Monday, October 05, 2020

Thomas and Alito defend Kim Davis

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

Three things.

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

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

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

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

Sunday, October 04, 2020

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

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

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

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

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

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

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

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

Sunday, September 27, 2020

Proving anti-Jewish discrimination

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

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

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

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

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

Monday, September 14, 2020

Dorf on ending the anthem at sporting events

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

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

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

Friday, September 11, 2020

Cancel culture as a circle of baseline hell

Thinking out loud.

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

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

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

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

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

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

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

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

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

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

Thursday, September 03, 2020

Universality, facial invalidity, and the First Amendment

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

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

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

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

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

Saturday, August 29, 2020

Palin lawsuit against New York Times continues

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

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

[*] Usually.

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

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

Friday, August 28, 2020

3d Circuit reveals division on union clawbacks

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

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

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

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

Thursday, August 27, 2020

Bad Legal Takes and the writ of erasure fallacy

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

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

Wednesday, August 26, 2020

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

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

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

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

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

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

Tuesday, August 25, 2020

Nomenclature and judicial review (Updated)

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

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

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

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

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

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

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

Friday, August 21, 2020

After the Golden Age: The Fragility of the Fourth Estate

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

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

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

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

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

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

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

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

Monday, August 10, 2020

Hate Speech Returns to Campus

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

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

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

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

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

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

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

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

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

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

Posted by Lyrissa Lidsky on August 10, 2020 at 01:25 AM in Constitutional thoughts, Culture, Current Affairs, First Amendment, Lyrissa Lidsky, Web/Tech | Permalink | Comments (7)

Saturday, August 08, 2020

Podcasts on cancel culture

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

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

Thursday, August 06, 2020

Anti-SLAPP fee-shifting in federal court

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

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

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

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

More cancel culture and counter-speech

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

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

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

• Organization

• Secondary Boycotts

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

• Truthiness

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

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

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

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

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

Tuesday, August 04, 2020

Debate: Free speech v. Cancel culture (Updated)

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

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

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

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

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

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

Sunday, August 02, 2020

Sandmann: Bringing the Dream

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

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

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

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

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

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

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

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

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

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

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

Saturday, August 01, 2020

Judicial departmentalism and particularity on Twitter (Updated)

In 2019, the Second Circuit held that Donald Trump could not ban people from following him on Twitter for viewpoint-discriminatory reasons, affirming a declaratory judgment. Trump and Daniel Scavino, the aide who runs his Twitter account, unblocked the plaintiffs and many others. But they did not unblock two groups--those who had been blocked before Trump became President (where there was no First Amendment problem with blocking them because he was not a government official at the time of blocking) and those who cannot point to a specific tweet that caused them to be blocked (where there is no evidence of viewpoint discrimination).

The Knight Foundation on Friday filed a new lawsuit on behalf of those two groups, asking for a declaratory judgment and injunction ordering the unblocking of these new plaintiffs.

Once again, inefficient but appropriate. Trump unblocked the plaintiffs, as we was obligated to do by the judgment. He negotiated with the Knight Foundation to unblock others, not out of an immediately enforceable legal obligation but a recognition of what would happen if he did not unblock--a motion to extend the existing judgment to additional individuals, which would succeed and which would impose that legal obligation. But he identified two groups differently situated than the plaintiffs who, in Trump's view, have not suffered similar violations of their First Amendment rights. This requires new litigation, a new analysis of the First Amendment, and a new declaration of First Amendment rights, duties, and relations.

Update: A further thought on the process: We know the plaintiffs recognized the particularized scope of the original judgment by the fact that they filed a new lawsuit on behalf of these plaintiffs. Had the original judgment protected these non-parties to that action, they could have moved to enforce the judgment, to hold Trump or Scavino in contempt, or to convert the declaratory judgment into an injunction.

For better or worse, this how the process should work. And Trump should not be accused of disobeying a court order or otherwise ignoring the court.

Posted by Howard Wasserman on August 1, 2020 at 06:41 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (8)

Friday, July 24, 2020

(Update) Grab your fedora, we are all journalists now and other thoughts on the Portland TRO

A federal judges issued a TRO preventing federal paramilitary force in Portland from targeting journalists and legal observers. An existing preliminary injunction, to which the City stipulated, does the same as to Portland police. Some thoughts and questions.

First, the TRO requires journalists and legal observers to identify themselves through badges or distinctive clothing (hats, press passes, etc.). Some concerns and questions.

Vintage-reporter-fedora-hat-camera-picture-id510580998First, it is about time we revived this look from His Girl Friday or The Brady Bunch.

Second, this seems to run afoul of the principle that the press does not have special status from other speakers when it comes to what they can say and their access to spaces. The key access cases speak of information-gathering by the press and the public. I expect that some non-press people in the mix of these protests are there to observe and record. And they possess or can possess the same equipment that allows a reporter to do her job--a device that takes photographs, moving pictures, and audio recordings. And I assume fedoras can be purchased online. Maybe the point should be to not have paramilitary forces using force and effecting arrests indiscriminately against anyone who happens to be in a crowd but is not engaging in unlawful activity, not only those with J.D.s or an institutional affiliation.

Second, the government tried to defeat the plaintiffs' standing with a string of cases making it difficult to challenge practices within the criminal-justice system (choke holds during arrests, discriminatory bail or sentencing); the cases rest on the refusal to speculate that the plaintiff will break the law and thus come in contact with the criminal-justice system and be subject to those policies. The court rejected that because threat to plaintiff arose not from breaking laws, but from engaging in protected First Amendment activity--"It is one thing to ask citizens to obey the law in the future to avoid future alleged harm. But it is quite another for the Federal Defendants to insist that Plaintiffs must forgo constitutionally protected activity if they wish to avoid government force and interference." Good call.

Third, the court orders wide dissemination of the order, including to Bill Barr and Ken Cuccinelli and those with supervisory authority over agents in Portland. The reason is that "the Court considers any willful violation of this Order, or any express direction by a supervisor or commander to disregard or violate this Order, to be a violation of a clearly established constitutional right and thus not subject to qualified immunity" in any Bivens action. This is odd. The violation of the order is not necessarily the same as a violation of the underlying constitutional rights protected by the order, but only the latter would be the basis for a Bivens action. The court seems to be couching its power to enforce its order with its power to award damages should an injury occur. That is, it will use its equitable power to enforce its equitable order by imposing a legal remedy. Equity cannot enjoin a crime, but can it enjoin a constitutional tort? Any way, I am troubled by the practice--made necessary by unwise qualified-immunity doctrine--of courts announcing that "henceforth, some right is clearly established.

Update: From a conversation with a Remedies colleague: A court can enforce an injunction through civil contempt, which can be compensatory. A court could order the violating defendant to pay money to the plaintiff in the amount of the injury suffered. And if that injury were physical (e.g., medical expenses from being shot), the remedy would look like compensatory damages. But Bivens and qualified immunity still have nothing to do with this. A plaintiff need not bring a Bivens claim if the remedy is contempt for an existing court order in an ongoing case. And qualified immunity should have no role to play in the court enforcing an existing order.

Posted by Howard Wasserman on July 24, 2020 at 08:26 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, July 15, 2020

Anti-SLAPP law does not apply in Second Circuit

The Second Circuit has joined the chorus holding that state anti-SLAPP laws (in that case, California's) do not apply in federal court. The case arises out of a lawsuit against Joy Reid over two tweets with a photo of a woman in a MAGA hat interacting with a Latinx teen at a city council meeting; one tweet described the plaintiff as shouting epithets at the teen (who said their interaction was civil), while the other juxtaposed the infamous 1957 photograph of the screaming white teen in Little Rock.

The Second Circuit joins the Fifth, Eleventh, and D.C. Circuits in not applying them, compared with the Ninth and First that. The court followed the prevailing approach--FRCP 12 and 56 provide the standards for pre-trial resolution, leaving no room for state law. The court rejected the amici argument that the SLAPP law serves a "distinct function of protecting those specific defendants that have been targeted with litigation on the basis of their protected speech," supplementing rather than conflicting with the FRCP. But this is a policy argument, one that contradicts the policies underlying the FRCP themselves. The court also rejected the defendant's argument that she can recover attorney's fees under the statute for a 12(b)(6) dismissal; the statute allows fees when the defendant prevails on the statutory motion to strike, not on some other basis.

