Sunday, April 11, 2021

Universality in Tandon v. Newsom

Christopher Sprigman started a Twitter thread contemplating what happens if California disregards or circumvents the order in Tandon v. Newsom. A different thread derides the suggestion as "stupid." I do not believe California will attempt this, so the issue is academic. But we can illustrate how litigation operates by parsing this specific case.

We need to break down what state officials might attempt to do and against whom.

Tandon was a lawsuit by ten plaintiffs, individually. Newsom and other California officials are enjoined from enforcing COVID restrictions against these ten individuals and the religious groups they head. Any attempt to enforce against them would constitute disregard for a court order. It could be punishable by contempt, sanctionable by fines and, in the extreme, jail. And yes, Biden would be obligated to send in US Marshals, if not the 101st Airborne, to enforce the court's order against state officials as to these ten plaintiffs.

No court order prohibits Newsom and other California officials from attempting to enforce the regulations against anyone other than those ten individuals. State officials therefore would not be in contempt of any court order in attempting to do so. Nor would they be "disobeying" the Supreme Court, because the Supreme Court did not order them to refrain from doing anything as to anyone other than those ten plaintiffs. And Biden and the US Marshals would play no role, because there is no court order to enforce.

What would happen if Newsom or other state officials attempted or threatened to attempt this?

    • The new targets would sue in federal court, asking for an injunction to protect them.* They should get it, although a lot depends on how much precedential force these per curiam shadow-docket "decisions" or "orders," even with five justices behind them, carry. They may carry force less as precedent than as a looking threat--lower courts are on notice that failure to enjoin will be summarily reversed by SCOTUS, which now sees it as its job to superintend litigation without awaiting finality or full briefing. Either way, it seems likely that the district court would issue that injunction prohibiting enforcement against these new targets. The new targets also could obtain attorney's fees as prevailing parties, which might be the strongest drag on pursuing this strategy. This new judgment and injunction protects these individuals against enforcement by these state officials. Were officials to continue enforcement efforts as to these plaintiffs, they would be disobeying a court order; subject to contempt, fines, or other sanctions; and subject to action by US Marshals.

[*] Alternatively, they might join as plaintiffs in the current action and ask the court to expand the injunction. There are some close Rule 20 joinder issues there.

    • The new targets also might ask for damages from the attempt or threat to enforce, even if only nominal. The question then is whether the defendants would lose qualified immunity for their actions. Is it now clearly established that COVID regulations treating religious practice less favorably than any other activity (comparable or not) violates the First Amendment? Again, it depends on how courts treat these orders as precedent that clearly establishe a right.

Would Justices Thomas and Gorsuch, both on record as rejecting application of injunctions beyond the names plaintiffs to that case, disagree with any of this?

This is the first time we have seen this idea from the left; previous talk of "resistance" efforts came from the right, in response to Brown and Obergefell. And it does no good to distinguish this case as involving a "rule that religious people get to ignore the law." Any framing--here, in Brown, or in Obergefell--reduces to disagreement with the substance of a decision and an attempt to convert disagreement into a suggestion of illegitimacy.

Posted by Howard Wasserman on April 11, 2021 at 05:12 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thoughts on Caron Nazario lawsuit

Here is the complaint. A few thoughts.

• The complaint is uniquely specific and precise about the facts because the plaintiff obtained the officers' body-camera footage and footage from his cellphone. He could review (and cite to) evidence in the pleading. No need to rely on boilerplate, to plead on "information and belief," or to plead in general terms. No Twiqbal problems here.

• The First Amendment claim is interesting. He alleges that the officers threatened to retaliate against him by pursuing charges if he exercised his First Amendment petition rights and complained, then filed false reports in furtherance of that effort. First Amendment retaliation is tough--the plaintiff must prove the officers did not have probable cause to arrest for anything, which typically  is tough to show. But the camera footage helped in framing that claim.

• The complaint does not try to do too much. Nazario sues only the officers for the immediate violations. He does not try to weave a failure-to-blank theory to establish municipal liability based on patterns of past misconduct by these or other officers. The complaint also does not spend pages weaving this action into the broader national problem of police abuse. It does not employ outraged rhetoric to appeal to the reader's emotion. Such information would not be legally important to this case (except in furtherance of the failure-to-train theory that the plaintiff does not pursue). But it would be politically important in placing this case in a bigger picture and drawing public interest and attention to the case. Beth Thornburg coined the term "pleading as press release" to describe using the complaint to speak to, and litigate one's position in, the public . Whatever the merits of doing that, it is interesting that this plaintiff and his lawyer did not try it. Maybe the video, which is all over the internet, performs the work that the language of the complaint ordinarily would perform--news stories can describe the video rather than quoting outraged rhetoric in the pleading.

Posted by Howard Wasserman on April 11, 2021 at 01:05 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, April 06, 2021

Speech is not money (Update)

People are having fun ridiculing ridiculous Republicans. After years of insisting that the First Amendment guarantees corporations the right to spend money supporting (mostly Republican) candidates and causes have now decided that corporations and corporate executives must "stay out of politics" when their speech consists not of writing checks to GOP candidates but of boycotting certain locations and business partners or otherwise speaking as an entity on matters of public concern. In fairness, maybe Republicans such as Mitch McConnell never believed that corporations should be able to "speak," only that they should be able to spend money (by giving it to Republicans)--and speech is not money.

Of course, the left is not doing much better. Many are urging, supporting, and celebrating large institutions (Coca-Cola, Delta, MLB) wielding their economic power to protest, and try to influence, government decisions and public policy. But if this is legitimate and laudable behavior from these companies, most of the left criticisms of Citizens United and cases--"corporations are not people," "corporations don't have First Amendment rights"--evaporate. Believing that MLB can and should move the All-Star Game from Atlanta in response to voter-restriction laws depends on believing that MLB has the right, as an entity, to take a position on matters of public concern.

Neither side can have it both ways. Either corporations enjoy First Amendment rights to engage, through expenditure (or non-expenditure) of funds, in public debate or they do not. It does not vary by context. It does not vary by the political position they take. And it does not vary by the type of corporation. If Delta can (and should) take corporate action that furthers principles you like, then Delta may take corporate action that furthers principles you do not like.  If Coca Cola can spend money to support the election of candidates you support, then Coca Cola can spend money, time, effort on positions you do not support. You can make your expressive decisions accordingly.But your response cannot be that it does not have the right to do it or that it should "stay out of" the arena.

There is a liberal argument that would oppose expansive campaign spending  but support current corporate efforts in Georgia and elsewhere. But it is not the Citizens United bumper sticker that most liberals favor. It argues that big-money contributions and expenditures should not be allowed to influence public officials and elections, that elections are "bounded institutions" in which unique limitations should apply in ways they do not in the larger public debate. This is an argument about wealth and controlling its influence in the electoral system, not corporate status. That is, the problem is not corporate spending but all spending, by people and corporations alike. But that is not the argument that most liberals make about campaign finance.

Update: Wow. I was being sarcastic about Republicans being ok with corporations spending money but not speaking. But that appears to be Mitch McConnell's position: "Stay out of politics because it's not what you're designed for," but "I'm not talking about political contributions," only "taking a position on a highly incendiary issue." Don't speak, just spend money. Don't take express positions, just give money to me and people I like (presumably to gain influence). I can only assume that issues and candidates with which McConnell agrees are never "highly incendiary." This would be laughable if not so par for the course.

I do not expect intellectual honesty or consistency from McConnell. But I would like to hear a theory of why contributions are ok but express positions are not. To blanket contributions (and expenditures) in the First Amendment, there must be an expressive quality to those expenditures. And there is no logical way to say a corporation has First Amendment right and can speak, but that it must limit its expression to the form of campaign contributions but no other expression in other forms (especially because giving money so someone can spend it is less expressive than other forms of corporate communication involving true speech).

Further Update: An alternative title to this post (seen on Twitter and elsewhere) might be "Money is speech, but speech is not speech."

Posted by Howard Wasserman on April 6, 2021 at 11:32 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, April 05, 2021

SCOTUS vacates Knight Foundation, Thomas has things to say

SCOTUS GVRed Biden v. Knight Foundation (begins on p.9) with instructions to dismiss as moot under Munsingwear. No surprise, as mootness was always inevitable because Trump would someday leave office, known to happen once he lost the election, and factual once Twitter banned him. Whether plaintiffs can recover attorney's fees remains. As do questions of the effect on qualified immunity.

We also have some explanation for why this took so long--Justice Thomas wrote a lengthy (solo) concurrence, emphasizing that the real power over internet spaces is private rather than governmental and offering arguments for why internet platforms might be regulable as common carriers or places of public accommodation. He also suggests that lower courts have misconstrued § 230 to give immunity to "bad-faith removal of third-party content," whatever that means. And he carries water for the grievance of Trump being banned from Twitter (and his 89 million followers), demonstrating the "stark" disparity between Twitter's control and Trump's control.

Thomas recognizes that the First Amendment limits government power to control speech in a private space that it rents or uses.

Whether governmental use of private space implicates the First Amendment often depends on the government’s control over that space. For example, a government agency that leases a conference room in a hotel to hold a public hearing about a proposed regulation cannot kick participants out of the hotel simply because they express concerns about the new regulation. See Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 547, 555 (1975). But government officials who informally gather with constituents in a hotel bar can ask the hotel to remove a pesky patron who elbows into the gathering to loudly voice his views. The difference is that the government controls the space in the first scenario, the hotel, in the latter.

I think this misses the mark in two respects. First, Trump could have asked the "pesky patrons"--assuming they were violating Twitter's terms of service--be removed by Twitter. Second, a government official's Twitter feed is more than an informal gathering with constituents and Thomas' framing minimizes the communicative power of Twitter. It seems more akin to a Town Hall meeting or a speech--the official speaks to the public and the public can hear and respond. If that is not a full-on public hearing on a proposed regulation (which limits the effect to legislative bodies), it is more than people who happen to be public officials hanging out in a bar.

Posted by Howard Wasserman on April 5, 2021 at 11:46 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, March 30, 2021

Tenth Circuit adds to the pantheon of awful qualified-immunity decisions

From the Tenth Circuit, in a case arising from Denver police seizure of a tablet computer from a bystander who filmed police using force against another person. This involves less egregious facts than six hours in a feces-laden cell or stealing coins while executing a warrant.  But it demonstrates how far afield the analysis has gone.

Denver police department told officers in their training that the First Amendment protected the right to record. The officers disregarded express departmental guidelines--that is, they knew their conduct violated the First Amendment as they had been instructed on it. The court said that was irrelevant because: 1) the officers' subjective knowledge of their wrongdoing is irrelevant under Harlow's objective standard and 2) only judicial opinions can clearly establish rights because the Constitution means what the courts say, regardless of any training by the executive department.

This seems wrong for several reasons.

First, the standard that SCOTUS has floated in recent cases is that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." What does that second point mean if it does not allow immunity to be lost when the officer knows the law and still violates it. Second, SCOTUS has looked at departmental guidance in the qualified immunity analysis. In Wilson v. Layne, the Court pointed to US Marshal regulations allowing media ride-alongs and said they could establish the lawfulness of conduct, so long as they were not obviously unconstitutional; it should follow that guidance can establish what is not lawful. In Hope v. Pelzer, the fact use of the hitching post was prohibited by Alabama Bureau of Prisons guidelines helped clearly establish the right, along with not-quite-on-point precedent. And the Third Circuit in Fields v. City of Philadelphia considered the role of departmental policy in clearly establishing a right, although the court there said the regs did not clearly establish the constitutional right because it was not clear that the regs were grounded in the First Amendment as opposed to good policy. Nevertheless, the parties and the court worked on the understanding that departmental policy is part of the analysis. At the same time, of course, the existence of department policy instructing officers allows the city to avoid municipal liability because they had trained their officers on a highly protective version of the First Amendment.

Second, the sort of naked judicial supremacy is unwarranted and unjustified. Yes, executive interpretation will yield to judicial understanding once matters hit court. But the court leaves no room for departmentalist interpretation and training.

Third, the court pulled an interesting sleight-of-hand in looking at law from other circuits circa 2014 (when these events occurred). Four circuits had recognized some First Amendment protection for recording of police pre-2014. A "robust consensus" of non-SCOTUS authority can clearly establish. But the court said none of those courts had found the right clearly established; the court was more persuaded by the non-finding of the right as clearly established (although some cases were not for damages and thus immunity was not in issue) than by the conclusion that the First Amendment was violated. And one of the cases had a dissent (Judge Posner dissented in the Seventh Circuit case), suggesting a disagreement among judges that precludes a right being clearly established.

Fourth, the court bypassed the merits. Why? Because everyone in the case agrees that the First Amendment right to record exists and was violated here. And the constitutional question is best resolved in an adversarial posture featuring powerful arguments on both sides. So these officers are off the hook, so this case does not even put the next officer on the hook for the same misconduct. So the court may have offered officials a wonderful new strategy in § 1983 cases: Concede the merits, prompting the court to skip ruling on the merits and allowing the officers to prevail on clearly established. The court will never provide the precedent it has deemed necessary. And if formal government policy cannot clearly establish a right, litigation concessions certainly cannot do so.

A depressing piece of work. I am curious to see if it survives en banc review. Or if this will be the case that prompts reconsideration of this mess.

Posted by Howard Wasserman on March 30, 2021 at 02:38 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Trying and failing to keep standing and merits distinct

The Eighth Circuit offers the latest example, in a First Amendment challenge by vegan food producers and advocates to a Missouri law prohibiting misrepresentations of products as "meat" when not derived from animals.

The majority held the plaintiff had standing but had not shown a likelihood of success on the merits entitling it to a preliminary injunction, while the dissent argued that the action should have been dismissed for lack of standing. But everything turned on the same issue--whether the plaintiffs' proposed conduct violated the law and whether they were likely to have the law enforced against them, given that they did not "misrepresent" their plant-based products as being "meat." The majority said that standing is analyzed under Susan B. Anthony List, which requires a showing that the statute "arguably" reaches the plaintiff's conduct and there exists a "credible" threat of enforcement. But SBA "does no work" beyond standing; the merits of the claim (and the first prong of your injunction analysis) asks whether the plaintiffs' conduct was "likely to be seen" as violating the statute. On the other hand, the dissent took those same facts as not establishing standing.

The majority cited circuit precedent acknowledging that standing "tracks" merits and is "closely bound up" with whether the plaintiff is entitled to relief. But the court insists they are not "coextensive" and must not be "conflate[d]." But if the concepts turn on the same fact, they are doing more than tracking one another. If two judges look at the same fact and one uses it to find the absence of a cause of action and one uses it to find a lack of standing, they begin to sound coextensive. Which raises the question of why courts bother--why spend so much time on standing only to use the same fact to find a failure on the merits.

