PrawfsBlawg

The Free State of Florida

I am getting the hang of this "Free State of Florida" thing, as well as the general Republican status as the party of free speech. It does not undermine freedom (and free speech in particular) to remove books from libraries; to control what teachers say in and out of the classroom; to control what professors write; or to require social-media companies to carry certain speakers and messages on their private sites. And now it does not violate free speech for the head of an executive agency to send a letter to a tv station warning it about legal implications, including criminal prosecution, if it runs a political ad that he insists is false.

For all the Republican talk about Tim Walz spouting fire in a crowded theatre (and I wish he would stop doing that), this line--the right to free speech "does not include free rein to disseminate false advertisements which, if believed, would likely have a detrimental effect on the lives and health of pregnant women in Florida"--is a long-winded way of telling the station it can be punished for doing just that.

And, of course, Oberlin sophomores shouting about a Charles Murray talk constitute the real threat to free speech.

Tinker and universities

The Sixth Circuit reversed a 12(b)(6) dismissal of a lawsuit by a then-pharmaceutical student who was investigated and dismissed (although the dismissal was reversed) for social-media posts that violated "professionalism" standards. The court found her speech protected and that the right of a university student not to be punished for protected speech clearly established (despite on-point precedent involving a pharmaceutical student and social-media posts about sex and fashion). It also handles some fun Civ Pro stuff about what evidentiary materials a court can use on a 12(b)(6) without converting to summary judgment.

This should be an easy case, at least at 12(b)(6). Her speech was online and off-campus; unrelated to the school, her activities as a student, and her future career as a pharmacist; and violates professional norms only if those norms are unacceptably content- and viewpoint-based.

One problem: The court relied on the "disruption" test developed in high-school speech cases (Mahanoy and Tinker). Circuit precedent requires it, although recognizing that what disrupts a university should be different than what disrupts a high school. Still, the prospect that a university can restrict speech under the quasi-heckler's-veto that prevails in high schools is dangerous. In essence, that is what the school tried here. And I would have preferred a more rousing defense of an adult's free-speech rights.

Musk suit proceeds v. Media Matters

So says Judge Reed O'Connor, denying motions to dismiss for lack of personal jurisdiction, improper venue, and failure to state a claim in Twitter's suit against Media Matters and a reporter.

On personal jurisdiction, I wrote at the time Musk filed suit that I did not see the necessary "Texasness" in stories written about a California company by a D.C.-based reporter and published to the world by a D.C.-based entity. The court found that Texasness because two of the "blue-chip" companies Media Matters featured as having ads running next to Nazi content (and who stopped advertising on Twitter) were Oracle and AT&T, both Texas companies located in the Northern District. On one hand, a claim that plaintiff's speech tortiously interfered with defendant's contact and relationship with a Texas company can be seen as directed to Texas or involving Texas conduct. On the other, this seems far more attenuated than stories about forum conduct by forum citizens in the forum; paraphrasing Walden v. Fiore, Twitter suffers the same injury regardless of the location of the companies featured advertising next to offensive content. The same analysis basically resolves venue--a substantial part of the events giving rise to the claim occurred in the Northern District as the location of the businesses interfered with.

On the merits, this suit raises the prospect of businesses using tortious interference to end-run New York Times for broad public speech. The Court has blocked past efforts, as by imposing an actual malice requirement on intentional infliction distress. I think the same thing needs to happen here, although O'Connor did not require plaintiffs to plead those additional facts. The merits discuss was, to coin a phrase, conclusory and failed to show what allegations establish which elements (to say nothing of the fact that MM's statements, as described in the complaint, were true).

While not a final judgment, denials of dismissal for lack of personal jurisdiction represent a common use of mandamus in federal court. Query whether Media Matters pursues that course to try to get away from Judge O'Connor as quickly as possible.

More on Rankin's revenge

I was a bit glib and non-specific in this post. But it now appears more than a few teachers out there have made comments on social media to the effect that they wish Thomas Matthew Crooks had better aim; Libs of TikTok and Moms for Liberty have found and identified many of those teachers and their posts and are demanding scalps; and attention-starved and/or craven public officials are making noise about firing and/or decertifying those teachers. So let me try the fuller analysis here.

The leading, and factually similar case, is Rankin v. McPherson. A clerical worker in the sheriff's office had a conversation with her co-worker/boyfriend after hearing news of the attempted assassination of President Reagan, in which she said something to the effect of "if they attempt to shoot him again, I hope they get him." SCOTUS held that her firing violated the First Amendment. Her statement was on a matter of public concern and was not a threat or otherwise unprotected. And the Pickering balance--employee interests in commenting on matters of public concern against interests of the government employer in promoting workplace efficiency--favored the employee. The statement was made in a private conversation (albeit one in the workplace) and did not affect her co-workers, workplace relationships, performance of anyone's job, or overall functioning of the agency. As a clerical employee, she did not have contact with the public as part of her job and did not affect the office's law enforcement functions.

Ironically, Twitter exchanges I have seen fail to mention or discuss Rankin, which is a somewhat forgotten case (as so many Marshall opinions are) even among the First Amendment crowd.

In thinking about Pickering, it is worth remembering that the case involved a teacher, fired over a teacher over his letter to the editor criticizing the school board's funding priorities. Criticism of the school board did not per se affect the functioning of a school in terms of his classroom duties, his harmony with fellow teachers, or the ability of his superiors to control and discipline him. And the Court would not presume that the teacher brought his negative views into the classroom.

So what happens if schools fire or discipline teachers because of these social-media posts? As with the statements in Rankin, expressing hope outside the workplace that a political leader would be assassinated (whether as a wish for a future shooter or regret for a past shooter's failure) is non-job speech, touches on a matter of public concern, and is not a threat or incitement or otherwise unprotected. Everything thus turns on Pickering. These teachers spoke entirely outside the workplace to the public at large rather than at work to a colleague. The statements lack even a remote connection to their jobs or to their employers, because they were not talking about the school district or education (contra Pickering). Teachers are public-facing employees. But schools cannot assume that teachers will bring their personal political views into the classroom as to allow them to fire teachers who express views that school administrators find offensive or contrary to the values of the school. Absent some evidence that the teachers will attempt to convince their students that Crooks should have bought a better scope or otherwise that assassinating Donald Trump would be a good thing,* the school cannot argue that the teacher's publicly expressed political views that never find their way into the school or curriculum undermine discipline or the efficient educational operations.

[*] Which would constitute a fireable offense because elementary and secondary teachers exercise less control over their classroom speech.

The problem may be actual or anticipated parent reaction--a school might be able to argue that functions have been disrupted or undermined if parents complain or object to their children being in one of these teachers' classes. While that sounds like a heckler's veto, lower courts have rejected the idea that Pickering's disruption prong constitutes such a veto--as the Second Circuit put it, parents are not outsiders to the speech and speaker but participants in public education whose cooperation is required for the system to work.

Cases in which teachers have lost on Pickering tend to involve statements that go towards children and the teachers' possible interactions with children--a guidance counselor publishing a sexist relationship-advice book; a school counselor indicating an unwillingness to handle trans kids as the school deems fit; a teacher with a membership in NAMBLA; or a teacher who blogs critically about her students. Nothing that these teachers said bears on their students or on what they teach. Indeed, if these teachers can be fired for these obnoxious statements about world events, it seems to follow that schools could fire teachers for holding or expressing an array of obnoxious beliefs on an array of matters of public concern. Something I thought Libs of Tik Tok and Moms for Liberty decried as cancel culture . . .

On-point precedent (Updated)

The latest target of Libs of Tik Tok has on-point precedent on her side. Maybe there is a difference between a special-ed teacher and a clerical police employee, although I doubt it. The school would have to show some risk that she has brought or will bring her heinous political views into the classroom. Unless cop-porn has changed the legal landscape.

Update: Seems to be spreading and escalating. A teacher in Oklahoma City posted "[w]ish they had a better scope" and the state superintendent announced that he was coming for her license, insisting that "[n]o one in Oklahoma education system will support the assassination of @realDonaldTrump. It will not be tolerated. Ever!" Interesting response--query whether it extends to those supporting the assassination of anyone else (suppose Crooks decided to shoot at Biden--new reports suggest he picked his target at random). Or to those who, for example, insist that Derek Chauvin was justified in killing George Floyd. Otherwise, this guy gave himself a viewpoint-discrimination problem, atop everything else.

More on Younger--Exhaustion and the limits of defensive litigation

I am thinking through some points in my post about 11th Circuit Judge Robin Rosenbaum's call for rethinking the scope of Younger, at least in electoral speech cases.

Rosenbaum argues that "Younger has evolved to allow states to impose a state-exhaustion requirement on those trying to exercise core First Amendment rights." This is a bit nit-picky, because I agree with her basic criticism. But it is inaccurate to say Younger imposes an exhaustion requirement. An exhaustion delays federal litigation by requiring the plaintiff to pursue other procedures before going to federal court. But the plaintiff should get to federal district court eventually. On the other hand, when the federal court abstains under Younger, that plaintiff will never return to federal district court in a § 1983/EpY action. The rights-holder remains in state administrative and judicial proceedings, with the possibility of a federal forum through SCOTUS review of the state's highest court. Rather than creating exhaustion, Younger limits offensive pre-enforcement § 1983/EpY litigation and compels defensive litigation on important free speech issues. Still potentially problematic, depending on one's views of the lines between offensive and defensive litigation. But not as inconsistent with the text and purpose of § 1983.

The key to Rosenbaum's argument is an objection to Younger's application to state administrative proceedings (at least in First Amendment case), which delay access to state courts. She identifies two arguable problems. First, while Younger perhaps fairly presumes parity between state and federal courts in willingness to vindicate federal rights, that presumption should not apply to state administrative agencies, even with eventual state judicial review. Second, delaying access to state court may delay the first meaningful opportunity to raise federal issues--a rights-holder has an adequate opportunity so long as he can raise issues in some state proceeding, even if it does not come until several steps down the line. That is, if the PAC cannot raise First Amendment issues before the hearing board, it is enough that it can appeal the board's decision to a state appellate court and raise the First Amendment there--regardless of how long it takes to get to that second level of review.

On the other hand, the upshot of Younger is to push rights-holders out of federal district court and into state proceedings that must run their (state-determined) multi-level course. It is not clear why the first level must be judicial rather than administrative. Nor is it clear why the opportunity to raise federal issues must come at the first stage of the multi-level process, if that process must run its course before those rights can be vindicated. That is, why does it matter whether the rights-holder can raise and prevail on his federal rights at the first stage if the state will appeal that decision in any event and force completion of those proceedings.

The answer to that goes to preliminary relief, available in offensive federal litigation but not in defensive state litigation. A rights holder (such as the PACs in the Georgia case) can obtain a preliminary injunction in federal court, allowing it to engage in political speech pending resolution of the constitutional questions. From a defensive posture, especially within an administrative process, the rights-holder must remain silent and ride out the proceeding. That, ultimately, becomes the real issue with Younger's push into defensive litigation.

Cheering speech in context

Protection for cheering speech--fan speech during sporting events--depends on context. Different sports employ different norms and practices, which affect what is acceptable fan speech. Obviously, the constant thunder of a basketball game at Duke's Cameron Indoor Stadium does not carry over to Wimbledon, where fans cheer between points but are expected to remain silent during play.

That works well enough in trying to define the rules for fans in those stadiums in which First Amendment rules apply and in which the stands can be seen as some kind of public forum. But tennis also apparently has norms limiting what fans cheer for or against and how. Two cases in point from Monday.

Novak Djokovic was upset with the Wimbledon crowd during his victory over Holgar Rune for disrespecting him by shouting "booo" at him; he rejected the idea that it was Rune fans supporting their player by chanting his name ("Ruuuuune"). Alexander Zverev had a long conversation with American Taylor Fritz when they met at the net following Fritz's five-set victory, apparently angry at how loudly some in Fritz's box cheered, especially when it was obvious that Zverev was injured. It probably did not help that Fritz's girlfriend made several (since-deleted) Instagram posts about women supporting Fritz, perceived as referencing several accusations of domestic abuse against Zverev. Indeed, Zverev clarified that Fritz's coaches and trainer were respectful, so it it was someone else being disrespectful--do the math.