Tellingly, the four most recent cases have gone this way, while the First Circuit decision is from 2010 and the seminal Ninth Circuit cases is from 1999, with several Ninth Circuit judges calling for its reconsideration in 2013. The courts of appeals are congealing around the correct Erie answer and may not require SCOTUS resolution, one point of percolation.

But that might not be the correct answer as a matter of the First Amendment and the need to protect speakers, especially media, against frivolous lawsuits by powerful individuals designed to chill public criticism. (Query whether this is such a case, but bracket that for a moment). Many First Amendment advocates want a full federal anti-SLAPP statute. For the moment, I think a fee-shifting statute, combined with vigorous use of Twiqbal would be sufficient to get rid of cases early in the process and to protect defendants from the intentional imposition of litigation costs. But I need to look in greater detail at how federal courts have looked at defamation claims under that pleading standard.

SLAPP and Erie aside, this case may be more troubling for Reid going forward. The court held that the plaintiff (who spoke and was photographed at city council meetings advocating against sanctuary-city laws) was not a limited-purpose public figure; she lacked media access, did not thrust herself into a public controversy, and stepped forward for interviews only after the first alleged defamation. Thus, the plaintiff had to allege negligence, not actual malice. The court also rejected Reid's argument that the second tweet (juxtaposing the photos) was not an actionable assertion of fact, because a reasonable reader could understand it as equating the plaintiff's conduct with "archetypal racist conduct."

It is interesting that this case came to litigation. When the plaintiff's lawyer asked Reid to delete the posts, Reid did so and apologized, which would seem to suggest the absence of negligence. But the plaintiff sued anyway. And we continue forward.

Posted by Howard Wasserman on July 15, 2020 at 07:01 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, July 08, 2020

Justice Kagan’s Warring Views on the Religion Clauses

Today (Wednesday) the Supreme Court decided two cases involving questions of law and religious rights: Our Lady of Guadalupe School v. Morrissey-Berru (No. 19-267, consolidated with 19-348), which addressed the scope of the First Amendment’s “ministerial exception,” and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (No. 19-431, consolidated with 19-454), which determined the legality of regulations exempting employers from ACA-mandated contraceptive coverage for religious reasons. Justice Kagan joined the majority in both—in full in Our Lady and in the judgment in Little Sisters. But in what appears as case of the right hand not knowing what the left hand is doing, a footnote in her concurring opinion in Little Sisters misreads the majority opinion she joined in full in Our Lady. (Of course, she could be putting forth a revisionist reading.)

Our Lady grounds the so-called “ministerial exception” clearly in the broader doctrine of church autonomy. That doctrine, supported by the Religion Clauses, “protect[s] the right of churches and other religious institutions to decide matters ‘of faith and doctrine’ without government intrusion.” (Slip op. at 10) (quoting Hosanna-Tabor, 565 U.S., at 186). Further, “[s]tate interference in that sphere would obviously violate the free exercise of religion, and any attempt by government to dictate or even to influence such matters would constitute one of the central attributes of an establishment of religion. The First Amendment outlaws such intrusion.” (10).

Our Lady observed that “[t]he independence of religious institutions in matters of ‘faith and doctrine’ is closely linked to independence in what we have termed ‘matters of church government.’” (10) (quoting 565 U. S., at 186). The First Amendment “protect[s] [religious institution’s] autonomy with respect to internal management decisions that are essential to the institution’s central mission.” (11). What is more, “a component of this autonomy is the selection of the individuals who play certain key roles.” (11). The Court notes that the “‘ministerial exception’ was based on this insight.” (11). And the “constitutional foundation” for the Court first recognizing this exception in Hosanna-Tabor “was the general principle of church autonomy”—“independence in matters of faith and doctrine and in closely linked matters of internal government.” (12). To support this, the Court notes three earlier church autonomy cases, all of which had to do with the control of church property (though in some, but not all, “the authority and appointment of a bishops” was also at issue).

In other words, the ministerial exception is a sub-part (“component”) of the First Amendment’s church autonomy doctrine. It is sufficient to violate the church autonomy doctrine by violating the ministerial exception, but it is not necessary. One can still violate the doctrine even if the exception does not apply. Put another way, within the larger circle of the church autonomy is a smaller circle of the ministerial exception. Justice Kagan joined all of this without comment.

Now turn to her concurrence in Little Sisters. There she claims that “there is no general constitutional immunity, over and above the ministerial exception, that can protect a religious institution from the law’s operation.” (Kagan Concurrence at 3 n.1). Yet how can this be squared with Our Lady? There the Court clearly stated that the ministerial exception is a “component” of the church autonomy doctrine. It is not the entire doctrine. But Justice Kagan wants the “component” to swallow the hole. To put it differently, in Little Sisters Justice Kagan sees the ministerial exception circle and the church autonomy circle as having perfect overlap.

Actually, that may be understating it. Justice Kagan appears to view the ministerial exception as being the only way that the Religion Clauses “can protect a religious institution from the law’s operation” via a “general constitutional immunity.” But as I have noted earlier on this blog, that runs smack dab into Trinity Lutheran’s footnote 4, which notes categorical protection from laws or government actions that, among other things, specifically target religion as such. Justice Kagan joined Trinity Lutheran’s footnote 4 in full as well.

These warring views do not appear reconcilable. I guess we will have to see in future cases which version of the First Amendment Justice Kagan will endorse.

Posted by James Phillips on July 8, 2020 at 07:10 PM in Constitutional thoughts, First Amendment, Religion | Permalink | Comments (4)

Tuesday, July 07, 2020

The First Amendment and the preferred first speaker

Harper's has published online (and will publish in print) a letter on "justice and open debate" from a cross-section of journalists, authors, and academics, including several law professors. They decry a "new set of moral attitudes and political commitments that tend to weaken our norms of open debate and toleration of differences in favor of ideological conformity." They allude to  recent events involving fired editors and analysts, canceled books, investigated professors--what has come to be called, loosely, "cancel culture."

The authors claim to "uphold the value of robust and even caustic counter-speech from all quarters," but to fear that "it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought." Ken White (Popehat to those on Twitter and KCRW) sees the letter as drawing an untenable (or at least elusive) distinction between "silencing" and "more/responsive/critical" counter-speech. White labels this the "problem of the preferred first speaker," the " tendency to impose norms of civility, openness, productiveness, and dialogue-encouraging on a RESPONSE to expression that we do not impose on the expression itself." In other words, the original speaker is free to say what she wants however she wants; the response must listen to, engage with, and respond to that speech. "Shut up" is not acceptable counter-speech.

This is an extension and expansion of the problem of campus speech and "controversial" speakers. The invited speaker (Charles Murray, whoever) is the preferred first speaker, entitled to have his say; those who object or oppose his views are expected to sit quietly, listen to what he says, perhaps ask a question or make a comment during Q&A (if he deigns to call on them). Anything else (such as a noisy protest outside the hall) is the dreaded heckler's veto.

Both situations create a puzzle . We do not want people to lose their livelihoods for their speech, nor do we want speakers chased off campus. But we also should not hamstring one side of the debate--to paraphrase Justice Scalia, we should not allow the original speaker "to fight freestyle," while requiring counter-speakers "to follow Marquis of Queensberry rules." I do not know the right answer or correct balance either to the recent online issues or to campus speech (the latter will not be an issue for awhile, unfortunately). But this letter does not provide it.

Meanwhile, White provides a great title for the article I hope to write.

