Editor’s Note: Liberty Nation’s Washington Political Columnist Tim Donner and Legal Affairs Editor Scott Cosenza sit down to discuss legal challenges and cases taking place across America. This is the transcript of Liberty Nation Radio heard coast-to-coast on the Radio America Network. A podcast version or a videocast of this program is also available by clicking the links.
Tim Donner: Start with a couple of the circuits on the federal court. First, the Tenth Circuit, asked to revive a case against an officer who I guess strayed into somebody’s backyard.
Scott Cosenza: Well, they didn’t stray into the backyard. They purposely went there to enforce a sign ordinance. A man had a sign posted out front, and the ordinance officer was going to cite him for it. Didn’t want to approach the front door, claimed there was some obstruction, heard noises around back, and went around and into the man’s backyard. And he sued. He said, “This is an illegal trespass by the government, into my yard.”
You can say it makes a mountain out of a molehill, Tim, but I think it’s a great case because it establishes an important point that government agents are not allowed to just walk on private property like it’s cool, or for any reason they prefer. One of the questions the judge asked, which I thought was a great line, “If you were a trick or treater approaching the house, would you have gone to the front or the back?” And they had to admit they would have gone to the front door. The question that the judge is reaching for is would an ordinary person think to go around back? And in this instance, no. And so the trespass is likely complete. But we’ll have to wait and see what the Circuit Court of Appeals says.
Tim: Okay. So let’s move from the Tenth Circuit to the Sixth, where a professor has challenged a university pronoun policy.
Scott: Tim, I think that there are going to be a lot of cases in this area of the law, both as the language continues to be policed and transgender legal issues continue to perk up, as they become more legally accepted in society and, of course, enjoy more legal rights. This case involves a college professor who mistakenly called a person as one sex, and they identify as the other sex. They basically told that person that they had to then call them the pronoun of the other sex. The professor said, “That is an imposition on their First Amendment right. They didn’t insist on calling them the quote-unquote wrong pronoun or denigrating the student. They offered to use their legal name, but they said that their own religious and free speech rights were implicated if they were forced to use a gender pronoun that they believed was inaccurate or incorrect.”
Tim: This is what it’s come to, suing people over the wrong pronoun?
Scott: When you first read the case, you think, “Oh, what a horrible ogre to not grant this person who’s struggling with their gender identity their due.” But then you read into the facts, and you find the professor tried to accommodate the wishes of the student, within the confines of their own religious whatever. It seems like it was a case almost like the gay baker cases, where they were designed not to get a cake but to make hay about some person’s sincerely held religious beliefs. And that seems like that’s the case here, but we’ll see. Even if that is the case, Tim, in other words, there may be some imposition, but the courts may still rule that it’s within the bounds of the college’s rights to impose on their employees’ free speech rights. Let’s recall that while he has free speech rights, he is an employee of a university, and they have to be able to do their job. So we’ll have to see.
Tim: What about if it’s a public university, as opposed to a private one, does that change it?
Scott: Oh, 100%, it changes it. Yeah, it’s from 0 to 100. The public university must honor the free speech rights of its employees and attendees, and the private university has no requirement to do so.
Tim: I think that’s an important distinction that’s lost on a lot of people. Okay, Scott, well, federal executions have been something of an issue in recent years. There almost weren’t any of them for a long time, and then a few under the Trump presidency to date, apparently these executions are on track, but the D.C. Circuit has flagged some legal errors.
Scott: Well, that’s right, Donald Trump has been aggressively executing federal prisoners compared to his recent predecessors. And in this case, they’re doing so or planning to do so without a prescription for the medication. And, of course, it kind of sounds absurd that you would need a prescription for medications designed not to medicate but to kill. But that’s one of the arrows in the quiver of the defense attorneys and people trying to keep these defendants alive and from being killed by the federal government.
Tim: Okay, Scott, let’s move to something entirely different, the world of technology and Apple. Everybody knows them. They’re preparing to pay $113 million, a mere drop in the bucket for the tech giant, in the so-called battery-gate settlement. What the heck is that?
Scott: Well, Tim, it was the speculation that when the new phone comes out, the old phone, that used to be the top-of-the-line, all of a sudden just runs a lot slower. Well, guess what? It’s not your imagination. It’s real. They did it, and now they’re paying for it.
Tim: Well, they should, shouldn’t they? I mean, in other words, if buy a phone this year… Or let’s say I bought one in 2015, and it was working fine for a couple of years, and then the next version comes out and suddenly mine doesn’t work properly anymore. Isn’t that pretty much what this is all about?
Scott: Some people might say that that’s justice for people who buy Apple products. I won’t say it myself, but I’ve heard that online.
Tim: You won’t say. The West Virginia Supreme Court has rejected anything-goes traffic stops. Which means what?
Scott: What it means is that they have changed the rule by which they were essentially allowing mistakes of the law to pass for valid stops. In the case in question, the police officer saw somebody stumbling away from a car and basically caused that person to be arrested for a DUI, but they never saw that person operating a motor vehicle, which, of course, is one of the preconditions to that kind of a charge. And previously under a valid West Virginia precedent, an honest mistake of the law would have been okay to overcome a challenge to the arrest. The court is no longer going to cotton those kinds of mistakes, and I don’t think they ever should have, and they definitely shouldn’t going forward.
I think it’s a great win for liberty. I’ve often been asked about open-carry laws and that the police often don’t know how to react to that. And the correct way for police officers to act is only enforce the laws that you understand. Certainly, there are voluminous laws on the books, and we don’t expect them to understand and know all of them, but we do expect and demand that they know the ones they plan on enforcing against the citizenry.
Tim: Well, no one could ever accuse Scott Cosenza of not bringing individual liberty down to the level where it applies to everybody. Traffic stops, everybody is affected by that. Thank you, Scott.
