Tuesday, October 15, 2019

LeBron James: Shut up and make trades

You would think that LeBron James--who has used his expressive platform more than most mega-stars and has been told on more than one occasion to "shut up and dribble"--would support an NBA colleague attacked for doing the same. You would be wrong.

Everything LeBron said could have been (and has been) applied to his statements on subjects such as Black Lives Matter, police violence, the killing of Eric Garner, etc.: 1) Morey was not educated on the subject (Taiwan Hong Kong) about which he spoke (while admitting it was just his "belief" that Morey was not informed); 2) people could be harmed as a result of his speech; 3) bad things can happen from the exercise of free speech and you cannot think only of yourself when deciding what to say, on or off Twitter. Ironically,the Morey tweet was supported people protesting in favor of democracy and who were subject to police violence--the very ideas James purport and support in his speech.

Posted by Howard Wasserman on October 15, 2019 at 07:10 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (3)

Sunday, October 06, 2019

So glad sports are not political

Houston Rockets GM last week tweeted "Fight for Freedom. Stand with Hong Kong." This pissed off Rockets owner Tilman Fertitta, who insisted that Morey does not speak for the Rockets, which is a "non-political organization," although Fertitta regularly publicizes his support for the Bushes and President Trump. Morey's tweet caused the Chinese Basketball Association, headed by former Rocket star Yao Ming, to suspend cooperation with the Rockets following Morey's "'improper remarks regarding Hong Kong' to which it expressed its 'strong opposition.'" The NBA, trying to save its business interests, responded with the following word salad:

We recognize that the views expressed by Houston Rockets general manager Daryl Morey have deeply offended many of our friends and fans in China, which is regrettable. While Daryl has made it clear that his tweet does not represent the Rockets or the NBA, the values of the league support individuals' educating themselves and sharing their views on matters important to them. We have great respect for the history and culture of China, and hope that sports and the NBA can be used as a unifying force to bridge cultural divides and bring people together.

The ESPN story highlighted the league trumpeting the "open flow of ideas," although those words appear nowhere in the NBA statement and the reaction by the Rockets owner, the CBA, and the NBA all seem to reflect a desire to staunch the flow of ideas, since the premise of every reaction is that Morey was out of line to tweet a political opinion. Plus, in what universe is a statement in support of people protesting freedom "regrettable"? And who was "deeply offended," besides the leaders of an authoritarian state that is the target of pro-western protests?

Posted by Howard Wasserman on October 6, 2019 at 10:03 PM in First Amendment, Howard Wasserman | Permalink | Comments (8)

Saturday, August 24, 2019

More on SLAPP laws in federal court

The Fifth Circuit on Friday held that Texas's SLAPP law does not apply in federal court on diversity, following the (correct) analysis from the D.C., 10th, and 11th Circuits that the state law conflicts with FRCP 12 and 56 by adding an additional hurdle to trial. This decision complicates the circuit split because the 5th Circuit had held in 2009 that Louisiana's SLAPP law applies in federal court. The panel held it was not bound by circuit precedent. It was pre-Shady Grove, which the panel says sharpened the proper analysis. And the Texas law is different than the Louisiana law; the latter uses standards that look like summary judgment, while Texas imposes higher standards that more "manifest[ly]" conflict with the Federal Rules.

I doubt this will be the case on which SCOTUS will resolve the question, at least not immediately. The first move will be en banc reconsideration on the Fifth Circuit to resolve its internal split.

My conclusion on the overall Erie question is that the "special motion" provisions should not apply in federal court but fee-shifting provisions should. The question is whether that sufficiently protects free-speech interests, by allowing litigation to last a bit longer (until the protections of NYT can do their work in an appropriate case), but allowing the defendant to recover attorney's fees, which recoups the defendant's major financial burden.

Posted by Howard Wasserman on August 24, 2019 at 11:26 AM in Civil Procedure, First Amendment, Judicial Process, Law and Politics | Permalink | Comments (2)

Thursday, August 22, 2019

Popehat on free speech

Ken White (a/k/a Popehat), a criminal-defense and First Amendment lawyer, has a piece in The Atlantic exposing free-speech cliches. He is spot-on, as always.

Posted by Howard Wasserman on August 22, 2019 at 03:07 PM in First Amendment | Permalink | Comments (2)

Tuesday, August 20, 2019

MLS bans "political" signs

Deadspin destroys MLS's policy prohibiting "Using (including on any sign or other visible representation) political, threatening, abusive, insulting, offensive language and/or gestures, which includes racist, homophobic, xenophobic, sexist or otherwise inappropriate language or behavior." The league and teams have interpreted that language to prohibit signs protesting racism, fascism, etc., as well as signs using racist language.

The question should be who owns the stadiums MLS teams play in and the terms of ownership and operation of these facilities. If they are publicly owned and leased to the teams or if there is a substantial public involvement in the financing, building, and operation, it might trigger arguments that MLS teams act under color of state law and thus are bound by the First Amendment. A ban on political signs in a public space opened for expression should not survive constitutional scrutiny. Particularly where, as the Deadspin piece argues, MLS has encouraged "European-style, community-minded soccer fandom," where fandom and expression about community matters (beyond the team) are intertwined.

Posted by Howard Wasserman on August 20, 2019 at 10:23 PM in First Amendment, Howard Wasserman | Permalink | Comments (4)

N.C. Court blows the mulligan

I was right that the withdrawal of the original opinion in the "flip-off-the-cop" case could have been for the majority to find a new basis to justify the traffic stop without having to accept that flipping the officer off was constitutionally protected. Which it did, although now with a dissent.

The court does recognize case law (it somehow missed the first time around) that the finger is protected and less likely to constitute fighting words when directed at an officer. But the  majority offers a new theory: The officer could not tell who the defendant was flipping-off: the officer (which would be constitutionally protected speech) or another driver (which somehow would not be; if the latter, the officer could have believed that the situation between the defendant and the other driver was "escalating" and, if left unchecked, might have become disorderly conduct. Importantly, the officer needed only reasonable suspicion, not probable cause, to make the initial stop and determine if the defendant was trying to provoke another motorist.

The dissent calls out the majority for, essentially, making up facts. The officer testified that he saw the driver wave at him, then turn the wave into the middle finger directed at him; there was no testimony about the situation escalating or about concern for a gesture at another car. The dissent insists that flipping a middle finger is protected by the First Amendment and thus cannot provide reasonable suspicion. Although he does not say it, that should be true regardless of at whom the gesture was directed.

Posted by Howard Wasserman on August 20, 2019 at 01:51 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, August 17, 2019

Hit Man Podcast

iHeart Radio has a new podcast titled Hit Man. It tells the story of the book "Hit Man: A Technical Manual for Independent Contractors," the murder it supposedly inspired, and the lawsuit against publisher Paladin Press, in which the Fourth Circuit held that the book was not entirely protected by the First Amendment under Brandenburg. Also worth reading is Eugene Volokh's Crime-Facilitating Speech, which sought to develop a speech-protective framework for speech that provides information that can be used for bad purposes but that does not incite or advocate (under which I believe the book would have been protected).

It is in eight parts. The first episode, giving some background to the book, was quite enjoyable.

Posted by Howard Wasserman on August 17, 2019 at 11:18 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, August 15, 2019

N.C. court recalls opinion on the bird (updated)

Earlier this month, the North Carolina Court of Appeals held that flipping-off a police officer provided probable cause to conduct a traffic stop; it was a "rude, distracting" gesture that could cause a reasonable officer to believe a crime was being committed, such as disorderly conduct. This opinion was inconsistent with federal courts that have held that it is clearly established that flipping the bird is protected by the First Amendment. I did not blog about the case, but I had some interesting email exchanges about the case, including how it interacted with last Term's Nieves v. Bartlett.

Today, the court of appeals withdrew the opinion, with the panel retaining jurisdiction to dispose of the case. No idea what that means. It could mean a majority will hold that the officer lacked probable cause to stop the case. Or it could mean a new opinion finding a basis for probable cause that does not involve constitutionally protected expression.

While this is good for the First Amendment, it is hard not to wonder how much the universal derision the opinion received on the interwebs affected the judges and their decision to reverse course (as to reasoning if not result). And it is hard not to think that this is not a good thing for the judicial process. There are processes in place for reconsidering a decision. Those processes should not involve Twitter.

Update: I was briefly Twitter-famous last week (despite not being on Twitter) when people found this post and criticized me for "bemoaning" the restoration of rights caused by Twitter saying mean things about the decision. Other then piled on to suggest I was trying to take away their right to criticize the government. And one commenter here--in a more-thoughful and less-character-constrained way--suggested that sometimes this is necessary, if imperfect, to snap courts out of the assumption that every case is the same and routine.

I see the latter point. But if rights can  (in a tweeter's view) be "restored" by Twitter pressure on a court, then rights can be taken away by Twitter pressure on a court. I cannot remember the judge or the case. But in 1995, a judge in the S.D.N.Y.  suppressed evidence in a criminal case, saying that a person running upon seeing a police officer does not give probable cause to stop, because people of color in New York have learned from experience not to trust the police and to avoid all interactions. The judge was lambasted and threatened with impeachment; he withdrew the opinion (not sure if it was in response to a motion to reconsider) and held the search was valid. Imagine the Twitter response, had it existed.

Posted by Howard Wasserman on August 15, 2019 at 01:11 PM in First Amendment, Howard Wasserman | Permalink | Comments (4)

Monday, August 12, 2019

Protest (and be punished) like it's 1968

At the Pan Am Games, fencer Race Imboden knelt on the gold-medal podium during the anthem and hammer-thrower Gwen Berry raised her first. Both face sanction, because not much has changed since 1968. The U.S. Olympic and Paralympic Committee offered this internal contradiction: "Every athlete competing at the 2019 Pan-American Games commits to terms of eligibility, including to refrain from demonstrations that are political in nature,” although "[w]e respect his rights to express his viewpoints.” No, you clearly do not respect his rights to express his viewpoints when those viewpoints are political in nature. Because standing at attention during a national anthem while playing "for your country" is never political.

The USOPC (did not realize the "P" had been added) is not bound by the First Amendment and can restrict athlete speech however it wishes. But do not pretend that you also respect the athletes' rights to express their views.

