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Podcasts > Strict Scrutiny > The Good, The Bad, And The Ugly From State Courts

The Good, The Bad, And The Ugly From State Courts

By Crooked Media

Dive deep into the intricacies of the judiciary with the latest episode of "Strict Scrutiny," where hosts Leah Litman, Melissa Murray, Kate Shaw, alongside guests Jennifer Bennett, Shaniqua Mcclendon, and a statement from Justices Carlos Muniz and Sonia Sotomayor, dissect recent pivotal decisions and cases that are reshaping the American legal landscape. The episode navigates the complexities of state court rulings, focusing on their profound impact on abortion rights, particularly highlighting Pennsylvania’s affirmation of abortion as a fundamental right and the evolving electoral stakes within the state's judicial system.

With a broad scope, the discussion then turns to former President Donald Trump's legal entanglements, ranging from attempts to shield himself from the repercussions of January 6th to the substantial financial and operational sanctions posed by New York's civil case ruling. Moreover, the conversation previews upcoming Supreme Court cases that promise to redefine environmental regulations, arbitration frameworks, and potentially the oversight of social media platforms—an array of issues with significant constitutional undertones. Spanning across diverse topics, this episode of "Strict Scrutiny" offers keen insights into how the courts, from state to federal, continue to shape pivotal aspects of policy and rights within the United States.

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The Good, The Bad, And The Ugly From State Courts

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The Good, The Bad, And The Ugly From State Courts

1-Page Summary

State court abortion decisions

State supreme courts in Pennsylvania and Hawaii have a significant influence in the legal debates surrounding abortion rights, demonstrating the important role of state judicial systems in shaping reproductive rights policy. The Pennsylvania Supreme Court, in a landmark decision, has upheld abortion as a fundamental right and suggested that restrictions based on Medicaid funding for abortion are subject to strict scrutiny. They emphasized that such a restriction must be justified by a compelling state interest and should be narrowly tailored, hinting at future legal challenges to abortion bans that could argue discrimination based on sex, invoking the state Equal Rights Amendment. The court's rulings are increasingly consequential given the current state of federal abortion rights, and the upcoming Pennsylvania Supreme Court elections have become a focal point for advocates on both sides of the abortion debate.

Trump cases updates

Former President Donald Trump continues to navigate numerous legal challenges. In one case related to January 6th, he seeks to assert immunity and has petitioned the US Supreme Court to delay the associated trial, citing potential interference with his possible 2024 presidential campaign. In a civil case in New York filed by Attorney General Tish James, a judge has ordered Trump, his family, and the Trump Organization to potentially pay over $400 million for alleged fraud. In addition to the financial penalties, the ruling also prohibits Trump from leading his organization and from assuming an officer role for a set period, with further sanctions against his sons and other organization executives.

Supreme Court case previews

The U.S. Supreme Court is preparing to hear several pivotal cases that can substantially influence environmental policies, arbitration practices, and the regulation of social media. A particularly notable case, Ohio v. EPA, questions the EPA's ability to require states to comply with air quality standards—a challenge that will test the federal agency's regulations on smog and pollution. In the area of arbitration, the case of Bissonnette v. LePage Bakeries examines if certain workers are exempt from forced arbitration agreements under the Federal Arbitration Act and could redefine the scope of such agreements. Additionally, with significant First Amendment implications, the Court will evaluate state laws from Texas and Florida regarding the regulation of social media platforms, with speculation suggesting a potential ruling against these laws based on prior actions and the arguments of high-profile legal experts.

Appeals courts cases

The U.S. Sixth and Fifth Circuit Courts have been considering cases with far-reaching implications for LGBTQ rights and the boundaries of free speech. The Sixth Circuit dealt with a Tennessee law that bans drag performances, which faces constitutional scrutiny based on its breadth and potential infringement on speech, and an anti-bullying policy in an Ohio school district, which might impose limitations on free speech regarding the recognition of transgender and non-binary individuals. Meanwhile, the Fifth Circuit's en banc decision in Villarreal v. City of Laredo addressed the controversial doctrine of qualified immunity, granting it to officers in a case involving the arrest of a woman for posting non-public information online. This decision highlights the tension between free speech protections and the legal shielding of police officers through qualified immunity, without a clear precedent to guide the court's ruling.

