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Premiering at the 76th Cannes Film Festival, this fourth feature, directed and co-written by Justine Triet, won the Palme d'Or, making Triet only the third female director to do so after Julia Ducournau (Titane) and Jane Campion (The Piano). Triet's narrative was under consideration to be France's submission to the 96th Academy Awards for Best International Feature, but France went with another choice. Its distributor, Neon, is pushing it for other categories, such as Best Actress and even Best Picture. According to Gold Derby, the odds are in its favor.

If one enjoys courtroom dramas, one might be primed to enjoy Triet's film. If one is not familiar with the criminal justice system in France, one might be curious to see how French courts differ from United States' courts. In terms of procedure, the U.S. has what's known as the Fifth Amendment, which means that a defendant in a criminal case can't be compelled to testify during a trial, or at any point during a legal proceeding. This is apparently not the case in France. Not only that, but apparently a defendant can be questioned by the prosecutor at any time and the defendant doesn't even have to be at the witness stand. It makes the whole thing feel unstructured and possibly chaotic.

Sandra Hller (I'm Your Man and Toni Erdmann) stars as Sandra Voyter, a German author who married a French teacher who's also an aspiring author. She has a son with him and it looks like they live in a chalet in the French alps. Sandra is in between books. She instead works as a translator, while her husband is a stay-at-home dad who is trying to come up with writing but isn't as successful. He instead spends time renovating the chalet. Sandra feels estranged from her husband and has so for some years. When he's found dead, she becomes the prime suspect.

Swann Arlaud (By the Grace of God) co-stars as Vincent Renzi, the lawyer representing Sandra. He's a no-nonsense guy who pushes Sandra to go along with his theory that her husband's death was due to suicide, even though Sandra doesn't believe it. This film doesn't show much of his process, but he prepares himself very well and we come to see that he and his co-counsel are very knowledgeable about Sandra. There's a bit of drama, which catches them off guard, but otherwise Vincent seems more than competent. His knowledge of things though possibly comes from a prior and even current friendship he has with Sandra.

Milo Machado-Graner also co-stars as Daniel Maleski, the 11-year-old son to Sandra. He's visually impaired due to an accident when he was 4. He has a seeing-eye dog named Snoop. Unfortunately, he's called to testify at the trial. There's an interesting aspect about that, which hasn't been explored, certainly not in American courtroom dramas. Here, the court assigns a social worker to keep watch over Daniel, so that his mother doesn't do or say anything to influence his testimony.

There's a scene where we see this social worker named Marge, played by Jehnny Beth, a real-life musician, following Sandra and Daniel. It's implied that she's akin to a live-in nanny because otherwise how could she keep watch over Sandra and Daniel? The trial doesn't start for a year, so the implication is that she lives with them for a year. The film rather skips over this aspect and how intrusive that would be or what kind of relationship develops from that.

After the first hour, the film takes place mostly in court. I'm not sure what the intention of Triet was. I assume she wanted it to be a mystery or a question of Sandra's guilt or innocence. However, it got to a point where I fully believed that Sandra was innocent. Triet's question or mystery was neither a question nor a mystery because the so-called evidence was never convincing, mainly because a lot of it is speculation. Also, the behavior of Sandra never suggests she's the psychotic murderer that the prosecution is trying to paint.

Having seen so many legal dramas, particularly on television, most recently, the second season of Netflix's The Lincoln Lawyer (2022), I thought Triet crafted the narrative to put us on the side of Sandra in order to undermine the expectations. There is a scene where we see Sandra arguing with her husband, which is supposed to set up her possible motive for killing him. Triet seemed to want to use the scene to put doubt in the audience's mind about Sandra's guilt, but it only put me more firmly on Sandra's side. The so-called motive never felt solid by the end.

As such, the courtroom scenes weren't as thrilling as I had hoped. The best courtroom dramas always present both the defense and prosecution as equally strong. Here, I never felt the prosecution was as strong. I always felt like the prosecution was grasping for straws.

Rated R for language, sexual references and violent images.

Running Time: 2 hrs. and 31 mins.

In select theaters.

Visit link:
Movie Review - Anatomy of a Fall | The-m-report | wboc.com - WBOC TV 16

Before the jury came back, I told you thatTrump would losethe E. Jean Carroll rape case.