So it is ok to cheer for Player A but not against Player B. And do not cheer too loudly. And do not cheer (at least not overly hard and loud) for Player A if Player B is injured. Strange.

The source of the complaints should not surprise. Djokovic cannot get the fans to love him despite being the unquestioned G.O.A.T., so he somewhat leans into the villain role. And Zverev is poster-child for the ATP's perceived unwillingness or inability to hold players accountable for off-court misconduct.

Rethinking Younger

Interesting Younger case from the 11th Circuit. The Georgia AG pursued a state administrative action against a PAC associated with Stacey Abrams for failing to register and file various reports. The state commission found reasonable grounds and referred the case to the AG, which referred the matter to the state administrative hearing body. Between those events, the PACs filed a § 1983 action to enjoin the state proceedings. The court held that the district court should have abstained from the federal action.

Judge Newsom wrote another Fed Courts treatise for the panel. Although the PACs filed the federal action before the hearing body received the referral to commence its proceeding, the court applied the piece of Younger under which the court must abstain if the state proceeding commences after the federal proceeding but before any "proceedings of substance on the merits have taken place in federal court." The plaintiffs had filed a complaint and a motion for a preliminary injunction and the court had handled some case-management motions. But the court had not ruled on the PI motion or otherwise engaged with the merits in the few weeks before the state proceeding commenced.* And the fact that the state conducted a thorough multi-year investigation of the PACs undermined the suggestion that the case falls within the bad-faith exception.

[*] The court rejected the district court's reliance on its "experience managing cases" in defining the point at which the state action is too late.

Judge Rosenbaum concurs to call on the courts to "reconsider just how far Younger should extend." Rosenbaum fears Younger in a case involving core political and electoral speech; that speech has achieved greater protection than it had at the time of Younger. Whatever the merits of abstention in 1970s actions involving communists, nude dancing, and "Deep Throat" (speech which the Burger Court was backing away from protecting), Citizens United and other recent campaign-finance cases vault such speech into a unique First Amendment core demanding the "strongest protection." (A cute rhetorical move in a case in which a Republican AG was going after a Democratic PAC). She complains that two of the Middlesex factors--state interest and adequate opportunity to raise federal issues--invariably favor abstention and the exceptions are too narrow to offer help. This imposes an exhaustion requirement for those wishing to engage in core political speech during and around an election. And she identifies the "Goldilocks" problem in Younger--plaintiffs must hit the sweet spot between state enforcement being sufficiently imminent to warrant standing but before that state enforcement has begun.

Recent criticisms of Younger--especially in the work of Fred Smith (Emory)--focus on efforts to challenge proceedings within the criminal justice system, such as bail or the corrupt mess in municipal courts in Ferguson and elsewhere. The argument is that federal courts should not defer to broken state systems that the federal action challenges. Rosenbaum focuses on one area of substantive law that abstention disparately effects, in a way that undermines the substantive purposes of that law.

Thoughts on NetChoice

I decided to begin the day with NetChoice, the case about which I would have something to write. Then I can read about how the framers, 11 years removed from a revolution against a king, created a monarch (more powerful than the one it replaced) who is selected and serves for a few years at a time but otherwise can do no wrong.

Anyway, NetChoice. The argument somewhat previewed the result, but the internal dynamics may have been messy.

• The Court is unanimous on the disposition of this appeals--vacate both lower courts and tell them to do the analysis over, because this is a facial challenge. Justice Kagan writes for six (the Chief, Sotomayor, Kavanaugh, Barrett, Jackson) to explain a proper approach to facial challenges and to trace the Court's editorial-judgment jurisprudence (Tornillo, PG&E, Turner, Hurley, Pruneyard, and FAIR). She writes for five (loses Jackson) to explain how that jurisprudence applies to render the core provisions of the laws constitutionally invalid and to highlight how badly the Fifth Circuit messed up. Justice Barrett concurs to complain about the complexities of facial challenges and to suggest plaintiffs would have an easier time with a narrower as-applied challenge. Justice Jackson does not join the parts of Kagan's opinon (III-B and C) that explain how that jurisprudence ought to apply to these laws, deeming it premature. Justice Thomas concurs in the judgment to explain why facial challenges should not be allowed. Justice Alito concurs in the judgment for three (Thomas and Gorsuch) to explain why the Court should not have opined on the First Amendment questions and then to offer a contrary First Amendment analysis.

• This will be lost in the procedural mud and the news of the day, but: Five-and-a-half Justices offered a strong vision of First Amendment protection for curators of all kinds and of the limits of government trying to balance the market in ways it deems proper or in ways that will help the speakers and speech it likes.

• Justice Jackson's choice is odd. She joins Kagan's summary of the jurisprudence (III-A) but not its application (III-B and C). But Kagan completes that summary with three general points--1) the First Amendment protects curation of third-party speech; 2) that does not change when the compiler allows most speech or only excludes a small amount of speech; and 3) the government does not have an interest in balancing the expressive marketplace. Those three principles imply the resolution as to the core provisions--the sites have a First Amendment right to do this and Florida and Texas cannot rely on the only interest either has offered for these provisions. So if Jackson believes the statement of legal principles (with their obvious implications) is proper, I am not sure why she departed from the actual application.

• Justice Thomas explains everything that is wrong with facial challenges, including that they enable universal injunctions. But this is wrong, as Dick Fallon has argued. A declaration of facial invalidity is a statement about the law that has preclusive effect on the parties and precedential effect on future parties. It does not disappear the law, it does not adjudicate the rights of non-parties, and it does not stop future enforcement against non-parties. Although facial resolution from SCOTUS dictates the outcome of that future enforcement as a matter of precedent, that is how precedent is supposed to work. Perhaps apprehensiveness about facial challenges is of a piece with the idea (observed more in the breach) that the Court should decide no more than necessary to decide the case. But that is a prudential rule, not grounded in Article III or separation of powers. Of course, the Court could get to the same place if it did not insist on judicial supremacy, on it having the final word on the constitutional question that binds all other actors.

• The Court limits (majority view) or rejects (Thomas view) facial challenges as a way to keep the Court from wielding too much power at the expense of the other branches, where those branches would be stymied by the Court's pronouncements on the Constitution to make or enforce the laws against non-parties in the future. But the Court would not need that limit if it did not assume that a declaration of facial validity binds the executive in the future.

• Murthy v. Missouri held that states and users lack standing to challenge the Biden Administration's jawboning of social-media sites, reflecting the Court's distaste for "massive kitchen-sink, lots-of-plaintiffs/lots-of-defendants/lots-of-bad-conduct constitutional claims." Something similar might be at work here. These laws have core provisions raising constitutional problems (limits on curation and notice requirements) for specific actors (Facebook and YouTube) for specific conduct (their home pages or news feeds). Litigation by a trade association challenging all provisions of the law goes too far. Again, that limit might have cross-ideological effects.

• It will be interesting to see what happens going forward. Might it be worth it for NetChoice (or just Facebook and YouTube) to rework this as an as-applied challenge to the moderation and notice provisions (which a majority of the Court said violate the First Amendment) and leave the rest for another day? There is an argument (Ilya makes it) that the invalidity of these core provisions is sufficient to create the necessary overbreadth compared with any legitimate sweep of the law (such as Gmail or Uber reviews).

• Florida AG Ashley Moody took to Twitter to announce that the Court unanimously sided with it--"We are pleased that SCOTUS agreed with Florida and rejected the lower court’s flawed reasoning—invalidating our social media law. While there are aspects of the decision we disagree with, we look forward to continuing to defend state law." This is impressive in its understatedness and in its cynicism that my fellow Floridians will not read the opinion or get their news from an accurate source. "Aspects of the decision we disagree with"--the Court rejected the entire First Amendment edifice on which Florida relied. Kagan's opinion sees "the First Amendment issues much as" the Eleventh Circuit did in Judge Newsom's excellent opinion. Moreover, in emphasizing the Fifth Circuit's wrongness, the Court impliedly announced the Eleventh Circuit's correctness as to the constitutional invalidity of the core provisions.

Judicial departmentalism and the Ten Commandments

A quick word on the new Louisiana law allowing a sect-specific version of the Ten Commandments in all public-school classrooms.

The governor and legislature acted in a legitimate way. They believe the law constitutionally valid and acted on that view, even if that view runs contrary to binding SCOTUS precedent. And they acted in something other than a purely performative, wasting-taxpayer-dollars way, to the extent they believe (not unreasonably) that the current Court might overrule Stone.

Critics must wrestle with this problem: If Louisiana did not or cannot do this, a court could never reconsider or revisit precedent. It takes a new law or enforcement of an old law to create new litigation allowing the court to resolve the constitutional question and to change the law if it sees fit. If a state cannot do this, decisions declaring that government cannot do something are set in stone (no pun intended) and never can be changed. Whatever one thinks of the constitutional validity and/or wisdom of these displays and whatever one thinks about whether the Court should reconsider Stone, it cannot be that any judicial precedent lies procedurally beyond reconsideration.

Content-neutral to content-discriminatory and the changing nature of campus protests

Great conversation among Jane Bambauer, Eugene Volokh, and Erwin Chemerinksy on the Free Speech Unmuted podcast.

I will flag the conversation at the end of the hour-long discussion--when and why schools might choose not to enforce their content-neutral campus regulations against expressive activities and how failing to enforce now might disable future attempts to enforce against different groups or positions. That is,allowing a pro-Palestine group to occupy the quad or block the entry gate in violation of campus rules may render future efforts to enforce facially neutral regs against a different group content- or even viewpoint-discriminatory, at least in the near term.

The discussion offers another example of how the changing nature of campus speech--which I discuss here and here--creates new problems for university administrators. When campus protests focused on a limited number of issues about which there was general agreement, universities could afford non- or under-enforcement of neutral TPM regs because no other group or speakers wanted to use those same spaces. No pro-nukes or pro-draft groups wanted to occupy the quad or block the gate, even if they disagreed with the anti-draft occupiers. And there were not other groups seeking to use the space to speak on other issues. Offering leeway to anti-nuke campers thus did not risk opening the space up to all groups for the near future. Not so, going forward, as Erwin argues. If a pro-Israel group wants to block the campus gate at Berkeley or an anti-choice group wants to occupy the lawn, the university cannot enforce those TPM regs more strictly than it has been doing now.

TikTok ban and 3-judge district courts

TikTok challenged the new law banning it (at least with Chinese ownership), alleging violations of the First Amendment, equal protection, bill of attainder, and taking. Pursuant to § 3(a) of Division H of the Act, it filed the petition with the D.C. Circuit.

Congress essentially adopted for challenges to the statute the procedure for challenges to regulations implementing and enforcing the statute. But reviewing regulatory action looks appellate, while reviewing the validity of enforcing legislation involves an exercise of original jurisdiction, including taking evidence about standing (unfortunately) and the plaintiff's factual allegations about things such as the impossibility of compliance and the effect on speech. And Congress had such a process if it wanted quick multi-judge review--3-judge district courts.

Nothing good happens after 2 a.m. or when you testify before a House Committee (Updated)

David Pozen on Columbia President Minouche Shafik shattered multiple norms over how the administration deals with faculty and students.

But consider a broader lessen: University presidents have nothing to gain and everything to lose from engaging with Virginia Foxx, Elise Stefanik, and the other bad-faith Republicans on the Committee on the Education and the Workforce. Attempt (however badly worded) to defend academic freedom and the First Amendment, lose your job immediately (Liz Magill) or after they come after you on something else (Claudine Gay). Cravenly kowtow to them by throwing faculty and students under the bus, as Shafik did, destroy any credibility or support from many of your constituents--and likely fail to appease those you are trying to appease.

Update: Stefanik has called on Shafik to resign or for the Board to remove her.