Posted by Howard Wasserman on August 12, 2019 at 09:39 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (7)

Saturday, August 10, 2019

"The Grievance Studies Affair," purpose, and result

FIRE's So to Speak podcast interviewed the three authors (Jim Lindsay, Helen Pluckrose, and Peter Boghossian, the latter of whom is on the faculty at Portland State) behind the "Grievance Studies Affair." The three wrote and submitted a series of papers designed to show that certain humanities disciplines, which they call "grievance studies," lack scholarly rigor and feature a broken peer-review process. Seven papers were accepted, four were published, and seven were still in play when everything was exposed last fall. Boghossian was sanctioned by his university (subscription required) for failing to obtain IRB approval for a study on human subjects (the editors and reviewers who read the papers).

Critics of the the authors and their hoax accused them of  trying to get people fired and departments shut down, comparing them with Hungarian Prime Minister Viktor Orban's efforts to ban gender studies at Hungarian universities. The authors reject this criticism; they insist they respect academic freedom and did not want to see anyone fired or any departments closed. Instead, they hoped universities would use the information they exposed to recognize the defects in these fields and thus discount scholarship in these fields and these journals when making tenure and hiring decisions.

But what is the difference between people being fired and people being denied tenure or not hired? The result is the same--scholars who publish this stuff in these journals should not be working as professors in these universities. And if these departments cannot (or should not) hire these scholars, the departments will close. The difference is motive. Orban want to control what academics write and wants to close gender studies because of political and ideological objections to the field; Lindsay, Puckrose, and Boghossian want these journals to do better in their peer-review and publication decisions and want these scholars to do better in their research and writing. One opposes academic freedom; the other protects academic freedom by ensuring that a university is place of intellectual rigor and serious truth-seeking--that academic freedom serves its purpose.

So Lindsay, Puckrose, and Boghossian would like certain people not to have jobs in academia--those who write what they believe (and what they believe they have proven to be) poor scholarship undeserving of publication and tenure. They claim to have a good reason for that goal and we can debate the means and ends (I am largely agnostic over the whole thing). But it is disingenuous to suggest that lost jobs and empty departments are not the logical conclusion of what they believe they have shown and what should happen.

For what it is worth, I am somewhat surprised that FIRE cared about this case, except perhaps for the sanctions imposed on Boghossian, which are somewhat specious. And I am surprised FIRE approached the hoax and this interview as the typical culture-war/tyranny-of-the-left/silence-the-right campus-speech issue. The authors wrote papers reaching (sometimes silly) left-leaning conclusions, which fits the ideology of the journals and the fields. But FIRE usually does not care if lefties say or write silly things and it generally does not care about the vigor of  discourse in scholarly journals. FIRE cares about viewpoint discrimination, when one position is allowed and the other shut down or when one position is foisted on unwilling listeners. But the hoax did not show such discrimination--that otherwise similarly rigorous scholarship reaching a right-wing conclusion was not published. One of the authors described this as his one regret in the project--they never wrote a paper reaching that reverse ideological result to see if it would be published. Had they done so and the piece been rejected, they would arguably have shown the sort of political biases about which FIRE cares. Without that, this really looks like a take-down of silly lefties and silly academics--fun for many, but not FIRE's typical bailiwick.

Posted by Howard Wasserman on August 10, 2019 at 02:17 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Friday, August 09, 2019

Money talks

People are calling for a boycott of Equinox in the wake of disclosure that owner Stephen Ross is hosting a Trump fundraiser. Expect more of this following the release by Texas Rep. Joaquin Castro of a list of Trump donors. Ross issued a nonsense statement that first tries to shame critics for, unlike him, "sit[ting] outside the process and criticiz[ing]." He then insists that he supports the President's economic policies (read: big tax cuts for him) while supporting racial equality and inclusion, and that he is not ashful about disagreeing with the President or about expressing his opinions (although he did not specify whether he expresses those contrary opinions to Trump--given what we know about Trump, I doubt it).

One issue we discussed during a SEALS panel on expressive conduct is how we handle the fact that consumers increasingly base their choices on their politics and conscience--avoiding businesses that support certain causes or that are owned by individuals who support certain causes. Contrary to Ross's statement, that is a form of direct engagement and support for (or opposition to) the things one deeply cares about (since we can't all put on million-dollar fundraisers).

But if buyers can express their political preferences through their consumer choices, why not sellers? Is it the difference in power, since the seller often is the only game in town? Is it because a seller's choices would look not like political preferences but like identity-based discrimination, which customers are allowed but businesses are not? We did not reach any great theoretical resolution on the panel. The question shows that it is not as simple as "this is a business transaction," because so much more is involved in both sides of that transaction.

Posted by Howard Wasserman on August 9, 2019 at 06:57 AM in First Amendment, Howard Wasserman | Permalink | Comments (2)

MAGA student speaks (with minor edits)

So now we know. The MAGA-hat-sporting student that Gonzaga Prawfs Jeffrey Omari described is Austin Phelps, a rising 3L who has taken to the pages of the same ABA Journal to give his side of the story.

Phelps' version differs from Omari's in two important respects. Phelps makes it sound as if the MAGA hat was not a late-semester sartorial one-off; it sounds as if he had worn the hat and a Trump-Pence 2020 shirt at various points in the semester and that his laptop was festooned with similar stickers.* He also says Omari did not call on him "with the frequency that left-leaning students enjoyed." Omari described a conservative student who participated in class (enough to make his views known) but how had to that point "not  . . . donned any political paraphernalia in the classroom."

[*] Yet another reason to ban laptops.

He also complains about called out for wearing a build-the-wall t-shirt to his "university-affiliated internship," which he attributes to Omari's op-ed. The internship enforced a neutral (although never-before-enforced) rule banning t-shirts with slogans while at work.

The rest of the piece combines a defense of free speech, with an explanation for his support for the President (including filling two SCOTUS seats "with conservative posteriors," so glad he writes like a serious future lawyer). All of which reflects "my struggle" as a conservative law student--which might not have been the best choice of phrase, considering the context.

Posted by Howard Wasserman on August 9, 2019 at 06:23 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (6)

Tuesday, August 06, 2019

Second Circuit revives Palin defamation suit

Decision here. I wrote about the case here.

The court of appeals correctly criticized the district court's weird use of an evidentiary procedure (testimony from the primary author of the challenged editorial) to evaluate the complaint. When a court considers information outside a complaint, it either must exclude the information and continue as a 12(b)(6) or convert to summary judgment; it cannot use the information and continue to treat the motion as a 12(b)(6). The Times argued that the testimony was background information that was "integral to" the material in the complaint; but that could not be right, because the information was obtained after the complaint was filed, as opposed to information the plaintiff could have relied on in drafting the complaint.

The problem with the decision was in holding that Palin's Amended Complaint (drafted with the assistance of that testimony) was plausible. This is bad for First Amendment purposes but procedurally interesting in two respects.

The court found that the district court had credited the editorial writer above the allegations in the complaint, which was improper. The district court had stated that the author's conduct was "much more plausibly consistent" with a mistake than with actual malice. But it "is not the district court’s province to dismiss a plausible complaint because it is not as plausible as the defendant’s theory. The test is whether the complaint is plausible, not whether it is less plausible than an alternative explanation." Twombly and Iqbal contain language that a complaint is implausible where there is a reasonable alternative explanation for the conduct (in Iqbal, the alternative was "protecting the nation after 9/11" rather than "invidious discrimination"). Lower courts have generally ignored that language; here, the Second Circuit flatly rejects that analysis, at least in this type of defamation action.

The court closed the opinion as follows:

We conclude by recognizing that First Amendment protections are essential to provide “breathing space” for freedom of expression. But, at this stage, our concern is with how district courts evaluate pleadings. Nothing in this opinion should therefore be construed to cast doubt on the First Amendment’s crucial constitutional protections. Indeed, this protection is precisely why Palin’s evidentiary burden at trial—to show by clear and convincing evidence that Bennet acted with actual malice—is high. At the pleading stage, however, Palin’s only obstacle is the plausibility standard of Twombly and Iqbal. She has cleared that hurdle.

But this raises an important point. The clear-and-convincing evidence standard has been incorporated into summary judgment, because whether a reasonable jury could find for the plaintiff must account for the standard. Should the same be true for 12(b)(6)--must it be plausible by clear-and-convincing evidence? This would twist pleading from its purposes, but Twombly and Iqbal did that in trying to make it a weed-out point. The question is whether we follow that to its logical conclusion.

The standard of proof may define how much of a problem this case will be for The Times and the First Amendment. The bulk of the analysis defines this as a case of competing factual inferences--Palin's facts show actual malice, the author says it was a mistake; if so, then this case cannot go away on summary judgment, because the court is equally prohibited from deciding witness credibility as would be required in this case--only a jury could resolve those questions.* That last paragraph of the opinion, emphasizing the standard of proof that will apply at trial and summary judgment, may have been a signal to the lower court about what should happen next.

[*] The court declined to treat the district court decision as one for summary judgment because, even as a summary judgment decision, the court impermissibly made credibility determinations.

Posted by Howard Wasserman on August 6, 2019 at 06:56 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Friday, August 02, 2019

Free speech on campus

A random assortment of free-speech controversies on campus. Some were discussed in programs at SEALS.

• Complaints about MAGA hats (and other clothing) in the classroom are becoming a somewhat common thing for deans to deal with, complaints coming more from students than faculty. For the moment, everyone seems to conclude that the clothing is permitted as protected speech that, while offensive and derogatory to many, is tied to the sitting President and within the bounds of allowable public discourse. Although one colleague wondered about a time we could have said the same about a swastika, when that changed for the swastika, and when that might change for MAGA. The only true solution is a school or classroom dress code, which nobody seems to want.

• What is worse--the epithet or the offensive idea behind the epithet? Should it be impermissible for someone to use a derogatory word--even when that word is contained in course materials being discussed--but permissible for someone to use the precise language describing an idea we now regard as offensive? Is it possible to distinguish them?

