Texas Attorney General Joins 19 States Asking Supreme Court to Uphold Pro-Life Law

Texas Attorney General Ken Paxton today joined a 19-state coalition supporting Indiana’s appeal to the Supreme Court in defense of its parental consent statute for minors who are seeking an abortion. His amicus (“friend-of-the-court” brief) was filed in the United States Supreme Court after the Chicago-based Court of Appeals for the Seventh Circuit blocked a law requiring parents to receive notice when a judge approves a request for a judicial bypass from an unemancipated minor so that she may have an abortion without parental consent.

“As the Supreme Court has previously recognized, nurturing his or her child is ‘high duty’ of any parent,” AG Paxton said. “Never is this parental duty of custody, care, and guidance more necessary than when minors make the irrevocable, life-altering decision to have an abortion.”

Box v. Planned Parenthood of Indiana and Kentucky Inc. arose out of a 2017 Indiana law, which (as Courthouse News summarized) requires “a judge to notify the parents of an unemancipated minor if the judge approves her petition for a judicial bypass and authorizes her abortion.” The law was enjoined at the district court, and the Seventh Circuit Court of Appeals upheld the injunction.

However, when the Supreme Court issued its ruling in June Medical Services LLC v. Russo last summer, it vacated the Seventh Circuit ruling and ordered that court to revisit the suit. A three-judge Seventh  Circuit panel upheld the injunction last March, and as a result, Indiana is now appealing to the Supreme Court to hear the case since the circuit courts of appeal have split on the legality of parental notification.

Keep up with the latest pro-life news and information on Twitter.

Paxton’s amicus begins

The Seventh Circuit has left intact an injunction against an Indiana statute requiring that the parents of an unemancipated minor receive notice when their child decides to have an abortion without parental consent. And the court did so without really considering the compelling interest that States have in encouraging parental involvement in these kinds of life-altering decisions. In other words, the court disregarded the important interest that States have in protecting minors’ welfare—an interest that this Court has repeatedly affirmed.

The amici States seek to protect the most vulnerable members of society—children—as they face consequential decisions like whether to have an abortion.

AG Paxton highlights a crucial distinction: “There is no question that States have a greater ability to regulate abortion access for minors than they do for adults.”

That is why this Court has upheld parental-consent statutes for minors that might not survive scrutiny if applied to adults. Yet, in the decision below, the Seventh Circuit affirmed an injunction against Indiana’s parental-notice statute without meaningfully acknowledging the distinction between laws affecting minors and laws affecting adults. By doing so, the Seventh Circuit ignored longstanding precedent from this Court that firmly establishes the States’ heightened interest in protecting the well-being of children.

In a press release, AG Paxton explained

“Texans traditionally respect and uphold parents’ right to raise their children as they see fit, and the Seventh Circuit has repeatedly upheld these ideals in previous opinions but failed to do so here. The Supreme Court now has a chance to restore parental liberty and the wellbeing of minors while giving parents room to teach and guide their children.”





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UK High Court to review law allowing abortion of babies with Down syndrome until birth | News

LONDON, May 5, 2021 (LifeSiteNews) — This summer, the U.K.’s High Court will hear a challenge to a law permitting the abortion of babies with Down syndrome until birth.

Down syndrome activist Heidi Crowter, 25, and Máire Lea-Wilson, 32, the mother of two boys, one with Down syndrome, filed a challenge to the Abortion Act 1967 last year, arguing that its provisions discriminate against disabled people. The application was granted in October, and the hearing will take place from July 6 until July 7.

Currently the British Abortion Act 1967 sets a 24-week limit on the age at which an unborn baby can be killed, unless “there is a substantial risk that if the child were born it [sic] would suffer from such physical or mental abnormalities as to be seriously handicapped.” In this case, the child can be killed until he or she is literally moving down the birth canal.

Crowter, married last July to James Carter, who also has Down syndrome, has been using her own life to illustrate that a life with Down syndrome is worth living. She is also using her “Living the Dream” social media project to fight for the right of children with the condition to live their own.

“Basically, the court case is that a baby without Down syndrome can be aborted up to 24 weeks, but a baby like me and James can be aborted up to birth, which is discrimination” Crowter told the BBC this week.

“And the reason it’s important to both me and James is because we are [both] someone with Down syndrome, and we want to say to the world that we have a good quality of life.”

On her Facebook page, Crowter remarked that she was the first person with Down syndrome to take the British government to court to challenge them on “their perspective of people with Down’s syndrome.”

