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Zoom/Skype/Etc. Oral Arguments in Appellate Cases?

Do any of you know whether any courts are trying to do this because of coronavirus, or have been trying to do it more broadly? I would think it should be nearly trivial to do, with no extra hardware expense or technical development: Just have the judges and the parties sign on to a Zoom session (or some such video system), and record the video for prompt posting on the court’s web site, which many courts already do. (The publicly available video recording would, I think, satisfy any requirement of public access to the arguments.)

This would be good for public health these days, especially since it will cut down required airplane travel for lawyers, judges, and law clerks. (In many courts, especially federal circuit courts, many judges’ chambers are far from where the arguments take place.) And of course it will save judges’ and lawyers’ time, and thus money for clients.

Perhaps this isn’t good for trials, where physical presence may be an important part of cross-examination, arguing to the jury, and the like; but it should be just fine for appellate argument, and for legal argument in trial courts as well. Might this outbreak be a good opportunity for experimenting with this? Or are there some barriers, other than tradition (to be sure, always an important matter with the judiciary), that I’m missing?

 

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Zoom/Skype/Etc. Oral Arguments in Appellate Cases?

Do any of you know whether any courts are trying to do this because of coronavirus, or have been trying to do it more broadly? I would think it should be nearly trivial to do, with no extra hardware expense or technical development: Just have the judges and the parties sign on to a Zoom session (or some such video system), and record the video for prompt posting on the court’s web site, which many courts already do. (The publicly available video recording would, I think, satisfy any requirement of public access to the arguments.)

This would be good for public health these days, especially since it will cut down required airplane travel for lawyers, judges, and law clerks. (In many courts, especially federal circuit courts, many judges’ chambers are far from where the arguments take place.) And of course it will save judges’ and lawyers’ time, and thus money for clients.

Perhaps this isn’t good for trials, where physical presence may be an important part of cross-examination, arguing to the jury, and the like; but it should be just fine for appellate argument, and for legal argument in trial courts as well. Might this outbreak be a good opportunity for experimenting with this? Or are there some barriers, other than tradition (to be sure, always an important matter with the judiciary), that I’m missing?

 

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To Slow Coronavirus, Trump Bans Travel from Continental Europe for 30 Days

President Trump announced a 30-day ban on travel from continental Europe Wednesday as part of the U.S. government’s coronavirus pandemic response.

Speaking from the Oval Office, Trump said that the federal government would halt all travel from Europe beginning on Friday. Americans, visitors from the U.K., and passengers who had undergone special screening would still be allowed to enter the country.

“These restrictions will be adjusted subject to conditions on the ground,” said Trump. “There will be exemptions for Americans who have undergone appropriate screenings, and these prohibitions will not only apply to the tremendous amount of trade and cargo, but other things as we get approval.”

Acting Homeland Security Secretary Chad Wolf clarified that Trump’s order would only apply to foreign citizens.

The president’s remarks suggested that trade with Europe might halt as well, although his meaning was not entirely clear. The White House later clarified that the ban would not impact trade and goods, according to Bloomberg News.

Trump also faulted Europe for failing to limit travel from China, and bragged that he had not made the same mistake (though of course, the coronavirus still eventually made its way from China to U.S. shores).

“I will never hesitate to take any necessary steps to protect the lives, health, and safety of American people,” said Trump.

This extreme measure on the part of the president is a sign that his administration is no longer treating the coronavirus pandemic like a hoax cooked up by the mainstream media to hurt his re-election odds. But it’s worth wondering whether a European travel ban—imposed unilaterally by the executive branch—is actually a prudent measure at this point, given that there is already a coronavirus outbreak within U.S. borders. And the U.K., from which travel is not restricted, has hundreds of cases as well.

In other coronavirus news, actor Tom Hanks and his wife Rita Wilson have reportedly contracted the disease, and the NBA has suspended its season indefinitely. Government officials and organizers are canceling conferences, parades, concerts, and other mass gatherings of people. Practicing social distancing—avoiding large crowds—remains the best method for all people to help slow the spread of the disease and flatten the curve.

Update: Additional information about the travel ban’s impact on trade and goods was added to this article.

