Thursday, April 18, 2024

More zombie laws

Dara Purvis (Penn State) in the Conversation. She makes two points of note: One is a 2015 (12 years post-Lawrence) attempt in Louisiana to enforce a prohibition on same-sex sex--permissible under departmentalism, but a political problem to be sure. She also discusses the failed Arizona attempt to repeal the 1864 law, in which some Republicans joined with Democrats in the effort. Dara describes the many zombie laws and what legislatures can do. But it is worth highlighting Virginia's comprehensive effort to scour the statute books and find all the Jim Crow laws that should be repealed.

Posted by Howard Wasserman on April 18, 2024 at 04:53 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Why Roe is different

When SCOTUS decided Dobbs, I wondered what made it "unprecedented," as pro-choice critics argued. It was not overruling precedent simpliciter, because the Court had overruled other precedent. It was not overruling precedent to limit a right, since the Court had overruled other rights-creating precedent (Lochner, death penalty, and some crim-pro protections).

While doing an interview about the Arizona case, I think I hit on what might be different: The massive number of zombie laws, many more than 100 years old, that Dobbs reanimated. Abortion raises two related features: 1) the large number of old laws dating back to a prior understanding of medical science and a prior perspective on women's bodily autonomy and 2) the large number of abortion laws, many inconsistent or contradictory, that states enacted between 1973 and 2022 to test Roe or to prepare for its demise. Courts must now sort laws out. Women, providers, and advocates to understand a confusing landscape. The same thing did not happen after West Coast Hotel. And probably would not happen if the Court overruled Brown, New York Times, or Obergefell.*

[*] Many zombie anti-SSM provisions remain, including in state constitutions. But the issue is more straight-forward compared with the myriad laws and ways to regulate abortion.

Posted by Howard Wasserman on April 18, 2024 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, April 17, 2024

Blaming the courts for everything (Updated)

A week late, but a thought I have been carrying about the Arizona Supreme Court decision allowing the state to enforce a restrictive 1864 abortion law in the face of a 2022 15-week ban; thus pre-15-week abortions lawful under the 2022 law are not lawful if they violate the 1864 law. The majority relied on a construction clause in the 2022 law stating that it did not repeal the 1864 law and read the provisions as distinct ways of criminalizing the same conduct. The dissent read the construction clause as part of the legislative history rather than the text and thus not a proper consideration on an unambiguous law, demanding a clearer statement from the legislature (or the public) about intent to keep the 1864 law in use. Both interpretations are reasonable, although (knowing nothing about Arizona law) I find the majority more persuasive.

No one is happy with the decision, but for interesting reasons.

The left views this as another Republican-dominated court attacking abortion on "vibes" and with total disregard for law. No one acknowledges that this is not stand-alone constitutionality but trying to act on legislative enactment. And they direct no ire at the Arizona legislature for keeping the 1864 law around, recodifying it in 1977, and expressing the intent in 2022 that it remain on the statute books. On that last point, Arizona enacted the 2022 law several months before Dobbs, while a longstanding Roe-based injunction prohibited enforcement of the 1864 law. Legislators likely put the non-repeal provision to make a show of having a near-ban on the books for the hoped-for time when Roe was overturned. They did not count on it happening so soon.

The right--including the Republican governor who signed and Republican legislators who supported the 2022 law--is mad that the court did not bail them out of their bad--intentional or otherwise--lawmaking. The decision thrust abortion onto the national radar. It forces them to defend their anti-abortion actions from two years ago or to feign shock and indignity that the court would have taken seriously their express recognition of the 1864 law.

But the criticisms from both sides share a common theme--it is all on the courts. The left expects legislatures to attack abortion and demands the courts join rights-holders in resisting those legislative encroachments on constitutional rights; the right expects legislatures to engage in performative legislation attacking abortion and demands courts ensure that nothing they do has unpopular real-world consequences. Pre-Dobbs, it worked for both sides on the extremes--courts stopped enforcement of the worst laws, allowing some room for the abortion right while allowing legislators to posture and perform. Dobbs changes the consequences. But, as the Arizona case shows, not the target of criticism.

Update: Paul reminds me of Adam Unikowsky as an exception--a lefty arguing majority probably got it right and that Arizona Republicans should shut up. This is a great analysis.

Update: I confess to coming at this from a unique-for-a-liberal space: Zombie laws are easily reanimated and immediately enforceable when the state of constitutional law changes and the court lifts any injunction, unless the legislature expressly or impliedly repealed. Yes, 19th-century abortion restrictions--including those enacted before women had a national right to vote--are valid and enforceable, absent legislative action of some kind. Of course, intellectual honesty trumps partisanship here at Prawfs.