Lea-Wilson’s son Aidan, who is now 23-months-old, was not diagnosed with Down syndrome until the 34th week of gestation; his mother was offered an abortion three times before he was born, two weeks later.

“I have two sons that I love and value equally, but the law does not value them equally,” Lea-Wilson told the BBC. “My motivation for taking this joint legal action with Heidi has always been simple. As a mother, I will do all that I can to ensure the fair and equitable treatment of my son, Aidan.”

Other women in Britain have reported feeling pressured by medical professionals to agree to abortions after their children have been diagnosed with Down syndrome or other disabilities.

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Crowter’s mother Liz told the U.K.’s Channel 5 News that sometimes doctors tell mothers of unborn babies diagnosed with Down syndrome that they have already booked them in for an abortion. She recommends that any parents whose child is diagnosed with Down syndrome do research to learn the realities about the condition, including reaching out to other parents.

According to the U.K.’s Right to Life association, there were 3,183 “disability-selective abortions” in England and Wales in 2019, and 656 of these infants had Down syndrome.

Heidi Crowter expressed deep satisfaction on her fundraising page about the court date.

“I feel so excited to get a court case date because I feel like there is finally a chance to fully achieve Down’s syndrome equality in this land and for our voices to be heard,” she wrote. “Thank you so much for your support so far; we are really, really grateful. We hope you are as excited as we are that we finally have a date. Would you please consider helping us to cross the finish line to the £100,000?”

To help Crowter in her campaign for the lives of disabled babies, please click HERE.





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Federal court criminalizes handing out pro-life leaflets at abortion centers | News

NEW YORK, May 5, 2021 (LifeSiteNews) — A court ruling in March criminalized the distribution of pro-life leaflets at abortion centers and restricted interactions between pro-life activists and patients or “escorts,” calling them a “physical obstruction.”

WND reported that a panel of New York judges has restricted pro-life advocacy in front of abortion clinics under the federal FACE act. Originally, the FACE act merely prohibited blocking abortion facility doorways. On March 10, the U.S. Court of Appeals for the Second Circuit ruled to expand the act to include any “physical obstruction.”

According to the Thomas More Society, a law firm that handles pro-life cases, including pro-life activist David Daleiden’s case, this new expansion of the act forbids “approaching patients and attempting to hand them a leaflet” on the grounds that this might cause them to “deviate slightly from their path” and therefore be delayed by “one second.”

Furthermore, it is forbidden to inadvertently cause a patient to have to walk around a life-advocate as a result of the sidewalk leading to the entryway being cramped. Additionally, the act of “delivering a leaflet to the driver of a vehicle who has voluntarily stopped the car and rolled down the window to communicate with the life-advocate” is considered criminal.

Finally, a conversation with a patient or an ‘escort’ is considered “harassment” and a “use of force” if the patient even implicitly shows they do not “welcome the message.”

In response, the Thomas More Society started a petition to overturn the ruling. The decision “represents the broadest restriction of First Amendment expression ever imposed under the Freedom of Access to Clinic Entrances Act,” the petition states, “and threatens vast amounts of core First Amendment activity.”

“If allowed to stand,” the petition continues, “the panel opinion will criminalize a wide swath of protected speech and expression, including holding signs on public sidewalks, attempting to distribute leaflets, and engaging in consensual conversations with vehicle passengers.”

This recent ruling is a continuation of the attacks against pro-life groups in New York. In 2017, New York Attorney General Eric Schneiderman labeled peaceful pro-life advocacy as “harassment” and filed a lawsuit against Pastor Griepp and nine members of his congregation.

Schneiderman petitioned the government to restrict their advocacy under the FACE act. However, Thomas More Society Senior Counsel Stephen Crampton explained, “The FACE Act specifically exempts constitutionally protected advocacy from its prohibitions.” Therefore, Schneiderman’s request was denied.

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The Thomas More Society continued to defend the pro-life group throughout their legal battles. In one instance, a witness fabricated a story of being harassed by members of the church, but her story was proven to be false.

The Thomas More Society will continue to defend the right to legally advocate in front of abortion clinics. They are currently appealing to the United States Court of Appeals for the Second Circuit to overturn this act.





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Supreme Court Seems Unlikely to Support Reduced Sentences for Crack Offenders

In its latest foray into the war on drugs, the Supreme Court on Tuesday seemed ready to say that low-level crack cocaine offenders do not qualify for reduced sentences under a bipartisan criminal justice reform law.