FWIW, my kid and I visited Wesleyan this week for admitted-students days, occurring the same time as "Israel Apartheid Week." There were posters on campus, an attempt to interrupt the President's welcome speech, a banner hung in the room during the speech, and a rally (with probably about 50-60 students) on what I presume is the "free-speech spot" on campus. It include chants and speech, mostly about divestment and nothing that crossed into blatant antisemitism. I have a thicker skin and a different commitment to free speech than the average 18-year-old. But unless I believe I never should encounter any offensive speech, nothing came close to harassment or intimidation.

National Lawyers' Guild (Updated)

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

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

The kids are (kind of) alright

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

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

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

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

Specific Performance and the First Amendment

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

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

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

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

SCOTUS narrows when officials act under color online

SCOTUS on Friday decided  when public officials can block people from their social-media pages. Lindke v. Freed (from the Sixth Circuit, a claim against a city manager) became the lead case; O'Connor-Ratcliff v. Garnier (from the Ninth Circuit, claims against school-board members) was vacated-and-remanded for reconsideration in light of Lindke.

Justice Barrett wrote Lindke for a unanimous Court, describing the standard as:

a public official’s social-media activity constitutes state action under §1983 only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.

A few thoughts:

• The court properly recognized that the question is not when a nominally private person acts under color, but when a state official engages in state action or functions as a private official. While SCOTUS has had few cases on the latter issue, it ignores the obvious analogy to off-duty officers who use the badges of authority to engage in misconduct; there is a wealth of lower-court precedent, typically (although not exclusively) involving law enforcement. The court emphasizes (and this arose a lot during argument) that public officials retain private lives and First Amendment rights when they are "off duty." The Court thus repurposes the idea that "the state-action requirement 'protects a robust sphere of individual liberty;'" rather than grounds for not subjecting private actors to constitutional liability, it limits the scope of a public official's job responsibilities., a requirement that the official have some "off-duty" time to engage in his own First Amendment activities.

• The Court takes a narrower approach to state action than I would have liked to see. The official "must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action." If maintaining and posting content to the site is not part of the official job functions and responsibilities that bind the government, the official does not act under color, no matter how much the site appears to be official. The open question is how courts apply this to sites that an elected official uses to "further" her job duties or as a "tool of governance" but which are not required by state law and not a formal part of her job duties. Perhaps custom gets there, except courts do not easily find something so persistent, permanent, and well-settled as to have practical force of law. It seems unlikely social media (10-years-old) and even web-based communications (maybe 25 years old) reach that level.

• Davison v. Loudon Cty. and Knight Foundation v. Trump--the leading cases finding state action in a public official maintaining an official or quasi-official for purposes of communicating and interacting with constituents about government business--must come out the other way. Both courts focused on the appearance and function of the activities on the site--the discussion of public content, the indicia of official status. But that is step two under Lindke. The courts now never reach that issue if the official does not have  actual authority to speak on the government's behalf about the matters at issue. For example, even on her official "chair" site, the chair of the Loudon County Board of Supervisors does not have actual authority to speak on the government's behalf about, say, a recent school-board meeting. And her web site site is not the only space in which that information appears--the city likely posted it to the government's official site. The chair uses the site to engage with constituents and keep them informed about government events as an elected official, which is not a formal part of her job on behalf of the government. Maybe the President is different, although he still lacks formal speaking authority about a lot of what he posts on social media. Along those lines, I doubt a legislator or member of a multi-member body can ever be a state actor. As individuals, they do not speak for or otherwise bind the government and are not authorized or required to speak for the government or the body. Future litigation in O'Connor-Ratcliff might tell us more--that case involves elected officials who used their campaign sites to discuss public matters after taking office.

• I think the opinion downplays the importance of engagement between the public and officials (especially elected officials) within formal official-controlled channels, even where such engagement does not bind the government and does not constitute a legally authorized or compelled part of the job. Yes, an official should be able to maintain a private site that touches on public matters, just as an official should be able to discuss public issues with friends at a barbecue. But when an official opens a site and invites the public to communicate with her about public affairs, that looks like something other than a barbecue with friends. The Court could have concluded that Freed's site is private without erecting the additional hurdle that renders many job-adjacent functions--those that "further" the job without being legally authorized--not state action.

• I will link to this Will Baude post trying to make heads or tails of the Court's odd mandate in the case--vacating the Sixth Circuit "[t]o the extent that this test differ from the one applied by the Sixth Circuit." My best guess is that this is sloppy language, reflecting that the Justices ignore (if they even grasp) the procedural nuances, the differences between judgments and opinions, etc. The Court uses more expected language-vacating and remanding for further proceedings consistent with this opinion--in O'Connor.

• The Court at one point gives us this: "'editorial control over speech and speakers on [the public employee’s] properties or platforms' is part and parcel of it. Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own." Is editorial control also part and parcel of Facebook's First Amendment rights and control of its site immune from government command? Or will the Court give us the farce that a government official exercises editorial control to keep citizens from speaking to them but that private entities lack the same editorial control to control who speaks on their spaces?

Penn faculty sue Penn to stop cooperation with committee

My initial reaction to Fakhreddine v. University of Pennsylvania is that we have reached pinnacle of performatively stupid (or stupidly performative) litigation over campus speech post-October 7/Gaza War. Plaintiffs are pro-Palestine/anti-Israel faculty suing to stop Penn from cooperating with requests from the House Committee on Education and the Workforce, which they claim targets them (the lead plaintiff is mentioned in the House letter) and their expressive activities. Claims are for violations of the First and Fourteenth Amendments, Pennsylvania Constitution, and breach of contract.

On further reading, the suit is less clueless as I thought. I think plaintiffs lose and it is not close. And it still has the hallmarks of performative litigation cum bad lawyering: Hundreds of paragraphs listing political grievances--including complaining about a separate lawsuit by a student against Penn, the IHRA definition of antisemitism, and  the "McCarthyesque" (some version of the word appears 12 times) Committee. It uses "dox" (some version appears more than 30 times) to mean any publicity (e.g., Elizabeth Magill was doxxed because people emailed her with harsh criticism following the December 7 hearing). And it makes the pleading mistake of incorporating by reference prior counts into each new count; the 11th Circuit regards this as an indicator of an impermissible "shotgun pleading;" it at least shows sloppy drafting.

It confuses whether Penn acts under color of federal law or under color of state law. It never cites § 1983, as it should for claims against state actors, although many lawyers (erroneously, in my view) treat EpY as the cause of action when seeking something other than money, regardless of the government entity. It bases the under color arguments on Penn's cooperation with the Committee, a federal entity; that makes Penn act under color of federal law. But then it asserts a 14th Amendment claim, which cannot apply if Penn's joint action is with the federal government such that it acts under color of federal law.

If not complete performative nonsense, where do I think it still fails?

    • It argues for state (or federal) action from the private person's voluntary cooperation with the federal government. It emphasizes that the Committee did not subpoena the records; it sent a non-binding letter request. But close nexus requires government compulsion or overwhelming encouragement of the private conduct rather than the private entity willingly agreeing with and working with the government.

    • It seems to me the constitutional claims and the breach claims are inconsistent, assuming this qualifies as a breach. If the letter request is sufficiently coercive to place Penn under color, Penn cannot be liable for breach--the coercion would seem to make conformity with the contract impossible. If Penn is making a voluntary choice, it cannot act under color.

    • Legislative immunity lurks here, although a step removed. The real violation here is the Committee request. But Speech-or-Debate immunity shields such a claim--a court will not question whether a legislative request violates the Constitution. The question is how far down legislative immunity extends. Can a court the constitutional validity of a legislative request in the course of resolving a constitutional claim against the party subject to that request? (A recent 9th Circuit case raises a similar issue--I may write about that later next week).

Equality of Silence

Thorough discussion in the Chronicle of Higher Ed (paywalled) about private universities enacting (mostly*) content-neutral restrictions on the time, place, and manner of campus speech in the interest of keeping the peace. The piece includes comments from Brian Soucek (Davis) and Genevieve Lakier (Chicago). Brian captures the problem with these peace-keeping policies--"It really takes some commitment to decide no, we’re going to stand by our First Amendment principles even when they mean that campus will be a little more unruly and disruptive than we’re used to."

[*] Some--American's requirement that fliers be "welcoming and build community" or regs limiting fliers to advertising campus events--are content-based.

In fairness to the universities, they do not act solely out of an institutional desire avoid unruliness and disruption. The threat of Title VI liability--imposed regardless of the protected nature of the speech at issue--drives them to "stop" antisemitism by stopping antisemitic speech. And the only way to do that is to stop all speech. So here we are.

Lots of campus speech

• Beware an equality of silence. Universities cannot restrict anti-Israel/antisemitic/pro-Hamas speech solely because of its viewpoint. The solution to "pervasive antisemitism" therefore is to enact--and properly enforce--neutral regulations. Thus Barnard has banned all messages and signs on dorm-room doors. Several schools have prohibited messaging fliers (those not advertising upcoming events). That eliminates antisemitic speech, but at the cost of a vibrant speech environment and students' best and most convenient means of communication.

• Several states are moving laws prohibiting state funds from going to student groups that "support" terrorism and terrorist groups, specifically Hamas. The laws are vague in two respects. One is whether "support" means financial or whether it also includes expressions of support. The other is whether financial support for Gaza and the people of Gaza constitutes support for Hamas. The latter two could raise First Amendment concerns.

• UC-Berkeley police have opened an investigation into the protest cum riot outside a speech by an Israeli lawyer. The report indicates a focus on property destruction and trespass in breaching the building and reported assaults on students attempting to enter the building, distinct from the loud-and-obnoxious protests and chants outside the building. Curious to see if they are able to keep those separate.

• A question that came up during several programs in the law-and-antisemitism conference: Can a school be liable under Title VI for a hostile education environment for failing to stop or punish protected antisemitic speech. My instinct is no, because federal law should not compel (at least a public) a university to face a § 1983 action by a censored student. And perhaps the federal government coerces a private university (placing it under color) by requiring it to censor protected speech on threat of Title VI liability. But several conversations suggest that DOE may push the view that the protected nature of antisemitic speech does not excuse the hostile environment it creates.

• Campus signs have "targeted" the Jewish student-body president, naming her as someone supporting genocide (and thus unable to hide) and calling for Zionists to be out of office, along with the usual crap, much of which cross the antisemitic line. One question is whether the student president and other campus leaders occupy some unique position--akin to a public official--for purposes of analyzing when speech is "targeted" and thus stripped of its protection. That is, does a student open herself to even antisemitic criticism by holding a campus leadership position?

Universality and litigation procedure in the social-media cases (Updated)

Universality reared its head in the social-media cases, especially the Florida case. The plaintiffs brought a facial challenge, which perplexed the Justices who found some applications of the law that would be valid (e.g., DMs and email services). Michael Dorf offers one solution. In trying to avoid this problem, Paul Clement (arguing for the providers) tried to emphasize the particularity of the preliminary injunction--it protects his clients but does not prohibit enforcement against anyone other than his clients and it should remain in place to protect his clients from a wave of statutorily authorized $ 100,000 civil actions while litigation continues on remand to the trial court.

Clement is half right on this. The injunction protects only his clients, so the state could enforce against violators not within the NetChoice consortium. But the injunction does not (or at least should not) protect his client from civil suits. The unknown random people who might sue are not parties to the action and do not work in concert with the state, therefore the injunction cannot bind them. They likely do not act under color and thus could not be sued or held liable in an offensive § 1983/EpY action--they are not exclusive enforcers and sue to enforce their own rights to be on the platform, making them ordinary litigants pursuing an ordinary (if constitutionally dubious) state-law cause of action.

The case thus illustrates another limitation on offensive litigation in a mixed enforcement regime--any pre-enforcement injunction cannot stop private enforcement as a matter of the judgment, only as a matter of precedent. (Edit: My initial post said we forgot to mention this in our Cornell piece--turns out we did talk about it at 151-52. Mea culpa).*

[*] Anyone else experience the feeling of writing so much on a topic you forget what you've said?

