First Amendment – Opening Arguments

June 22, 2023June 22, 2023

OA765: Kathy Griffin SLAPPs Back At Being Sued in Faraway Places (feat. Ari Cohn)

Liz and Andrew welcome First Amendment lawyer Ari Cohn to help break down an important lawsuit involving Kathy Griffin, personal jurisdiction, and frivolous SLAPP lawsuits.

NOTES
Johnson v. Griffin Docket
https://www.courtlistener.com/docket/63264613/johnson-v-griffin/

Johnson v. Griffin Complaint
https://storage.courtlistener.com/recap/gov.uscourts.tnmd.90242/gov.uscourts.tnmd.90242.1.0.pdf

Trial Court Opinion
https://storage.courtlistener.com/recap/gov.uscourts.tnmd.90242/gov.uscourts.tnmd.90242.32.0.pdf

TechFreedom writeup
https://techfreedom.org/protect-internet-users-from-slapps-techfreedom-tells-sixth-circuit/

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February 23, 2023February 22, 2023

OA696: In Which James O’Keefe Pretends to Be A Journalist

Today, Liz and Andrew visit the strange world of James O’Keefe and his agitprop outfit, Project Veritas. Along the way we’ll learn about a bunch of cases, the law of prior restraint, and much, much more!

Notes
Project Veritas $22 million
https://projects.propublica.org/nonprofits/organizations/272894856

Federal Docket O’Keefe v. Twitter
https://www.courtlistener.com/docket/59899639/okeefe-iii-v-twitter-inc/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc

NY Appellate docs – O’Keefe v. Twitter
https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=OihBJQsmc7aFb4qIIdOKeA==

Liz ATL on O’Keefe-CNN
https://abovethelaw.com/2021/04/project-veritas-gonna-sue-twitter-for-defamatory-section-230-censorship-and-first-amendment-assault-or-something/

Project Veritas Docket (00813)
https://www.courtlistener.com/docket/61377333/parties/in-re-search-warrant-dated-november-5-2021/

Project Veritas Board of Directors
https://www.projectveritas.com/news/statement-from-the-project-veritas-board-of-directors/

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June 19, 2020June 20, 2020

OA396.5 BONUS Episode: Will You Be Able To Read John Bolton’s Book?

Today’s bonus episode takes a deep dive into the lawsuit brought by the Trump Administration to try and block the publication of John Bolton’s tell-all book. We break down the legal arguments and tell you whether you can look forward to getting that copy you ordered or not. (And seriously, you shouldn’t give money to John Bolton. He’s still a scumbag.)

We begin, however, with a quick Andrew Was Right! in that PG&E pleaded guilty to 84 counts of manslaughter; we told you PG&E was likely criminally liable way back in Episode 241!

Then, it’s time to break down the Justice in Policing Act of 2020 which just passed the House Judiciary Committee and is an unambiguously good bill. Listen and find out why!

After that, it’s time to dig in to both the Complaint and the motion for TRO filed by the United States on behalf of Donald Trump because John Bolton’s book made Trump feel bad. Do we really live in a society in which that happened? Yes. Do we live in one in which the court will grant injunctive relief? No. Listen and find out why.

No #T3BE in this bonus episode but there’s lots and lots of great content!

Patreon Bonuses

All patrons get a special behind-the-scenes deep dive into our amicus brief!

Appearances

None! But if you’d like to have either of us as a guest on your show, event, or in front of your group (virtually!), please drop us an email at openarguments@gmail.com.

Show Notes & Links

Although the plea agreement isn’t available, this Ars Technica article is a good timeline of PG&E’s criminal activities; we told you PG&E was likely criminally liable way back in Episode 241!
Click here to read the Justice in Policing Act of 2020 which just passed the House Judiciary Committee.
You can read the Supreme Court’s decision in Snepp v. U.S. 444 U.S. 507 (1980), the decision in the Pentagon Papers case, and also read the Complaint and the motion for TRO filed by the U.S. against Bolton. Injunctive relief is governed by Rule 65 of the Federal Rules of Civil Procedure.
Finally, check out the NSA’s pre-publication procedures.

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July 15, 2019July 16, 2019

OA297: Twitter, Emoluments & Labor Unions

Today’s episode features a grab-bag of stories that have been making the rounds, including the recent ruling out of the Second Circuit regarding Donald Trump’s use of Twitter, a setback for our buddy Brian Frosh’s efforts to enforce the Emoluments Clauses of the Constitution, and an update on the real-word consequences of the Janus v. AFSCME decision we decry so much around here.

We begin with the Second Circuit’s ruling in Knight First Amendment Inst. v. Trump, which established that a government official may convert a social media platform such as Twitter into a “limited use public forum,” from which he may not block users on the basis of the political content of their speech — i.e., viewpoint discrimination. Almost no one understands this decision; we’ll make sure you’re one of the lucky ones who do!

