Noah Feldman

An op-ed by Noah Feldman. Last week I had to defend Donald Trump’s free-speech rights. Now that a Florida jury has awarded Hulk Hogan $115 million in his suit against Gawker, I have to defend the original snark-site’s free-press right to have shown a sex tape of the retired wrestler and his erstwhile best friend’s wife. This First Amendment stuff is sometimes a serious drag.

An op-ed by Noah Feldman. Tennessee State Representative Martin Daniel stirred up some outrage when he said this week that the First Amendment should give Islamic State the right to recruit on state campuses. He's wrong about the First Amendment, which doesn't prevent bans on coordinated recruitment. But the bill he was defending, which would create designated zones for free speech at state-funded Tennessee universities, isn't such a bad idea. The law governing free speech on campuses is much more restrictive than the law that applies on a street corner or in a park. We may be approaching a time where there would be a benefit to designating safe spaces for free speech, protected from the regulatory requirements of the Department of Education and the norms of campus life.

Supreme Court nominee Merrick Garland is a graduate of both Harvard University and Harvard Law School. Harvard Law professor Noah Feldman spoke with WGBH All Things Considered host Barbara Howard about Garland's reputation at Harvard and the chances of his nomination to the nation's highest court being confirmed.

An op-ed by Noah Feldman. Can a judicial decision be both tragic and correct? Yes, as the U.S. Court of Appeals for the First Circuit showed yesterday when it upheld the dismissal of claims by underage girls who were victims of sex trafficking facilitated by the website Backpage.com. The court acknowledged that the young women had made “a persuasive case” that the company “tailored its website to make sex trafficking easier.” Yet it applied the federal Communications Decency Act that essentially shields apps or websites from liability for third-party material published using their platforms. The court concluded that the suit against Backpage couldn’t continue.

An op-ed by Noah Feldman. Merrick Garland is the safest possible pick for President Barack Obama. Extraordinarily well-qualified, moderate and often pro-prosecution, Garland has been considered a potential Supreme Court nominee almost since Bill Clinton put him on the U.S. Court of Appeals for the D.C. Circuit, in 1997. But if he isn’t confirmed, it isn’t a permanent loss for Democrats. Sri Srinivasan, his much younger near-clone, will still be waiting in the wings as a confirmable moderate Democratic back-up.

An op-ed by Noah Feldman. Russian President Vladimir Putin had his “mission accomplished” moment Monday, announcing that Russia would withdraw its main forces from Syria after they turned the tide in President Bashar al-Assad’s struggle against Syrian rebels. The announcement partly explains why Putin has been supporting a cease-fire and truce talks over the last month: His goal is to consolidate the gains he and Assad made together. From a purely cynical perspective, the operation has been a fairly impressive success for Putin: Bomb intensely to create a humanitarian crisis while your troops advance, then negotiate peace to look like a good guy while assuring that the other side can’t fight back without violating the truce. And accomplish all this while strengthening your bargaining position vis-à-vis the U.S. and Europe.

An op-ed by Noah Feldman. North Carolina offers drivers a license plate with the slogan “Choose Life,” but for years has refused to offer a pro-choice plate. If you think that sounds like the state is unlawfully choosing between the two viewpoints, you’re not alone. In 2014, the U.S. Court of Appeals for the 4th Circuit said the state had to play fair under the First Amendment and allow both. Last week, the appeals court reversed itself -- and not by choice. It was following orders, by applying the U.S. Supreme Court’s 2015 decision that upheld a Texas license-plate program in which the state refused to allow a plate featuring a Confederate battle flag.

An op-ed by Noah Feldman. The melee at the Donald Trump rally Friday night in Chicago raises a fundamental First Amendment question: When a speaker, such as the Republican presidential candidate, is confronting angry protesters, whose speech rights come first: the speaker’s or the protesters’? The U.S. Supreme Court’s answer to this question has evolved over the years. At one time, the court was ambivalent, sometimes favoring the speaker and sometimes willing to shut down the speaker to avoid public disorder. Today, however, the norm is clear: Protesters who disrupt a rally can be removed by police so that they don’t exercise what’s called a heckler’s veto over the rally’s organizer.

An op-ed by Noah Feldman. The circumstances of the birth of Republican presidential candidate Ted Cruz put constitutional citizenship into the headlines. Also in the news: A federal judge in Puerto Rico ruled last week that the U.S. Supreme Court’s gay-marriage decision doesn’t follow the flag to the island. What would happen if you mashed the two issues together, mixing birthright citizenship with the Constitution’s applicability to U.S. territories? The answer to this otherwise random-seeming question is in fact before the Supreme Court right now. At issue is whether it’s constitutional for Congress to deny birthright citizenship to people born in American Samoa, which has been a U.S. territory since 1900.

An op-ed by Noah Feldman. A federal judge in Puerto Rico ruled Tuesday that the Supreme Court’s decision in favor of gay marriage doesn't apply on the island, which is a commonwealth with a unique constitutional status. The ruling will eventually be reversed on appeal. But its effect is meaningful nonetheless, because it functions as a double protest: against the high court's support for gay marriage and against the unresolved constitutional status of the island.

An op-ed by Noah Feldman. Filing a friend-of-the-court brief to the Supreme Court sounds like an act of spontaneous intellectual generosity meant to help the justices see all sides of a case. Or maybe an exercise in lobbying by interest groups. Actually, it's neither. A new article by two law professors shows that an organized business they dub the “amicus machine” generates hundreds of amicus curiae briefs, planned and coordinated by the specialized guild of lawyers who argue before the court. Surprisingly, the authors think the machine is a good thing.