For example, what is the difference between quoting from cases the derogatory words for African-Americans, people with mental disabilities, or undocumented immigrants, and quoting  the derogatory ideas about women in Justice Bradley's concurring opinion in Bradwell v. Illinois. For another example, what is the difference between one student calling another student a derogatory name and one student spouting, approvingly, derogatory ideas as part of the class discussion (e.g., minority populations causing more crime); the former should be sanctioned because students should not attack one another, but what about the latter?

On one hand, it seems odd that the word is worse than the idea. On the other, if you treat them the same and sanction (as opposed to challenging and exposing) the expression of "wrong" ideas in a class discussion, it really does interfere with the supposed academic mission of exploring ideas and seeking truth. And you can respond to, challenge, and demonstrate the wrong-headedness of an idea; you cannot do that with an epithet (this is the justification for the fighting-words doctrine).

• I learned about an ongoing controversy at the University of Tennessee. The state and the university have been trying to defund the student group Sexual Empowerment and Awareness at Tennessee (SEAT) and its signature event, "Sex Week." The legislature passed a law prohibiting state funds from being used for Sex Week. This was not a huge deal, because most of SEAT's non-private funds came from the student-activities fees program. Under Rosenberger, the university could not deny funds to SEAT because of disagreement with its sex-positive (and sex-provocative) viewpoint.*

[*] Rosenberger remains my favorite unintended-consequences case, in which a victory for one political position has been used as precedent to provide victories for the opposite political position. Religious conservatives cheered the decision, which held that the state could not deny activities funds to religious organizations. But the case's staunch prohibition on viewpoint discrimination has been used to stop university efforts to defund all manner of liberal student groups. I think this may make an interesting article, especially in showing the difference between judgment and opinion/precedent.

The university's solution, imposed after SEAT refused to "compromise with university administrators who have asked it annually to 'tone it down' and consider the impact of its language choices"** was to eliminate the student-activities fee pool, replacing it with a system in which the university approves and funds all speakers and programs. The university hopes this converts all student programs into the university's speech, allowing the university to pick and choose based on viewpoint or any other considerations. The new program has not been implemented, so it remains to be seen how it plays out.

I think it is a matter of allies. Right now, most student groups oppose the program; College Democrats and College Republicans both hate it. If many student groups do not get money under the new scheme, SEAT will continue to have many allies in the fight. If everyone gets money except SEAT (which is what the university and state hope will happen), SEAT may find itself alone in the fight.

[**] In other words, compromise by changing your speech to make it more palatable to the government.

• Last spring, three white University of Mississippi students posed holding weapons in front of an Emmett Till memorial the was riddled with bullet holes; the photo was taken by a fourth, unknown person, and posted on the private social-media page of one of the students. The identified students were suspended by their fraternity. The university referred the matter to the FBI, but did not continue its investigation because, it claims, it was unaware that the FBI had completed its investigation (the FBI concluded that the photograph was not a specific threat). News stories question how the university responded to that initial bias report in March, particularly whether the university knew the identities of the students at that time (they are Ben LeClere, John Lowe and Howell Logan). The university says it will resume its student-conduct investigation, although it initially said the photo did not violate the code of conduct because it happened off-campus in a non-school setting. And the story seems to be wrapped in broader discussions of removing Confederate monuments on campus.

Is there any doubt that the photo and posing in front of the monument are protected by the First Amendment? This is not an unprotected "true threat" because it is not targeted at "a particular individual or group of individuals." It occurred off campus and was posted to a private social-media page; so even if we allow a university greater leeway to regulate racist speech on the quad or in the dorm, it does not extend to these actions. The photo is racist and offensive and I am glad their fraternity expelled them. I would like to see the university take more seriously, in word and deed, its obligation to engage in counter-speech. And perhaps the three will crawl back into hiding. But a public university's speech code is limited by the First Amendment, which prohibits government from sanctioning someone for engaging in protected speech, no matter how much we hate what they say.

Update: An Ole Miss faculty member pointed to this 2016 story of two students who pleaded guilty to civil rights violations for hanging a noose and a Confederate flag around the campus statute of James Meredith. Other than one happening on campus and one off (which is irrelevant to the criminal charges), it is hard to see a meaningful distinction between this and the current case--they are equally threatening or equally non-directed.

Posted by Howard Wasserman on August 2, 2019 at 10:25 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (4)

Monday, July 15, 2019

Free speech: Change or leave?

A fascinating thing about the President's remarks this weekend about four female Democratic reps of color, and of many responses from several congressional Republicans, is the model of free expression they represent. That model amounts to "if you don't like it, leave the country." This is not new. The President and Republicans have said similar things about Colin Kaepernick, Megan Rapinoe, and other athletes who kneel during the national anthem.

In this vision, there is no room for someone to criticize government policies or actions with the goal of prompting change. Nor is there a need to respond to criticisms by explaining why those critics are wrong and that the current action is the proper course. There is no need or room for discussion or debate--critics should shut up or get out.

Of course, the President's critics are seeing something good (i.e., anything he does) and purposely writing or saying bad. That, we learned last week, is not free speech.

Posted by Howard Wasserman on July 15, 2019 at 11:11 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Monday, June 24, 2019

Whither Cohen?

In Iancu, Justice Alito's concurrence and the Chief's partial dissent both assert that Congress could constitutionally prohibit trademarks for vulgar or profane words (The Chief argues that Congress did so in the word "scandalous," while Alito argues Congress must amend the statute to do so). Alito goes so far as to argue that the word fuck, as hinted at in the F-U-C-T mark, "is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary."

But neither Alito nor the Chief cites Cohen. (Neither does Justice Kagan's majority opinion, because "scandalous" is not limited to vulgarity or profanity, so it does not matter to her analysis). And Cohen answers Alito's argument that profanity signifies nothing except emotion--emotion is an essential and inseparable part of the message.

Only Justice Sototmayor's partial dissent (joined by Justice Breyer) addresses that case. She argues that, at best, Cohen means that a restriction on profanity is viewpoint-neutral content discrimination. Profanity "tweaks" or "amplifies" the viewpoint, such that the message is without the profanity is "not quite the same" as with it. But targeting profanity does not target the viewpoint expressed in the message--California would not have allowed a jacket with "Fuck Draft Protesters."

I see Sotomayor's point, although I am not sure I agree. First, consider Justice Alito's plurality (which Sotomayor did not join) in Matal v. Tam, in which Alito argued that the "disparaging-mark" provision was viewpoint-discriminatory. Alito called it a "happy-talk clause" that prohibited registering any mark that criticized, whether the target was racists or anti-racists. A "clean-talk clause" should be equally problematic.

Second, if Sotomayor is correct, it gives short shrift to the possibility of the trademark program as a public forum, specifically a "limited public forum." A limited public forum is supposed to be a designated public forum (government space, opened for speech), although limited to specific speech or speakers. The limitations on the forum must be defined in viewpoint-neutral terms, although the terms can be content-discriminatory (e.g., a forum can be limited to political speech, but not to conservative political speech). Once that forum is established, any content-based restrictions on speech otherwise within the forum must survive strict scrutiny. Unfortunately, the Court has never explained well how to identify the definition of the limited public forum (which merely must be viewpoint-neutral) and exclusions from the established forum (which must be content-neutral, unless able to survive strict scrutiny). Sotomayor believes that, if the trademark system is a forum, the prohibition on "scandalous" (interpreted as "profane") marks makes it a limited public forum for non-scandalous (meaning non-profane) marks. But it as reasonable to see the trademark system as a limited public forum for "marks related to products offered for sale in interstate commerce." In that case, the limitation on scandalous/profane marks, being content-based under Cohen, must survive strict scrutiny.

Maybe this issue comes back around when Congress amends the trademark law to expressly prohibit profane marks.

Posted by Howard Wasserman on June 24, 2019 at 01:57 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Justice Alito takes on SJWs and foreigners

From the first paragraph of Justice Alito's concurrence in Iancu v. Brunetti:

Viewpoint discrimination is poison to a free society. But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination. We reaffirm that principle today.

It is impossible to read that as anything other than an attack on progressives who would like hateful and discriminatory speech prohibited, especially on campus. Or an attack on Twitter and Facebook for their supposed anti-conservative bias in banning certain users. Or a potshot at European countries such as France and Germany, which maintain democracies committed to free speech while prohibiting viewpoints such as Holocaust-denial.

The idea that "free speech is under attack" has migrated from the Intellectual Dark Web to the U.S. Reports.

Posted by Howard Wasserman on June 24, 2019 at 01:14 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Thursday, June 20, 2019

Justice Gorsuch, standing, and the end of the Establishment Clause

Justice Gorusch, joined by Justice Thomas, concurred in the judgment in American Legion v. American Humanist Association. Gorsuch argues that the plaintiffs lacked standing, because "offended observer" standing should not exist (and really is a product of Lemon, which he reads as having been buried today). Offense is not a basis for standing in any other context and is inconsistent with the rule against generalized grievances. Recourse for offense is either averting one's eyes or resort to political solutions.

If Gorsuch is right, it is difficult to imagine who has standing to bring an Establishment Clause claim. He offers three examples: A student forced to recite a prayer in school, a person denied public office because of his religious affiliations (or lack thereof), and a person denied government benefits for not practicing a favored religion. This seems disingenuous. Two of those examples are not purely Establishment Clause issues--the government official, at least at the federal level, also has a claim under the Religious-Tests Clause; the government benefits claim also could be pursued under the Free Exercise Clause or, as in Texas Monthly (which Gorsuch cites) the Free Press Clause. But a student would not have standing to challenge the prayer if she were merely forced to watch others recite it or to leave the room to avoid it. And no one has standing to challenge any public religious displays. In fact, looking at those examples, it would appear that a state could establish an official church  and no one would have standing to challenge that as long as individuals are not forced to participate in that church or otherwise disadvantaged for their non-participation in the religion.

Gorsuch's rejection of offended-observer standing also is inseparable from the narrowing of Flast taxpayer standing. Gorsuch did not offer a taxpayer as an example of someone with standing, so it appears he does not consider that a viable route. But this further constricts the range of available plaintiffs. The core Flast case has remained narrow because there is usually someone who can show something other than a pocketbook injury--there has been no need for a taxpayer to challenge the use of public funds for the Christmas tree display at City Hall because someone who had to encounter the display in City Hall could bring the claim. That avenue is foreclosed. So I expect the next target will be the core Flast case, where Gorsuch almost certainly lines up with the Chief, Thomas, and Alito.

