Noah Feldman

An op-ed by Noah Feldman: The news on Tuesday that the U.S. Department of Justice will not seek civil rights charges against a New York police officer in the death of Eric Garner sounds like grounds for a straightforward controversy. ... Yet there is a less obvious problem lurking in the background here: What should the Department of Justice do about a possible civil rights violation in a close case that also has enormous symbolic importance? Garner’s final words, “I can’t breathe,” became part of Black Lives Matter protests of excessive police force throughout the country. Possibly no more complex, or indeed tragic, problem faces a well-meaning attorney general.

An op-ed by Noah Feldman: The career of Justice John Paul Stevens, who died Tuesday at 99, stands as a reminder of the U.S. Supreme Court of an earlier era, when partisanship was rare, pragmatism reigned, and a moderate Republican like Stevens could evolve into one of the most important liberal justices of the post-World War II era. Even at the height of Stevens’s influence in the late 1990s and early 2000s, when he had become the de facto leader of the court’s liberals, Stevens represented something of a throwback — a connection to a Supreme Court world only dimly remembered or read about in history books.

An article by Noah Feldman:  It’s gratifying when the courts stand up to President Donald Trump’s abuses of executive power. But the federal appeals court that held Tuesday that Trump can’t block users from his personal Twitter account doesn’t fit into that paradigm. Although its decision will be hailed by some as a win for free expression, it’s actually based on a misconception about our social media accounts — one the U.S. Supreme Court is going to have to fix. Here’s the basic problem: The U.S. Court of Appeals for the 2nd Circuit assumed in its opinion that Trump’s Twitter account was either “private” — in effect, Trump’s own property to do with as he wishes — or else “public,” in the sense that the account was a government-controlled space in which the First Amendment should apply...The reality, however, is that Trump’s Twitter account isn’t his private property or a government-controlled space. It’s something else: property controlled by Twitter Inc.

Particular moments in history and strategic breaks with unwritten rules have helped many presidents expand their powers incrementally, leading some to wonder how wide-ranging presidential powers can be. [With comments from Noah Feldman, Mark Tushnet, Michael Klarman, Jack Goldsmith, Daphna Renan, and Neil Eggleston].

With Facebook, Twitter, and YouTube facing widespread criticism for the way they manage hateful, abusive, threatening, or fake content posted by users or content partners on their sites, many question whether private tech companies deserve to wield so much power to control what people can and can’t see on social networks....Facebook first established a massive force of content moderators—mostly employed by third-party companies—to help find and remove toxic content. The company said it had 15,000 content reviewers around the world by the end of 2018. Last November, Facebook CEO Mark Zuckerberg announced that Facebook would also, by the end of 2019, form an external, independent oversight board to oversee its content moderation decisions. The board would be “. . . a new way for people to appeal content decisions to an independent body, whose decisions would be transparent and binding” based on the idea that “Facebook should not make so many important decisions about free expression and safety on its own.”...The whole idea for an oversight board came from outside Facebook, from Harvard Law professor Noah Feldman, who is the main architect of Facebook’s plan. I spoke to him by phone about the details of his plan, and about some of the problems it’s likely to face.

An article by Noah Feldman:  President Donald Trump is politicizing the Fourth of July — so say the president’s critics in tones of frank outrage over his plans for a presidential speech accompanied by fighter jet flyovers. It’s not only, they say, that Trump is promoting militarism by parading some tanks through Washington. Rather, Trump is taking the wholesome, politically neutral, family fun of the holiday and using it to advance his own partisan interests. In place of hot dogs and fireworks, Trump is bringing us Republican elephants. There’s just one problem with this line of criticism: The Fourth of July was a partisan holiday from the time it was first celebrated in the 1790s. It became popular as a self-conscious endorsement of Thomas Jefferson, his Declaration of Independence and the first Republican Party — over George Washington, Washington’s Birthday and the Federalist Party.

