Noah Feldman

An op-ed by Noah Feldman. What good is the establishment clause if you can never use it? That’s the takeaway from a federal appeals court that refused to entertain a claim by parents in a New York town who allege that the Hasidic majority of the school board is illegally diverting money to religious institutions. The court relied on a narrow interpretation of the doctrine of standing, holding that the parents’ case couldn’t continue because they hadn’t been directly harmed by exposure to an unwanted religious law or message. This would be a shock to the Founding Fathers, who staunchly opposed spending tax dollars on religious causes -- but weren’t much troubled by government endorsement of religion. The appeals court’s decision stands the Framers’ establishment-clause values on their head.

An op-ed by Noah Feldman. Affirmative action in government contracting is alive -- barely. Last week, a federal appeals court upheld a Small Business Administration program that gives advantages to people who have suffered racial discrimination, reasoning that the law as written doesn’t discriminate on the basis of race, because anyone can be the target of racial bias. The decision, which is based on paper-thin legal logic, is an attempt to keep remediation-based affirmative action from disappearing altogether. It may be too little, too late.

An op-ed by Noah Feldman. A Senate panel has called the online advertising site Backpage.com a clearinghouse for sex trafficking in minors, and has subpoenaed its policies and records. The company says it’s a canary in the coal mine for government intrusion into the editorial decisions of journalists -- and has asked the Supreme Court to block the subpoena. Chief Justice John Roberts has stayed the subpoena to read briefs from the opposing parties. When he digs into the details, he may find that both sides are at least partly right.

An op-ed by Noah Feldman. We have the right to pick and choose our friends, romantic partners and guests. And there are laws to ensure that hotels or restaurants can’t discriminate on the basis of race or sex or national origin. What’s less clear is which of these standards should apply to sharing-economy services such as Airbnb, which fall somewhere in between the public and private spheres: The host is renting space, but that space is otherwise private and the host often lives there. In general, the Civil Rights Act prohibits race and sex discrimination in “public accommodations” such as hotels and lunch counters. And the Fair Housing Act prohibits discrimination in long-term rentals and sales. But courts haven’t yet held that these federal laws cover an overnight stay in a private home.

An op-ed by Noah Feldman. A Superior Court judge just took over Connecticut's education system, ordering state officials to undertake major reforms of funding, teacher evaluation and graduation standards. The impulse to improve education is admirable, but the judge wildly overreached his authority. The Sept. 7 decision is an object lesson in what happens when judicial restraint is ignored. Judges are poorly placed to compel and supervise detailed policy reforms, and they’re less expert on the subject than state officials who are responsible to the electorate.

An op-ed by Noah Feldman. The defamation lawsuit that Roger Ailes’s lawyer is threatening against New York magazine would seem to have no chance of legal success. So why has the former chairman of Fox News bothered to hire the lawyer who brought down Gawker on behalf of Hulk Hogan? The answer is that the threat puts the magazine on the defensive -- and that's a problem for free speech. The First Amendment has been interpreted to protect even defamatory speech against public figures. But as the Hogan case shows, not every court applies the constitutional standard correctly. In that environment, even legally empty threats have a chilling effect.

An op-ed by Noah Feldman. What if you could vote in the general election -- but not the primary? Reversing itself, an appeals court has upheld the Tucson city council’s strange electoral system, which creates exactly this anomaly for some voters. The result is probably legally correct. But the voting system is fairly dysfunctional, and should be changed. Tucson’s practice, which dates from 1929, isn’t completely unheard of, but it’s genuinely strange.

An op-ed by Noah Feldman. Just about the only thing dumber than judicial elections is trying to regulate what judges can say when they’re running for office. Last year, the Supreme Court struggled with this problem in a case about judicial fundraising. Now an appeals court has struck down elements of Kentucky’s nonpartisan judicial election rules that try to regulate how judges can talk about party affiliation. The court came up with a good general principle -- namely, that states can’t try and have it both ways, staging judicial elections while barring candidates from explaining why they should be elected. But the principle should be taken even further: If states choose judicial elections, then the First Amendment should require them to let those candidates speak freely, exactly like anyone else running for office.