Gorsuch's argument illustrates, in two directions, the Fletcherian point that "injury" is inseparable from the constitutional right at issue and so is really a merits issue. First, the response to Gorsuch's offense-is-not-injury argument is that the Establishment Clause is different than the Free Speech Clause or the Free Exercise Clause or the Equal Protection Clause. The point of the Establishment Clause is to prevent the government from creating a state religion, either formally or in practice; it prohibits the government from elevating religion and from imposing that elevation on members of the public. Thus, individual constitutional rights are violated by that elevation and being confronted with that elevation, as by erection of a large cross. But there is no equivalent provision prohibiting the government establishing or elevating racist ideas, as by flying the Confederate Flag. Or, to put it in the school context: The Free Speech Clause is satisfied so long as a student need not recite the Pledge of Allegiance (put aside "Under God"); the Establishment Clause prohibits the government from sponsoring prayer, even if participation is not required.

Second, Gorsuch's apparent view of standing reveals the substantive scope of his Establishment Clause. Government elevation or promotion or sponsorship of religion is constitutionally permissible--even to the point of establishing the Church of Alabama or naming the Southern Baptist Convention as the official religion of the State of Alabama--so long as no one is forced to participate or loses out for non-participation. Certainly no one would have standing to challenge that action, because the only injury would be the offense and message of exclusion. In any event, that Establishment Clause does not do any work independent of the Free Exercise Clause.

I would add that I do not follow offended-observer standing wherever it leads. In the travel ban cases, I argued against standing for those individuals claiming offense from the existence of the ban and its application against other people. But the key was that standing (or constitutional violation, as I like to think of it) is tied to execution, not the existence, of a law. So one can claim offense from the erection of the cross, but not from the law authorizing erection; one can claim offense from being barred because of religion, but not from the law authorizing the barring.

Posted by Howard Wasserman on June 20, 2019 at 04:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Monday, June 17, 2019

No state action in administering public-access cable channels (Updated)

In Manhattan Community Access Corp. v. Halleck, SCOTUS held that the private non-profit corporation designated by New York City to manage state-required public-access cable channels was not a state actor, so not subject to First Amendment limitations in banning a speaker from the channels. Justice Kavanaugh wrote for the Chief, Thomas, Alito, and Gorsuch; Justice Sotomayor dissented for four.

The opinions seemed to look at different facts triggering different analyses.

The majority applied the public-function cases, which hold that a private actor only performs a public function if it is traditionally and exclusively performed by government; "operation of public access channels on a cable system" has not been exclusively performed by government. The majority rejected a more general description of the function as managing a public forum; merely hosting speech does not create state action. And the city's designation of the corporation to operate the channels was equivalent to granting a license or to regulating the private entity, neither of which is sufficient.

The dissent argued that this was not a case of public regulation of a private entity, but of government delegation of a constitutional obligation to an entity created (with government assistance) for purposes of assuming that obligation. The city retained an interest in transmitting certain content (whatever goes on the public-access channels) over the privately owned cable or in regulating the transmission of content over that cable; Sotomayor analogized the cable to a privately owned billboard where the government contracted to access to space on the billboard in exchange for allowing the private company to place it. Given this property interest and the nature of the space as a forum for speech, the case was controlled not by the regulated-entity cases, but by the cases in which government delegated a constitutional obligation to a private entity. Managing a designated public forum is akin to providing medical care for prisoners--government is not required to designate public forums or imprison people; having done so, it incurs constitutional obligations in how it does so; and private persons assume those responsibilities when government delegates its constitutional responsibilities. The distinction is between a private entity entering the marketplace to do a job and the government hiring a private agent to perform its tasks; in the latter situation,the question is not whether the task is traditional and exclusive, but whether the government had an obligation to perform that function.

The majority attempted to narrow its decision, emphasizing that this was not a case of a delegated constitutional obligation, of the city maintaining a property interest in the channels, or of the city managing the channels itself. But the majority did not address or hint at the case the dissent believed this case to be--the government opening a public forum, then delegating management to a private entity (created for that purpose). It also is worth watching whether some municipalities in New York cease managing the P/A channels and delegate to private entities.

In an event, this decision should, for the moment, take care of people complaining about being banned from Twitter and YouTube. Update: Ken White of Popehat has a Twitter thread on why the arguments in favor of regulating platforms have no support on the Court--all nine Justices accept the starting proposition that a private actor who opens private space for speech does not become a state actor.

Posted by Howard Wasserman on June 17, 2019 at 04:51 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (4)

Thursday, May 30, 2019

Florida supports free speech in universities . . . sometimes

I wrote last month about the free-expression statement adopted by the Florida State University System. I described it as a good statement, emphasizing  the importance of not stifling ideas because some find them offensive or abhorrent and of not allowing stated concerns for civility or respect be a cover for stifling expression.

Yesterday, the state took a giant step backward when the governor, at a cabinet meeting in Israel (which may be unlawful under state sunshine laws) signed into law a broad prohibition on anti-Semitism at public educational institutions. It defines as anti-Semitism a broad range of protected (if heinous) speech about Jewish people and about Israel. The law does include a clause that it shall not be construed to "diminish or infringe" upon protected constitutional rights. But the point of the April statement was to emphasize the special role of free expression on college campuses. It said not that the First Amendment applies there (because, duh), but that free speech plays a special role there and members of those communities must be especially tolerant of even repugnant ideas. Unless those ideas are anti-Semitic. FIRE is not happy.

This law does tie back to the discussion over that New York Times cartoon from April. The law defines as anti-Semitism certain criticism of Israel, while allowing "criticism of Israel that is similar to criticism toward any other country." But comments to my post and Steve Lubet's separate Faculty Lounge post argue that criticism of Israel may be anti-Semitic even if it is similar as that leveled at other countries, if the criticism plays on historic anti-Semitic stereotypes.

Posted by Howard Wasserman on May 30, 2019 at 04:27 PM in First Amendment, Howard Wasserman | Permalink | Comments (6)

Wednesday, May 29, 2019

Politics and sports, again

The Fresno Grizzlies, the Washington Nationals' AAA affiliate, is being criticized for a video it showed on the scoreboard during its Memorial Day game. Images were shown over the sound of Ronald Reagan's First Inaugural; when the speech turned to "enemies of freedom," the video showed Kim Jong-un, Fidel Castro, Alexandria Ocasio-Cortez, and various protesters holding ANTIFA and "NO TRUMP NO KKK" signs. The team has apologized to Ocasio-Cortez specifically and to fans generally; the official team line is that the video was produced by a third party and found online (it seems to be available on You Tube) and no one with decisionmaking authority within the organization watched the whole thing.

This piece of an article, quoting Grizzlies General Manager Derek Franks is interesting:

Franks said it wasn’t a deliberate attack by the employee or the Grizzlies organization on the congresswoman.

“No, no, no, not at all,“ Franks said. “There was no ulterior motive. Our goal is never to mix baseball and politics and in this case, this was not an exception that was made. It was simply a careless mistake that we will make sure never happens again.”

First, bullshit as to the employee's intent. I can believe it was not a deliberate attack by the organization; I buy the excuse that no one with real authority in the organization watched the whole video. That is gross negligence, but not necessarily  deliberate. But some low-level lackey must have watched the entire thing and put it forward, probably figuring no one above him was going to check his work.

Second, bullshit on the team not wanting to mix baseball and politics. It is impossible to not mix baseball and politics because baseball is loaded with politics. Otherwise the Grizzlies never would have shown the video. To suggest otherwise defines politics to mean partisanship--the National Anthem or a patriotic video is not political because both parties sing and like it. This is nonsense (even allowing that a speech by Ronald Reagan is non-partisan). There is nothing wrong with mixing baseball and politics--we have been doing it for 100+years--although it makes sense to keep your political message as anodyne as possible to avoid situations like this. But own the political nature of it.

Third, I am less troubled by the inclusion of Ocasio-Cortez (although I appreciate  her complaint that things like this ramp-up the barrage of hate mail and threats she receives*) than I am by the inclusion of images of protesters. The idea that protesting--including protesting fascists, an unpopular President, and the KKK--makes someone an enemy of freedom to be defeated is, unfortunately, telling about where we have landed.

[*] And some morons cannot resist making things worse even when purporting to defuse the situation. Fresno Councilman Gary Bredefield called the video inappropriate, but could not stop himself from adding that socialism "is the exact opposite of our founding principles and traditional values"--in other words, that Ocasio-Cortez's political ideas, and thus Ocasio-Cortez, are un-American. Think that might set-off a few crazies with Twitter accounts?


Read more here: https://www.fresnobee.com/news/local/article230903884.html#storylink=cpy//www.fresnobee.com/news/local/article230903884.html#storylink=cpy

Posted by Howard Wasserman on May 29, 2019 at 10:31 AM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Tuesday, May 28, 2019

We have Nieves (finally)--now what?

After six months, the Court finally decided Nieves v. Bartlett. My SCOTUSBlog analysis is here.

I am guessing the long delay owed to five opinions flying around with different combinations of ideas. Eight Justices agreed that the plaintiffs should lose here on summary; only Sotomayor would affirm, because the defendants did not challenge the way the Ninth Circuit applied the standard. Eight Justices agreed that that the presence of probable cause does not automatically defeat all retaliatory-arrest claims; only Justice Thomas made that argument. Two Justices (Ginsburg and Sotomayor) argued that the Mt. Healthy burden-shifting framework should apply; two Justices (Sotomayor and Gorsuch) argued that any direct evidence of improper motive, not only comparison of similarly situated persons, should be sufficient to show improper motive. A five-Justice majority (the Chief for Breyer, Alito, Kagan, and Kavanaugh) said probable cause is required unless the plaintiff can show objective evidence that he was arrested when similarly situated persons who did not engage in his speech were not. Both Sotomayor and Gorsuch feared this standard was insufficiently protective of First Amendment interests--Sotomayor's solution was to challenge the standard as wrong, while Gorsuch's was to work the lower-court refs and convince them that the majority's approach is broader than its language would suggest.