1-Page Summary

Additional Materials

Clarifications

  • Strict scrutiny is a legal standard used by courts to evaluate the constitutionality of laws or government actions. When a court applies strict scrutiny, it means that the law or action in question must serve a compelling government interest and must be narrowly tailored to achieve that interest. In the context of restrictions on Medicaid funding for abortion, subjecting such restrictions to strict scrutiny means that the government must have a very strong reason for imposing these limitations and that the restrictions must be specifically designed to address that reason without being overly broad or burdensome. This heightened level of scrutiny places a significant burden on the government to justify any restrictions on abortion funding under Medicaid.
  • Legal challenges to abortion bans based on sex discrimination can arise when restrictions on abortion access disproportionately impact individuals based on their gender, typically targeting women. Advocates may argue that such bans violate the principle of equal treatment under the law and perpetuate gender-based discrimination. By invoking state Equal Rights Amendments or other anti-discrimination laws, these challenges aim to establish that restricting abortion rights based on sex is unconstitutional. This legal strategy seeks to highlight the intersection of reproductive rights and gender equality, emphasizing the importance of addressing discriminatory practices in the realm of reproductive healthcare.
  • The upcoming Pennsylvania Supreme Court elections are significant because the court plays a crucial role in shaping reproductive rights policy. Advocates on both sides of the abortion debate are closely watching these elections due to the potential impact on future legal challenges and interpretations of abortion laws. The outcome of these elections could influence the direction of abortion rights in Pennsylvania and set precedents for other states facing similar debates. The Pennsylvania Supreme Court justices have the power to shape the legal landscape around abortion rights, making these elections highly consequential for reproductive rights advocacy.
  • Former President Donald Trump is seeking to assert immunity in a legal case related to the events of January 6th. He has petitioned the US Supreme Court to delay the trial, citing concerns about potential interference with a possible 2024 presidential campaign. This legal maneuver aims to protect Trump from facing immediate legal consequences and allows him to focus on his political aspirations. The assertion of immunity and the request for trial delay are part of Trump's legal strategy to navigate the ongoing legal challenges he is facing.
  • In the civil case filed by New York Attorney General Tish James against Donald Trump, Trump, his family, and the Trump Organization were ordered to potentially pay over $400 million for alleged fraud. The ruling also includes restrictions on Trump's leadership within his organization and his ability to hold an officer role for a specific period. Additionally, there are further sanctions against Trump's sons and other executives of the Trump Organization.
  • In the civil case in New York filed by Attorney General Tish James, a judge ordered Trump, his family, and the Trump Organization to potentially pay over $400 million for alleged fraud. The ruling also prohibits Trump from leading his organization and assuming an officer role for a set period, with further sanctions against his sons and other organization executives.
  • The U.S. Supreme Court cases on environmental policies, arbitration practices, and social media regulation are significant because they have the potential to shape laws and regulations in these areas. For example, the Ohio v. EPA case questions the EPA's authority to enforce air quality standards, impacting environmental regulations. The Bissonnette v. LePage Bakeries case could redefine the scope of forced arbitration agreements for certain workers. The evaluation of state laws on social media regulation may have implications for free speech and the regulation of online platforms.
  • The Sixth Circuit has been reviewing cases related to LGBTQ rights and free speech boundaries, including a Tennessee law banning drag performances and an Ohio school district's anti-bullying policy. These cases raise questions about the constitutionality of restricting certain forms of expression and the balance between free speech and LGBTQ rights. The court's decisions could have significant implications for how laws impacting LGBTQ individuals and free speech are interpreted and enforced in the Sixth Circuit's jurisdiction.
  • The Fifth Circuit's en banc decision in Villarreal v. City of Laredo addressed the controversial doctrine of qualified immunity, which shields government officials from civil liability when performing discretionary functions as long as their actions do not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In this case, the court granted qualified immunity to officers involved in the arrest of a woman for posting non-public information online, highlighting the ongoing debate over the balance between protecting individual rights and providing legal protections to law enforcement officials. The decision underscores the complexities and challenges in navigating the intersection of free speech protections and the legal doctrine of qualified immunity within the context of law enforcement actions.

