Media Mentions

When it comes to President Trump signing an executive order attempting to punish social media companies, Harvard Law Professor Laurence Tribe says the president is ‘creating a problem where there really was none.’

Cass Sunstein, Bloomberg Opinion columnist and Harvard Law professor, discusses his column, "Twitter Strikes Balance Between Liberty and Lies." Hosted by Lisa Abramowicz and Paul Sweeney.

A proposed U.S. Forest Service rule stands to weaken a check on oil and gas development in national forests and possibly give the Interior Department more sway over land leasing decisions, legal analysts and conservationists say. The rulemaking, announced in 2018, aims to align the Forest Service’s leasing practices with those of the Bureau of Land Management to speed up fossil fuel development in national forests and grasslands nationwide, including oil and gas-rich forests in Ohio, Mississippi, and Colorado...The BLM, part of the Interior Department, is in charge of oil and gas leasing on all federal lands, including those managed by the Forest Service—which is part of the Agriculture Department. Federal law prohibits BLM from leasing in national forests without Forest Service consent, Parker said. The Forest Service is remaking its oil and gas regulations at a time when it is weakening environmental checks and balances under the National Environmental Policy Act and joining with the BLM in prioritizing logging and fossil fuels development on federal public lands, said Hana Vizcarra, staff attorney at the Harvard Law School Environmental and Energy Law Program...The service is also working on an update to its mining rules that would expedite mining permit applications with minimal environmental review by aligning the rules with those of the BLM. “When you look at this administration’s track record of pursuing revisions to rules, policies, and practices that favor oil and gas production over resource and ecosystem protection, it implies we’re going to see more of the same here,” Vizcarra said, referring to the Forest Service’s oil and gas rulemaking.

A podcast by Noah Feldman: Dr. Alex Marson, the Director of the Gladstone-UCSF Institute for Genomic Immunology, explains what antibodies tests can and cannot tell us.

There is no freedom more important than the right to free speech. So why aren't more conservatives speaking out now that President Donald Trump has issued his most serious threat in recent memory to our collective First Amendment rights? On Wednesday the president threatened Twitter, a social media platform that he has used for half a decade to advance his political cause, after it included a fact-check label on one of his tweets. First things first: Twitter was indisputably correct in saying that Trump had uttered a falsehood when he claimed mail-in ballots are fraudulent...Yet even if Twitter had been factually wrong, it is still a private company that has the right under the First Amendment to criticize our government and its leaders without fear of reprisal or censorship. It is Trump's job as president to protect those rights even — no, especially — when they are used by those who oppose him... "The threat by Donald Trump to shut down social media platforms that he finds objectionable is a dangerous overreaction by a thin-skinned president. Any such move would be blatantly unconstitutional under the First Amendment," Harvard Law professor Laurence Tribe told Salon by email. "That doesn't make the threat harmless, however, because the president has many ways in which he can hurt individual companies, and his threat to do so as a way of silencing dissent is likely to chill freedom of expression and will undermine constitutional democracy in the long run."

An article by Peter Brann and James Tierney: Maine is not immune from a virus that knows no borders as it sweeps across the world, stealing the lives of loved ones. To keep ourselves safe, we have also lost many of the things we hold dear, such as graduations, summer fairs and family get-togethers. To combat this plague, Gov. Janet Mills has invoked emergency powers to protect the health and safety of all Mainers. Every state governor has always had extensive emergency powers, and when they are invoked following hurricanes, tornados and other disasters, no one blinks an eye. Now we face the largest worldwide pandemic in more than a century, which has killed nearly 100,000 people in the United States and sickened more than 1,670,000 people in the United States (and more than 5,500,000 worldwide). A small minority nonetheless have gone to court to claim that Mills is violating their constitutional right to do whatever they want whenever they want, effectively claiming a constitutional right to endanger the rest of us. These lawsuits lack merit and mangle our national heritage. In the debate over whether to send troops to fight the Revolutionary War, Patrick Henry famously said, “Give me liberty or give me death!” Unfortunately, the critics challenging Mills’ emergency orders fighting the COVID-19 pandemic essentially misquote Henry, arguing instead, “Give me liberty and give me death!” Fortunately, the Constitution strikes a different balance.