Posted by Howard Wasserman on July 7, 2020 at 01:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Monday, July 06, 2020

Notes on Barr v. AAPC

There is a lot in the Court's decision in Barr v. AAPC, declaring invalid the government-debt exception (enacted in 2015) to the ban on robocalls to cell phones (enacted in 1991), but holding that the remedy is to allow government to enforce the original 1991 ban on everyone. Kavanaugh writes for the Chief, Thomas, and Alito that the exception is unconstitutionally content-based and does not survive strict scrutiny and for the Chief and Alito that the remedy is to level everyone down. Sotomayor finds the law constitutionally invalid under the less-rigid scrutiny proposed by Breyer and severable. Breyer writes for Ginsburg and Kagan that the law is constitutionally valid under less-rigid scrutiny, but that, since everyone else disagrees, they agree that the 2015 exception is severable. Justice Gorsuch agrees the 2015 exception invalid on a different analysis, but that the proper remedy is prohibiting enforcement of the entire robocall ban. So one 6-3 on the First Amendment issue, a largely different 7-2 on severability.

• The First Amendment portion is Reed redux. Five Justices (Kavanaugh's four + Gorsuch) say that the statute is content-based and requires strict scrutiny because it distinguishes based on subject matter--robocalls about government debt are ok, everything else (non-government debt, political speech, sales calls about baseball tickets) are prohibited. Breyer continues the squishier balancing he proposed in Bartnicki and then in Reed. The First Amendment is designed to protect political speech, public forums, and an airing for all viewpoints, but is not designed to interfere with commercial regulatory schemes that incidentally affect speech and that do not affect meaningful public discourse. Such incidental regulation should be subject to a less-rigid balancing of the seriousness of the speech-related harm, the importance of countervailing government objectives, the likelihood the regulation will achieve those objectives, and whether there are less-restrictive ways of doing so. Applying that, Breyer argues that the speech disadvantaged (non-government debt collection) is commercial and highly regulated, while the government has an interest in protecting the public fisc by enabling collection of government debts through calls made solely to collect government debt.

• Sotomayor argues the statute fails even under that test, because the government has not explained how collection calls about government debt are less intrusive and less privacy-invading than collection calls about private debt.

• Breyer (and the government) remain concerned that the application of strict scrutiny threatens regulatory schemes such as the SEC, FDCPA, and FDA, all of which limit what regulated entities can say in order to protect consumers. Kavanaugh dismisses the slippery-slope arguments, insisting that "courts have generally been able to distinguish impermissible content-based speech restrictions from tradition or ordinary economic regulation of economic activity."

• People have argued that the severability analysis shows that it is unlikely that the Court will declare invalid the entire ACA next Term, even if the individual mandate is invalid as a tax. Perhaps, although do not underestimate irrational hatred for the ACA. Plus, this case was as much a leveling case as a severability case--the 2015 exception was invalid because it treated the plaintiffs less favorably than collectors of government debt. The majority resolves that problem by "leveling down," leaving the 2015 exception unenforceable and placing all speakers in the same position of being unable to use robocalls. Gorsuch (joined by Thomas in this part) rejects this, arguing that the Court fails to remedy the violation of the plaintiffs' First Amendment rights--they want to be able to speak, not to have others prevented from speaking. The result of the case is that no one can make robo calls, which does not give the plaintiffs anything and harms non-plaintiffs.

The point of departure is what provision is invalid in this case. For Gorsuch, it was the original 1991 ban, whose invalidity is shown by the 2015 exception. Thus, the proper remedy for the violation is to make the 1991 ban unenforceable against the plaintiffs. But that, Kavanaugh argues, harms a different group of strangers--the millions of people who will be bombarded by robocalls.

• Kavanaugh's opinion includes a discursive footnote engaging Thomas on the  what it means to "invalidate" a law and what courts should do. I save that for a second post.

Posted by Howard Wasserman on July 6, 2020 at 01:35 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Thursday, July 02, 2020

Espinoza's Recasting of Trinity Lutheran Raises Religious Liberty Questions

On its surface, Espinoza v. Montana Dept. of Revenue (No. 18-1195) appears to be a complete victory for religious liberty. A 5-4 majority held that discriminating on the basis of religious status in the context of school funding violated the Free Exercise Clause. As the majority declared, “once the a State decides to [subsidize private education], it cannot disqualify some private schools solely because they are religious.” Slip op. 20. And the decision cast serious doubt on the discriminatory Blaine Amendments found in a majority of state constitutions. The outcome clearly belongs in the win column for Free Exercise Clause fans.

But perhaps more so than case outcomes, it is the doctrinal seeds down in the pages of the U.S. Reports that steer the course of the law. And the seeds sown in Espinoza raise unanswered questions for religious freedom. Specifically, Espinoza recasts a little discussed but significant point in Trinity Lutheran in such a way as to call into question the chances that some future religious discrimination claims will prevail.

First, a little conceptual background. The Court’s free exercise jurisprudence has three tiers of protection. In the lowest tier—laws deemed neutral and generally applicable under Employment Division v. Smith—the government must only satisfy rational basis (if even that), the least protective doctrinal test of the Court. Needlessly to say, free exercise challenges never win in this tier.

The middle tier of free exercise jurisprudence applies a strong version of strict scrutiny. The government must not only demonstrate that a law or action “advance[s] interests of the highest order,” but also that the law or action is “narrowly tailored in pursuit of those interests.” Slip op. 18 (cleaned up). Not surprisingly, government infringement of religious liberty “will survive strict scrutiny only in rare cases.” Lukumi, 508 U.S. at 546.

However, there is a third tier—the most protective—in the Court’s free exercise pantheon. Sometimes the Court is unwilling to engage in any balancing with government interests, so the state’s infringement of religious liberty is categorically barred. The ministerial exception is one example of this: once a religious organization demonstrates that someone is its minister, no government interest of any kind can authorize interference with the organization’s constitutional right to control its ministers. See Hosanna-Tabor Evangelical Lutheran Church and Sch. v. E.E.O.C., 565 U.S. 171, 181 (2012) (“Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.”) See also id. at 196 (“When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.”). No judicial balancing of government interests and free exercise freedoms required.

It is not just the ministerial exception that applies this categorical prohibition. Religious tests, whether for public office or otherwise, also trigger this categorical bar, with the Court grounding this prohibition in the Free Exercise Clause (admittedly the Test Oath Clause would do the same work regarding federal office). See Torcaso v. Watkins, 367 U.S. 488, 495 (1961); Town of Greece v. Galloway, 572 U.S. 565, 621 (2014) (Kagan, J., dissenting) (“[G]overnment, in its various processes and proceedings, imposes no religious tests on its citizens.”). No judicial balancing here either.

Finally, there is a third instance that gets tier-3 categorical protection: “government mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.” Lukumi, 508 U.S. at 547. Thus, “a law targeting religious beliefs as such is never permissible.” Trinity Lutheran, 137 S. Ct. at 2024 n.4 (emphasis added) (quoting Lukumi, 508 U.S. at 533). Strict scrutiny does not apply to such a law. Id. Rather, “[t]he Free Exercise Clause categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such.” McDaniel v. Paty, 435 U.S. 618, 626 (1978) (plurality opinion) (emphasis added). And the Court has referred to this as a “rule.” Trinity Lutheran, 137 S. Ct. at 2024 n.4.

Chief Justice Roberts’s majority opinion in Trinity Lutheran recognized the existence of tier-3 protection, wherein the government is categorically prohibited from infringing religious liberty. While much attention has been paid to Trinity Lutheran’s footnote 3, it is footnote 4 that contains a real nugget. There Roberts declared on behalf of a majority of the Court that “[w]e have held that ‘a law targeting religious beliefs as such is never permissible.’” 137 S. Ct. at 2024 n.4 (quoting Lukumi, 508 U.S. at 533) (emphasis added). He also cites McDaniel v. Paty, 435 U.S. 618 (1978). But, he observes, “[w]e do not need to decide whether the condition Missouri imposes in this case falls within the scope of that rule, because it cannot survive strict scrutiny in any event.” In other words, in Trinity Lutheran, a state’s discrimination in funding based on religious status may fall under the categorical bar (tier 3) or it may fall under strict scrutiny (tier 2), but because it fails the lesser test (tier 2), the Court saw no need to decide which tier applied.