Posted by Howard Wasserman on April 17, 2024 at 09:43 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, April 16, 2024

USC's (Bad) Choice

David Schraub of Lewis & Clark has a useful new article titled, They Managed a Protest: Prohibitory, Ethical, and Prudential Policing of Campus Speech. I haven't fully digested it so I have no general commentary, agreement, or disagreement. His focus, or exemplar, is campus protests, especially in "fast-moving" contexts. But he places these in the general realm of the problem of how we "facilitate public debate" on campus. And one point he makes, quite fairly, is that we might spare a thought for the administrators, especially lower-level staffers, who are faced with dealing with these issues on the ground and in the moment. Amen to that, but of course some of the dilemmas he discusses run up and down the administrative chain. 

That is the most charitable light in which I might place USC's decision (announced by the provost, Andrew Guzman, who is also a professor at USC's Gould School of Law) to cancel the speech of its valedictorian at commencement. The valedictorian is described in the Times article I've linked to as having written "social media posts supporting Palestinians," at least one of which a campus group has objected to for the writer's now-standard equation of Zionism to settler colonialism etc. The objecting group, also adopting the tedious language of our times, complains that the university "chose to platform" a student it believes will exacerbate anti-Semitism on campus. The provost's announcement is replete with equally standard language about safety.

I think the university's decision was wrong. If, as its own letter suggests, having the valedictorian speak at commencement is standard--a "tradition," in the letter's terms--and if the selection of the valedictorian proceeded according to its governing processes, as it appears to have, then that tradition should not give way to threats. It's also not clear what those threats are. The Times story reports none, but is not well-reported. The USC Daily Trojan does a better reporting job than that, quoting an official saying that "the University received threats relating to Tabassum via email, phone calls and letters" but declining to provide further details. Unless it has well-grounded fears for her physical safety, it should move forward with the usual order of speeches. The complaint about "platforming" the speaker appears to fall in line with the usual recent complaints about platforming, which is to say it conflates content-neutral facilitation with promotion and agreement. The valedictorian is apparently chosen on the basis of both academic achievement and "service and leadership." Those criteria do not include "social media history" and the service and leadership for which the speaker was cited are commendable, not objectionable. I have no idea what she would have spoken about, but it's not relevant and it's not the reason she was given a "platform," any more than a public school is advancing religion when it selects a valedictorian speaker who has the highest class rank and also turns out to be vocally religious. "Platform," especially in its pernicious verb form, is one of the many recent locutions we could use a long, healthy break from.

But take the mildly charitable view for a second. Graduation ceremonies are indeed an occasion for community, family, and fundraising celebration. Universities want them to be pleasant. One no more wants or expects the Days of Rage at a commencement than one does a portable loudspeaker at a dinner party. If the university is aware of genuine and serious safety concerns, it faces potentially great challenges in assuring that safety--a job which will be done by staff and security officers on the ground. If it faces a threat of more-than-mild protest--say, something that graduates from the usual turned backs or slogans on mortarboards to an attempt wrongly to shout down the speaker, who has precedence according to the speech norms of the occasion and is entitled to be heard--then it will have to use its resources, or those of the police, to ensure the speaker can be heard and that those causing the disturbance either simmer down or are removed (and hopefully, depending on their actual conduct in these still-hypothetical circumstances, arrested or subjected to discipline). That's not the kind of thing universities want to put photos of in their alumni newsletter. As Schraub notes in his article, it will face the blame one way or the other: for failing to protect the speaker or for being too hard on the protesters. 

One can thus sympathize with the administrators and those on the ground. One can assume its choice was not based on the identity or views of the speaker but on the "threats" or reactions it anticipated. But the university's choice was still wrong--and dangerous. The university's announcement says that its decision "has nothing to do with freedom of speech. There is no free-speech entitlement to speak at a commencement. The issue here is how best to maintain campus security and safety, period." Of course the latter sentence is important. But much depends on what the actual threat is. Again, words like "security" and "safety" can encompass all manner of things, from genuine security and safety to the weaker senses in which these words are now often used, and to something weaker still, like disruption or discomfort or bad optics. I'm doing my best to take seriously the university's statement that it faced real threats to safety without simply swallowing it whole. One may occasionally doubt the accuracy of non-detailed official statements, and the less detail USC gives, the less one ought to credit it. But if the threat to safety were real and grave, such that no amount of security would suffice, I think USC's duty then would be to "choose" to give the speaker a "platform," finding some safer way for her to deliver her intended address before friends and grandees and then broadcasting it.