An article by Laurence Tribe and Joshua Geltzer: On Tuesday, President Trump claimed — on Twitter, no less — that Twitter is “stifling FREE SPEECH,” thus suggesting that Twitter is violating the First Amendment. As usual, Trump is wrong on the law, but this time he’s even more wrong than usual. There is someone violating the First Amendment on Twitter, but it’s not Twitter — it’s Trump. What’s more, his threat on Wednesday to shut down Twitter altogether would mean violating the First Amendment in new ways. Trump is utterly mistaken in claiming that Twitter is violating the First Amendment — or even that Twitter can violate the First Amendment. Prompting Trump’s outburst was the platform’s first-ever attachment of warnings to two of Trump’s tweets encouraging users to “get the facts about mail-in ballots.” Clicking the warning leads to a news story indicating that “Trump makes unsubstantiated claim that mail-in ballots will lead to voter fraud.” Attaching these warnings, Trump claimed, was Twitter’s First Amendment sin. But it’s no constitutional violation. To begin with, the First Amendment applies to the government — not to private actors like Twitter. So, when the company adds warnings to tweets or even — going a step further for users other than Trump — removes tweets, it can’t possibly violate the First Amendment, because it simply isn’t a governmental entity. You can love or hate how Twitter is regulating its own private platform — but you can’t call it a First Amendment violation.

An article by Cass Sunstein: President Donald Trump says a lot of things on Twitter that aren’t true. Twitter has a set of formal policies designed to combat misleading information. This week, Twitter applied its policies to two of Trump’s tweets, in which the president made misleading claims about voting by mail. Trump responded with a threat: "Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen." The threat had an immediate effect on the stock of Twitter Inc.; it fell dramatically afterward. To understand the controversy, we need to step back a bit. Social-media platforms such as Twitter, Facebook and YouTube are not subject to the Constitution at all. The First Amendment, which guarantees freedom of speech, applies only to the government. If Twitter denied a platform to Trump, or if it allowed only Republicans or only Democrats to have access to its platform, it would not be violating the Constitution. Nonetheless, Twitter has good reason to allow something like a free-for-all. Its whole purpose is to permit plenty of diverse people to say plenty of diverse things. That’s its business model. And if it’s providing a public service, as I believe that it is, it should not favor any particular side. It should certainly not appoint itself as the truth police.

An article by Noah Feldman: As the U.S. Supreme Court decides whether Donald Trump’s tax returns can be released to New York state prosecutors, an experiment in investigating and prosecuting a head of government is taking place across the ocean. On Sunday, Prime Minister Benjamin Netanyahu appeared in an Israeli court for the beginning of a criminal trial in which he is the defendant. Netanyahu’s trial is obviously a watershed in Israeli politics. Previous prime ministers charged with wrongdoing there had stepped aside rather than remaining in office while facing charges. But Americans may also want to keep an eye on the trial for what it might teach us about a constitutional question that has received a lot of attention during Donald Trump’s presidency: whether a sitting president can be subject to criminal prosecution. Of course, Israel has a parliamentary system of government, not a presidential one. It lacks a single, written constitution. It doesn’t have a federal system. Any lessons for U.S. constitutional law will be indirect. Yet Netanyahu’s example could still be highly instructive. That’s because so much of the constitutional debate in the U.S. over prosecuting the president has turned not on jurisprudential abstractions but on the question of whether a head of state charged with a crime would be too distracted to perform the duties of his office.

In 2011, the Obama administration transformed Title IX law by issuing its “Dear Colleague" letter, a set of recommendations encouraging colleges to amplify their protections of victims of campus sexual assault and harassment. But the Dear Colleague letter's guidelines have proved difficult for colleges to adhere to — and have attracted many critics, primarily for their failure to provide due-process protections for accused students. Harvard Law School’s Jeannie Suk Gersen is one of those critics. In her regular columns at The New Yorker and in a California Law Review article entitled “The Sex Bureaucracy” (a version of which appeared in The Chronicle Review), Gersen has argued that the Obama-era Title IX regime was “detrimental to the fight against sexual violence.” Under Betsy DeVos, U.S. secretary of education in the Trump administration, that regime is about to undergo major changes. The Chronicle Review spoke with Gersen about the new rules, how the Title IX debate became so polarized, legal challenges to DeVos by the ACLU, and the role of the law professor as public intellectual.

