Opinion2017-05-19T20:27:29+00:00

The following articles, except where noted, were originally published in the Keene Sentinel.

Executive Privilege and the Kavanaugh Nomination

In 1974, the Supreme Court decided the case of United States v. Nixon, popularly known as the “Nixon Tapes” case. The question before the Court was whether President Nixon could defy a subpoena, obtained by the Special Prosecutor in the federal conspiracy trial of Attorney General John Mitchell and [...]

Court Upholds Travel Ban, and Our Country is the Poorer For It

On February 19, 1942, President Franklin D. Roosevelt signed Executive Order 9066 “Authorizing the Secretary of War to Prescribe Military Areas.” Notably, the Order did not mention Japanese-Americans. It simply authorized “Military Commanders” to exclude “residents” from their communities in order to protect the western part of the country [...]

Wedding-cake Ruling Falls Flat on Key Issues

June is brides’ month. It’s also Supreme Court month, the time when the Court issues its blockbuster decisions for the term and then recesses until October. On June 4, the Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission. That is the case where Jack the baker refused to [...]

When Being Called a Liar Becomes a Federal Case

I don’t know whether our first president actually said “I cannot tell a lie,” but I do know that defamation law is experiencing a resurgence of “liar” cases, including one against our current president. That case is being brought by a woman named Sumner Zervos, who appeared on “The [...]

Non-Disclosure Agreements and the Art of the Deal

Ten days before the 2016 presidential election, “Peggy Peterson (PP)” entered into a non-disclosure agreement with “EC, LLC and/or David Dennison (DD).” The deal was simple. She got $130,000, and he got her silence in the form of a promise not to disclose any “Confidential Information” about “Dennison,” including [...]

Union Dues and the Constitutional Right Not to Speak

The United States is a land of free speech. Nowhere is speech freer. Winston Churchill I’ve never doubted that freedom of speech and of the press are the cornerstones of American democracy. The right of free speech is not absolute, but if the government wants to limit or restrict [...]

Who Makes the Call; lawyer or client?

The Sixth Amendment says that in all criminal prosecutions, the accused “shall enjoy the right … to have the Assistance of Counsel for his defence.” Like so much of the Bill of Rights, the Founding Fathers didn’t tell us exactly what they had in mind, leaving it up to [...]

Is Impeachment Political or Legal

Since former FBI Director James Comey testified before the Senate Intelligence Committee last June, there has been a more or less steady impeachment drumroll. According to recent polls, more than 40% of voters think President Trump should be impeached, while less than 40% think he is doing a good [...]

First Amendment Shouldn’t be Used as an Excuse

In the usual free speech case, someone claims that his or her right of free expression is being infringed. There is another side to this constitutional coin, a “negative” right, meaning the right not to be compelled to speak. This right was the basis for a 1943 decision where [...]

Wedding-cake Bakers and the Constitution

David Mullins and Charlie Craig live in Colorado. In 2012, same-sex marriage wasn’t allowed in that state, and the Supreme Court’s decision was three years away. So, they decided to travel to Massachusetts, where gay marriage had been legally recognized since 2004, and then have a wedding party back [...]