Posted by Howard Wasserman on March 30, 2021 at 11:34 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, March 21, 2021

Qualified immunity, inconsistency, and level of generality

A practical problem with qualified immunity is its inconsistency. This is especially true with respect to the level of generality at which a right is defined, which often determines whether a right is clearly established--the broader the level of generality, the more likely that precedent, created on different facts, can clearly establish. Case in point: The District of New Mexico holding that it was clearly established in 2019 or 2020 that a local elected official violates the First Amendment by blocking people from their private Facebook page.

At first glance, this seems impossible. SCOTUS has never addressed this, nor has the Tenth Circuit (which includes New Mexico). The two appellate decisions holding that the First Amendment prevents government officials from blocking people on social media--the Second Circuit in Knight Foundation and the Fourth Circuit  in Davison--came in 2019. That is not a "robust consensus" of lower-court of precedent. But the court did not look for such factual specificity. Rather, the rights at issue were to be free from viewpoint discrimination in online spaces used as "metaphysical" public fora and from viewpoint-based retaliation in those public forums.

This stands in sharp contrast to the typical approach. Even outside the absurd cases ("precedent saying it is unlawful to steal drugs during a search does not clearly establish that it is unlawful to steal coins during a search"), courts look for at least some factual similarity beyond general free-speech principles. An official blocking a user from her private page, while leaving that person otherwise free to say whatever he wants wherever he wants, is a far cry from a state banning individuals from all social media.

Perhaps this is how things should be. If qualified immunity must remain, perhaps courts should think about rights more broadly and in a less fact-bound way. But it is out of step with current immunity doctrine, including from the Tenth Circuit, that "viewpoint discrimination" is not a sufficiently specific right.

Posted by Howard Wasserman on March 21, 2021 at 03:11 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, March 10, 2021

Stupidity, racism, and apologies (Updated)

Meyers Leonard, a back-up big man for the Miami Heat who has missed most of this season with a shoulder injury, was playing Call of Duty on a live Twitch and trash-talked a fellow player as a "fucking kike bitch." He has lost a bunch of gaming sponsors and will be "away from" the team "indefinitely." Leonard apologized, in a pretty unqualified manner, albeit with a touch of "[t]his is not a proper representation of who I am." But I want to unpack some pieces of his statement.

• "I didn't know what the word meant at the time" and he was "ignoran[t] about its history and how offensive it is to the Jewish community." He is "more aware of its meaning."

    What does this mean? If he is saying he did not know it was an anti-Jewish slur, I find that hard to believe. While not as common as other slurs and epithets, I would think people would know of the central anti-Jewish slur (I have never been called a kike to my face, but I know about the word). Has he never seen Porky's (dating myself, I know)?

    What did he think the word meant? He understood it as an insult, a pejorative adjective that he could squeeze between a pejorative adverb and an insulting noun. He used it with the intent to form an insult, albeit a playful one in the course of gaming trash-talk. Did he think he was using a made-up word or a random word he had just heard somewhere? Then how did he know it was insulting? Did he know the word was insulting, but not know towards whom the word was insulting? Did he think it was some cool-sounding word to use for trash talk? (Update: I will repeat a point I have seen elsewhere from several people that I think makes a similar point: The word was in his vocabulary. It kind of beggars belief to say that he did not know the meaning of a word he had at his disposal as an insult)

    Or is he saying that he knew the word was insulting, but did not know its history or origins? In which case, I do not care. No one is actually sure of the word's history or origins. The leading theory (attributed to Leo Rosten) is it came from the Yiddish word for "circle" (kikel) or "little circle" (kikeleh) and the practice of Jewish immigrants signing papers with a circle (rather than an X). Another is that it was a derogatory reference (begun by established German-Jewish immigrants) to newer Eastern-European-Jewish immigrants whose names often ended in -ki or -ky (e.g., Meier Suchowlański or Meyer Lansky, as he was sometimes called). Either way, knowledge (or lack of knowledge) of a slur's etymology is cute misdirection that should not distract. Using a slur is using  a slur, whether you know where it came from; you are not immunized in using the slur if you are unclear of its origins, because it remains a slur. The question is whether he knew it was anti-Jewish, regardless of where it comes from. Which returns to the prior paragraph and what he thought the term means--that is, what kind of fucking bitch was he talking about there?

• "I am committed to seeking out people who can help educate me about this type of hate and how we can fight it."

    Here is all the education he needs: Don't use anti-Jewish epithets. It is unnecessary for Meyers Leonard to learn about the thousands-of-years-long history of anti-Jewish hatred or to advocate against anti-Jewish bigotry. I do not really care if he is Judenhaas or what he thinks and says in his heart or what causes he supports or opposes. If he does not want to be a pariah and wants to continue earning almost $ 1 million per point (Meyers makes $ 9.4 million and had scored 10 points in 3 games prior to his injury), he should try to refrain from using slurs in a public forum that he set up. The rest is up to him.

•  Leonard did not kneel during the national anthem in the NBA Bubble last season. He tried to thread the needle with the usual tropes about supporting the cause but not disrespecting the flag and the military (his brother is in the military). But some of this conversation is recalling that, running along the lines of "see, he showed you who he was and what he believed last season when he refused to join his teammates in kneeling during the anthem, this is more of the same."

    I am troubled by that progression. It is a leap from not engaging in a particular protest against racist policing to the conclusion that he opposes or is antagonistic to that cause to the conclusion that he is a racist who supports racist policing. Maybe he is, maybe he isn't. But refusing to participate in one expressive activity is not revealing of broader views, certainly not in the same way as using an epithet. It smacks too much of "if you do not support my cause in my chosen way, you are opposed to my cause."

I hope this will be the last time I write about Meyers Leonard.

Update: Julian Edelman, who has become the most outspoken Jewish athlete, penned an open letter to Leonard inviting Leonard to a Shabbat dinner and warning of the dangers of casual ignorance about hate and epithets.

Posted by Howard Wasserman on March 10, 2021 at 11:49 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, March 09, 2021

Parler v. Amazon Web Services: Defamation & the Promotion of Violence in Social Media

Parler v. Amazon Web Services presents some intriguing issues concerning the role of social media in fomenting violence, the market power of Amazon and its web services to suppress speech businesses, and the continued controversy over who is and who is not a public figure. See Parler v. Amazon, Complaint, CASE #: 21-2-02856-6 SEA (Sup. Ct. Wash., Mar. 2, 2021); Parler v. Amazon Web Services, CASE NO. 2:21-cv-0031-BJR, Order Denying Motion for Preliminary Injunction (W.D. Wash. Jan 21, 2021).

Amazon Web Services indefinitely suspended the social media company Parler from its site a few days after the riots at the U.S. Capitol on January 6, contending that “Parler was used to incite, organize, and coordinate the Janary 6 attack on the U.S. Capitol.”

Shortly after being suspended, Parler sought an injunction against AWS in federal district court in the state of Washington. Parler, which describes itself as a “conservative microblogging alternative and competitor to Twitter” and Facebook, asserted that AWS was using its market power to disable a potential competitor and claimed that AWS had engaged in conspiracy in restraint of trade, breach of contract, and tortious interference with business expectancy. AWS countered that Parler’s inadequate moderation of its site violated AWS’s Acceptable Use Policy, which prohibits “illegal, harmful, or offensive” use or content. AWS also contended that Parler was in breach of its Customer Service Agreement, which justified AWS in suspending Parler. The federal district court denied Parler’s motion, finding that Parler had failed to show a likelihood of success on the merits of its claim. The judge concluded that Parler supplied no evidence of any conspiracy in restraint of trade, and Parler’s breach of its agreement with AWS and the Acceptable Use Policy made Parler’s breach of contract suit unlikely to succeed. Similarly, Parler’s breach also made its tortious interference claim weak. Evaluating the balance of hardships in the case, the court stated: “AWS has convincingly argued that forcing it to host Parler’s users’ violent content would interfere with AWS’s ability to prevent its services from being used to promote—and, as the events of January 6, 2021 have demonstrated, even cause—violence.” The court further held that the public interest did not support granting an injunction forcing AWS to host the incendiary speech that some of Parler’s users engaged in, opining that the riots at the Capitol “was a tragic reminder that inflammatory rhetoric can—more swiftly and easily than many of us would have hoped—turn a lawful protest into a violent insurrection.”


Parler was off the internet for more than a month while it tried to find replacement web services. On March 2nd, 2021 Parler filed suit against Amazon Web Services and Amazon.com in state court in Washington. In its complaint, Parler insisted that AWS’s suspension was motivated by a desire to eliminate the threat Parler poses to “surveillance capitalism” because it does not sell user data. The complaint recounts instances of violence-promoting content appearing on Amazon, Twitter and other social media sites, suggesting that AWS’s suspension of Parler with less than 30 hours’ notice was based on concerns other than its content moderation. Further, Parler alleges, implausibly and without support, that AWS directed hackers to Parler’s backup datacenters and began secretly selling Parler’s user data.


Parler brought various claims against AWS, including deceptive trade practices, defamation, breach of contract, breach of fiduciary duty, tortious interference with contract or business expectancy, unfair competition, negligence, and other claims (for a total of fourteen claims). The suit seeks trebled and exemplary damages and attorneys’ fees.
The basis for the defamation claim was an email AWS allegedly leaked to BuzzFeed that stated that AWS was indefinitely suspending Parler because it was unable or unwilling “to remove content that encourages or incites violence against others.” Parler asserts that AWS made this claim, despite being aware that Parler had a history of removing problematic content and was testing a new artificial intelligence system to moderate problematic content. Parler asserts that it is not public figure and its content moderation policies were not a matter of public concern, but even if it were, AWS acted with knowledge or reckless disregard of the falsity of its allegations that Parler had been lax in moderating troubling content. AWS complained that this defamation cost it millions in lost business.


Is Parler a public figure? While it is true that a defendant cannot bootstrap a plaintiff into becoming a public figure by virtue of the defendant’s defamatory allegation, Parler was in the public eye based on its business practices before AWS leaked the email. Indeed, a Washington Post article published the day before the Capitol riots on January 6 stated that “[t]alk of guns and potential violence is rife on . . . the conservative social media site Parler.” Parler suggests that it is no more responsible than other social media for allowing violent content on its site linked to the events of January 6th. If this allegation its true, it would lend credence to Parler’s claim that the blame for the riots has been falsely pinned on its site; however, Parler did not sue the media linking its site to the riots but instead sued AWS. AWS may assert that the leaked email about Parler is technically true: Parler was unable to keep up with moderating violence-promoting content. Moreover, if AWS relied on credible news sources to conclude that Parler was being used to foment violence, it would be hard for Parler to prove that AWS knew or recklessly disregarded the falsity of AWS’s attribution of inadequate moderation to Parler. On a side note, it seems at least as likely that AWS booted Parler for damaging AWS’s own reputation as it does that AWS booted Parler for anti-competitive reasons. Regardless, if this defamation action helps uncover whether Parler’s lax content moderation was more responsible than that of other social media for the riots of January 6, it will be doing a public service.

Posted by Lyrissa Lidsky on March 9, 2021 at 11:50 AM in Current Affairs, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (3)

Cascading Fed Courts issues

I have not given enough thought to how one SCOTUS decision on one issue produces a cascade of other issues. Janus provides a nice case in point.

SCOTUS held that mandatory non-member agency fees violate the First Amendment. That triggered a wave of actions against unions by non-members to recoup fees paid prior to Janus, which courts of appeals have uniformly and all-but-unanimously rejected via a defense of good-faith immunity (the Fourth Circuit joined the chorus yesterday).

The Seventh Circuit on Monday considered a different downstream effect: A union sued the state attorney general challenging state law requiring unions to represent free-riders, claiming that mandatory representation violates the union's First Amendment rights against compelled expression and association. The court of appeals held that the union lacked standing.* No freeriding nonmember had grieved the union for failing to represent it. The attorney general (the defendant in the action) had not initiated or threatened an action against the union for unfair (or non-) representation. And the union had not alleged an intent to not represent freeriders to set-up a pre-enforcement challenge. So while the court acknowledged the issue was unavoidable post-Janus and would eventually require resolution, there was no live case or controversy teed up.

[*] While acknowledging that it also could have been unripe. But wouldn't it all be so much easier to say that nothing had (yet) caused a violation of the union's constitutional rights?

That leads to a further downstream effect: If a freerider files a grievance or the state brings a failure-to-represent action, would a federal court abstain under Younger from the union's action? It may depend on the state laws and procedures governing state labor proceedings. I think abstention would be required in the AG action, because the action sounds comparable to an attorney-grievance proceeding. The freerider grievance may be a bit more open after Sprint, since the state would not be a party.

This is far from played out, as the Seventh Circuit recognized. I wonder if the Janus majority anticipated this three years ago.

Posted by Howard Wasserman on March 9, 2021 at 10:57 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Monday, March 08, 2021

Nominal damages, past injury, and a morass to come

SCOTUS decided Uzuegbunam v. Preczewski Monday, holding 8-1 (Thomas for the Court, Roberts dissenting) that nominal damages are a retrospective remedy and plaintiffs can pursue them as the sole remedy for a past constitutional violation. The decision allows plaintiffs to vindicate rights (e.g., the right to protest in a time, place, and manner to which the plaintiff was entitled) that are easily violated but rarely, if ever, worth a lot of money. It also strips government of the power to moot cases after they have begun by repealing the challenged policies, at least where the plaintiff can show an injury from when the policy was in effect.

But the decision leaves many issues open and to be resolved by lower courts going forward.

One is how prevalent this practice will become. Will every plaintiff challenging the validity of a policy include a nominal-damages claim to guard against the government mooting the case? And how will this affect the willingness of courts to say the prospective claim is moot if there is a retroactive claim keeping the case alive? Courts are all over the map on when the repeal of an executive or department policy moots a case and when it is the sort of voluntary cessation that does not moot the case. On one hand, a court may hold the prospective claim not moot, since the nominal-damages claim will keep the case in court. On the other, it may be happy to dump the prospective claim and focus on a small-money claim for a likely de minimis past injury.

Second is how this affects attorney's fees, which was the hidden import of this case. A plaintiff who recovers nominal damages is a prevailing plaintiff entitled to fees under § 1988. Had this case come out the other way, it would have upped the incentive for government to repeal challenged policies, mooting the case and immunizing itself from fees.