An article by Evelyn Douek: Donald Trump’s tweets pose a special problem for Twitter. Absolutely no one can be surprised that the president is using the platform to tweet false and inflammatory claims in the middle of a global pandemic and the lead-up to an election: This is the president’s signature style. His recent tweets have promoted baseless conspiracy theories about the death of Lori Klausutis, a former staffer for Republican congressman–turned–MSNBC host Joe Scarborough, and falsely claimed that an expansion of mail-in voting would rig the 2020 election. When Twitter took the unprecedented step of adding a fact-check link to Trump’s tweets about voting, many critics of the decision thought that CEO Jack Dorsey still had not gone far enough—they maintained that the offending tweets should come down, or that the company should kick Trump off its platform altogether. The problem is that Trump’s critics are looking to Dorsey to solve a problem that Twitter did not create. What the president says and does is inherently newsworthy. As The Atlantic’s Adam Serwer tweeted yesterday, “You can’t deplatform the president of the United States.” At the moment, the duly elected president is someone who deliberately puts out divisive misinformation on social media. Twitter can surely do a better job of enforcing its own rules and flagging Trump’s worst statements—this morning, for instance, he repeated his casual insinuation that Scarborough was involved in Klausutis’s death and allegations that mail-in voting would lead to election cheating, and so far no warning labels or fact-checks are attached. But a tech company can’t change who the president is.

An article by Sandra Wisner and Beatrice Lindstrom: In an unprecedented move, 14 United Nations-appointed human rights experts sharply admonished the UN last month for denying justice to victims of the cholera epidemic introduced to Haiti by UN peacekeepers in 2010. As communities around the world struggle to give meaning to the vast loss of life from COVID-19, the experts are right to draw renewed attention to this plight. Cholera broke out in Haiti for the first time in the country's history because the UN Stabilisation Mission in Haiti (MINUSTAH) failed to undertake basic precautions to prevent foreseeable harm. MINUSTAH deployed peacekeepers from Nepal - a country experiencing an active cholera outbreak - without adequately screening for infection, and then recklessly disposed of contaminated faecal waste into Haiti's largest river. The official death toll from cholera stands at 9,789, though studies suggest the true toll may be three to 10 times higher. Nearly one million Haitians have been infected - a per capita toll that exceeds any nation impacted by COVID-19 so far. It took six years of advocacy and lawsuits for the UN to pledge to address the harm suffered by cholera victims. In 2016, then Secretary-General Ban Ki-moon issued a long overdue apology for the UN's role in introducing the disease and launched a $400m initiative to eliminate cholera and provide "material assistance" to those most affected by the epidemic.

An article by Elizabeth Bartholet, Dr. Rachel Coleman, James Dwyer, Milton Gaither, and Frank E. Vandervort: As COVID-19 continues to destroy lives and the economy, forcing millions of American parents to begin teaching their children at home, Secretary of State Mike Pompeo and Sen. Ted Cruz (R-Texas) took to Twitter to call for shutting down discussion about research on the safety and quality of homeschooling, as well as proposed regulation of that practice. In a series of tweets, both recently took time off from leading the nation’s response to the global pandemic to denounce “barbaric” and “unconstitutional” proposals to safeguard children from abuse and ensure they are educated, calling advocates of such common-sense regulation “radical leftist scholars.” In recent years, we and many others focused on the welfare of children have raised an alarm about the absence of meaningful oversight of homeschooling and the risk this presents for up to 3 million youth across America. In response, a reactionary subset of the homeschooling movement – now including the nation’s top diplomat and the Texas senator and former presidential candidate – has mobilized aggressively to suppress public discussion and prevent any safeguards designed to protect children against maltreatment and ensure they receive a minimum level of education. The recent attacks on academic critique and suggested regulatory reform underscore the need for a civil, data-driven discussion about the advantages and pitfalls of homeschooling and how best to ensure the safe education of all children. While we have varying perspectives on homeschooling, we all recognize that there is enormous variety in the homeschooling population and that many homeschooling parents provide their children with an education far superior to that delivered in their local public schools.