The 2018 First Step Act made some drug offenders eligible for resentencing, but four federal courts and the Trump administration said its benefits don’t extend to people convicted for possessing small quantities of crack cocaine. Tarahrick Terry, the defendant in Tuesday’s case, was convicted for possessing a few grams of crack in 2008 and is seeking a lighter sentence for himself and others like him, but the Court seemed to be against him by a lopsided margin.

The case speaks to President Joe Biden’s erratic history on drug enforcement issues. As a lawmaker, Biden was a prime mover behind the mandatory crack cocaine sentences the First Step Act rectified. But Biden’s Justice Department is backing the offenders in Tuesday’s case. The outcome could mean the difference between years in prison for hundreds in federal custody, about 80 percent of whom are black.

The Justice Department initially argued that the First Step Act didn’t provide relief for low-level crack offenders. Biden appointees at the Justice Department reversed course and told the High Court on March 15 that they would flip positions to support the low-level offenders. The reversal, coming about one month before the argument, forced the Court to rearrange its calendar and seemed to trouble some of the justices.

A ruling against the defendants, which seemed likely, would put the Court on the other side of a large, bipartisan coalition. Terry is drawing support from lawmakers in both parties. Senate Majority Whip Dick Durbin (D., Ill.) and Sen. Chuck Grassley (R., Iowa) filed a brief supporting Terry, as did conservative and progressive advocacy groups like the American Conservative Union and the ACLU.

Congress passed the Fair Sentencing Act in 2010 to reduce the disparity between mandatory sentences for crack cocaine and powder cocaine possession. Before the Fair Sentencing Act became law, a person possessing five grams of crack cocaine was sentenced the same as a person possessing 500 grams of powder cocaine. Over time, a bipartisan consensus developed that the 100:1 crack-powder ratio was inappropriate.

“Enforcement of the crack-powder differential led to vast racial disparities, as crack cocaine defendants were disproportionately black, while powder cocaine defendants were not,” ACLU lawyers told the justices in legal papers.

Under the Fair Sentencing Act, a mandatory 5-year sentence kicked in at 28 grams instead of 5 and a 10-year sentence applied for 280 grams instead of 50. Then in 2018, Congress passed the First Step Act, which said those changes would also apply to inmates sentenced before 2010.

About 2,400 defendants were resentenced in the year after the First Step Act became law, according to the U.S. Sentencing Commission. The average sentencing reduction was about six years.

Terry, the defendant, pled guilty in 2008 to possessing 3.9 grams of crack. He was sentenced to 16 years because he is a career criminal. Eligibility for a new sentence under the First Step Act turns on whether penalties for the underlying offense were modified by the Fair Sentencing Act. The Fair Sentencing Act said nothing directly about offenders convicted of possessing less than five grams.

Nonetheless, Terry’s lawyers argue he’s entitled to a new sentence because a judge will be more lenient this time around. At 3.9 grams, he was close enough to the five-gram mandatory minimum to get a stiff sentence. Now that the minimum kicks in at 28 grams, he believes his sentence will be lighter.

Terry’s lawyers also said it would be curious for Congress to give sentencing relief to high-level distributors while leaving street-level dealers to rot in jail.

“[A] contrary interpretation would make little sense. It would cover kilogram trafficking kingpins but exclude the lowest-level dealers,” said Andrew Adler, Terry’s lawyer.

Those arguments didn’t make much headway with the justices. Justice Elena Kagan told Adler many criminal statutes work in a similarly broad fashion, creating winners and losers.

“The reason why some … are getting the benefit of it is because the statute works categorically. And there’s nothing mysterious about that,” Kagan said.

Justice Stephen Breyer said he sympathized with inmates like Terry, but the wording of the 2010 and 2018 laws seemed to be against them.

“I’d love to get out of it. I mean, I think [the sentences] were much too high. I understand that,” Breyer told Adler. “But I can’t get away from this statute.”

Justice Neil Gorsuch, a sometime ally of criminal defendants, asked no questions.

A decision in the case, No. 20-5904 Terry v. United States, is expected by the summer.





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Divided Wisconsin Supreme Court upholds man’s gun conviction

MADISON, Wis. (AP) – A divided Wisconsin Supreme Court on Tuesday upheld the conviction of a man who was found guilty of arming himself with a gun while intoxicated, rejecting his arguments that his core Second Amendment rights outweighed a state law against brandishing firearms while drunk.

In a 6-1 ruling, the court upheld a state appeals court decision against Mitchell Christen. He had challenged his 2018 conviction by a Dane County jury that he was intoxicated and not acting in self-defense when he armed himself with a handgun and shotgun and threatened his roommates. Christen was heard on a 911 call saying anyone who opened his door would get a “face full of lead.”