And the first point is a distraction. No, there is no First Amendment right to speak at a commencement. Yes, it does indeed have a great deal to do with freedom of speech, or, perhaps more accurately, with the system of speech on campus and, in a broader sense, with freedom of speech. That's so not simply because a student wishes to speak, but because this is the speech the university customarily provides and facilitates on these occasions, and it is giving way, altering its "tradition," in the face of identity- or speaker- or viewpoint-based opposition. It has an obligation not to do so. It should prefer a lousy, unpleasant graduation with the intended speech to a graduation ceremony that goes swimmingly, pleasantly, and pusillanimously. That's so especially because it is almost certainly going to get protests and disruptions no matter which path it takes. So it might as well take the right one.   

Posted by Paul Horwitz on April 16, 2024 at 07:32 PM in Paul Horwitz | Permalink | Comments (0)

SCOTUS stays (in part) injunction Idaho transgender-care ban, justices debate (Updated)

SCOTUS stayed the injunction prohibiting enforcement of Idaho's ban on gender-affirming care for minors, to the extent the injunction applied beyond the plaintiffs. We end up in the right place--no enforcement against the plaintiffs pending appeal--but by the wrong process.

Justice Gorsuch, joined by Thomas and Alito, spends 12 pages on the evil and error of universal injunctions. He ends on this:

Lower courts would be wise to take heed. Retiring the universal injunction may not be the answer to everything that ails us. But it will lead federal courts to become a little truer to the historic limits of their office; promote more carefully reasoned judicial decisions attuned to the facts, parties, and claims at hand; allow for the gradual accretion of thoughtful precedent at the circuit level; and reduce the pressure on governments to seek interlocutory relief in this Court. A return to a more piecemeal and deliberative judicial process may strike some as inefficient. It may promise less power for the judge and less drama and excitement for the parties and public. But if any of that makes today’s decision wrong, it makes it wrong in the best possible ways, for “good judicial decisions are usually tempered by older virtues.”

That last sentence shoots at Justices Jackson's dissent, criticizing the Court's early involvement. The rest, including as to the inefficiency of constitutional litigation is, as far as I am concerned, spot-on. Note this is the first time Justice Alito has taken a public stance against universal injunctions.

Justice Kavanaugh, joined by Justice Barrett, concurs to ponder a standard for SCOTUS early involvement, especially the need to consider likelihood of success on the merits on emergency stay and injunction-pending-appeal motions. He links the rise in universal injunctions to the rise of shadow docket activity. And he continues Barrett's hobbyhorse about determining the "status" quo for interim and emergency relief--whether the status quo is prior to enactment of the law, prior to the injunction, or something else. He expresses skepticism of universal injunctions, although noting APA as a separate issue.

Justice Jackson, joined by Sotomayor, dissented from the stay. She primarily focused on reducing the Court's early involvement in cases. She emphasized the split of scholarly and lower-court authority, suggesting the issue is not as clear as Gorsuch suggests, but also criticizes Gorsuch for "reach[ing] out" to resolve an unsettled remedial issue on less-than-full presentation. She also argued the injunction was not universal--it was a "party-specific, fact-specific" expansion to ensure full protection to the named plaintiffs--another reason not to resolve the universality question. Justice Kagan dissented from the stay but did not join Jackson's opinion.

Update: Sam Bray has more. Including the point that no one on the Court endorsed universality--at best Jackson says it is unresolved and difficult.

Posted by Howard Wasserman on April 16, 2024 at 10:42 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, April 15, 2024

Ken Holtzman Z"L

Ken Holtzman, the winningest Jewish pitcher in MLB history, died Sunday. Holtzman won 174 games in a 14-year career with the Cubs, Oakland, and individual seasons with the Orioles and Yankees. Holtzman pitched two no-hitters with the Cubs and won three World Series with the A's, including the Series-clinching win in Game 7 of the 1973 World Series. He was the # 3 started on that staff (behind Hall of Famer Catfish Hunter and Vida Blue), but the A's relied on him as much as the other two in big games. Among Jewish pitchers, he is first in wins, sixth in ERA, second in strikeouts, fourth in appearances, and first in innings pitched. He also homered in the 1974 World Series, the last then-acknowledged-as-Jewish player to homer in a World Series until Alex Bregman and Joc Pederson traded homers in 2017.