But even if fees are available, the amount of recovery may be limited where the plaintiff only receives nominal damages after seeking more--when a plaintiff recovers nominal damages but nothing else, the reasonable fee may be "nothing." Courts might narrow the degree to which the plaintiff prevails, and the amount of fees she recovers, where the government repeals the challenged policy; the plaintiff prevails "only" on the past violation and can recover only for that legal work. An increase in nominal-damages actions may produce a drawback in the amount of fees courts are willing to award.

Third, Jim Pfander proposes that Congress should amend § 1983 to allow plaintiffs to bring claims seeking nominal damages--foregoing compensatory, punitive, and other substantial damages in exchange for the defendant being unable to assert qualified immunity. On one hand, this case treats nominal damages as a remedy consistent with Article III and thus within Congress' power to enact by statute. But the logic of Pfander's proposal is that nominal damages function like an injunction or declaratory judgment, neither of which is subject to qualified immunity. But today's decision paints nominal damages as s a retrospective remedy. Of course, the policy concern for an officer paying out of his own pocket disappears if he only will pay $ 1. But the validity of the proposal turns on that policy, not on the analogy between injunctions and nominal damages.

Fourth, the case illustrates the Court ongoing use of Article III to constitutionalize all sorts of merits questions. The majority talks about the need to show standing and a cognizable cause of action, assuming they are obviously distinct and never recognizing their unavoidable overlap. The Justices continue to make Article III and justiciability as a vehicle to discuss what injuries plaintiffs can recover for and what remedies they can get for those injuries, which should be core merits issues.

Roberts' dissent is worse. He argues (adopting the position of the United States and echoing his dissent in Campbell-Ewald) that a defendant can moot a nominal-damages case by depositing $ 1, avoiding a resolution on the merits. But an action for past injury (as the majority characterizes a claim for nominal damages) never becomes moot. Unlike an ongoing injury that ends when the policy causing injury is repealed, the past injury occurred and does not disappear with payment of money. The payment remedies the injury, putting the plaintiff where she would have been had the past violation of her rights not occurred. But the injury does not disappear and it does not become moot. Unfortunately, Kavanaugh wrote a one-paragraph concurrence to agree with that point in Roberts' dissent, meaning two members of the Court for that absurd position.

Finally, whether characterized as merits or mootness, the question remains whether government can do what the U.S. and Roberts/Kavanaugh would allow: Render the claims recognized in this case meaningless by depositing that $ 1 and demanding the government enter judgment, even if the plaintiff would rather not accept the settlement.

Posted by Howard Wasserman on March 8, 2021 at 01:53 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Wednesday, February 24, 2021

COVID defeats free speech and the national anthemm (Update)

Members of the East Tennessee State University men's basketball team knelt during the national anthem last week, with the support of the coach. This prompted Republican legislators to sign a letter calling on the heads of the state's universities to adopt policies prohibiting such protests because of a bad song written during a battle we lost in a long-ago war.

The judicial First Amendment questions here are genuinely open. Barnette imposes a clear command against compelled participation in patriotic rituals by the government. But it runs into different rules for job-related employee speech, which may include the power to compel employees to say things as part of their job. And that runs into how to treat unpaid college athletes--people whom universities have spent more than half a century denying are employees--when they "represent" the school and act on the school's behalf

One story on the controversy expressed particular concern for ETSU's upcoming game against VMI, a military institution uniquely offended because, of course, the flag is about the troops and the veterans and not about, you know, the right to peaceful protest. It turns out that will not be a problem, as ETSU's game with VMI has been cancelled--because of positive COVID tests in VMI's program.

Update: FIRE, PEN America, and the National Coalition Against Censorship sent letters to the schools, urging them to resist the calls to stop the athletes from protesting. The letters address, and reject, the legislators' argument that athletes are "ambassadors" for the university and thus speaking on its behalf. It seems to me this is key--if the athletes are in the same position as ordinary students, this is an easy case.

Posted by Howard Wasserman on February 24, 2021 at 11:21 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Monday, February 22, 2021

Fuck everything

Today is the 50th anniversary of argument in Cohen v. California, the "fuck the draft" case. The argument famously began with an admonition from Chief Justice Burger to Cohen attorney Melville Nimmer that "it will not be necessary for you I'm sure to dwell on the facts." By the 1:40 mark, Nimmer began describing what Cohen had done and what was on the jacket. And Justice Harlan's opinion for the Court had no problem describing the jacket in full.

This is a notable anniversary because the Court and litigants have fallen into an unfortunate habit of deciding cases about the constitutionally protected nature of words while refusing to utter those words in argument or write those words in the pages of the U.S. Reports. In Iancu v. Brunnetti, on whether the PTO could refuse a trademark on FUCT, the government's attorney described the mark as the "equivalent of the past participle form of the . . . paradigmatic profane word in our culture." Justice Kagan's majority opinion quoted the SG to describe how someone might read the mark. In FCC v. Fox Television (2009), counsel said "F-word" during argument and Justice Scalia's majority opinion described the FCC as adopting a policy that the "nonliteral (expletive) use of the F- and S-Words could be actionably indecent."

SCOTUS will hear argument in April in Mahanoy Area Sch. Dist. v. B.L., arising from the suspension of a high school student for a snapchat post captioned "fuck school fuck softball fuck cheer fuck everything." (Many First Amendment advocates are concerned the Court will further damage the student-speech doctrine in the first case in which a court of appeals held that Tinker does not apply to out-of-school speech).

This case is different in that the words were used and their use is central to the case, as they were in Cohen. Fox was about FCC policy and Iancu was about (intended) misperception. The central question here is whether the phrase "fuck ____" enjoys First Amendment protection when uttered by a minor outside of school. It will be interesting to see how advocates and the Court argue and decide that question without mentioning the actual words. It will be unfortunate if the trend continues. We can learn a now-50-year-old lesson from Mel Nimmer and Justice Harlan.

Posted by Howard Wasserman on February 22, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Thursday, February 11, 2021

You can't pay me to play the Star Spangled Banner

I acknowledge that one drawback to the model of judicial departmentalism I have been pushing is that it allows craven officials to do absurd things for show--enacting and enforcing laws that they know will be declared invalid in court, but happy for the opportunity to score cheap political points. The hope is that loss of qualified immunity, damages, and attorney's fees would be a drag on the worst efforts. But those can only do so much, especially where the money does not come out of the official's pocket and a functionally one-party state (in either direction) means no political consequences.

Case in point: Texas Lt. Governor Dan Patrick announced the "Star Spangled Banner Protection Act," which would require the playing of the national anthem at all events receiving public funding. The proposal responds to the Dallas Mavericks not playing the anthem in empty arenas this season. Something can be a zombie law upon enactment--it merely has to be obviously DOA in a judicial proceeding that must abide by judicial understandings of the First Amendment.

This law, if enacted, qualifies. SCOTUS held that the government cannot condition funds on the recipient engaging in speech that is not part of activities the government is attempting to fund. Whatever public funds Texas gives the Mavericks or their arena are not tied to a government program of, for example, promoting patriotism. That makes this bill a blatant attempt to "leverage funding to regulate speech" to achieve what the First Amendment prohibits through direct regulation. The courts (if not all government officials) understand that the First Amendment prohibits government from compelling private actors to sponsor or participate in patriotic rituals. It should follow that they cannot leverage funding to compel such patriotic rituals. This is not even close.

The law also would be overbroad. Most businesses get state subsidies and other benefits. And what are "subsidies"-- police protection for an event?

Finally, I wonder if Patrick would be ok with the following: "The Racism Prevention Act," requiring all businesses receiving state funding to conduct anti-racism awareness workshops relying exclusively on the work of Ibram X. Kendi and Robin D'Angelo. And if not, draw a content-neutral distinction between this law and his zombie.

Posted by Howard Wasserman on February 11, 2021 at 03:04 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Wednesday, February 10, 2021

Healy on cancel culture

Thomas Healy (Seton Hall) has a great short essay arguing that social censure of speech--what conservatives denounce, ad nauseum, as cancel culture--is a form of protected counter-speech in most contexts. I especially like the closing flourish: "For under our free speech tradition, the crudest and least reasonable forms of expression are just as legitimate as the most thoughtful and eloquent."

If anything, Healy may underplay the protected nature of much of what gets derided as "cancel culture," for reasons I have discussed in prior posts. The anti-cancel arguments benefit powerful speakers who can have access to a forum to be heard, then demand that other speakers only engage "on the merits" and reject anything else as silencing, while feeling no obligation to engage with the little people.

Healy also has a great response to complaints about silencing, reminding us what the marketplace of ideas is about:

Put bluntly, the implicit goal of all argument is, ultimately, to vanquish the opposing view. We don’t dispute a proposition in the hope that others will continue to hold and express that belief. Unless we are playing devil’s advocate, we dispute it to establish that we are right and the other side is wrong. If we are successful enough, the viewpoint we dispute will become so discredited that it is effectively, although not officially, silenced.

I had not thought to put it in these terms, but this is right. The "marketplace of ideas" is not a debating society. Its purpose is not to air all ideas to air all ideas, but to identify those ideas that we want to adopt and to reject those that we do not. The left/liberal criticism of the marketplace is that it does not work and abhorrent ideas continue to exist and to flourish, even as most people find them offensive. If government cannot silence speakers and speech and even one person is entitled to hold onto a bad idea, disassociating from those ideas and from those who espouse those ideas must be built into the market.

Worth a read.

Posted by Howard Wasserman on February 10, 2021 at 03:36 PM in First Amendment, Howard Wasserman | Permalink | Comments (15)

Monday, February 08, 2021

Campus speech (Updated)

This story--a pharmacy grad student suing University of Tennessee after it voted to expel her over sexually suggestive and vulgar, but unquestionably protected, social-media posts (the expulsion was rescinded by the dean)--captures everything that is problematic and misunderstood about attempts to regulate speech on campus.

• The university went after an African-American woman who graduated from University of Chicago and, in her words, "dominated her class," asked a lot of questions, and was a target of colleague complaints on social media. Just as Wisconsin prosecuted an assault by African-Americans against a white victim under its hate-crimes law. Just saying.

• An expert on higher-education law says, "'If someone is shouting in a classroom, you have the right to control the time, place and manner,' he said. 'When they are shouting on Twitter, is it their space or yours?'" This is stupid. First, the comparison is not between Twitter and the classroom; no one believes the classroom is a speech zone or anything other than the professor's space, and a student is punished regardless of what they shout. The comparison is between Twitter and the public spaces on campus opened up for speech; they are the students' spaces, shouting is permitted, and a public university cannot punish some shouting but not other shouting.

Plus, the woman was not shouting. She was posing for non-naked pictures and reciting lyrics. That becomes "shouting" only if you object to the content.

• The story kind of goes off the rails with a detour into Tinker and the Mahanoy case ("Fuck cheer") that SCOTUS will hear later this term. The rules for speech in secondary schools do not apply to college students on college campuses--adults, living in a self-contained "city" that is more than classrooms. There is a reason universities lose most of these speech-code cases, while high schools tend to win them. Discussing both in the same article confuses that issue.

• I am curious about the student's lawsuit. She was not expelled, so she cannot get an injunction for reinstatement or damages from her expulsion. Essentially, she is challenging the investigation that caused her emotional discomfort and distraction and that forced her to hire an attorney. Can a student recover when a public university takes steps to punish on constitutionally violative grounds, even if it does not complete the punishment? Does the university have any power to look into the issues to see if they are protected? Or must the university get one look, say obviously protected, and stop in its tracks? How far can an inquiry go before it becomes a violation? Interesting theory at work.

By the way, UT has been embroiled in a multi-year dispute over whether students can hold an annual "safe sex week." So we are not exactly enrolled in a bastion of free expression and academic freedom.

Update: Here is the Complaint; it makes a bit more sense. The school sought to sanction the woman for violating "professionalism standards" built into the school's academic policies, although stated nowhere in writing. That is a cute attempt at a work-around: "You are not violating public-school policies, but standards of the profession into which you are about to enter." She seeks an injunction prohibiting future enforcement of these unknown, vague, and overbroad "professionalism policies," claiming that she is self-censoring and has reason to fear future enforcement while she remains in school; that makes sense. I remain unsold on the damages theory. She was subject to an intermediate sanction for prior speech--she was made to write a letter about why her speech was bad and then self-censored in the lead-up to the more recent enforcement effort--that may warrant damage. But she seems to be claiming damages for the investigation and proposed expulsion (overruled by the dean) under an invalid standard. As stated above, I am trying to find a theory or limiting principle for how long an investigation can go before it becomes a First Amendment violation. At the very least, it seems to run headlong into qualified immunity and it not being clearly established that the policy is vague.

Posted by Howard Wasserman on February 8, 2021 at 10:32 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, February 04, 2021

What Southworth hath wrought

Bd. of Regents v. Southworth is an odd case. The action was brought by students at a public university challenging the use of their student-activity fees to fund groups or expression to which they objected. The Court rejected the claim because the forum was viewpoint neutral. I believed (and wrote at the time) that this was the wrong approach. Students were not compelled to fund any speech, so there should not be any free speech problem; they were required to fund a forum that the government operated. No one's First Amendment rights were violated, because no one was required to fund any speech or to give money for any objectionable speech; they gave money to the government that the government used to enable private speakers. And that does not change if the forum is not viewpoint neutral. The thing funded remains a public forum, just a viewpoint-discriminatory public forum. Any First Amendment claim should lie with anyone denied access to the forum on viewpoint-discriminatory grounds has a strong First Amendment claim. But the funders should have nothing.

The grounds on which Southworth was decided leads, unavoidably, to Smith v. Regents of Univ. of Minnesota. The plaintiffs were students who paid the mandatory fees. Some of their claims survived 12(b)(6) to the extent they challenged the unbridled discretion that university administrators had in deciding who received money, space, or other services. These plaintiffs were not denied money or space or other funded services; they simply do not like who does  receive money, space, and services or how that decision was made.

This makes no sense, however we look at it. On the merits, this should not violate the First Amendment, because the plaintiffs have not been compelled to speak or to fund anyone's speech, nor have they been denied access to a public forum to which they are entitled. Any unlawfulness in running the forum does not change the lack of connection between the plaintiffs and any fund recipient.  Or we could wonder how the plaintiffs have  standing, since they have not been harmed in any concrete way by the way the money was spent (the injury is not to their pocketbook, since they must pay this money no matter how the funds were spent) and they will not get their money back if the school changes its procedures. Or we could say this recognizes a new form of taxpayer standing under the Free Speech Clause, despite the Court's extreme narrowing of taxpayer standing in recent cases. Anyway of looking at is wrong. And that Southworth and the current court talk about this in First Amendment merits rather than standing terms and that we could criticize this decision either shows, again, that there is no meaningful difference between them except when courts treat them as different.