Now, fast forward to the Espinoza decision. Repeatedly, Chief Justice Roberts relies on Trinity Lutheran for something that case did not actually decide: that discriminating in public funding based on religious character triggers strict scrutiny—

  • Trinity Lutheran distilled these and other decisions to the same effect into the “unremarkable” conclu­sion that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that trig­gers the most exacting scrutiny.” (quoting Trinity Lutheran, slip op., at 9-10). Slip op., at 8.
  • The Free Ex­ercise Clause protects against even “indirect coercion,” and a State “punishe[s] the free exercise of religion” by disqual­ifying the religious from government aid as Montana did here. Trinity Lutheran (slip op., at 10–11). Such status­ based discrimination is subject to “the strictest scrutiny.” (slip op., at 11). Slip op., at 11-12.
  • It is enough in this case to conclude that strict scrutiny applies under Trinity Lutheran because Montana’s no-aid provision discriminates based on religious status. Slip op., at 12.
  • [T]he[] dissents follow from prior separate writings, not from the Court’s decision in Trinity Lutheran or the decades of precedent on which it relied. These precedents have “repeatedly confirmed” the straightforward rule that we apply today: When otherwise eligible recipients are disqualified from a public benefit “solely because of their religious character,” we must apply strict scrutiny. Trinity Lutheran (slip op., at 6-10). Slip op. at 17.
  • Because the Montana Supreme Court applied the no-aid provision to discriminate against schools and parents based on the religious character of the school, the “strictest scru­tiny” is required. (quoting Trinity Lutheran, slip op., at 11). Slip op., at 18.

This is a re-characterization of Trinity Lutheran. That case saved for another day the question of whether that religious discrimination fell “within the scope of [the categorical] rule, because it c[ould not] survive strict scrutiny in any event.” 137 S. Ct. at 2024 n.4. But in Espinoza the Chief unequivocally cites Trinity Lutheran for the proposition that religious discrimination based on funding requires the application of strict scrutiny. Whether accidental or not, this is a revisionist reading. And this revisionist reading makes even less sense when Espinoza points out that “the infringement of religious liberty” there “is far more sweeping than the policy in Trinity Lutheran,” and “burdens not only religious schools but also the families whose children attend or hope to attend them.” Slip op., at 19.

This recasting of Trinity Lutheran has raises important questions for religious liberty down the road. For instance, is it no longer an open question as to whether specific targeting of religious status in the context of public funding fits under the rule of categorical prohibition (tier 3) or under strict scrutiny (tier 2)? After Espinoza, it certainly seems such discrimination fits under the latter. Though it is odd to answer that question by claiming it was decided by a previous case that refused to answer that question.

Likewise, what implications does Espinoza have for the scope of this categorical prohibition? Is it narrower? After Trinity Lutheran, the rule was that “a law targeting religious beliefs as such is never permissible.” Trinity Lutheran, 137 S. Ct. at 2024 n.4. And Trinity Lutheran relied on McDaniel, which declared that “[t]he Free Exercise Clause categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such.” 435 U.S. at 626. After Espinoza, though, one has to wonder whether this “rule” now does not apply to the context of public funding? What about other contexts? Is Espinoza the start of a trend to narrow the scope of the categorical prohibition? Time will tell.

The devil is in the details, they say. It is especially so in doctrine. While Espinoza is at some level a gift for religious liberty, and one hates to look a gift horse in the mouth, some legal victories can contain a Trojan horse hidden in plain sight.

Posted by James Phillips on July 2, 2020 at 11:10 AM in Constitutional thoughts, First Amendment, Religion | Permalink | Comments (4)

Tuesday, June 30, 2020

Third Circuit: Tinker does not apply off-campus

The Third Circuit held Tuesday that Mahanoy (PA) Area H.S.* violated the First Amendment by suspending a student (identified as B.L.) from the J.V. cheerleading squad for a snap showing the girl and her friends flipping the bird above the caption "Fuck Cheer." This is a great First Amendment decision.

[*] My wife's grandmother grew up in Mahanoy, which is why I bother to mention it.

The majority hit several important things.

    • The speech was off-campus. The student created the snap off-campus, on a weekend, on a non-school platform, and the fact that the comments were about the school or school personnel did not change its nature.

    • The First Amendment does not apply differently to extra-curricular activities or to students who participate in extra-curricular activities (unlike the Fourth Amendment or Due Process). Suspension from an extra-curricular activity (the punishment the school imposed) is not a lesser punishment subject to less-rigorous First Amendment scrutiny. Student-athletes are not subject to punishment for off-campus vulgarity to a greater extent than non-athletes would be.

    • Tinker does not apply to off-campus speech. This is huge, as this is the first court of appeals squarely to hold. Tinker is a "narrow accommodation" of the unique context of school, but makes little sense outside that context. School officials can control the spillover effects that make their way into school. But that has been true of off-campus real-world speech, so should be true of on-campus online speech. And while this leaves schools unable to regulate some crude, vulgar, or offensive speech, that is the point of the First Amendment, as Tinker recognized.

    • Outside of school and online, students have virtually full First Amendment rights, including to use profanity, which cannot be dismissed as "low value" or as expressing no message. "Fuck cheer," uttered by a frustrated high-school sophomore, has a meaning.

    • The student did not waive her First Amendment claims by agreeing to be subject to certain codes of student-athlete conduct.

The majority expressly does not resolve off-campus speech threatening violence or harassing particular students or teachers. Some such speech may be unprotected and subject to sanction and the school may have a sufficiently weighty interest in regulating that speech. The question of Tinker's applicability caused Judge Ambro to concur in the judgment. insisting there was no need to address the issue because the speech was obviously protected even under Tinker. Ambro is concerned about a broader swath of off-campus speech, such as  racially tinged speech or snaps reenacting and mocking victims of police violence.

The case does suggest that "Tinker" as a standard is different from the public school's regulatory authority. That is, the inapplicability of Tinker to off-campus speech does not divest a school of all authority to regulate that speech, leaving any sanction to government at large. The suggestion is that a public school has authority to sanction students for off-campus expression, but it must satisfy a different, more rigorous standard (strict scrutiny or a showing that the speech falls into an unprotected category). So perhaps a school could sanction a student for out-of-school true threats, rather than leaving it to the police and the courts. Perhaps a school could punish a student for out-of-school (constitutionally protected) racist speech, claiming a compelling interest in teaching racial justice or maintaining racial peace within the schoolhouse gates that society at large cannot claim. I have presumed that schools should have no power to regulate speech off-campus, that a student becomes an ordinary person outside of school. While affirming broad student rights, this opinion suggests otherwise.

And if that is true, what does it mean for universities, who generally are not governed by Tinker? Can a university claim a compelling interest in campus racial peace that might give it more power than society at large to sanction racist-but-protected speech?

Finally, an empirical question that I have not researched but that I would be curious if anyone knows the answer. The Third Circuit in the past half-decade has broadly protected student speech in several significant case, a seeming departure from the late-'90s/early-oo's, when schools routinely won cases involving online speech and t-shirts. Is the Third Circuit an outlier or have other courts come around?

Posted by Howard Wasserman on June 30, 2020 at 01:31 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, June 26, 2020

Anti-racism and the First Amendment

Jaden McNeil is a student at Kansas State and the head of America First Students, an organization that believes Turning Point USA is too liberal. Yesterday, McNeil sent a tweet congratulating George Floyd on being drug-free for a month. The tweet drew responses and condemnation from several K-State football players, followed by further condemnation from the head coach, athletic director, and university president. Several players called on the university to do something to "handle" this, while another promised not to play for the school if it "tolerates ignorance such as this." The university president promised to review its "options."

But there do not seem to be any options for a public university to handle this. McNeil is an asshole and deserves (but probably does not care about) public opprobrium, but his tweet does not seem to fall within any unprotected category of expression. Universities are in a bind. They can develop anti-racism in their curricula and institutional activities, they can counter-speak to racist messages (as they have done), and they can adopt and promote anti-racist messages. But under current doctrine, they cannot stop individual students from being racist and from saying racist stuff in public spaces. And they cannot design codes of conduct and anti-discrimination policies that can stop individual students from being racist and saying racist stuff. Athletes are developing their voices and discovering their leverage, which is a good thing and a long time coming. But that leverage and the university's desire to field a football team cannot compel the university to ignore the First Amendment.