I am surprised by two things, First, Ginsburg was not able to cobble together a majority with Breyer, Sotomayor, Kagan, and Gorsuch, given the concerns that Kagan raised during argument. Second, no one emphasized proposed limitations as between serious and petty crimes or as between probable cause for the immediate charge at the time of arrest or probable cause based on a months-long scouring of the statute book.

Also, note the way Sotomayor's dissent engages with recent scholarship exposing the reality of police/public interactions and the litigation that results. This includes noting that any defendant police officers likely were indemnified and that most encounters are recorded by both police and members of the public, producing more evidence to prove (or disprove) improper motive.

Posted by Howard Wasserman on May 28, 2019 at 10:09 PM in First Amendment, Howard Wasserman | Permalink | Comments (3)

Saturday, May 25, 2019

The difficulty of civil rights relief

I may give my Civil Rights class the story of San Francisco police raid on a free-lance journalist seeking the identity of the journalist's source and unused material for a story on the death of the county public defender. The chief of the San Francisco police apologized on Friday, saying the search and seizure was wrong in several respects, that it would not use the materials seized, and that the matter was being referred to other agencies for further investigation. The journalist, Bryan Carmody, has moved to quash the warrants.

The case illustrates the difficulty of obtaining retrospective relief and remedies in federal court for constitutional violations and the way plaintiffs must threat a needle. It thus provides a nice puzzle for class discussion. Consider:

  • The constitutional merits are up in the air. The search may have violated California's shield law, which protects journalists against disclosure of sources and unpublished information, including by police; but state law cannot provide the basis for a § 1983 claim. Nor can the fact that the officers violated department policies. The First Amendment does not provide such protections. There could be a First Amendment retaliation claim, as the police who obtained and executed this warrant seem to have had it in for Carmody; that claim may depend on how the Court resolves Nieves v. Bartlett (if it ever does) on the connection between probable cause and First Amendment retaliatory intent.

    • The judges who issued the warrants have judicial immunity.

    • Police officers have derivative judicial immunity for carrying out the warrant. That immunity is lost if execution went beyond simple enforcement, as some stories suggest it did in using a battering ram and pry bar to get into the house and handcuffing Carmody during the search. Of course, the officers may enjoy qualified immunity, unless Carmody can find precedent involving an over-the-top search of a journalist's home.

    • There is a better claim that the officers did not disclose Carmody's status as a journalist in the warrant application, which the chief identified as a problem. But again, it likely is not clearly established by factually similar case law that not disclosing a search target's status as a journalist violates the First or Fourth Amendments. And even if clearly established, it may be hard to identify or establish damages arising from the omission on the warrant, independent of the search (which was authorized by warrant).

    • The city cannot be sued. The search violated departmental policy in several respects. There is no indication that any department or city policymakers were involved in the warrant application or search. And there is no indication that this has happened previously to put policymakers on notice that training  ("hey, don't search journalists looking for sources") was necessary.

Posted by Howard Wasserman on May 25, 2019 at 03:18 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Thursday, May 23, 2019

Universal declaratory judgments

Chief Judge Saris of the District of Massachusetts entered a final judgment declaring invalid a Massachusetts law prohibiting surreptitious recording of government officials. This was two consolidated actions, one brought by two individuals and one brought by an investigative-journalism organization.

The court declined to issue a permanent injunction, finding that a declaratory judgment was sufficient, in part because:

Defendants have stated they will follow this Court's ruling, and the Court will take them at their word. . . .The Court "assume[s] that municipalities and public officers will do their duty when disputed questions have been finally adjudicated and the rights and liabilities of the parties have been finally determined . . ."

But what does it mean to follow the court's ruling? Does it mean not enforcing the law against the plaintiffs in these cases or does it mean not enforcing the law against anyone? That is, can a declaratory judgment be universal to protect beyond the named plaintiffs? Or must declaratory judgments be particularized, as injunctions must be (or so I argue). This affects what might trigger conversion of the D/J into an injunction-were the government to attempt to enforce the law against someone other than the plaintiffs.

The answer should be that a declaratory judgment must be as particularized as an injunction. Under the Article III/litigation-structure arguments from Sam Bray, Michael Morley, and me, the point is that any judicial remedy must be particularized because the remedy should resolve the dispute between the parties to the action and not beyond. In endorsing particularity in federal remedies, SCOTUS explicitly treated declaratory and injunction relief the same, as stopping enforcement of the challenged law only against the federal plaintiffs and leaving the state free to enforce against others who violate the statute. Moreover, declaratory judgments are a "milder" form of relief because non-coercive, compared with the "strong medicine" of an injunction. If so, it would not make sense for the milder remedy to have broader party effects than the stronger remedy. Finally, it would be odd for these plaintiffs to be able to convert to an injunction to stop enforcement of the law against someone else, just as one individual cannot ask a court to enjoin enforcement of a law against someone else.

Posted by Howard Wasserman on May 23, 2019 at 09:15 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (13)

Tuesday, May 21, 2019

Waiting for Nieves v. Bartlett

SCOTUS heard argument in Nieves v. Bartlett on November 26, the first case of the December sitting. This means it will be more than five six months from argument to decision, even if the case comes on the next opinion day (Tuesday, May 28). It was obvious from the argument that the Court was divided and searching for a middle ground that would leave officers free to handle disorderly conduct situations while not leaving police free to arrest government critics for minor violations, while also not having lots of cases going to trial. The long drafting time suggests a divided court and multiple opinions.

The Court heard ten cases in this sitting; seven have been decided and three remain--Gamble (Fifth Amendment separate sovereign), Carpenter (how much of eastern Oklahoma remains Indian reservation), and Nieves. Roberts and Alito have not written anything from this sitting. Both seemed inclined towards the officer in Nieves.

Posted by Howard Wasserman on May 21, 2019 at 11:49 AM in First Amendment, Howard Wasserman | Permalink | Comments (4)

Wednesday, May 15, 2019

Ballparks as public spaces and free speech

Interesting interview with architectural critic Paul Goldberger about his new book, Ballpark: Baseball in the American City, in which he describes baseball parks as "a key part of a whole category of public space in the American city." I have a thing for old ballparks, so I look forward to seeing the book.

Goldberger's conception of the ballpark as "public space" is key to my arguments about fan speech. Because the First Amendment is understood as making (publicly owned or controlled) public spaces open for expressive activities, at least so long as expression is not inconsistent with other uses of that space. The grandstand of a ballpark is a large speech zone--the whole point of the space is to allow fans to speak in the form of cheering, shouting, waving signs, etc.

Posted by Howard Wasserman on May 15, 2019 at 09:31 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (5)

Wednesday, April 17, 2019

FIU Law Review: Barnette at 75

I am happy to announce that the new issue of FIU Law Review is available online, featuring last fall's symposium Barnette at 75: The Past, Present, and Future of the Fixed Star in Our Constitutional Constellation. The hard version (which includes Q&A transcripts and a contribution from keynote speaker John Q. Barrett) should be available soon. Ron Collins wrote something up at FIRE. My introduction includes a discussion of an issue I have been playing with--whether, if you could establish state action (which I do not believe you can), the NFL violates the First Amendment by prohibiting players from kneeling during the anthem.

The TOC and links are available after the jump.

Volume 13, Number 4 (2019) Barnette at 75: The Past, Present, and Future of the Fixed Star in Our Constitutional Constellation

Front Matter

Introduction

Introduction: Barnette at 75
Howard M. Wasserman

Articles

Posted by Howard Wasserman on April 17, 2019 at 01:38 PM in Article Spotlight, First Amendment | Permalink | Comments (1)

Tuesday, April 16, 2019

"profane past participle form of a well-known word of profanity"

Anyone else find absurd the Court's refusal to use or allow the use of profanity in a case that is all about profanity and the ridiculous (if clever) work-around the government's lawyer found? Melville Nimmer rolls over in his grave.

Posted by Howard Wasserman on April 16, 2019 at 05:44 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Florida State University System Free Expression Statement

The Florida State University System issued a Free Expression Statement to "support and encourage full and open discourse and the robust exchange of ideas and perspectives on our respective campuses." It is a good statement from a First Amendment standpoint. It emphasizes the purpose of higher education in allowing divergent ideas to be debated (a proposition with which my colleague Stanley Fish disagrees); the importance of not stifling ideas because some find them offensive or abhorrent; and that concerns for civility or respect be a cover for stifling expression. It also reiterates schools' power to regulate through neutral time, place, and manner regulations, which still allows administrations to restrict a lot of expression (including by counter-protesters).

The full statement is after the jump.

State University System Free Expression Statement

The State University System of Florida and its twelve public postsecondary institutions adopt
this Statement on Free Expression to support and encourage full and open discourse and the robust exchange of ideas and perspectives on our respective campuses. The principles of freedom of speech and freedom of expression in the United States and Florida Constitutions, in addition to being legal rights, are an integral part of our three-part university mission to deliver a high quality academic experience for our students, engage in meaningful and productive research, and provide valuable public service for the benefit of our local communities and the state. The purpose of this Statement is to affirm our dedication to these principles and to seek our campus communities’ commitment to maintaining our campuses as places where the open exchange of knowledge and ideas furthers our mission.

A fundamental purpose of an institution of higher education is to provide a learning environment where divergent ideas, opinions and philosophies, new and old, can be rigorously debated and critically evaluated. Through this process, often referred to as the marketplace of ideas, individuals are free to express any ideas and opinions they wish, even if others may disagree with them or find those ideas and opinions to be offensive or otherwise antithetical to their own world view. The very process of debating divergent ideas and challenging others’ opinions develops the intellectual skills necessary to respectfully argue through civil discourse. Development of such skills leads to personal and scholarly growth and is an essential component of the academic and research missions of each of our institutions.

It is equally important not to stifle the dissemination of any ideas, even if other members of our community may find those ideas abhorrent. Individuals wishing to express ideas with which others may disagree must be free to do so, without fear of being bullied, threatened or silenced. This does not mean that such ideas should go unchallenged, as that is part of the learning process. And though we believe all members of our campus communities have a role to play in promoting civility and mutual respect in that type of discourse, we must not let concerns over civility or respect be used as a reason to silence expression. We should empower and enable one another to speak and listen, rather than interfere with or silence the open expression of ideas.

