All posts by lawpod

OA97: What Can Your Employer Fire You For?

Today’s show deals with a number of issues that all surround what your employer can (and cannot) fire you for.

First, we begin by revisiting the “Google manifesto” topic from Opening Arguments Episode #94 as Thomas and Andrew respond to some hate mail from a listener who no longer wants to listen to the show after that episode.  Does he have a point?  Listen and find out.

Next, the guys break down whether employees can discuss their salaries with co-workers on the job.

After that, Andrew and Thomas answer a question from Patron April who wants to know how much an employer can control your social media use.

Finally, we end with the answer to Thomas Take the Bar Exam Question #37 regarding installment contracts.  And don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances

None.  Have us on your show!

Show Notes & Links

  1. We first discussed the “Google manifesto” during Opening Arguments Episode #94.
  2. You can read that Google manifesto referred to during that episode as well.
  3. The National Labor Relations Act (NLRA) of 1935 can be found at 29 U.S.C. § 151 et seq.
  4. This is the text of President Obama’s 2014 EO directing non-retaliation against government employees who discuss their compensation.
  5. This is the NLRB’s collection of findings regarding social media.
  6. Here is a link to Three D, LLC v. National Labor Relations Board, the Second Circuit case referred to during the “C” segment.
  7. Here is a link to Rule 801 of the Federal Rules of Evidence, which explains the answer to #TTTBE.

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OA96: Understanding Charlottesville

Today’s special episode devotes all three segments to the tragedy in Charlottesville, VA.

First, the guys answer a question regarding the police declaration that the Unite the Right rally as an “unlawful gathering” right before the scheduled start time, illustrating the principles of time, place, and manner restrictions.

During the main segment, Andrew breaks down the law of hate speech and also explains the charges filed against the individual who drove his car into the protestors.

After that, Andrew answers another listener question, this one regarding Texas A&M’s decision to cancel a “White Lives Matter” rally in light of the tragedy in Charlottesville.

Finally, we end with an all-new Thomas Takes the Bar Exam Question #37 about the failure to timely pay on an installment contract.  Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

Andrew was a guest on Episode #15 of the Right to Reason podcast, arguing politics and whether your vote can be a message.

Show Notes & Links

  1. Our discussion with Travis Wester regarding the Berkeley College Republicans lawsuit took place back in Opening Arguments Episode #73.  You might want to re-listen!
  2. This is a link to the Vox timeline of the events in Charlottesville.
  3. Here is Washington Post reporter Joe Heim’s Twitter feed, showing a picture of the heavily armed “citizens” attending the rally.
  4. This is the preliminary injunction ruling on the motion filed by Jason Kessler, organizer of the “Unite the Right” rally.
  5. The key case setting forth the principles of time, place & manner restrictions is Ward v. Rock Against Racism 491 U.S. 781 (1989).
  6. The “fire in a crowded theater” case is Schenck v. U.S., 249 U.S. 47 (1919) — give it a read and you’ll understand (and appreciate!) why it is no longer good law.
  7. The modern rule on hate speech stems from Brandenberg v. Ohio, 395 U.S. 444 (1969).
  8. This is the DOJ’s list of hate crimes laws.
  9. Virginia’s second-degree murder statute is Code of VA § 18.2-32.
  10. You can read Texas A&M University’s statement cancelling the “White Lives Matter” protest scheduled for Sept. 11 here.
  11. You can also check out Andrew’s rockin’ 1980s case, Sable Communications v. FCC, 492 U.S. 115 (1989).

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OA95: The Great SIO Crossover & We Defend Milo!

Today’s show is a companion to Episode 67 of Serious Inquiries Only regarding the Violent Crime Control and Law Enforcement Act of 1994.

We begin, however, with a question about progressivity and fines from listener Noah Lugeons.

In the main segment, Andrew tells the story of how Michael Dukakis, Slayer, and race-baiting by Newt Gingrich led to the worst aspects of the omnibus crime bill.

Next, the guys cover perhaps their most anticipated “Breakin’ Down the Law” ever:  defending Milo Yiannopoulos, along with the ACLU.

Finally, we end with the answer to Thomas Take the Bar Exam Question #36 regarding defamation.  And don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances

Andrew was a guest on Episode #15 of the Right to Reason podcast, arguing politics and whether your vote can be a message.

Show Notes & Links

  1. You should be listening to Serious Inquiries Only.
  2. This is the text of  the Violent Crime Control and Law Enforcement Act of 1994.
  3. This is the longitudinal Gallup study showing the last 80 years of support for the death penalty.
  4. And here is the draft of the lawsuit filed by the ACLU against WMATA on behalf of Milo, PETA, and a family planning company.

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OA94: Geoff Blackwell, Trump’s Anti-Trans Tweets & the Google Manifesto

In today’s episode, we interview Geoffrey Blackwell from the American Atheists Legal Center.

First, the guys break down the recent lawsuit filed by two LGBTQ advocacy organizations challenging President Trump’s tweets regarding transgender service in the military.

During the main segment, we ask Geoff what the AALC does, what kinds of cases are on his plate, and whether Trinity Lutheran v. Comer is as bad as we think it is.