Christen was sentenced to four months in jail, though the sentence was put on hold pending his appeal.

Christen argued that he has a core Second Amendment right to bear his firearms, whether intoxicated or not, and that the state law prohibiting an intoxicated person from brandishing a gun was unconstitutional as it applied to him. He did not challenge the constitutionality of the underlying law beyond his particular case.

The state Supreme Court determined that in general, it is not illegal to possess a firearm or to be intoxicated in one’s home and that people also have a strong right to self-defense in the home.

“However, Christen’s assertion that the Second Amendment allows him to possess a firearm in his own home even though he is at the point of intoxication, regardless of whether he is acting in self-defense, misses the mark,” Chief Justice Annette Ziegler wrote for the majority.

In upholding his conviction, the court noted that the jury determined that Christen was drunk, disorderly and not acting in self-defense when he brandished his guns, in clear violation of state law.

Justice Rebecca Bradley, one of the court‘s four conservatives, dissented, saying Christen has a Second Amendment right to carry a firearm in his own home in case of confrontation, regardless of whether he is intoxicated or not. Bradley said the ruling “erodes a fundamental freedom.”

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Foreign Dictators in U.S. Court, Part II – Reason.com

Yesterday, I explained that foreign dictators are increasingly exploiting access to court by filing frivolous claims against dissidents and newspapers in the U.S. Authoritarian regimes can do that because of three doctrinal areas that I’ll discuss today: the so-called “foreign privilege to bring suit,” the equal treatment principle, and statutory/common law protections that dictators receive as defendants. As I argue in a forthcoming article, excerpted here, the combination of these three areas leads to a problematic asymmetry: “[F]oreign dictators and their proxies can access our courts as plaintiffs to harass their opponents, but their regimes are, in turn, usually immune from lawsuits here.”

Let me start with the privilege to bring suit and the equal treatment principle. First, courts have long held that sovereign states can sue in American courts for any reason whatsoever. This “privilege to bring suit” comes with two minor preconditions, the plaintiff-government needs to be recognized by the executive branch and must not be “at war” with the United States. Apart from that, however, there are no limits. Any government in power in any recognized country in the world can file a claim in U.S. court against any one they wish. Even Cuba in the midst of the Cold War and only a year after the Cuban missile crisis filed claims in SDNY. Turkey’s Erdogan can pursue opponents in legal proceedings at any time. Same for Putin’s Russia, Maduro’s Venezuela, and the Chinese Communist Party.

Second, even when there are laws that apply uniquely to foreign sovereigns, U.S. courts refuse to draw distinctions between foreign government types. This “equal treatment principle” forces courts to be regime-neutral in their decisions, treating dictatorships, democracies, monarchies, and any other regime types the same way. Some of you may notice the resemblance to the domestic “equal sovereignty” principle that renders the fifty states equal for some purposes. For the internationalists, keep in mind that such an equal treatment principle differs from the concept of sovereign equality because even if states are equal “as legal persons in international law, this equality does not require that in all matters a state must treat all other states in the same way.”

Both the “privilege to bring suit” and the “equal treatment principle” trace back to a 19th century case, The Sapphire, that I describe in the article:

In 1867, an American ship collided with a French transport ship named The Sapphire near San Francisco. Unlike in Schooner Exchange, it was the French government—in the name of the Emperor—that filed suit in a U.S. District Court to recover damages for the crash. With an emperor as plaintiff, the question of sovereign immunity was no longer relevant. As the Court noted in The Sapphire, the question was now whether “the French Emperor” could “sue in our courts.”  The Court held that foreign sovereigns were allowed to “prosecute [cases] in our courts,” because to deny them that privilege “would manifest a want of comity and friendly feeling.”  The Court rooted this privilege, among other areas, in the diversity jurisdiction clause of Article III, noting that “the Constitution expressly extends the judicial power to controversies between a State, or citizens thereof, and foreign States, citizens, or subjects.”

Importantly, the Court explicitly refused to draw a distinction between Napoleon as emperor and his potential successors in France, noting that “[t]he reigning Emperor, or National Assembly, or other actual person or party in power, is but the agent and representative of the national sovereignty.”  The privilege of suing in our courts, the Court affirmed, was given to the foreign sovereign, regardless of who was officially in power in that country.  This was an embrace of an equal treatment principle for all regime types.

As I discussed yesterday, the Supreme Court reaffirmed these principles in Banco Nacional de Cuba v. Sabbatino, where the Court allowed Fidel Castro’s government to file suit in U.S. court and to benefit from American comity doctrines.