Each member of our campus communities must also recognize that institutions may restrict expression that is unlawful, such as true threats or defamation. Because universities and colleges are first and foremost places where people go to engage in scholarly endeavors, it is necessary to the efficient and effective operations of each institution for there to be reasonable limitations on the time, place, and manner in which these rights are exercised. Each institution has adopted regulations that align with Florida’s Campus Free Expression Act, section 1004.097, Florida Statutes, and with the United States and Florida Constitutions and the legal opinions interpreting those provisions. These limitations are narrowly drawn and content-neutral and serve to ensure that all members of our campus communities have an equal ability to express their ideas and opinions, while preserving campus order and security.

Posted by Howard Wasserman on April 16, 2019 at 10:01 AM in First Amendment, Teaching Law | Permalink | Comments (3)

Wednesday, April 03, 2019

Free speech petards

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

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

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

Sunday, March 24, 2019

Inclusive forests and racist-insult trees

The history podcast Backstory did an episode on the history of profanity. The fourth piece is an interview with Smith College history professor Elizabeth Pryor, who is the daughter of comedian Richard Pryor. (You can listen and read the full transcript of the story at the link).

Pryor begins with a story about a lecture on citizenship and the Civil War, in which a white student repeats the following joke from Blazing Saddles (which Richard Pryor co-wrote with Mel Brooks):

The joke is relevant to a lecture on 19th-century citizenship, a time in which Irish people did face discrimination.

But Pryor describes the class encounter as follows: "And she said, 'We don’t want the CH’s and the N words, but we will take the Irish,' but she said all the words."

Pryor got the joke backwards. The difference between the joke and how Pryor describes the joke gives it an extra layer, especially as it relates to that lecture. The people of Rock Ridge use racist epithets to describe Black and Chinese people but are willing to accept them in their community; they do not use epithets to describe the Irish people but are unwilling to accept them in their community. This presents some nice questions to explore: Which is worse--being excluded or being described in disparaging terms? How much do the epithets show that Black and Chinese people are not accepted in the community, even if allowed to live among them, because identified in disparaging terms? Does the sole focus on words obscure actions?

Posted by Howard Wasserman on March 24, 2019 at 01:52 PM in Culture, First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (3)

Tuesday, March 19, 2019

Nunes v. Devin Nunes' Cow

I do not have much to say about Nunes v. Twitter, which includes as a named defendant "Devin Nunes' Cow." The lawsuit is absurd, reflects no understanding of the First Amendment or defamation law, is poorly drafted, and should be sanctioned frivolous under Rule 11 (or the Virginia counterpart). Folks are having fun with it across the Interwebs.

But some are expressing concern that this lawsuit, while facially ridiculous, is part of a broader campaign by Trump supporters and allies to bring defamation lawsuits, even patently meritless (if not frivolous) ones, hoping that the costs of defending will bankrupt or silence critics. If so, it calls to mind the campaign among Alabama officials against civil rights activists and the northern press that led to New York Times v. Sullivan. But the attorney fee provisions in state SLAPP laws are designed to protect defendants against this strategy, making that the more important component of these laws (rather than the special motion to strike, which is really just a 12(b)(6)) and the component that unquestionably should apply in federal court.

Posted by Howard Wasserman on March 19, 2019 at 11:42 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, March 18, 2019

More right-wing snowflakes are outraged

This story about calls by some UC-Davis students and California Republicans for the firing of a Davis professor who called (on Twitter, several years ago) for the killing of police officers reminds me of a comment I made last summer about calls by the Broward County Police Benevolent Association to boycott the Miami Dophins for not forcing players to stand. The political right, on and off campus, has as little patience for objectionable speech as the political left and is as ready to call for boycotts and firing of speakers who say mean things they do not like.

The Davis situation and the Dolphin situation share another similarity (as does the ongoing controversy at Sarah Lawrence College, which has gotten far greater attention but is still a call to sanction a professor for "expressing his views"). As one person put it on Twitter: "[T]erms that absolutely no one in the media has used so far to describe this episode include snowflakes, call-out culture, victimhood culture, outrage culture, cancelled, coddled, PC run amok, censorship, self-censorship, fragility, identity politics, or micro-aggressions."

And just to head-off a response: The prof's speech, while obnoxious, is constitutionally protected and comes nowhere close to incitement.

Posted by Howard Wasserman on March 18, 2019 at 06:14 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, March 13, 2019

Another right is clearly established--flipping cops the bird

So says the Sixth Circuit (h/t: Volokh). At least for the moment--the court only affirmed denial of defendant's 12(c) motion.

Posted by Howard Wasserman on March 13, 2019 at 06:09 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Sunday, February 24, 2019

New flag controversy at Ole Miss, different result (so far)

Prior to a game played while about 100 pro-Confederacy protesters marched through Oxford and onto campus a few hundred feet from the arena, where they were met by about 50 counter-protesters.

At least so far, no one has criticized the players, not even the President. I am curious whether anyone will do so, given that this in specific response to what many people regard as a racist rally by a "hate group." This also highlights the changing meaning of using the flag to counter-speak--the message here was different in context than what Kaepernick did. Finally, we have clear state action here, unlike with the NFL; any attempt to punish the players would implicate First Amendment rights.

Ole Miss Coach Kermit Davis spoke about it after the game (video is embedded in some of the links above):

This was all about the hate groups that came to our community trying to spread racism and bigotry, you know, in our community. It’s created a lot of tension for our campus. I think our players made an emotional decision to show these people they’re not welcome on our campus. We respect our players freedom and ability to choose that.”

Davis' support is important because when was announced as coach last spring, he went out of his way to announce that he would create a program with a "respectful team that respects the flag and the National Anthem." Perhaps he now realizes that these protests are not disrespectful--or at least that it is not as simple as throwing around the word respect.

Posted by Howard Wasserman on February 24, 2019 at 01:12 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (4)

Tuesday, February 19, 2019

Thomas calls for reconsideration of NYT v. Sullivan

In a solo opinion concurring in denial of cert in a defamation action brought by one of the women who accused Bill Cosby of sexual assault. It is typical Thomas fare--rejecting a precedent as an improper judicial policy choice that should be reexamined in light of history, convincing to no one else on the Court. But do not be surprised if it makes its way into a presidential tweet as part of his plan to "open up" libel laws--overruling Sullivan is the first, necessary step to that end.

In the final paragraph, Thomas writes "We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified." But this seems like a rhetorical cheat. The Free Speech Clause was not incorporated against the states under the Fourteenth Amendment until 1925. So, to the extent time matters, it took less than 40 years for the Court to begin meddling in this area, a shorter period of time.

Update: Someone reminded me of an additional point. Another reason that the Court did not use the First Amendment to limit defamation until 1964 was because it was not until 1960 that public officials in Alabama began an organized campaign to use big-money defamation lawsuits to stop the northern press from reporting about segregation and Massive Resistance to Brown, revealing the similarity between seditious libel and defamation when brought to bear by public officials in this context.

Posted by Howard Wasserman on February 19, 2019 at 12:07 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (9)

Sunday, February 17, 2019

The continued relevance of Barnette (Updated)

In Lakeland, Florida.

Update, Monday, 2/18: More stories and details coming out about the arrest, including the Lakeland Police offering the following:

To be clear, the student was NOT arrested for refusing to participate in the pledge; students are not required to participate in the Pledge of Allegiance as noted in the Polk County School Board Code of Conduct for Students. This arrest was based on the student’s choice to disrupt the classroom, make threats and resisting the officer’s efforts to leave the classroom. The students name is not being released in accordance with Florida Public Record Laws regarding juveniles arrested for a misdemeanor.

But note the question-begging here. The Dean of Students and a police officer went to the classroom on a report of a disturbance and asked the student to leave, which he finally did after 20 requests; the student was arrested for disrupting a school function and resisting the officer. But the "disturbance" that triggered the initial classroom visit was created by the substitute teacher who argued with the student when he declined to recite the pledge. The Dean and the police removed the student from the classroom even though the teacher acted inappropriately, as the school recognized in asking the teacher to leave the school immediately.

There also is some blame-shifting and ass-covering between the school and the police. The school insists that it did not request an arrest or that charges be filed, that it merely discussed the code of conduct with the student and his family, and that it does not condone what the substitute teacher did. Meanwhile, the police are setting up a contempt-of-cop argument: The kid got lippy and resistant, justifying the arrest; it is not about the speech in which he engaged. This as we wait for SCOTUS to decide whether probable cause for some charges justifies retaliation for First Amendment conduct.

Posted by Howard Wasserman on February 17, 2019 at 02:38 PM in First Amendment, Howard Wasserman | Permalink | Comments (13)

Wednesday, January 23, 2019

Your new civ pro exam question

A lawyer in Kentucky is threatening to sue a whole lot of people for defamation for commenting on the videos of the Covington Catholic students at the Lincoln Memorial. He was excited by the fact that, because the kids were initially not public figures, he only has to prove negligence rather than actual malice. I believe he is going to have a hard time showing falsity or negligence, since much of the commentary was based on the speaker's interpretation of multiple videos from multiple angles that painted an at-least ambiguous picture. There also is a group-libel angle--one group of potential plaintiffs are Covington Catholic alumni, who claim they have been defamed by the negative comments about their school.

For now, I have a different question: Is there personal jurisdiction in Kentucky (where I assume he plans to sue) over reporters and others on Twitter who saw and commented on the video? Under an effects test, the statements must be directed at Kentucky. That the plaintiffs are from Kentucky is not enough, standing alone. The events being commented on occurred in Washington. The statements were sent to the world, not specifically (or primarily) to Kentucky. Many of the potential defendants have never set foot in Kentucky, certainly not as part of these events.

The counter might be that the students' "Kentuckiness" was part of the public commentary about them--everyone quickly knew and talked about where they were from and where they went to school and the connection of their homes to their presence in DC. And criticism of the school and Covington was part of the criticism of the students. Perhaps that is sufficient to establish purposeful direction at Kentucky.