I also told you that the result of that first E. Jean Carroll trial woulddictate the result of the next one. The next trial isnt scheduled to begin until January, but I told you months ago that Trump will lose; the only open question is the amount of damages that will be awarded. (I stand by that prediction. Its correct.)

So, if Im that clever or at least sufficiently clever to be able to read and think what will happen in the case thats currently in trial between New York Attorney General Letitia James and the Trumps?

First, the Trumps will lose. You dont have to be too smart to predict that because I didthe judge hasalready ruled, on summary judgment, that the Trumps committed fraud. All the judge is considering now is the amount of restitution the Trumps must pay (and perhaps other remedies). So dont be confused by all the news coverage: Trump has already lost. The press is (appropriately) covering the testimony that witnesses are giving, but the final result is not in doubt.

Second, the Trumps are doing almost nothing at trial that helps their cause. Its pretty unusual for a lawyer to be sanctioned for making frivolous arguments in court. (I dont know if there are empirical studies about this, but Id bet the average lawyer goes a lifetime without ever being sanctioned by a court.)

Trumps lawyers are different: Judge Engoron has sanctioned Trumps lawyers for making frivolous arguments. That reflects pretty poorly on the lawyers. Engoron also sanctioned Trump himself twice for attacking the judges clerk after the judge issued a gag order forbidding Trump from doing so.

But thats not enough for Trump. Trump routinely publicly attacks the judge.

None of this helps Trumps cause.

Third, the routine that Don Jr. and Eric used when testifying last week is as old as the hills, and it wont work.

We all know that success has many fathers; failure is an orphan. Anyone whos defended commercial cases for a few years has seen this proverb play out repeatedly. Everyone in a company is delighted to take responsibility for a good decision.

But defense counsel asks each of the four players who were in the room when the bad decision was made whether they personally made the bad decision: The decision that got your company sued doesnt look like a very good one. Who made that decision?

Person No. 1: I know the decision affected my line of business, but I was only making a recommendation. I wasnt responsible for the decision.

Person No. 2: I was on the committee that reviewed that decision, but it wasnt my area of expertise. I was relying on others.

Person No. 3: The committee wasnt really approving anything. We were just hearing about how the business operated.

Person No. 4: None of the accountants or lawyers said there was any problem, so things just floated by. I didnt pay much attention.

Failure is an orphan.

Every time any institution makes a bad decision, youre writing in the passive voice: A decision was made. You can never identify who made the decision; no ones willing to take the blame.

Things can get heated sometimes: As your lawyer, I cant go into court and say that no one made the damned decision. Someone made the decision, and that person will have to defend the decision under oath in court. Which of you made the decision?

Crickets.

So Don Jr. and Eric Trump think theyre being clever when they testify under oath that they didnt approve financial statements. They were just running the company. They got numbers from the accountants who were really the decision-makers. (The accountants, of course, say that they relied on the Trump Organization to provide honest numbers. Its a tale as old as time: No one made the bad decision!)

Hence my prediction: The judge will reject this testimony (because hes undoubtedly heard it many times before) and find Don Jr. and Eric not to be credible.

Im writing this column over the weekend, before the former president takes the witness stand, but my final prediction is that Engoron will also reject certain testimony that he hears from Donald Trump.

Heres my thinking: First, Engoron has already found that many of the financial statements prepared by the Trump Organization contain false statements. That reflects poorly on the folks running the Trump business; they lied for years, in multiple documents. The judge is not going to change his mind about that fact, and the fact reflects poorly on Trump.

Second, the judge has already heard from Donald Trump during a brief sanctions hearing and found Trumpnot to be credible (which means that Trump lied under oath). The judge thus knows in advance that a liar is about to take the witness stand.

Third, the testimony that Donald Trump will give on Monday is going to hurt Trump, likely in two ways. When he denies that he had knowledge of certain issues, hell be confronted with documents showing that he did have knowledge. That happened with Don Jr. It happened with Eric. It will also happen with Dad, and it wont reflect well on Dad.