Like the 1960s, this period of protest and change could be remembered as much for the First Amendment activities and developments as for Fourteenth or Fourth Amendment developments (ideally all three). But that is a two-edged sword--the First Amendment may impose a barrier to some of the broadest intellectual goals of anti-racism and the broadest desires of those who want to stop racism. Unless the pressure of this moment compels a change in free speech doctrine, which seems unlikely and would be unfortunate.

Posted by Howard Wasserman on June 26, 2020 at 05:29 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Saturday, June 20, 2020

No TRO/Injunction against Bolton book

Judge Lamberth denied the government request for a TRO and preliminary injunction stopping publication of John Bolton's memoir. The court found that the government is likely to succeed on the merits because Bolton "likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations." But the distribution process is so far along that the court refused to stop it. The court was especially reluctant to order Bolton to, as the government requested, "'instruct his publisher to take any and all available steps to retrieve and destroy any copies of the book that may be in the possession of any third party.'" As the court put it, "for reasons that hardly need to be stated, the Court will not order a nationwide seizure and destruction of a political memoir."

The government likely will appeal, but I cannot imagine the D.C. Circuit reaching a different conclusion in four days. The complaint in this case requested a constructive trust to seize proceeds from the book and there is noise about a criminal prosecution. Lamberth was confident that Bolton had opened himself to both of those.

Some passing thoughts:

1) Another entry in the standing makes no sense chronicles: After finding no irreparable harm, Lamberth pivots to standing, pointing out that he could "reframe" the irreparable-harm factor in the equitable analysis as the redressability factor in the Article III standing analysis, while declining to do so. But it illustrates, even in passing, how standing really is constitutionalized merits and thus unnecessary.

2) He also did not address any First Amendment prior-restraint issues, again because unnecessary given the equitable analysis.

3) The irony of Bolton (likely?) losing the proceeds of the book: He was criticized in anti-Trump circles for refusing to present this material to the House or Senate during the impeachment proceedings and for choosing instead to tell the story when it is too late to help the country and when it will put money in his pocket. It looks like he may lose the money.

Posted by Howard Wasserman on June 20, 2020 at 12:31 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Thursday, June 11, 2020

Second Lafayette Square Lawsuit

A second lawsuit has been filed over the clearing of Lafayette Square on June 1. Plaintiffs are three individuals who were at the protests and plan to protest in the future. They have the benefit of one additional week of presidential statements and other developments to support allegations of retaliation, viewpoint discrimination, and the unreasonableness of the use of force.

This complaint has another wrinkle: A claim for violation of the Posse Comitatus Act for bringing forth military police and national guard troops in clearing the park. They claim "a non-statutory right of action to enjoin and declare unlawful presidential action that is ultra vires," then seek damages, a DJ, and an injunction. This seems weak for three reasons: 1) Any implied injunctive right of action cannot support a claim for damages; 2) I am not sure how they can show damages from the violation of Posse Comitatus, which requires showing some incrementally greater injury from the fact that military personnel might have been involved in the injurious First and Fourth Amendment violations; and 3) It seems unlikely that Trump will try to use military force again--thris morning's tweets about Seattle notwithstanding, the military has pushed back on this. Still, it is a cute theory for public consumption.

Posted by Howard Wasserman on June 11, 2020 at 05:39 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, June 10, 2020

Testing fan speech

NASCAR has barred Confederate flags from races, events, or properties, including those displayed or waved by fans. But who owns and controls the various tracks? And if the government, what is the connection between the government and NASCAR and is there enough of a connection to make NASCAR a state actor and to trigger the First Amendment? This is the first instance in which a private professional league issued a blanket ban on fan expression.

Posted by Howard Wasserman on June 10, 2020 at 07:30 PM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Lawyers doing lawyering

Good legal work from lawyers for CNN and and NY Times calling out bad arguments. David McCraw of The Times has been down this road.

Posted by Howard Wasserman on June 10, 2020 at 04:27 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, June 08, 2020

Calling the NFL's bluff

Roger Goodell is an incompetent liar. So I hesitated to rejoice over his video from last week in which he said, among other things, "We, the National Football League, admit we were wrong for not listening to NFL players earlier and encourage all players to speak out and peacefully protest." It never mentioned the flag, kneeling, or Colin Kaepernick, so I wondered how much he was committing to and how much wiggle room he tried to leave the league and himself so as to avoid displeasing the President and a segment of the fan base.

We may find out. Just before midnight, the President* tweeted "Could it be even remotely possible that in Roger Goodell’s rather interesting statement of peace and reconciliation, he was intimating that it would now be O.K. for the players to KNEEL, or not to stand, for the National Anthem, thereby disrespecting our Country & our Flag?" Imagine the NFL returns and players kneel and the President and the Trumpier team owners object. I can envision Goodell insisting that he meant that players were encouraged to participate in the ongoing protests or to speak on Twitter and other outlets; he did not mean they were encouraged to bring it onto the field.

[*] Or someone working his account. The use of "intimating" suggests it was not the President himself.

Posted by Howard Wasserman on June 8, 2020 at 01:28 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, June 07, 2020

What does Cohen v. California clearly establish? (Updated)

The stories are confused and seem incomplete. But apparently the sheriff of Lowndes County, Georgia confiscated from a protester in Valdosta a sign reading "Fuck Trump." Georgia law prohibits profanity in the presence of children under 14. (Update: A woman was arrested for violating the law with a different sign the following day. The article indicates the sheriff intends to continue enforcing the law).

The enforcement of the ordinance violates the First Amendment. Profanity is constitutionally protected and, at least outside of sexually explicit material on TV, adult speech cannot be reduced to what is appropriate for children. So although the Georgia Supreme Court declared that law valid in 1973, it cannot stand under modern doctrine.

The question is whether the First Amendment right to display a "Fuck ____" sign is clearly established--the constitutional question is beyond dispute so no reasonable officer could have believed seizing this sign was constitutionally valid. Is this like Johnson and flag burning? Or might a court actually say a jacket in a courthouse is different from a hand-made sign at a protest rally where children might be present?

Posted by Howard Wasserman on June 7, 2020 at 11:17 AM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Friday, June 05, 2020

Last act of a desperate man (or first act of Henry V)?

Many have pointed to the differences in how police responded to the George Floyd protests compared with the anti-shutdown protests. It is especially glaring to see police respond with resistance, impatience, and ultimately often-discriminate force and arrests of largely peaceful Floyd protests on public parks and sidewalks, while calmly de-escalating or ignoring heavily armed people in paramilitary gear in a space (the halls of the statehouse) they did not have a right to be in. Photos and videos show the latter protesters being as shouty and as in the officers' faces. And there were more explicit threats of unlawfulness, given that some protesters had military-grade weapons and were threatening government officials. Yet police stayed calm, used little force, and made few (if any?) arrests.

This is not new. In January 2017 (boy, does that seem like decades ago), I wrote about the lack of force and arrests in the first women's march and the airport protests following the first Muslim Ban. At the time I wondered why--whether it was as simple as the race of the protesters (or at least the racial valence of the protests, since many of the protesters and victims of police violence have been white).

One commenter suggested that the subject of the protests mattered: Police do not remain neutral and play peacekeeper when they and their misconduct are the targets of the protests, as opposed to President Trump or governors and their shutdown orders. Events of the past two weeks support that idea. Police in Minnesota were loaded for bear from the outset, prepared for confrontation and looking to stifle the assembly, before anything turned violent and before it spread to other cities; when people in other cities began protesting, police started from a confrontational, escalatory pose with the goal of clearing the streets. We have seen little of the patience and leeway accorded to other protesters. Videos making the rounds show police looking for an excuse to get physical and, once things have become physical, to clear the crowd. One video from Seattle shows a bike officer riding on the sidewalk and trying to squeeze into a narrow space between a person and the pushes; when he and the citizen unavoidably bump, the cop uses that as an excuse to make an arrest. Videos I have seen from yesterday in Buffalo, Philadelphia, and elsewhere show police determined to clear a space and taking out anyone in that space, regardless of whether they are peaceful and whether they are doing anything wrong.

