>> they're doing hard work cleaning up a cluttered closet to the first amendment where lower courts are in disagreement and everyone is a little bit at sea. the first of these, a case involving the so-called truth rats doctrine. there is a lot of speech protected by the first amendment, there is a lot of speech that is not protected by the first amendment and this is a question of when is threatening language protected and when is it not protected? the question is in order to be

unprotected by the first amendment, does the speaker have to have intended to threaten someone? or is it enough if a reasonable person would think this was threatening language? do you have a subjective standard when you ask about the state of mind of the speaker or do you ask what an objective listener would take away? this is not about whether you intend to carry out the threat or not. that is not necessary. do you have to have intended to make someone feel threatened? this case involves a man -- the university of virginia where i work, supreme court litigation clinic is representing him in this litigation. i am not involved in that representations so i am not here on behalf of mr. alumnus. he was convicted under a federal threat statutes for some choice language on facebook about his ex-wife and some other assorted

individuals. i will not quote that language year. in the colloquial sense many of us would say it was threatening or at least fairly disturbing. the question is whether legally it counts as a threat. you, was convicted under the standard that says all we need to know is whether an objective that person would find this to be threatening language. so he sought review by the supreme court to settle a disagreement among circuits whether these standards are necessary. i have got to say if you know anything about this area of law you might have thought this question seems familiar and the supreme court actually had decided this question before. in 2003 case called virginia versus black where it dealt with the standard where it says things like threats are those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence or the statement must be made with the intent of

placing of the victim in fear of bodily harm or death where talked-about intend or many pages so you might have taken the impression this was a subjective intent, but it is not clear that is what they are focused on in that case. that case involved the state statute that required intent as a matter of criminal law, not first amendment protection. maybe that is what they talking about. if they mean to make a requirement, a constitutional requirement rather than something the statute happens to include they didn't tell us why intent would be a requirement can you might as from a first amendment standpoint why do we need subjective intent on the part of the speaker? you might think otherwise is going to chill speech that we want to protect, you go around and say something you don't mean to be threatening and someone takes it as the threat may be that childress speech because next time you won't be as likely to speak out, you might wonder

whether intent is a standard that is necessary to avoid a chilling effect, maybe knowledge is enough, recklessness is enough or negligence, you should have known people would think this was threatening so it is not clear you needed from the chilling effect perspective that give it is from some other prospective the court hasn't made clear why or what that is. arguably they decided this question before but arguably they were not totally focused on it when they decided it and the supreme court wanted to decide it twice, they can do that. the other case involved a town in arizona that has a sign of july. lots of towns you may be familiar with, laws about permanent signs, temporary signs, what kinds of signs can be up and how long they can be up and this sort of thing. that is the beauty of local government. the town of gilbert has a law

that treats different temporary signs like campaign signs, campaign posters differently so it has one set of rules for political signs, one set of rules for ideological signs and other rules for other essentially. there is a church here, the good news community church has signs that qualify as directional under the town of gilbert's on law, they show people where to go to come to the services, pull in here to go to the service and those are treated differently from the political signs and ideological signs. they have to be different sizes, they can only be a for a certain amount of time and this implicates an area of first amendment law called content discrimination so the supreme court has said famously about all else the first amendment means the government has no power to restrict expression because of its message, subject matter or confident. the question is, is that what is

going on with this law? in previous cases any classification based on subject matter, anything based on subject matter like treatment for political things or ideological things or different things the supreme court has frowned upon and i mean ridiculed and invalidated. when it comes to sign it laws there is this issue because it seems probably counts are not trying to discriminates against certain messages. probably what they want is to regulate the aesthetic quality of their environment while also giving room for campaign posters in which the supreme court said was important. what matters the fact that on its face this law treats different things differently based on their content or what

matters emotive behind zach, and modem calls. that is the messy supreme court claus they might be trying to clean up. >> you were very polite in not quoting directly on facebook post, but are any of these -- the point, the language is not ambiguous war and nuclear. in a certain context they could be perceived to be. >> i would think of them more free first. there is a question floating around where one way in which this type of problem that arises, the artistic expression,

they don't intend to convey a serious threat. something that is creative. this is a particular application of the question of what type of intent is necessary. the statements themselves are pretty disturbing, it doesn't remind the court any in we make will implicate artistic media. >> the implications of the evidentiary standard when dealing with criminal defense cases has come up already. it was admissible being in the record, violent lyrics, and there are ramifications.