As I described, Holtzman plays a big role in the Jewish-players-on-Yom-Kippur story. He never pitched on the holy day. In 1966, his first full season in the Majors, Holtzman opposed Koufax the day after Yom Kippur when both pushed their starts back to avoid the holy day; Holtzman pitched a two-hit complete game, in a game he said his mother hope he would get a no-decision. Holtzman attended Yom Kippur services in Baltimore in 1973 when the holy day coincided with Game One of the ALCS. Another story is less uplifting. In 1977, the Yankees petitioned MLB to move a 1977 game from Yom Kippur day to the evening. They cited Holtzman's unavailability, although Holtzman appeared in 18 games that season (which some stories attribute to manager Billy Martin's antisemitism) and would not have pitched even if was at the park; Holtzman was not pleased at being used in that way.

Zichrono livracha.

Update: Howie Megdal's Baseball Talmud ranks Holtzman as # 2 lefty starter, # 3 starting pitcher, # 10 All-Time (after Koufax and a bunch of non-pitchers), and falling out of the top-ten if, by 2035, Alex Bregman and Max Fried continue the careers they have been having.

Posted by Howard Wasserman on April 15, 2024 at 04:13 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Conscription and the Two-Term Tradition

As I've mentioned before, I'm working on a project about the use of conscription in constitutional argument. A prominent non-judicial example came in 1940 when FDR announced that he would run for a third term. Obviously, in doing that he was breaking with George Washington's precedent. How did he explain that? By saying that he could not refuse a draft from the people while the people were being drafted. Here is the argument from his radio address to the Democratic National Convention. It's interesting and it worked.

During the past few months, with due Congressional approval, we in the United States have been taking steps to implement the total defense of America. I cannot forget that in carrying out this program I have drafted into the service of the nation many men and women, taking them away from important private affairs, calling them suddenly from their homes and their businesses. I have asked them to leave their own work, and to contribute their skill and experience to the cause of their nation.

I, as the head of their Government, have asked them to do this. Regardless of party, regardless of personal convenience, they came—they answered the call. Every single one of them, with one exception, has come to the nation's Capital to serve the nation. These people, who have placed patriotism above all else, represent those who have made their way to what might be called the top of their professions or industries through their proven skill and experience. But they alone could not be enough to meet the needs of the times.

Just as a system of national defense based on man power alone, without the mechanized equipment of modern warfare, is totally insufficient for adequate national defense, so also planes and guns and tanks are wholly insufficient unless they are implemented by the power of men trained to use them. Such man power consists not only of pilots and gunners and infantry and those who operate tanks. For every individual in actual combat service, it is necessary for adequate defense that we have ready at hand at least four or five other trained individuals organized for non-combat services.

Because of the millions of citizens involved in the conduct of defense, most right thinking persons are agreed that some form of selection by draft is as necessary and fair today as it was in 1917 and 1918. Nearly every American is willing to do his share or her share to defend the United States. It is neither just nor efficient to permit that task to fall upon any one section or any one group. For every section and every group depend for their existence upon the survival of the nation as a whole. Lying awake, as I have, on many nights, I have asked myself whether I have the right, as Commander-in-Chief of the Army and Navy, to call on men and women to serve their country or to train themselves to serve and, at the same time, decline to serve my country in my own personal capacity, if I am called upon to do so by the people of my country.

In times like these—in times of great tension, of great crisis-the compass of the world narrows to a single fact. The fact which dominates our world is the fact of armed aggression, the fact of successful armed aggression, aimed at the form of Government, the kind of society that we in the United States have chosen and established for ourselves. It is a fact which no one longer doubts -which no one is longer able to ignore. It is not an ordinary war. It is a revolution imposed by force of arms, which threatens all men everywhere. It is a revolution which proposes not to set men free but to reduce them to slavery—to reduce them to slavery in the interest of a dictatorship which has already shown the nature and the extent of the advantage which it hopes to obtain.

That is the fact which dominates our world and which dominates the lives of all of us, each and every one of us. In the face of the danger which confronts our time, no individual retains or can hope to retain, the right of personal choice which free men enjoy in times of peace. He has a first obligation to serve in the defense of our institutions of freedom—a first obligation to serve his country in whatever capacity his country finds him useful.