It is telling that we have seen so many incidents of indiscriminate, unnecessary, and arguably excessive police force in response to protests against excessive force by police. And it is significant that we have seen so many incidents of police force despite officers knowing they are being filmed by every protester with a phone, not to mention media covering these events. One explanation is that police do not care; they are confident that nothing in the videos will cause them to lose their jobs or their qualified immunity. Another is that they are, intentionally or not, asserting power by showing what real excessive force looks like--"stop crying or I'll give you something to cry about"--and proving the protesters' point.

A third, more speculative explanation is that we are at the end of an era, that significant changes to policing and police impunity are coming. And at least some officers are trying to get in their last shots before it is too late. I hope reform is coming.

Posted by Howard Wasserman on June 5, 2020 at 12:42 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink

Wednesday, June 03, 2020

CDT challenges social-media executive order

The Center for Democracy and Technology has sued President Trump over the social-media executive order. Amazingly, that was issued less than a week ago--remember when that seemed this administration's most significant threat to free speech?

The complaint alleges CDT's organizational standing based on its interests in furthering free speech and online expression and the resources it will have to devote to engaging and monitoring the administrative actions the EO calls for. It also lays the ground for third-party standing on behalf of Twitter and other providers, arguing that the President's past retaliatory actions against private companies may deter them from filing lawsuits. The First Amendment theory is that the EO was retaliatory against Twitter for the exercise of its First Amendment rights, making it "ultra vires and therefore void ab initio."

The organizational standing theory works, at least for the moment. While controversial, this is the same theory that human-rights, immigration, and refugee organizations used in the travel ban and similar cases. Courts do not seem ready to jettison the theory. I am less sure about third-party standing, because it is not clear that "fear of Trump criticism affecting our stock price" is a sufficient barrier to Twitter and other companies enforcing their rights.

But it seems to me that the action fails because, at this point, the EO does not do anything. A legal enactment (whether an EO, regulation, or statute) does not violate rights or cause injury (beyond chilling effect, which is insufficient); the enforcement of that enactment violates rights or causes injury. A court cannot erase an invalid EO any more than it can erase an invalid statute; it can only declare its invalidity and enjoin its enforcement.

The problem is that this EO alone does not do anything and there is nothing to enforce right now, thus it cannot violate rights, cause injury, or otherwise do something that a court can enjoin. The EO commands administrative action that might, when taken, violate the First Amendment, the APA, or some other statute (I have not seen anything to make me believe the FCC has authority to interpret or apply § 230). But we will not know whether those administrative actions cause injury or violate rights until they are taken. Same with the FTC and DOJ surveillance and information-gathering--until we see the form it takes, we cannot know whether it is lawful. That also seems to create a problem for the retaliation argument. If the FCC has authority to interpret § 230 and it comes up with a valid interpretation, the retaliatory motive does not render it unlawful, at least so long as the resulting regulation is not limited to Twitter.

The only question is whether this failure is treated as standing (no one has been injured because the government has not done anything), ripeness (the issues are not fit for judicial resolution), or as substantive First Amendment (nothing happened yet to violate the First Amendment). But, at this point, I do not see how this lawsuit succeeds against an EO that, for the moment, is for show.

Posted by Howard Wasserman on June 3, 2020 at 12:02 PM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Tuesday, June 02, 2020

Suing over Monday's crowd dispersal

Here is what we know happened around 6:35 p.m. Monday next to Lafayette Square: Federal law-enforcement officials threw something (dispute whether it was tear gas or a smoke bomb) and pushed throw to move the crowd out of the area. Prior to that point, the crowd was lawfully gathered in a space that has been held to be a traditional public forum, was engaging in peaceful expressive activity, and not engaging in unlawful conduct. Attorney General Barr ordered federal officials to move the crowd, so the space was clear for the President to have his photo opportunity in front of the church. This was captured live on TV, as well as recorded on numerous phones. Federal officials also moved church personnel off of church property through tear gas or other device, presumably at the AG's command.

It looks like a significant violation of the First Amendment. But:

• We do not know the individual officers who threw the smoke/tear gas and there were too many officers in the phalanx. I suppose video forensics and FOIA might be able to identify. But any lawsuit would involve many Doe defendants and discovery to determine their identities.

• The plaintiffs could sue the AG on the theory that he directly ordered the unconstitutional behavior. This runs into Abassi and Iqbal, which seemed to limit if not foreclose Bivens claims against high-ranking officials on a supervisory theory. This case is different than Iqbal in that the supervisory conduct was a direct order to engage in First-Amendment-violative conduct in a specific situation, rather than enactment of general policies, making the causal connection more direct. I doubt that distinction would fly.

• It is not clear there is a Bivens action for free-speech violations. SCOTUS has assumed it several times, while most circuits have held there is. The Court may say that this is a different context (First Amendment, presidential security, massive protests) and thus find special factors counseling hesitation (presidential security, high-ranking official, etc.).

• Barr and any individual officers can claim that the security concerns provide a compelling interest justifying clearing the public forum of peaceful protesters, although any compelling interest in clearing space for a photo opportunity is a weaker argument. The talisman of national security may be sufficient to defeat any substantive First Amendment right.

• Even if this conduct violated the First Amendment, any defendant is likely to get qualified immunity. There is no precedent that places "beyond doubt" that the First Amendment is violated by the use gas/smoke to clear out peaceful protesters in a period of massive demonstrations so the president can do a photo opportunity. There certainly is no precedent making it beyond doubt that it is a violation for the AG to do it. The Court pays lip service to the legal rule that precise precedent is not required and that a right can be clearly established as a matter of general principle, but recent cases have, in practice, found immunity in the absence of substantially similar precedent. The two cases (Hope and Lanier) that have found rights clearly established on general principles involved egregious facts and were two decades ago. Is "gassing peaceful protesters in a public forum to allow a presidential photo op" the equivalent of selling foster children into slavery (Posner's famous example)? Probably not.

• Because the facts are unique and the absence of precedent obvious, a court likely would not touch the merits and would grant qualified immunity.

• No plaintiff would have standing to obtain declaratory or injunctive relief. They could not show imminent injury because they could not show both a substantial (or at least reasonable) likelihood that they would protest again and that the AG or federal officials would repeat their actions.

As someone said on a list serv, I hate writing this. But it is the law that we have at the moment. Maybe this case illustrates the urgency of the Court doing something about qualified immunity, outside the Fourth Amendment context.

Posted by Howard Wasserman on June 2, 2020 at 06:56 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Monday, June 01, 2020

"We have a different Court"

In an apparently unhinged Monday phone call with governors, the President urged states to enact new laws prohibiting flag burning. According to sources, the President said "We have a different court" and that "if you wanted to try a very powerful anti-flag burning law, we’ll back you.” (Not sure if that means the administration would not back a state that tried a moderately powerful law).

I know these are unserious ravings of an unserious person, but it does reveal how little he understands.

First, under judicial departmentalism, Trump's suggestion is lawful and consistent with his constitutional oath, as is action by any governor and legislature. If they believe these laws consistent with the First Amendment, they can act on that understanding.

Second, for what it is worth, new laws would be unnecessary in many states where anti-flag-burning laws remain on the books. They remain unenforced because state officials know what would happen if they tried.

Third, even if a logical solution to the problem of violent protests, it could not resolve the current situation (assuming these protests peter out after a few more days). Imagine a state enacted or announced plans to enforce a flag-burning law tomorrow. The law would be enjoined immediately by a district court and affirmed by a court of appeals, both bound by Johnson and Eichman. It would be awhile before it reached that "different Court." Alternatively, the right to burn a flag is one of the few clearly established rights, so no officer would attempt to enforce that law on pain of losing qualified immunity in a subsequent civil action.