and a stronger argument to say that information is not a should not be admissible in a criminal defense trial. they can actually see it going the other way. >> that is an interesting issue. and the evidentiary questions. >> the court seems to be playing can you top this? the general protest case would have been a law professor's worst nightmare for hypothetical. you don't want the supreme court to be deciding free-speech law on the oral facts of this case. now this one, what is next? >> i shudder to think. >> next up, in delicately in my notes, thank you for a terrific everything, welcome to the club.

you are our newest panelists. i had to list other cases. we decided we couldn't put that in another category but there were cases worth highlighting and steve graciously volunteered to be the go to guy and you are up. >> the first point i want to talk about, neil talked about how same-sex marriage is a civil rights issue of this era, this generation. one of the cases i want to talk about is the civil rights era of 40 years ago, a case involving pregnancy discrimination. in 1976 the supreme court ruled discrimination in the workplace against pregnant women was not sex discrimination and therefore was not covered by title 7 of the 1964 civil rights act. congress amended title 7 in 1978 passing something called the

pregnancy discrimination act to try to change that and basically say discrimination involving pregnancy should be seen as gender discrimination under title vii. fast forward not quite 40 years, peggy young works as a driver at a ups facility in maryland. her job requires her to lift packages of to 70 pounds in weight. she takes a leave in order to undergo in vitro fertilization to try to become pregnant. she succeeds and becomes pregnant and when she tries to go back to work her doctors tell her that she cannot lift packages more than 20 pounds without risking her pregnancy so she asks ups, which is covered by its own collective bargaining

agreement, she asks ups for an accommodation called a light duty assignment. she would continue to work but she would be in a job where she was doing a lighter job that didn't require to put her pregnancy in jeopardy. under the collective bargaining agreement ups said no, you are not eligible for a light duty assignment and since you can't perform your regular job requiring 70 pounds, you basically can't come back to work until your pregnancy is over. she eventually lost her salary and medical benefits under those circumstances. what ups says is our policy is we are complying with the pregnancy discrimination act, we treat everybody the same under particular work conditions. we are not discriminating against people on the basis of pregnancy. they say we will accommodate

people with light duty work under three circumstances -- one is if they have been injured on the job, two is if they have lost their department of transportation eligibility for truckers license and three is if they are required or entitled to accommodation under the americans with disabilities act meaning they have a disability. ups says pregnancy is not a disability under the ada. she hasn't lost her truckers eligibility and she is not injured on the job so we are not discriminating against her. we are treating her the same as we would treat anybody else. she doesn't meet those qualifications. so they refuse to hire her, she loses benefits, she gets permission to su from the equal opportunity employment commission, the case goes up on appeal to the fourth circuit and the fourth circuit upholds ups's

policy that this is nondiscriminatory. sushi has taken her case to the supreme court. the justice department, the solicitor general was asked by the courts and year ago to weigh in on this issue before the court decided whether to hear the case or not and it is of very interesting brief by the solicitor general's office that basically says virtually all of a federal appeals courts that considered cases like this have gotten it wrong including this one. but you the supreme court could probably wait for another set of facts or circumstances before you decide this case, you don't necessarily have to take this case and furthermore, congress was amending the americans with disabilities act to make it hat pregnancy could be considered a disability in some

circumstances and the eeoc might adopt regulations that would make this case. and resolve the problem. congress did amend the americans with disabilities act, regulations didn't seem to solve the problem so the supreme court has to hear the case. one additional note about it, there are always a couple cases that make wonder if the strange bedfellows and this is one of them. there are all kinds of coalitions of civil rights groups weighing in saying that she should be entitled to be treated as if she were discriminated against on the basis of gender. her treatment violated title vii. there is a coalition of pro-life anti-abortion groups that have weighed in in her favor on the premise that discriminating against people who are pregnant provides economic incentives for

them to get abortions and therefore that is not what congress intended when it passed the pregnancy discrimination act and intended to facilitate childbirth and pregnancy and so they weighed in on her side as well which makes it a fascinating set of friends of the court brief. my other case, that one is called young vs. united parcel service. my other case is hope versus hobbit, a civil rights case of sorts. gregory holtz is a prison inmate in arkansas who has an inmate is known as abdul mslik muhsmmad and his muslim beliefs require him to grow a beard at least half an inch in length. the arkansas department of corrections says no thank you. they allow mustaches under their corrections rules and they have a narrow exception for quarter