After that, Andrew answers a question from listener Thomas S. regarding Google’s firing of an employee who wrote a bizarre, 10-page anti-woman manifesto.

Finally, we end with an all-new Thomas Takes the Bar Exam Question #36 about defamation.  Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

None!  Have us on your show!

Show Notes & Links

  1. Give Geoff’s podcast, All Too Common Law, a listen!
  2. Here is a link to the Doe v. Trump lawsuit filed Aug. 9, 2017 challenging Trump’s tweets.
  3. This is the Slate piece calling the lawsuit “ingenious”; Andrew disagrees.
  4. And this is the (weird) Mattis internal DOD memo about “ethics” to which the guys refer during the show.
  5. Finally, this is the Google manifesto referred to during the “C” segment of the show.

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OA93: Affirmative Action (& The Best Legal Brief Ever Written)

Today’s show is a deep dive into the current Constitutional status of affirmative action in higher education.

We begin, however, with a question about Donald Trump from conservative listener Sage Scott.  Is it really a big deal to just listen to the Russians?  Couldn’t you just pay them if their stuff turns out to be useful?  No.  The answer is no.

In the main segment, the guys outline the current state of the law of affirmative action in higher education as set forth in Fisher v. University of Texas-Austin, 136 S.Ct. 1398 (2016) (“Fisher II“), and what that means in light of the Trump Administration’s recent comments that it plans to focus DOJ resources on challenging college admission programs that (supposedly) disadvantage white people.

Next, in a follow-up to the John Oliver defamation lawsuit we discussed in Episode 84, “Closed Arguments” returns with a dissection of the best legal brief ever written, an amicus curiae brief filed by Jamie Lynn Crofts of the ACLU of West Virginia in support of Oliver.  Andrew tries to contain his jealousy.

Finally, we end with the answer to Thomas Take the Bar Exam Question #35 regarding a physician’s duty regarding releasing patients who are a danger to themselves or others.  And don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances

Andrew had a busy week!  He was on the follow shows:

Show Notes & Links

  1. Here is a link to 52 U.S.C. § 30121, which you can read for yourself plainly prohibits virtually all contact between foreign nationals and any candidate for federal, state, or even local office.
  2. You can read the August 1, 2017 New York Times story on how the Trump Administration plans to challenge affirmative action in college admissions here.
  3. The most recent Supreme court case on affirmative action in higher education is Fisher v. University of Texas-Austin, 136 S.Ct. 1398 (2016) (“Fisher II“); Andrew also referenced Fisher I, 133 S.Ct. 2411 (2013).
  4. We first discussed Bob Murray’s defamation lawsuit against John Oliver in Episode #84, and you can read the ACLU’s outstanding amicus brief here.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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OA92: The Unfortunate Application of Statutes of Limitation and Davino Watson

In today’s episode, Andrew reluctantly — but definitively — opines that the Second Circuit got the law right in dismissing out the claims of Davino Watson, who argued that he was falsely imprisoned by the U.S. government for 3 1/2 years.

In the pre-show segment, Andrew briefly introduces new FBI Director Christopher Wray as a good nominee by Donald Trump.

After that, the guys tackle a follow-up question to Episode #91; namely, isn’t “sexual orientation” already a protected class?  Doesn’t the law just prohibit discrimination in general?  (No.)

In our main segment, Andrew explains why statutes of limitation are necessary and why the Second Circuit got it right in dismissing out Watson’s false imprisonment claim even though the circumstances are awful.

Next, the guys break down Rod Wheeler’s defamation lawsuit against Fox News.  Why is this part of Yodel Mountain?  Listen and find out!

Finally, we end with an all-new (and fiendishly hard!) Thomas Takes the Bar Exam Question #35 about a hospital’s duty to third parties when releasing a patient with homicidal ideation.  Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

Andrew had a busy week!  He was on the follow shows:

Show Notes & Links

  1. You can listen to the original discussion of anti-discrimination in employment in Episode #91, as well as read the text of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
  2. This is the trial court’s decision in Watson v. U.S. (EDNY 2016), as well as the Second Circuit’s decision from Sept. 1, 2017.
  3. Here is the Complaint filed by Rod Wheeler against Fox News.

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OA91: More Sex (& Also Asset Forfeiture)

For today’s show, we revisit the topic first discussed in Opening Arguments Episode #60, namely, whether Title VII of the Civil Rights Act of 1964’s prohibition of discrimination on the basis of “sex” implicitly extends to prohibiting discrimination on the basis of “sexual orientation” as well.

First, however, fan favorite “Breakin’ Down the Law” returns with an explanation of civil and criminal asset forfeiture and a new policy announced by Attorney General (for now) Jeff Sessions.

In the main segment, we contrast the amicus brief filed by the U.S. Department of Justice in Zarda v. Altitude Express with the 7th Circuit’s opinion in Hively v. Ivy Tech Community College of Indiana.  Find out why your government just submitted a brief arguing that employers have the right to hang a sign that says “no homosexuals need apply.”

After that, Patron Jordan Keith explains a bit more about the TOR browser as a follow-up to Opening Arguments Episode #88‘s discussion of U.S. v. Matish.