Like most men of my age, I had made plans for myself, plans for a private life of my own choice and for my own satisfaction, a life of that kind to begin in January, 1941. These plans, like so many other plans, had been made in a world which now seems as distant as another planet. Today all private plans, all private lives, have been in a sense repealed by an overriding public danger. In the face of that public danger all those who can be of service to the Republic have no choice but to offer themselves for service in those capacities for which they may be fitted.

Those, my friends, are the reasons why I have had to admit to myself, and now to state to you, that my conscience will not let me turn my back upon a call to service. The right to make that call rests with the people through the American method of a free election. Only the people themselves can draft a President. If such a draft should be made upon me, I say to you, in the utmost simplicity, I will, with God's help, continue to serve with the best of my ability and with the fullness of my strength.


Posted by Gerard Magliocca on April 15, 2024 at 03:48 PM | Permalink | Comments (0)

Sunday, April 14, 2024

Confirmation Bias Is a Helluva Drug

Dr. Paul Offit's name came up in conversation this morning, which reminded me of an essay I wrote for Social Science Space in 2020 about the renowned vaccine expert's own blind spot -- unfortunately typical among physicians -- when it comes to the judicial system.

Confirmation Bias Is a Helluva Drug

We expect to see confirmation bias play an active role in the politics, where there is a satisfying emotional payoff from assuming the worst of the other side. We do not expect the same phenomenon among highly educated professionals, especially in their seemingly well researched publications. But it turns out that even the most astute physicians, in the grip of motivated reasoning, may end up believing fantastical tales about lawyers and the legal system, so long as they confirm their assumptions about medical malpractice abuse.

Consider Dr. Paul Offit, a renowned academic pediatrician and vaccinologist, with a well-earned reputation as the scourge of scam artists, quacks, and dangerous frauds.  In 2013, he won Robert P. Balles Prize in Critical Thinking from the Center for Skeptical Inquiry for Do You Believe in Magic?: The Sense and Nonsense of Alternative Medicine. There may be no doctor in America more identified with critical thinking than Paul Offit.

Nevertheless, Offit himself recently fell for a patently phony story about medical malpractice. In his latest book, Overkill: When Modern Medicine Goes Too Far, Offit recounts the shocking tale of a woman who obtained a $986,000 malpractice verdict for the loss of her alleged psychic powers. As Offit tells it, a plaintiff named Judith Haimes sued Temple University Hospital and her neurologist following a CT scan, claiming that her paranormal abilities had vanished and she could no longer “make a living by communicating with the dead.” Then,

On March 27, 1986, after deliberating for forty-five minutes, the eight-member jury awarded her $986,000. In order for jury members to have reached this verdict, they have to have agreed on three separate facts: one, that people have psychic powers to lose; two, that psychic powers can be lost in a CT scan; and three, that the neurologist should have known better than to have ordered a CT scan on a psychic.” (Offit 2020, pp. 211-12.)

This outrageous story reinforces Offit’s complaints about “today’s litigious climate” and the influence of the “plaintiff’s bar,” and his plea to eliminate “nonmedical juries,” but nearly everything he says is untrue.


Continue reading "Confirmation Bias Is a Helluva Drug"

Posted by Steve Lubet on April 14, 2024 at 10:46 AM | Permalink | Comments (0)

Saturday, April 13, 2024

Saturday Music Post - Santiano

It's been a while since we've had a sea shanty, and this one -- also known as "Santiana," "Santy Anna," "The Plains of Mexico," and other variations -- is especially rousing. The older version, which dates to the 1850s or earlier, seems to commemorate a victory of Mexican General Antonio Lopez de Santa Anna over U.S. forces in the Mexican-American War on the "plains of Mexico," which is something that did not actually happen. One theory is that it was sung by British deserters from the Royal Navy who had joined the Mexicans resisting U.S. aggression. A later version completely changed the lyrics, making no mention of Mexico and referring instead to a voyage "around Cape Horn" to California. Yet other versions changed the lyrics completely.

Did I mention that it is especially rousing? I've found renditions in French, German, and Polish, which says something about the appeal of the melody. And there is a true surprise at the bottom of today's post, which is at The Faculty Lounge.

Posted by Steve Lubet on April 13, 2024 at 05:49 AM | Permalink | Comments (0)

Friday, April 12, 2024

Will There Be Discipline at Berkeley?

Paul questions whether the students who disrupted Erwin Chemerinsky's dinner will face disciplinary action:

This does not appear to rule out taking academic disciplinary measures against the student or students who participated in Tuesday's disruption. But it doesn't exactly rule them in either. It reads more as if Chemerinsky is warning students about what will happen going forward. I hope I'm reading it wrong, and that Berkeley will seek to impose disciplinary measures with respect to this incident.