Moreover, Trump may invoke the Fifth Amendment and refuse to testify about certain issues when hes asked about them on Monday. The lawyers from the Attorney Generals Office know full well that Trump will look terrible if he refuses to answer questions because the answers would incriminate him. If that happens, the judge will be permitted to presume that Trumps testimony on those subjects, if it had been given, would hurt Trumps cause. If Trump takes the Fifth, Engoron will use that presumption against Trump in his ultimate decision.

It should be relatively easy for the the AGs lawyers to force Trump to invoke the Fifth Amendment at trial. As just one example, Trump reinstated himself as trustee of his business trust on January 15, 2021, before he handed over the White House to Joe Biden on January 20. That decision will cause Trump heartache in his criminal trials: Why did Trump put himself back in charge of his business which suggests Trump was returning to the private sector on January 15 if Trump truly believed that he was still president for another four-year term? And if Trump knew he had lost the election, why was he conspiring with others to keep power?

If Trump has any sense or if he simply has competent lawyers he will decline to answer questions on this subject for fear of self-incrimination. Engoron will then presume from that invocation of the Fifth Amendment that Trumps testimony would have hurt his cause at trial.

Thus, the Trumps will lose the civil case pending in New York, and the judges opinion will castigate the whole family.

How about timing? When will the Trumps lose?

I cant help with that one. Engorons the judge; Im not. He will issue the opinion whenever he cares to. I suspect that hell issue the opinion reasonably promptly perhaps within the next several months but the timing is up to him.

On the other hand, I can intelligently predict the length of his opinion: Engorons decision on summary judgment was 35 pages long; hes taking this case seriously. Engoron knows that the whole world is watching the current trial. Engoron knows that the Trumps are certain to take an appeal from his decision. Engorons decision after trial will thus be long, detailed, and written to persuade the public and to avoid reversal on appeal.

How much will the Trumps lose?

Sorry: This would once again be pure guesswork. To have an informed opinion on this subject, I would have to study the opinions of the expert witnesses in the case. Even then, the judge could have a surprise. I have no idea none how much the judge will order the Trumps to pay in restitution.

There you have it.

Sensible journalists report things only after they happen. Thats the intelligent course, so it doesnt restrain me.

I report things before they occur.

By early next year, I suspect, well know how I did.

MarkHerrmannspent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeons Guide to Practicing LawandDrug and Device Product Liability Litigation Strategy(affiliate links). You can reach him by email atinhouse@abovethelaw.com.

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Another Result Before It Happens: The Trump Civil Case In New York - Above the Law

This article is part of TPM Cafe, TPMs home for opinion and news analysis. It was originally published at The Conversation.

When Louisiana passed a law in August 2023 requiring public schools to post In God We Trust in every classroom from elementary school to college the author of the bill claimed to be following a long-held tradition of displaying the national motto, most notably on U.S. currency.

But even under recent Supreme Court precedents, the Louisiana law may violate the establishment clause of the First Amendment, which prohibits the government from promoting religion. I make this observation as one who has researched and written extensively on issues of religion in the public schools.

The Louisiana law specifies that the motto shall be displayed on a poster or framed document that is at least 11 inches by 14 inches. The motto shall be the central focus and shall be printed in a large, easily readable font. The law also states that teachers should instruct students about the phrase as a way of teaching patriotic customs.

Similar bills are being promoted by groups like the Congressional Prayer Caucus Foundation, a nonprofit that supports members of Congress who meet regularly to defend the role of prayer in government. To date, 26 states have considered bills requiring public schools to display the national motto. Seven states, including Louisiana, have passed laws in this regard.

The Supreme Court has long treated public schools as an area where government-promoted religious messaging is unconstitutional under the First Amendments establishment clause. For example, the Supreme Court held in 1962, 1963, 1992 and 2000 that prayer in public schools is unconstitutional either because it favored or endorsed religion or because it created coercive pressure to religiously conform. In 1980, the court also struck down a Kentucky law requiring the Ten Commandments to be posted in classrooms.

At the same time, the court has protected private religious expression for individual students and teachers in public schools.

The Louisiana law comes at a time of rising concerns about Christian nationalism and on the heels of a pivotal court case. In the 2022 case Kennedy v. Bremerton School District, the court overturned more than 60 years of precedent when it ruled that a public school football coachs on-field, postgame prayer did not violate the establishment clause. In doing so, the court rejected long-standing legal tests, holding instead that courts should look to history and tradition.