To say one nice thing about this decision: There is a wonderful discussion (at pp. 13-18) about the standard for 12(b)(6), the meaning of Twiqbal, and the differences between legal and factual insufficiency; I already shared it with my Civ Pro students. Not surprising, as Judge Patrick Schiltz was a Civ Pro scholar in his prior life.

Posted by Howard Wasserman on February 4, 2021 at 02:15 PM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Friday, January 29, 2021

Circuit split on public officials' Twitter accounts

A divided Eighth Circuit held that a state legislator did not act under color in blocking people from her Twitter account. She started the account as a candidate and used it primarily for tweets supporting her reelection and explaining why she is the right person for the office, including tweets criticizing her opponent for not placing her hand over her heart during the Pledge of Allegiance. That some tweets promoted her legislative achievements did not overcome the candidate focus, even if speaking with constituents can qualify as action under color. Judge Kelly dissented.

The question of how to treat "public communication" may prove a pivotal issue on these questions of social media and state action. All elected officials communicate with the public and promote their official work with an eye towards reelection and showing why their official work makes them the "right person for the job." But they also communicate with the public and promote their official work because they represent the public and are expected to notify the public of what is being done on their behalf. And so they want the public to keep them in office because they are doing so well on their behalf. I do not see how to draw a sharp line between candidate and official, especially for legislators, especially as the system involves into a perpetual campaign.

I also wonder why the case is not moot, as is Knight v. Trump. The legislator deleted her Twitter account in 2019. So a claim for an injunction seeking to be allowed onto the legislator's Twitter site is not alive if that Twitter site no longer exists. The opinion does not say if the plaintiff sought damages. Or perhaps there is some kind of capable-of-repetition argument--that the official may at some point return to social media. [Update: Or not perhaps not moot because of voluntary cessation--she could reopen her Twitter account at any time].

Posted by Howard Wasserman on January 29, 2021 at 09:03 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (4)

Thursday, January 14, 2021

Today in cancel culture

One cheer only for President Trump's recorded statement on Wednesday urging his supporters to refrain from violence.

He loses one cheer because he never mentioned Biden or that the election has  been resolved and produced a legitimate result. Trump's calls for non-violence--that violence is inconsistent with the "movement" (a word he repeated)--ring hollow when he simultaneously continues to convince people that the election was illegal, fraudulent, and stolen, the greatest political crime in history. Some of these people believe it is 1776 because Trump has told them it is; to continue to say "it's 1776 but do not be violent" is incoherent.

He loses a second cheer for his final-minute detour into the First Amendment and the problem of "canceling." His obvious targets were Twitter/Amazon, corporations and other donors withholding money from GOP officeholders, and other businesses and institutions working to distance themselves (in sensible and silly ways) from him, his family, those who aided and abetted Trump through his presidency, and those who created the conditions in which the assault on the Capitol occurred. But he (and others) continue to ignore the way in which these actions are themselves an exercise of First Amendment rights to express, through disassociation and non-support, opprobrium. If donating and spending money to support an official or candidate is protected expression, then so must withholding that money. When Twitter and Amazon should be treated as unique actors, under current law they are not, so banning speakers or speech communities from their spaces is an act of expression. If a private sports organization such as the NFL can and should fire the sons of bitches who do something as offensive as kneeling during the national anthem, then a private sports organization such as the PGA can fire the business owned by a person who incited an assault on the legislative branch.

Sorry, this still is not the speech in which "Trump became President." He has 114 hours and 14 minutes as I draft this for that to happen.

Posted by Howard Wasserman on January 14, 2021 at 05:46 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (10)

Monday, January 11, 2021

Citizens United meets cancel culture

The premise of the campaign-finance/First Amendment connection is that spending money to support candidates (as expenditures and contributions) is a form of expression by the donors/spenders--expressing their support for the candidate, what the candidate stands for, and what he will do in office. Whether true, the premise could be tested in the coming months and years as companies request the return of donations or refuse to donate to candidates who voted in favor of the objections to electoral votes.

Shouts of "cancel culture" by the "leftist mob" are sure to follow. But if donating to candidates is First Amendment activity, then so must refraining from donating to candidates who act in ways of which you do not approve. To insist that corporations--whose constitutional right to donate you have demanded--must continue funding you regardless of your actions reveals that complaints about cancel culture really are complaints about counter-speech.

Mind you, I do not expect this newfound corporate conscience to last. But while it does, it is the logical flipside of the Court's entire body of campaign-finance jurisprudence.

Posted by Howard Wasserman on January 11, 2021 at 02:42 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, January 09, 2021

On "cancel culture"

A great post on cancel culture from Sasha Volokh at the VC. He touches on the Hawley book contract, social media control (presciently written before Twitter banned the President and the accounts of everyone the President was using to try to get around the ban), private universities, and school-curriculum choices. I join his closing point:

"Cancel culture" is a broad term that embraces lots of different acts and lots of different consequences—boycotts, firing, piling on to someone on social media, refusal to be friends, rescinding a college acceptance or speech invitation, pulling down a statute, taking a book off the curriculum, etc. In some cases, some of those acts might violate someone's rights. This is especially true when someone has made a contractual commitment to do the opposite, or when a government is doing the acting. Governments have certain duties to be evenhanded, but people lack those duties. Instead, people have freedom, both freedom to choose how to use their property and other resources, and more generally a right to choose who they'll associate with. Those are core freedoms. We should feel free to argue about how people ought to exercise their freedoms, but always recognize that the freedoms are theirs to exercise.

Contrast this with the statement of the National Coalition Against Censorship's statement on the Hawley book, which concludes that the "best defense for democracy is a strong commitment to free expression." This rests on one of two competing premises--either that the only one engaging in "expression" here is Hawley's or that the expressive rights of the publisher must be in the direction of producing more speech.

NCAC also errs in relying on this idea: "Many of the books–and many of the authors–are highly controversial and generate intense opposition. When that happens, it is crucial that publishers stand by their decision to publish, even when they strongly disagree with something the author has said." Perhaps that is the correct principle in the standard-issue "author of YA fiction says controversial thing about topic du jour" case or in the "non-group members cannot write well about groups" case. This is not that. Simon & Schuster reacted to Hawley's actions as a United States Senator that contributed (in their view) to a mob storming the Capitol and attempting to interfere with the work of the government. That is a distance from JK Rowling taking an unpopular position on gender issues.

And a third example comes from various Republicans and conservatives on Twitter, defining "private company exercises control over the country's leader" as something that happens in China and complaining that the culling of right-wing extremists from the site has reduced their followers.

Posted by Howard Wasserman on January 9, 2021 at 10:48 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, January 08, 2021

No on Brandenburg (Updated)

Updates at bottom.

Here is the full transcript of Soon-to-be-Ex President Trump's remarks to the pre-sedition rally. After reading it (and at this point hearing Trump's voice as I read his words), I will follow-up on this post by being more assertive: There is no way this is punishable incitement under Brandenburg.

The speech is largely a string of oral tweets from the past few weeks and months and no different than what he has said at rallies, most recently on Monday in Georgia: The press as enemy of the people and not telling the truth; fanciful and farcical nonsense stories about election misconduct; "sir" stories about the people who are nice to him; touting of his accomplishments as President;* crowd size; cancel culture and critical theory; and the usual airing of grievances 11 days to late. He also laid out a series of election-reform proposals. And he told lies about what the Constitution allows or requires.

[*] There is an amazing disconnect. Before Wednesday, Trump still had competition from Andrew Johnson and James Buchanan. That race is over. But Trump and his supporters continue to talk about him as one of the top Presidents.

The words spoken matter--they must explicitly or implicitly encourage lawless action, allowing for rhetorical hyperbole, overstatement, and even offensiveness. Second, and related, Eugene Volokh argues that modern doctrine is unlikely to treat as incitement words that do not on their face call for unlawful conduct (e.g., Antony's funeral oration or the often-misquoted "will no one rid me of this troublesome priest"). Third, context matters. The lawless action must be "imminent" and "likely." So the same words spoken in front of a large crowd determined to "stop the steal" two miles from the Capitol while votes are being counted is different than spoken at a rally in northern Georgia on a Monday night. Finally, whatever we may think we "know" about Trump's intent, it is hard to prove beyond a reasonable doubt.

The general content here is not incitement of anything; it is standard Trumpian fare. It does not matter that the speech is designed to get the crowd upset at the injustices visited upon Trump and upon them.  Nor does it matter that it is likely or foreseeable that some would act unlawfully upon hearing these words and becoming outraged. The point of moving to Brandenburg from the old clear-and-present danger test was that we punish conduct not speech and that we do not routinely punish speakers because of what unconnected third parties do. We also want to leave speakers free to engage in words--one man's vulgarity and all of that.

With that in mind, much of this speech does not call on or encourage anyone to do anything, much less something that is lawless and imminent.

Here are the only segments that might come close:

1)

All of us here today do not want to see our election victory stolen by a bold and radical left Democrats which is what they are doing and stolen by the fake news media. That is what they have done and what they are doing. We will never give up. We will never concede. It doesn't happen. You don't concede when there's theft involved.

Our country has had enough. We will not take it anymore, and that is what this is all about.

And to use a favorite term that all of you people really came up with, we will stop the steal.

This is from the beginning of the speech. It is hard to see this as other than hyperbole.

2)

We will not let them silence your voices. We're not going to let it happen.

Not going to let it happen.

[This was followed by a chant of "Fight for Trump," for which Trump thanked the crowd].

He is urging the crowd to not let the silencing of their voices happen, not to engage in unlawful action.

3)

[Speaking of Pence doing the non-thing of sending the votes back to the states] That takes courage, and then we are stuck with a president who lost the election by a lot, and we have to live with that for four more years. We're just not going to let that happen.

This could be read as urging people to not to let happen the four years of the Biden Administration. But, again, allowance must be made for rhetoric and hyperbole.

4)

We're going to walk down. Anyone you want, but I think right here, we're going to walk down to the Capitol--

And we're going to cheer on our brave senators and congressmen and women and we're probably not going to be cheering so much for some of them.

Because you'll never take back our country with weakness. You have to show strength and you have to be strong.

We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated. Lawfully slated.

I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. Today, we will see whether Republicans stand strong for integrity of our elections. But whether or not they stand strong for our country, our country. Our country has been under siege for a long time.

This was the segment that has been making the rounds in the media and that I quoted in my prior post. Note that last paragraph specifically speaks of marching to "peacefully and patriotically make your voices heard" after calling for strength. In rejecting tort claims against Trump arising from a 2016 rally, the Sixth Circuit emphasized that Trump followed his call to get the protester out, the alleged incitement to assault, by saying "don't hurt him" as mitigating the meaning of the words and the intent. Similarly, the call for strength is tempered by the call to do it peacefully. That call for peacefulness is perhaps tempered the other way by the subsequent insistence that the country has been "under siege"--peacefully talking is not the "strong" response when one is under siege.

In any event, again, fiery rhetoric is allowed.  Also, in terms of imminence, the above occurred less than 1/5 of the way into the speech. So does that mitigate the intent or likelihood of encouraging imminent lawlessness if he then keeps talking? Eugene Debs spoke for something like three hours in Canton.

5) This is the final 90 seconds-or-so:

I said something is wrong here, something is really wrong, can't have happened and we fight, we fight like hell, and if you don't fight like hell you're not going to have a country anymore.

Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children, and for our beloved country, and I say this despite all that has happened, the best is yet to come.

So we are going to--we are going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we are going to the Capitol, and we are going to try and give--the Democrats are hopeless, they are never voting for anything, not even one vote but we are going to try--give our Republicans, the weak ones because the strong ones don't need any of our help, we're try--going to try and give them the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue.

Again, not encouraging or hinting at lawlessness. "Fight like hell" lest we no longer have a country is troubling, but in context does not suggest fighting in the physical or unlawful sense as opposed to be speaking out--again, rhetorical hyperbole is fair game. Trump is talking about marching, not storming the Capitol. Urging people to give members of Congress "pride and boldness" could mean peacefully speaking or protesting in support of what the crowd wants and hopes they will do.

This analysis goes to a possible post-January 20 (or even post-January 12) criminal prosecution. It is a separate question whether this constitutionally protected speech could be the basis for impeachment-and-conviction. Josh Blackman and Seth Tillman argue that it cannot.

Without getting too far into the point (this post is already too long), otherwise-protected speech can be the type of abuse of office that impeachment exists to punish. As Volokh argued, the view that Trump's speech was unprotected comes from a gut feeling that POTUS should not engage in such talk, regardless of the Brandenburg line. As he outs it, "Trump's failure was a failure not as a speaker, of the sort that strips speakers of First Amendment protection. It was a failure, a massive and unjustifiable failure, as a public servant." Impeachment exists to remedy those failures. Update: Jonathan Adler and Ilya Somin agree that the First Amendment is not a bar to impeachment, grounded in the broader view that impeachable conduct need not be criminal.

Posted by Howard Wasserman on January 8, 2021 at 11:05 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Thursday, January 07, 2021

Brandenburg Concerto

Does anything that Trump or Rudy said at the pre-putsch rally satisfy Brandenburg? I describe the Brandenburg paradigm as standing in front of a torches-and-pitchforks mob outside a poorly guarded jail and shouting "let's go get this guy." And at least the Sixth Circuit holds that "get him out of here (but don't hurt him)" to a grandstand of rallygoers surrounding a protester is not enough. How close were yesterday's statements to calls to invade the Capitol right now?

Here is Trump: "And after this, we're going to walk down there, and I'll be there with you, we're going to walk down ... to the Capitol and we are going to cheer on our brave senators and congressmen and women . . . And we're probably not going to be cheering so much for some of them. Because you'll never take back our country with weakness. You have to show strength and you have to be strong."

And Rudy: "If we are wrong we will be made fools of, but if we're right a lot of them will go to jail. So let's have trial by combat."

Brandenburg is (and must be) a high hurdle, so I doubt it. Is either specific enough as a call for a physical attack? (Rudy might say "trial by combat" refers to an alternative adjudicative process and was a criticism of how courts have handled their lawsuits--although how many of the people who heard him know that and how many would hear "combat" as a general call to arms to put wrongdoers in jail). How will a court regard temporal imminence if the crowd had to walk some distance from the Ellipse to Capitol Hill after the speakers were done--we'll take the fucking Capitol after we walk two miles.

Update: Eugene Volokh thinks not, because Trump's words were not specific enough about rioting or invading the building. Fiery rhetoric designed to promote peaceful protest must be allowed, even if some might act violently on it. He allows that what is different here is that Trump's job is not only not to call for imminent lawlessness (that is everyone's job), but to stop lawlessness when it occurs, so he ought to steer farther from the line. But that is a political concern over governmental duties, not baked into Brandenburg.