According to David Lat:

I emailed Dean Chemerinsky, expressed my sympathy and support for him and Professor Fisk, and asked whether the students who disrupted his dinner might be disciplined. He wrote back, “I do not know whether discipline will be sought against the student who did this.”

I then suggested to him that he should bring disciplinary proceedings against the students; since it was his home and hospitality that were so egregiously violated, he and Professor Fisk most definitely have standing. He responded that they don’t yet know whether they will pursue discipline themselves—but if they do, it would by law be confidential within the university.

My guess is that there will be no disciplinary proceedings because (1) it is very late in the school year and the student, Malak Afaneh, is about to graduate; and (2) Erwin probably wants to put the issue behind him.

On the other hand, Afaneh may face employment consequences, depending on her post-graduation plans. A public interest job is probably safe, if she has one, but a law firm might have second thoughts about hiring her. I am not advocating consequences, but I am not a Biglaw management partner.

Posted by Steve Lubet on April 12, 2024 at 11:09 AM | Permalink | Comments (0)

This is Not a One-Free-Bite Case

I will add only one point to the conversation about the Chemerinsky fracas. Dean Chemerinsky's statement about the incident says:

The dinners will go forward on Wednesday and Thursday. I hope that there will be no disruptions; my home is not a forum for free speech. But we will have security present. Any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.

This does not appear to rule out taking academic disciplinary measures against the student or students who participated in Tuesday's disruption. But it doesn't exactly rule them in either. It reads more as if Chemerinsky is warning students about what will happen going forward. I hope I'm reading it wrong, and that Berkeley will seek to impose disciplinary measures with respect to this incident.

I can well imagine cases where the rules are insufficiently clear, or the activists' actions insufficiently deliberate, or some other set of facts exists that counsels an added degree of patience and charity. This is not one of them. Unless the university and/or law school's rules are exceptionally laissez-faire, it is obvious that this constituted a violation, and it is equally obvious from the students' writings and less-than-delightful illustrations before the fact that they intended to disrupt the dinners hosted at the home of "Zionist Chem." This is not a "one free bite at the apple" case. There is no reasonable question that the students knew this would violate any basic conduct rules--even at Berkeley! There's no reasonable question that they had fair warning. Nor is there any question they did not stumble into the violation but walked deliberately into it.  

I could imagine Dean Chemerinsky wanting, as a matter of personal inclination or prudence, to let this one slide. He might want to do so not because it was not a clear violation, but because Prof. Fisk's actions might be treated as muddying the waters or giving rise to counter-complaints; or because he fears the blowback and thinks (as seems so far to have been the case) that a warning would be more effective; or out of a simple dislike for imposing discipline, especially on graduating students.* Certainly doing so would invite disruption and protest at the graduation ceremony itself, although I assume that's going to happen no matter what.

That would be a mistake. Free speech, and especially free speech on campus (although this event was not on campus), depends on a system that is, to paraphrase and correct Justice Brennan's words, "inhibited, robust, and wide-open." Free speech rules seek to guarantee the widest scope for expression within spaces that, at least in the physical realm, are shared and resource-constrained, and within institutions that, even when public, are often dedicated to particular speech-benefiting purposes. As such, some basic rules to govern the use of those shared spaces are required. Not every speech event is a New England town hall meeting or a gathering in a crowded theater. Roberts' Rules of Order don't always apply. But in many spaces, basic rules of conduct, volume, speakers' precedence, and so on are necessary for a system of free speech to function, thrive, and endure. Those rules are meaningless without both some degree of consensus and a willingness to actually enforce them.

This is one such case. Chemerinsky's statement didn't rule out retrospective action, and this is a case in which it's obviously called for and, indeed, necessary.

I'm not baying for anyone's head. Disciplinary proceedings should and will include due process. As such, I don't predict the outcome of such a process or suggest what would constitute a fair penalty if a violation were to be found.* All I'm saying is that for the sake of robust, wide-open speech, particularly within the purpose-driven campus context, disciplinary rules should be applied to Tuesday's actions, not set aside until the next occurrence. 