An op-ed by Noah Feldman. Europe can’t build a wall to keep out Syrian refugees. But today European Union leaders did the next best thing from their perspective, announcing an agreement with Turkey to repel and return all those trying to come illegally into Greece by boat from Turkey. The plan represents a major shift for the EU in dealing with the Syrian refugee crisis. In place of a generous legal approach that rejected mass returns of asylum seekers, Europe is now adopting a much more hard-line attitude that distinguishes sharply between migrants seeking illegal entry and refugees who’ve already been processed within Turkey and may be granted legal settlement rights and asylum.

An op-ed by Noah Feldman. A Senate committee report has charged that U.S. President Barack Obama “bowled over” the independent Federal Communications Commission when he urged it to regulate net neutrality last year. An influential commentator went so far as to say that the White House “broke the law.” But a clear understanding of executive power and the relevant law indicates that these claims are misguided. It’s perfectly appropriate for the president to try to influence an executive agency, even one that’s independent in the sense that its leadership can only be removed for good cause. Nothing in the Senate report even vaguely suggests that Obama or his aides broke any law.

An op-ed by Noah Feldman. Can the government limit nasty political ads on public buses? Great question. Just not one the Supreme Court will be answering this year. On Monday the justices refused to address it in a case arising from ads considered Islamophobic by the Seattle public transit authority. Justice Clarence Thomas, joined by Justice Samuel Alito, dissented from the court's refusal to hear the case. His reasoning -- and the implicit logic behind the denial of certiorari by the court -- sheds light on a truly fascinating and important problem in free-speech law.

An op-ed by Noah Feldman. You’ll be forgiven for chuckling at the story that a former law student is suing her law school because she didn’t get a job she liked after graduation. What could be more measure for measure? The Thomas Jefferson School of Law in San Diego taught Anna Alaburda to sue. Now she’s suing it. Alaburda’s suit essentially alleges false advertising: She says the school misrepresented the employment record of its graduates, inducing her to attend and amass debt.

An op-ed by Noah Feldman. The “death of fathers,” Claudius tells Hamlet, is nature's “common theme.” That theme played out last week at the U.S. Supreme Court. In the shadow of memorial services for Justice Antonin Scalia, Justice Clarence Thomas, who is something like Scalia's jurisprudential son, stepped into the light and broke his decade-long silence during an oral argument. He did it in a classic Scalian manner, catching a government lawyer off-guard and badgering her in an intellectually interesting way about gun rights. Then Justice Elena Kagan published a Scalia-style dissent in a statutory interpretation case, the late justice’s area of special expertise.

An op-ed by Noah Feldman: Reading Justice Elena Kagan’s breezy, colloquial, witty dissent inLockhart v. U.S., the grammar case handed down Tuesday, wasn’t like reading an ordinary Supreme Court opinion -- because it was breezy, colloquial and witty. Spurred by the competition, Justice Sonia Sotomayor, writing for the majority (which is much harder), tried out a few colloquialisms herself. Something new is afoot at the court, and Kagan is at the forefront of it. In the era of fan-girl books about the court, like “The Notorious RBG,” humor is becoming a permissible mode of judicial expression.

An op-ed by Noah Feldman: What’s an undue burden? That question was at the heart of Wednesday’s oral argument at the U.S. Supreme Court in the Texas abortion case of Whole Woman’s Health v. Hellerstedt. In particular, the conversation focused on whether the court needs to do a cost-benefit comparison to determine an undue burden -- and if it does, what statistical evidence is needed to do it properly. As expected, the oral argument reinforced the sense that the outcome of the case depends on Justice Anthony Kennedy. The four liberal justices made it pretty clear that the Texas law, which requires abortion clinics to operate more like hospitals, should be struck down. The three conservatives, sorely missing the support of Justice Antonin Scalia, will surely vote to uphold it, although Justice Clarence Thomas kept silent on Wednesday. What matters, therefore, is how Kennedy is thinking about the undue-burden problem.

Bloomberg Law Brief with June Grasso. Noah Feldman, a Harvard Law School professor and Bloomberg View Contributor, and Steven Vladeck, a law professor at the American University Washington College of Law, discuss a Texas abortion case that was heard in the supreme court on Wednesday. The case could have wide-ranging effect on women’s healthcare across the country, but after the death of Justice Antonin Scalia, there is the chance that the case could end in a 4-4 tie. They spoke with Bloomberg Law Hosts Michael Best and June Grasso on Bloomberg Radio’s "Bloomberg Law".

An op-ed by Noah Feldman. The problem of presidential nominees who can’t get a vote from the U.S. Senate isn’t restricted to Supreme Court justices. It’s a recurring, structural issue that’s affecting executive officials of all kinds, including ambassadors. One partial solution to unfilled executive appointments, adopted by Barack Obama’s administration and by previous presidents, is to make someone the acting head of a department, then nominate that same person to fill the job permanently. Last year, the U.S. Court of Appeals for the D.C. Circuit issued a decision that makes this fix essentially impossible. Now the Obama administration has said it will ask the Supreme Court to reverse that decision.

An op-ed by Noah Feldman. Should laws be understood based on the way people speak? Or should they be interpreted according to technical rules of statutory construction, so that law becomes a specialized language game all its own? In a decision issued Monday, the U.S. Supreme Court voted, 6-2, for the second option. The case, Lockhart v. U.S., promises to be a classic. The court’s breakdown was about jurisprudence, not partisan ideology. And the issue was, remarkably enough, dangling modifiers.