The problem with using history and tradition as a broad test is that it can change from one context to the next. People including lawmakers are apt to ignore the negative and troubling lessons of U.S. religious history. Prior to the Kennedy decision, history and tradition were used by a majority of the court to decide establishment clause cases only in specific contexts, such as legislative prayer and war memorials.

Now, states like Louisiana are trying to use history and tradition to bring religion into public school classrooms.

Contrary to what people often assume, the phrase In God We Trust has not always been the national motto. It first appeared on coins in 1864, during the Civil War, and in the following decades it sparked controversy. In 1907, President Theodore Roosevelt urged Congress to drop the phrase from new coins, saying it does positive harm, and is in effect irreverence, which comes dangerously close to sacrilege.

In 1956, amid the Cold War, In God we Trust became the national motto. The phrase first appeared on paper money the next year. It was a time of significant fear about communism and the Soviet Union, and atheism was viewed as part of the communist threat. Atheists were subject to persecution during the Red Scare and afterward.

Since then, the motto has stuck. Over the years, legal challenges attempting to remove the phrase from money have failed. Courts have generally understood the term as a form of ceremonial deism or civic religion, meaning religious practices or expressions that are viewed as being merely customary cultural practices.

Even after the Kennedy ruling, the Louisiana law may still be unconstitutional because students are a captive audience in the classroom. Therefore, the mandate to hang the national motto in classrooms could be interpreted as a form of religious coercion.

But because the law requires a display rather than a religious exercise like school prayer, it may not violate what has come to be known as the indirect coercion test. This test prevents the government from conducting a formal religious exercise that places strong social or peer pressure on students to participate.

The outcome of any constitutional challenge to the Louisiana law is far from clear. Prior cases involving the Pledge of Allegiance offer one example. Though the Supreme Court dismissed on standing grounds the only establishment clause challenge to the pledge it has considered, lower courts have held that reciting the pledge in schools is constitutional for a variety of reasons.

These reasons include the idea that it is a form of ceremonial deism and the fact that since 1943 students have been exempt from having to say the pledge if it violates their faith to do so.

The Louisiana law, however, requires instruction about the national motto.

If the law is challenged in court and upheld, teachers could teach that the motto was adopted when the nation was emerging from McCarthyism and fear of communism was widespread. Moreover, they could teach that many people of faith throughout U.S. history would have viewed this sort of display as against U.S. ideals.

More than two centuries before Roosevelt argued that it was sacrilegious to put In God We Trust on coins, the Puritan minister and Colonist Roger Williams famously proclaimed that forced worship stinks in Gods nostrils. Williams founded the colony of Rhode Island, at least in part, to promote religious freedom.

Additionally, there is no prohibition on alternative designs for the national motto posters as long as the motto is the central focus of the poster. In Texas, a parent donated rainbow-colored In God We Trust signs and others written in Arabic, which were subsequently rejected by a local school board. This situation, which gained significant media attention, brought the exclusionary impact of these laws into public view.

It could be argued that accepting wall hangings that favor Christocentric viewpoints and rejecting those that reflect other religions or add symbols such as the rainbow is religious discrimination by government. If so, schools might be required to post alternative motto designs that meet the letter of the new law in order to uphold free speech rights and prevent religious discrimination.

The Louisiana law would have been brazenly unconstitutional just two years ago. But after the Kennedy decision, the law may survive a potential legal challenge. Even if it does, one thing is for certain: It will be divisive.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Louisiana's 'In God We Trust' Law May Violate Establishment Clause Of The First Amendment - TPM

Will McRaneys legal case against the Southern Baptist North American Mission Board will take a dramatic turn this week as a group of state Baptist convention leaders, former NAMB employees and former denominational officials submit an amicus brief alleging NAMB is dangerously misrepresenting Baptist polity.

Randy Adams, executive director of the Northwest Baptist Convention, is gathering signatures for the friend of the court brief that will be filed this week in the Fifth Circuit U.S. Court of Appeals in support of McRaneys claim and against NAMBs defense that it cannot be held liable for McRaneys firing as president of the Baptist Convention of Maryland and Delaware.