* I think these portions of the text are consistent with what Steve writes above. Especially given that pursuing disciplinary measures would invite more attention to the actions of his colleague and spouse, I could imagine Chemerinsky wanting to put the matter behind him. And I could imagine any nice person thinking that the fact that the student is graduating matters, or any strategic person thinking that penalizing a graduating student would give rise to bad publicity. I sympathize with the former considerations but think that the reasons and duty to press ahead disciplinarily outweigh those considerations. I think the latter consideration should be treated as irrelevant. It might of course affect the penalty, counseling lenience--or not. In this chess game, student activists might calculate that they can move forward with impunity, whatever the action, because universities won't do anything about it. Perhaps a recalculation is required. But penalties should be consistent with due process and fairness, and I am not counseling any particular penalty, whether harsh or lenient. That said, it is hardly respectful to these students, to their adulthood, agency, and commitment, to suggest that any disciplinary action should be utterly withheld as a matter of course because they're about to graduate and might suffer serious consequences to their ability to practice law. Depending on the nature of the action and the nature of the penalty, that's the point of disciplinary actions in the professional-school context.         

Posted by Paul Horwitz on April 12, 2024 at 08:38 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, April 11, 2024

National Lawyers' Guild (Updated)

I am curious how the National Lawyers' Guild feels about being dragged into the Erwin Chemerinsky mess, cited as legal authority and counsel to tell Erin Chemerinsky that she had a First Amendment right to give her speech at Chemerinsky's home. Did someone from NLG give the advice? And how do they feel about being ridiculed nationwide for how wrong they are about the First Amendment?

Update: David Schraub (Lewis & Clark) shares the answer. NLG acknowledges that the student said it had advised her that she had a First Amendment right to pull this stunt, it does not confirm doing so or the content of the advice. It says a person's First Amendment rights may extend into non-public forums and that the government actors' suppression of speech in those spaces may violate rights. While true as a legal principle, most commentators agree it does not apply to this situation.

Posted by Howard Wasserman on April 11, 2024 at 07:39 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

The kids are (kind of) alright

My Temple does a program for final-semester HS seniors, a capstone to their Jewish educations designed to explore Jewish values and ideals and their connection to the real world they are about to enter (to the extent college is the real world). My kid is doing it this year, in a group of about 10 kids.

On Monday, I spoke with the group about free speech on campus. I tried to give the spiel that many schools include (or have spoken about including) in freshman orientation--the basic categories of unprotected expression, the limits on content and viewpoint discrimination, the permissibility of neutral time, place, manner restrictions, the ideas behind protest and civil disobedience, and academic freedom. I tried to get at what I think is a basic idea: Much (most?) of the speech they will encounter on campus, however offensive, is constitutionally protected; they should not count on the university to either talk back or silence the objectionable speakers; and the remedy to be applied is more speech. And, given the context, I tried to frame it in terms of Jewish values, something I have mentioned before and am trying to get my head around (it helps that Brandeis is the source of the "more speech" idea).

At least from their reactions, they seemed receptive. he most skeptical eye turned to the idea that a professor could publish a book denying the Holocaust or give a speech denying October 7 without consequence. Mostly, they did not want to sit back and let the worst antisemitic speech go, but they understood the difference between talking back and silencing.

But the experience, along with recent events on this campus, convinces me that schools should include something like this in orientation.

Posted by Howard Wasserman on April 11, 2024 at 01:42 PM in First Amendment, Howard Wasserman, Judicial Process, Religion | Permalink | Comments (0)

Wednesday, April 10, 2024

Dean Erwin Chemerinsky Responds to Antisemitism

On Tuesday evening, April 9, Berkeley Law Dean Erwin Chemerinsky attempted to host a dinner at his home for graduating students. Sadly, the celebratory event was disrupted by a student with a megaphone -- reported by the Washington Free Beacon to be the head of Berkeley Law Students for Justice in Palestine -- representing a group that had earlier proclaimed "No dinner with Zionist Chem while Gaza starves." The student refused to leave or stop the disruption when requested. 

Erwin is an old friend, and I am deeply sympathetic to his situation, especially because I am a Berkeley Law alumnus. In the past, he has supported Jewish students at Berkeley knowing that it would be unpopular in some quarters, while adhering to his nearly absolutist view of free speech.

His statement below, posted on the Berkeley Law website, describes the events is sorrowful detail.

Statement from Dean Erwin Chemerinsky

April 10, 2024

I write this with profound sadness. Since I became a dean, my wife and I have invited the first-year students to our home for dinner. We were asked this year by the presidents of the third year class to have the graduating students over for dinner because they began in Fall 2021 when COVID prevented us from having dinners for them. We were delighted to oblige and designated three nights – April 9, 10, 11 – that graduating students could choose among. I never imagined that something that we do to help our community would become ugly and divisive.