Finally, we end with the answer to Thomas Take the Bar Exam Question #34 regarding the rape shield law, FRE 412.  Listen and find out if Thomas makes it back to .500!   And don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Andrew was just a guest on Episode 15 of Molly Unmormon’s “Doubting Dogma” podcast — give it a listen!

Show Notes & Links

  1. The relevant statutes for asset forfeiture are 18 U.S.C. § 983 and 21 U.S.C. § 853, and you can also read the 2015 Holder memorandum prohibiting “adoptive forfeitures” by clicking here.
  2. We first discussed Hively v. Ivy Tech Community College of Indiana in Episode #60.
  3. And here is the link to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
  4. Here is a link to the U.S.’s amicus curiae brief in Zarda v. Altitude Express.
  5. This is the text of the opinion in U.S. v. Matishwhich we first discussed in Episode #88.
  6. And finally, you can read Rule 412 of the Federal Rules of Evidence by clicking here.

Support us on Patreon at:  patreon.com/law

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OA90: Pardon Me? Yes, Donald Trump Can Pardon Himself

In today’s episode, Andrew definitively opines that the Presidential pardon power includes the right to self-pardon.

We begin, however, with “Andrew Was Wrong.”  This time, he was wrong about Thor Heyerdahl, but right about the fate of Ken Ham’s Ark Encounter.

In our main segment, the guys analyze the recent claims by Laurence Tribe, Richard Painter, and Norm Eisen that Donald Trump does not have the power to pardon himself and find it less than persuasive.

Next, Andrew briefly discusses the legality of Trump’s tweet regarding transgender individuals serving in the military.

Finally, we end with an all-new Thomas Takes the Bar Exam Question #34 about introducing a rape victim’s sexual history into evidence.  Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

Andrew’s talk before the Lehigh Valley Humanists is now up on YouTube.

Show Notes & Links

  1. We first discussed AIG’s Ark Encounter land sale in Opening Arguments episode #88.
  2. This is the press release from Answers in Genesis regarding their Ark Encounter fraud, and here is one news account of how the City suspended the tax breaks for the Ark Encounter and the subsequent revocation of the sale.
  3. This is the Tribe/Painter/Eisen article in the Washington Post arguing that Trump doesn’t have the power to pardon himself.
  4. Here is a link to the 1974 Lawton memo.
  5. This is a link to the Autobiography of Charles Biddle; you’ll want to turn to page 306-08 for the Aaron Burr story.
  6. This is “The Law as King and the King as Law” from the Hastings Law Quarterly 20:7.
  7. Schick v. Reed, 419 U.S. 256 (1974).
  8. Chisholm v. Georgia, 2 U.S. 419 (1793).
  9. Here is a link to Gov. Stevens’s self-pardon in 1856.
  10. This is a link to Mayor James G. Woodward’s self-pardon for public drunkenness in 1901.
  11. Finally, this is the Newsweek article referenced on the show that discusses self-pardons.

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OA89: The “W” is Silent – Powlitics & Mwedia with Northpod Law UK

Today’s show features an in-depth interview with Kirstin Beswick and Ben Knight of NorthPod Law UK, often referred to (by us) as the “Opening Arguments of England.”  Join all four of us as we discuss media, politics, Brexit, and maybe — just maybe — reasons for optimism about the future of politics.

Due to the length of the interview, we don’t have any other segments, but we do end, as always, with the answer to Thomas Take the Bar Exam Question #33 regarding reasonable suspicion to search an auto after a traffic stop.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

None!  Have us on your show!

Show Notes & Links

  1. You can check out NorthPod UK’s blog by clicking here.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

Facebook:  https://www.facebook.com/openargs/

And email us at openarguments@gmail.com

 

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OA88: Noah’s Ark & How Private Is The Stuff You Do On Your Computer?

In today’s episode, we discuss a recent court case involving an individual’s expectation of privacy while browsing the Internet.

We begin, however, with the question so many of our listeners wanted to know:  Is it legal for Ken Ham to sell his Ark Encounter theme park to his own non-profit ministry in a presumed effort to evade taxes?

In our main segment, the guys break down a recent court case involving search & seizure over the internet.  Do you have an expectation of privacy for the stuff you do on your computer?  The answer will surprise you.

Next, Yodel Mountain returns with an in-depth examination of what it means to be a “thing of value.”

Finally, we end with an all-new Thomas Takes the Bar Exam Question #33 about search and seizure, coincidentally enough.   Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

None!  Schedule us to appear on your show!

Show Notes & Links

  1.  Here is the article from the Lexington (KY) Herald-Leader on the sale of the Ark Park land.
  2. This is a link to the U.S. v. Matish decision discussed during the main segment.
  3. The relevant election law statute is 52 U.S.C. § 30121, which prohibits a foreign national from giving any “thing of value” to a candidate for public office.
  4. The two cases Andrew discussed interpreting that phrase “thing of value” are U.S. v. Schwartz, 763 F. 2d 1054 (9th Cir. 1985) and U.S. v. Sun-Diamond Growers of California, 941 F. Supp. 1262 (D.D.C. 1996).

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