That last point works in both directions. The special obligation on government officials does not affect the Brandenburg analysis. But it also makes morally blameworthy speech that comes nowhere near Brandenburg. Had Trump not spoken at the rally, he has been fomenting what happen with his charges of fraud and stolen landslides--none of that is close to incitement, all of it would be regarded as morally blameworthy.

Posted by Howard Wasserman on January 7, 2021 at 08:48 AM in First Amendment, Howard Wasserman | Permalink | Comments (8)

Thursday, December 24, 2020

Third-party universality

A judge in the Northern District of California has universally enjoined the President's Executive Order on diversity training. Plaintiffs are several non-profit LGBT education and advocacy organizations that do trainings and education programs for local businesses, governments, and health-care providers. These programs cover systemic bias, anti-racism, white supremacy, and other issues the EO attempts to stop. The court held that the EO violates the First Amendment.

The court made the injunction universal/nationwide, based on third-party effects. "Permitting Plaintiffs to provide training regarding “divisive concepts,or to promote those concepts,would do Plaintiffs little good if their sources of employment and funding remain subject to the Executive Order." Pointing to evidence of third-party cancellation of programs in which the plaintiffs were scheduled to participate, "[i]njunctive relief is necessary to allow third parties to hire and/or fund Plaintiffs without fear of violating the Executive Order."

Third-party effects can expand the scope of a particularized injunction, in the sense of protecting those with whom the protected plaintiff engages in its protected capacity. For example, the injunction stopping enforcement of the Muslim travel ban as to the University of Hawaii protected actual and potential students; the injunction stopping enforcement as to HIAS protected actual and potential HIAS clients. Similarly, the court is correct that protecting these plaintiffs requires protecting those who do business with them.

But it did not follow that the injunction stopping the travel ban should protect other state universities, other immigration organizations, or other potential immigrants who have nothing to do with those plaintiffs. Similarly, it does not follow that this injunction must protect other training providers who have nothing to do with these plaintiffs or other entities who do not and would never do business with the plaintiffs. Giving relief to other grantees/contractors, who have nothing to do with the plaintiffs, is not necessary to give the plaintiffs complete relief.

Posted by Howard Wasserman on December 24, 2020 at 01:04 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Thursday, December 17, 2020

Departmentalism and the First Amendment

Last month I speculated that government officials might enact laws they know will not survive judicial review but that make good political and constitutional statements.

Case in point is the bill that New York Governor Andrew Cuomo signed Wednesday. The bill prohibits the state from selling or displaying "symbols of hate," defined to "include, but not be limited to, symbols of white supremacy, neo-Nazi 10 ideology or the Battle Flag of the Confederacy." And it calls for the enactment of measures to prohibit the sale of symbols of hate on the grounds of the state fair or other fairs receiving public funds. The first clause is fine, although largely symbolic (not sure how many New York office buildings are flying swastikas). The second is almost certain to be declared invalid if challenged in court; the prohibition is a viewpoint-discriminatory restriction on speech that will occur in a limited public forum.

Cuomo acknowledged that constitutional questions surround the bill and promised to work with the legislature on "technical changes" to correct potential constitutional problems, although I am not sure what small change will save the fairgrounds portion. Eugene Volokh points out that the law likely cannot be challenged at this point because it does not ban anything; it orders a state agency to enact regulations. Perhaps this is why Cuomo believes there is an opportunity for changes that avoid constitutional problems.

Cuomo explained his reason for signing despite the constitutional questions:

This country faces a pervasive, growing attitude of intolerance and hate — what I have referred to in the body politic as an American cancer,” Cuomo wrote in his approval message.

“By limiting the display and sale of the confederate flag, Nazi swastika and other symbols of hatred from being displayed or sold on state property, including the state fairgrounds, this will help safeguard New Yorkers from the fear-installing effects of these abhorrent symbols.”

So did Cuomo act in an "unconstitutional manner" or violate his constitutional oath? It depends on whether he believes the law is valid, apart from what courts might conclude. And the concerns Cuomo describes--intolerance and hate is a problem--can be part of the legislative and executive calculus. He seems to be trying to thread a needle here--signing a broad law for show, then attempting to dial it back to address constitutional concerns. But in a broad departmentalist sense, what he did is fine.

Is there a difference between what Cuomo and New York did here and what other states have done with strict abortion bans? None of these laws will survive judicial review under current jurisprudence. One difference is that the abortion bans are designed to create litigation with the hope/expectation that a different SCOTUS majority will change its constitutional interpretation and render the laws valid. I doubt Cuomo expects SCOTUS to change its views on hate speech, viewpoint discrimination, or public forums. Should that matter to how we evaluate a departmentalist executive?

Posted by Howard Wasserman on December 17, 2020 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Thursday, December 03, 2020

Lethal religion

The Third Circuit held in an unpublished opinion that a Delaware prison did not violate RLUIPA or the First Amendment in denying a Jewish prisoner the use of teffilin (leather boxes connected by long leather straps). The maximum-security prisoner has a history of mental illness, being violent, threatening suicide, and smuggling contraband. Teffilin might allow him to smuggle contraband in the boxes or to harm himself or others with the straps and the prison could not divert the resources and manpower necessary to monitor his use. A dissenting opinion argued that RLUIPA requires the state to show more than inconvenience, including that it would be impossible (not merely inconvenient) to authorize the additional overtime and work hours necessary to supervise the plaintiff while he prays.

Posted by Howard Wasserman on December 3, 2020 at 08:49 AM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Tuesday, December 01, 2020

Judicial departmentalism, writs of erasure, and the stupidity of political hackery

Tennessee state representative Jay Reedy has introduced a resolution calling on Congress "to enact legislation to prohibit the desecration of the United States flag." Reedy is being dragged by free-speech types.

As a matter of judicial departmentalism, Congress could constitutionally enact this law and Reedy and his compatriots can constitutionally urge Congress to do so. If Congress believes that the best understanding of the First Amendment is that it does not prohibit flag desecration, it can act on that understanding and enact legislation prohibiting flag desecration. And Reedy can urge that action. It would be a waste of time, a zombie law that could never be enforced because of existing judicial precedent (any attempt at enforcement likely would not enjoy qualified immunity). But Congress could pass such a law, if only for symbolic purposes. And Reedy may have good reason for wanting it to do so.

Here is why Reedy is stupid: A federal law prohibiting flag desecration already exists. Because judicial review does not erase laws, the provisions of the Flag Desecration Act of 1989, declared invalid in Eichman, remains on the federal books. So the problem is not that Reedy is urging Congress to enact an "unconstitutional law," since Congress can make its own judgments as to constitutionality, even if they differ from those of SCOTUS. It is that Reedy is urging Congress to enact a law it already has.

Posted by Howard Wasserman on December 1, 2020 at 03:12 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Saturday, November 28, 2020

More state universality (Updated)

A judge in the Eastern District of Kentucky enjoined a Kentucky executive order closing schools, finding it violated the First Amendment rights of a K-12 religious school. (H/T: Eugene Volokh). It is unsurprising in its analysis--the order was not generally applicable because it applied to K-12 schools but not preschools or colleges and universities. Whatever--I have given up reading these decisions as anything other than a sub silentio reading of the First Amendment to opt-outs for religious institutions and behaviors, no matter the societal costs. Update: The Sixth Circuit reversed.

More interesting to me is that the court made the injunction universal/non-particularized, prohibiting enforcement of the EO as to all religious schools, not only the plaintiff. The court did not use the words universal or non-particularized and did not acknowledge the ongoing scope-of-injunction controversy, while providing further evidence that this issue is not limited to challenges to federal law. I presume the key here is that the lawsuit was brought not only by the school, but also by the Attorney General on behalf of the Commonwealth. "Complete relief" for the AG must protect all members of the public.

In the Before Times of 2018, I spoke on universal injunctions before the meeting of the National Association of Attorneys General. I suggested they might be of two minds on the issue. On one hand, universality works against them as the defendants to be enjoined from enforcing many state laws. On the other hand, they want universality when suing the federal government to stpp. This is a third hand--the AG suing the Governor to stop enforcement of a provision of state law.

Posted by Howard Wasserman on November 28, 2020 at 12:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, November 23, 2020

Paying for vaccination and the First Amendment

I am intrigued by this idea making the rounds: Pay people (amounts thrown around are $ 1000-$1400) for getting the COVID vaccine. The plan achieves three things: 1) Ensures broader vaccination towards herd immunity (estimates say a 70% rate is necessary); 2) economic stimulus; and 3) support those suffering financial loss in the economic downturn.

A question: Would someone with a religious objection to vaccination have a First Amendment or RFRA claim? Is not receiving a widely available benefit, unavailable to you because of your religious beliefs, a violation of religious exercise? And, because that is all the rage these days, what would be the remedy if this is a violation? How would the Court level up--requiring the government give the religiously unvaccinated $ 1000? Or would the Court level down and prohibit the government from doing this?

Posted by Howard Wasserman on November 23, 2020 at 01:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Wednesday, November 18, 2020

Departmentalism and virtue signalling

A mini controversy erupted at Northern Iowa in October, when the student government refused to recognize a chapter of Students for Life, calling it a "hate group." The university President reversed the decision and recognized the group.

From a First Amendment standpoint, the President's decision was correct. Had the initial denial stood, SFL would have sued and won, obtaining an injunction, perhaps (limited) damages, and attorney's fees. But that prospect arose during student-government debates, when one student senator "opined that recognizing Students for Life out of concern that refusal could subject UNI to legal liability was an 'extremely facile and weak' defense that 'privilege[d] . . . money and . . . admins over student well-being.'”

The university did not share the student's position, for obvious reasons. But suppose it did? And how does that position--"we are going to do (what we believe to be) the right thing, judicial defeat be damned"--square with judicial departmentalism? My assumption has been that executive/legislative departmentalism ends when the certainty of judicial liability and attendant consequences (particularly attorney's fees) begins. But suppose government adopts that student senator's ideal that it should promote "student well-being" even at the threat of legal liability. That is, the government takes the position that it is better to promote its constitutional vision even knowing that vision will lose in court, in exchange for the goodwill of some constituency. This may be especially appealing to a public university. It can do the "right" thing in the moment (such as promoting the anti-racism cause or protecting students from offending messages)--and if the court forces the university to change, so be it. The university might benefit from that approach--"we can't do what you want because we will lose in court" becomes "we really tried to do what you wanted but those unelected federal judges got in the way." I am glib in the title in labeling this virtue signalling, but it would allow the university to keep some groups happy. Ironically given the new anti-racist context, this is why governments often welcomed judicial involvement in the early days of reform for schools and other institutions post-Brown--they could make the necessary changes, while blaming the courts.

Returning to the UNI case, the president might let the student government decision stand, then recognize SFL once the court orders it to do so; a win-win situation for the university, which keeps a segment of the student body happy while ultimately doing what the Constitution compels.

I heard about the UNI story while thinking about FIU, which has seen two public incidents of students posting social-media videos of them using using racial epithets while singing and dancing. And to hear undergrads tell it, such expression is quite common in the community. Students would like to see the university take action, while the university has recognized what happens if it does. In an interview, a student from FIU's Black Student Union brought up the 2015 case in which the University of Oklahoma expelled two students and revoked a fraternity charter over a viral video. That Oklahoma case is unique in that the students never challenged their expulsions; they (perhaps wisely) accepted the punishment and escaped the limelight rather than trying to become public free-speech martyrs. Oklahoma's actions might serve as precedent that a university could take a stand if it is willing to take its chances in court. On the other hand, I remain convinced that had the students sued, they would have won. A university that follows the OU model thus will encounter one student who sues and the game will be over. The separate question is how many schools would take that path?

To be sure, I am not urging this situation. I hope a university adopts the First Amendment position that ideas, even hateful and offensive ones, are protected and that government cannot engage in viewpoint discrimination. And I hope the university is willing to defend that view in the face of student anger. But there is more than a little wiggle room for those schools that do not. And then what happens?

Posted by Howard Wasserman on November 18, 2020 at 12:42 PM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, November 13, 2020

Retaliation or Evidence?

A weird case from MD Fla: The owner of an indoor farmer's market, a vocal opponent of masks, sues over enactment and enforcement of a county mask ordinance, in which the market was twice cited for having maskless customers. Among the claims was First Amendment retaliation--that the county singled the business out because the owner has spoken out against masks.

But this seems an odd retaliation case because his speech would appear to justify the county in enforcing against him because it provides evidence of a possible violation. Garden-variety retaliation is the owner of a business criticizes the mayor about something, so the county singles him out for enforcement of general code provisions, unrelated to the speech (e.g., the owner criticizes the mayor's redevelopment plans, so the county sends in the health inspector). But here, the speech that was retaliated against seems to provide cause, or at least evidence, for the enforcement decision. If county officials are trying to determine where to direct enforcement efforts and what businesses might not comply with the mandate, it is is reasonable to infer that the business owned by the outspoken critic of masks might violate the ordinance. It becomes problematic if his is the only business cited. But it is a stretch to claim retaliation that his is one, or even the first one, to be cited.

The case is at the 12(b)(6) stage, so more will be fleshed out later in the case.

Posted by Howard Wasserman on November 13, 2020 at 09:38 AM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Saturday, October 24, 2020

Declaratory judgment of protected speech

ElDfrdHUcAEQYGkThe Lincoln Project erected these billboards in Times Square, suggesting lack of concern about COVID by Ivanka Trump and Jared Kushner. Attorney Marc Kasowitz sent the Lincoln Project a two-paragraph letter stating the billboards are "an outrageous and shameful libel" and that if they "are not immediately removed, we will sue you for what will doubtless be enormous compensatory and punitive damages."

Needless to say, the statements on the billboard are not libelous, regardless of whether they are outrageous or shameful. And it is doubtful that Javanka will recover compensatory and punitive damages, let alone enormous ones. The billboards imply callous disregard for COVID deaths, which is non-actionable opinion. The quotation from Jared comes from a Vanity Fair article about the administration's COVID response. The full statement is that New York Governor Andrew Cuomo did not do enough to get PPE, so "his people are going to suffer and that's their problem." It is at least ambiguous whether "their" refers to Cuomo or "his people" (meaning New Yorkers); so even if it leaves a false impression, it does not rise to actual malice. The juxtaposition of their photos with body bags and death tolls is hyperbole. And, again, these are government officials.