Randy Adams

Although the text of the brief is not yet public, Adams said it quotes Baylor University church historian Barry Hankins saying if NAMBs interpretation of the First Amendment prevails, every Baptist entity that cooperates in any way with the SBC will be put at risk.

NAMB and its attorneys have said the exact opposite, claiming secular courts cannot intervene in ecclesial matters, meaning the inner working of religious bodies.

McRaney contends the so-called Ecclesial Exemption Doctrine does not apply in his case because he was not an employee of NAMB and therefore this is not about NAMBs internal personnel policies. He contends NAMB and its president, Kevin Ezell, defamed him by demanding leaders of the two-state convention fire McRaney or lose $1 million in funding and by threatening conference leaders in other states not to hire McRaney.

Throughout his seven-year ordeal, McRaney has portrayed Ezell as a vindictive micro-manager who bullies other Baptist leaders and gets his way because he controls tens of millions of dollars in offering money for missions. Ezell denies any wrongdoing, and thus far, his trustees have backed him.

Adams said Sunday, Nov. 5, that many Baptist pastors, associational leaders and convention leaders have already said they want their name on the brief that will be filed on Tuesday, Nov. 7. He put out a call for anyone who wants to join the brief to contact him by 4 p.m. Eastern time Monday, Nov. 6.

He said Hankins, the Baylor scholar, wrote in the brief: It is my opinion as a scholar of church-state relations in the U.S. that NAMBs First Amendment defense in this case, if accepted by the courts, would actually undermine religious liberty rather than safeguard it.

On Saturday, Nov. 4, Adams participated in a brief video chat with Bobby Gilstrap, a former state convention leader and missionary who also has been the target of criticism by Ezell. The video was posted on social media with a call to enlist additional signers to the brief.

Adams recalled an earlier faux pas in the McRaney case when the SBC Ethics and Religious Liberty Commission filed an amicus brief with the U.S. Supreme Court saying the SBC worked in a hierarchy like Roman Catholics or United Methodists. In reality, the SBC prides itself on its non-connectional governance, with every church and convention claiming autonomy.

An earlier judge in the case really got our polity wrong, Adams told Gilstrap. But one reason he got the polity wrong, we believe, is because of the method in which NAMB has argued.

Adams said he was compelled to organize the amicus brief because so far the amicus briefs that have been filed have been on behalf of NAMB and they have argued incorrectly Baptist polity. So we feel the record needs to be challenged and the record needs to be set clean and clear as to who Baptists are.

He added: Were going to challenge and set clear the record that Baptist churches, associations and conventions are autonomous and independent, and we have no ruling authority from any outside group, whether it be the North American Mission Board or a seminary or another church across town that happens to affiliate or cooperate with the SBC.

Related articles:

McRaney to file appeal and keep his case against NAMB alive

U.S. district judge dismisses McRaneys case against NAMB

Seven years later, Will McRaney might get his day in court against NAMB maybe

Key witness offers damning testimony against Ezell as NAMB gets McRaney trial delayed two months

McRaney warns dismissal of his case against NAMB raises urgent threat to Baptist autonomy

NAMBs lies are worse than McLaurins, Will McRaney charges

Original post:
Coalition of Baptist leaders will file amicus brief challenging NAMB's view of First Amendment - Baptist News Global

NICK EICHER, HOST:Its Monday morning November 6th and a brand new work week for The World and Everything in It. Good morning! Im Nick Eicher.

JENNY ROUGH, HOST:And Im Jenny Rough. Its time now for Legal Docket.

AUDIO:And we have a big, breaking story today. Many of you probably heard that Port,little Port Huron, the city of Port Huron, is going to the Supreme Court.

EICHER:Audio from a TV show produced in Port Huron, Michigan. A town with a population less than 30-thousand generating a case thats going to the Supreme Court.

ROUGH:And it stems from an action taken by the city manager of Port Huron a local official who got fed up with a persistent citizen activist posting negative comments on Facebook. The City Manager had heard enough, so he blocked the complaining citizen.

EICHER: But in so doing, did he violate the First Amendment? Its a little surprising were only now testing the question at the Supreme Court, because as long as weve had social media, it seems, weve had political brawls. But now the issue is ripe, and its not just Michigan. Theres also a case from California, and theyll both be considered.

