Law News and News Law

U. loses to Attorney General (a BYU grad)

noreply@blogger.com (Ed Carter) — Fri, 8 Sep 2006 14:31:00 -0600

BYU and Utah won't square off on the gridiron until Nov. 25, but BYU already has scored a victory of sorts over Utah. But this one came in the legal arena rather than the sports arena. I haven't read the opinion yet, but that won't stop me from commenting -- the University of Utah was dealt a blow by the Utah Supreme Court today when the Court decided that the U. could not ban concealed-weapon permit holders from carrying guns on campus.

In its decision today, written by Justice Jill Parrish, the Court sided with the Utah Legislature, which had passed a law stating that concealed-permit holders could carry guns anywhere in the state. But the U. sued Attorney General Mark Shurtleff, a BYU grad and former BYU football player.

So score one for the Cougars and those who like to tote a gun to class.

Ultimately, BYU might be a loser here too since the University has a policy against carrying guns on campus. Not sure yet how this will affect BYU's policy, though.

Yellowstone bison

noreply@blogger.com (Ed Carter) — Fri, 16 Jun 2006 01:17:00 -0600

Baby bison and kids.

Polygamist judge removed

noreply@blogger.com (Ed Carter) — Fri, 24 Feb 2006 15:47:00 -0700

The Utah Supreme Court today agreed with the Judicial Conduct Commission that a polygamist judge from southern Utah should be removed from the bench. Although Justice Court Judge Walter K. Steed contended that the state's bigamy statute was unconstitutional, the Supreme Court held that he would be bringing the judiciary into disrepute by violating the law while trying to adjudicate cases.

More Hatch on Alito

noreply@blogger.com (Ed Carter) — Mon, 9 Jan 2006 10:33:00 -0700

Sen. Hatch is now saying that because Judge Alito already is a federal judge, he cannot issue advisory opinions. Thus, he cannot speak about how he would decide cases likely to come before the Supreme Court.

Hatch is now referring to the Ruth Bader Ginsburg confirmation hearing in 1993. He says she didn't answer certain questions. He is thus setting up Judge Alito not to have to answer questions about, among other things, abortion.

I don't think it's word-for-word, but Senator Hatch's speech today is very similar to the one he gave at the outset of the confirmation hearing for Chief Justice John Roberts. I remember that, at that time, he pre-defended Roberts and set the stage for Roberts not to have to answer certain questions.

Now Hatch is saying Judge Alito's entire record, not just selective portions of it, must be considered. There are 36,000 pages of material before the Judiciary Committee. "We must apply a judicial, not a political standard, to this record," Hatch says.

Sen. Hatch on Alito

noreply@blogger.com (Ed Carter) — Mon, 9 Jan 2006 10:30:00 -0700

Sen. Orrin Hatch of Utah is now speaking on Judge Alito. He says this nomination is a "debate over the judiciary itself... how much control judges should have over a written Constitution that belongs to the people."

Sen. Hatch then says the right place to start is determine what judges are supposed to do, and then measure Judge Alito against that. Hatch is giving a lesson on civics -- the President nominates judges and then Senate gives advice by giving or withholding consent. That advice is designed to help the President determine whether to actually appoint a judge.

"Judges are not politicians," Hatch says. "Judges must decide cases, not champion causes. Judges must decide legal cases, not pursue agendas. Judges must interpret and apply the law, not make the law."

Judge Alito confirmation hearing begins

noreply@blogger.com (Ed Carter) — Mon, 9 Jan 2006 10:11:00 -0700

The Senate Judiciary Committee just started the Supreme Court confirmation hearing for Judge Samuel Alito of the U.S. Court of Appeals for the Third Circuit. Sen. Arlen Specter of Pennsylvania has just said that Judge Alito's hundreds of published judicial opinions can be read selectively to paint him either as a "flaming liberal" or an "arch conservative."

Personally, I am looking forward to the testimony, on behalf of Judge Alito, of Judge Ruggero J. Aldisert. That should come later this week or early next week.

Good, bad, ugly

noreply@blogger.com (Ed Carter) — Wed, 7 Dec 2005 12:50:00 -0700

The Salt Lake Tribune today reports that a Utah legislator wants to repeal Utah's already-declared-unconstitutional 19th century criminal libel law. Good.

