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Freedom of Speech

Who is Winning The Intimidation Game? - Podcast

Free Speech & Election Law Practice Group Podcast
Kimberley A. Strassel August 18, 2016

Everyone is interested in free, fair and open elections. For decades, the country has debated the proper balance between First Amendment speech rights and campaign finance and disclosure laws. In a new book, The Intimidation Game, Kimberley Strassel seeks to show, through first-hand accounts, how this tension can and has been used against free speech and free association, chilling or even silencing political opposition.

Featuring:

  • Kimberley A. Strassel, Wall Street Journal Editorial Board Member, Author of The Intimidation Game

The Climate Change Investigations – Fair Regulation of Markets or Executive Overreach that Chills Free Speech? - Podcast

Litigation Practice Group Teleforum
Andrew Grossman, Margaret A. (Peggy) Little August 08, 2016

Climate change activists have for the past year been urging the Department of Justice and state attorneys general to investigate ExxonMobil, think tanks, and other corporations and organizations that have expressed skepticism or otherwise presented contrary views either on the science or the policy of climate change regulatory action. These calls include members of Congress petitioning the U.S. Department of Justice to investigate whether Exxon and its “brain trust” violated civil RICO, an ongoing Martin Act investigation launched last fall by the New York Attorney General, and more recently, subpoenas issued by the US Virgin Islands and civil investigative demands from the Massachusetts AG. A press conference on March 29, 2016 attended by former vice-president Al Gore, represented that these calls for investigations are supported by a coalition of 20 attorneys general. The next day a majority of state attorneys general, 29 in all, issued a press release that they would not be joining in that call for investigations or other regulatory action, citing respect for the rule of law and the First Amendment. Asserting that good science embraces disagreement and the chilling effect on research when the government decides what is “truth” and what is “fraud,” these majority states revealed a stark divide in our polity about the proper role of the executive branch – state and federal – in formulating, enforcing and financing climate change policy.

At the March 29, 2016 press conference, former vice-President Gore asserted that “our democracy’s been hacked” and that these state and federal enforcement actions were necessary to remedy Congress’s and other legislative inactivity. In this Teleforum, Andrew Grossman – who has been involved in both defending targets of the subpoenas and in challenging the lawfulness of their issuance – discussed some of the legal and policy questions implicated by this division between the states, and the executive branches and Congress, such as: Should a corporation’s published research that expresses concerns about climate change be grounds for civil RICO or other regulatory action? Would such potential liability disincentive research? Should the government decide what is truth and what is not in the historically uncertain arena of science? Should those matters be decided in legislative hearings with the opportunity for the expression of multiple views on the science, policy, and proposed solutions? Should there have to be a substantiated allegation of unlawful conduct before such investigatory powers are wielded? Who has been defrauded? Is there harm in forcing corporations and think tanks to open up their records, research and communications – isn’t that a good way to determine whether there has been fraud on the energy markets? On the other hand, has Exxon sold oil or raised capital by claiming climate change is not affected by fossil fuels? Are consumers/investors uncritical consumers of industry information? What are the pros and cons of legislative action, inaction or accretional action versus sweeping state and federal executive enforcement actions? What regulatory authority or past practice provides a template for these investigations, and what are their practical and historical goals and outcomes? Do think tanks have a different status vis-a-vis the First Amendment than a for profit business selling fossil fuels, and if so what role, if any, does the source of their funding play?

Featuring:

  • Andrew Grossman, Partner, Baker & Hostetler LLP and Adjunct Scholar, The Cato Institute
  • Margaret A. (Peggy) Little, Partner, Little and Little, & Director, The Federalist Society's Pro Bono Center

Speech Code for Lawyers? - Podcast

Free Speech & Election Law, Litigation, and Professional Responsibilities & Legal Education Practice Groups Podcast
Eugene Volokh June 06, 2016

The American Bar Association (ABA) model rules of conduct have long wrestled with regulating the intersection of discrimination and the law of lawyering. The current model rules forbid discrimination in the practice of law only as a comment to the prohibition on lawyer conduct prejudicial to the administration of justice. After much discussion and pressure, the ABA has proposed expanding the language to become new model rule 8.4 (g). If enacted, this rule would prohibit (in its own right) discrimination or harassment by a lawyer engaged in the practice of law against a list of protected classes, including ethnicity, gender identity, and marital status. Perhaps anticipating a challenge, the new rule's comment states that the new rule does not apply to non-lawyer conduct or activities protected by the first amendment and also exempts times when references to such protected groups and facts are needed to effectively represent a client. However, this new rule would apply to all conduct at primarily firm and legal events, including firm related social events.

What is discrimination or harassment over socioeconomic status? Since this rule applies to social settings, where is the line to be drawn and what chilling effect might be created? What about free speech and free association?

Featuring:

  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law

Free Speech and Climate Change

Short video featuring Andrew Grossman
Andrew Grossman April 19, 2016

Andrew Grossman, Partner at BakerHostetler, explains the investigation of the fossil fuel industry and public policy groups skeptical of climate change by the Attorneys General of nineteen states. He underscores the importance of free speech in public policy debates on climate change. Mr. Grossman is also Counsel for the Competitive Enterprise Institute.

True the Vote v. IRS - Podcast

Federalism & Separation of Powers Practice Group Podcast
John C. Eastman April 14, 2016

True the Vote, a Texas-based vote monitoring organization intent on policing and preventing voter fraud, brought suit against the Internal Revenue Service alleging discrimination against conservative organizations applying for tax-exempt status. On Thursday, April 14, additional oral arguments were held in the D.C. Circuit Court of Appeals. Advocate Professor John Eastman joined our Teleforum to discuss the merits of the case, its procedural posture, and the argument.

Featuring:

  • Prof. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law