Both The Sapphire and Sabbatino rested on three pillars: the potential harm to the nation’s foreign relations, the value of international comity, and the difficulty of assessing which foreign regimes deserve different treatment. The basic idea here is that U.S. courts should not offend foreign nations unless Congress or the executive obligate them to do so. This ideal of international comity influences most transnational cases, nudging U.S. courts to give an added respect and “friendly feeling” to foreign sovereigns. International comity also makes transnational litigation—one of my areas of research—somewhat unique.

All of this makes sense as far as it goes. The problem, however, is that while foreign sovereigns have unfettered access to our courts as plaintiffs, they also benefit from doctrines that protect them as defendants. I’ll mention three here: the Foreign Sovereign Immunities Act (FSIA), act of state, and common law immunities.

Under the FSIA, all foreign sovereigns enjoy immunity from suit, subject only to a few exceptions. These exceptions include expropriations in violation of international law, commercial activities, domestic torts, and claims against state sponsors of terrorism. But, on the whole, the FSIA is often an insurmountable wall that prevents lawsuits.

Even when plaintiffs can get past the FSIA, they run into other barriers, including the act of state doctrine. Under this doctrine, U.S. courts will “refuse to judge the validity of a foreign sovereign act done within a foreign country’s territory.” The doctrine thus operates as a choice of law provision, forcing U.S. courts to apply foreign law to a foreign sovereign’s act. So if you are a plaintiff in U.S. court and Fidel Castro, Stalin, or Mao expropriated property and killed your family members abroad, U.S. courts will throw-up their hands and say “Sorry, I have to apply Cuban/Soviet/Chinese law and find this act valid.” Courts can use act of state to avoid cases even if plaintiffs have a proper cause of action, jurisdiction, standing, and fulfill every other constitutional or statutory requirement.

Finally, even if you try to avoid the FSIA by suing individual officials or dictators, there are a series of common law immunities that will probably get your case dismissed.

Taking all of this together we, once again, arrive at the asymmetry at the center of the article:

Foreign dictatorships can pursue their interests in U.S. court but their opponents cannot sue them for similar concerns.  To be sure, this asymmetry applies to all foreign states, regardless of regime type. But the asymmetry has particularly worrisome consequences in dictator-related cases because foreign authoritarians go on the offensive against democratic opponents, newspapers, and dissidents in the United States. Return to the example above: Venezuela can sue the Wall Street Journal for a legitimate article on the government’s narcotrafficking links. But U.S. journalists, non-governmental organizations, Venezuelan dissidents, or former Venezuelan citizens cannot easily sue the Venezuelan government in the United States because of sovereign or official immunity (as well as jurisdictional limits). Or, for example, return again to the DNC’s suit against Russia for its cyberattacks during the 2016 election. While Russia has pursued dissidents in U.S. courts in a variety of ways, a judge recently held that Russia was itself immune under the FSIA.

The fundamental question, then, is whether U.S. courts are obligated to respect this asymmetry, the foreign privilege to bring suit, the equal treatment principle, and statutory/common law protections for dictator-defendants. Must U.S. courts give foreign dictators easy access to our courts as plaintiffs and protections when they are defendants? Must U.S. courts treat all foreign sovereigns equally, regardless of regime type? Tomorrow, I’ll argue that the answer is simple: No.

 



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Bill and Melinda Gates don’t have a prenup, court docs say

Melinda Gates was the one to file for divorce from Bill Gates — and the billionaire philanthropist couple apparently did not have a prenuptial agreement, court documents reveal.

Melinda, 56, wrote that the marriage was “irretrievably broken” when providing a reason for the divorce, according to the filing, obtained by TMZ.

The document, filed Monday in King County Superior Court in Seattle, Wa., notes that the pair has a “separation agreement,” but not a prenup.

A separation agreement is usually signed at the end of a marriage and lays out the terms of the split.

That contract wasn’t included in the divorce filing, but will apparently dictate how the couple will divide up their assets.

Melinda Gates
Melinda Gates was the one who filed for divorce.
AP Photo/Firdia Lisnawati

The Gates fortune is estimated at well over $100 billion, so it’s perhaps not surprising that Melinda is not requesting spousal support, according to the filing.

She and Bill, 65, the co-founder of Microsoft and former richest person in the world, announced on Monday that they would be splitting up after 24 years of marriage and 34 years as a couple. They have three adult children: Jennifer, 25, Rory, 21, and Phoebe, 19.