The same legislator, however, wants to codify the actual malice standard within the 1973 criminal defamation law. Bad. Rather than solidifying the law by eliminating any argument based on New York Times v. Sullivan, why not just get rid of it altogether? That would be better.

And there's an update on the former Utah high school student who successfully challenged the criminal libel law as unconstitutional. He's in Iraq with the military now. Ugly.

Solomon Amendment arguments

noreply@blogger.com (Ed Carter) — Wed, 7 Dec 2005 12:42:00 -0700

Interesting story in today's New York Times about oral arguments yesterday in the law schools' challenge to the federal law that requires them to grant access to military grant in exchange for millions of dollars in federal funding. I liked this exchange between Joshua Rosenkranz, lawyer for the law schools, and new Chief Justice John Roberts:

"I'm sorry, but on 'compelled speech,' nobody thinks that this law school is speaking through those employers who come onto its campus for recruitment," the chief justice said. "Nobody thinks the law school believes everything that the employers are doing or saying."

The lawyer adjusted his focus. The law schools have their own message, "that they believe it is immoral to abet discrimination," he said.

This time, Justice Sandra Day O'Connor took issue. "But they can say that to every student who enters the room," she said.

"And when they do it, your honor, the answer of the students is, we don't believe you," Mr. Rosenkranz said.

"The reason they don't believe you is because you're willing to take the money," Chief Justice Roberts interjected. "What you're saying is this is a message we believe in strongly, but we don't believe in it to the detriment of $100 million."

Photogs and the First Amendment

noreply@blogger.com (Ed Carter) — Tue, 6 Dec 2005 10:21:00 -0700

It seems that there is some doubt in Salt Lake County about whether people have the right to stand on a public sidewalk holding a camera. By settling the lawsuit brought by a photographer, however, South Salt Lake seems to be acknowledging that the First Amendment does exist there.

Podcast testing

noreply@blogger.com (Ed Carter) — Thu, 13 Oct 2005 11:11:00 -0600

Live from the Media Convergence Conference 2005 is Podcasting 101.

Our great mp3!

Flanigan withdraws

noreply@blogger.com (Ed Carter) — Sat, 8 Oct 2005 07:40:00 -0600

BYU alum Tim Flanigan has withdrawn his nomination for deputy attorney general. Flanigan, the father of 14 who graduated from BYU before law school at Virginia, faced skepticism in the Senate Judiciary Committee on several fronts. Meanwhile, bloggers are questioning why there are so many BYU alumni in the Bush administration.

My viewpoint

noreply@blogger.com (Ed Carter) — Fri, 7 Oct 2005 16:14:00 -0600

In case you don't get enough of my opinions already on this blog, you can read my Daily Universe Viewpoint on this week's Tenth Circuit decision in the Salt Lake City Main Street plaza dispute.

It's Miers!

noreply@blogger.com (Ed Carter) — Mon, 3 Oct 2005 12:16:00 -0600

President Bush nominated his former lawyer, Harriet Miers, to serve as associate justice on the Supreme Court. Miers would replace Sandra Day O'Connor. The text of Bush's nomination speech and Miers' remarks are here.

The New York Times wrote that Sen. Harry Reid, D-Nev., had encouraged Bush to nominate Miers. And Sen. Charles Schumer, D-N.Y., said there was "hope" that Miers would be a "mainstream nominee." The Times provided more on her background in "Nominee Known for Working Hard Away From Limelight."

Times previews Court term

noreply@blogger.com (Ed Carter) — Fri, 30 Sep 2005 11:34:00 -0600

Linda Greenhouse of The New York Times previews the upcoming Supreme Court term in this story. I thought perhaps President Bush would announce his next nominee today, but so far it hasn't happened. Thus, as Greenhouse mentions, the Court is in a transition period in which Justice O'Connor will sit for oral arguments and decide cases until her successor is named. But the possibility looms of some 4-4 Court splits if Justice O'Connor's successor is confirmed by the Senate in the middle of the term.

