FedSoc Forums

The DOJ has charged Douglas Mackey, aka Ricky Vaughn, with conspiracy “to injure, oppress, threaten, or intimidate” people in the exercise of their constitutional rights. His crime? Using his social media platform in the months leading up to November 2016 to post memes about the Presidential election, including ones that – if taken literally – falsely state that people could vote for Hillary just by posting on Twitter and Facebook. Are such prosecutions consistent with the First Amendment? Are they authorized by federal law? Joining us to discuss is Professor Eugene Volokh, noted First Amendment scholar and the Gary T. Schwartz, Professor of Law at the UCLA School of Law, who recently wrote on the subject.Featuring: Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law Dial 888-752-3232 to access the call.

On March 8, 2021, the U.S. Supreme Court decided Uzuegbunam v. Preczewski. Writing for the 8-justice majority, Justice Clarence Thomas explained that a completed violation of a legal right does in fact satisfy the redressability element necessary for Article III standing. Justice Kavanaugh filed a concurring opinion, while Chief Justice Roberts filed a dissenting opinion. John Bursch, head appellate litigator at Alliance Defending Freedom, the firm that represented petitioner Chike Uzuegbunam, joins us to discuss the case, ruling, and implications for religious liberty, free speech law, and more. Featuring: John Bursch, Senior Counsel and Vice President of Appellate Advocacy, Alliance Defending Freedom---This Teleforum is open to the public and press. Dial 888-752-3232 to access the call.

Apache Stronghold v. United States is an ongoing case involving religious land use. On February 18, 2021, a federal judge allowed the government's plans to swap a portion of Tonto National Forest for land owned by Resolution Copper. Inside the National Forest land is Oak Flat, a Native American sacred site.Apache Stronghold, a nonprofit organization that defends these sites, and the Becket Fund for Religious Liberty are challenging the judge's preliminary injunction at the Ninth Circuit Court of Appeals.First Amendment expert Stephanie Barclay, co-author of the recent Harvard Law Review article "Rethinking Protections for Indigenous Sacred Sites," and A.J. Ferate, formerly Vice President of Regulatory Affairs for the Oklahoma Independent Petroleum Association, will give an update on this case and discuss legal implications.Featuring: Prof. Stephanie Barclay, Associate Professor of Law and Director, Religious Liberty Initiative, University of Notre Dame Law SchoolAnthony J. Ferate, Of Counsel, Spencer Fane LLP---This call is open to the public and press. Dial 888-752-3232 to access.

In this case, Sierra Club, Inc. submitted a FOIA request to the U.S. Fish and Wildlife Service requesting biological impact reports that were made in consultation with the Environmental Protection Agency. The EPA had planned to construct “cooling water intake structures” and in compliance with the Clean Water Act consulted with U.S. Fish and Wildlife on the question of biological impact. Citing FOIA Exemption 5, the deliberative process privilege, Fish and Wildlife withheld the draft reports. Sierra Club sued and both the District Court and Ninth Circuit sided with Sierra Club, holding to varying degrees that the deliberative process privilege did not cover the requested reports. In Justice Barrett’s first majority opinion and by a 7-2 margin, the Supreme Court overruled the Ninth Circuit’s decision finding that the deliberative process exemption covers “predecisional and deliberative” documents and so protects the draft biological impact reports from FOIA disclosure. Featuring: -- Nancie Marzulla, Partner, Marzulla Law -- Damien Schiff, Senior Attorney, Pacific Legal Foundation

In Pereida v. Wilkinson, the Supreme Court held 5-3 that an individual seeking relief from a lawful removal order under the Immigration and Nationality Act (INA) must “shoulder [the] heavy burden” of proving every element of eligibility for relief including the absence of a conviction for a crime of moral turpitude. Clemente Avelino Pereida argued on appeal that although he was recently convicted of a crime, he remained eligible for relief because he refused to disclose the nature of the crime so moral turpitude could not be proven. The Court disagreed with Pereida, siding with the Eight Circuit and finding Pereida must show the crime was not one of moral turpitude in order to be eligible for relief under the INA.Featuring:-- Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland

In Lange v. California, defendant Arthur Lange challenges the application of the exigent circumstances exception to the warrant requirement of the Fourth Amendment in California state court arguing exigent circumstances should apply only in genuine emergencies – not where the police are in hot pursuit following a misdemeanor traffic violation. Lange argues the evidence supporting his DUI arrest and conviction should be thrown out because it surfaced only after the police followed Lange into his garage following his commission of misdemeanor traffic offenses. California upheld Lange’s conviction favoring a case by case approach to applying the exigent circumstances exception to pursuit following probable cause of a misdemeanor. Other states have adopted a blanket ban on misdemeanors providing the exigent circumstances necessary to justify a warrantless search.In granting certiorari, the Supreme Court will address the split among the states and consider whether pursuit following probable cause of a misdemeanor always qualifies as an exigent circumstance allowing warrantless entry. Oral argument is scheduled for February 24, 2021. Panelists Larry James, Managing Partner at Crabbe Browne & James LLP and General Counsel of the National Fraternal Order of Police, Clark Neily, Vice President for Criminal Justice at the Cato Institute, and Vikrant Reddy, Senior Research Fellow at the Charles Koch Institute, will join us to discuss.Featuring: Larry James, Managing Partner at Crabbe Browne & James LLP and General Counsel of the National Fraternal Order of PoliceClark Neily, Vice President for Criminal Justice at the Cato InstituteVikrant Reddy, Senior Research Fellow at the Charles Koch Institute Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