Counterarguments

  • The Pennsylvania Supreme Court's decision to uphold abortion as a fundamental right may be criticized for overstepping the bounds of judicial authority by some who believe that such decisions should be left to the legislative process.
  • The suggestion that restrictions on Medicaid funding for abortion should be subject to strict scrutiny could be seen as an imposition on the state's ability to allocate resources according to its policy priorities.
  • The potential for legal challenges to abortion bans based on sex discrimination might be countered with the argument that such bans are not inherently discriminatory but are instead aimed at protecting potential life.
  • The importance of state supreme court rulings in the context of federal abortion rights could be challenged by those who argue for a stronger federal stance on abortion, either for or against, to ensure consistency across states.
  • The focus on the Pennsylvania Supreme Court elections might be criticized for politicizing the judiciary, which is ideally supposed to be an impartial arbiter of the law.
  • Some may argue that former President Trump's legal challenges and the outcomes should not be influenced by his potential candidacy in 2024, as legal proceedings should be separate from political considerations.
  • The case against Trump and his organization in New York could be criticized for potentially setting a precedent that blurs the lines between civil and criminal liability in business practices.
  • The Ohio v. EPA case could be criticized by environmental advocates who believe that the EPA should have broad authority to enforce air quality standards to protect public health and the environment.
  • The Bissonnette v. LePage Bakeries case could be seen as potentially limiting workers' rights to seek legal recourse outside of arbitration, which some argue is a less favorable forum for employees.
  • The Supreme Court's evaluation of state laws regulating social media could be criticized by those who believe that states should have the right to regulate platforms to ensure a diversity of viewpoints and prevent censorship.
  • The Sixth Circuit's review of the Tennessee law banning drag performances could be criticized by those who believe that the state has a legitimate interest in regulating performances that may be deemed inappropriate for certain audiences.
  • The scrutiny of an Ohio school district's anti-bullying policy could be challenged by those who argue that policies need to protect the rights of all students, including transgender and non-binary individuals, without infringing on free speech.
  • The Fifth Circuit's decision on qualified immunity could be criticized for perpetuating a legal doctrine that some believe shields law enforcement from accountability for their actions.
  • N/A

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The Good, The Bad, And The Ugly From State Courts

State court abortion decisions

Recent decisions from state supreme courts in Pennsylvania and Hawaii have highlighted the evolving legal landscape on matters of abortion and gun rights.

Pennsylvania Supreme Court rules abortion a fundamental right, restrictions discriminate based on sex

The Pennsylvania Supreme Court has issued key statements regarding abortion and reproductive rights within the state.

In a significant decision, the Pennsylvania Supreme Court tackled the issue of abortion funding. They specifically examined the state's ban on using Medicaid funds for abortions. The court did not overturn this ban, but it did announce that any challenge to Medicaid restrictions on abortion moving forward must be subject to a stringent standard of review. This implies that the state must provide a compelling rationale for the restriction and establish that no less restrictive method would suffice to achieve its aims.

A plurality of the justices embraced the view that abortion is a fundamental right under the state constitution, through its guarantee of the right to privacy. Even though the decision is currently a plurality opinion, this stance could potentially gain majority support depending on future developments, particularly given the upcoming Pennsylvania Supreme Court elections.

Importantly, the court reasoned that restrictions on abortion could be seen as discriminatory based on sex, in violation of the state Constitution's Equal Rights Amendment. This perspective was informed by the work of legal scholar Melissa ...

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State court abortion decisions

Additional Materials

Clarifications

  • A plurality opinion occurs when no single rationale for a decision garners majority support among the judges. It represents the view held by the largest number of judges but falls short of a majority. While influential, a plurality opinion does not establish binding precedent.
  • Medicaid funding restrictions on abortion pertain to limitations on using Medicaid, a government healthcare program for low-income individuals, to cover the costs of abortion procedures. These restrictions vary by state and can include bans on using Medicaid funds for most or all abortions, with exceptions typically limited to cases of rape, incest, or when the pregnant person's life is in danger. Such restrictions can impact access to abortion services for individuals who rely on Medicaid for their healthcare coverage. The debate around Medicaid funding for abortion often involves discussions on reproductive rights, healthcare equity, and the financial barriers that low-income individuals may face in accessing abortion care.
  • State Equal Rights Amendments are provisions in state constitutions that guarantee equal rights and protections under the law regardless of sex. These amendments aim to prevent discrimination based on gender and promote gender equality. In the context of abortion rights, state Equal Rights Amendments can be invoked to argue against restrictions on abortion that are perceived as discriminatory based on sex. This legal argument highlights the intersection of gender equality principles and reproductive rights in the interpretation and application of state laws. State courts may use these amendments to provide additional protections for abortion rights beyond what is guaranteed at the federal level.
  • The upcoming Pennsylvania Supreme Court elections are significant because the composition of the court can impact the interpretation and protection of rights, such as abortion rights. Justices elected to t ...