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To Slow Coronavirus, Trump Bans Travel from Continental Europe for 30 Days

President Trump announced a 30-day ban on travel from continental Europe Wednesday as part of the U.S. government’s coronavirus pandemic response.

Speaking from the Oval Office, Trump said that the federal government would halt all travel from Europe beginning on Friday. Americans, visitors from the U.K., and passengers who had undergone special screening would still be allowed to enter the country.

“These restrictions will be adjusted subject to conditions on the ground,” said Trump. “There will be exemptions for Americans who have undergone appropriate screenings, and these prohibitions will not only apply to the tremendous amount of trade and cargo, but other things as we get approval.”

Acting Homeland Security Secretary Chad Wolf clarified that Trump’s order would only apply to foreign citizens.

The president’s remarks suggested that trade with Europe might halt as well, although his meaning was not entirely clear.

Trump also faulted Europe for failing to limit travel from China, and bragged that he had not made the same mistake (though of course, the coronavirus still eventually made its way from China to U.S. shores).

“I will never hesitate to take any necessary steps to protect the lives, health, and safety of American people,” said Trump.

This extreme measure on the part of the president is a sign that his administration is no longer treating the coronavirus pandemic like a hoax cooked up by the mainstream media to hurt his re-election odds. But it’s worth wondering whether a European travel ban—imposed unilaterally by the executive branch—is actually a prudent measure at this point, given that there is already a coronavirus outbreak within U.S. borders. And the U.K., from which travel is not restricted, has hundreds of cases as well.

In other coronavirus news, actor Tom Hanks and his wife Rita Wilson have reportedly contracted the disease, and the NBA has suspended its season indefinitely. Government officials and organizers are canceling conferences, parades, concerts, and other mass gatherings of people. Practicing social distancing—avoiding large crowds—remains the best method for all people to help slow the spread of the disease and flatten the curve.

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COVID-19 Mortality Rate ‘Ten Times Worse’ than Seasonal Flu, Says Dr. Anthony Fauci

The World Health Organization declared that the COVID-19 outbreak is now a pandemic. The global health agency defines pandemic as the worldwide spread of a new disease. The spread of COVID-19 caused by the new coronavirus qualifies since it has now been detected in 114 countries infecting nearly 120,000 people and killing about 4,300 of them. The number of diagnosed cases in the U.S. has swelled to more than 1,000.

So how bad will it get? Two days ago President Trump in a tweet compared the current number of deaths from COVID-19 to those stemming from the seasonal flu outbreak. As more data is coming in, the initial hopes that the public health consequences of the spreading coronavirus pandemic would be comparatively mild and similar to the death rates associated with seasonal influenza are fading.

The delay in rolling out a more comprehensive testing regime means that undiagnosed cases are rising. Estimates vary from a few thousand to as many as 50,000 infections among Americans.

At a Congressional hearing this afternoon, Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, suggested that COVID-19 is is considerably more dangerous than run-of-the-mill flu. He observed, “The flu has a mortality rate of 0.1 percent. This has a mortality rate of 10 times that. That’s the reason I want to emphasize we have to stay ahead of the game in preventing this.”

The Centers for Disease Control and Prevention estimate that between 20,000 to 52,000 Americans have succumbed to influenza this season. If Fauci’s assessment is correct, that implies that an unmitigated COVID-19 epidemic would end up killing between 200,000 and 520,000 Americans. Consider for comparison that just over 2.8 million Americans died in 2018.

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COVID-19 Mortality Rate ‘Ten Times Worse’ than Seasonal Flu, Says Dr. Anthony Fauci

The World Health Organization declared that the COVID-19 outbreak is now a pandemic. The global health agency defines pandemic as the worldwide spread of a new disease. The spread of COVID-19 caused by the new coronavirus qualifies since it has now been detected in 114 countries infecting nearly 120,000 people and killing about 4,300 of them. The number of diagnosed cases in the U.S. has swelled to more than 1,000.

So how bad will it get? Two days ago President Trump in a tweet compared the current number of deaths from COVID-19 to those stemming from the seasonal flu outbreak. As more data is coming in, the initial hopes that the public health consequences of the spreading coronavirus pandemic would be comparatively mild and similar to the death rates associated with seasonal influenza are fading.