inch beards for people who have dermatological problems. they have a, dated him in many other ways. he is allowed to have a prayer rug, a copy of the koran, a special diet, he is allowed to observe muslim holidays, but they say that half-inch or longer beard is a security risk. you can hide drugs in the beard, you can hide contraband, weapons, raise is in the beard and they make what seems like that fairly compelling security argument. the problem with their argument is that according to the justice department and other briefs, more than 40 states have figured out how to accommodate this kind of request as has the federal bureau of prisons so it is hard for arkansas to maintain -- we don't know how they'd do it but we can't do it, it is too

greatest security risk. they say one of the extenuating factors is that the prison in question is a prison farm where the inmates are not in individual cells but in direct settings that create a greater security risk and also as they go off the grounds to work on the prison farm, meaning it might be easier for them to bring things back in to the prison. one of the counter arguments raised in the brief is they don't seem worried about the inmates muddling things in their clothes. they are worried about their inability to keep them from smuggling things in his beard as a security risk. so it seems like a kind of strange argument to be able to maintain. this is brought to under a federal statute which i have to say the name of just for the sake of saving the name of it.

its acronym is the religious land use and institutionalized persons act passed in 2000. the supreme court has on at least one occasion said we need to defer to the expertise of prison officials when they say they are trying to maintain security. that could be a counterweight here in the way the court looks at this case. the legal standard and i will stop, under this statute the state has to have compelling reasons for adopting a policy that burdens somebody's religious freedom. the need to maintain present security might be considered two compelling reasons but the second part of the test is the state does it in the narrowest possible way, the least restrictive means. the argument here is the state can't possibly meet that burden. it can't be the least

restrictive means. that case is going to be argued early in the term in october. >> when it comes to predictability of what the court might do how does this compare to the hobby lobby, the last religious freedom case the court decided on? >> the hobby lobby raised -- >> in terms of predictability. >> i don't like to make predictions but if i had to predict i would say it is going to be hard for arkansas to overcome the fact that -- and dec have all figured this out. >> something about the present context, you think about cloistered people who are removed ideally from life, and prison is one where they are getting it. they understand prisons right now operating with so much discretion and getting away with so much, they can do something, whatever it is and if you haven't been to a prison i encourage you to visit it and

see what it is like. justice kennedy served on the california prison commission, he cares deeply about these issues, this one is i feel comfortable arguing almost anything but this i would not want to argue on behalf of arkansas. >> you encourage people to visit the easy way, not the hard way. >> an open door. >> it is interesting, think of a couple cases we talk about, and gilbert and holtz and looking at the degree of discretion the cork is eager to afford to prison officials of local officials about the sign edge in town or the safety concerns. it will be interesting to see if there's any consistency in how much is given to any state official depending on the context and prisons to present something of a contract agreement, the court -- our prison system is so highly dysfunctional.

we may actually see what i think is the right decision here. >> the inmate in this case is going to have the solicitor general's office arguing on his side, the government that maintained, the agency that maintains the bureau of prisons, that is pretty powerful. >> any other thoughts on the case as steve presented it? we will soon come to your questions and comments. comments on a brief sighting even questions on the brief side. you have a couple for directors with microphones on either side who will help you get a microphone and ask your question and that is one thing we would ask, please don't start speaking until you have a microphone firmly in hand and hold it close to your mouth and don't fiddle with turning it on or off loser will be on, trust us. or we will scramble to turn it on for you but before we come to more discussion here i would offer the opportunity for any of you to bring up something that either popped into your mind during this segment that you didn't get a chance to say, this might be a chance to say it or if there's another case to

highlight, i want to ask, back to the voting rights cases if you look at the political landscape of voting rights, it seems like maybe we are into a period where we will be seeing a lot more cases make their way to the court. can you comment on that? >> we are going to see a voter id case go into the courtroom wisconsin or texas, we are litigating a case, just finished closing arguments in challenging the voter id laws which are the most in the country in texas today so we will see. that is probably the next frontier, redistricting is always something that makes its way to the court. don't know how much ground there is to tread, something that has changed because section 54 all-purpose is is defunct at the moment. we may start to see different challenges come to the court that are not more from the voting rights act which could