Bill Gates
Bill and Melinda Gates announced they were ending their marriage.
AP Photo/Samuel Habtab

“After a great deal of thought and a lot of work on our relationship, we have made the decision to end our marriage,” read a statement from the two.

Bill and Melinda Gates announced on Twitter that they plan on divorcing.
Bill and Melinda Gates announced on Twitter that they plan on divorcing.
Twitter

The pair, who met after Melinda began working at Microsoft as a product manager in 1987, said they would continue to work together on the renowned charitable organization they launched in 2000.

Bill Gates delivers a speech at the fundraising day at the Sixth World Fund Conference in Lyon, France, on October 10, 2019.
Bill Gates delivers a speech at the fundraising day at the Sixth World Fund Conference in Lyon, France, on October 10, 2019.
Nicolas Liponne/NurPhoto via Getty Images

“Bill and Melinda will remain co-chairs and trustees of the Bill & Melinda Gates Foundation,” the organization said in a statement.

“No changes to their roles or the organization are planned. They will continue to work together to shape and approve foundation strategies, advocate for the foundation’s issues, and set the organization’s overall direction. “

Bill and Melinda Gates
Bill and Melinda Gates will continue working together on their charitable foundation.
AP Photo/Elaine Thompson



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Attorneys defend tax extensions before Nevada Supreme Court

CARSON CITY, Nev. (AP) – The Nevada Supreme Court weighed arguments Monday in a lawsuit filed by Republican lawmakers over how to interpret state law that requires revenue-generating proposals to win two-thirds approval in the Legislature to become law.

Since 1996, the Nevada constitution has mandated that two-thirds of lawmakers in both chambers must approve any proposal that “creates, generates, or increases any public revenue in any form,” setting a high bar for any proposal to raise taxes without bipartisan support.

Republican state senators allege that the Legislature’s 2019 decision to extend two expiring revenue streams – a Department of Motor Vehicles $1 transaction fee and a payroll tax – violated the mandate because the extensions passed with simple majorities in the Democratic-controlled Legislature and didn’t receive two-thirds approval.

The court‘s decision could have multi-million-dollar implications for the Legislature, which relies on the taxes and fees in question to balance its budget. The payroll tax is projected to generate roughly $98 million over the next two years. The decision will also signal to lawmakers how they can navigate the two-thirds requirement in future revenue battles, as they weigh taxes and fees needed to fund state services.

After a district court judge ruled in favor of the Republicans last September, attorneys for the Legislature – who represent Democratic leaders in the case – appealed the decision to the state Supreme Court.

Legislative Counsel Bureau attorney Kevin Powers and Nevada Deputy Solicitor General Craig Newby argued on Monday that extending revenue streams didn’t violate the constitution because it didn’t “create, generate or increase” revenue and therefore didn’t require two-thirds approval.

Powers said the intent of the law “was never to hamstring the government and impair existing revenues” and pointed to state courts in Oklahoma and Oregon that had interpreted similar two-thirds requirements in a narrow manner.

He and Newby argued legislative leaders had the right to take the advice of the Legislative Counsel Bureau, which issued an opinion stating that they could extend the tax and fee without two-thirds approval.

“There is ambiguity within the term ‘increase.’ And under those circumstances, legislators are entitled to some deference … based on separation of powers,” Newby said.

Attorney Karen Peterson, representing the Republican lawmakers, disagreed.

“The words used in the constitutional provision are plain. They’re ordinary. They’re easy to understand. And they’re unambiguous,” she said.

Peterson argued that the Legislative Counsel Bureau had contradicted itself when it told the statehouse Democratic leaders that they could extend the taxes without two-thirds approval because in prior years similar extensions – for business license fees, for example – had required two-thirds approval.

If the court upholds the tax and the fee, Peterson said it would change the nature of tax expiration clauses and make it more difficult to win two-thirds approval to adopt temporary measures to raise revenue.

“Going forward, the minority is never going to agree to a sunset provision on a bill and never going to agree to a true reduction in a rate in a bill,” she said.

___

Sam Metz is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.

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Rutgers Law Students Calling for a “Policy” on Students and Faculty Quoting Slurs from Court Cases – Reason.com

As Prof. Randall Kennedy and I have noted, slurs (“nigger,” “nigga,” “fag,” “cunt,” “kike,” “spic,” etc.) appear in over 10,000 court cases available on Westlaw, as well as a vast number of briefs and other court filings (most of which aren’t even visible on Westlaw).