An op-ed by Noah Feldman. Do undocumented mothers and children who are caught just after they’ve entered the country illegally deserve judicial review after immigration officials have decided they don’t qualify for asylum? If you’re a foreigner denied access to the U.S., you have no right to a court hearing. If you’ve been in the country for a while, even illegally, you’re entitled to face a federal judge before being deported. But there's a constitutional gray area that applies to undocumented immigrants who are caught within two weeks of entering the country or within 100 miles of the border.

An op-ed by Noah Feldman. Ma Bell came back from the grave Monday, saving AT&T from the supervision of the Federal Trade Commission. The FTC had sued the company for intentionally “throttling” the mobile internet for its unlimited data customers when they passed a certain usage. A federal appeals court rejected the suit on the ground that as a common carrier, AT&T is exempt from FTC regulation. The outcome is wrong, the product of a literalist reading of the laws that produces terrible real-world consequences. It should be reversed, by the courts or by Congress.

An op-ed by Noah Feldman: Major media outlets in France have recently decided not to publish the names and faces of terrorists so as not to glorify them and encourage copycats. On the surface, this might seem like reasonable self-imposed discretion in the interests of national security. But it’s actually self-censorship -- and it’s dangerous. It reflects a subtly mistaken conception of why jihadis are prepared to die for their cause, and it risks dehumanizing an enemy that is dangerous precisely because its adherents are humans with identifiable motives. The French daily Le Monde, the Catholic newspaper La Croix and a French affiliate of CNN called BFM-TV expressly connected their decisions to the recent spate of attacks in France. Le Monde said the goal was to prevent “posthumous glorification” of the terrorists.

An op-ed by Noah Feldman: Religious liberty and transgender rights are two of the signature civil-rights issues of our era. So it was only a matter of time before these competing ideals of freedom and equality came into direct conflict -- and now a federal district court has held that religious-liberty laws can trump the laws that prohibit sex-based discrimination. The decision is an indication that the courts need to recognize bias against transgender people as a form of sex discrimination. The case involves an employee of a Michigan funeral home who began transitioning from male to female. The funeral home has a gendered dress code that requires male funeral directors to wear suits with trousers and female directors to wear skirt suits. The employer refused to allow the transitioning employee to wear a skirt suit on the job, firing her when she refused to wear the men’s attire.

An op-ed by Noah Feldman: In a victory for teachers’ unions, the California Supreme Court on Monday refused to strike down the state’s generous tenure laws -- which a lower court had said violated students’ rights to an adequate education. Significantly, the court’s 4-3 ruling didn’t break down on purely partisan lines. Two prominent liberals, each of whom could be contenders for the U.S. Supreme Court in a Hillary Clinton administration, dissented. That’s evidence of a growing divide among liberals about whether favoring teachers might actually be a bad thing for students. In 2014, a California lower court judge struck down teacher tenure provisions as violating the state constitution. As I noted the time, California’s laws seem poorly designed, allowing tenure after just two years and even when the teacher may not be fully credentialed. Aside from the badness of the law, I criticized the judicial decision harshly for its lack of well-developed constitutional reasoning. Among other things, the court simply asserted in a single paragraph that poor schools tend to get worse teachers, and that this counts as a violation of the equal protection of the laws.

An op-ed by Noah Feldman: When a state has made it easier to vote, can it reverse course and make it harder? The simplest answer is that it can -- provided the effects don’t disproportionately hurt racial minorities. But the devil is in the details, as a divided federal appeals court proved this week when it upheld Ohio’s rollback of its “Golden Week,” in which voters could register and vote at the same time. Two judges thought Ohio’s otherwise expansive voting opportunities made the revocation of Golden Week no problem. A third thought the Ohio legislature’s decision imposed a disparate burden on black voters, and was unlawful. Both positions were right. Behold the difficulty of applying voting rights law fairly and rationally in the age of subtle discrimination.

