It is fair, I think, to say that a substantial majority of those who heard the argument in the case of Federal Election Commission v. Ted Cruz for Senate doubted that, irrespective of whatever they might think of Ted Cruz, it was highly likely that he and his campaign organization would prevail in challenging the federal campaign finance law limitation on the use of post-election funds to repay a candidate’s personal loans as violative of the First Amendment rights of candidates who want to make expenditures on behalf of their own candidacy through personal loans. But, by a six-three division between the Court’s judicial conservatives and liberals, that is precisely what has occurred. Those who criticize the Court’s decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), likely will feel much the same way about the Cruz case.

Continue Reading Divided Court Supports Ted Cruz’s Campaign Debt Reimbursement but Denies Would-Be Citizen Chance to Correct Bureaucratic Error: SCOTUS Today

Further evidencing an ongoing shift from more absolutist thinking about the intersection between the First Amendment’s Establishment Clause and an individual’s or group’s right of free speech, we find this morning’s unanimous decision in Shurtleff v. Boston in which the Court, reversing the First Circuit, held that the city of Boston violated the free speech clause of the First Amendment when it refused to let a group fly a Christian flag outside city hall. As Justice Breyer explained, in what will be among the last of his opinions:

Continue Reading When Government Does Not Speak, It May Not Discriminate on the Basis of Religion as to Access to a Public Facility: SCOTUS Today

Interesting question: Can someone trademark another person’s name without that person’s consent? The answer to that is usually “no,” but, hey, we would not be the first people to say that we live in interesting times. And if we said that, we would not be infringing on anyone’s rights. That aside, the answer to the first question this week is “yes,” at least when the person is a public figure, and the trademark is viewed as an exercise of free speech critical of that public figure.

Continue Reading Does TRUMP Trademark Ruling Create First Amendment Exception That Is TOO BIG or TOO SMALL?

Former Alaska Governor and Vice Presidential candidate Sarah Palin recently lost the trial of her defamation case against The New York Times. Given the complexity of the legal issues and the unusual events at trial, a messy appeal is sure to follow. But if the appellate courts can see past the procedural novelties, Palin’s case could become a vehicle for revisiting the seminal case of New York Times v. Sullivan.

Continue Reading The Sarah Palin v. New York Times Appeal Will Be a Hot Mess

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers:  “Two Election-Related Decisions, Decided on Strict Ideological Grounds, Close Out the Term.

The following is an excerpt:

No harmony today. The Court has rendered two 6-3 decisions mirroring strong ideological