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Monday round-up

This morning the Supreme Court kicks off the second week of the February sitting with an oral argument in Manhattan Community Access Corp. v. Halleck, which asks whether a private operator of a public-access TV channel is a “state actor” who can be sued for violations of the First Amendment. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Lauren Kloss and Nayanthika Ramakrishnan preview the case for Cornell Law School’s Legal Information Institute.

At Fox News, Caleb Parke reports that the court’s decision in The American Legion v. American Humanist Association, an establishment clause challenge to a World War I memorial shaped like a cross on public property, which will be argued on Wednesday, “could impact memorials across the country.” Additional coverage of the case comes from Paul Strand at CBN, Adelle Banks at Religion News Service, and Lawrence Hurley at Reuters, who reports that “most Supreme Court experts predict the challenge to the Peace Cross will fail, with the justices potentially setting a new precedent allowing greater government involvement in religious expression.” At Take Care, Robert Tuttle and Ira Lupu argue that “both sides miss the central constitutional concern of the Establishment Clause,” which “separates the power of the state from that of communities of faith.” In an op-ed for The Washington Post, George Will maintains that if “a few people in this age of hair-trigger rage choose to be offended by a long-standing monument reflecting the nation’s culture and traditions, those people, not the First Amendment, need help.” Additional commentary comes from Nate Madden at Conservative Review and Jeremy Dys at The Daily Wire. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioners in this case.]


  • At In Defense of Liberty, Jacob Huebert urges the court to review a case in which “[t]he plaintiff, Minnesota professor Kathleen Uradnik, argues that appointing a union to speak to the government on her behalf—even though she disagrees with many positions the union takes and would prefer to speak for herself—violates her First Amendment right to freedom of association.”
  • In an op-ed for The New York Times, Randall Kennedy weighs in on the pending cert petition in Tharpe v. Ford, a capital case that raises a racial-bias claim, arguing that “[t]he Supreme Court must intervene out of an elemental embrace of due process.”
  • At Jost on Justice, Kenneth Jost observes that “[t]wice within the span of two weeks, Chief Justice John G. Roberts Jr. joined this month with the Court’s liberal justices in rulings over sharp dissents from his conservative colleagues on two of the Court’s perennially divisive issues: abortion rights and capital punishment,” “reversing his previous positions on the issues — not necessarily because of a change of mind but because of a need to enforce the Supreme Court’s precedents on a renegade federal court of appeals.”
  • At Balkinization, Marty Lederman looks at Justice Clarence Thomas’ concurrence in the court’s denial of cert last week in defamation case McKee v. Cosby, in which Thomas called on the court to “abandon New York Times v. Sullivan and its progeny and revert to its earlier understanding that the First Amendment does not limit state libel law . . . at all”; he “offer[s] some observations about what Thomas’s separate concurrence illustrates about modern trends in ‘originalist’ theory and practice (and the gulf between them).”

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Feb. 25, 2019, 6:44 AM),