Erie and litigation finacing in Florida

The Florida legislature is considering legislation that would, among other things, require automatic disclosure of financing agreements. Wisconsin enacted a similar law in 2018 and I wrote about the Erie issues it creates in federal court. Same issues and analyses arise here. Florida adds another wrinkle: Disclosure must be made within 30 days of commencing the suit, as opposed to as part of the discovery process. I have used this as a puzzle in the Erie part of Civ Pro for the past few years; now I have a local hook for it.

One additional question: Is there an equal protection or First Amendment problem in that the Florida law only applies to financing agreements for which the financier will receive some cut of any settlement or judgment. It does not apply to those--such as Elon Musk financing Gina Carano's suit against Disney over her firing from The Mandalorian or Peter Thiel and Hulk Hogan's suit against Gawker--who do not expect a return on their financing and do so for some personal or political goal. I suppose the answer depends on the purpose of the rule and how much an uncompensated funder can influence a litigant's decisionmaking. (Hogan declined lucrative settlement offers from Gawker; some argue that Thiel's funding removed Hogan's ordinary litigation incentives and strategies).

Swarthmore, whatever comes after redux

My kid did not particularly like Swarthmore during the campus visit, so I feel ok enjoying the media-and-podcast tour by Wesleyan's president while criticizing the statements from Swarthmore's president.

That said, in response to Steve, I did not intend to criticize Smith for condemning "river to sea" or "jihadist" as part of a call for civility. (Although I am suspicious of many calls for civility, which can be vague and perverted into content-based suppression of (often) less-powerful speech on the pretext of a content-neutral concept such as civility). My point (which I did not frame well) is that she shifted within that paragraph--from explaining what is and is not protected to what she dislikes to a call for civility. And that confused her message.

And that said, Suzanna Sherry emails with a different criticism of Smith's statement (email quoted with Suzanna's permission):

Whatever the merits of Smith’s general points, I find this bit (emphasis mine) very telling about her own sympathies (which she should not be broadcasting in such a statement):

        For instance, chanting “from the river to the sea” is heard by many as antisemitic and a direct threat against Jews.             Referring to Arabs or Muslims as “terrorists” or “jihadists” is Islamophobic and anti-Arab. Such rhetoric is simply                 unacceptable and I condemn it.

The difference between “heard by many” and “is” suggests (a) that the Hamas chant is not antisemitic but merely heard as such; and (b) that the “such rhetoric” in the third sentence refers only to the Islamophobic/anti-Arab statements and thus that “river to the sea” is not unacceptable and she does notcondemn it. The referent in the third sentence is ambiguous – it could include both the previous sentences or only the one immediately preceding it – and my point is that the difference in phrasing between the first two sentences tells us which she means.

There may be a response to that; I leave it to Steve to make it, if he chooses.

One more thing I did like in Smith's letter: Although the school allowed the sit-in to continue last semester and will not do the same with future sit-ins, those who engaged in last semester's actions may be receiving notices of conduct violations. University leaders, including the Stefanik Three, have been under fire, in part, for discovering protection for offensive speech only when it targeted Jews (Jeannie Gersen notes this criticism). I initially read Smith as saying last semester's sitters would receive a pass while putting those who engage in future civil disobedience on notice that they will be removed from the space and sanctioned--which would potentially have replayed that criticism by protecting the pro-Palestine/anti-Israel group and sanctioning future pro-Israel protesters. Rather, her point was that the sitters were not stopped in the moment but may face consequences.

Swarthmore revisited

Perhaps unsurprisingly, I am less enamored than Steve of the statement by Swarthmore President Val Smith. Pieces are worthwhile, including the reminder that civil disobedience includes facing the consequences of one's actions. And her conclusion--a longer version of "it depends on the context"--is right. But the rest is vague, conclusory, and question-begging, in a way that can (and perhaps will) be used to restrict a lot of otherwise-protected speech at the school. (My disagreement with Steve's assessment of the letter may reflect our different priors about campus speech).

She calls out those who intimidate and threaten those with opposing views, clearly singling out counter-speech, although she does not explain what intimidate or threaten or retaliate means. She says speech that makes people "feel threatened" is unprotected, ignoring how targeted speech must be to constitute a threat. She says "peaceful" does not mean absence of physical harm; it also includes yelling into  bullhorns when the volume causes physical harm (whatever that means).

She at times shifts, without explanation, from what speech can be sanctioned to what she (individually or on behalf of the university) does not like to calling for civil discourse as a normative aspiration. So:

All of us must consider what it means to truly be part of this community and how our words affect each other. For instance, chanting “from the river to the sea” is heard by many as antisemitic and a direct threat against Jews. Referring to Arabs or Muslims as “terrorists” or “jihadists” is Islamophobic and anti-Arab. Such rhetoric is simply unacceptable and I condemn it. As we engage with those of different perspectives and backgrounds, I urge us all to be mindful that the pathway to common ground is paved with respect and understanding. I am confident that members of this community can find ways to express their views without resorting to harmful or hateful speech that impedes the effectiveness of their advocacy.

What does any of this mean? That something is "heard" as antisemitic or Islamophobic is irrelevant--antisemitic or Islamophobic speech is (in most contexts) protected. What does it mean that she "condemn[s]" such rhetoric, especially after what came before? She may be right about what makes or undermines effective advocacy, but, again, I am not sure how that fits with the rest of the letter.

She ends with:

Nothing I’ve written here is intended as a threat to free expression or an attempt to silence any particular view on campus. On the contrary, my intention is to maintain an environment where individuals are free to express varying views and opinions without fear of retaliation.

If that is her intention, she failed. If I am a Swarthmore student, I have no idea what I am able to say, other than that I cannot occupy a campus building to say it. And she suggests an overbroad interpretation, inconsistent with First Amendment principles, of campus speech codes and of how much speech the college can restrict and sanction.

More thoughts on campus speech (Updated)

Several things:

• Stephen Carter writes in The Times about the importance of free speech to the campus mission of intellectual curiosity and the mistakes and inconsistency of everyone--left and right--since October 7. Some really great stuff here. I do not agree with all of it, especially as to extent of protection for interruption and private opprobrium for other speech.

• [Update]: And this ALI interview with Geoff Stone, hosted by David Levi. (Note: Stone holds the Edward Levi Chair at UC, named after David's father).

• University of California's  regents will consider prohibiting academic departments from using university web sites and other channels for political messages unrelated to university business. The proposal responds to many departments at UC schools posting messages supporting Palestine and Hamas and criticizing Israel. Naturally, faculty scream academic freedom, although the inability of the department to speak as an entity does not limit their ability to speak as individual (or a group of) faculty. A question from this: Chicago Principles suggest that sub-units within a university should not engage on current events, for the same reasons the university as a whole should not. But what do Chicago Principles and ideals of academic freedom say when a sub-unit of the university (e.g., UC-Santa Cruz's Ethnic Studies Department) chooses not to abide by those principles but the university imposes them?

• At the upcoming 3rd Annual Law vs. Antisemitism Symposium, I will participate in a roundtable on the legal academy post-October 7. I plan to talk about the December 5 hearing, the range of reactions to it (back to my idea about three camps), and the lessons to be drawn. There is a lot of confusion on that last, as this story from FIRE demonstrates. FIRE is pushing back on proposals at several schools to revise campus speech codes to prohibit explicit calls for genocide against groups. I share FIRE's opposition to such efforts and its arguments against these proposals. But FIRE describes these efforts as "fallout" from the presidents' "disastrous" congressional testimony.

But what makes the testimony "disastrous?" If FIRE is worried about schools expanding their speech codes, the disaster was the presidents advancing (however inartfully) the pro-speech position ("protection of speech depends on context") and getting attacked by Elise Stefanik, who insisted that calls for genocide must violate campus speech codes ("the answer is yes!"), prompting universities to amend those codes to satisfy Stefanik and other committee Republicans. If so, the disaster lay in Stefanik's response, not in their testimony. Or the disaster was their inartfulness--failing to fully explain why context matters or to precursor their statements by condemning such speech. But that requires us to believe Stefanik--a dishonest actor--would not have had the same response to a fully articulated First Amendment vision explaining why many "river to sea" chants are constitutionally protected and thus do not violate campus speech codes.

Qualified immunity and the inversion of the law/equity divide

A divided en banc Fifth Circuit inVillareal v. City of Laredo rejected First and Fourth Amendment claims by a citizen journalist arrested for publishing nonpublic-but-lawfully-obtained information. The majority found no Fourth Amendment violation in her arrest for violating a state statute and that it was not clearly established the statute was constitutionally invalid--no precedent held as much and this does not rise to obviousness invalidity; standard qualified immunity stuff. The case produced four dissents including from Judge Willett argued that QI should not apply to this non-fast-moving, non-split-second situation. Again, standard QI stuff at this point.

Here is one paragraph early in the opinion.

Villarreal and others portray her as a martyr for the sake of journalism. That is inappropriate. She could have followed Texas law, or challenged that law in court, before reporting nonpublic information from the backchannel source. By skirting Texas law, Villarreal revealed information that could have severely emotionally harmed the families of decedents and interfered with ongoing investigations. Mainstream, legitimate media outlets routinely withhold the identity of accident victims or those who committed suicide until public officials or family members release that information publicly. Villarreal sought to capitalize on others’ tragedies to propel her reputation and career.

Three things strike me about the passage:

One is the denigration of what the plaintiff journalist does, a theme repeated throughout the opinion. That the journalistic ethics of her practices (contrasted with "[m]ainstream, legitimate media") render her less worthy of legal protection, in combination with a desire to benefit (in "reputation and career") from publishing stuff.

Second, this point captures the inversion of the law/equity divide in civil rights litigation. Historically, courts of law, and the remedies they provided, were the preferred forum for vindicating rights; plaintiffs should turn to courts of equity and equitable remedies only when legal actions could not remedy their injuries. But the majority says Villareal's first move should have been equitable-- she should have "challenged that law in court," meaning refrain from publishing and bring an offensive pre-enforcement EpY/§ 1983 action for a declaratory judgment and injunction. That is, she should have turned to equitable relief rather than legal relief.

Third, that advice imposes a catch-22. The Fifth Circuit may have rejected Villaeal's EpY action on standing grounds--whether because her intent to publish is not sufficiently immediate or likely or because the city disclaims any intent to enforce the law ("of course we would never arrest a journalist for attempting to publish truthful lawfully obtained information"), depriving her of the necessary imminent injury. Courts are forgiving in First Amendment cases, but views of merits infect the standing analysis; this is true of all courts and of standing generally, but the Fifth Circuit is uniquely obvious. This also begins to make the EpY action resemble a licensing scheme--the federal court order acts as permission to publish.

A bad decision all around. Query whether it prompts SCOTUS review. As Steve Vladeck has noted, SCOTUS spends much of its time correcting Fifth Circuit mistakes. What is one more among friends?

Koppelman on the Colorado cake wars

Andy Koppelman writes about Autumn Scardina and her lawsuit against Jack Phillips and Masterpiece Cakeshop (pending before the Colorado Supreme Court). Koppelman criticizes Scardina for "provok[ing] pointless fights" and offering the Court an opportunity to impose vague-but-bad expansions of free speech or limits on antidiscrimination law.

I have written about this lawsuit here and in our private-enforcement articles. Scardina's litigation demonstrates the commonality ubiquity, and liberal acceptance of defensive constitutional litigation. Like abortion providers and advocates under SB8, Phillips was forced to refuse to bake the cake, get sued, and assert his federal constitutional rights as a defense to liability in state court (so far unsuccessfully).* Unlike with abortion providers and advocates, liberal academics and advocates did not complain about the process or argue that the procedural posture of this case denied the federal courts the opportunity to engage in judicial review or Phillips the opportunity to vindicate his constitutional right.

[*] Colorado's civil rights law mixes public enforcement through the Civil Rights Commission and private enforcement through civil litigation. The Civil Rights Commission began proceedings against Phillips on Scardina's complaint; it dismissed that effort when Phillips brought a federal action to enjoin the proceeding and the federal court declined to abstain, citing Younger's bad-faith exception. Scardina then filed suit in state court.