also be troublesome. >> i want to say a word about a case called shelby county from a couple years ago. it is a very good case compared to what i opened with today about the court acting with anonymity. that was the bitterly divided case that struck down landmark provision of the voting rights act that had been around since 1965 and i argued the case four years before which the supreme court has let the provision stand. in 2013 they struck it down and they struck down on this notion that something they call the equal footing doctrine, states are discriminated against more than others. it basically made up, you can't find it in the constitution. it is an interesting example how when i went to law school it was conservatives who preached judicial restraint and the idea that courts should not do very much, should strike the

legislation that is unconstitutional and over the last 15 years we have seen a rollover and is the conservatives that are flexing their muscles a using the courts to strike down a lot of legislation. shelby county is an example of a landmark statute, passed 98-0 by the senate and something like 421-3 in the house, reauthorize in 2006 by those numbers and the supreme court struck it down. >> july activism is like gerrymandering. it depends who is doing it. >> neil made a brief reference earlier but we should mention that there is a good likelihood the supreme court will get some abortion cases, one or more this term. they have not agreed to hear any abortion cases yet. there are several variations of statutes that have been ruled on or are being ruled on in the federal appeals court. i don't know whether i would say it is a certainty but a good possibility that the court will have to decide one of these abortion cases, maybe this term,

maybe next term. >> in the spirit of looking ahead since what we have is a partial supreme court docket there are many things added before the term is up. a couple things, i do think they will continue with their first amendment fatal attraction, we may see more cases that are first amendment related. one is mohammad versus united states which will be looked at by the court on the september 29th conference. this is about a person convicted for providing material support to a terrorist organization largely on the basis of ideological writings that he posted online which gets to a different aspect of the same question about how much can mere words constitute a crime. a different crime from the threat crime. it is of very unusual and interesting case that brings up some classic first amendment presidents. lot of stuff happening in the

lower courts involving commercial speech or speech by commercial entities would be the better way to put it particularly rattling around on the d.c. circuit, claims by commercial entities, types of disclosure requirements their subject to such as country of origin labeling, these violate the first amendment and the d.c. circuit decided a case of this kind for the american meat institute. is not clear what will happen in that specific case on the supreme court level or if the supreme court will look at any of this that there's a lot happening in cases that resemble a little bit on the speech side kind of what hobby lobby was like on the free exercise side so is possible we could get at the very important type of first amendment case showing up in the next couple years on the supreme court side. >> to your questions if we want to get the microphones in play. i will give you a moment to do that. raise your hand if you have a question, give our floor

director some help. someone on this side too. we will get to you in a minute. let me ask the question before we come to you about the court stating relevant. i remember the technology cases like the cellphone case and now we have a face book case of authority and the technology is not a focus. generally speaking how is the court doing in keeping up with changes that change the way we live and perhaps the way we decide cases? >> the case last year which was about this company that allows you to intercept every the air television signals and watch them on the internet and so on. they got a fair amount of criticism after is the argument for people saying they didn't understand technology and so on. i find that frankly wrong. justices spent a lot of time getting the technology right. i remember in the first case,

the communications decency act case in 1997, i was the only one at that point had a laptop that connected to the internets in the court. so they came to my office and ultimately went to the library where there are two internet terminals so they could get tutored on the internet but they understand it and it was a great opinion that they wrote and that is true today. they are spending a lot of time getting the technology right and most importantly the team in technology cases is they have often gone slow and not done too much because they know what they don't know. technology case after technology case you see that. the big exception is the cellphone case where they felt like no way. if you get arrested the government can search everything on your cellphone, every picture, every medical record, every bank account. that is not like the old searches incidents with a cigarette container and the weapon or something like that. the government said you could do

that but this is the will and warrants to do whatever. a big game or little-known fact. >> they have their law clerks keep them up-to-date on the technology. >> these law clerks are not too -- >> california video game statutes, i remember justice cajunk --agan when she was concerned about the breadth of the statute, back in the chamber is playing some of these games right now. ..

georgetown. i would like to ask professor kendrick, could you please tell us, what's the procedural history of the case? >> so this is a case that arose in the third circuit. so mr. alonis was in the process of splitting up with this wife are moving up from the family home and he made something statements on facebook about a coworker and got fired for that and was continue to make more threading statements online. most of this to his facebook account. eventually is charged mostly it's about the statements about his wife although there are some of the statements. there's one about how much, how many kindergartens are nearby and now on getting into the statements, right?