An article by Noah Feldman:  We don’t know whether the Department of Justice lawyers working on the census case were fired en masse or quit. Either way, Sunday’s announcement was a genuinely shocking development in President Donald Trump’s efforts to add a citizenship question to the 2020 count. It’s bizarre to the point of being unprecedented for the government to change horses like this in the middle of such a highly time-sensitive legal process. The move signals that the Trump administration is very likely on the way to making some doubtful legal claims — claims that will have to be in stark contradiction to what the Department of Justice has already said to the federal courts, including the U.S. Supreme Court, in a lawsuit brought by civil-rights groups trying to scrap the question.

An article by Noah Feldman: The U.S. Supreme Court issued an important decision Wednesday narrowly declining to overrule an important doctrine of administrative law, with Chief Justice John Roberts joining the liberal justices solely on the basis of stare decisis — the principle that precedent should be respected, even if you don’t agree with it. For those who care deeply about the future of the administrative state, the first half of that sentence is the interesting one. The court is now fully engaged in an epic battle over whether to dismantle administrative law as we know it. That battle pits the insurgent, activist Justice Neil Gorsuch against the court’s liberals, who are very much on the defensive. In the case decided Wednesday, Kisor v. Wilkie, Justice Elena Kagan managed to pull off a successful piece of counterinsurgent strategy, persuading Roberts not to go over to the rebel side.

An article by Noah Feldman: Chief Justice John Roberts split the baby — again. In a dramatic and complicated opinion in a much watched census case, he first held that the Trump administration’s decision to add a citizenship question to the 2020 census was constitutionally and statutorily permissible and was supported by sufficient evidence. He was joined by the U.S. Supreme Court’s other conservatives. Then Roberts switched course. In a separate part of his opinion, in which he was joined by only the court’s four liberals, Roberts held that Secretary of Commerce Wilbur Ross had not given his true reasons for wanting to ask about citizenship on the census, but had instead given a “pretext” — lawyer-speak for a lie. In this part of the decision, Roberts upheld U.S. District Judge Jesse Furman’s decision to send the census case back to the Commerce Department to give a new (and presumably honest) explanation for its actions.

An article by Noah Feldman: When the 2018 Supreme Court term began in October, all eyes were on the confirmation of the newest justice, Brett Kavanaugh. By the time the term wrapped up in June, the center of attention was Chief Justice John Roberts. And that’s where the focus is likely to stay as long as the court continues in this configuration. So far, the retirement of Justice Anthony Kennedy last summer has not had the effect of turning the court into a reliable forum for 5-4 decisions with the conservatives on top. Instead, Roberts seems to be embracing the role of the centrist — as he did most prominently in this term’s marquee case, blocking (at least temporarily) President Donald Trump’s administration from adding a citizenship question to the 2020 census. Not every swing voter is the same, however. Roberts is extremely different from Kennedy.

After 15 years trying to connect the world, Facebook Inc. is attempting to set up a better system for providing oversight of its sprawling platform. That effort is proving to be far from simple. The social-media giant on Thursday published a report on its efforts to create an independent content oversight board to examine some of its most controversial content moderation decisions...On Thursday, Facebook released Mr. Zuckerberg’s video discussion with two experts about governance: Noah Feldman, a professor of law at Harvard University who has been advising Facebook on the design of its oversight board, and Jenny Martinez, a human rights lawyer and dean of Stanford Law School.

It’s been roughly six months since Facebook started collecting global feedback on its proposal to create an oversight board for content moderation decisions. This morning, the platform released the findings of that process in an epic report—almost 250 pages of summary, surveys, public comment, workshop feedback and expert consultations...The report begins by outlining the (relatively short) history of the idea of an oversight board: the process began with Harvard Law Professor Noah Feldman pitching the idea to Facebook in early 2018, followed by CEO Mark Zuckerberg first publicly floating the idea of a Facebook “Supreme Court” on a podcast in April 2018.