In early April, after the Trump administration brushed aside New York Gov. Andrew Cuomo’s appeals for ventilators, Kate Brown, the governor of Oregon, shipped 140 of the breathing devices to help New York blunt COVID-19. China chipped in with another 1,000. Weeks later, Cuomo sent 400 ventilators to Massachusetts after its governor, Charlie Baker, came close to a public meltdown over federal interference with his efforts to buy medical supplies...In a complete reversal of what has long been the normal crisis or wartime dynamic, action and authority have devolved from the White House to the governor’s mansions during the COVID-19 pandemic. It is the states that have emerged as the counterweight to Trumpian dysfunction, a development that has led Trump to rage against the very people confronting the daily doses of death and despair—and the fallout from his incompetence and indifference...In the absence of sane federal policy, moreover, these and other governors have begun working with their neighbors...The hardest-hit Northeastern states, New York, New Jersey, Pennsylvania, Connecticut, Massachusetts, Rhode Island, and Delaware, followed suit, as did the Midwestern states of Illinois, Indiana, Kentucky, Ohio, Michigan, Minnesota, and Wisconsin. States have established compacts before, on issues ranging from criminal justice to the environment and transportation. But there is likely no historical precedent for states “banding together in the face of inaction by the federal government,” according to constitutional law professor Annette Gordon-Reed of Harvard Law. “This situation is not like the drivers of the typical interstate compacts,” Gordon-Reed says. “This is different, as an acute health crisis in which time is of the essence and could have been ameliorated with a coordinated effort.”

State and federal governments can't force people to receive a new coronavirus vaccine against their will, experts said, but lawmakers may be able to create a mandate that imposes consequences for not being vaccinated. Vaccine research for a new coronavirus is moving forward at an unprecedented rate and experts champion high rates of immunity in a population as a solution to stopping a virus from spreading. But a recent Reuters poll found about a quarter of the American public isn't interested in a vaccine for SARS-CoV-2, and the federal government may have a tough time creating a requirement that people be inoculated. It's possible Congress could have the power to mandate a vaccine under the commerce clause since the virus travels across state borders, constitutional law experts told Newsweek...The federal government could also leave the decision up to states. In the 1905 case, Jacobson v. Massachusetts, a citizen argued forced smallpox inoculations infringed on his personal liberty. The Supreme Court upheld the Cambridge Board of Health's authority to require the vaccination under the 10th Amendment that grants state police powers. As it's still a "perfectly good law," Laurence Tribe, a Carl M. Loeb University Professor at Harvard Law School told Newsweek. The answer to whether states could mandate vaccinations, he said, was a "clear yes."

Upcycled food is now an officially defined term, which advocates say will encourage broader consumer and industry support for products that help reduce food waste. Upcycling—transforming ingredients that would have been wasted into edible food products—has been gaining ground in alternative food movements for several years but had never been officially defined. The Upcycled Food Association announced on May 19 that they define upcycled foods as ones that “use ingredients that otherwise would not have gone to human consumption, are procured and produced using verifiable supply chains, and have a positive impact on the environment.” The definition was drafted by a working group convened by the Upcycled Food Association, which included representatives from Harvard University, Drexel University, Natural Resources Defense Council, World Wildlife Fund, and ReFED, a nonprofit that analyzes solutions to food waste...Standardizing the term is also a first step toward legislation that supports upcycling, according to Emily Broad Leib, a Harvard University law professor and the director of Harvard’s Food Law and Policy Clinic. “Further research can be done to identify and leverage policy incentives to support upcycled foods as a model to reduce food waste and support a more sustainable food system,” she says in a statement.

