Yale Law School professor Jack Balkin has this interesting post on the enforceability of the nondisclosure agreement that adult film actress Stormy Daniels signed in exchange for $130,000, paid on behalf of President Trump. Balkin notes that such agreements are generally enforceable because people can voluntarily waive their First Amendment rights. But he argues that such agreements may, under certain circumstances, violate public policy. Money quote:
Daniels’ strongest argument is a public policy argument within contract law– courts should refuse to enforce some (but not all) nondisclosure agreements because they are against public policy. The public policy in this case is the public’s right to know about the private life of the President of the United States before he became President. In the alternative, there might be a public policy justifying a much narrower right of disclosure–namely, the right of the public to know whether the President and his allies violated campaign finance rules in order to keep Daniels quiet. There are plausible arguments for both of these positions, but they sound more in contract law than in First Amendment doctrine.
It’s “Sunshine Week“–the week each year when we celebrate the importance of freedom of information and government transparency. In honor of this auspicious occasion, take a moment out of your day to chuckle as you listen to The FOI!, a little song I wrote in honor of the 30th anniversary of the Connecticut Freedom of Information Act!
Most of us have been trained to use more forgiving language when talking about addiction. We call it a disease. We say that people with addiction should be helped, not blamed. But deep down, many of us still have trouble avoiding the thought that they could stop using if they just tried harder.
Brendan de Kenessey, A philosopher explains why addiction isn’t a moral failure, Vox.com (March 5, 2018).
As the father of a child struggling to overcome a serious substance abuse problem, I’ve been forced to confront deeply held personal and societal beliefs about the relationship between addiction and personal responsibility. The above quote, from Brendan de Kenessey’s excellent article, captures how I long thought about the issue. But I’ve come to understand that this deeply held belief is mistaken. Addiction is not a choice. And because it is not a choice, it is also a mistake to think of addiction as a moral failure.
When people debate the legality of gun control legislation, the focus is usually on the Second Amendment to the United States Constitution. What many people may not realize, however, is that state constitutions often contain a similar (but not identical) provision. Thus, article first, § 15 of the Connecticut Constitution provides: “Every citizen has a right to bear arms in defense of himself and the state.”
Jeffrey Toobin has this interesting article in the New Yorker on how the recent Larry Nassar trial makes the case for having cameras in the courtroom. Money quote:
Today, some courtrooms are opening up, especially state and federal appeals courts. The United States Supreme Court remains doggedly, and ludicrously, opposed to cameras, although it eventually releases audio recordings of oral arguments. But the Nassar case reminds us that there is no substitute for seeing justice, or its absence, for ourselves
Last week I had the privilege of participating with distinguished journalist Denis Horgan in a program at the Old State House about the meaning of the First Amendment and why freedom of expression is so important. Many thanks to the Old State House for hosting this program, which you can watch on CT-N. Given the current political environment, I don’t think the program could have been more timely.
The Connecticut Supreme Court issued its much-anticipated decision in Connecticut Coalition for Justice in Education Funding v. Rell “(CCJEF v. Rell”), which challenged the constitutional adequacy of Connecticut’s public education system. Chief Justice Chase Rogers, in what may be one of her final decisions before retiring next month, wrote the opinion for a divided court. She stated that Superior Court Judge Thomas Moukawsher clearly violated separation of powers principles when he ruled, based on a novel constitutional standard that he created, that the state’s educational system was unconstitutional:
[W]e agree with the defendants that, having found that the educational resources provided by the state reasonably meet the minimal needs of the state’s students . . . the trial court should have concluded that the state’s educational system satisfies article eighth, § 1 [of the state constitution], and it should not have gone on to apply a constitutional standard of its own devising. By doing so, not only did the trial court fail to defer to the legislature, it also usurped the legislative responsibility to determine how additional funding, beyond the constitutionally required minimum, should be allocated and how to craft educational policies that, in its view, best balance the wide variety of interests at issue. This action was in clear violation of separation of powers principles.
Many legal observers, myself included, anticipated this decision and its separation of powers rationale.
Justices Richard Palmer, Richard Robinson and Appellate Court Judge Michael Sheldon, sitting by designation, issued a separate opinion which concurred in part and dissented in part from the majority decision. They agreed with much of the majority’s analysis, but thought that instead of directing the entry of judgment for the defendants, the case should have been remanded for a new trial.
I hope to write more about the twin decisions after reviewing them more closely.
Please attend!!!!!! Great program, great speakers, great price!
Governor Dannel P. Malloy announced today that he intends to nominate Associate Justice Andrew McDonald to become the next Chief Justice of the Connecticut Supreme Court. Current Chief Justice Chase T. Rogers announced last year that she intends to retire next month after eleven years as the state’s top judge.
Two of the country’s leading First Amendment scholars give diametrically opposite answers to this topical and pressing question. Robert Post, former Dean of Yale Law School, answers the question “no” in an enlightening post on Vox, entitled “There is no 1st Amendment right to speak on a college campus.” Erwin Chemerinsky, Dean of the University of California, Berkeley School of Law, answers the question “yes” in a responsive post on Vox, titled “Hate speech is protected free speech, even on college campuses.”