Counterarguments

  • The court's decision to set a stringent standard of review for Medicaid restrictions on abortion could be criticized for potentially limiting the state's ability to manage its budget and prioritize funding according to the will of the electorate.
  • Viewing abortion as a fundamental right under the state constitution may be contested by those who argue that the framers of the state constitution did not intend for abortion to be included as such a right.
  • The interpretation of abortion restrictions as discriminatory based on sex could be challenged by those who believe that the restrictions are aimed at protecting potential life, rather than discriminating against women.
  • The influence of legal scholar Melissa Murray's work on the court's reasoning might be criticized for relying too heavily on academic perspectives, which may not reflect the broader public opinion or legislative intent.
  • The emphasis on state constitutions and amendments, like the Equal Rights Amendment, as tools to protect abortion rights could be ...

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Trump cases updates

Immunity claim arguments in January 6th case; trial date set for New York case

Former President Trump's legal saga continues as he engages in efforts to assert immunity claims and faces trial dates in New York.

Trump has asked the US Supreme Court to stay proceedings in the DC Circuit, seeking a delay in his trial by getting a full review from the entire DC Circuit first. His legal team argues that a trial during the 2024 election season would interfere with his ability to campaign against President Biden. Leah Litman frames Trump's argument, suggesting that conducting a long criminal trial at the height of election season would be disruptive to Trump's campaign efforts.

His motion puts forth the idea that he is the leading candidate for president in 2024, alleging that the special counsel's pursuit of a speedy trial may be driven by ulterior motives. Additionally, Trump contends that without immunity from criminal prosecution, the nature of the presidency will fundamentally change, despite historical precedents not recognizing absolute immunity for presidents.

Leah Litman has provided an update on one of the civil cases against Trump, initiated by Attorney General Tish James. This case in ...

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Trump cases updates

Additional Materials

Clarifications

  • Leah Litman is a professor of law at the University of Michigan Law School and a co-host of the podcast Strict Scrutiny. She has a background in law, having clerked for Judge Jeffrey Sutton and Justice Anthony Kennedy. Litman has taught at various law schools and received recognition for her teaching.
  • The DC Circuit, also known as the United States Court of Appeals for the District of Columbia Circuit, is a federal appellate court that primarily hears cases related to federal regulations, government agencies, and constitutional issues. It holds significant influence due to its jurisdiction over many federal agencies and its location in the nation's capital. The court is often involved in cases with national importance and implications. The DC Circuit is considered a stepping stone to the Supreme Court, with many of its judges later being nominated to the highest court in the country.
  • A special counsel is a lawyer appointed to investigate and potentially prosecute cases where a conflict of interest exists for the usual prosecuting authority. They are often appointed to handle cases involving high-profile individuals like government officials or cases with significant public interest. The term 'special counsel' is used in the U.S. after the expiration of the independent counsel law in 1999. Special counsels are tasked with conducting impartial investigations to ensure justice is served without conflicts of interest.
  • Justice Arthur F. Engoron is an American judge who presided over the New York civil investigation of the Trump Organization in 2024. He serves on the Manhattan Supreme Court and has been in this position since 2013.
  • Civil cases against Trump involve legal disputes between private parties or individuals and Donald Trump. These cases typically revolve around issues like fraud, breach of contract, or other civil wrongs. In civil cases, the goal is often to seek financial compensation or other remedies, rather than criminal punishment. The outcomes of civil cases can include monetary damages, injunctions, or other forms of relief as determined by the court.
  • Attorney General Tish James is Letitia James, the current Attorney General of New York, serving as the chief legal officer of the state government since January 1, 2019. She is responsible for advising the state's executive branch, defending state actions, and initiating legal proceedings on behalf of the state. Attorney General James leads the Department of Law in New York, overseeing various divisions that handle legal matters ranging from criminal justice to economic and social justice.
  • The remedies targeting Trump, his associates, and the Trump Organization in this context are legal actions or measures taken to address alleged wrongdoing or violations. These remedies could include financial penalties, restrictions on leadership roles, and other punitive measures aimed at holding individuals and organizations accountable for their actions. The goal of these remedies is to provide justice, deter future misconduct, and ensure compliance with the law.
  • The damages exceeding $350 million in the case against Donald Trump represent the financial penalties imposed by the court due to alleged fraud committed by Trump, his associates, and t ...