Anyway, this letter is no different from the many bumptious letters that President Trump and other Republicans send to their human and bovine critics over plainly protected speech. They often give attorneys a chance to wave the banner of the First Amendment in their responses. But Popehat views these letters as a genuine threat to free speech when in furtherance of "abusively frivolous" defamation claims (which this letter is). So he offers a proposal:  The "'That's Not Defamation' Declaratory Relief Act:"

Under the statute, the Lincoln Project could send a demand to Kasowitz and the Kushners to withdraw the threat. If they don’t withdraw the threat, Lincoln Project can sue under the statute seeking a declaration that the speech is not defamatory. They can bring the equivalent of an anti-SLAPP motion immediately. If they prevail, they get an order that the speech is not defamatory ....AND they get attorney fees collectible from (this is key) either the Kushners or Kasowitz. If the judge finds the threat was frivolous, he or she can impose penalties on top of the fees. Would make legal threats have consequences.

White views attorneys as a big part of the problem. We expect people who believe they have been wronged to be angry and to lash out. We perhaps should expect more restraint from public officials and in the past we got it, but the human reaction is understandable. Attorneys are supposed to understand the law, to recognize the difference between hurt feelings and actionable defamation, and to talk their clients off the ledge, especially from throwing around money and power. An attorney who sends a letter such as this does the opposite; indeed, he exacerbates those money-and-power imbalances.

A declaratory judgment of protectedness is theoretically available under the current Declaratory Judgment Act, but defendants do not avail themselves of the option. Likely because most such letters are empty threats (Donald Trump has yet to sue over 2016 reporting of sexual-assault allegations) and the defendant's prefer avoid litigation, especially because attorney's fees are not recoverable under the current law. White's proposal makes the attorney demand part of the game.

There is an interesting Fed Courts angle to this. Under Skelly Oil, an action seeking a declaration that speech is constitutionally protected/non-defamatory does not arise under federal law, because the underlying enforcement action (a defamation suit) would not arise under federal law. It could only reach federal court on diversity. So if White wants these cases in federal court, the statute should include a jurisdictional grant that does not rely on the Well Pleaded Complaint Rule.

Posted by Howard Wasserman on October 24, 2020 at 12:51 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Monday, October 05, 2020

Thomas and Alito defend Kim Davis

SCOTUS denied cert in Davis v. Ermold, which held that Kim Davis did not enjoy qualified immunity in refusing to issue marriage licenses to same-sex couples because it offends her religious beliefs. Justice Thomas, joined by Justice Alito, issued a cri du ceour respecting the denial of cert., lambasting Obergfell as creating a "novel constitutional right" having "ruinous consequences for religious liberty."

Three things.

First, Thomas proceeds as if Smith no longer is good law and that the First Amendment demands an opt-out from a generally applicable law or satisfaction of strict scrutiny. He cites Smith in a footnote, but to argue that Obergefell is more illegitimate because not done through the legislative process. This seems disingenuous. I doubt that if Kentucky had legalized SSM by statute with no religious accommodation, Thomas would be more willing to accept those ruinous consequences for religious liberty.

Second, I am waiting for a good argument for why having issue licenses to same-sex couples is more a violation of religious liberty than having to issue licenses to inter-racial couples or inter-faith couples. All can be, and have been, subject to religiously based objections by some people. Would Thomas be staking out this position if someone denied a marriage license to Noah Cohen and Mary-Margaret O'Reilly?

Third, whatever one believes about a private baker or photographer, it should not extend to a government official performing her official functions. Her job as a public employee is to carry out the law. If that law offends her religious or other sensibilities, then she should quit. We would not allow someone to enlist in the Army and then refuse to fight in a war; we would not allow an atheist police officer to refuse to conduct traffic at a church. There is no reason to allow a clerk to refuse to issue a marriage license.

Posted by Howard Wasserman on October 5, 2020 at 02:45 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Sunday, October 04, 2020

Tucker Carlson: Not to be Treated as Making Factual Statements (in Former Model's Defamation Case)

In McDougal v. Fox News Network, 2020 WL 5731954 (Sept. 24, 2020), Fox News essentially argued that Tucker Carlson was not to be taken seriously, and a federal judge agreed. Here's the background to the court's dismissal in the defamation case brought by former actor-model Karen McDougal.

National Enquirer CEO David Pecker, on behalf of parent company American Media, Inc., purchased the rights to a story about an alleged 2006-2007 affair between former model and actress Karen McDougal and Donald Trump. Trump’s attorney Michael Cohen then purchased the rights from American Media, Inc. This purchase was allegedly a “catch and kill” operation—that is, the Enquirer’s parent company American Media, Inc. bought the rights to McDougal’s story to prevent her from revealing damaging information about Donald Trump. News of this catch and kill operation (and another similar one) came out in the 2018 investigation of Michael Cohen on charges of violation of campaign finance law. Cohen ultimately pleaded guilty.

In the meantime, Fox News host Tucker Carlson aired a segment on December 10, 2018, shortly before Michael Cohen’s sentencing, in which he described the conduct of Karen McDougal and the other woman who had accused Trump of infidelity as follows:  “Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn't give them money. Now, that sounds like a classic case of extortion.”

The district court held that Carlson’s statements were non-actionable hyperbole that no reasonable viewer would treat as factual. The court reached this conclusion by analogizing the case to a series of prior decisions in which courts had treated similar statements as exaggerations for effect rather than accusations of crime, especially when the statements involved contested political disputes. The court also interpreted the “extortion” statement in the context of Carlson’s show, “Tucker Carlson Tonight.” The court noted that the stated purpose of the show is to “challenge[ ] political correctness and media bias,” and its “general tenor” tips viewers off that Carlson “is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.”  The court even suggested that the commentary could be viewed as “bloviating” and further noted Carlson’s disclaimer that he was assuming what Michael Cohen said was true “for the sake of argument,” which would put his listeners on notice that they were not dealing with “a sober factual report.” Finally, the court posits “this overheated rhetoric is precisely the kind of pitched commentary that one expects when tuning in to talk shows like Tucker Carlson Tonight, with pundits debating the latest political controversies.” The court therefore held that the statements were “not factual representations and, therefore, cannot give rise to a claim for defamation.”

As an alternate basis for dismissal, the court also held that McDougal, a public figure, had failed to plead Carlson made his statements with reckless disregard for their falsity (that is, with actual malice). Allegations that Carlson was personally and politically biased in favor of Trump—as allegedly evidenced by Trump’s “47 Tweets” in support of Carlson--were insufficient grounds from which to infer actual malice.

[For a somewhat similar case suggesting Rachel Maddow’s “colorful commentary” on a news story was not actionable as defamation based in part on the fact that reasonable viewers wouldexpect her to use subjective language that comports with her political opinions” Herring Networks, Inc. v. Maddow, 445 F. Supp.3d 1042 (S.D. Cal. 2020)]. [This last part was added after my original post: I found the Maddow case a few hours later while doing further research on recent defamation cases.--LL]

Posted by Lyrissa Lidsky on October 4, 2020 at 01:32 PM in First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (1)

Sunday, September 27, 2020

Proving anti-Jewish discrimination

Eugene Volokh unearths a 10-year-old S.D.N.Y. decision in an action alleging co-workers in a government job referred to him as a "dumb Jew" or "fucking Jew."

Eugene focuses on one defense--that the plaintiff was not Jewish because his mother was not Jewish, he had not converted, and he was not practicing. The court rejected the argument, deeming it not the court's place to define who is Jewish and finding it sufficient that the plaintiff defined himself as being of Jewish "heritage," even if not practicing. One of Eugene's commentators nominates this as the new definition of chutzpah--calling someone a "fucking Jew," then arguing that he is not Jewish.

The rest of the decision is interesting apart from the chutzpah. The court denied summary judgment on a Title VII claim against the city. But the court dismissed a § 1981 claim, because the plaintiff alleged religious rather than racial discrimination. This seems like a pleading error. Courts will treat Judaism as more than a religion for § 1981 purposes. And that would have been an appropriate approach in this case, where the plaintiff did not practice Judaism and focused more on his "heritage" than his religion.

The court  granted summary judgment on claims against several harassing co-workers. Although there was evidence the co-workers had created a hostile religious environment, they were not state actors because they were not his supervisors. This is incoherent. The under-color question should be whether the defendant used his official position to engage in unconstitutional conduct and whether that position made the unconstitutional conduct possible. That should be satisfied here--the unconstitutional conduct is the religiously motivated harassment and they could engage in that harassment only because of their official positions in government. Harassment does not require a supervisory relationship, so it should be irrelevant to the under-color/state-action analysis.

Posted by Howard Wasserman on September 27, 2020 at 01:36 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, September 14, 2020

Dorf on ending the anthem at sporting events

Michael Dorf considers the argument, floated by former NBA coach Stan Van Gundy, for eliminating the national anthem from sporting events. We do not do it at any other public or entertainment gatherings (movies, plays, concerts); it is not the type of event requiring public ritual (compare, e.g., a government proceeding); and it is creating more problems than it solves. It also is an historical accident--a band played it spontaneously during the Seventh Inning Stretch at a game in the 1918 World Series (in the closing month of World War I)--that caught on.

I confess that I enjoy the anthem as part of the game. But I see Dorf's and Van Gundy's point.

Posted by Howard Wasserman on September 14, 2020 at 09:58 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (18)

Friday, September 11, 2020

Cancel culture as a circle of baseline hell

Thinking out loud.

Skip Bayless' comments on Dallas Cowboys quarterback Dak Prescott ("being quarterback of the Cowboys is too important a position for someone who struggles with mental-health issues, or at least not for someone who wants to talk about those issues") are so stupid that they are unworthy of a response. They are noise--an "inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others." They certainly are too stupid to have been spoken in a media outlet that purports to be a forum for serious discussion, even of sports. And they suggest that Bayless is an unserious person.

Will Bayless be "canceled"--fired, suspended, or whatever? Fox Sports issued a statement disagreeing with Bayless' comments and saying they had "addressed" the issues with Bayless. I expect that to end it--no cancellation. And I do not expect Bayless to apologize or otherwise address it.

The separate question is whether Bayless should be cancelled, to which critics of "cancel culture" will say no. But I wonder if those who oppose cancelling someone for bad speech are trapped in a form of Rick Hills' baseline hell-the inability to establish a neutral baseline from which to analyze a problem. I presume that even the strongest critic of cancel culture would agree with the following:

    1) A private media organization could decide that it should not hire Bayless because it does not like his views on mental illness.

    2) A private media organization is not obligated to pay money and provide a platform to any person, so it can decide who it does or does not wish to give a platform based on the content of his speech and whether the organization shares, agrees with, and wishes to promote those views.

    3) The decision not to hire Bayless because of his absurd views would be a valid exercise of the organization's expressive rights--a decision about with what people and views it wishes to associate.

If the above is true, then firing Bayless should not raise different issues or problems. Either is an exercise of the media organization's judgment as to the views it wants to promote and with which it wants to associate. It would require a distinction between beginning and continuing--that ending a relationship because of disagreement with speech is different than declining to begin a relationship because of disagreement with speech. But that is a baseline problem--it rests on a belief that the starting point (on the platform or not on the platform) makes a substantive difference.

Similarly, sponsors could make the three decisions described above as to whether to sponsor Bayless' program and decline to buy time, from which it follows they could pull their money after-the-fact. To say otherwise requires the same distinction-without-a-difference between ending a relationship because of speech and declining to start that relationship because of speech.

I also wonder if we can distinguish cancelling Bayless for his speech from cancelling the Chicks or Mel Gibson or a professor for his speech. With the latter, we are cancelling from a primary role (making movies, making music, teaching classes) because of their out-of-role speech. But cancelling Bayless would reject him from his primary role because of his behavior in that primary role. Does that make a difference?

Posted by Howard Wasserman on September 11, 2020 at 10:46 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (14)

Thursday, September 03, 2020

Universality, facial invalidity, and the First Amendment

I am a couple of days late to this Third Circuit decision declaring invalid as-applied, but not facially, the age-verification, labeling, and record-keeping requirements of the Child Online Protection Act. But the court reversed on scope-of-injunction, limiting the bar on enforcement to the named plaintiffs.

Two bits of good news. The court dropped a footnote that "nationwide" is the imprecise term, citing Justice Thomas' Trump v. Hawaii concurrence that the problem is not geographic scope but "universal character." And the court ended in the right place--with an injunction particularized to the individual plaintiffs.

The bad news is how it got there. These plaintiffs--journalists, commercial photographers, and producers of sex-education materials--were niche actors and different from typical players in the pornography industry. Given their unique facts and positions, the remedy protecting them should not protect differently situated actors. But that should not matter. Even if non-party pornographers were similarly situated to the plaintiffs, absent class certification, the injunction should not protect beyond the plaintiffs; it is unnecessary to accord complete relief or to remedy the violation of those plaintiffs' constitutional rights.

One point of confusion is that two associations--the Free Speech Coalition and the American Society for Media Photographers--were plaintiffs in the case, although their claims were dismissed for lack of associational standing. An injunction protecting an associational plaintiff can become broader, as in protecting the association it must protect its members (Michael Morley describes this as a de facto class action). But this injunction never protected the associations, who lacked standing. But that proves the point. There is no reason to consider the organizations' standing if the injunction protects them at the end of the day. Particularity in the injunction is more consistent with the other rules of civil litigation.

Posted by Howard Wasserman on September 3, 2020 at 03:25 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, August 29, 2020

Palin lawsuit against New York Times continues

Sarah Palin sued The Times over an editorial describing a link between the shooting of Gabby Giffords and Palin's PAC's publishing a map featuring gun sights "targeting" Democratic districts. The case has a convoluted procedural history. The district court held an evidentiary hearing on a 12(b)(6) motion seeking information to aid the plausibility analysis, then granted a 12(b)(6); the Second Circuit held that the evidentiary hearing was improper, then reversed the order granting the 12(b)(6).

The district court on Friday denied summary judgment to both parties. Palin had moved, arguing that stare decisis on constitutional issues is less rigid and that actual malice should not apply in the changed factual and media circumstances of the 55 years since New York Times. The court made quick work of rejecting that argument, explaining the difference between horizontal and vertical stare decisis and dropping the cute line that "binding precedent . . . does not come with an expiration date."*

[*] Usually.

The court denied the defendants' motion. It concluded that a reasonable jury could find the editor (and thus the paper) acted with actual malice as to alternative, defamatory meanings of the words in the editorial and actual malice as to the falsity of that alternative meaning. This is an unusually (although arguably appropriately) forgiving view of actual malice. The court sounds at several points as if it believes the evidence favors the defendants and does not believe (by clear-and-convincing evidence) they acted with actual malice. But the court is conscious that the weighing of evidence is not appropriate for summary judgment and must be the subject of a trial.