The delay in rolling out a more comprehensive testing regime means that undiagnosed cases are rising. Estimates vary from a few thousand to as many as 50,000 infections among Americans.

At a Congressional hearing this afternoon, Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, suggested that COVID-19 is is considerably more dangerous than run-of-the-mill flu. He observed, “The flu has a mortality rate of 0.1 percent. This has a mortality rate of 10 times that. That’s the reason I want to emphasize we have to stay ahead of the game in preventing this.”

The Centers for Disease Control and Prevention estimate that between 20,000 to 52,000 Americans have succumbed to influenza this season. If Fauci’s assessment is correct, that implies that an unmitigated COVID-19 epidemic would end up killing between 200,000 and 520,000 Americans. Consider for comparison that just over 2.8 million Americans died in 2018.

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Do You Have a First Amendment Right to a Slayer-Themed License Plate?

There are few things more intimate than a personalized license plate. Yet California’s Department of Motor Vehicles (DMV) rejects tens of thousands of applications for individualized plate slogans each year for being offensive to “good taste and decency.”

Yesterday, the Pacific Legal Foundation (PLF), a public interest law firm, filed a lawsuit against state DMV director Steve Gordon alleging his department’s license plate policy violates the First Amendment’s free speech protections. The DMV, they are arguing, is using a dangerously expansive definition of “government speech” to unconstitutionally censor motorists’ expression.

“Our lawsuit is about vague laws that give government bureaucrats unbridled discretion to regulate speech, and that inevitably leads to arbitrary results,” says Wen Fa, an attorney with PLF. “It’s basically at the DMV’s whims what might be offensive and what isn’t.”

In 2018, the state DMV rejected 30,000 of the roughly 249,000 personal plate applications they received. PLF is representing five people who’ve similarly had their plate applications rejected.

That includes Paul Ogilvie, an army veteran, who wanted to combine his military nickname ‘OG’ with childhood nickname ‘Woolf’ to make an ‘OGWOOLF’ license plate. The DMV rejected this for supposedly being offensive.

They did the same thing to Amrit Kohli, a gay computer programmer and musician, whose application for a license plate saying “QUEER”—a reference to Kohli’s own identity—was rejected for being “insulting, degrading, or expressing contempt for a specific group or person,” according to the PLF complaint.

James Blair is also suing the DMV after being told that his proposed “SLAAYRR” plate—a reference to the metal band Slayer—was “threatening, aggressive, or hostile” and therefore violated the department’s prohibition on offensive plates.

In addition, PLF is representing English pub owner Paul Crawford, whose proposed “BO11LUX” license plate was turned down for being too sexual, and motorcycle enthusiast Andrea Campanile for a rejected “DUK N A” license plate (a reference to Ducati motorcycles and her first name).

This is not the first time California’s personal plate regulations have come under attack. Last year PLF sued the department on behalf of university professor Jon Kotler who’d likewise had his application for a personalized plate rejected.

The state DMV argued in that case that because it was the one issuing the plates, it was the government speaking, and not the private citizen requesting the plates. Therefore, it was up to the discretion of the department which messages it would allow.

A judge for the  U.S. District Court for the Central District of California rejected this argument in denying a government motion to dismiss the case, writing that it “it strains believability to argue that
viewers perceive the government as speaking through personalized vanity plates.”

That case was resolved in January 2020 when the DMV decided to issue Kotler the initially rejected plate. However, the department has kept its regulations about offensive plates on the books, prompting PLF to file a second lawsuit.

“The government speech doctrine has very wide implications for free speech in general. The government is increasingly relying on that doctrine to say individuals have no free speech rights at all, and therefore the government can ban speech it finds offensive or hateful,” says Fa. “If the DMV’s logic were correct, then the government could censor offensive speech in public parks, which is also government property.”

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Do You Have a First Amendment Right to a Slayer-Themed License Plate?

There are few things more intimate than a personalized license plate. Yet California’s Department of Motor Vehicles (DMV) rejects tens of thousands of applications for individualized plate slogans each year for being offensive to “good taste and decency.”