Then, it’s time for a breakdown of the 4th Circuit’s ruling in In re Trump, which directs the lower court to dismiss the lawsuit (and pending discovery) against Trump in the lawsuit brought by Maryland and D.C. alleging violations of the Foreign and Domestic Emoluments Clauses. Find out what this case is all about, whether the outcome is reasonable, and what’s next.

After that, it’s time for a quick look at the real-world implications of the Janus v. AFSCME decision allowing public-sector union employees to withhold a portion of their dues otherwise allocated for administrative duties under… some crazy right-wing theory that something something something, because Sam Alito knows diminishing the power of unions will hurt Democrats. But what else did that decision do? Listen and find out!

After all that, it’s time for the most controversial #TTTBE yet, in which we discover the answer to Thomas Takes The Bar Exam (regarding larceny and robbery) … or do we? You won’t want to miss this one!

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

Click here to read the Second Circuit’s ruling in Knight First Amendment Inst. v. Trump (the Twitter case), and here to check out the Fourth Circuit’s ruling in In Re Trump (the Emoluments case).
We first covered the emoluments case way back in Episode 78, and we interviewed Seth Barrett Tillman for his unique take in Episode 35 and Episode 36.
We learned that bad stuff was coming in the emoluments litigation in Episode 239 when the 4th Circuit issued a stay of all discovery; you can read that stay order here.
Finally, click here to read the LA Progressive article on Mark Janus and his conservative activism.

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-And finally, remember that you can email us at openarguments@gmail.com!

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July 8, 2019July 9, 2019

OA295: A Bladensburg Post-Mortem With Monica Miller

Today’s episode welcomes Monica Miller, counsel for the American Humanist Association, back to the show! Miller, as you know, was the lead counsel and presented the AHA’s argument before the Supreme Court in the American Legion v. American Humanist Ass’n case involving the 40-foot Latin cross on public property in Bladensburg, Maryland.

Andrew and Monica spend the entire show doing a deep dive into the decision, trying to figure out issues like (1) is the Lemon v. Kurtzman test really dead?; (2) how can we make sense of the court’s admonition to “respect the beliefs” of those who oppose taking down the cross?; (3) how can local activists proceed in light of this decision, and much, much more!

After a wide-ranging interview, it’s time for the answer to what Andrew has dubbed the Worst, Stupidest Bar Exam question — this one involving the “equitable conversion” doctrine in the sale of land. Did Thomas somehow manage to get a crazy, stupid, awful real property question correct? Listen and find out!

Appearances

Andrew was just a guest host on Episode 100 of the Skepticrat; check it out! And if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com.

Show Notes & Links

Don’t forget to vote for us in the Podcast Awards by clicking on that link (or heading to www.podcastawards.com), clicking the blue “>> Nominations Now Open <<” box, registering with your email, and then selecting us in the drop-down boxes for “People’s Choice” and “News and Politics.” Thank you!!
We broke down the Bladensburg cross case in Episode 256, and interviewed Monica Miller after oral arguments in Episode 274; go check them both out!
Finally, we broke down the details of the American Legion v. American Humanist Ass’n decision in Episode 290.

-Support us on Patreon at: patreon.com/law

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January 28, 2019January 29, 2019

OA248: The Cert(iorari) Show!

Today’s episode features a deep dive into a bunch of different issues around granting the writ of certiorari — “cert” — and some of the intricacies of how the Trump administration is trying to take advantage of the activist Supreme Court. Oh, and we also tackle a lawsuit that’s being grossly misrepresented by the media.

We begin with a discussion of the unique procedure of “cert before judgment.” What is it, how rare is it, and… why is the Trump administration trying to deploy it with alarming frequency? Listen and find out!

Then, we revisit litigation regarding the census that we first discussed back in Episode 232, and the administration’s effort to… get cert before judgment (of course).

Our main segment looks at something Andrew has never seen before: essentially, a four-justice dissent from a denial of certiorari. Why is this weird? Listen and find out as we dissect that very opinion in Kennedy v. Bremerton School Dist.

Next, we tackle a recent clickbaity headline involving a dishwasher allegedly showered with money for “skipping work to go to church.” Find out why the reporting on this case has been totally irresponsible and what really happened.

After all that, it’s time for the answer to Thomas Takes The Bar Exam #111, which involved a contract for defective water bottles. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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

“Cert before judgment” is governed by Supreme Court Rule 11.
We first discussed the census litigation back in Episode 232. You can read the motion to dismiss the writ of certiorari as improvidently granted, as well as the U.S. reply.
Click here to read the “statement” regarding the denial of cert in Kennedy v. Bremerton School Dist.
Click here to read the CBS news report on the Hilton lawsuit, and here to read the (even worse) reporting by the Friendly Atheist blog.
By contrast, you can read the actual Jean Pierre Hilton overtime lawsuit and the jury’s verdict. Oh, and here’s the EEOC’s statement limiting punitive damages in retaliation cases to just $300,000 (not $21 million).

