:: RECENT PUBLICATIONS :: 

Massachusetts Lawyers Weekly - "Trial and error: scientific method and the First Amendment" (subscription required)

• In the March 1, 2010 edition of Massachusetts Lawyers Weekly, Harvey describes an underappreciated (or at least under-defended) aspect of the First Amendment: That no idea, no theory can be officially enthroned as unassailable truth, for the pursuit of knowledge is only furthered by a constant testing and retesting. This foundational element of the so-called "marketplace of ideas"—central as well to the scientific method—needs to be applied to all fields of study. Nowhere is this more evident than in Griswold v. Driscoll a case currently before the First Circuit Court of Appeals, concerning censorship of a curricular guide promulgated for state high school students to study human rights abuses.  
• View print edition in browser

Minding the Campus - "How Corrupted Language Moved from Campus to the Real World"

• Over the past dozen years, Harvey's main areas of law practice have resulted in two books: The Shadow University (co-authored with Alan Charles Kors in 1998), which discusses the deprivations of liberty and related absurdities on American campuses, and Three Felonies a Day, which recounts how vague statutes have made everyone a potential target of federal prosecutors. What connects these seemingly disparate phenomena? Harvey explains in this Minding the Campus blog post.

Boston Phoenix - "Free speech for me, but not for thee"

• In the January 28, 2010 Boston Phoenix, Harvey analyzes the controversial Supreme Court ruling that struck down campaign finance restrictions on corporations. While the decision is a First Amendment victory, it is also another example of the high court's conservative bloc favoring free speech only when it hits home. Inconsistency in protecting freedom of expression, particularly in Justice Samuel Alito's refusal to apply his reasoning in Citizens United to past cases involving student speech, ultimately serves to weaken the First Amendment. It's time we had a Supreme Court justice who sees free speech as an end in itself, rather than as an instrument for political gain.
• See Harvey's January 31 Boston Globe letter-to-the-editor, "The public has a right to hear."

The Volokh Conspiracy - Guest-blogging on Three Felonies a Day

• The popular legal blog, The Volokh Conspiracy, invited Harvey to guest-blog on topics related to his book, Three Felonies a Day: How the Feds Target the Innocent: in December 2009. In these posts, Harvey examines vague federal laws that provide prosecutors with dangerous latitude in choosing whom to pursue, and issue that has expanded through successive administrations since the mid-1980s.
  

  • "Honest Services Fraud: Your Third Felony Today? "
    

  • "Keeping the Nation Safe, or Making Citizens Vulnerable? The Dangers of Vagueness in Anti-terrorism Laws"

  • "Protecting Investors or Prosecuting Innocents? The Dangers of Vagueness in Financial Fraud Laws"

  • "How the "Independent" Fourth Estate Has Feailed in its Critical Duty"
    
    
  • "The Thin Line Between Activism and Obstruction"

Boston Phoenix - "Critical Mass"

• In the Boston Phoenix, Kyle Smeallie, Harvey's research assistant, and Harvey examine the recent controversy involving a UMass-Amherst speaking event with Ray Luc Levasseur, a former militant activist. Levasseur's on-again off-again UMass lecture - he was invited months ago, dis-invited in early November by administrators because of political pressure, re-invited by a faculty group days later, then finally barred from leaving his home (on the night of the lecture) because of unusual parole restrictions - left the UMass campus on the wrong side of yet another free speech controversy.

Boston Globe - "Setting a noble precedent"

• In the September 20 edition of the Boston Globe, Harvey reviews a recent biography of Louis D. Brandeis, the most accomplished Boston lawyer of the modern era and one of the most influential Supreme Court justices of all time. Author Melvin Urofsky's extensive biography shows how examining the life of Brandeis "shines essential light on how to balance loyalty to enduring verities with the demands for flexibility in assuring the nation's future." Brandeis was a fascinating and consequential person, and Urofsky got a good review from me for a job well done.

Forbes.com - "Wichita Witch Hunt"

• A good part of Harvey's book, Three Felonies a Day: How the Feds Target the Innocent (Book website, Amazon), is devoted to the Justice Department’s harassment of doctors who prescribe and administer pain medication. Physicians across the country have chosen not to treat patients suffering from chronic pain, because they can find themselves in the crosshairs of narcotics agents and federal prosecutors who deems their good faith medical practice to be illegal drug distribution. One such case in Kansas shows that, in this ugly outgrowth of the “war on drugs,” pain doctors aren’t the only targets—even public-spirited citizens who advocate on their behalf, expressing constitutionally protected speech, can find themselves subjected to various forms of harassment.

  

Forbes.com - "Prof. Gates' Unconstitutional Arrest"

• In the so-called "Gates-gate" imbroglio, many have seemingly lost sight of a basic fact: Cambridge Police likely violated Gates' First Amendment right to free speech when they arrested him earlier this month. Harvey doesn't see this as a case involving race so much as free speech jurisprudence, with perhaps a bit of social class tension thrown in for good measure. In a July 28 Forbes.com piece, Harvey parses the underlying Supreme Court jurisprudence that made Gates' arrest unconstitutional.
• See Harvey's July 21, 2009 Greater Boston appearance, discussing the Gates incident