with one weapon, how much damage it could do with a kindergarten are the only question is which one, these sorts of things. >> the fbi agent, also. >> yes. as people began to investigate him, he began to pile up a bit and find some new targets in the speech. so eventually he is arrested and is brought to trial. it's a pennsylvania case. and instruction that's given at trial is the standard that i was mentioning, a reasonable person, would a reasonable person think that these were threatening statements. and that standard was upheld by the third circuit on appeal. now what we have is in his seeking searcher rory to the court, it seems like he, of course the court doesn't disclose what its reasons are but seems likely the fact that

there's a pretty established disagreement in the circuit on what the standard is probably had a lot to do with her case. they recently looked at it, pass on another case raising th this issue. perhaps they thought that case had some issues that would stop them from getting to the substantive question. but that's how we wound up where we are today. >> might of the bit -- with the arrested and in jail, charged with a crime and find, or what speak was yes. there's a federal statute under which it was charge which is a federal threat statute and he was arrested and charged under that statute. it's also not clear from that statute what state of mind you need which is part of why this whole thing has become a first amendment issue because there's not a lot of clear direction from the statute about what's necessary. but yes, there's a federal threat statute under which he was charged. >> first questioner graciously

demonstrate, i would ask if you're able to stand completes them. we will not ask you to lift 70 pounds but it is the camera a better opportunity find you. did someone begin to say something and they stepped on you? sorry. i'm hearing voices. this gentleman with a microphone is next, yes. >> gabriel hopkins, i'm a lawyer here in d.c. at public justice. a lot of the topics that the panel has covered by kind of hot button issues and am wondering if there are any sort of sleeper cases out there that may seem very dry on the surface, procedure issues or financial issues. >> do you have some boring cases of? >> that might have large impac impacts. >> thanks. anything that comes to mind? >> well, i've got a bunch of those. [laughter] >> i think the one that probably will have the most significance for the nation's economy is a case called learjet which is basic about whether states can

regulate the energy markets or whether or not it's only federal law that controls stake are many billions of dollars. the question many cases can states protect consumers with antitrust laws or do federal laws sweep away all the state laws? article iv of the constitution has a supremacy clause in it which makes the federal law supreme court state. the federal government, congress has regulated the energy markets for a long breed of time. the question now is, how they occupied the field basically? have the push to which any state regulation? was can states regulate? the energy companies that? the energy company said it states congratulate them we have to play by the lowest common denominator and operate to what of the most restrictive state is, where as if it's a national rule we have more certainty and predictably. time to drive something that will matter to everyone's energy bills each month. >> there's another case, will

have broad -- is relevant everything but economic crisis in the number of homes or lost through foreclosure. this case comes out of the eighth circuit and it asks whether a homeowner who was in mortgage and wants to rescind the mortgage and writing within the statutory period can do it simply by contacting the mortgage lender in writing, or must the homeowner also initiate a suit to officially rescind the mortgage. obviously, a higher the bar the more difficult it is for recession, the more likely you're going to find folks find themselves facing foreclosure. so the economic impact of the case is something that we should probably pay some attention to. >> i want to fall upon one thing neal said. just generally speaking, when you ask the question what are the boring cases, what's the standing crops be dished boring wasn't your word. >> i'm putting words in your mouth.

the sleeper cases is a better way to put it. meal immediately brings up a preemption is. i just think preemption generally it's an underappreciated part of the supreme court's docket. i think partly people to put all the preemption cases together because they arise and it's only different statutory schemes with so many different subject matter areas, but it's hugely important question of who gets to decide questions, the states or federal government, and everything from product liability to ng regulations are doing lots and lots of preemption cases and it's important to keep an eye on them. >> we have time for plenty more questions, but it have to do a little bit of business here. meal, it's 617 time it. neal has a pressing engagement he has to leave for. if you see. if you seem get up and leave, it's not anything you said. and so, neal, let me thank you now. thank you for coming. [applause]

>> as we continued i just had a quick question to all of us have either currently teach or have taught. steve has some students in our district could you identify yourself if you're part of stever meals class? their ago. some students from my class. let's get a look at you as well. we are penn state, all that stuff. it is not a competition, steve. >> a former student. we're honest. >> and the teacher evaluation forms will be available after the program last night who is next? the woman here has disappeared strangely enough. i think she followed neal katy katyal. >> megan schuler, i'm an attorney at the department of justice in the civil rights division. i mentors on the pregnancy discrimination act case. if you have a prediction for the of, given that the solicitor general did say they think all the circuits got it wrong, whether the supreme court will address at all or the ada commitments act does, in fact, protect pregnant women?