In Brnovich v. Democratic National Committee and the consolidated case of Arizona Republican Party v. Democratic National Committee, the Supreme Court will address issues raised under Section 2 of the Voting Rights Act and the Fifteenth Amendment. Under Section 2, which restates and expands the protections of the Fifteenth Amendment, "no voting qualification or prerequisite to voting or standard, practice or procedure” may be imposed in a manner that is intentionally discriminatory or has a disparate impact on a racial or language minority. In this case, the DNC challenged two of Arizona’s voting procedures: discarding out-of-precinct provisional votes where the ballot itself was filled out properly and disallowing third parties to collect and deliver completed vote-by-mail ballots. The DNC argued the provisional ballot rule has a disparate impact on African American, Native American, and Hispanic citizens and the ban on third party delivery was enacted with discriminatory intent. On appeal, the Arizona Republican Party challenges the Ninth Circuit’s finding of discriminatory intent and argues that race neutral and generally applicable voting laws which offer all citizens an equal opportunity to vote do not violate Section 2. Although Arizona won at the District Court level and a three judge panel of the Ninth Circuit affirmed, the Ninth Circuit reheard en banc and reversed, finding the District Court clearly erred. Featuring: -- Professor Derek Muller, Professor of Law at the University of Iowa College of Law

On March 3, 2021, the Supreme Court will hear oral arguments in Carr v. Saul. This case involves important constitutional questions of appointments and officer status. Specifically, the case deals with the question of whether a claimant seeking disability benefits under the Social Security Act forfeits an Appointments Clause challenge to the appointment of an administrative law judge by failing to present that challenge during administrative proceedings.Profs. Jennifer Mascott and Richard Pierce, distinguished experts in the field of administrative law, join us to discuss the case, review oral arguments, and discuss implications, and offer their thoughts on related constitutional questions.Featuring: Prof. Jennifer L. Mascott, Assistant Professor of Law, Antonin Scalia Law School, George Mason UniversityProf. Richard Pierce, Lyle T. Alverson Professor of Law, George Washington University Law School ---This call is open to the public and press. Dial 888-752-3232 to be connected.

The U.S. Supreme Court will hear oral argument in United States v. Arthrex Inc. on March 1, 2021. This case is an important one for the office of patent judges. At issue in the case is whether, for purposes of the Appointments Clause, administrative patent judges of the U.S. Patent and Trademark Office (USPTO) are principal officers, requiring presidential appointment and Senate confirmation, or are "inferior officers." Also at issue is whether if they are principal officers, the lower court properly cured any Appointments Clause defects in the current statutory scheme.Profs. Greg Dolin and Dmitry Karshtedt join us review oral arguments, discuss the case, and offer their divergent views on the merits in a discussion moderated by Prof. Kristen Osenga. Featuring:Prof. Gregory Dolin, Associate Professor of Law and Co-Director, Center for Medicine and Law, University of Baltimore School of LawProf. Dmitry Karshtedt, Associate Professor of Law, The George Washington Law SchoolModerator: Prof. Kristen Osenga, Austin E. Owen Research Scholar & Professor of Law, The University of Richmond School of Law---This video Teleforum call is open to the public and press. Register above.

On February 25, 2021, The Federalist Society's Practice Groups and In-House Counsel Working Group hosted a lively panel on Law and Corporate Social Responsibility. With the start of the 2021 proxy season, the period when many public companies hold their annual shareholder meetings and consider proxy proposals, it seems timely to revisit the discussion around Milton Friedman’s essay, “The Social Responsibility of Business Is to Increase Its Profits.” Fifty years ago he published his view that the responsibility of business is “to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game” and it has been debated by economists, scholars, shareholders, and CEOs since that time.Featuring:-- Hon. Myron T. Steele, Partner, Potter Anderson Corroon; former Chief Justice, Delaware Supreme Court-- Hon. Elad L. Roisman, Commissioner and formerly Acting Chairman, U.S. Securities and Exchange Commission-- Moderator: Hon. Paul S. Atkins, CEO, Patomak Global Partners; former Commissioner, U.S. Securities and Exchange Commission * * * * * As always, The Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.