Posted by Howard Wasserman on January 23, 2019 at 01:08 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Saturday, December 15, 2018

Deepening split on SLAPP laws in federal court

Earlier this month, SCOTUS denied cert in a case out of the Tenth Circuit holding that a state anti-SLAPP law does not apply in federal court under an Erie/Hanna analysis. This week, the Eleventh Circuit weighed in, agreeing that Georgia's law does not apply in an action action CNN.

If you are scoring at home, that is three circuits (1st, 5th, 9th) holding that SLAPP laws apply in federal court and three circuits (DC, 10th, 11th) holding they do not. The Ninth Circuit position is why Stormy Daniels owes Donald Trump $ 300,000 in attorney's fees. But the most recent cases are the three rejecting application.

I was surprised SCOTUS denied cert in the Tenth Circuit case, which had the benefit of using such egregiously incorrect analysis that it begged for correction, even if the Court agreed on the conclusion as to application. Maybe the Court will see the new case as a better vehicle, although because it involves reporting by a major-media outlet, it is less the paradigm SLAPP suit. Regardless, SCOTUS must weigh-in on this at some point.

Update: I have not hit this point in many posts on the subject, but in response to a few email queries: I believe the non-application side has the better argument. Rules 12 and 56 provide mechanisms and standards for weeding-out insufficiently pleaded or supported claims; they "answer the questions in dispute," leaving no room for state law to operate. And both rules are valid because arguably procedural and not abridging, enlarging, or modifying substantive rights. The issue is close and therefore makes a good exam or class hypothetical (I have used it for both).

Posted by Howard Wasserman on December 15, 2018 at 11:43 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Tuesday, November 27, 2018

"10,000 mostly drunk people" and "contempt of cop"

Here is my SCOTUSBlog recap of Monday's argument in Nieves v. Bartlett. I genuinely am not sure how this comes out, as no one on the Court was blatantly leaning in one direction and everyone seemed determined to find a middle ground between the government's extreme that would let no claims go forward and the respondent's extreme that would let too many claims go forward.

The argument will be best remembered for the Chief describing Arctic Man as "10,000 mostly drunk people in the middle of nowhere," a description that thrilled the journalist who wrote the leading story about the festival.

Posted by Howard Wasserman on November 27, 2018 at 11:55 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, November 19, 2018

SCOTUSBlog Preview: First Amendment retaliatory arrests

I have a SCOTUSBlog preview of  Nieves v. Bartlett (to be argued November 26), considering whether a plaintiff seeking damages for a First Amendment retaliatory arrest must show absence of probable cause. The Court last term punted on the question in Lozman v. City of Riviera Beach, because the case involved a retaliatory municipal policy, not only one officer's single retaliatory decision

I describe this as a sneaky-important case, because it involves a collision of two Roberts Court commitments--protecting First Amendment rights and immunizing law enforcement from damages suit and liability. The last part of the petitioner's brief downplays the constitutional importance of talking back to, challenging, criticizing, or insulting police officers performing official functions, insisting it is not speech on matters of public concern that should be protected against retaliatory motives; this eliminates the need for damages liability to vindicate that speech. The brief also argues that police departments will discipline rogue officers who engage in retaliatory arrests, especially in an age of body cameras and citizen video, when departments are more committed to internal accountability. The second point is laughable as an empirical matter. The first is correct on free-speech principle only if the First Amendment does not extend to the rough-and-tumble of ugly public protest or if police officers, the public officials with whom the public has the most direct contact, are above rhetorical challenge and criticism. But both are ideas I could see this Court majority buying, with the second commitment prevailing over the first.

Posted by Howard Wasserman on November 19, 2018 at 03:02 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Friday, November 16, 2018

White House must return Acosta credentials

According to news reports, District Judge Timothy Kelly ruled from the bench, granting a TRO based on the failure to provide process, without reaching the First Amendment question.

It will be interesting to see if the White House appeals. Although the order was styled as a TRO, the court would treat it as an appealable preliminary injunction should the government choose to appeal. But the court never reached whether the First Amendment in any way limits control over press access. And the due process focus means that, in theory, the White House and Secret Service could give him process tomorrow and reach the same decision. There is a motive to return the credential and let the litigation play out in the district court first.

Update: Garrett Epps (Baltimore) at The Atlantic ties Kelly's decision to the unsung decision in Island Trees v. Pico, in which SCOTUS held that the school district had unfettered power to select books to place on the shelves, but the First Amendment imposed limits on the district removing books already placed (based on objections to content. I highlighted Pico as an important example of why Brennan was the heir to Holmes in protecting free speech, although a decision that gained little traction, including in debates over internet filters in libraries. I agree with Garrett that it would be nice to see a revival of the decision, including in a new context.

Posted by Howard Wasserman on November 16, 2018 at 10:48 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Monday, November 12, 2018

C.J. Cregg = Sarah Sanders (Updated)

Attorney David Lurie argues in Slate that CNN should sue the Secret Service over revocation of reporter Jim Acosta's press credentials. He argues that CNN has a good case. D.C. Circuit precedent holds that reporters must receive process in the denial or revocation of credentials and that the basis for revocation cannot be that the reporter criticized the President or anyone else in the White House. And the President admitted that Acosta's credentials were revoked because he did not treat the presidency with "respect" and that he might do the same to other reporters.

Update: CNN and Acosta, represented by Gibson Dunn, has filed suit, claiming violations of the First and Fifth Amendments and the APA; named defendants are Trump, Kelly, Sanders, William Shine (Deputy Chief of Staff, the Secret Service, and the head of the Secret Service.

The incident brought to mind S3E4 of The West Wing, titled "On the Day Before." Press secretary C.J. Cregg gets pissed at a reporter who inaccurately reported on something that C.J. had done. C.J. tells the reporter that she is having the reporter's credentials revoked and that the reporter must call C.J.'s office every day so C.J. can decide if the reporter will be allowed into the press room. And this was played with C.J. as the hero, standing up and justly sanctioning the vapid, dishonest, and unethical reporter.

This is another illustration of Aaron Sorkin writing the Trump Administration in the Bartlet Administration,  with much of the behavior and norm-breaking that we have seen the past two years; the difference is that Sorkin's characters did it in service of a liberal Democratic agenda, while the Trump Administration has done it in service of a very different agenda. There is no difference between Trump and Sarah Sanders stripping Acosta of his credential and C.J. doing the same to that fictional reporter--both are mad because the reporter treated them unfairly.

Posted by Howard Wasserman on November 12, 2018 at 08:44 PM in Culture, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Friday, November 02, 2018

Packers fan finds counsel for First Amendment claim against Bears

I have written about Beckman v. Chicago Bears, a lawsuit by a Bears season-ticket holder and Packers fan who was prevented from going onto the field in Packers gear. Proceeding pro se (although with some informal guidance for a time), Beckman survived a 12(b)(6) by a very forgiving district court. It now appears Beckman has obtained counsel for the long-haul--the First Amendment Clinic at Duke and a Chicago attorney named Michel Lieber.

I think his First Amendment claim is a good one, if he can get past the state action problems. I remain surprised it took him this long to find counsel, but I am glad he found someone. This could get interesting.

Posted by Howard Wasserman on November 2, 2018 at 02:38 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Friday, October 19, 2018

Misapplying pleading

Attorney David Lurie criticizes the lawsuit by former DNC employees and Democratic donors against the Trump Campaign for its role in disseminating the Wikileaks documents. I largely agree with his substantive First Amendment points, at least absent some stronger connection between the campaign and the Russian hackers and/or Wikileaks.

My concern is this paragraph:

But absent a basis to assert that that Trump campaign reviewed or otherwise knew of what was actually contained in the emails, the plaintiffs’ allegation that the campaign launched a scheme with the Russians to plot out the dissemination of materials to “maximize their political impact” seems to be based on speculation, not facts. And the plaintiffs’ claim that the Trump campaign knew that their private information, or that of others, was going to be disseminated seems all the more speculative.

A later paragraph allows that "if the Mueller investigation ultimately does provide evidence that the Trump campaign actually “partnered” with the Russian government to publish the stolen DNC documents, a civil lawsuit could well be the very least of the president’s problems."

Both of these statements ignore the nature of civil pleading in federal court. At least before Twiqbal turned it into something different, pleading is supposed to be based on the plaintiff's allegations that may be speculative, because the plaintiff often/usually does not and cannot know at the outset what other people or organizations knew or did. That is what discovery is for--to uncover and obtain evidence to support those allegations. To require more before the plaintiffs have had an opportunity and authority to obtain information creates an impossible situation. Moreover, it should not only be for the Mueller investigation to provide evidence--civil litigation also exists to provide evidence of misconduct, in the course of proving that civil wrongdoing occurred. Lurie's argument is consistent with Twiqbal's approach to pleading; I do not think it wrestles with that problem.

Again, I believe the complaint is defective for other reasons--it alleges less collusion between the campaign and the Russians and more "advantage gained," which is not sufficient under the First Amendment. But the speculative nature of the allegations of what happened should not be a problem at the pleading stage. And this case illustrates the problem.

Posted by Howard Wasserman on October 19, 2018 at 03:43 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (5)

Wednesday, October 17, 2018

SLAPP dismissal of Stormy Daniels' defamation suit

Judge Otero of the Central District of California dismissed Stormy Daniel's defamation action against President Trump under the Texas anti-SLAPP statute, holding that the President's tweets were rhetorical hyperbole and imposing attorney's fees under the statute.

Three quick thoughts.

The basic point about rhetorical hyperbole is correct as a matter of the First Amendment. I think the basic premise of this defamation suit is problematic--"A accuses X of doing something, X denies it, so A sues X for defamation for calling her a liar."

Anti-SLAPP suits are swallowing the First Amendment  as a defense to defamation, in a way I do not believe the statutes were intended to do. SLAPP stands for "strategic lawsuit against public participation." The paradigm that motivated these laws was Wal Mart bringing a defamation suit against a citizen who spoke at a city council meeting against a proposal to build a Wal Mart in town--where the lawsuit is designed to deter citizens from engaging in the public discussion. The statutes were geared towards situations with power and money imbalances (hence the fee-shifting), where the point of the suit is to make people think twice about engaging in public discussion over these matters. Not every defamation suit is a SLAPP suit. It certainty does not fit this suit--a defamation claim against the wealthy President of the United States over his obnoxious tweets, with no realistic prospect that anyone will be deterred from public participation. This seems a case that should be left to the First Amendment (especially given the court's focus on rhetorical hyperbole, a First Amendment concern).