Unsurprisingly, after class last Fall, a student at Rutgers Law School in New Jersey asked a professor about one of those 10,000+ cases—State v. Bridges (1993), decided by the New Jersey Supreme Court. The passage, from which the student quoted part of the last sentence, reads:

On September 2, 1988, defendant, Bennie Eugene Bridges, attended a birthday party with some fifty to sixty young people for sixteen-year-old Cheryl Smith in the basement of her home in Roebling, New Jersey. At about 12 a.m., Bridges had an argument with another guest, Andy Strickland. Shortly after the heated exchange, Bridges left the party, yelling angrily into the basement that he would soon return with his “boys.” As he drove past the house on his way to Trenton, Bridges again shouted, “I’m going back to Trenton to get my niggers.”

The student quoted the word, I take it on the sensible theory that, when you’re studying court cases, you’re entitled to talk accurately about what those court cases say. And the material appears to have been quite closely linked to the topic of the discussion (“the circumstances under which a criminal defendant could be held liable for crimes committed by his co-conspirators”). According to the student’s lawyer:

The textbook contained only a summary of the case, which left it unclear why the defendant would have been charged with conspiracy to commit murder when he was not involved in the shooting in question. The student wanted to know more so she looked up and read the full case on Lexis [including the passage quoted above], which shed significantly more light on the situation …. This went a long way towards explaining why the defendant had been charged with conspiracy.

So she was doing what any curious student should do—delving further into the facts of a case and reporting back what she had learned.

The N.Y. Times (Tracey Tully) reports what happened then:

In early April, in response to the incident, a group of Black first-year students at Rutgers Law began circulating a petition calling for the creation of a policy on racial slurs and formal, public apologies from the student and the professor, Vera Bergelson.

“At the height of a ‘racial reckoning,’ a responsible adult should know not to use a racial slur regardless of its use in a 1993 opinion,” states the petition, which has been signed by law school students and campus organizations across the country.

“We vehemently condemn the use of the N-word by the student and the acquiescence of its usage,” the petition says.

Professor Bergelson, 59, has said that she did not hear the word spoken during the videoconference session, which three students attended after a criminal law class, and would have corrected the student if she had.

Soon after the professor’s office hours in late October, a white classmate contacted the student who quoted the epithet to say that she should have avoided using it.

The student, a middle-age woman studying law as a second career, offered her phone number to continue the discussion and also arranged for a lengthy conversation with the third student, her lawyer said.

One of the students later told a Black classmate; a recording of the meeting, which is no longer accessible, was discovered online and shared.

Black students from the class who were offended by the slur expressed their concerns to another professor, who alerted a dean, David Lopez, soon after the incident, several officials said.

There’s a lot more in the article; those who have read my previous posts on similar controversies, or Randy’s and my just-published article (“The New Taboo: Quoting Epithets in the Classroom and Beyond”), know what I generally think of all this. But here I just wanted to mention a few items:

[1.] Though one of the Rutgers co-Deans, David Lopez, asked that people not quote such slurs, even when discussing a precedent that mentions them (“I share the views of several of our faculty members who understand and express to their students that this language is hateful and can be triggering, even in the context of a case, and ask that it not be used”), I’m glad to say that several Rutgers professors have publicly disagreed:

Among the professors who have signed a statement in support of Professor Bergelson and the student are some of the school’s most prominent faculty members, including [former Rutgers deans] John Farmer Jr., a former New Jersey attorney general, and Ronald K. Chen, the state’s onetime public advocate….

“Although we all deplore the use of racist epithets,” said Gary L. Francione, a law professor who also signed the statement, “the idea that a faculty member or law student cannot quote a published court decision that itself quotes a racial or other otherwise objectionable word as part of the record of the case is problematic and implicates matters of academic freedom and free speech.” …

Prof. Adam Scales is also expressly quoted as someone who opposes any such expurgation policy. So is Prof. Dennis M. Patterson, who is quoted specifically as to the unconstitutionality of outright prohibitions on such quotes. Others have similarly spoken out this way to their colleagues.

[2.] I’m also pleased to say that Prof. Bergelson and the student have refused to provide the public written apologies that other students have demanded. Prof. Bergelson, who was born in the Soviet Union, mentioned to me (in response to an e-mail I sent her) “the similarity between this attack on me and the Soviet collective condemnations and public self-accusations”; that was part of the reason for her refusing to apologize, I think.

And she should know: Her grandmother was executed by Stalin’s regime in 1950, and another relative, the Yiddish writer David Bergelson, was executed in 1952 in the Night of the Murdered Poets. I can’t speak for her, but I have often thought to myself: When others have paid so dearly for speaking the way they thought was right, how can we give in when the danger to us is so comparatively small?