>> as i said i hate to make predictions but if i had to guess what the court is going to go with this, it looks to me like the court here and the other -- this is the fourth circuit, but other courts that have wrestled with this are getting it wrong. this is not consistent with what congress intended when it passed the pregnancy discrimination act and it leaves the 2008 commitments to the ada act, should have boosted that argument but that doesn't seem to be helping either. i would guess that are going to protect that the court will rule against united parcel service and for peggy young. >> thanks. who's next? right over here on this site. yes. >> i'm with abc news --

>> stay and play so we can get a better look. get a bright light on you, please. >> i happen to be looking at facebook and they think and i've no idea but i looked up and i saw that there was mr. alonis with the same demand is posting a facebook. talk big picture. either way the court rules, what is the impact on the average person who posts on facebook? what sort of the big picture impact stick with your talk about current post. you suppose recently? >> i thought i did but i can't say for sure but i thought it was interesting. what's the bigger picture of? >> were the over the top? >> well, you know, the law professor in me resists the idea that what this case is about and what we should think it's about is the law facebook. there is a kind of risk of creating what we like to call a lot of the horse. the law of an inanimate object or a particular medium are something like that.

the first amendment area by and large, the supreme court has resisted doing that. they want rules here that are all-purpose, that apply to people who are speaking face-to-face, or publishing any newspaper, who are publishing in facebook, who are tweeting, whatever. that doesn't mean they aren't sensitive to the fact that our chosen media change and that this is probably not a standard that's going to get played out through facts very much but it's going to play out in facebook and twitter and other things. but they want something that's not medium sensitive, that applies across all media. and i think whether they're thinking about facebook or they're just thinking about people speaking or whatever, partly they will be concerned about the question of is our standard something that's going to kill people who engage in speech that's borderline but ultimately protected? by and large, they historically in the first minute they worry that the impact that the rules

for unprotected speech will have on protected speech but question is what kind of rule what you need to make sure people for comfortable posting a facebook. to make sure people can accountable engaging face-to-face. that's not something -- by the way combat such a thing they could be worried about your but it's the type of thing your question raises its one thing they could be concerned that. how exactly do we decide, i don't know. what they won't be trying to do is make the law of the facebook. >> i think, i don't know if you would agree, leslie, i think if they opt for an intent requirement, either they say it's in the statute for the sake the first amendment requires it, then i think that gives you a lot more leeway in all realms of speech. you can say things that is the requisite intent is not there, you probably can continue to

say. if i post on facebook and say, you know, if you don't take a picture of me down, i'm coming after your family. if it's a reasonable person standard, i may be in more trouble for that post and if it's an intent requirement. i think it would be fairly clear that you can't tell that are really intended to make a threat in those circumstances. but a racial person might have felt threatened in those circumstances. that's what a simple version of the difference between the two standards. >> but i think a tough thing about it, so i do think that's exactly right, and people proceed on the understanding that a subjective intent requirement will be protective of more speech, be harder to prove that someone had the requisite intent to say that the speech is unprotected. but content itself is a tricky thing. ultimately in many cases juries will be deciding it or it's

going to come down to evidentiary questions about what do we read, what gets let in by the judge and, you know, contradicting a jury's assessment of what someone's intent is is kind of hard thing to do. so it depends exactly if they say anything about how to implement that, if it's a question for judges, what types of evidence are relevant. >> and if mr. alonis get a new trial, intent his record, i'm not sure he wins. >> that's right. >> they connect to get both outcomes. they can use as an example where the language was so strong that you can infer intent yet it doesn't set to broad a president to chill other speech. >> who is next? >> my name is breanna and i'm a politics policy and law scholar at american university. and just a general question.

