Minimum Competence - Daily Legal News Podcast
Minimum Competence
Weds 6/14 - Orrick Layoffs, Activision Acquisition Delays, Trump Faces Long Odds, Illinois Bans Book Bans and the EU Wants Google to Split.

Weds 6/14 - Orrick Layoffs, Activision Acquisition Delays, Trump Faces Long Odds, Illinois Bans Book Bans and the EU Wants Google to Split.

In today's episode we have Orrick laying off lawyers and staff, Activision acquisition delayed, Trump faces long odds, Illinois bans book bans, and the EU eyes Google ad breakup.

On this day, June 14th, in legal history, the Supreme Court issued its decision in West Virginia State Board v. Barnette, holding that students cannot be compelled to salute the American flag or recite the Pledge of Allegiance in public school.

When issues of compelled patriotism are discussed, advocates of compulsion generally frame these issues as unique “problems” of modernity. So you may be surprised to hear that the Barnette decision was handed down on this day in 1943. In the midst of World War II, no less.

In the case of West Virginia State Board of Education v. Barnette, the Supreme Court made a significant ruling: they declared a compulsory flag salute law in public schools unconstitutional, affirming that students have First Amendment rights.

The Court determined that mandatory flag salutes violated the First Amendment. The decision was made on Flag Day and overturned a previous case, Minersville School District v. Gobitis (1940). The West Virginia statute in question imposed harsh penalties on children and their parents if the children refused to comply, including expulsion and fines of $50 or even imprisonment for parents.

In the Gobitis case, two Jehovah's Witness schoolchildren were expelled for refusing to salute the flag and recite the Pledge of Allegiance. The Supreme Court recognized the state's interest in promoting national cohesion and considered mandatory flag salutes as a permissible means of fostering patriotism.

However, in Barnette, the Court shifted its focus. It highlighted that the central issue was not whether the children could be excused from the flag salute due to religious beliefs, as in Gobitis. Rather, it examined whether the state had the power to enforce the flag salute on all schoolchildren.

The Court emphasized that the compulsory flag salute and pledge required an affirmation of belief and an attitude of mind. It noted that Congress had recently recognized the Pledge of Allegiance as voluntary, indicating that compulsory salutes were not necessarily the most effective way to cultivate patriotism.

Justice Robert H. Jackson's opinion in Barnette reevaluated the role of public schools in educating young citizens. The Court asserted that public education should not stifle free thinking or teach youth to disregard essential principles of government as mere platitudes. Instead, education should enable students to make informed choices.

The Court, echoing Congress, concluded that patriotism is strengthened through voluntary participation rather than compulsion. Justice Jackson emphasized that no official, regardless of their position, could dictate orthodoxy in matters of politics, nationalism, religion, or other opinions, or force citizens to confess their faith in those matters.

This landmark ruling in Barnette established the principle that students possess First Amendment rights, including the freedom of speech and the freedom of expression, within the context of public schools.

In the latest sign BigLaw is in a bit of a holding pattern, Orrick Herrington & Sutcliffe, a San Francisco-based law firm, is laying off approximately 90 attorneys and staff members and delaying the start date for its incoming class due to reduced demand and market uncertainty. The layoffs will affect 40 associates and 50 staff members, amounting to around 6% of the firm's global workforce. The firm has decided to postpone the start date for its first-year class until January 16, 2024. Orrick will provide a $15,000 stipend and additional funds for health insurance to its class of 2023. The firm attributes these actions to reduced client demand in certain areas and the impact of technology and evolving work environments on the firm's operations. Orrick joins other prominent law firms such as Cooley, Gunderson Dettmer, Kirkland & Ellis, and Fenwick & West in implementing workforce reductions and start date delays in response to sluggish demand for legal services.

Orrick Lays Off 90 Lawyers and Staff, Delays Start Dates

A U.S. judge has granted the Federal Trade Commission's (FTC) request to temporarily block Microsoft's acquisition of video game maker Activision Blizzard and scheduled a hearing for next week. The judge set a two-day evidentiary hearing on the FTC's request for a preliminary injunction for June 22-23 in San Francisco. Without a court order, Microsoft could have closed the $69 billion deal as early as Friday. The FTC had asked an administrative judge to block the transaction in December and an evidential hearing in the administrative proceeding is set to begin on August 2. The federal court will decide based on the late-June hearing whether a preliminary injunction is necessary during the administrative review of the case. Microsoft and Activision must submit legal arguments opposing the preliminary injunction by June 16, with the FTC's reply due on June 20. The FTC argues that the deal would give Microsoft's Xbox exclusive access to Activision games, potentially excluding Nintendo and Sony consoles. Microsoft has stated that accelerating the legal process will bring more choice and competition to the gaming market.

