a time-place-manner restriction. This was a civil lawsuit brought by the troop's family members for defamation, intentional infliction of emotional distress, etc. We're set back up against the old N.Y. Times v. Sullivan-ish question of whether and to what degree tort liability is cut off by the First Amendment.

Comment on I've Got a Bad Feeling About This

Anderson — Wed, 10 Mar 2010 01:12:12 GMT

Will, I think the Court can draw the line to avoid that problem. The funeral by definition includes invited guests and is not a public forum. Wherever the "public forum" is, it's some distance from the ceremony, and the Court could rule that *no* group can hold an audible protest *during* the funeral. There are plenty of ways to express oneself in the year 2010 w/out yelling at some mourners.

Again I may not appreciate the particular facts of the case.

Comment on I've Got a Bad Feeling About This

Bardwell — Tue, 09 Mar 2010 16:13:52 GMT

Good points all around.

Jim, I think Justin's right on Roe v. Wade. It's an interesting thought, but ultimately, Roe is about physical autonomy. Terminiello v. Chicago makes clear that the First Amendment is not concerned with hurt feelings.

Anderson, the problem with a time/place/manner restriction is that they have to be content-neutral. In other words, ALL speech would have to be cut off...Phelps' AND the victims' families. That means that Phelps lunatic can't wear a flag around her waist, but it also means that the family wouldn't be able to fly it at the funeral, either. I'm not comfortable with speech infringements in general, but that really rubs me the wrong way.

Comment on I've Got a Bad Feeling About This

Justin — Tue, 09 Mar 2010 13:13:08 GMT

I'm very intrigued at this case. I hate Phelps and his clan. That's a given, but, like you said, it really is going to stretch the intellectual and legal honesty of the Court.

@Jim

Interesting take, but do you honestly think this Court is going to use Roe v. Wade as "good law." I know four members of the Court don't buy Roe v. Wade, so using it to create a desired outcome would give ammunition to the people in favor of Roe v. Wade. I just don't see the strict constructionist block of SCOTUS giving the pro-choice folks ammunition like a affirmance of the principles outlined by the original Roe v. Wade court.

Plus, if I remember correctly, which I probably don't cause it's been awhile, I believe Roe v. Wade hinged on bodily autonomy and privacy. Maybe it's nuanced, who knows...

Comment on I've Got a Bad Feeling About This

Anderson — Tue, 09 Mar 2010 12:27:01 GMT

I'll have to read up on the issues. A time/place/manner restriction on funeral protests in general seems reasonable -- why should anyone have to bury their loved one with a crowd yelling "he's going to burn in hell with the fags!" or whatever?

If the restrictions were targeted only to soldiers' funerals, however, that would sound fishy.

Comment on I've Got a Bad Feeling About This

Jim Galloway — Mon, 08 Mar 2010 21:24:16 GMT

I've never read Rowe v Wade, but someone told me it's based on the right of privacy implied in the Constitution. If there is such a right (and surely women have such rights) then it's hard to see how folks at a funeral wouldn't have that same right to be left alone.

Comment on MSSC Apparently Wants More Detailed Proffers

Anderson — Fri, 05 Mar 2010 23:20:00 GMT

I dunno jack about criminal cases, but had this been a civil case, there would have been a written summary by Dr. Katz of his opinions and grounds therefor, which presumably would have made a fine proffer.

Perhaps such writings, instead of putting experts on the stand, would suffice for a proffer?

Comment on MCJP v. DeLaugher? Make That MCJP v. MSSC

Bardwell — Fri, 05 Mar 2010 02:30:42 GMT

Right you are, regarding my flub at the finish line.

Comment on MCJP v. DeLaugher? Make That MCJP v. MSSC

Anderson — Thu, 04 Mar 2010 23:42:34 GMT

Sorry, your last sentence seems to go astray. The quote says that the idea the MSSC *lacks* such power borders on the absurd.

The majority's rightness or wrongness hinges on Section 175, which says that convicted "public officers" "shall" be removed. Assuming a judge is a public officer, I suppose that works, even if it does make part of 177A surplusage.