so what does the court's recent decision in american express ursus italian colors mean for the future class action lawsuits? you see these types of lawsuits diminishing in number in the future due to these decisions because are you a -- >> no. >> we will find out who her professor is. >> i'm not a simple procedure expert. the court has been really hostile class actions in recent years. there has already been a significant reduction, i think, in the number of class actions in the courts, the requirement by the court that the commonality of interests of the parties in the class has to be much more rigorous than before that sort of state of roads in the last few years but i think has made class actions were difficult to have you had some

experience with the? >> a long line of cases makes a very difficult to bring class action lawsuits be to think about wal-mart a few years ago that also narrowed it. preceding that there's been a huge attack on the ability of lawyers to get attorneys fees in these sorts of cases. what i think we often ignore is that these procedurals have an impact on indicating rights. they are only enabled by these procedural rules. so they are as consequential in many ways as the substance because you never get to the substance if you don't have the right procedural entrée. i'm glad you raised that. that's a great question. >> i don't know any cases on the docket this term that raising of these issues or even that are pending, but who knows. >> i think with time for one more question. if someone has one.

>> i'm an attorney on capitol hill. i just had a question about the alabama redistricting case and wondering if section two of the era was all in play there? >> that's a great question. >> could you explain for the uninformed would? >> i talked about section five already and that is a part of the buddy rice act is limited to specific jurisdiction but it was limited specific jurisdictions until shelby county versus holder where the court basically put that on hold. what is still in full effect in section two of the voting rights act which can prohibits any voting practice procedure, policy that has a discriminatory impact on a minority committee that lessons in anyway the ability of the community, those voters to elect a candidate of choice to exercise their voting power on equal footing. so section two was raised in this case.

it has been a focal point. the defense was compliance with section five. section 203 less-developed. of course, those of us who care very much about section two are concerned that the court may decide to reach into section two and talk about it and there are lots of concerns about whether there may be arguments about its constitutionality. i don't think this is the case that is really team that have squarely so don't think the court will reach that far to get to the. that's always a concern because that is the last piece of the buddy rice act that is going in effect to really provide a broad protection against racial discrimination in the political process. >> earlier neal said same-sex marriage is the issue of our time. hearing you talk about voting rights, the civil rights issues are still unresolved spent i might push back on that one with him. there really is no hierarchy of civil rights issues. there are sadly too many to do

with. >> before because i want is a couple more just thanks. thank storefronts of the american bar association. also if you want any more information from the wilson center or the add these for public education please check our website. that's for people who are joining us via webcast or via c-span can get a copy of the tool useful publication. i want to thank all of you, thank the audience in the room, the audience in the overflow room, the audience watching on c-span2 and also that the wilson so webcast. i want to ask all of you to join me with one final bit of business, which is thinking our outstanding panel. the three still with us and neal who left. thank you. [applause] >> up next on c-span2, democratic senator tim kaine of virginia talks about the militant group isis and congress' role. the congressional black caucus is holding a town hall meeting

to talk about voting rights and the midterm elections but it's part of their annual legislative conference. live coverage starts at 9 a.m. eastern. >> c-span campaign 2014 debate coverage continues tonight at nine. nebraska second congressional district debate between incumbent republican representative and state senator brad ash fourth. >> you are just a few the comments we've received spent i watched c-span almost every morning and you guys did a great job with the programming and i think that the people you have

on a really good and the topics that you choose are really good but what i would like to see is something from both sides of the opinion. i know a lot of people have commented. a debate between two people is so much more informative. you guys have done this a couple times and it's like i'll turn it on and i will go on, you get both sides everything that's what is really awesome. you guys are great but you could be awesome. >> c-span needs to get more liberal type, smart commentators that are fully with world affairs. when i that comes to mind is dr. jeffrey sachs. he would consider to a liberal point of view of our government and the world. i think he did a fine contributor of c-span to give it a little more balance.