Posted by Howard Wasserman on August 29, 2020 at 02:41 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, August 28, 2020

3d Circuit reveals division on union clawbacks

After Janus v. AFSCME declared invalid union agency-fee statutes as violative of the First Amendment , the next question became whether the non-members could clawback frees from within the past 2-3 years (within the statute of limitations). The Seventh, Second, Sixth, and Ninth Circuits said no and without dissent, relying on some form of good-faith defense to § 1983--because the unions believed the fees permissible under state law and judicial precedent.

The Third Circuit joined the chorus in an action against the Pennsylvania Teacher's Union, but  revealed the first deep divides. Judge Rendell adopted the prevailing view of a good-faith defense, along with principles of equity and fairness, to preclude liability where a private actor relied on prevailing law. Judge Fisher concurred in the judgment, relying on a historic principle that that judicial decisions declaring laws invalid or overruling precedent did not generate retroactive civil liability. And Judge Phipps dissented, arguing that neither defense existed at common law, so the actions to recover past fees should proceed.

Curious to see if this issue makes its way to SCOTUS before the Court fully pursues qualified immunity.

Posted by Howard Wasserman on August 28, 2020 at 05:25 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, August 27, 2020

Bad Legal Takes and the writ of erasure fallacy

Moderate Mentality reminds us that the federal flag-desecration law remains on the books, because a decision declaring a law invalid and unenforceable does not erase it from existence. So, yes, MM, federal officials could use closed-circuit TV and facial-recognition software to try to hold people accountable. As long as those officials do not mind losing in court and being made to pay damages and attorney's fees.

Posted by Howard Wasserman on August 27, 2020 at 06:27 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (11)

Wednesday, August 26, 2020

NBA players try a different peaceful protest (Updated Aug. 28)

Vice President Pence's RNC speech this evening was to include criticisms of professional athletes for kneeling during the National Anthem. The criticism has always been disingenuous nonsense--critics demand peaceful protest, then tell the players they are peacefully protesting the wrong way.

So the players will try something new tonight: Not playing. The Milwaukee Bucks announced a boycott of this evening's Game 5 of their opening-round series. The Boston Celtics and Toronto Raptors discussed doing the same in their second-round game scheduled for Thursday. So the NBA canceled all games. No word on whether the Milwaukee Brewers (who have a home game Wednesday evening) or MLB will follow suit, although I doubt it. Update: I spoke too soon and happily stand corrected. The Brewers canceled their game. Other MLB teams are discussing doing the same, including the Mariners, who have the most African American players in MLB.

So what will be wrong with this form of peaceful protest? Does not playing disrespect veterans and troops? Is it wrong to politicize sports? Will Pence change his speech to decry cancel culture while calling for boycotts of this "politicized" NBA? Will everyone admit that the objection is to the message--that police are behaving badly--and nothing more neutral than that? Stay tuned. (Updated: No way on that last one).

August 28 Update: The NBA playoffs will resume Saturday. The league and union agreed to establish a social-justice coalition focused on voting, civic engagement, and criminal-justice and police reform. It also calls on teams that own their arenas to work with local election officials to convert the arena into a polling place. It is interesting that the push for racial justice has swerved into voting rights--recognition that voting rights are as endangered and that everything else happens only if people can vote and vote for officials who will pursue that agenda.

Posted by Howard Wasserman on August 26, 2020 at 05:23 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (14)

Tuesday, August 25, 2020

Nomenclature and judicial review (Updated)

The erroneous nomenclature that courts use in describing constitutional review contributes to common misunderstanding. Case in point: The Fourth Circuit decision affirming the convictions of two white-supremacist Charlottesville protesters under the Federal Anti-Riot Act, while declaring invalid certain portions of the statute as inconsistent with Brandenburg. The court talks about "invalidating" the statute, while commentators speak of the court "striking down" or "throwing out" the law, in whole or in part.

But the court did not do anything to the statute or those provisions of the statute--they remain on the books and they remain part of federal law, not erased or thrown out.

A more accurate description of what happens also would be cleaner: The court held that those provisions could not be enforced against these plaintiffs because doing so would violate their First Amendment rights, then affirmed the convictions because their conduct violated other provisions that could be enforced consistent with the First Amendment. The same is true of discussions of severability. The court does not sever some provisions from others--eliminating some and keeping others--because the entire thing remains on the books. I suppose what we call severability could be a way of asking whether the court can enforce some provisions and not others or whether the Constitution prohibits enforcement of all the language in the statute. Or it could be framed as Henry Monaghan described overbreadth--the presence of some constitutional defects means the statute cannot be applied, because there is a right to be convicted only under a constitutionally valid statute.

Either way, it would be cleaner to think about courts applying or not applying some provisions, rather than courts erasing them from existence.

Update: Zachary Clopton (Northwestern) reminds me that my discussion sounds in the debate between Justices Kavanaugh and Thomas described in a footnote in AAPC, which I wrote about after the decision and which Zach wrote about in Yale J. Reg. I think Thomas would agree with the approach I describe. Kavanaugh is correct in AAPC that future enforcement of the invalid provisions will be barred, at least in the Fourth Circuit, as a matter of precedent.

On further thought, this cases illustrates why injunctions should be particularized and why precedent does the real work. The constitutional issue arose in a government-initiated enforcement action--a criminal prosecution against these individuals, who then attempted to defeat enforcement by arguing that the law is invalid and thus cannot be enforced against their conduct. No one believes that the judgment in this case applies to anyone other than the defendants or that the government violates the judgment if it attempts to enforce the "invalid" provisions against someone else; in fact, the only thing the judgment does here is affirm their convictions. The prospective non-party effects of this decision come from the opinion, operating through precedent and stare decisis to require any court within the Fourth Circuit to dismiss a future attempt to enforce those provisions. So I return to my argument that a pre-enforcement injunction anticipates the enforcement judgment--and if the latter is limited to the parties, so is the former.

Posted by Howard Wasserman on August 25, 2020 at 03:55 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, August 21, 2020

After the Golden Age: The Fragility of the Fourth Estate

The period between 1964 and 1984 was the Golden Age of press cases in the United States Supreme Court. In that twenty-year span, the Court decided more landmark press cases than ever before or since. The press cases decided during this Golden Age contain some of the US Supreme Court’s loftiest rhetoric about the role the press plays in our democracy, and when read as a whole, the cases evince a strong commitment to the idea that the press serves as the Fourth Estate—the unofficial branch of government tasked with checking the other three. Though the Court never wholly embraces the terminology of the Fourth Estate, its foundational decisions contemplate the press playing a vital role in our constitutional scheme of separation of powers. This role makes the press the watchdog that informs us what the legislative, executive, and judicial branches of government are up to and continually replenishes the stock of news – real news – that enables informed public discussion and rational public policy. 

As I hope to show in an article I've been working on for some time now, the Court during the Golden Age implicitly recognized that the press was a powerful institution that could protect its role in fostering democratic discourse between government and its citizens. Although the Court recognized in dicta the special role played by the press in democracies, the Court was reluctant to grant special privileges to an institution that could leverage its power and resources to fight against incursions by the official branches of government. Thus, the Court granted the press (and often simultaneously individual speakers) strong constitutional protection from direct government censorship, such as prior restraints or compelled publication, but was reluctant to grant affirmative rights such as access to information in government hands (with press and public access to criminal trials being a notable exception).

At the time, the Court had before it impressive examples of the press performing its role of checking government abuse of power and informing citizens without any assistance from the government. The press had the resources and will to deploy investigative expertise, leverage public opinion, and pursue legal challenges to fend off attempts by the legislature or executive branches to limit press power. Moreover, the press of the day played a critical role as an intermediary, facilitating communications between and among the legislative, executive and judicial branches with the public.  In light of this, the Court's reluctance to grant "special rights" or exemptions from generally applicable laws to the media is understandable. It explains how the Court could lionize the press in its rhetoric but still reiterate that the First Amendment provided the press no rights beyond those granted to the public: the press of the Golden Age simply didn't need government assistance to fulfill its democratic functions. Just as the official branches of government must leverage their political power to win battles in the public arena, so, too, did the Court expect the press to leverage its power and resources to protect its ability to function as the Fourth Estate. 

What about now? The press of today bears little resemblance to the press of the Golden Age, and the assumptions about press power underlying the Supreme Court's Golden Age press cases deserve renewed scrutiny.

The institutional press is no longer the powerful juggernaut of the Watergate era, united by a set of professional norms and capable of uncovering corruption at the highest levels of government by deploying sustained and expensive investigative expertise. Instead, the institutional press has been beset by devastating competitive and economic forces. Advertisers have fled. Just since 2008, newsrooms lost half their employees--and that was BEFORE the pandemic, which promises further newsroom carnage. Traditional media continue to face a crisis of legitimacy, with public opinion about their performance split along partisan lines. The public increasingly turns to social media speakers rather than traditional media for information, further eroding traditional media’s roles as gatekeepers and translators of news and information. At the same time, the President of the United States has conducted a sustained campaign to undermine the credibility of traditional news media, branding them "fake news" and the "enemy of the people" in over 1,900 anti-press tweets between 2015 and 2019. He has also sued journalists for libel, has tried to bar critical reporters from White House press briefings, and has issued executive orders designed to silence other critics. (To be fair, the prior President wasn't great for the press, either). Meanwhile, money to hire media lawyers to litigate these issues is in short supply.

What seems clear is that traditional media's ability to play the role of Fourth Estate is declining, and there is no obvious successor stepping into the breach. Instead, we are faced with a diminishing supply of reliable information about what our government is up to, with serious consequences for our democracy.

In my new article, I expect to argue that at a minimum, this decline should lead us to reexamine the assumptions underlying the Golden Age press freedom cases. If the press is less able to use "self-help" to maintain the separation of powers”\ between itself and the official branches of government, than perhaps it is time to impose more affirmative constitutional obligations on government officials to enable an institution or individuals to play a watchdog role. Perhaps some "special rights" must be accorded to those willing and able scrutinize our officials and provide reliable information about what they're up to. Even though dicta in Roberts Court decisions suggests skepticism of, if not outright hostility to, the press, our democracy depends on an informed citizenry armed with facts and not just opinions about those who govern them.  From that perspective, analysis of whether the First Amendment might play a role in shoring up today's Fourth Estate seems overdue. 

Posted by Lyrissa Lidsky on August 21, 2020 at 05:15 PM in Constitutional thoughts, Current Affairs, First Amendment, Lyrissa Lidsky | Permalink | Comments (6)

Monday, August 10, 2020

Hate Speech Returns to Campus

Students are returning to campus soon, and with them they are sure to bring more controversies over where the lines are drawn between free speech and speech that may be censured and censored.

Just last week, a controversy broke out at Princeton about a student's use of the n-word in social media. A white Princeton student responded on Facebook to a Black Fordham graduate who posted "We know you hate n---s" by saying that the Black graduate had gone to prep school and could not "speak for the n---s." This incident followed publication by a Princeton classics professor of an op-ed questioning some of the racial justice proposals made in a faculty petition to Princeton administrators; in that op-ed, the Professor called one Black student group a "terrorist organization."

Inevitably, Princeton administrators issued statements deploring the speech used in both incidents. With regard to the white student's use of the n-word, administrators branded it “contrary to Princeton’s commitment to stand for inclusivity and against racism” but said that the speech nonetheless did not violate university policy. Similarly, the President of Princeton condemned the classics professor's labeling of the student group as a terrorist organization, calling it "irresponsible and offensive," but the President said the speech was nonetheless protected by university policy.  

Many students rejected these conclusions on the grounds that a university committed to inclusion cannot tolerate hate speech. Their views seem to mirror those found in a recent survey:  81 percent of students on college campuses said that colleges should not punish offensive speech, but when asked whether colleges should restrict racial slurs, 78 percent said yes.  Moreover, seventy-one percent of students surveyed believed colleges should be able to restrict the wearing of costumes that involve racial or ethnic stereotypes. 

Unlike other campus free speech controversies, Princeton's are not governed by the First Amendment, because Princeton is a private university. State universities like mine are forbidden by the First Amendment from punishing protected speech, but Princeton is not. Nonetheless, Princeton seems to have adopted policies that protect free speech on its campus to the same extent the First Amendment does.

In my experience, many students and faculty, among others, are often surprised to discover the First Amendment protects a great deal of deeply offensive and even hateful speech. Indeed, the Supreme Court has stated: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Though many countries criminalize hate speech—that is, speech that demeans or dehumanizes a person or group based on their race, religion, ethnicity, sex, or sexual orientation—hate speech simply is not a legal category in the United States. Hate speech uttered within a classroom can be punished because it substantially disrupts the learning environment, but hate speech uttered by students speaking as citizens in public spaces—including online spaces--usually cannot. In that situation, state universities can only punish a student’s hate speech if it happens to fall into a recognized category of speech that is unprotected by the First Amendment. These categories include incitement, threats, defamation, discrimination against an individual, or fighting words.  The Princeton student’s Facebook post occurred in an online conversation about a public issue and did not fall into any of these categories. Had he been a public university student, the First Amendment would tie the hands of administrators seeking to censor or discipline him, leaving them to resort to counterspeech asserting that his speech did not comport with their values.

To many students today, the First Amendment's recommended response to hate speech is no longer satisfactory. Throughout our history, the First Amendment has asked us to put up with speech that evokes strong emotions based on a belief in the protective and healing power of discourse and the ability and willingness of citizens to come together and speak out against hate. What’s happening now in our country—with engaged students and other citizens speaking out and marching against racist violence, racist policies, and racist iconography—is exactly what our First Amendment envisions. In the long run, counterspeech is supposed to drown out hateful voices and sweep away repugnant ideas through the process of public discourse. 

Yet, to many critics, the victory of counterspeech over hate speech seems uncertain and counterspeech seems an insufficient remedy for the emotional wounds that hate speech causes. What they would prefer is an authoritative declaration that some speech, and some thoughts, are outside the bounds of civilized discourse and need not be tolerated. They take little solace from the arguments that I find compelling: that we have chosen this path because the power to censor is more often used to protect the powerful than the powerless, and we trust citizens more than we trust our governments to decide which ideas will prevail in the competition for adherents. Moreover, consensus formed through public discourse lends legitimacy to policy outcomes. Critics of the counterspeech cure would seemingly reject the lofty rhetoric of Justice Louis Brandeis, who once wrote that the First Amendment presumes “that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.” From their perspective, "evil counsels" have for too long drowned out good ones, and government power should be used to drive out the evil counsel of racists for good. The problem with this stance is that it depends on the benevolence and good faith of our government leaders or administrators in deciding whose views are so far out of bounds they can't be tolerated. Such benevolence or wisdom or restraint is certainly not something I take for granted, especially not now. 

Nevertheless, I know that in the war of generations, the younger always wins.  I just wonder what victory looks like.