But indulge the President's fantasies that "we have a different Court" (Kennedy was the last holdover from the Eichman Court) that would resolve the flag-burning question differently. Would it, writing on a clean slate? The Court has earned its reputation as extraordinarily speech-protective; no coherent theory of free speech can tolerate the viewpoint discrimination that would prohibit burning a flag in protest but allow wearing a flag as a shirt or altering a flag to create a different message. At worst, the Chief would join the liberals in another 5-4 decision. But Gorsuch appears as speech-protective as his former boss. Alito and Thomas have cited Johnson to support the principle of viewpoint neutrality (when other cases could have served the same purpose), which I would think they would not have done if they had the doctrine in their cross-hairs. Plus, this would provide an easy opportunity for Republican appointees to silence the "Court is political" voices by demonstrating that their jurisprudence does not inevitably and ineluctably lead to the Republican-preferred outcome. Justice Scalia got 30 years out of Johnson as pretty much the lone example of his originalism leading to a disfavored outcome. So perhaps the President is right--we do have a different Court and it would declare the law invalid by a 9-0 vote rather than a 5-4 vote.

Posted by Howard Wasserman on June 1, 2020 at 03:33 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Friday, May 29, 2020

The remedy to be applied (Updated)

At the risk of spending more time taking seriously something fundamentally unserious.

As I am coming to understand it, § 230(c) does two things. (c)(1) says the ISP or web site is not liable as publisher or speaker for third-party content in actions for defamation, invasion of privacy, etc. (c)(2) accords immunity for "good faith" actions in restricting access or removing material that it believes unprotected or "otherwise objectionable" (although I am not sure what cause of action exists for an improper takedown). The premise of the "policy of the United States" reflected in the EO is that companies that engage in content- or viewpoint-based takedowns engage in "editorial conduct" do not act in good faith, thereby a) removing (c)(2) immunity and b) rendering them publishers who should be liable as such. Neither of these can be squared with the statutory text.

But what about what Twitter actually did in this case--engaging in its own speech by slapping a label on the post or promoting contrary messages. Section 230 is silent as to an ISP engaging in its counter-speech to the content it allow on its site. But no one doubts that a private bookstore or newsstand could allow content while labeling it or organizing it in a way that expressed the owner's distaste for that content and that it could not be liable for such actions. So even if the EO could remove an ISP's protection (which it cannot), it cannot stop it from doing what it did here.

And many comments about all of this (tweets by Trump, Ted Cruz, etc.) are about how Twitter is violating the First Amendment by its own counter-speech, treating it the same as enforced silence. Putting aside that these are private companies, this is a perverse take on free speech.

Posted by Howard Wasserman on May 29, 2020 at 10:13 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, May 28, 2020

Thoughts on the Twitter EO (Updated to include final Order)

Thoughts on the final new EO.

1) It cites Packingham and Pruneyard to support the proposition that social media has become the "functional equivalent of a traditional public forum" and the "modern public square." But Packingham was a case about how social media is so important that government cannot prevent people from accessing it; it does not support the proposition that social-media companies are bound by the First Amendment. It studiously avoids Manhattan Community Access, which rejected the idea that opening a private space for speech (a bulletin board, open mic at a comedy club) subjected the owner to First Amendment limitations. And part of the rationale was that the Constitution does not "disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property." To the extent the EO commands the FTC to try to impose those obligations on social-media platforms (Twitter mentioned by name), it will run into that limitation.

2) The irony (perhaps intentional) is that the EO was prompted not by restricting speech, but by engaging in counter-speech--exercising its own First Amendment right to label something Trump posted as bullshit. Even if Twitter were somehow obligated to treat its platform the way government is supposed to treat the public square and not bar any protected speech, it cannot, consistent with the First Amendment, be prohibited from speaking in its own voice. So the Twitter conduct the EO aims to stop is not the Twitter conduct that precipitated the EO.

3) The EO's goal seems to be to impose the platform/publisher distinction onto  statutory language that does not create and cannot bear that distinction. Eugene Volokh explains the platform/distributor/publisher distinction and § 230 as it stands. He explains that § 230 gives social-media companies the immunity of a platform (e.g., telephone companies) even when it acts like a distributor (e.g., a bookstore or newsstand). Congress could change that, but has not. The EO attempts to impose that interpretation as executive-branch policy, but I am not sure the text can bear it. I leave to others to parse this out.

4) To relate this to Adam's various posts, the EO and the discussion around § 230 reflects the conflation of descriptive and normative arguments, of "is" and "should." The EO argues that any "editorial conduct" makes the entity a publisher and outside the protection of (c)(1) and (c)(2). But that is not what the statute, as it is written, says or means. As Eugene argues, it could have said it and it could be amended to say it. In others, maybe Twitter "should" lose immunity and the law should be written to do that; under the law as it "is," Twitter does not lose immunity.

5) It is not clear what practical effect the EO has. It seems to want the FTC and FCC to undertake regulatory activities that neither may have the power to take in an area that typically is not subject to agency action. Section 230 immunity arises when a service is sued for defamation or for an improper take-down; neither of those has anything to do with the agencies. It prohibits federal spending on misbehaving sites. It seems to want the FTC and state AGs to consider unfair/deceptive trade practice proceedings against sites for controlling content, but that would seem to run into some First Amendment problems.

6) The press is going to spend the next several days talking about the this and not the 100,000 dead Americans. So this is more shit flooding the zone.

Update: I agree with the general consensus that, while this will have no legal effect, it will make life difficult and annoying for Twitter, under the threat of the federal government (including a corrupt AG) watching them and their users. Which is the point.

Posted by Howard Wasserman on May 28, 2020 at 01:33 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Sunday, March 29, 2020

L'état, C'est Trump

"When they disrespect me, they're disrespecting our government."

Put aside that the First Amendment exists so people can disrespect the government. The President--or any government official--is not the government and the two should never be conflated.

Posted by Howard Wasserman on March 29, 2020 at 07:45 PM in First Amendment, Howard Wasserman | Permalink | Comments (9)

Tuesday, March 03, 2020

The procedure of frivolous political defamation actions

The Donald Trump Campaign today sued the Washington Post in the District of D.C. over a June 2019 column by Greg Sargent. This follows the campaign's suit in New York state court against The New York Times. Meanwhile, Devin Nunes is up to seven lawsuits against various persons, bovines, and business entities.

This rash of lawsuits has many First Amendment advocates calling for more states and the United States to enact anti-SLAPP statutes. These suits represent the modern analogue to Southern officials' defamation campaign against northern media outlets in the 1950s and '60s. But I have been slow coming to the "anti-SLAPP is necessary" position; if the protections of New York Times were sufficient to stop the barrage 60 years ago, they should be sufficient now.

The answer comes from the latest episode of the All the Presidents Lawyers podcast. First Amendment advocate Ken (Popehat) White explains that the purpose of these lawsuits is not to win, because most of the suits are garbage under NYT and the plaintiffs and their lawyers know that. Rather, the purpose is to drag people into court and impose the time, burden, distraction, and cost of having to defend themselves, with the added benefit that it may make people and the press less willing to criticize these people. In theory, only an anti-SLAPP law--with its attorney's fees provision and expedited dismissal--addresses that problem. The alternative (in federal court) is sanctions under FRCP 11 and attorney's fees against counsel under § 1927. But courts may be reluctant to impose sanctions against a congressman, president, presidential campaign, or other powerful and famous plaintiff--especially to award attorney's fees as a sanction, which is the way to address the financial cost to the plaintiff that the lawsuit is intended to impose. Perhaps Nunes' seven nonsense lawsuits would indicate a sufficient pattern that a judge might find attorney's fees necessary for deterrence of client and attorney. But not in the mine run of cases.

Some commentators have suggested that the availability of an anti-SLAPP statute affects litigation choices. Nunes sued Twitter (a California company) and McClatchy Newspapers (publisher of the Fresno Bee) in Virginia, which lacks a strong anti-SLAPP law, rather than California, which has one. Both courts have declined to dismiss for lack of personal jurisdiction, with analysis revealing confusion over the newly narrowed scope of general jurisdiction. Some commentators have suggested that the choice of forum (federal over state court) or the choice of parties depends on whether the federal court would apply the state's anti-SLAPP law.

