A postscript to my Part 1 and Part 2 posts: I now see that Harvard law professor Noah Feldman, right on the heels of his misguided defense of Justice Ginsburg’s attack on Donald Trump, has praised the Tenth Circuit’s ruling.
Indeed, Feldman outdoes Judge Mary Beck Briscoe’s majority opinion in at least two respects.
First: Whereas Briscoe embraced the silly proposition that the Center for Medical Progress videos were “selectively edited,” Feldman falsely asserts that they were “doctored.”
Second: Whereas Briscoe relied on her highly speculative assessment of how a jury would “more likely than not” view the evidence of Governor Herbert’s motivation, Feldman somehow sees fit to play factfinder himself and declares, flat-out, that Governor Herbert’s directive “stemmed from a generalized political desire to show solidarity with the antiabortion movement.” Feldman doesn’t bother to raise for his readers why Herbert didn’t act on that same supposed desire during his previous six years as governor.