Miller freed

noreply@blogger.com (Ed Carter) — Fri, 30 Sep 2005 10:44:00 -0600

New York Times reporter Judith Miller left jail this morning after securing a waiver from her confidential source -- Lewis Libby. As detailed in this Times story, Libby tried to communicate the waiver about a year ago but Miller did not accept it until now, when she says it was given to her personally and unequivocally. Perhaps she should have clarified that before and she could have avoided spending 12 weeks in jail. My question is this: Did the Times pay her salary all that time she sat in the slammer? After all, she got jailed on company business.

Speaking of the Times, I am reading a fascinating book about the newspaper by Seth Mnookin. It's called Hard News, and it details the rocky tenure of Howell Raines as executive editor. (Maybe Miller can write a book called Hard Time.)

Late Night Listenings

noreply@blogger.com (Ed Carter) — Tue, 27 Sep 2005 14:27:00 -0600

Before I go to sleep, I often lay in bed and listen to music; whether it's flipping through some radio stations or a CD. As a single college student that can sometimes end up being later that it should be. Last night as I was flipping through the stations I passed by KSL's new simulcast FM station at 102.7 FM. It's in the middle of some of the stations I like to listen to music on and it's easy for me to get a little sucked in.

Last night I heard them mention that Cindy Sheehan, the anti-war demonstrator, had be arrested. The radio host said that he wished she could be left in prison for a long time. My first thought when I heard she was in prison was that even though I don't agree with the things she said this could bring up some major First Amendment issues with further name calling on both sides of the argument. I didn't hear why she had be arrested, so I decided to look up the story today and saw that she was arrested with about 50 other protesters who are going to be charged with the misdemeanor charge of demonstrating without a permit. The protestors knew they'd be arrested when they sat down rather than continuing to move and the police warned them as much 3 times before they were taken in.

I guess the thing that interests me the most about it was that she was smiling as she was arrested and others sang/chanted "The whole world is watching." As an advertising major, which does have close ties with public relations, I'm not surprised by what they did or why they did it. It's all about getting more attention.

The situation in Iraq is one of great debate. People like Cindy Sheehan yell that people's children are being killed without a real cause. Others respond that those "children" are adults and have chosen to enter the military and are there to fight for those who can't do it themselves. It's the right of both sides, granted by the First Amendment of the U.S. Constitution, to each have their expression. I claim my right to dislike the contentious way that it's being expressed.

ABA Forum presentation

noreply@blogger.com (Ed Carter) — Fri, 16 Sep 2005 11:31:00 -0600

If anyone is going to be in or near La Quinta, California, on January 12, 2006, please stop by the ABA Forum on Communications Law annual meeting to hear yours truly and two other media law teachers talk about Hosty v. Carter.

Judge Lindberg on Judge Roberts

noreply@blogger.com (Ed Carter) — Thu, 15 Sep 2005 14:33:00 -0600

Earlier today Judge Denise Posse-Blanco Lindberg of Utah's Third District Court testified in favor of the confirmation of John G. Roberts as Chief Justice of the United States. She said she enjoyed working with him at Hogan & Hartson. She called him "John" throughout her testimony, while some other witnesses -- even former colleagues -- referred to him as "Judge Roberts." In any case, she said that "John" would "bring consensus to a divided court." Reminds me of candidate Bush saying he would be a uniter, not a divider. I'm not sure I would characterize the Supreme Court as divided, except on certain issues that arise in certain cases. But that's a case-by-case division, not by and large a political one.

After Judge Lindberg's testimony, Senator Orrin Hatch bragged about her background and credentials (she has two master's degrees, a Ph.D. and a law degree from BYU) that I thought she -- not Judge Roberts -- was up for consideration to be on the Supreme Court.

Meanwhile, Hatch provided a transcript of his softball questioning of Roberts.

First Amendment and Judge Roberts

noreply@blogger.com (Ed Carter) — Tue, 13 Sep 2005 13:38:00 -0600

Supreme Court nominee John G. Roberts was confronted with a line of questioning today by Ohio Senator Mike DeWine about First Amendment speech issues. DeWine said, correctly in my view, that our society is seeing a shrinking of the "public square." He talked about how we live in gated communities (some of the other half does, at least), drive to strip malls and, basically, live our lives on private property. We don't hang out in the town plaza engaging in First Amendment activities. Senator DeWine also complained about local governments prohibiting people from putting signs on their own lawns. Many of those regulations, DeWine said, have been held constitutional as content-neutral time, place and manner regulations.