Last week, there was an awful poster, on social media and bulletin boards in the law school building, of a caricature of me holding a bloody knife and fork, with the words in large letters, “No dinner with Zionist Chem while Gaza starves.” I never thought I would see such blatant antisemitism, with an image that invokes the horrible antisemitic trope of blood libel and that attacks me for no apparent reason other than I am Jewish. Although many complained to me about the posters and how it deeply offended them, I felt that though deeply offensive, they were speech protected by the First Amendment. But I was upset that those in our community had to see this disturbing, antisemitic poster around the law school.

The students responsible for this had the leaders of our student government tell me that if we did not cancel the dinners, they would protest at them. I was sad to hear this, but made clear that we would not be intimidated and that the dinners would go forward for those who wanted to attend. I said that I assumed that any protest would not be disruptive.

On April 9, about 60 students came to our home for the dinner. All had registered in advance. All came into our backyard and were seated at tables for dinner. While guests were eating, a woman stood up with a microphone, stood on the top step in the yard, and began a speech, including about the plight of the Palestinians. My wife and I immediately approached her and asked her to stop and leave. The woman continued. When she continued, there was an attempt to take away her microphone. Repeatedly, we said to her that you are a guest in our home, please stop and leave. About 10 students were clearly with her and ultimately left as a group.

The dinner, which was meant to celebrate graduating students, was obviously disrupted and disturbed. I am enormously sad that we have students who are so rude as to come into my home, in my backyard, and use this social occasion for their political agenda.

The dinners will go forward on Wednesday and Thursday. I hope that there will be no disruptions; my home is not a forum for free speech. But we will have security present. Any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.

I have spent my career staunchly defending freedom of speech. I have spent my years as dean trying hard to create a warm, inclusive community. I am deeply saddened by these events and take solace that it is just a small number of our students who would behave in such a clearly inappropriate manner.


Dean and Jesse H. Choper Distinguished Professor of Law
University of California, Berkeley School of Law

Let me just expand a bit on the antisemitic nature of the poster and disruption. As Erwin explained, the vicious image of Jews as blood-drinkers dates back to at least Medieval times, and has been used as an excuse for pogroms and expulsions. There is no question that the poster was aimed at Erwin because he is Jewish, as there was no other reason to target him. Blaming all Jews for the real or perceived wrongdoing of others is likewise a classic example of antisemitism. Erwin has had nothing to do with the Gaza war. He has opposed the Netanyahu government and called for Palestinian rights (as have I) for many decades. But he is visibly and proudly Jewish, which appears to have been reason enough to violate his home.

The poster is after the jump:

Continue reading "Dean Erwin Chemerinsky Responds to Antisemitism"

Posted by Steve Lubet on April 10, 2024 at 06:24 PM | Permalink | Comments (0)

Specific Performance and the First Amendment

The Bryn Mawr Film Institute canceled a screening of The Child Within Me, a documentary about Israeli musician Yehuda Poliker, citing fears about appearing to endorse Israel and its position in the war. A state trial court issued an injunction ordering the Institute to show the film, pursuant to terms of the contract.

This surprised me. I assumed that the First Amendment would limit specific performance, where the order would compel the party to engage in speech it no longer wished to engage in. Much as the Thirteenth Amendment (if I remember right) limits specific performance of employment contracts. The only thing I found (courtesy of a 2019 law review article) is a 1982 Indiana Court of Appeals case involving a contract for a newspaper to run an ad for a political candidate. The court enjoined to newspaper to perform the contract and run the ad. As to the First Amendment, the court ended the opinion as follows:

The appellant finally contends that the trial court's decision violated its first amendment guarantee of freedom of the press. Again, we agree with the appellant that a newspaper has a right to publish or reject advertising as its judgment dictates. However, once a newspaper forms a contract to publish an advertisement, it has given up the right not to publish the ad unless that right is specifically reserved or an equitable defense to publication exists. The Herald-Telephone's first amendment right is not being infringed. It may still choose to publish or not publish any material it wishes, as long as the decision is made before a binding contract is formed. The trial court's decision is not constitutionally infirm.

It would appear that a party can contract away any right against compelled expression. I have asked my wisest contracts colleagues for more; I will update if I hear anything. I am leaving comments open for anyone who knows anything about the contracts side of this.

Posted by Howard Wasserman on April 10, 2024 at 12:41 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)