Every week it seems there is a new controversy about content on tech platforms...In November, Facebook announced the most ambitious and proactive idea of how to deal with these issues and rebuild trust in the way these consequential decisions are being made. It proposed an independent Oversight Board to hear disputes regarding the platform’s Community Standards and give transparent and binding decisions...Though multiple people have called for an appeals process and transparencyin Facebook’s content moderation process for years, the report cites a game-changing white paper by Harvard Law professor Noah Feldman written in March 2018. In remarks made public for the first time in the report, Feldman calls for the creation of a “Supreme Court to protect and define free expression and association on Facebook. Along with a lower appeals court, the court would interpret and apply an iconic, one-sentence values commitment that Facebook would adopt.”

Facebook Inc. appears to be moving ahead with the Supreme Court-like content oversight board it has been discussing for a year. It’s a worthy step but also a 1% solution for a unimaginably vast problem...Facebook has solicited feedback on the structure for this Supreme Court-like body, and Bloomberg News on Monday described some of the company's deliberations to come up with the best structure and policies. (Noah Feldman, a Harvard Law School professor and Bloomberg Opinion columnist, pitched the concept of an independent oversight board to Facebook. I haven’t spoken with him about this oversight body.)

An op-ed by Noah Feldman: The U.S. Supreme Court issued an important decision Wednesday narrowly declining to overrule an important doctrine of administrative law, with Chief Justice John Roberts joining the liberal justices solely on the basis of stare decisis — the principle that precedent should be respected, even if you don’t agree with it. For those who care deeply about the future of the administrative state, the first half of that sentence is the interesting one. The court is now fully engaged in an epic battle over whether to dismantle administrative law as we know it.

An article by Noah Feldman: Amid the flood of opinions the U.S. Supreme Court is releasing in the last two weeks of its term, it would be easy to neglect Gundy v. U.S., in which the court very narrowly upheld a federal law that allows the attorney general to decide whether to require registration by sex offenders who were convicted before the passage of the registration law. But ignoring the Gundy case would be an unfortunate mistake. What matters about it isn’t so much its consequences for sex offenders, or even its unexceptional outcome. What matters is the dissent by Justice Neil Gorsuch, which forms an important bridgehead in the conservative assault on the administrative state. His dissent squarely rejects a foundational constitutional doctrine that underlies almost everything federal agencies do: the doctrine that says Congress can delegate whatever decision-making authority it wants to executive branch agencies provided there is an “intelligible principle” to guide the agencies’ discretion.

An article by Noah Feldman: The U.S. Supreme Court has painted itself into a corner. Two years ago, it held that the First Amendment required the Patent and Trademark Office to register the trademark for a band called the Slants, despite the “offensive” character of the name. Now it has held that the office must register a clothing brand by the designer Erik Brunetti under the name “FUCT,” even though the PTO deemed the mark “immoral” or “scandalous.” Monday’s decision is a big step in the direction of an absolutist conception of free speech. Although several justices wrote separately to say that they thought trademark law could be tweaked so that the government wouldn’t have to give the coveted “TM” designation to pure vulgarities, it’s far from clear that a majority of justices would uphold such a law if Congress adopted it. For now, it’s open season for parties seeking trademark protection for essentially anything.

If the President of the United States opposes a bill passed by Congress, he may veto it. But is he allowed to sabotage through executive action a law passed by Congress and signed by an earlier President? This is the central question in a recently filed lawsuit against the Trump Administration that alleges the Administration has intentionally acted to undermine the signature health insurance reform legislation signed by President Barack Obama...Several scholars have previously taken positions similar to the arguments made by the cities in their challenge to the Trump Administration’s actions. Yale Law School Professor Abbe Glucksuggests that the duty to faithfully execute laws entails ensuring “that our laws are implemented in good faith” and using “executive discretion reasonably toward that end.” Similarly, Harvard Law School Professor Noah Feldman contends that the Constitution “recognizes that the president can’t necessarily enforce every law. But it requires a good faith effort.”