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January 21, 2019January 22, 2019

OA246: Alex Jones & Sandy Hook

Today’s episode features a deep dive into the latest developments in the lawsuit brought by parents of the victims in the Sandy Hook Massacre against Alex Jones and Infowars for repeatedly portraying the school shooting as a hoax.

We begin, however, with a question regarding our views of the 2016 Presidential Election from a Trump supporter who’s hate-funding us. Hey, we’re good to our word!

After that, it’s time to dig in to the defamation lawsuit against Alex Jones. We tackle the minutiae — standing, jurisdiction, statute of limitations — and the big issues as well. If you want to know where defamation law is headed in this era of “fake news,” well, this is the show for you!

Then, it’s time for a quick visit to Yodel Mountain to check in on Rudy Giuliani and Michael Cohen. Because of course it is.

Finally, it’s time for the answer to Thomas Takes The Bar Exam #110, which involved a dentist being sued for malpractice and product liability. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Andrew was just a guest on Episode 138 of the Naked Mormonism podcast. Give it a listen! And 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

1. NYT articles on using third-party votes to hack elections.
The Secret Social Media Experiment in Alabama Senate Race Imitated Russian Tactics and how the Democrats Faked Online Push to Outlaw Alcohol in Alabama Race.
2. Politico story on the Justice Democrats plans to mount primaries against incumbent Democrats it deems too moderate with the apparent backing of Alexandria Ocasio-Cortez.
3: NYT on Alex Jones and Sandy Hook
4. Media Matters 7 minute, 13 second compilation on Alex Jones about Sandy Hook.
5. Media Matters timeline of Jones promoting conspiracy theories about Sandy Hook.
6. Yodel Mountain: Rudy Giuliani is not helping!
7. WSJ on Cohen and poll-rigging and Cohen’s response on the story: “As for the @WSJ article on poll rigging, what I did was at the direction of and for the sole benefit of @realDonaldTrump @POTUS. I truly regret my blind loyalty to a man who doesn’t deserve it.”
8. The GLORIOUS “Women for Cohen” Twitter account: Because some things on twitter make you ask, “Why?”.

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For show-related questions, check out the Opening Arguments Wiki

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November 19, 2018November 20, 2018

OA228: Jim Acosta, Sovereign Immunity & More!

Today’s Deep Dive Tuesday tackles the motion for preliminary injunction and underlying lawsuit brought by CNN and Jim Acosta against the Trump White House for revoking his press credentials. You’ll get to hear about how Andrew Was Right… last Thursday (!) As a bonus, you’ll get a listener question that segues into a mini-deep-dive on the “sovereign immunity” doctrine!

We begin, however, with some initial information about the still-sketchy situation surrounding Michael Avenatti and his arrest for domestic violence.

After that, it’s time to traipse through the CNN/Acosta lawsuit, which is still relevant today (even though the PI was, as Andrew predicted, granted).

Then, it’s time to answer a really interesting listener question about Oklahoma’s new anti-vax governor that winds up with a discussion of the sovereign immunity doctrine. It’s a rabbit trail you’ll want to go down!

Finally, we end with the answer to Thomas Takes The Bar Exam #101 on SPACE LAW. Find out Lando’s (and Thomas’s!) fate! Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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

On Avenatti, you can see the “SurefireIntel” tweet here.
You can read the Acosta/CNN underlying complaint, the accompanying memorandum of law supporting the Acosta TRO motion, and the Trump response.

Support us on Patreon at: patreon.com/law

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com

Download Link

October 1, 2018October 3, 2018

OA214: Free Speech, NAFTA & Trump’s Trans Ban

Today’s Kavanaugh-free episode is a classic, three-story, Deep Dive Tuesday into (1) a recent free speech case involving protesters at a Trump rally; (2) the status of Trump’s efforts to ban trans service personnel from the military; and (3) whether Trump can unilaterally abrogate NAFTA. Strap in — it’s going to be a long ride!

We begin with an examination of Nwanguma v. Trump at both the district court level and the recent decision from the 6th Circuit. Should protesters be allowed to sue Trump and his campaign staff for incitement to riot? Listen and find out!

After that, we examine the status of Trump’s latest (Mar. 23, 2018) order on trans personnel in the military. Is there… good news out of the Ninth Circuit??!?

Then, we check out the history of presidential withdrawals from treaty obligations, a case involving a former Presidential candidate (Barry Goldwater) versus a sitting President (Jimmy Carter), and Donald Trump’s constant claims that he can abrogate the North American Free Trade Agreement. Is any of this true? The answer almost certainly will surprise you!

Finally, we end with Thomas Takes the Bar Exam Question #95 regarding the Congressional delegation of rule-making authority to the Forest Service. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Thomas will be at QED in Manchester, UK on Oct. 13 and 14.

Show Notes & Links