Constitutional Problems With the Kentucky Proposal (Supported by Mitch McConnell) to Change the Way U.S. Senate Vacancies Are Filled

VIKRAM DAVID AMAR

In this second of a series of columns, Illinois Law dean and professor Vikram David Amar comments on the Kentucky proposal to change the way U.S. Senate vacancies are filled. Dean Amar argues that the Seventeenth Amendment precludes such a proposal, which would allow the state legislature to substantively constrain the governor’s choices in making a temporary appointment.

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Next Technologies, Inc. v. Beyond the Office Door LLC

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-2169

Opinion Date: March 24, 2021

Judge: Frank Hoover Easterbrook

Areas of Law: Business Law, Commercial Law, Communications Law, Internet Law

Next makes office equipment and refers potential customers to reviews that rate its products highly. Next's competitor, Beyond, published reviews critiquing Next’s standing desks. Instead of pursuing a claim under the Lanham Act, 15 U.S.C. 1125, Next sued in federal court under diversity jurisdiction, relying on Wisconsin’s common law of defamation. The district judge treated product reviews and political commentary as equivalent and cited the Constitution, holding that because Next is a “limited-purpose public figure”—made so by its own efforts to sell its wares—all criticism by a competitor is constitutionally protected unless the statements are knowingly false or made with reckless indifference to their truth. The court concluded that the standard was not met. The Seventh Circuit affirmed on other grounds, stating that it was “skeptical” about the trial court’s use of the Constitution. On the district court’s approach, few claims under the Lanham Act ever could succeed, and commercial advertising would be treated just like political campaigning. Next failed to state a claim under Wisconsin law. “Whatever one can say about whether both gray paint and polished metal should be called 'silver,’ or whether two circuit boards are as good as one, these are not 'false assertions of specific unfavorable facts.’”