50 Ways of No

David and Sarah discuss two Florida free speech cases and a very strange North Carolina ...

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David and Sarah discuss two Florida free speech cases and a very strange North Carolina one too about whether a court can strike down legislation if some of the legislators were elected from gerrymandered districts. And there’s a very special guest at the end with a song to share.

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  1. Ken Krantz

    The NC case reminds me of the Donatist Controversy in the early Christian Church

    https://en.wikipedia.org/wiki/Donatism

    That involved the issue of whether priests who had renounced the church under threats or torture during Roman persecutions could resume their vocation and administer valid sacraments. The Donatists contended that sacraments administered by those priests were invalid. Saint Augustine and other church authorities responded with an unequivocal “Naw, dawg.” (In Latin, of course)

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  2. Jack

    Coming late to the game, but here's the argument the NC Supreme Court is making, though I disagree with Justice Earl's Opinion.

    Welcome to state court!

    Definitions for the review:

    "De Facto Officer" - one who takes office under the color of the law (meaning it looks good at the time, but may still be an unconstitutional law).

    "Usurper" - See MacBeth. Also see NC Case Law meaning one who takes office under no color of law, or via some light fraud.

    Justice Earls has stated that when the legislators were first elected, that they were "de facto officers." Once the Court ruled that the 2016 elections violated Equal Protection clause, etc., the legislators turned into "usurpers." Once the legislators were charged with the knowledge that their elections were illegal (we clearly need to invent time travel to fix this), the legislators were charged with the knowledge that they were at that point usurpers, and no longer de facto officers.

    The Court's argument today is that the power of the legislators were dissolved once the usurper-legislators had knowledge of the illegality of the election that placed them into office. I suppose it is implied that the legislators should have stopped legislating...or only legislated lightly?

    So why is the Court address this in this way? My theory is the Certified Question theory! Hang on to your horses, because you're probably already asleep.

    North Carolina refuses to answer certified questions from federal courts based on constitutional interpretation; NC will only take a real case in controversy. This means that the federal courts, at times, have to determine what North Carolina law would be - had a North Carolina judged ruled on a question.

    The Covington Case - being a federal case, left an issue of the power of an usurper legislator undefined. The North Carolina Supreme Court is trying to answer that question today. To place my spin on it, the North Carolina Supreme Court wants to answer that question today because it suspects that the federal courts would come to a different conclusion than the state supreme court; but if there is a state court ruling on that question, the federal case would be bound by the state court ruling.

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    Gennimarietw

    I’m going to nitpick a second, but the Glorious Revolution was in 1688, not 1689. Loved hearing Brisket sing!

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  4. Joe1776

    Great shows Sarah and David. It is clear you both prepare and have a good understanding of these issues.

    I would love for you guys to comment on the lawsuits where it is alleged that the government put pressure on private companies to restrict speech. My own priors are that private companies and people should be very free to say or censor whatever they want. (so no suits agains them) But the government has no business telling people/companies what to say except in very extreme cases like conspiracy or fraud etc. I think government threats/blessings to private companies are an end around the first amendment and pose a significant threat to our democracy if we can not establish some clear boundaries.

    My initial thoughts are that the companies should not be liable or punished but they should allow suits against the government. But it is unclear that the actual government actors would even care since it would just be paid by taxpayers.

    I would love to hear your thoughts on how these cases will hold up under current law and whether any changes to the law could possibly help prevent government abridging speech in a practical way. For example could government immunity for individuals be restricted such that individuals in government could have *some* personal responsibility for these sorts of actions?

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  5. Nick H.

    I did not expect Sarah to come out in favor of Minority Report-ing wildlife.

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  6. Sean

    The NC case is just absurd. I honestly can't think of a way to 'yes.' I also think the legislature, or honestly, a random citizen, has a good case in federal courts under the Guarantee Clause. I don't see how what the NC court did falls under a "republican form of government."

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  7. Kevin Renshaw

    So as it is written, I think the NC Supreme Court ruling is ridiculous. As you both pretty thoroughly covered, the idea that we're not going to strike down everything an unconstitutionally elected legislature passes, but we reserve the right to strike down things we don't like based on that SCOTUS ruling, is just pretty nonsensical.

    That said, I do want to take a stab at getting to the same outcome by the most convincing method I can think of, and that is the fundamental difference between ordinary laws and constitutional amendments. First, constitutional amendments are more permanent than ordinary laws, both by being written into the constitution and by the fact that NC requires a supermajority of the legislature to propose an amendment to be voted on. An ordinary law can be easily overturned by the next set of legislators, but it's much more difficult and time consuming to remove a constitutional amendment. Second, I'm not an NC constitutional expert, but by my limited understanding, amending the constitution allows the legislature to circumvent the checks and balances by the executive and judicial branches. There's no option for the governor to veto the amendment, it just goes to the people to be voted upon. And other than a procedural objection, like what happened in this case, the supreme court can't declare an amendment to the constitution unconstitutional. Lastly, ordinary laws often need to be passed somewhat urgently to allow day-to-day operations of the government to continue and address immediate concerns, but constitutions are not documents that need to be updated urgently pretty much ever. For those reasons, I think an argument could be made that the best way to respond to SCOTUS' ruling is to allow the NC legislature to operate in its normal capacity but forbid it from proposing any constitutional amendments, regardless of their content, until a new election with proper districts has taken place.

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    Ben Connelly

    I have been in those high school (and middle school) classes in which students were given the assignment to “write and give a speech making an argument on a topic.”

    My favorite was when one proudly mediocre student gave a speech arguing for the value of public education over homeschooling because young people needed to learn how to use public bathrooms.

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    Nathan

    Can we ditch the silly legal/political stuff and have some more Row Row Row Your Boat, please?

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  10. David Savidge

    The SC Supreme Court did not strike the law/amendment. The remanded it with instructions to take additional evidence and argument as instructed in the opinion. Here is the decision. https://appellate.nccourts.org/opinions/?c=1&pdf=41699

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