But there is more to this. Rocky and I are working on piece # 5 in this series on private enforcement, arguing that public accommodation laws and "expressive products" offer the Blue-state counterpart to SB8 and the opportunity for a campaign of actual or threatened litigation to undermine constitutionally protected-but-locally unpopular right-wing conduct of refusing to provide certain products for certain customers. And this context is easier SB8 and other recent Red-State efforts--anyone can order a cake with a simple phone call (or many cakes with many phone calls). Koppelman's objection to Scardina's campaign (he calls it "reprehensible") shows why Blue states are unlikely to take this step. Koppleman is a liberal who believes in balancing LGBT+ rights and religious liberty. He, and other Democratic officials, may not want open legal warfare.

Florida DA prevails (for the moment) in dispute with DeSantis

Andrew Warren, the Democratic state's attorney in Florida fighting his suspension by Ron DeSantis, prevailed (at least for the moment) in the Eleventh Circuit last week.

The court adopted a broad scope for elected officials' free-speech rights against elected officials with supervisor authority. It expressed "skeptic[ism]" as to whether Garcetti applies to elected officials. It declined to resolve that point, because even under Garcetti, an elected official occupies a unique employment space and can speak on matters of public import, under his office's auspices, without reducing them to policy and without them undermining his office. The court then held that DeSantis relied on four First Amendment-protected reasons in suspending Warren, rather than two, as the district court held. The court (and Judge Newsom in a concurrence) focused on the district court conclusion that Warren's support for a reform-prosecutor organization's statement was unprotected because the statement contained one sentence about committing to not enforcing new post-Dobbs abortion laws; the district court erred in pulling that sentence out of its broader context, where Warren never enacted any such blanket non-enforcement policy.

The Eleventh Circuit remanded for the district court to redo its analysis of whether DeSantis would have made the same decision based on the remaining two unprotected considerations--a policy of scrutinizing certain low-level arrests and Warren's general existence as a "reform prosecutor." This is why I say Warren prevailed for the moment. The district court may conclude DeSantis would have removed him for those reasons standing alone. In fact, the district court probably should conclude as such, since it is pretty obvious DeSantis targeted Warren (Judge Newsom's concurrence notes that Warren bragged about this during a GOP primary debate) and would remove him from office for any reason he can find--whether it's two or six. So I expect that DeSantis wins on remand and the Eleventh Circuit affirms, owing discretion to the trial court's balancing.

To be clear, suspending Warren for those two remaining reasons likely violates state law, which allows removal for "misfeasance, neglect, or incompetence." But the state-law validity of the removal is not relevant to the federal claims. Newsom drops a footnote admonishing the district court for "repeatedly" declaring that that the firing violated state law and insisting that "[o]n remand, the district court should avoid such unnecessary (and impermissible) asides regarding the consistency of Governor DeSantis’s conduct vis-à-vis Florida law." (I raised this point in a prior post and the Florida Supreme Court complained about it in denying a writ of quo warranto seeking reinstatement). Warren loses his First Amendment case if DeSantis would have fired him even in violation of state law. And I think it is clear DeSantis would have fired him no matter what--whether because he genuinely believes all reform prosecutors are misfeasant, neglectful, or incompetent and acted on that honest belief; because he believes a Republican-supermajority State Senate will sign off on his decision;* or because he wants the short-term political benefit (in running for president) and is willing to lose at the end of the day. (My money is on # 2 or # 3).

[*] Under state law, the governor suspends the local elected official, which sends the matter to a trial in the Senate. The Senate can affirm the governor's decision and remove the official or reject the governor's decision and reinstate the official.

And so we return to my point since this case began: The real issue is here is the suspension's state-law validity; the First Amendment is a sideshow that does not affect the outcome or allow Warren to return to office. My initial view holds--the district court should have abstained under Pullman or at least certified the state-law issues to the Florida Supreme Court.

Interview with Danielle Holley of Mount Holyoke

I mentioned The Syllabus podcast last week for a discussion about campus protest. Maybe I will make this a permanent feature. Oppenheimer this week interviews Danielle Holley, the new president of Mount Holyoke College; they discuss the benefits of HWCs, "gender-diverse" HWCs, campus free speech and antisemitism, working with SFFA, and the problem of schools pushing STEM at the expense of the humanities. Holley is a former law school prof and dean, hanging in the land of liberal arts.

Some interesting non-law things in the talk: We visited MHC on the college circuit and a friend's daughter graduated from there. And my kid had the same reaction as Oppenheimer's daughter--why does everyone talk about STEM and not English and History on the campus tours.

The interesting law thing: Holley defends Magill and Gay that context matters. She argues that they should have recognized the BS context of the hearing and the premises of Stefanik's questions and thus prefaced every answer with "Of course I oppose antisemitism, but here is why this is protected."

One interesting exchange. Oppenheimer pushes on the benefits of the free-speech maximalist position; Holley exchanges why that ship has sailed, in part because neither side of the political spectrum will accept it and both sides want colleges to restrict speech. Of course, the fact that all sides want the college to restrict speech demonstrates why they should not restrict any (constitutionally protected) speech--the maximalist position requires neutrality of the rulemaker and letting all ideas out, no matter who supports or opposes, because someone will oppose everything. (Stipulating that universities have not been consistent--I remain happy if they figure it out now and moving forward).

Friedersdorf on changes to free-speech culture

In The Atlantic. He offers a nice summary of the moving and changing pieces, including the big-picture moves between different eras from the '80s to now, with October 7 (and perhaps December 5) marking the beginning of a new era.

Two items on campus speech and other protests

Two items on campus speech and other protests.

• Journalist Mark Oppenheimer has a podcast called The Syllabus, dealing with campus politics. The latest episode features Jacques Berlinerblau (Georgetown) discussing the proper role of protest on campus in light of the purposes of universities as spaces for expert discussion, not discussion writ large. He also has an interesting take on the role (or abandonment of the role) of teaching in the undergrad space.

• Jenny Carroll (Alabama, headed to Texas A&M) published Policing Protest: Speech, Space, Crime, and the Jury in Yale L.J.; she argues for a defense for expressive conduct, allowing juries to acquit someone of content-neutral offenses that implicate speech activity. The defense operates as a middle ground or hybrid of justification and nullification.

I thought of the paper (which Carroll presented at FIU last year) in light of recent protests on-campus (sit-ins in the President's office) and off (blocking bridges and airport roads). I have criticized calls for prosecutors and universities to drop charges against those who engage in civil disobedience, because civil disobedience includes bearing the consequences of breaking the law in furtherance of a cause. Carroll offers a middle ground. The First Amendment does not provide a basis for dismissing the charges, but it offers the jury (as voice of the community) to decide that free-speech values should prevail in a particular case. In other words, prosecute the Bay Bridge 78 (they are 11.14 times as great as the Chicago 7) or the Brown students who sat in the president's office and let them try to convince a jury of the expressive righteousness of their cause.

The House of Representatives is in Camp Two

The House on Wednesday passed a non-binding resolution condemning the rise of antisemitism on campuses and condemning Gay, Kornbluth, and Magill for failing "to clearly state that calls for the genocide of Jews constitute harassment and violate their institutions' codes of conduct." It includes the finding that "acts of hate, intimidation, discrimination, and violence-based on ethnicity or religion have no place in our country or in the global community." (Sounds pretty woke for a Republican-drafted proposition). One hundred twenty-five Democrats and one Republican voted against. Recall the old saying about anything that passes with bipartisan support.

The resolution reflects the Camp Two position--antisemitic speech (at least "genocidal" antisemitic speech, whatever that means and however one can tell) is never protected on college campuses. This position belies Stefanik's WSJ op-ed (unpaywalled) centering her criticism on the inconsistent treatment. But that was never her real point, as suggested in her actual questions and the way the rest of the hearing veered into standard conservative attacks on higher ed. This position also presents problems for Camp Three folks who share Camp One's free-speech commitments; as Popehat warned, bad things happen when you support Stefanik's bad-faith efforts at anything.

I have criticized FIRE a lot for its reaction to this dust-up and other stuff. But its (ultimately unsuccessful) statement urging the House to reject the resolution nails the point:

Condemning Presidents Magill, Gay, and Kornbluth for standing for free expression sends exactly the wrong message. FIRE knows all too well that colleges and universities — including Harvard, Penn, and MIT — have a checkered history in defending free expression. But instead of citing past hypocrisy to demand more censorship, Congress should hold these institutions to their newly found free speech promises.

FIRE also hits an additional important point:  "In fact, both sides of the Israel-Gaza conflict have accused each other of genocide." Too many people, especially Jewish groups urging universities to crack down on antisemitism, have ignored this point. If anything arguably reflecting a call for genocide is unprotected, then universities must target and sanction anti-Israel speech ("River to the Sea") and pro-Israel speech ("Stop Hamas"). As ever, empowering the government to censor eventually comes around to speech you like or requires government to draw impossible lines.

Confusing what happened and what can happen on campus

Less than a week having lapsed since The Hearing, we have entered the stage in which people talk about the series of events in a way that is factually incorrect or confuses the issues.

1) Eugene Volokh writes up something I thought about after watching the video (which Steve linked to) of MIT grad student Talia Khan: Khan confuses several things, some of which the university can and should address and some of which it cannot and should not address. Khan talks about groups of students storming the offices of Jewish faculty, students blocking access to buildings, university enforcement of an office-banner rule against Khan's pro-Israel signs that was not enforced against Black Lives Matter posters, and an interfaith chaplain singling out Jewish students--all of that, if true, represents misconduct by university officials or content-discriminatory enforcement (or non-enforcement) of university rules. But Khan also talks about leaving her study group because members said the Jews at the Nova festival deserved to die; the university cannot and should not police repugnant statements in personal conversations.

A different part of Khan's statement struck me while raising the same problem. She mentions a classmate who was afraid to leave his dorm. But we again need to know more about why. Was it to avoid the offense of offensive signs and statements from protesters or was it to avoid the physical encounters? That makes a difference about how we understand not the antisemitism of it, but to understand what universities can or should do about it.

2) I have the same reaction to this piece in The Forward by a Penn undergrad alum and grad student at Columbia. She begins with the question of why Liz Magill "didn't immediately answer with an unequivocal, resounding 'Yes' when asked if 'calling for the genocide of Jews' is antisemitic?" She then shifts to a classroom assignment, in which the professor criticized her for presenting something on the Holocaust (using clips of the film Shoah) because it would make other students (those out at protests) feel uncomfortable and unsafe in the classroom and that "'this is a particular moment where Jewish suffering is not what people want to hear about.'" As with Khan, if true, this represents the university (through a professor in the classroom) infringing the speech rights of Jewish students because of the Jewish content of their speech. That is not what the hearing or the presidents' answers were about.

3) To kvell for a moment: My kid got into Wesleyan this weekend. So I was interested in this short interview with Wesleyan President Michael Roth, who in a previous era of university hatred spoke eloquently of liberal-arts education. Roth almost got it right, but not quite. He admits that his armchair quarterbacking is easy; insists that the presidents' obvious answer was "yes;" then insists that offensive speech is not violence and that students not have a right to avoid offense from non-targeted public speech. But that third point undermines the second point, unless there is an "advocacy of genocide" exception to the First Amendment or "advocacy of genocide" is, per se, incitement under Brandenburg or a true threat; neither of those points is true and I do not hear Roth suggesting either is. So I will deduct half a cheer for Roth for giving an easy answer, presumably knowing that he could not (given Wesleyan's commitments to students) to enforce that easy answer against a peaceful campus protest that included "globalize intifada" chants and signs. Still, I am glad my kid is going to Wesleyan.

4) One narrative has Magill, Gay, and Kornbluth refusing to say calls for genocide of Jews are antisemitic; this is erroneous, as they were not asked this, did not say it, and , in fact, tried to denounce such content. Nevertheless, the narrative has taken hold. Doug Emhoff said it at the menorah lighting. The author of the Forward piece linked above began with it. On my wife's listserv of Jewish alumnae, some insisted that the presidents refused to say that calls for genocide are even "bad."