Posted by Lyrissa Lidsky on August 10, 2020 at 01:25 AM in Constitutional thoughts, Culture, Current Affairs, First Amendment, Lyrissa Lidsky, Web/Tech | Permalink | Comments (9)

Saturday, August 08, 2020

Podcasts on cancel culture

Since I have been writing about cancel culture this week, here is an episode of Noah Feldman's Deep Background podcast, featuring Osita Nwanevu of the New Republic discussing cancel culture and why it is not a threat to free speech. On that note, Nwanevu debated Yascha Mounk on the subject on Slate's The Gist.

Posted by Howard Wasserman on August 8, 2020 at 02:19 PM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Thursday, August 06, 2020

Anti-SLAPP fee-shifting in federal court

I have argued in prior posts that the solution to SLAPP suits is not the  heightened standards from state laws (which cannot apply in federal court) but attorney fee-shifting. The paradox has been that most fee-shifting provisions apply to actions disposed of under the statutory standard, but not under a different standard. Thus, if the state statutory standard does not apply and the case is resolved on a simple 12(b)(6), the fee-shift does not apply.

But not so with the Florida anti-SLAPP law, according to Judge Martinez of the Southern District of Florida. Florida law provides for fees for any action that is "without merit" and based on constitutionally protected speech. The determination that the action is without merit can be made under any procedural device, such as 12(b)(6) (as in this case). In other words, the statute is a garden-variety fee-shifting provision serving substantive policy ends, the same as other fee-shifting provisions held to apply in federal diversity actions. So an action dismissed on a 12(b)(6) can provide the basis for an award of fees.

This is unique to Florida's anti-SLAPP statute. But it produces a conclusion that balances the requirements of the REA/Erie/Hanna against First Amendment interests.

Posted by Howard Wasserman on August 6, 2020 at 03:38 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

More cancel culture and counter-speech

Efforts continue to define and defend criticisms of cancel culture, beyond "I know it when I see it" or "Canceling for me but not for thee." Jonathan Rauch takes a crack in Persuasion (free registration required), identifying six warning signs, the presence of some or all suggest canceling:

• Punitiveness, in that the goal or effect is to cost a job or other opportunities.

• Deplatforming, which includes disinvitations, demands for retractions, and shout-downs.

• Organization

• Secondary Boycotts

• Moral grandstanding, through "ad hominem, repetitive, ritualistic, posturing, accusatory, outraged" rhetoric.

• Truthiness

Punititiveness perhaps helps. But there must be circumstances in which someone's deeds or expression are so egregious that calling for his removal from a job or position or platform should be fair game, such that non-governmental actors can decide to remove him from their circle of discourse and engagement. The person remains free to speak, but private persons need not listen, nor provide him with a platform. And private companies can choose not to retain him as an employee, private consumers can choose not to do engage in business with him, and people and entities in general can elect not to associate with him. If that is permissible, then the dispute is not punitiveness or deplatforming, but where to draw the line. We can identify ridiculous overreactions. But some situations are not ridiculous overreactions.

Five of Rauch's categories involve forms or manners of expression and thus of counter-speech. These purportedly neutral rules perpetuate the problem of the preferred first speaker--they impose unique limits on the type of speech regarded as "legitimate" when used by those who object to a speaker. For example, Rauch does not call for an end to all "ad hominem, repetitive, ritualistic, posturing, accusatory, outraged" rhetoric, only that used in response to someone. He rejects shout-downs, thus obligating counter-speakers to engage civilly and openly through dialogue in a way that original speakers are not obligated to do. A categorical line between organizing (rallying many people to a cause, which is somehow a bad thing) and persuading imposes an obligation of reasoned discourse not placed on an original speaker.

Rauch does treat everyone the same as to truthiness--it is as problematic when President Trump lies and distorts as when left-leaning groups lie and distort. But then we are not talking about cancel culture as some unique threat to free speech. The threat is lying, whoever is lying and wherever that person stands in the exchange process.

These and other efforts bring me back to Chief Justice Rehnquist in Hustler v. Falwell: "If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description [cancel culture] does not supply one."

Posted by Howard Wasserman on August 6, 2020 at 12:11 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Tuesday, August 04, 2020

Debate: Free speech v. Cancel culture (Updated)

Ken (Popehat) White for the position that "cancel culture" is a cynical ploy to undermine counter-speech v. Greg Lukianoff (of the Foundation for Individual Rights in Education) for the position that the real source of protection comes from "free speech culture," which means a culture of accepting other people's views and going along for the ride.

Unsurprisingly, I agree with White. Critics of cancel culture are imposing norms on "more speech" that they do not impose on the speech being rebutted and are essentially insisting that more speech not be too harsh. Lukianoff makes the good point that a culture of free speech is as important as formal legal protection for free speech. But he never deals with White's argument that much of what is derided as cancel culture is counter-speech, including many of the outrageous examples he offers. Lukianoff emphasizes the heralded legal principles "Sticks and stones" and "to each his own," which are possible responses to obnoxious speech. But there is no reason they should be the only responses to obnoxious speech.

Lukianoff kind of proves White's point with his requests: Don't call people hypocrites, welcome temporary allies, and don't lump free-speech advocates (himself or Nadine Strossen) with cynical partisans (Charlie Kirk). The last is well-taken, although most serious free-speech advocates do not do that. But the last is inconsistent with the first, which seems to require us to accept Charlie Kirk's support for free speech rather than recognizing its hypocrisy. In any event, Lukianoff's argument is about policing speech, about declaring some expression out of bounds. His arguments never answer that concern.

Update: As if on cue: Kelly Loeffler--Senator and senatorial candidate from Georgia, co-owner of the WNBA Atlanta Dream, and critic of BLM and kneeling basketball players--cries "cancel culture" because WNBA players wore t-shirts supporting her opponent in the coming election. It is difficult to imagine anything more central to the First Amendment than speech saying "Vote for X." Can it possibly lose protection because spoken in response to Loeffler's statements about about BLM and the flag?

Meanwhile, Auburn is investigating a (non-tenure-track) faculty member for "fuck the police" tweets and a Republican congressman is calling for him to be fired for anti-police hate speech. Proving White's point that there are hypocrites and grifters.

Posted by Howard Wasserman on August 4, 2020 at 02:25 PM in First Amendment, Howard Wasserman | Permalink | Comments (7)

Sunday, August 02, 2020

Sandmann: Bringing the Dream

Nicholas Sandmann settled his defamation action against the Washington Post this week, and he is not done yet.

Sandmann's defamation suits arose after several media outlets caricatured him as a smirking racist based on a video clip of him wearing a Make America Great Again hat and watching a Native American man beating a drum amidst a chaotic crowd at the Lincoln Memorial. The video clip went viral after it was posted by someone at the scene, and the media picked it up for repetition and commentary. Their spin on Sandman's supposed smirk was supported by statements from Nathan Phillips, the Native American man at the scene. The viral video spurred viral outrage. The problem was that the video as a whole, which was readily available, tended to dispel the narrative gleaned from the clip of Sandmann and Phillips. Viewing the video as a whole, Sandmann did not appear to be in a confrontational posture vis-a-vis the Native American man or others at the scene but instead seemed to be in the posture of an awkward teenager watching a curious scene with his peers as a group of Black Hebrew Israelites hurled insults and invective at them. 

Sandmann was fortunate to procure the counsel of famed attorney L. Lin Wood, who filed defamation suits against ABC News,  NBC News, CBS News, the New York Times, Gannett, Twitter, and Rolling Stone; having already settled with CNN and the Washington Post, Sandmann is still seeking damages in the aggregate of over $750 million, and he has threatened additional lawsuits. 

As a lawyer, I hesitate to put too much significance on any case before it has made its way into a published appellate opinion. Until then, it may very well be an anomaly. This case has drawn extensive publicity and partisan commentary because it has come to represent a strike against the perceived arrogance and bias of the mainstream media and the slipshod investigative habits old and new media actors employ in the digital era.  On its face, the video clip of Sandmann, together with statements made by the Native American man at the scene, seemed to confirm what many liberal partisans seem to believe: Anyone who wears a MAGA hat must be a heartless white supremacist. It is clear that many media outlets took the clip on its face and republished it and drew conclusions from it without watching the whole video, which became readily available at a rarely early juncture in the whole controversy. Conservative partisans have attributed the media's rush to judgment to bias at a minimum and possibly malice, but it is just as likely to be a result of laziness and a desire not to fall behind digital competitors. Regardless, Sandmann's settlements have led some to call for more defamation lawsuits to hold media accountable (and may be part of a larger trend of plaintiffs using defamation suits strategically as vehicles for political messages, but that's a story for another day, Devin Nunes).  

The partisan lenses through which the Sandmann cases are being refracted obscure the interesting legal questions the cases raise. One important question is about what's required to prove actual malice in this case, but another is this: under what conditions does a person who "goes viral" by being in the wrong place at the wrong time become a public figure for purposes of defamation law, and does it matter if that person is a child? The distinction between public figures and private figures is crucial in defamation law, because private figures can recover for defamation by proving the defendant published a defamatory falsehood about them negligently, but public figures must prove actual malice, that is, that the defendant published the defamatory falsehood knowingly or with reckless disregard of the truth. (Actual malice is a term of art not to be confused with common law malice). Sandmann's cases become much harder to win if he is a public figure and must prove actual malice, although he may choose to prove actual malice even if he is deemed a private figure, because doing so gives him access to larger damages awards. 

Some commentators have suggested that Sandmann should be treated as a limited-purpose public figure because he became embroiled in an event that was clearly of public concern at the site of the Lincoln Memorial. The Supreme Court's cases defining the category of limited-purpose public figures predate social media, but they do involve people who were thrust into larger controversies by the press or partisans; in general, they suggest that becoming a limited-purpose public figure requires a plaintiff to do something more than being in the wrong place at the wrong time and thus becoming fodder for public controversy. For example, in Time Inc. v. Firestone, five Supreme Court justices concluded that a woman married into a prominent family did not become a public figure simply by seeking a divorce through the judicial process. In Wolston v. Reader's Digest Ass'n, the Court held that a man who had previously been convicted of contempt for refusing to respond to a grand jury investigation on mental health grounds was not a public figure. And in Hutchinson v. Proxmire, a research scientist applying for a federal grant was not public figure, either.  Extrapolating from the Supreme Court cases, plaintiff should not be treated as a limited-purpose public figure because others embroil him in a public controversy of their creation: his entrance into the controversy must involve some degree of volition. The absence of meaningful volition is bolstered by the fact he was a minor on a school field trip standing on the steps of a public monument when he went viral.  Even examining Sandmann's actions through the lens of the multiple factors indicating limited-purpose public figure status elucidated by lower courts, Sandmann arguably did not do "enough" to be treated as a limited-purpose public figure. The factors lower courts look to often include whether (1) the plaintiff has access to channels of effective communication; (2) the plaintiff voluntarily assumed a role of special prominence in the public controversy; (3) the plaintiff sought to influence the resolution or outcome of the controversy; (4) the controversy existed prior to the publication of the defamatory statement; and (5) the plaintiff retained public figure status at the time of the alleged defamation. Sandmann apparently did nothing to ask for the infamy that attached to him based on the publication and misinterpretation of the viral video clip (and likely spurred at least in part by his hat). He did, however, gain access to the media after the fact to rebut any allegedly defamatory falsehoods. For some courts, this might be enough to tip Sandmann into the limited-purpose public figure category (see, for example, Gilmore v. Jones, 370 F. Supp. 3d 630 (E.D. Va. 2019), though that conclusion would not be faithful to the parameters of the category defined by the Supreme Court. 

A better, though still problematic, argument is that Sandmann and other "victims" of viral videos like him are involuntary public figures. This category comes from dicta in the Supreme Court's 1974 case, Gertz v.Robert Welch, in which the Supreme Court speculated: "Hypothetically it may be possible for someone to become a public figure through no purposeful action of his own."  The Supreme Court has left the definition of the category to the lower courts, which have not reached consensus on how to define involuntary public figures and, indeed, whether the category even continues to exist.  (Cf., e.g., Clyburn v. News World Communications, Inc., 1990; Marcone v. Penthouse Int’l Magazine, 1985; Schultz v. Readers Digest Ass’n, 1979)  One approach is represented by Dameron v. Washington Magazine, Inc, 779 F.2d 736 (D.C. Cir. 1985).  A plane crashed when Dameron was the sole air-traffic controller on duty, although subsequent investigations absolved him of any blame for the crash.  Eight years later, however, a magazine article attributed the crash to controller error.  The District of Columbia Circuit Court of Appeals held that Dameron was an involuntary public figure for purposes of discussion of the crash, and therefore his libel action failed for lack of proof of actual malice on the part of the magazine. The D.C. Circuit concluded that even though Dameron had taken no voluntary actions,  "[t]here was indisputably a public controversy" in which "Dameron played a central role."  Thus, the court concluded that a person may become an public figure simply by being in the wrong place at the wrong time.

The US Court of Appeals for the Fourth Circuit took issue with this approach in Wells v. Liddy on the grounds that it "rest[s] involuntary public figure status upon ‘sheer bad luck.’"  According to the Fourth Circuit, the relevant factors in determining involuntary public figure status are (1) whether the allegedly defamatory statement arose in the context of a discussion of a "significant public controversy" in which the plaintiff was a "central figure," and (2) whether the plaintiff "assumed the risk of publicity."  A plaintiff assumes the risk of publicity by "pursu[ing] a course of conduct from which it was reasonably foreseeable, at the time of the conduct, that public interest would arise."  The court also demanded that, as in the case of limited-purpose public figures, the controversy must pre-exist the defamation, and the plaintiff must "retain[ ] public figure status at the time of the alleged defamation."  The Liddy court was thus much more careful than the Dameron court not to conflate public interest in an individual with that individual’s involvement in a public controversy.  

Sandmann's attorney Lin Wood is familiar with these categories. Lin Wood famously represented Richard Jewell, the security guard at the 1996 Olympics who was falsely reported in the media to have planted the bomb that killed two and injured 110.  Jewell, far from being the culprit, was actually a hero: he spotted the bomb and prevented more people from being injured.  Nonetheless, the mere fact that he was in the wrong place at the wrong time and thus his actions became newsworthy led a Georgia court to label him an involuntary public figure when he sued the media for publishing defamatory falsehoods about him. 

Although Sandmann still has many defamation battles left to fight, they may never result in a precedent-setting legal opinion guiding the development of defamation doctrine in the digital era. In the meantime, though, these cases give those of us who love defamation law plenty to talk about. 

Posted by Lyrissa Lidsky on August 2, 2020 at 07:54 PM in Current Affairs, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (9)