Yesterday, the Pacific Legal Foundation (PLF), a public interest law firm, filed a lawsuit against state DMV director Steve Gordon alleging his department’s license plate policy violates the First Amendment’s free speech protections. The DMV, they are arguing, is using a dangerously expansive definition of “government speech” to unconstitutionally censor motorists’ expression.

“Our lawsuit is about vague laws that give government bureaucrats unbridled discretion to regulate speech, and that inevitably leads to arbitrary results,” says Wen Fa, an attorney with PLF. “It’s basically at the DMV’s whims what might be offensive and what isn’t.”

In 2018, the state DMV rejected 30,000 of the roughly 249,000 personal plate applications they received. PLF is representing five people who’ve similarly had their plate applications rejected.

That includes Paul Ogilvie, an army veteran, who wanted to combine his military nickname ‘OG’ with childhood nickname ‘Woolf’ to make an ‘OGWOOLF’ license plate. The DMV rejected this for supposedly being offensive.

They did the same thing to Amrit Kohli, a gay computer programmer and musician, whose application for a license plate saying “QUEER”—a reference to Kohli’s own identity—was rejected for being “insulting, degrading, or expressing contempt for a specific group or person,” according to the PLF complaint.

James Blair is also suing the DMV after being told that his proposed “SLAAYRR” plate—a reference to the metal band Slayer—was “threatening, aggressive, or hostile” and therefore violated the department’s prohibition on offensive plates.

In addition, PLF is representing English pub owner Paul Crawford, whose proposed “BO11LUX” license plate was turned down for being too sexual, and motorcycle enthusiast Andrea Campanile for a rejected “DUK N A” license plate (a reference to Ducati motorcycles and her first name).

This is not the first time California’s personal plate regulations have come under attack. Last year PLF sued the department on behalf of university professor Jon Kotler who’d likewise had his application for a personalized plate rejected.

The state DMV argued in that case that because it was the one issuing the plates, it was the government speaking, and not the private citizen requesting the plates. Therefore, it was up to the discretion of the department which messages it would allow.

A judge for the  U.S. District Court for the Central District of California rejected this argument in denying a government motion to dismiss the case, writing that it “it strains believability to argue that
viewers perceive the government as speaking through personalized vanity plates.”

That case was resolved in January 2020 when the DMV decided to issue Kotler the initially rejected plate. However, the department has kept its regulations about offensive plates on the books, prompting PLF to file a second lawsuit.

“The government speech doctrine has very wide implications for free speech in general. The government is increasingly relying on that doctrine to say individuals have no free speech rights at all, and therefore the government can ban speech it finds offensive or hateful,” says Fa. “If the DMV’s logic were correct, then the government could censor offensive speech in public parks, which is also government property.”

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Oral Arguments at the Supreme Court with no spectators

The Supreme Court chamber holds (by my count) about 200 people. Currently, the Court has twelve oral argument days remaining on the schedule. The Supreme Court very well may consider some form of “social distancing.” That is, holding oral arguments without spectators. (The NBA is already moving in that direction.)

The Court could select minimum essential personnel. The Court would admit the arguing attorneys, and their co-counsel. Maybe a few journalists who could file pool reports. But no public seating. All bar admissions will be postponed. And the Court’s exhibits and cafeteria (with a buffet) would be shut down. There is no reason to maintain the staff needed to handle an influx of guests if those guests are not admitted in.

Eugene has blogged that several courts have adopted closure rules. The Supreme Court very well may be next.

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Oral Arguments at the Supreme Court with no spectators

The Supreme Court chamber holds (by my count) about 200 people. Currently, the Court has twelve oral argument days remaining on the schedule. The Supreme Court very well may consider some form of “social distancing.” That is, holding oral arguments without spectators. (The NBA is already moving in that direction.)

The Court could select minimum essential personnel. The Court would admit the arguing attorneys, and their co-counsel. Maybe a few journalists who could file pool reports. But no public seating. All bar admissions will be postponed. And the Court’s exhibits and cafeteria (with a buffet) would be shut down. There is no reason to maintain the staff needed to handle an influx of guests if those guests are not admitted in.

Eugene has blogged that several courts have adopted closure rules. The Supreme Court very well may be next.

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