California cities and counties cleared an important hurdle in their legal fight to get major oil companies including BP Plc, Exxon Mobil Corp., and Chevron Corp. to pay tens of billions of dollars to deal with the effects of climate change. The U.S. Court of Appeals for the Ninth Circuit said Tuesday that San Francisco, Oakland, San Mateo County, and other jurisdictions can pursue their lawsuits in state court rather than in a federal venue thought to be more favorable to the energy industry. The decision doesn’t guarantee the local governments will ultimately prevail, but it paves the way for a full airing of their arguments in state court. The cities and counties “live another day to put forth their claims and argue their case,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program. The suits seek to reimburse taxpayers for costs associated with adapting to impacts such as rising sea levels—from building multibillion-dollar sea walls and repairing damage from powerful storms to—perhaps soon—moving whole communities inland...The ruling could spur more such claims and influence whether cases in other states are decided under local nuisance statutes, rather than under federal laws cited by courts that threw out similar complaints. “Venue is really important to the cities” because it allows them to “get to the point of arguing the merits of their case,” Vizcarra said before the ruling. But there’s still “another round of consideration” at the federal district court before the case fully moves forward in state court, she later said. And cities and counties face an uphill climb on the climate change-linked claims at the heart of the dispute, something state courts haven’t yet grappled with, she said.

A podcast by Noah Feldman: Dr. Emily Rubin, a critical care pulmonologist at Massachusetts General Hospital, discusses what she has learned from treating coronavirus patients since March.

Deftly adapting to a shift in both venue and format, and applying the skills that they had cultivated in their J-Term negotiation workshop, Harvard Law 1L students Adira E. Levine '22, Noopur Sen '22, and Adam J. Toobin '22 were able to negotiate their way to victory in The Negotiation Challenge—an international contest drawing competitors from around the world. The trio was awarded both the overall first place award as well as the Best Negotiation Style award. While they were excited to win, all agreed that sharing that news with the law school community who had supported them along the way was one of the best parts of the experience. “Communicating the news to the people who taught us in the negotiation workshop, the Program on Negotiation, Dean Sells, and all of the different people who had supported us so much … seemed to bring such joy,” said Sen. “I feel very gratified and humbled to be able to provide some sunshine in this otherwise crazy time.”

An article by Jonathan Zittrain: People across America and the world remain under strong advisories or outright orders to shelter in place, and economies largely shut down, as part of an ongoing effort to flatten the curve of the most virulent pandemic since 1918. The economic effects have been predictably staggering, with no clear end in sight. Until a vaccine or other transformative medical intervention is developed, the broad consensus of experts is that the only way out of mass sheltering in place, if hospital occupancy curves are to remain flattened, entails waiting for most of the current cases to resolve, and then cautiously and incrementally reopening. That would mean a sequence of allowing people out; promptly testing anyone showing symptoms — and even some who are not; identifying recent proximate contacts of those who test positive; and then getting in touch with those contacts and, if circumstances dictate, asking or demanding that they individually shelter until the disease either manifests or not. The idea is to promptly prune branches of further disease transmission in order to keep its reproductive factor non-exponential.

Actress Lori Loughlin and her husband Mossimo Giannulli have pleaded guilty to conspiracy charges in the college admissions case known as Varsity Blues. Via video conference on Friday, the California couple admitted that they funneled half a million dollars through a bogus charity to get their two daughters into the University of Southern California as fake athletic recruits. Loughlin agreed to serve two months in federal prison; Giannulli five. The couple will also pay more than $400,000 in fines. Sentencing was set for July 30. During the video conference, Loughlin and Giannulli barely spoke, sitting shoulder to shoulder with their attorneys in what appeared to be their home. Each said they are high school graduates but did not graduate from college. Retired federal judge Nancy Gertner argues this plea agreement represents overreach by federal prosecutors. “If you look at the early papers in the case, everything that the government knows now they knew in the beginning,” Gertner said. “Is this genuine additional misconduct or is it [they] just fought the case?” Gertner, a long-time critic of federal sentencing guidelines, thinks the government is using Loughlin and Giannulli as examples for the other parents charged in the case, and they’re being punished for simply defending themselves. “The sentencing guidelines make more culpable the parents who paid more,” Gertner said. “That may mean that they were just stupid — not very good bargainers — not necessarily that they were more culpable.”