Sometimes an Argument is Really an Argument

I often say that free-speech law is the area in which lawyers’ perception of their expertise most outpaces their actual expertise. Nobody but probate lawyers thinks they know probate law. But everybody thinks they know free-speech law (fire in a crowded theater!) and few people actually do.

This is no less true of judges than other lawyers.Free-speech law has developed  a lot in 30 years; most of that change has been in the last decade. Occasionally we’ll get an oral argument in which one of the judges knows has read Alvarez, Stevens, Reed, Brown, and some of the other post-2009 Supreme Court free-speech cases, and it’s a real joy.

This is not one of those cases. Here the State in its brief cited no Supreme Court more recent than 1989.

Imagine the discussion we could have had if the judges had read some Supreme Court First Amendment cases since law school!

4 responses to “Sometimes an Argument is Really an Argument”

  1. It sounds more like policy debate than legal argument from the bench. That must have been frustrating. Very weird, especially compared to most criminal appellate arguments. I guess that goes toward your initial point in the post.

    Very fun video, thanks for posting and good work.

  2. IANAL so I can’t speak to the merits, but I was just so impressed with how well you were able to think on your feet and the mastery of the material that you seemed to have.

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