The student is also represented by Samantha Harris, a leading campus free speech litigator (formerly at the Foundation for Individual Rights in Education). That too is very good, I think: Having an experienced free speech lawyer who can point out to the university the perils of violating students’ rights is very helpful. (Of course, such lawyers can be quite expensive, even before any serious litigation begins; I wish there were funds available to help protect students in such situations.)

[3.] Finally, this incident reminds me just how quickly some supposedly narrow restrictions can slip into much broader ones.

When I was involved in a similar controversy a year ago, people told me: Of course this word is mentioned elsewhere in the legal system, for instance when clients or witnesses testify about it or talk about it when being interviewed. But it’s different when a professor, who is in a position of power in the classroom, says it. Yet of course once one rejects the use-mention distinction, and treats quoting a slur as forbidden, that applies equally to all speakers. And sure enough, here a student with no classroom power is being hounded as well.

Others told me: Sure, the word is written and can be written, but it shouldn’t be said out loud. But of course once one rejects the use-mention distinction, that logic applies to speaking as well as writing. (Surely we’d agree, for instance, that sending someone an e-mail calling them a “kike” or “nigger” or what have you is reprehensible, because writing really isn’t that different from speech in this respect.) And indeed, as Randy’s and my article chronicles, in just the last year we’ve seen a flurry of cases where professors were condemned for writing the word.

Others told me: Look, it’s just one word that you shouldn’t say; you’d be free to quote all other words, but this word is different. But of course that logic can’t hold, either; as Randy’s and my article chronicles, in just the last year we’ve seen similar demands to expurgate the word “fag” (which has a starring role in the most important recent Supreme Court case on offensive speech, Snyder v. Phelps (2011); the Westboro Baptist Church there displayed various signs near dead soldiers’ funerals, including “God Hates Fags”).

Plus, if the theory is that slurs are traumatizing because they bring up mental images of bigoted violence, then surely discussions of actually bigoted violence (slavery, lynching, hate crimes, and the like) could do the same, and face similar calls for expurgation. And, sure enough, since I started to blog about this matter, we’ve seen exactly such calls; for instance, as we note in our article,

Others have faulted professors who “expose Black students to images and videos of brutalized Black bodies … and explore texts that detail Black suffering” alongside those who “say the n-word without hesitation” (in quoting materials such as “white LGBTQ activist Carl Wittman’s ‘A Gay Manifesto'”). Likewise, the Oxford University student union adopted a policy called “Protection of Transgender, Non-binary, Disabled, Working-class, and Women* Students from Hatred in University Contexts,” demanding the removal of “ableist, misogynistic, classist or transphobic” “hate speech” from any course reading materials.

But that just focuses on slippage that we predicted; there’s so much we couldn’t even predict, because it would have seemed so far-fetched. How about a dean (who is also the president of the American Association of Law Schools) condemning a professor for being “deeply offensive,” “caus[ing] hurt and distress,” producing “mental trauma,” and “demonstrat[ing] a lack of respect, decency, and civility,” because the professor had written “n_____” and “b____” in a fact pattern on a law school exam? As you might gather from knowing my work on this, I’m not expurgating the words here; the exam really did just say “n_____” and “b____,” in a problem related to a racial and sexual discrimination lawsuit. So apparently even expurgating doesn’t get you off the hook.

Or how about the Great USC Homonym Panic of 2020, where an accomplished business school lecturer was replaced in his course in the middle of the semester because he quoted—in the middle of a lecture on filler words (such as “um” or “er”) in a business communication class—the Chinese filler word nei-ge? His sin was that this Chinese word, which he mentioned as an example because he’s an expert on U.S.-China business and a fluent Mandarin speaker, sounds like “nigger” in English.

If Randy and I had come up with this as a hypothetical consequence of placing a taboo on certain words, I expect we would have been roundly condemned as creating a ridiculously unrealistic straw-man scenario. And yet there it is. We prefer to “avoid these ends by avoiding these beginnings.”

Of course, perhaps Randy and I are mistaken. Perhaps some version of the New Taboo ought indeed be adopted in law school classrooms. Perhaps faculty and students teaching and studying a subject should be forbidden, whether by rule or by social norm, from accurately talking about the source materials (precedents, court records, and the like) of that very subject.

But I’d like those who disagree with us to say a bit more about how the taboo is to remain contained (or even whether they want it to be contained). And I hope that those who are considering whether to accede to the taboo will consider how far it is likely to spread.

UPDATE: I updated the post slightly 25 minutes after putting up, because I got some more information about the matter from the student’s lawyer.



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