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Wednesday, April 03, 2019

Free speech petards

Last month I wrote about the controversy at UC-Davis, where people unearthed old tweets from an English professor calling for police officers to be killed, prompting introduction of a California House Resolution calling for the professor's firing. Last week, Davis rejected the call in a letter to Republican Assemblyman James Gallagher, citing the First Amendment and President Trump's executive order purporting to require universities receiving federal funds to  promote free enquiry on campus consistent with the First Amendment. Gallagher today wrote a letter to President Trump, insisting that the professor's speech is what suppresses campus speech and asking the President whether: 1) the intent of the order was to protect speech such as this, 2) whether Gallagher's call to fire the prof is consistent with the order's intent to stop intimidation and violence, and 3) whether Davis would lose funding if it fires the professor.

The answers, in order: 1) Of course not; 2) Of course not; 3) Of course not. But the President's intent cannot overcome charges of viewpoint discrimination.

Posted by Howard Wasserman on April 3, 2019 at 05:07 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


And just clarification to my first comment:

Even if somehow (I don't know how, but suppose)there is certain protocol, power,or whatever, to the assembly or legislature,to reach and issue such resolution,then:

It should have been stated at the head or preamble of the resolution, referring to the clause in the constitution or whatever, upon which, such power or capacity is legally based. But, it does instead, start as from scratch, or directly describing the incident subject of the resolution. This in not an appropriate legal phrasing with all due respect of course.


Posted by: El roam | Apr 3, 2019 7:03:20 PM

Just to quote from:

County of Santa Clara V. Donald Trump(sanctuary cities):

" The federal government argues that the Executive order does not change the law , but merely directs the Attorney General and Secretary to enforce existing law but .....

in reality , the defunding provision instructs the Attorney General and the Secretary to do something that only the Congress has the authority to do - place new conditions on federal funds.... "

Link to the ruling:



Posted by: El roam | Apr 3, 2019 6:32:23 PM

Interesting, but more than just bit messy. First, it is not so clear, what the California legislature has to do with it. The legislator has a constitutional inherent duty to deal with legislation, not with particular incident. Legislation should be : general and abstract, touching the public as a whole, or certain particular group. Not incidents. Incidents, are treated by executive branch, or : judiciary. Not legislator ( Separation of power ). Otherwise, the legislator, can intervene, and dictates the result of every pending case,all, By particular legislation, dealing with particular party ?? So, such resolution is more than bit problematic of course ( although only resolution, not binding of course ) If he insists ( James Gllagher ) it would be better for him, to define precisely by legislation, when and how exactly, free speech right is excluded while inciting for violence, or, rather : what is the legal standard needed for being accused in inciting for violence.

As well such letter to the president. Executive order, doesn't grant the president, the power or capability to opine on it. Only court or legal expert can do it, let alone, in light of particular incident. So,pretty useless.No remedy,no opinion.

And courts held already, only Congress can defund or divert federal budgets to states or alike.Not so clear here.


Posted by: El roam | Apr 3, 2019 6:22:51 PM

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