Counterarguments

  • The judiciary is an independent branch of government, and trials should proceed based on legal schedules and the merits of the case, not the political calendar.
  • The argument that a trial would interfere with Trump's ability to campaign assumes that the campaign is more important than the legal process, which may not be a view shared by all.
  • The claim of ulterior motives by the special counsel requires evidence, and without it, this assertion could be seen as an attempt to discredit the legal process without basis.
  • The concept of presidential immunity is complex, and while Trump argues that the lack of immunity changes the presidency, others may argue that no one is above the law, including a president or former president.
  • The civil case ruling by Justice Engoron is based on allegations of fraud, and the legal system allows for appeals if the defendants believe the ruling is unjust.
  • The prohibition on Trump leading his organization and serving as a ...

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The Good, The Bad, And The Ugly From State Courts

Supreme Court case previews

The Supreme Court’s docket includes several high-profile cases that are likely to have broad impacts on environmental regulation, arbitration law, federal bans on accessories like bump stocks, and state attempts to regulate social media platforms.

Ohio v. EPA (environmental regulation)

The principal case under scrutiny is Ohio versus EPA. The Supreme Court has added this case and its consolidated cases to its regular merits docket and will hear arguments on whether to stay the EPA's rule on air pollution, which is currently contested. This is only the third time in fifty years that the Court has agreed to hear such a case where no lower court has ruled on the regulation's legality.

The good neighbor rule from the EPA regarding smog and air pollution is specifically in question. The rule necessitates precautions by upwind states to protect downwind states from pollution effects. According to the Clean Air Act, states should develop an implementation plan to meet EPA goals, which is to be approved by the agency. If a state fails to submit a satisfactory plan, the EPA can enact a federal plan to be followed by that state.

The case arose when the EPA adopted federal plans for 23 states that allegedly did not comply with ozone standards. States and industry groups have challenged the federal plan, contending that the EPA did not properly consider costs and specific regulations. Given the conservative leaning of the Supreme Court, the Court may not rule in favor of the EPA.

Bissonnette v. LePage Bakeries (arbitration law)

Exploring the reach of the Federal Arbitration Act (FAA), plaintiffs who are commercial truck drivers in the Bissonnette case argue that they are exempt from arbitration due to the FAA's exclusion of contracts for certain workers engaged in foreign or interstate commerce. The Second Circuit previously ruled that this exemption applies only to workers directly in the transportation industry, excluding the plaintiffs who are in the food industry, not the transportation industry.

However, this interpretation appears inconsistent with the Supreme Court's historic broad interpretation of the FAA, as it has stated that the exemption applies to "employment of transportation workers," focusing on the task at hand rather than the industry classification. Past decisions, such as the unanimous opinion in Southwest Airlines versus Saxon, have clarified that the exemption is available depending on the work performed in foreign or interstate commerce, ...

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Supreme Court case previews

Additional Materials

Clarifications

  • The good neighbor rule under the EPA requires states to take measures to prevent their pollution from affecting neighboring states' air quality. It aims to address the transport of air pollutants across state lines, particularly for pollutants like smog that can travel long distances. States must develop plans to meet air quality standards set by the EPA, ensuring that pollution from one state does not harm the air quality of another state. If a state fails to create an adequate plan, the EPA can step in with a federal plan to regulate pollution emissions.
  • The Second Circuit interpreted the Federal Arbitration Act's exemption narrowly, focusing on workers directly in the transportation industry. They excluded workers in the food industry from this exemption. This interpretation differs from a broader approach that considers the tasks performed in foreign or interstate commerce, rather than industry classification. Past Supreme Court decisions have emphasized the nature of the work over industry distinctions when applying this exemption.
  • NetChoice is an advocacy group that focuses on promoting free speech and commerce on the interne ...

Counterarguments

  • The Supreme Court's conservative leaning does not necessarily predict its ruling on environmental regulation cases like Ohio v. EPA; the justices may rule in favor of the EPA if they find the legal arguments and statutory interpretations compelling.
  • The challenge to the EPA's rule on air pollution may raise valid concerns about the balance between environmental protection and economic impact, which the Court might consider in its decision-making process.
  • In Bissonnette v. LePage Bakeries, the Supreme Court could maintain the Second Circuit's narrower interpretation of the FAA exemption, emphasizing the importance of adhering to the precise wording of the statute and the original intent of Congress.
  • The Supreme Court's past broad interpretation of the FAA does not guarantee a similar approach in the future; the justices may decide to refine their interpretation based on new arguments or a reevaluation of the statute's purpose and context.
  • The review of state laws targeting social media companies may result in a nuanced decision that upholds certain aspects of the laws while striking down others, rather than a blanket ruling on constitutionality.
  • The First Amendment ...