5) If Paul agrees with me, that must mean we have found the correct answer.

A mess of stuff on campus speech

A mess of items today that reflect different pieces of what I have been trying to put together this week.

1) Popehat began his Camp One defense by attacking the premise of the committee hearing:

A more realistic interpretation is that the hearing was a crass show trial primarily intended to convey that a wide variety of dissenting speech about Israel is inherently antisemitic, that American colleges are shitholes of evil liberalism, and that Democrats suck. Since Democrats do suck, they mostly cooperated. [citing statements by Pennsylvania Governor and potential 2028 presidential candidate Josh Shapiro].

As if to prove White's point, Doug Emhoff at the National Menorah Lighting took aim: "Seeing the presidents of some of our most elite universities literally unable to denounce calling for the genocide of Jews as antisemitic — that lack of moral clarity is simply unacceptable." Except Magill, Gay, and Kornbluth did not fail to denounce calls for genocide as antisemitic. No one asked whether calls for genocide or "river to sea" are antisemitic; Stefanik asked whether those statements constitute protected speech and they gave the correct answer of "it depends on context," because it does. In fact, they did at points condemn the message, just without expressing intent to sanction the speech where it remained protected.

2) David Bernstein said on Twitter (I cannot find the link) that the problem is not universities' failure to stop hate speech but their failure to enforce existing content-neutral campus regulations. The comments of the MIT student in the video Steve links to (and of other students who spoke outside the hearing) confirms that; universities can and should proscribe and sanction much of what she describes, although not because the speech is antisemitic. Had the hearing focused on those university failures, it would have played very differently. Of course that was never the point. Popehat again: "many people bought it, and now it’s being used as part of the culture war against higher education, and too many of you fucking fell for it."

3)Eugene Volokh emphasizes an often-overlooked value of speech: Know what people are thinking:

No-one likes rude awakenings, bitter lessons, and situations with which one is not quite sure how to cope. But they are tremendously useful. Many of us have indeed been rudely awakened to the magnitude of hostility in many American universities to Israel, Israelis, and Jews. But that's not because there has been a surge of such hostility: It's because the existing hostility has revealed itself.

Thanks to the freedom of speech, we have a better sense now than before of who our enemies are, and who our friends are. We have a better sense of how our institutions operate. We have a better sense of how the ideologies that many teach there can play out.

4) Glenn Reynolds attempts to, in my terms, move folks from Camp Three to Camp One:

But as much as I enjoy seeing these people stew in the juices of their hypocrisy – and believe me, enjoy it I do -- it is nonetheless true, as Eugene Volokh cogently points out, that free speech principles, and the First Amendment where it applies, prevent things like a selective ban on anti-semitism, or on “advocacy of genocide” or whatever.

He opposes proposals for new restrictions on campus and a new commitment to the old protections for campus speech. He argues campuses adopted those to protect lefties from the conservative establish; the reverse may have a salutary effect.

5) Rep. Stefanik published an op-ed in the Wall Street Journal (looking for an unpaywalled copy--will update if I find one) placing herself in Camp Three. Of course, that is not the position she pursued through her questions on Tuesday. Maybe she recognized the potential problem with Magill's suggested solution of expanding codes of conduct to reach more speech.

6) I will leave on this question: What will it take to move campers from Three to One? As I have said, I believe many of these campers agree that a lot of this speech (including a lot of the speech at the center of this week's controversy) is protected because it does not rise to incitement, threats, or harassment. But they: 1) Recognize that universities have not acted as if it were protected until Jews were the targets and 2) Expect universities to return to past practices when future speech targets different groups. Given that we cannot predict the future, what should universities do? Is an acknowledgement of the change--which no one has done--sufficient? Must it include a mea culpa (or kaper lanu--a detailed list of past improper firings, expulsions, and sanctions against faculty and students? Must that include some compensation or restitution to them? Does it require more formal prospective commitments? Must universities dismantle the DEI apparatus and presence of CRT programs (that is Reynolds' answer) and maybe all Sociology programs (another WSJ suggestion)? Something more? It would great to see this become the question, rather than unhelpful insistence--perpetuating universities past sins--that everything is incitement to violence.

Many camps respond to the antisemitism hearing

From bouncing around the internet, it seems to me that reactions to the context matters remarks from the three university presidents fall into three camps:

Camp One: They were right, although they did not express the point well. This is the First Amendment community, me included. I recommend what Lee Kovarsky and Eugene Volokh wrote, basically arguing there is no "genocide exception" to the First Amendment. Maybe the presidents could have said it better, but the essential point--context matters--is correct and unavoidable under the First Amendment and these universities' voluntary commitments to free speech. Update: Two more in this camp: Popehat (no surprise--he offers some good examples of what falls on which side of the line) and David Lat (who makes a version of my argument that conservatives will be singing a different tune if Magill follows through on her suggestion to decouple Penn's code of conduct from the First Amendment and the university cracks down on Students for Life of America).

Camp Two: They were wrong; any mention of eliminating Israel is a call for genocide and any call for genocide is a threat or harassment to any individual Jewish person who hears it. This is the ADL, Hillel, and other Jewish organizations. This is many of the non-lawyers, especially alums of the three schools, who do not understand or care about free speech, at least where they dislike the speaker and like the target of the speech. This camp is going to be very upset when Jewish students who support the Hamas war are sanctioned for supporting genocide. (Update: Most importantly, Camp Two wants these presidents to resign in disgrace).

Camp Three: The sudden solicitude for hateful and offensive speech is problematic and insincere because they have not (and likely still would not) express similar solicitude for calls for genocide against Black people or Palestinians. This seems to be many conservative and/or Jewish lawyers and legal academics. It perhaps is Stefanik, had she gotten different answers at the hearing(although, again, bad-faith actor, so who knows?). I think many in this group share the free-speech commitments of Camp One, but doubt the presidents will continue to do so. They watched schools come after speech and speakers because groups other than Jews felt "unsafe" or "threatened;" they watched schools issue public statements and offer support over numerous major world events that affected students as citizens of the world but did not affect the university as university; they watched solicitude and lack of consequence for students who occupied public spaces (the sort of content-neutral regulations universities can enforce). Yet when Jewish students felt unsafe on campus or when Jewish students were affected by world events, they were silent--no (or mealy-mouthed) public statements, a sudden understanding that hateful speech is protected, and a sudden devotion the Chicago Principles. Camp Three also worries about where we go next--when the next big event triggers different speech targeting different groups, how will universities act?

For the moment, therefore, Camp Two and Camp Three align--the presidents' answers were unacceptable and morally bankrupt and all should resign in disgrace. The question is where Camp Three goes as we move away from the heat of this hearing. I believe many in Camp Three recognize that the presidents were right and context does matter. And they must know that going to Camp Two likely will be worse for Jewish students, conservative students, and other preferred speakers. A second question, as I think I have said before, is how to respond when university leaders do the right thing for the wrong reason. If universities should abide by Chicago Principles and allow constitutionally protected offensive speech, should Camp Three accept and work with the right result, even if they reached it for the wrong reasons. Some of this may be suspicion that the commitment will not last when Jews are not the target (see above). But if so, it seems to me Camp Three's response to the hearing should not match Camp Two. Instead, it should be "welcome to the party, pal, but we will be watching to ensure you adhere to these newfound commitments. And your failure to do so may provide a basis for Title VI liability."

Penn abandons the First Amendment (Updated)

Lee Kovarsky and Eugene Volokh offer great defenses of the presidents' answers at Tuesday's hearing, reaching similar conclusions to me in more articulate terms.

Unfortunately, the bad-faith pressure provided too much. Penn President Liz Magill posted a video, apologizing for answering the "does this violate the code of conduct" question in constitutional terms and stating her views that calls for genocide are threatening. She announced plans to reconsider the university code of conduct, with particular reference to whether calls for genocide should be punished as harassment or intimidation. As she put it, "Penn's policies have been guided by the Constitution and the law," but those policies must be "clarified and evaluated" in light of the new rise in antisemitism on campus and across the country.

This is bad for several reasons. As Eugene argues, students must be free to debate important moral, political, legal, and historical questions of when political violence and large-scale loss of civilian life is justified--in Gaza, in Israel, in Germany or Japan during World War II. Those debates are impossible if the university deems such discussions to threaten those who are part of or affiliated with the group suffering in war.

Supposed supporters of Jewish students and Israel may come to regret changes to the policies. Many regard Israel's war on Hamas as a genocide; Jewish supporters of Israel's war effort therefore violate the revised code that regards promoting genocide in the abstract as "threatening" some undefined and unknown Palestinian students. (An emailer described to me an incident at a private university in which a student was reprimanded for saying those defending Hamas are defending baby-killers and thus offending those students--not too far afield. Refusing to have the Constitution and law guide university policies can only lead to more such incidents). Supporters of Israel and Jewish students complain that universities have failed to protect Jewish students from offensive speech in the past two months when they have bent over backwards to protect every other groups from offensive speech. This is a fair criticism. But the answer cannot be to give universities an actual weapon--more-restrictive/less-speech-protective conduct codes-- that universities might use against Jewish speakers.

Finally, of course, the change will not appease bad-faith actors. When Penn applies its new, less-protective policies to sanction a Jewish student who "harassed" a Palestinian student by supporting "genocide" in Gaza, Elise Stefanik and Virginia Foxx will demand that Magill explain why her university has abandoned the freedom of speech.

Update: Claudine Gay (Harvard) issued the following statement:

There are some who have confused a right to free expression with the idea that Harvard will condone calls for violence against Jewish students. Let me be clear: Calls for violence or genocide against the Jewish community, or any religious or ethnic group are vile, they have no place at Harvard, and those who threaten our Jewish students will be held to account.

The first sentence works and would have been helpful at the hearing. I think the devil is in the last clause of the second sentence--does "threaten our Jewish students" mean in the First Amendment sense or in the colloquial sense?

Harvard Hillel responds to President Gay

Harvard Hillel was not pleased with university President Claudine Gay's testimony, especially her answer about "context" to Stefanik's question. It sent the following email:*

[*] For those wondering, since I did not go to Harvard: I donated to Harvard Hillel in Dan's memory years ago. One cannot escape their mailing list.

Here is the key paragraph:

We are appalled by the need to state the obvious: A call for genocide against Jews is always a hateful incitement of violence. President Gay’s failure to properly condemn this speech calls into question her ability to protect Jewish students on Harvard’s campus. Chants to “globalize the intifada,” an endorsement of violent terrorist attacks against Jewish and Israeli civilians, and “from the river to the sea,” an eliminationist slogan intended to deprive Jews of their right to self-determination in Israel, have become tragically routine at Harvard. President Gay’s testimony fails to reassure us that the University is seriously concerned about the antisemitic rhetoric pervasive on campus. We call on President Gay to take action against those using threatening speech that violates our community standards. 

Again, this errs as matter of basic U.S. free speech law. And note the move--in the first sentence it is incitement of violence, in the second it is threatening. But with more--- context---nothing in this paragraph is legally accurate.

In fairness to Hillel, its mission is different than that of members of Congress or attorneys; it acts on commitments other than free speech. But if politics is the art of the possible, Hillel would be better served by recognizing and working within the limitations that free-speech commitments impose, rather than denying they exist and thus demanding what a university or government cannot give.

I reprint the email in full after the jump.

Dear Harvard Hillel Community,

 

Earlier today, Harvard President Claudine Gay testified before Congress about rising antisemitism at Harvard. When pressed during her testimony, President Gay repeatedly equivocated, refusing to characterize calls for the genocide of Jews as a breach of Harvard’s code of conduct, instead saying the offense “depends on the context.” 

 

President Gay’s refusal to draw a line around threatening antisemitic speech as a violation of Harvard’s policies is profoundly shocking given explicit provisions within the conduct code prohibiting this kind of bullying and harassment.