>> i wanted to thank c-span for there town hall coverage and for letting everybody have their say on tv. that's very much appreciated in our democracy. thank you. >> i am so disappointed since you changed the format. i can no longer see who is speaking or what even the topic is without getting out of bed and going up in front of the tv because i can't see it. i'm just really, really upset about that and i really do like c-span. >> continued to let us do what you think about the programs you are watching. paula's, -- call us, e-mail us, or send us a tweet at c-span hashtag comments. join the c-span conversation, like us on facebook, follow us on twitter. >> next democratic senator tim kaine of virginia talks about the role of congress in combating the militant group i

suspect this center for american progress event is just over one hour. >> good afternoon. my name is ted strickland, president of the center for american progress action fund, and on behalf of neera tanden, was the president of the center for american progress, and the mayor of our colleagues, we welcome you here. we thank you for joining us today, and given what has happened over the last few hours, this event is a very timely event. we know that the islamic state of iraq, or isis, is horrifically barbaric. they have been described as too violent for al-qaeda. they have engaged in near

genocide of yazidi minority groups, and they conducted gruesome beheadings. the american people are now galvanized in support of action to counter this threat. president obama has laid out his strategy to degrade and ultimately to defeat isis. we here at c.a.p. and c.a.p. action broadly support the president's plan. but we are very eager for a robust congressional debate and new congressional action to authorize a specific mission. the constitution divides the power to declare war and the power to conduct war between the legislative and executive branches. congress decides whether to fight, and the president as commander-in-chief manages the fight authorized by congress. over the past 100 years the

balance of war powers have shifted toward the president. the president's have often relied upon commander-in-chief authority or even extensive military campaigns. an example, the libyan air campaign of 2011. congress has periodically tried to preserve its prerogatives on war powers such as the 1973 war powers resolution. but really hasn't been able to stop the trend. the obama administration claims both the 2001 authorization to use military force, or aumf, directed at the perpetrators of the 9/11 attacks, and the 2002 iraq war aumf which provided congressional authorization for

military campaigns against isis. however, many legal scholars disagree with this claim, creating a rather weak foundation for a military operation. it also appears to reverse our earlier positions of the obama administration advocating for the narrowing or repeal of both the 2001 and 2002 aumf's. regardless of the merits of the obama administration's claim, it would be far superior to obtain specific congressional authorization for this military campaign. holding a vote would force the congress to commit to support the mission, especially important in this time of intense political polarization, and obtaining specific congressional authorization for this mission would establish a

strong precedent for any future presidents to follow. many in congress are now calling for debate in action on the new aumf directed at iso when they return from the lame duck session following the november election but that is why we are thrilled today to have one of the strongest advocates in the senate of our congress to accept its responsibility to play its congressional role, its constitutional role in helping to define the strategy and authorize the military campaign against isis, and that is our friend, senator tim kaine. before i specifically introduce the senator, i'd like to say a few words about the format of today's event. senator kaine will be delivering remarks from this podium. when he has concluded his speech he will be joined by my colleague at the center for american progress action fund senior fellow ken gude for discussion of the critical

issues, and his remarks. then we will open it up for questions from the floor, and that will conclude the program. senator tim kaine, he has served the people of virginia of the past 20 years, first as the mayor of richmond, then as governor, and now as one of virginia's united states senators. senator kaine has been a leader on foreign and security policy, serving on both the armed services and foreign relations committees. he has been incredibly supportive of veterans of the iraq and afghanistan conflicts as they enter american life and the just to being back home. he chairs the u.s. and mexican interparliamentary group, and he chairs the subcommittee on the near east, south and central asia affairs. senator kaine has been an early and a courageous voice, pushing

his colleagues and the obama administration on the need for congressional authorization for the conflict with isis. he has introduced legislation that would authorize the conflict but oppose, or impose appropriate limits on the use of force against isis. now, this is not an issue for the senator. he has been working for a long time on updating and improving the war powers resolution. and, senator, we are honored, we are honored to have you with us today. and i ask each of you to join me in welcoming the senator to the podium. [applause] >> thank you so much, i want to begin with thanking my good friend, governor strickland, for his kind words and for the invitation of c.a.p. to be here today. to our few people in public life who i've come to know in 20 years in elective office that if

you us warmly toward both as a public servant and as a person and ted strickland i that he really sets a great example of public service that stems from a moral compass that is undeniab undeniable. if you know him for five minutes you detect a very strong and that's one reason i'm so happy to be with you. to talk about an issue that is sadly topical. the war on isil, and that phrase is used by secretary hagel at the armed services hearing last week, we are engaged in the war on isil, has been going since the middle part of august when from a defensive mission to protect american personnel at the embassy and consulate in irbil too often submission against isil. by my quick calculations, including the events announced this morning by the president, that have nothing thousands of virginians who have been directly involved in the airstrikes and other activities since that time.