Together they will answer the question: When can a public official block someone on social media?

ROUGH:Last week the Supreme Court heard oral arguments in both cases. And WORLD Associate Correspondent Jeff Palomino has our report.

JEFF PALOMINO, REPORTER:Lets say you are a concerned citizen.Youve become aware of something you think is a problem in your community.You want to make your opinion known, but how best to communicate with public officials?You turn to social media.You find your public official on Facebook or X, as Twitter is now known and express your views there.

But what happens if the government official youre talking to doesnt like what you say? What if he deletes your comments? What if he blocks you from their page?

This is exactly what happened to Kevin Lindke of Port Huron.

He claims that City Manager James Freed violated his right to say what he had to say about what was going on.

But to prove he violated the First Amendment, the public official has to be shown to have engaged instateaction.

Meaning Freeds actions must be fairly attributable to the State. Not something he did in hispersonalcapacity.

By the time this case got through the appellate stage one federal appeals courtthe Sixthhad created one test to define state action. But a different appeals courtthe Ninthhad created a different one.

JUSTICE NEIL GORSUCH:In both cases, we have a profusion of possible tests to choose among.

Thats Justice Neil Gorsuch he and his colleagues on the Supreme Court have to choose which test will prevail.

Now, a quick review of the facts in both cases. The Sixth Circuit case isLindke v.Freed. City Manager Freed used his Facebook page to talk about his passions and interests, including his daughter, his wife, his dog, his work, and his favorite Bible passages. But he also posted some administrative directives he issued as city manager. And when the pandemic hit in 2020, he shared policies issued for Port Huron. Thats the case weve been talking about.

TheNinthCircuit case isOConnor-Ratcliff v. Garnier. School board members created public Facebook and Twitter pages to promote their campaigns. After they won the election, they continued to use the platforms. They posted little of a personal nature. Instead, most of the information was about school-district business and news.

Christopher and Kimberly Garnier were parents in the district and they frequently left critical comments on these pages. So, the school board members blocked them.

At oral argument, attorney Allon Kedem argued for Lindke in the Port Huron case. He proposed the first test for state action.

That test Ill call the Channel of Communication test. Heres how he explained it.

ALLON KEDEM:Under our test for state action, a public official who creates a channel for communicating with constituents about in-office conduct and then blocks a user from that channel must abide by the Constitution. This test, which focuses on how the public official is using and purporting to use that account, is consistent with this Court's precedent under which a public official who purports to act in that capacity is a state actor.

The problem with this test is that most of the city managers posts were personal. Justice Alito wanted to know when a personal page transforms to a public one.

JUSTICE SAMUEL ALITO:what if 95 percent of the posts are personal and 5 percent of the posts involve discussion of his work?

KEDEM: So it would obviously be a more difficult argument for us to make, butif there's only one place to go to interact with the city manager about directives that he himself had issued,that doesn't change the fact that if you get blocked off from that page, you're suddenly losing access to a lot of information.

But Justice Alito wasnt sure about that line. How low did it go?

ALITO: but if it's like 1 percent, one-half of 1 percent, it's not? Is that what you're saying?

KEDEM: So it's not a quantitative test. It's qualitative.

Justice Gorsuch asked Kedem what if the citizen harassed the public official about the personal posts. What if he harrasses him about his cat pictures? Is that state action?

KEDEM: So I think it could be in the exact same way that it could be if, for instance, you were on an official page of the town and you were being harassing. At some point -

JUSTICE GORSUCH: No, no, all the harassing in my hypothetical has to do with cats.

KEDEM: No, I understand.

JUSTICE GORSUCH: The commenter hates cats.

KEDEM: Sure.

JUSTICE GORSUCH: --cats.

MR. KEDEM: Sure. And -

JUSTICE GORSUCH: And maybe he hates your children too, I don't know.

(Laughter.)

JUSTICE GORSUCH: But --butif I block that person for that, at some point, you know, even though it's all my personal stuff, that's state action?

Kedem said itwouldbe state action but gave reasons why a lawsuit like that might fail.

Lawyer Pamela Karlan proposed the second test for state action. She represented the parents in the California case, the ones who sued the school board members.

Ill call her test the doing their jobs test. She explains it to Justice Alito.