The circuit split continues over whether SLAPP statutes apply in federal court. But this case offered several wrinkles. Texas law applied, so C.D. Cal. was applying the Texas SLAPP statute, which the Fifth Circuit has not yet determined applies in federal court. And because the case was transferred from the Southern District of New York to the Central District of California, Second Circuit precedent (which has not determined the Erie issue) applies rather than Ninth Circuit (which holds that the SLAPP laws do apply). A cert petition in the Tenth Circuit case is pending; I wonder if the Court will be more interested in the issue.

An additional wrinkle is that the district court arguably gave the game away at one point. In explaining why the SLAPP motion could be resolved without discovery, the court analogized it to a 12(b)(6). But if this is the same as a 12(b)(6), then there is a controlling federal statute that should be applied over any state law.

Posted by Howard Wasserman on October 17, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (11)

Wednesday, October 10, 2018

Two free speech stories

1) I agree with this argument about the problem of demeaning all protesters as uncivil, insincere, unruly mobs, which allows those in power to dismiss criticism, dissent, and protest without engaging with the ideas in dispute. Especially because, as the article notes, Republicans never criticize Tea Partiers, land protesters, or reproductive-health clinic protesters using similar tactics, often on people more vulnerable than Senators. I am curious if and where FIRE comes out on this--it has been so critical of campus lefties shutting down opposing voices, what about GOP leaders?

2) I am not sure that the Trump campaign's argument that the First Amendment protected the Trump Campaign's disclosure of the hacked DNC emails is wrong. It certainly is not as laughable as the article suggests and I wish the piece had not been so dismissive. The First Amendment generally protects disclosure of truthful, lawfully obtained information on a matter of public concern, "absent a need to further a state interest of the highest order." If the information was unlawfully obtained, the disclosing party is protected so long as it did not participate in the theft of the information, That should be as true for a political campaign finding information stolen from an opponent as for a radio host disclosing a recording of an unlawfully recorded conversation or a newspaper publishing the name of a victim of sexual assault.

The article tries to link the First Amendment argument to the administration's "collusion is not a crime" argument. But that presents a nice, open question. It is clear that the campaign is protected if the Russians and Wikileaks hacked the emails, passed them along to the campaign, and the campaign published them. It also is clear that the campaign is not protected if it conspired with the Russians and Wikileaks to execute the hacks. But what if we are in the middle with collusion--suppose the campaign did not assist in the hacks, but encouraged them, knew they were coming, and coordinated the disclosure once it had been hacked. I doubt Bartnicki runs out only if there is a full-on conspiracy; the question is where the lines are.

Posted by Howard Wasserman on October 10, 2018 at 06:07 PM in First Amendment, Howard Wasserman | Permalink | Comments (3)

Monday, October 08, 2018

Yes, please sue

Where to begin with this suggestion that Justice Kavanaugh should sue Christine Ford and the Washington Post for $ 20 million each and that the suit would be successful? This is a new talking point among conservative commentators.

I go point by point after the jump, because there is so much wrong here.

Ford has clearly libeled Kavanaugh. Libel is a published false statement that is damaging to a person’s reputation. Ford gave uncorroborated information to the Washington Post, which published it and damaged Kavanaugh’s reputation.

Uncorroborated does not mean false. Perhaps Ford's allegations are false; that they are uncorroborated has nothing to do with their falsity.

This has been a recurring theme. There is no requirement in the legal system (putting aside whether a confirmation process should be treated as a legal proceeding) that a claim be corroborated; the plaintiff's testimony is evidence. Whether it is sufficient to prove a case depends on the type of proceeding and the standard of persuasion. Perhaps a victim's statement is not alone enough to satisfy beyond a reasonable doubt, but this never was a criminal procedure. On a lesser standard such as what governs whether a person should receive a lifetime appointment to a powerful job (whatever that standard may be), uncorroborated testimony may be sufficient, depending on whether the factfinder believes that uncorroborated statement.

In a court of law, . . . the burden of proving the truth of a derogatory statement is on the defendant.

No. Kavanaugh is a public official and Ford's speech was a on a matter of public concern, whether that public figure engaged in criminal or inappropriate conduct. The burden of persuasion is on the plaintiff to prove the statement was false. And he must do so by clear and convincing evidence.

New York Times Company v. Sullivan is ripe for being overruled. Yes, the Supreme Court can overturn prior cases. See Plessy vs. Ferguson.

Justice Antonin Scalia said he abhorred the New York Times case:

NYT is not going anywhere. Not least because Justice Scalia no longer is on the Court--the event that has pushed us down the current hole. Justice Kavanaugh certainly would never vote to overrule NYT because, as Sen. Collins reminds us, he reveres precedent. So does Justice Gorsuch, who wrote a book about it. Unless NYT is not "settled law." Anyway, NYT is a cornerstone of the modern First Amendment and exists precisely so public officials cannot use civil suits to silence critics.

This belief/assumption/preference that NYT be overruled might explain the above error about the burden of persuasion as to truth. NYT shifts the burden from common law (where statements are presumed false and truth is a defense); if NYT is overruled, that shift goes with it. Which is why NYT will not be overruled.

A court should hold that Ford, dredging up a 36-year-old uncorroborated claim, is guilty of constructive malice — reckless disregard of the truth.

Reckless disregard of the truth is the NYT actual-malice standard that the author just said should be (and will be) overruled. So what he is really saying is that Ford is liable even under NYT. Maybe she is, but this contradicts the prior paragraph. And, again, I am not sure why the age of the claim or its lack of corroboration say anything about Ford's statement of mind.

(There is an interesting question whether actual malice has any place with respect to the first-person source of information talking about her own experience, as opposed to the media republishing it. Ford either believed her statement true or knew it false; I doubt there is an in-between.)

It would be poetic justice if Justice Kavanaugh could be the deciding vote — on his own case!

It would be the height of irony, actually. The author begins the piece decrying the Democrats' abandonment of the presumption of innocence, "a hallmark of Anglo-American jurisprudence and of Western Civilization." Putting aside whether the presumption of innocence (which is merely about the allocation of burden of production) has a meaningful role in a job interview, I doubt it is more of a jurisprudential hallmark than nemo iudex in sua causa--no one should be a judge in his own case.

Anyway, the real reason Kavanaugh will not sue (and that perhaps Ford,WaPo, or others might wish he would) is not that it would be "unseemly for a judge to sue." It is unseemly for a judge to spew conspiratorial Fox News talking points, but that did not stop Kavanaugh from writing and giving that prepared statement. Kavanaugh will not sue because a lawsuit will trigger a meaningful discovery process designed to get at the truth of Ford's statements. Kavanaugh would be subject to a sworn deposition taken by a competent questioner. Discovery would include depositions and interviews of numerous witnesses, not limited by the preferences of the White House or an artificial one-week deadline. The author assumes Ford is lying (and WaPo knowingly reprinted a lie). I do not know, because I have not seen anything resembling a fact-finding process. Kavanaugh suing would create that very process.

President Trump is famous for threatening to sue critics (even thought it would appear equally unseemly for the President to sue) and never following through. Even after some outlets egged him on. Apparently some members of conservative media have decided to make the same move on behalf of Justice Kavanaugh.

Posted by Howard Wasserman on October 8, 2018 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Sunday, October 07, 2018

Barnette at 75

I am happy to say that FIU Law Review's symposium Barnette at 75: The Past, Present, and Future of the "Fixed Star in Our Constitutional Constellation" was a great success, with three terrific panels and a wonderful keynote speech by John Q. Barrett (St. John's) on Justice Jackson's particular approach towards a series of contemporaneous disputes involving Jehovah's Witnesses.

Video of the entire event can be found here.

One other shout-out: At the same time as our program, Georgia State hosted a conference on Anthony Kennedy's jurisprudence, including one panel on Kennedy's prose. At perhaps the same moment as that panel, several of us were having a conversation, sparked by one speaker noting the unformulaic nature of Jackson's Barnette opinion--was Kennedy, in opinions such as Obergefell, trying to be Justice Jackson?

Posted by Howard Wasserman on October 7, 2018 at 06:52 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, October 04, 2018

Barnette at 75 (Move to top)

Beginning at 9 a.m. Friday (tomorrow) is the FIU Law Review Symposium, Barnette at 75: The Past, Present, and Future of the "Fixed Star in Our Constitutional Constellation." The link includes the video for the livestream. The livestream and recording also are available here. The issue of the Law Review (which will include published transcripts of the Q&A sessions) will be published later this academic year.

The full schedule is after the jump.

Panel 1: Barnette in Historical Context

 
Chair and Moderator

Dean Joëlle Moreno, FIU College of Law

Comments

Ronald K.L. Collins, Thoughts on Hayden C. Covington and the Paucity of Litigation Scholarship

John Inazu, Barnette and the Four Freedoms

Genevieve Lakier, Barnette, Compelled Speech, and the Regulatory State

Brad Snyder, Frankfurter and the Flag Salute Cases

 

Panel 2: Reading Barnette

Chair and Moderator

Prof. Tawia Ansah, FIU College of Law

Comments

Paul Horwitz, Barnette: A Close Reading (for Vince Blasi)

Aaron Saiger, The pedagogy of Barnette

Steven Smith, “Fixed Star” or Twin Star? The Ambiguity of Barnette

 

Keynote Address

Prof. John Q. Barrett, St. John's University School of Law

 

Panel 3: Barnette in Modern Context

Chair and Moderator

Prof. Howard M. Wasserman, FIU College of Law

Comments

Erica Goldberg, “Good Orthodoxy”and the Legacy of Barnette

Abner S. Greene, Barnette and Masterpiece Cakeshop: Some Unanswered Questions

Leslie Kendrick, A Fixed Star in New Skies: The Evolution of Barnette

Posted by Howard Wasserman on October 4, 2018 at 10:47 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (2)