FedSoc Forums

In Washington Post v. McManus, various newspapers brought suit to strike down a new Maryland law as unconstitutional under the First Amendment. The statute, aimed at Russian online election interference, requires media outlets to collect and make available for public inspection information about persons who purchase online political ads and their donors. Early this year, the District of Maryland issued a preliminary order under both strict and exacting scrutiny. The state appealed to the Fourth Circuit, which will hear oral arguments on Wednesday, October 30.
Erin Chlopak of the Campaign Legal Center and Tyler Martinez of the Institute for Free Speech, who authored amicus briefs for the appellants and appellees, respectively, will offer first impressions of the argument.

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.

The oral argument for County of Maui, Hawaii v. Hawaii Wildlife Fund will be heard before the Supreme Court on November 6, 2019. The issue at hand is: "Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater." This teleforum will preview the major issues of the case before the oral argument in November.
Featuring:
Brianne Gorod, Chief Counsel, Constitutional Accountability Center
Glenn E. Roper, Attorney, Pacific Legal Foundation
Moderator: Prof. Donald Kochan, Parker S. Kennedy Professor in Law, Chapman University

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.

The oral argument for County of Maui, Hawaii v. Hawaii Wildlife Fund will be heard before the Supreme Court on November 6, 2019. The issue at hand is: "Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater." This teleforum will preview the major issues of the case before the oral argument in November.
Featuring:
Brianne Gorod, Chief Counsel, Constitutional Accountability Center
Glenn E. Roper, Attorney, Pacific Legal Foundation
Moderator: Prof. Donald Kochan, Parker S. Kennedy Professor in Law, Chapman University

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.

Until recently, the domain of administrative records under the Administrative Procedure Act of 1946 was viewed by most as a peripheral issue to litigation challenging executive branch actions. The landscape shifted in June 2019 when the Supreme Court decided Department of Commerce v. New York, which considered whether the U.S. Census Bureau lawfully added a question to the impending 2020 census that asked respondents whether they are U.S. citizens. The Court addressed the composition of the administrative record in APA litigation for the first time in decades. The majority concluded that the trial court had prematurely ordered supplementation of the record, but held that the order was justified in hindsight. This teleforum examines the domain of APA administrative records following Department of Commerce and its effects on administrative law.

Featuring:
-- Prof. Aram A. Gavoor, Professorial Lecturer of Law, The George Washington University Law School
-- Brett A. Shumate, Partner, Jones Day
-- Moderator: Prof. Adam J. White, Assistant Professor and Executive Director of The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School, George Mason University

John Malcolm and John Yoo joined us to discuss developments on impeachment: the latest on the Ukraine investigation; the procedures for the House investigation; whether the allegations meet the standards for high crimes and misdemeanors; the White House’s strategy of non-cooperation; and more.

Featuring:
-- John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

Legal challenges to legislative prayer continue to play out in the courts. Most recently, in Barker v. Conroy, Williamson v. Brevard County, and Speaker v. Fields, atheists have brought a series of Establishment Clause actions against prayer practices that prohibit them from offering secular (as opposed to religious) invocations. Thomas Hungar joins us to discuss those cases and their important implications.

Featuring:
-- Thomas Hungar, Partner, Gibson, Dunn & Crutcher LLP

What is the current status of ISIS worldwide? Some European countries have cancelled ISIS-travelers’ citizenship and refuse to repatriate fighters for prosecution. Terror trials in Western judicial systems face formidable procedural and evidentiary hurdles. With prison camps in Syria at risk there are concerns over the security of detainees. While organized ISIS receded as an imminent threat there are signs of resurgence. Evaluating the present status of ISIS and its affiliates before ISIS restructures is imperative, for both European countries, and the United States.

Featuring:
-- Seamus Hughes, Deputy Director, Program on Extremism, George Washington University
-- Dr. Seth G. Jones, Harold Brown Chair; Director, Transnational Threats Project; and Senior Adviser, International Security Program, Center for Strategic and International Studies (CSIS)
-- Robin Simcox, Margaret Thatcher Fellow, Margaret Thatcher Center for Freedom, The Heritage Foundation
-- Moderator: Christopher K. Harnisch, Deputy Coordinator for Countering Violent Extremism, United States Department of State

On September 16, 2019, the Arizona Supreme Court issued a 4-3 decision in Brush & Nib Studio v. City of Phoenix. The case pitted a city anti-discrimination ordinance against a business offering hand-drawn invitations and paintings for various circumstances. The business owners declined to provide custom invitations for same-sex weddings.
The majority opinion rules for the business owners on all three issues presented, holding that (1) the plaintiffs had standing to bring pre-enforcement claims; and (2) the city's anti-discrimination ordinance, as applied to the plaintiffs' calligraphy services in connection with gay weddings, both (a) violates the free speech clause in the Arizona constitution and (b) fails to satisfy the test established by Arizona's Free Exercise of Religion Amendment ("FERA," i.e., the Arizona equivalent of the federal Religious Freedom Restoration Act or "RFRA").
There were five separate opinions. Justice Bolick authored a separate concurrence focused on the interplay between the federal and state constitutional rights at issue. Chief Justice Bales’s opinion was joined by Justice Timmer and Judge Staring (who sat by designation); this primary dissent essentially saying that the Court struck the wrong balance between liberty (for the calligraphers) and equality (for wedding celebrants). Justice Timmer's opinion says, in short, that the burden on the calligrapher plaintiffs appears to be non-substantial and therefore the Court's FERA/RFRA analysis is incorrect. Judge Staring's opinion appears to accept the majority's position on the "substantial burden" issues, without accepting the balance of its FERA/RFRA analysis.
Brush & Nib could be a watershed decision for similarly situated plaintiffs nationally. The majority decision is the first of its kind, as plaintiffs in other states (NM, NY, WA) had previously failed to win majority support for their theories. The majority in this decision seems conscious of that fact. Their analysis is extensive, they make alternative legal findings to support their conclusions (i.e., although they could have decided on speech grounds alone, they additionally ruled for the plaintiffs on FERA/RFRA grounds), and addressed the decisions of other state courts.
Jon Scruggs from the Alliance Defending Freedom argued before the Arizona Supreme Court on behalf of the business owners. Eric Fraser argued on behalf of the City of Phoenix. They will join us to break down the opinions and comment on the implications moving forward.
Featuring:
Jonathan Scruggs, Senior Counsel and Director of the Center for Conscience Initiatives, Alliance Defending Freedom
Eric M. Fraser, Partner, Osborn Maledon
Moderator: Hon. Jennifer M. Perkins, Arizona Court of Appeals

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.