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The Good, The Bad, And The Ugly From State Courts

Appeals courts cases

The Sixth and Fifth Circuit courts have heard major cases regarding LGBTQ rights, free speech, and the doctrine of qualified immunity.

LGBTQ rights cases in 6th Circuit, including school district anti-bullying policy and Tennessee drag performance ban

The Sixth Circuit recently heard several LGBTQ rights cases, including challenges to a Tennessee law banning drag performances and an Ohio school district's anti-bullying policy.

Tennessee law attempting to ban drag performances

A challenge was brought against a Tennessee law aiming to ban drag performances. This law was previously invalidated by a Trump-appointed district court judge for being overbroad. However, Tennessee has appealed the ruling, arguing that drag performers do not have standing to challenge the law. The state’s appeal contends that the law may only be meant to apply to locations where children could view the performances, despite the law not specifically stating this. The law is contested on constitutional grounds because it potentially infringes on protected speech.

School district's anti-bullying policy

In another case within the Sixth Circuit, an Ohio school district’s anti-bullying policy is challenged on the basis that it could violate free speech rights. The policy is said to potentially require students to use correct pronouns when referring to transgender and non-binary classmates. A panel of judges consisting of two Republican appointees and one Democratic appointee appeared skeptical of the challenge to the school district’s policy.

Qualified immunity and free speech case in 5th Circuit

The Fifth Circuit has issued an en banc decision in Villarreal v. City of Laredo, considering whether police can arrest a person for publishing non-public, emotionally damaging information online.

In this particular case, a woman named Villa Royale posted on Facebook details about a U.S. border patrol employee's suicide and a fatal tr ...

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Appeals courts cases

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Clarifications

  • Qualified immunity is a legal principle that shields government officials from civil lawsuits unless they violate clearly established constitutional rights that a reasonable person would know. It aims to protect officials from personal financial liability when carrying out discretionary duties in uncertain legal situations. This doctrine does not apply to the government itself but rather to individual government employees. Qualified immunity was first introduced by the U.S. Supreme Court in the case of Pierson v. Ray in 1967 to safeguard officials making good-faith decisions in ambiguous legal contexts.
  • An en banc decision occurs when all the judges of a court come together to hear a case, rather than just a smaller panel. This process is typically reserved for complex or significant cases, or when there is a crucial issue at stake. In the United States, federal appeals courts may grant en banc review to reconsider a decision made by a three-judge panel, especially in cases of exceptional public importance or when there is a conflict with prior court decisions. The decision made during an en banc hearing represents the ruling of the entire court, providing a more comprehensive and authoritative resolution compared to a decision made by a smaller panel.
  • Standing to challenge a law means having a sufficient connection to the law's impact to bring a case to court. It requires showing a direct and concrete injury or harm caused by the law. Without standing, a party cannot challenge the law's constitutionality in court. Standing ensures that only those directly affected by a law can seek legal remedies.
  • Using correct pronouns for transgender and non-binary individuals is a matter of respect and acknowledgment of their gender identity. It involves addressing them with pronouns that align with how they identify, such as "he/him," "she/her," "they/them," or other gender-neutral pronouns. Respecting and using the correct pronouns is essential for creating an inclusive and supportive environment for transgender and non-binary individuals. It helps affirm their identities and promotes dignity and equality.
  • In the context of the judiciary, Republican and Democratic appointees are judges who have been nominated and appointed to their positions by pr ...

Counterarguments

  • The Tennessee law banning drag performances may be seen as a legitimate exercise of the state's power to regulate public decency and protect minors, rather than an infringement on free speech.
  • The argument that drag performers do not have standing to challenge the Tennessee law could be valid if the law does not directly affect their rights or if they cannot demonstrate injury.
  • The Ohio school district's anti-bullying policy could be defended as a necessary measure to protect the rights and dignity of transgender and non-binary students, rather than a violation of free speech.
  • The skepticism of the judges in the Sixth Circuit regarding the challenge to the school district’s policy might be based on a belief that the policy does not significantly impede free speech and serves a greater good.
  • In the case of Villarreal v. City of Laredo, the doctrine of qualified immunity could be justified as protecting law enforcement officers from the burdens of litigation when performing their duties in unclear legal contexts.
  • The Fifth Circuit's ...

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