 

We are appalled by the need to state the obvious: A call for genocide against Jews is always a hateful incitement of violence. President Gay’s failure to properly condemn this speech calls into question her ability to protect Jewish students on Harvard’s campus. Chants to “globalize the intifada,” an endorsement of violent terrorist attacks against Jewish and Israeli civilians, and “from the river to the sea,” an eliminationist slogan intended to deprive Jews of their right to self-determination in Israel, have become tragically routine at Harvard. President Gay’s testimony fails to reassure us that the University is seriously concerned about the antisemitic rhetoric pervasive on campus. We call on President Gay to take action against those using threatening speech that violates our community standards. 

 

We do agree with President Gay’s testimony that education on antisemitism is urgently needed at Harvard. Harvard Hillel is ready to work with the administration to bring robust education and training on the history of the Jewish people and the evolution of antisemitism to every audience at Harvard — administration, faculty, staff and students.   

 

We will continue to hold the University administration accountable to make Harvard a place that Jewish students can learn, live, and thrive without fear and intimidation. 

More oxes, more gore, more free-speech opportunism

The House Committee on Education and the Work Force held a hearing with the balanced title Holding Campus Leaders Accountable and Confronting Antisemitism, with Claudine Gay (Harvard), Liz Magill (Penn), Sally Kornbluth (MIT), and Pamela Nadell (History & Jewish Studies, American). Video (I have not had a chance to watch yet) here; news reports here, here, here, and here. More detailed report here.

Committee Chair Virginia Foxx (N.C.) set the tone in her prepared remarks:

Today, each of you will have a chance to answer to and atone for the many specific instances of vitriolic, hate-filled antisemitism on your respective campuses that have denied students the safe learning environment they are due. As you confront our questions in this hearing, remember that you are not speaking to us, but to the students on your campus who have been threatened and assaulted and who look to you to protect them.

More:

Harvard also, not coincidentally but causally, was ground zero for antisemitism following October 7th and is the single least tolerant school in the nation according to the Foundation for Individual Rights and Expression’s 2024 College Free Speech
Rankings. UPenn is right behind them at 247th of 248. MIT is in the middle of the pack.

First, I am old enough to remember Republicans seeing large numbers of students who claimed to have been denied a "safe learning environment" because of "vitriolic, hate-filled" speech (anti-Black, anti-immigrant, anti-LGBTQ+, anti-feminist)--and deriding those students as "snowflakes" who need to grow up and learn to hear and engage with ideas they disagree with, even if they find them offensive. Now, students are "threatened and assaulted" by offensive speech; universities have failed to protect these wronged non-snowflakes; and students earn invitations and special mention at congressional hearings. I also am old enough to remember Republicans complaining about universities issuing public statements about current events and condemning speakers for certain expression. Now university leaders lack the "moral clarity" and "courage to delineate good from evil and right from wrong." And thus to do what? I guess shut down or sanction offensive speech or issue public statements against it.

Second, Foxx's demand for universities to "do something" about all this antisemitism conflicts with the criticism in the second quoted paragraph. Because much of the antisemitic speech people complain about remains constitutionally protected,* shutting down or criticizing that speech would earn these schools worse rankings in FIRE's next survey. FIRE evaluates not only formal university efforts to shut down speech but also the extent to which students "feel" that they cannot speak because fellow students and university officials think less of them and/or criticize them for their ideas. Both are what Foxx seems to demand of Harvard, Penn, and MIT. (If it is not clear, I think the FIRE survey is scientifically nonsensical. That Republicans have weaponized it in this way all the more so).

[*] Examples of actual assaults or unprotected speech are relatively rare. Some unprotected speech and conduct--occupying buildings, interrupting classes, projecting images onto buildings, chalking--lacks protection regardless of its antisemitic content. We perhaps can make hay if schools refuse to punish those who engage in unprotected activities or punish them differently than those who engage in the same activities with different messages. (See, e.g., the non-punishment of some pro-Hamas/anti-Israel events at MIT).

Things unsurprisingly went downhill from there. The exchange garnering the most coverage features Rep. Elise Stefanik (NY) asking whether calling for the genocide of Jews (a fair interpretation of "from the river to the sea") violates university codes of conduct or constitutes bullying or harassment. Magill, Gay, and Kornbluth all responded with some form of "context matters," looking at whether it is directed or whether it crosses into conduct.

But context does matter, at least for public universities and private universities (such as these and most elite research universities) agreeing to abide by the First Amendment--as these and other Republicans have been demanding for years when it comes to speakers they like demeaning, offending, and harassing listeners they don't like. A general call for genocide that does not cross into true threats, incitement, or harassment--which is to say most such speech--retains constitutional protection and thus cannot violate a code of conduct interpreted in light of free-speech concerns. Perhaps the presidents' erred in not framing their discussion of context in an explicitly First Amendment framework. While discussing "context" and "wide berth to freedom of expression," none presented in concrete terms of what this means for codes of conduct and what speech is permitted on campus. Or perhaps respond this way--"if Nazis can march in Skokie, Hamas-loving students can chant 'river to the sea' at Harvard."

I apologize that I am becoming (have become?) redundant on this. But the point remains relevant so long as political leaders (and advocates, some of whom I assumed knew better) make bad-faith statements at bad-faith hearings that show their commitment to free speech lasts as long as their agreement (or lack thereof) with the speech at issue and their sympathy (or lack thereof) with the targeted-and-unsafe student group. And I return to my initial question--what do they expect university presidents to do and who will they react when university leaders address other "viotriolic, hate-filled" speech? On that, this Politico interview with Eugene Volokh hits on many of these issues. Although the piece mentions the coming hearing, Volokh does not talk about it in the Q&A. Based on his answers, I expect (hope) he would be as critical of this hearing and this general conversation.

The 3d Annual Law vs. Antisemitism Conference, hosted in February at FIU, will include a roundtable discussion on campus antisemitism and free speech. We will try to work through these issues.

Oxes, goring, etc.

One important argument for protecting speech you find offensive rests on the impossibility of laying down a principled standard to separate speech and speakers you find offensive from speech and speakers that others find offensive but that you like. If you succeed in getting government to sanction the former, it opens the door to government sanctioning the latter. And you cannot do anything about it without drawing accusations of hypocrisy.

Case in point: Universities have sanctioned faculty members for pro-Israel/anti-Palestinian/anti-Hamas speech. In several ways, they present the mirror of cases involving anti-Israel/antisemitic/pro-Palestinian/pro-Hamas speech:

    • No one can agree on which is which. Did the USC prof wish death on Hamas or on all Palestinians? Did he intentionally step on the memorial display or only accidentally? The current crisis has created a counterpart to "is anti-Zionism antisemitism"--is "anti-Hamas anti-Palestinian." Whatever the merits of the questions and whatever the distinctions one can draw (based on one's views of the content at issue), government should not be drawing them.

    • Apologies are as sincere as the listener is sympathetic to the apologist's speech. One case involves a doctor at Johns Hopkins who called Palestinians "morally depraved" and "savage animals" and responded "god willing" to claims that his call for reclaiming every inch of Israel would produce large-scale slaughter. He apologized, saying his "messages in no way reflect my beliefs, me as a person, a physician, a friend, or colleague." A reporter for the Washington Free Beacon called for Hopkins to forgive the doctor. Why? Because the doctor treated the reporter's daughter--"as the father of a Klugman patient, I know he means it. Why? Because I witnessed with my own eyes how he delivered medical care.” I will let the absurdity of that last part sit without comment.

It would be great if people calling for bans on SJP and similar campus speech would see this story as a warning, as a logical risk (if not inevitability) of their efforts. I doubt it will.

Brown University faculty commit category error

More than 260 faculty and staff at Brown University signed an open letter to President Christina Paxson urging the university not to pursue criminal or student-conduct charges against a group of students arrest for staging a sit-in at a campus building.

 The letter attempts to play "gotcha" with Paxson. They cite her statement to faculty about ensuring "that individual members of the community are free to voice their views, including using their voices to urge lawmakers or other universities to take specific actions or, more generally, express their beliefs on matters of conscience." And they cite her NYT op-ed decrying past instances of state censorship ship of everyone from Galileo to Darwin to communist professors and how those censors were on the "wrong side of history." It follows, the letter argues, that the sit-in enjoys the same constitutional protection, because "freedom of expression is not restricted to speech but includes the right to protest and to perform civil disobedience." The students "undertook a peaceful act of civil disobedience, following a time-honored American tradition."

Whatever the merits of the request, the authors commit a category error in conflating civil disobedience with protected speech and protest. Civil disobedience (including "peaceful acts of civil disobedience") does not enjoy First Amendment protection from sanction. Those who engage in civil disobedience do so to either protest and challenge unjust laws (e.g., lunch counter sit-ins) or to call attention to some other cause through disobedience (e.g., the letter's list of policy changes, such as South Africa divestment, that Brown has enacted in the wake of past sit-ins). The disobedience at issue here falls into the second category. But those who engage in that second category violate valid laws (e.g., a prohibition on occupying the university president's office) with the goal of drawing attention to their cause. They violate that law knowing--and believing it worthwhile--to face punishment and sanction in the name of a larger cause. We may regard that as noble or worthwhile, but it does not confer immunity from neutral, otherwise-valid regulations. And the school enforcing its rules about use of the office does not conflict with Paxson's stated support for free speech, including speech by those with marginal or unpopular views. These students enjoy many ways to advocate for a ceasefire, most of which would not--at a school, such as Brown, voluntarily binding itself to the First Amendment--run afoul of school rules or subject them to arrest or sanction.

We could, generously, read the letter as making a prudential point--the school should refrain from sanctioning them because of their motivations and because of Brown's long history of successful sit-ins and occupations. But that argument does not require the broader efforts to tie this to genuinely protected speech.

PJ as a chilling tool

I wrote earlier this month about the Tennessee lawsuit against Kathy Griffin and how the many who believed personal jurisdiction was lacking allowed their substantive views to affect their jurisdictional views. It was possible, of course, that forcing a speaker to defend nonsense defamation claims in a distant forum adds to the chilling effect and the goal of silencing speakers.

Thank goodness Elon Musk and Twitter (never X) can illustrate the point with this tortious interference lawsuit in the Northern District of Texas against Media Matters and reporter Eric Hananoki, over an investigation into Twitter allowing ads to run next to antisemitic content, after which several major advertisers withdrew (for the moment) from Twitter.

Twitter is a Nevada corporation with its principal place of business in California. Media Matters is a D.C. not-for-profit with its PPB in D.C. Hananoki is a Maryland citizen. The speech was directed to the world via the MM website and other online and traditional media outlets. The complaint identifies several advertisers who withdrew, none incorporated or having PPB in Texas. The best it can do is that many Twitter users are in Texas and many of the advertisers do business in Texas. Unless they have something else, that will not cut it--there was no "Texasness" to the Media Matters report or to any criticism of Twitter. This is what speech-chilling personal jurisdiction in a speech-chilling BS lawsuit looks like.

Putting a cherry on this as a Civ Pro exam: The Fifth Circuit has held that state anti-SLAPP statutes do not apply in federal court, whereas the Ninth Circuit holds that California's statute does apply in Federal Court.

Jews and Free Speech

In light of tensions on- and off-campus over rising Jew hatred and Jew-hating speech, I drift back to Skokie. That case marks a watershed for First Amendment protection of hateful speech. And it famously featured Jews on all sides: The speech targeted Jews; two Jews -- ACLU executive direct Ira Glasser and ACLU staff attorney David Goldberger--led the fight to protect that speech; and many Jews and Jewish organizations supported Skokie's efforts to stop the march and took issue with Glasser, Goldberger, and the ACLU.

So I wonder: What, if anything, does Jewish law say about free speech? Is there something Jewish about free-speech maximalism? Or is it the opposite? Curious if anyone has written on this.

What is Michael Bloomberg talking about?

Michael Bloomber published an op-ed in Sunday's Wall Street Journal (on the "crisis in higher education" reflected in on-campus speech supporting Hamas and the October 7 massacre in Israel.  He presents the usual laundry list of complaints about past campus-speech issues, then claims--without explanation or logic--that those past issues cause the current campus antisemitism. It is nonsense.