An op-ed by Noah Feldman: Cockfighting, although practiced around the world, is banned in all 50 states. But is someone who breaks the ban committing a crime of moral turpitude? A federal appeals court has said no, declining to deport an immigrant convicted of facilitating a cockfight. In a line that may outrage animal-rights activists, the court said that a crime of moral turpitude must involve harm to third parties, not just directly to the chickens. The outcome is correct for the immigrant, but not precisely for the reason the court gave. In a society that condones the factory-farm killing of billions of animals, it would be the height of hypocrisy to deport someone for killing just one rooster pursuant to an unfamiliar cultural practice.

An op-ed by Noah Feldman. It’s never the wrongdoing -- it’s the lying about it. Pennsylvania Attorney General Kathleen Kane, who announced her resignation Tuesday in the face of a possible 14-year sentence for her conviction on perjury charges, proves the truth of that adage for public corruption cases. Leaking grand jury proceedings to embarrass a political rival would not have gotten her sent to prison. But lying about it under oath could and will. How could a state’s top law enforcement official be so dumb? Why are perjury charges so serious? And why don’t people, even lawyers, realize it?

An op-ed by Noah Feldman. How much leeway should Marines have to express their religious beliefs? According to Congress, religious liberty laws apply with full force to the military. But last week the highest court in the armed forces put some limits on claims by active-duty personnel. Those limits cut against recent trends in Supreme Court jurisprudence -- but they make a lot of sense in a military context, even if they shouldn’t necessarily be copied by other courts for civilians.

An op-ed by Noah Feldman. A century ago, Donald Trump might have gone to prison for suggesting that “the Second Amendment people” might find a way to stop Hillary Clinton’s agenda as president. Today, the First Amendment protects him -- barely. It’s still a federal crime to threaten the life of the president, and people go to jail for it all the time, despite the apparent abridgment of free speech. But while Trump’s words would probably get him a Secret Service visit if he were an ordinary crazy person, they wouldn’t lead to prosecution.

An op-ed by Noah Feldman. The American Bar Association is considering adding a rule to its canon of ethics that would prohibit lawyers from discriminating in the course of their jobs. The proposal seems innocuous and probably overdue -- but it has encountered a surprising degree of opposition. So it seems reasonable to ask: Why is this even a thing? How can anyone in good conscience think that barring discrimination by lawyers is a bad idea? The answer is that the legal profession is the last bastion of unfettered, unapologetic nastiness, proudly flying the flag of zealous client representation. In some ways, that’s good. The adversarial system calls for a degree of confrontation and aggression that would be inappropriate in almost any other professional context. Yet it should be possible to craft rules to carve out certain kinds of nastiness -- including discrimination on the basis of race, sex, sexual orientation, or other invidious motives.

An op-ed by Noah Feldman. Only Donald Trump knows whether he was serious about asking Russia to hack into Hillary Clinton’s e-mail server, now in government hands, to find 30,000 emails that were erased as private. But let’s assume Vladimir Putin was listening. Did Trump commit a crime by inciting lawless action? Or are his words protected by the First Amendment? Trump was probably making a political statement, trying to change the subject from a possible pro-Trump Russian hack of Democratic National Committee e-mails to Clinton’s own e-mail scandal. Political statements are ordinarily at the core of free-speech protection.

An op-ed by Noah Feldman. Two prominent legal decisions accidentally converged Wednesday, each likely to be deplored by a different political constituency. Baltimore prosecutors dropped all charges against three police officers who had been accused in the death of Freddie Gray, which will frustrate supporters of the Black Lives Matter movement. And a federal judge is allowing John Hinckley Jr., who tried to kill President Ronald Reagan, to move into his mother’s house in a “convalescent release” -- a decision already criticized by Donald Trump, among others. The two decisions have something important in common: They both came from conscientious public officials who were following the laws that govern their jobs. You may not like one or both of them. But if you value the ideal of a government of laws, not men, you should accept the decisions as understandable consequences of the law.