Judge Roberts agreed and said technology has something to do with the shrinking public square, but Judge Roberts did not indicate whether he, as a Supreme Court justice, would take that into consideration in deciding First Amendment cases.

Judge Roberts did, however, refer to United States v. Kokinda, 497 U.S. 720 (1990), which he argued before the Court when he worked for the federal government. Judge Roberts said he recalled that much of public forum doctrine at that time was confusing and unsettled, and, he said, it remains so even today.

More Rehnquist, Part II

noreply@blogger.com (Ed Carter) — Fri, 9 Sep 2005 10:17:00 -0600

In my previous post about Chief Justice Rehnquist, I noted that I had been interviewed about his legacy but that the story was not yet available online. Well, now it is. Unfortunately, the writer misspelled Rehnquist throughout much of the story and an editor failed to catch the error.

Tolerance

noreply@blogger.com (Ed Carter) — Fri, 9 Sep 2005 10:11:00 -0600

For a powerful and hilarious film about tolerance, check out the three-minute clip called "Tolerance" available here. A news story about the making of the short silent film, which was accomplished in 24 hours, is here.

BYU No. 1!

noreply@blogger.com (Ed Carter) — Fri, 9 Sep 2005 09:53:00 -0600

We all know BYU has been voted the most stone-cold sober school in the country for a million years now (2004, 2003, 2002), but now BYU also has been named the fittest school in the country by Men's Health magazine. Pardon me for cutting this short, but I have to go work out.

More Rehnquist

noreply@blogger.com (Ed Carter) — Thu, 8 Sep 2005 14:11:00 -0600

Today's Deseret Morning News contains an article headlined "2 Utahns who clerked for Rehnquist mourn him." I don't know University of Utah President Michael Young, but I do know the other source quoted in this story, Steve Sargent, and I must say he is one of the best attorneys, nicest guys and most highly accomplished Renaissance men around. Nice story.

The Chief

noreply@blogger.com (Ed Carter) — Thu, 8 Sep 2005 10:37:00 -0600

Thanks to a loyal reader who pointed out my lack of commentary on the death of Chief Justice Rehnquist, I am getting back on track today. Yesterday I was interviewed at length by a college newspaper reporter about Justice Rehnquist's legacy. After a 20-minute interview, my insights were reduced to this statement (I enter it here because the Daily Universe content for today is, strangely, not yet available online):

"He did incredibly well when he presided over the impeachment trial of President Clinton," said Ed Carter, a communications professor at BYU. "He was a voice for calm and resolve and kept a cool head."

My other observations about the Chief's passing are these: first, we have to remember that he was the Chief Justice of the United States, not just the Chief Justice of the Supreme Court. So he had administrative responsibilities over the entire federal judiciary. He was leading efforts to make inroads on issues of pay for judges as well as judicial workloads. Also, the Chief had responsibilities to keep the work of the Supreme Court moving along, and Justice Rehnquist did that very efficiently. He was known for sometimes cutting off other Justices during conferences, and running the Court that efficiently is not easy to do. Certainly, it is easy to speculate that 50-year-old John Roberts might have a hard time ordering octagenarians like Justice John Paul Stevens to shut up.

Beyond that, it was interesting to see how quickly President Bush acted to renominate Roberts as Chief. I think it was a wise political move because Roberts should be easier to get confirmed in the Senate that Justice Scalia or Justice Thomas would have been. My guess is the President will wait until after Roberts is confirmed (and, likely, after the Supreme Court term begins in October) to nominate someone to replace Justice O'Connor.

Nice Trib story on journalism

noreply@blogger.com (Ed Carter) — Wed, 7 Sep 2005 10:16:00 -0600

I don't say this just because I am quoted, but I thought today's story in The Salt Lake Tribune on a new online publication was excellent. The story, by Mark Eddington, is not only written well but also reflective of and proportional to the news in question. Among other things, Eddington wrote:

While he is not familiar with Monitor organizers' plans, BYU journalism professor Ed Carter says alternative publications meet needs not met by traditional news sources. "Blogs and the rise of the Internet as alternative mass-communications mediums serve a positive function in the democratic marketplace of ideas by maximizing the number of voices," Carter said. "Generally speaking, more speech is a good thing."