US judge temporarily blocks Microsoft acquisition of Activision | Reuters

As the indictment is being reviewed and ingested, and experts are weighing in, it seems clear: Former U.S. President Donald Trump is facing significant challenges in defending himself against charges of illegally retaining top-secret documents after leaving the White House in 2021. Yesterday, Trump pleaded not guilty to the 37 counts, which include violations of the Espionage Act, obstruction of justice, and making false statements. 

Experts noted that the indictment contains a wide range of evidence, such as documents, photos, text messages, audio recordings, and witness statements, making a strong case for the prosecution's allegations. The conspiracy to obstruct justice charges may pose the greatest risk for Trump, carrying a maximum sentence of 20 years in prison. Legal experts believe the evidence suggests Trump knew about the documents and refused to turn them over, instructing his lawyers to mislead the FBI. 

Obstruction of justice is challenging to defend against and can have significant public backlash. Trump's alleged efforts to conceal documents over the years likely played a role in the decision to indict him. The classification status of the documents may be irrelevant, as the Espionage Act criminalizes the unauthorized retention of national defense information, regardless of classification. 

While Trump has potential defense strategies, such as challenging witness accounts or blaming others, the case could be delayed until after the 2024 election, and opinions vary on whether he could pardon himself if he wins.

Here's what happens next in the case against Donald Trump. It could be a year or more before a trial takes place and all indications are Trump will continue to seek to win back the presidency. 

Federal prosecutors will begin handing over evidence to Trump's lawyers, including years of correspondence related to the documents in question. Trump's lawyers are expected to file a motion to dismiss the case, citing reasons such as his claim that he declassified the documents before taking them. However, motions to dismiss in criminal cases rarely succeed.

The trial timeline will likely be extended as the parties review evidence and argue legal disputes. Trump testifying in the case would be his decision, but it is unlikely as defendants often choose not to testify. 

If Trump were to win the 2024 presidential election, it is unlikely that the prosecution would proceed due to the Department of Justice's policy of not prosecuting sitting presidents. However, in extraordinary circumstances, the policy can be deviated from with the approval of the U.S. attorney general. But that would almost certainly be Trump’s attorney general. So it is clear to me, as it is probably clear to Trump, that his best chance at kicking this can down the road will be to delay the trial long enough to win back the presidency and pardon himself. 2024 is going to be a helluva year. 

Trump faces difficult odds in documents case | Reuters

Trump documents case: what happens now that he pleaded not guilty? | Reuters

Illinois has become the first state in the United States to pass a law aimed at curbing book bans in public libraries. The legislation comes in response to the growing trend of conservative efforts to suppress books addressing topics such as race, history, and LGBTQ issues. Governor J.B. Pritzker, a Democrat, signed the law, which will go into effect on January 1, 2024. Under the new law, Illinois public libraries will only be eligible for state grants if they adopt the American Library Association's Library Bill of Rights, which prohibits the removal of materials due to partisan or doctrinal disapproval. The push to ban books has intensified during the 2021-2022 school year, particularly in conservative Republican-dominated states like Florida and Texas. According to the American Library Association, there were 67 attempts to ban books in Illinois alone in 2022, with many of the targeted books focusing on LGBTQ people or people of color. Critics of book bans argue that librarians should be the ones selecting books, not politicians, and that such bans infringe on freedom of expression. The Illinois law is seen as a step in the right direction by supporters who believe that books in libraries should be chosen by professionals, not extremist politicians.

Illinois becomes first state to pass law curtailing book bans | Reuters

The European Commission, Europe's top antitrust regulator, has announced that it may pursue the breakup of Google's ad-tech business. The commission has charged Google with abusing its dominant position in the online advertising technology industry. It alleges that Google used its control over the buying and selling of online ads across third-party websites and apps to favor its own advertising auction house. The commission's preliminary view is that Google must divest parts of its ad-tech business to address the inherent conflicts of interest. Google will have an opportunity to respond to the complaint, and if found guilty, it could face a fine of up to 10% of its annual worldwide revenue. This move by the European Commission aligns with the ongoing antitrust scrutiny Google is facing in the United States and would mark a major sea change in the online advertising space. 

EU Says It May Seek Breakup of Google’s Ad-Tech Business - WSJ

Minimum Competence - Daily Legal News Podcast
Minimum Competence
The idea is that this podcast can accompany you on your commute home and will render you minimally competent on the major legal news stories of the day. The transcript is available in the form of a newsletter at