Some commentators really want to argue that pro-Hamas campus speech is beyond the pale and universities should and can restrict it. But people spent a decade opposing--and crying "cancel culture" over--efforts to keep TPUSA and Milo Yiannopoulos off campus on the grounds of the speech being offensive. So we end up with Bloomberg's word salad.

1) College presidents have accepted and allowed conformity of views and intolerance for opposing views and students have not been "taught to engage in constructive argument and debate." This leads to "support for terrorism, dressed in the language of social justice" and students "default[ing] to slogans and slurs." What is the causal logic here? That students support Hamas because they were not exposed to brilliant competing ideas that would have changed their minds? That resistance to listening to offensive ideas leads one to support authoritarianism? That pro-Hamas students can do nothing but muster slogans and slurs, as opposed to the brilliant and well-thought-out civil and scholarly debate of "build the wall" or calling LGBTQ+ people "groomers" or whatever the hell Milo used to talk about.

 

2) College presidents issued statements over George Floyd, etc., but said nothing about October 7. Oh, and they ought to adhere to the Chicago Principles. I agree that the timing  is suspicious and that we have reason to fear presidents will return to prior practices when events target a group other than Jews. But if Bloomberg believes universities should get out of public statements, it seems to me he should welcome them seeing the light, regardless of when or why. So either Bloomberg wants presidents to speak out, contra Chicago principles, or his criticism of them is moot.

 

3) We need affirmative action for conservative faculty, apparently because conservatives are better able to "teach students how to engage in civil discourse." Obviously he has no support for that conclusion--some conservatives outside the academy certainly engage in plenty of uncivil discourse, so I do not know why it would be better if they are brought into the academy.

 

4) His paean to academic freedom ends with a call for trustees and university presidents to "manage" faculty, contrary to notions of shared faculty governance that form one cornerstone of academic freedom.

 

5) He gives the game away with these two sentences, several paragraphs apart, but revealing of just where he wants to take this. First, he says "[s]tudents who wish to hurl epithets and reveal their bigotry should be able to do so." But he closes the piece by saying "[t]he bigotry infecting campuses will spread until college presidents directly address its causes and their own role in fostering them." But if bigotry is constitutionally protected, as the first sentence suggests, what does Bloomberg want these presidents to do, as he raises in the last sentence? Kick the speakers off campus? Create safe spaces away from the offensive speech? Speak out and denounce antisemitism? That is, Bloomberg seems to want presidents to do to left-wing supporters of Hamas what Bloomberg and others complain universities have done to right-wing speakers over the past several years.

A standing problem?

The University of Florida chapter of Students for Justice in Palestine, represented by the ACLU, has sued Ron DeSantis, Florida State University System Chancellor Raymond Rodrigues , UF President Ben Sasse, and the UF, and moved for a preliminary injunction. The complaint alleges that Rodrigues, on DeSantis' command, ordered all state universities to deactivate any recognized SJP chapters (USF and UF have chapters). The complaint adds that DeSantis promoted this idea during a recent GOP debate. The complaint does not allege that UF has, at this point, done anything in response to that order.

As structured, this creates a bit of standing (or is it ripeness--who the hell knows) puzzle. Rodrigues' order is not self-enforcing; it does not, of its own force, deactivate UFSJP and thus does not, of its own force, injure UFSJP, meaning Rodrigues does not injure UFSJP. How would an injunction against Rodrigues help UFSJP--perhaps by ordering Rodrigues to withdraw the order? The connection between DeSantis and UFSJP is more remote.

UFSJP's injury arises from UF deactivating it or threatening imminently to deactivate it, something UF has not done or even moved to do. The court could (and probably will) find that the order that chapters "must be deactivated" creates the necessary imminence--the order says UF must do this and UF cannot ignore that command, meaning it will, likely soon, take steps to deactivate. (Much as courts allow plaintiffs to file pre-enforcement challenges before an enacted law's effective date). But, taking the "doctrine" seriously, it is not an easy question. It certainly demonstrates the challenges and necessary precision for plaintiffs in framing these cases.

Kavanaugh and Barrett on universality

SCOTUS refused to stay an injunction prohibiting enforcement of Florida's anti-drag law; Justices Thomas, Alito, and Gorsuch dissent.

Justice Kavanaugh, for himself and Justice Barrett (mostly) issued a statement respecting denial of the stay. It says in relevant part:

Rather, for purposes of its stay application, Florida challenges only the scope of relief ordered by the District Court—namely, that the injunction prohibits state enforcement of the law not only against Hamburger Mary’s but also against other entities that are non-parties to this litigation. To be clear, if this Court, for example, were ultimately to affirm the District Court’s First Amendment judgment on the merits, the State could not successfully enforce this law against anyone, party or not, in light of stare decisis. But district court judgments do not have that stare decisis effect. And the State here contends that the District Court otherwise lacked authority to enjoin the State from enforcing the law against entities other than Hamburger Mary’s. Therefore, the State says that it should be able to enforce the law against those non-parties during the pendency of its appeal.

No federal statute expressly grants district courts the power to enter injunctions prohibiting government enforcement against non-parties in the circumstances presented in this case. The question of whether a district court, after holding that a law violates the Constitution, may nonetheless enjoin the government from enforcing that law against non-parties to the litigation is an important question that could warrant our review in the future. But the issue arises here in the context of a First Amendment overbreadth challenge, which presents its own doctrinal complexities about the scope of relief.

I argued that the district court messed up the scope-of-injunction analysis. In particular, this was not a proper case for overbreadth, which Kavanaugh sees as the reason this case does not present the proper vehicle. Nevertheless, credit for recognizing that stare decisis provides the prospective non-party effect of this decision, whether binding or persuasive.

The opinion adds a footnote, which Barrett does not join, distinguishing enjoining enforcement of statutes and setting aside agency regs under the APA.

More campus speech

Three private universities--Brandeis, Columbia, George Washington--have suspended campus chapters of Students for Justice in Palestine and/or Jewish Voices for Peace. Columbia and GW said the groups violated university policies--holding events or rallies without notice or permission or following procedures (Columbia) and for projecting images onto campus buildings. Press reports (or the universities) have been unclear as to whether they also acted against offensive messages in those unauthorized rallies or light projections. Assuming the universities bind themselves to free speech and academic freedom principles (as I imagine all, as prestige universities, do), that makes a difference as to whether they acted consistent with those principles. Universities can ban groups for not getting permits or for misusing buildings as a projection screen; they cannot ban groups when the problem is the content and viewpoint expressed. Relatedly, to the extent they acted to enforce these neutral policies, the decision must be consistent with past enforcement of those policies against other groups. Is a 90-day suspension the usual sanction for improper projection--or did GW act more harshly against SJP because it disagreed with its messages or viewpoint.

Two other new writing on this. The Academic Freedom Alliance yesterday issued a statement on campus protests, identifying principles that should guide universities in the current environment. Without naming names, AFA hits may point:

Members of the campus community have the right to engage in vigorous political debate and even to articulate extreme political views, but they have no right to try to intimidate or menace other members of the community, violate university policies or state and federal laws, or interfere with the education or lawful activities of other members of the campus community. Any violations of university policies should be expeditiously investigated and university rules protecting the integrity of its mission should be stringently enforced.

Eugene Volokh wrote about the phenomenon of "censorship envy"--a group demands censorship of offensive speech by pointing to past censorship of speech offensive to some other group. As Eugene describes it, the reaction is "[i]f my neighbor gets to ban speech he reviles, why shouldn't I get to do the same?" This principle captures the controversy over failure by universities and DEI offices to prohibit or even criticize some anti-Israel/antisemitic speech, in light of how universities and DEI offices have responded to other hateful or offensive speech in recent years.

Sorkin on free speech

I have written about my change of heart regarding Aaron Sorkin--loved The American President, Sports Night, and West Wing at the time, now find everything about his work (including the earlier work on rewatch) insufferable and repetitive.

But in thinking about stuff happening on campus and the positions of many in the Jewish community on and off campus, this speech from American President sprung to mind: (this is from the president's press conference near the end, responding to GOP criticisms (in-story and real-at-the moment) of the President being a member of the ACLU and opposing flag-burning bans:

America isn’t easy. America is advanced citizenship. You’ve gotta want it bad, ’cause it’s gonna put up a fight. It’s gonna say, “You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.” You want to claim this land as the land of the free? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms.

Admittedly, still kind of insufferably over-the-top. But it contains the kernel of the right idea for Jewish students encountering discomforting, oppressive, offensive speech. Video after the jump.

With great speech comes great responsibility

Interesting statement from University of Chicago President Paul Alivisatos on an important consequence of the Chicago Principles of campus expression:

The Chicago Principles protect the voice of each and every member of our community, inviting all to listen and to engage in a collective dialogue. The sum of this dialogue, noisy and fraught though it may sometimes be, is a kind of gift that we offer to each other through our considered participation. I write to remind you that the inheritance of our university’s environment of free expression comes with serious responsibilities.

He concludes "Our environment of free expression is a gift, and I urge each of you to honor and utilize our gifts responsibly so that we may all deepen our understanding." I think the statement is consistent with Paul's conclusions.

The remedy to be applied . . .

Irony can be pretty ironic.

University hypocrisy on free speech

David Bernstein links to a letter from Bill Ackman (a hedge fund guy I confess to never having heard of, but apparently he is well known) to the Harvard administration detailing his conversations with Jewish Harvard students about the campus atmosphere for Jewish students. Ackman describes the atmosphere as "dire and getting worse, much worse than I had realized." Ackman notes the university's stated commitment to free speech, but responds in two ways. He points to the "legal limitations on free speech" (fighting words and true threats), which simply are not present here, even in the "eliminationist" "river to the sea" message.

And he points to Harvard's past track record on campus free speech (citing, unfortunately, to FIRE's questionable ratings system) and arguing the claim "rings false and hypocritical to the university at large and the Jewish community in particular." Ackman repeats the point that David and I raised--universities did not discover the "right" approach to speech controversies--stay out of public controversies, respect that speech can be ugly and make people uncomfortable--until Jewish students were in the crosshairs.

But I keep coming back to what Ackman (or anyone else) wants Harvard and other universities to do. Ackman makes 7 asks. The second and third involve identifying and sanctioning protesters chanting "Intifada and other eliminationist statements" and students making antisemitic statements or sharing antisemitic imagery in Slack message boards--without regard to many (most?) of these chants and messages being fully constitutionally protected--ugly, but constitutionally protected. While demanding "an environment with true freedom of expression," he seems to want Harvard to treat antisemitic speech the way schools had been treating anti-Black, anti-LGBTQ+, anti-immigrant, anti-abortion speech in prior years.

So if not that, then what? If schools should not continue the same erroneous course, we should be glad that they have seen the light. even under suspicious circumstances and for suspicious motivations--that the same messages directed at any other group would be widely denounced if not silenced). There may be an independent benefit to calling out that inconsistency, either to prompt schools to acknowledge past mistakes and to agree not to return to the old approach when the speech targets other groups. School have not done either, enabling the hypocrisy charge. (David made this point in an email exchange, and I agree).

But Ackman--and others--want more. Ackman's fourth ask is that Harvard facilitate the process of identifying racist and antisemitic students for future employers or grad schools. But this triggers a distinct free-speech debate. On one side is the employer's or (private grad program's) free speech and free association interests--cancel culture as "more speech." On the other is the specter of McCarthyism and black lists that Genevieve Lakier (Chicago) highlights. To have Harvard (which is the "government" in this context) enable those blacklists or to have public grad programs enforce them might strengthen the analogy.

Addition: Michelle Goldberg captures the big picture on this, noting the collision between calls for Jews and Israelis to receive the same protections that other groups have received against "identity-based slights" and the First Amendment rights of Zionism's critics and academic freedom. She speaks with Kenneth Stern, director of Bard College's Center for the Study of Hate and author of a 2020 book (with forward from Nadine Strossen) on how Israel/Palestine has played on campus.