ALITO:Your test is whether government officials are doing their jobs, right?

PAMALA KARLAN: That's the starting point, and it creates what I would say is a kind of rebuttable assumption that when a government official is doing her job, she is a state actor.

Justice Alito pressed with a hypothetical. A city mayor is in the grocery store where hes repeatedly approached by constituents. He really doesnt want to be bothered, but he listens to comments by supporters and people sympathetic to his policies.

ALITO: But when somebody who is a known opponent approaches the mayor, the mayor says, look, please call my office. Is the mayor doing his job when he's doing that?

KARLAN:When they're clearly off duty, that is, you know, pushing the shopping cart down the aisle, arguably, they're not doing their job.But, when they create an ongoing site like the site here, they maintain a forum, if you will...

For Karlan, people are also doing their jobs when they do things the job legally requires. As evidence, she cited various laws, including the California school districts own by-laws, that said receiving feedback from constituents was an important part of school board members duties. She explains, this is what these board members did on Facebook and Twitter.

KARLAN: And here what you have is both of the Petitioners using "we" and "our" when they talked about what the Board is doing and anybody who looks at that is going to think: This is an official website. It looks like an official website. It performs all the functions of an official website.

Those are the tests proposed by the people who were blocked. But what about the government officials who did the blocking? The officials in both cases agreed on their tests.

This third test Ill call the duty and authority test. To see if an official engaged in state action the Court must look at those two things. Heres Hashim Mooppan for the school board members.

HASHIM MOOPPAN:if there is neither the exercise of duty nor authority, that's not state action...Now that raises the further question of: Well, how do you know whether there are duties and authorities? At that point, we're not talking about a test. We're talking about how to implement the test. And I think the things that the Court should be looking at are objective indicia that are capable of disentangling the two capacities.

Objective indicia like use of government resources to maintain the page, whether a person's boss could tell him what to do on the page, or whether the official was exercising exclusive duties. Sounds easy, but the Court spent a lot of time trying to define both terms.

Heres Justice Amy Coney Barrett.

JUSTICE AMY CONEY BARRETT:I think it's very difficult when you have an official who can in some sense define his own authority. So I think, for a governor or, you know, President Trump, it's a harder call than someone like a police officer, who's a subordinate. Or I could --you know, my law clerk could just start posting things and say this is the official business of the Barrett chambers, right? (laughter.)And --and that wouldn't be okay. But if, you know, the --that wouldn't be okay. (laughter.)

Defining duty was also a problem. Should it be broadly or narrowly defined? Justice Sonia Sotomayor explained her position.

JUSTICE SONYA SOTOMAYOR:Every elected official tells me that they're on duty 24 hours a day. And so, if they are during that 24 hours creating, themselves, and posting the Facebook and doing all of the communications they're doing, why isn't that state action?

The U.S. Solicitor General filed friend of the court briefs and argued on behalf of the city officials in both cases.

She agreed duty and authority was the correct test, but added one element. In close cases, the Court should look to the nature of the property involved. Only if its government property would there be state action.

Justice Elena Kagan expressed doubt about that. Social media has changed the way we communicate. And continues to.

JUSTICE ELENA KAGAN:Andpart of that change is that more and more of our government operates on social media. More and more of our democracy operates on social media.And I worry that the rules thatyou're suggestingis really not taking into account the big picture of how much is going to be happening in this forum and how much citizens will be foreclosed from participating in our democracy if the kind of rule you're advocating goes into effect.

And therein lies the tension.

One one side, a broad test that finds almost anything to be state action risks trampling the rights of millions of government employees. It would also risk waves of litigation and an outcome that instantly makes most speech subject to government control.

On the other side, social media is one of the most powerful mechanisms for private citizens to say what they need to say, as the musician John Mayer might put it.

So, a test thats too narrow risks cutting people off from their government.

In these cases, I predict the court will - to use the words of Justice Gorsuch from oral argument - coalesce around the duty and authority test with debate among the Justices over how wide that test is.

The eventual ruling will likely mean the California school board members engaged in state action but leave room for no state action by City Manager Freed. After all, even public servants need to say what they need to say, too.

And thats this weeks Legal Docket!

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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Legal Docket: Facebook and the First Amendment - WORLD News Group