But we should be more nuanced on the question of anti-SLAPP laws in federal court. I have argued that the special SLAPP motion should not apply in federal court (the position of the D.C. Circuit, in which the new Trump Campaign action was field), because FRCP 12 and 56 cover the issue. (And a 12(b)(6) dismissal, in which the court considers whether the statements as pleaded are opinion, can get the defendant out of the case quickly enough). By contrast, the SLAPP attorney's fees provision should apply in federal court. Under the "relatively unguided Erie analysis," not applying the fee provision would cause a plaintiff to choose federal over state court and the attorney's fee provision is bound up with substantive state policy concerns for protecting the free speech rights of its citizens. If the real concern is the cost of having to defend even a nonsense suit, an attorney's fee provision addresses that.

Finally, it is notable that the Trump Campaign, rather than Trump, brought these two suits. I am not sure how the campaign can claim injury from statements about Trump. One commentator suggested the Campaign sued to get the WaPo case in federal court. The Campaign is a Virginia corporation with its principal place of business in New York; Trump, the commentator implies, is a D.C. domiciliary and thus not diverse from the Post.

This returns us to Where In the World Is Donald Trump? Trump was a New York domiciliary prior to January 20, 2017. In October, he (and Melania) renounced his New York citizenship and filed a Declaration of Domicile in Palm Beach County, Fla., establishing Mar-a-Lago as their permanent residence. Trump thus appears to be a Florida citizen--he has a residence there and expressed his intent to remain. Although Trump resides in D.C., he has not manifested an intent to remain there (unless he manages to get Republicans to repeal the 22d Amendment). So it is wrong to say the case could not be in federal court were Trump the named plaintiff--it would be an action between a citizen of Florida (alone or with a citizen of New York/Virginia) and wherever the Post is.

On that point, this case offers a different procedural lesson, because plaintiff counsel screwed up the jurisdictional statement with respect to the Post. Paragraph 10 reads:

On information and belief, defendant WP Company LLC d/b/a The Washington Post is a District of Columbia limited liability company with its principal place of business in Washington, D.C.

An LLC is a citizen of every state in which one its members is a citizen. So identifying an LLC as a party cannot establish jurisdiction because the LLC has no independent citizenship; you have to dig into the LLC's structure to identify individuals or corporations whose citizenship does not depend on someone else. Plaintiff did not bother doing that. I assume that some digging will lead to Jeff Bezos, who is a citizen of Washington state and/or some D.C. corporation. But the complaint, on its face, does not establish federal jurisdiction. And reflects the sort of bad (or disinterested) procedural lawyering I warn my students about. Curious if the Post will raise that or move on, knowing what jurisdictional discovery would reveal about its structure.

Posted by Howard Wasserman on March 3, 2020 at 04:35 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Thursday, February 27, 2020

Criticizing basketball ref is protected speech

The Sixth Circuit on Thursday issued the opinion (by Judge Sutton) in Higgins v. Kentucky Sports Radio, holding that talking about sports, including criticizing officials, constitutes speech on a matter of public concern and thus could not be the basis for liability in the absence of the intent necessary to constitute incitement. (I wrote about an exchange during oral argument).

It is a great opinion by Sutton. It includes quotation from Gen MacArthur about protecting American freedoms such as "the freedom to boo the umpire." Saying that talking about sports represents speech on a matter of public concern is important to my ongoing project about fan expression. If talking about the game, including the refs, is protected on radio and the internet, it should be protected in the bleachers.

Posted by Howard Wasserman on February 27, 2020 at 04:38 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, February 26, 2020

YouTube not a state actor (Updated)

When SCOTUS decided Halleck last term and held that a private company managing public-access cable channels is not a state actor, it was obvious that this meant online platforms such as YouTube or Twitter were not state actors. And so the Ninth Circuit held on Wednesday in PragerU v. Google, a challenge to YouTube policies restricting or demonetizing certain videos. The court rejected the argument that YouTube performed a traditional-and-exclusive public function in managing a speech forum (the argument rejected in Halleck) or that YouTube's public declaration that it is committed to free expression changes its private nature.

This was easier than Halleck. There was something to the position that Justice Sotomayor took in her Halleck dissent that it was a delegation case rather than a public-function case--the government took on a responsibility then delegated it to a private entity. YouTube is an electronic version of the private comedy club discussed in Halleck.

This part of the opinion ended on an interesting point, telling everyone, in essence, to calm the f*&^ down:

Both sides say that the sky will fall if we do not adopt their position. PragerU prophesizes living under the tyranny of big-tech, possessing the power to censor any speech it does not like. YouTube and several amicus curiae, on the other hand, foretell the undoing of the Internet if online speech is regulated. While these arguments have interesting and important roles to play in policy discussions concerning the future of the Internet, they do not figure into our straightforward application of the First Amendment.

Posted by Howard Wasserman on February 26, 2020 at 06:00 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Friday, January 31, 2020

Appellate argument (and law school), encapsulated (Updated)

From the Sixth Circuit argument in Higgins v. Kentucky Sports Radio, a lawsuit brought by a college referee who was attacked online by Kentucky basketball fans (particularly through harassing phone calls and negative reviews of his roofing business) following some controversial calls in a game UK lost. The defendants are the radio station and announcer who reported on and promoted the efforts, in a way the plaintiff alleges constitutes incitement and conspiracy to defame. (H/T: Regular reader and commenter Asher Steinberg).

In an argument that otherwise went well for the radio station, I loved this exchange (around 19:00) between the station's attorney and one judge (not sure who turns out to have been Judge Sutton), when the judge asked whether a more direct instance of incitement would have survived 12(b)(6):

Attorney: Your Honor, I'm hesitant to comment on hypotheticals. The point is that is not this case.

Judge Sutton: OK, wait. I hate to break it to you, particularly with some law students here. That is all we do. *** You want to win for your client today. And we do not want to issue a ruling that we will have to denounce tomorrow for the next case.

Posted by Howard Wasserman on January 31, 2020 at 08:33 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Thursday, January 16, 2020

Universal consent decrees

Two U Conn students who were prosecuted and sanctioned by the university for violating the school policy against "disruptive behavior" for uttering a racial slur have filed suit in the District of Connecticut, claiming the school sanctions violate the First Amendment. (H/T: Eugene Volokh). The case should be easy as a First Amendment matter--the students seem to have shouted the slur into the ether, not directed at anyone and not accompanied by any threatening conduct.

But it is procedurally interesting, potentially complicated, and seemingly wrong. After the jump.

In 1990, U. Conn. entered a consent decree in a lawsuit brought by a then-student named Nina Wu, who was sanctioned for saying "no homos" on a board on her dorm-room door. The consent decree permanently enjoined U. Conn. from enforcing a provision of its student code "against this plaintiff or any other student." This is a universal injunction, protecting the universe of U. Conn. students (or it is at least non-particularized). I would argue the court cannot and should not issue such an injunction. The completeness of Nina Wu's remedy is unaffected what might happen to do students 30 years later--that is, students who were not born at the time of the injunction. On the other hand, U. Conn. could have entered the consent decree with Wu, then voluntarily altered its conduct and declined to enforce the provision against any other student (which is what usually happens). But this case offers a third option--U. Conn. voluntarily bound itself to non-enforcement as to non-parties as a matter of an enforceable judicial order. Can a defendant do this? Can the court do it if the defendant agrees? Can a court enforce it as it would a properly scoped injunction?

The plaintiffs frame their case, at least in part, as an attempt to enforce the consent decree. They allege in ¶ 8 that they have standing to enforce the decree because of its stated scope. But then the procedural posture makes no sense--why (and how) can a plaintiff file a new lawsuit to enforce a judgment in a different action, even if in the same district and assigned (under a local related-case rule) to the same judge. It seems to me that the proper course have been to move to intervene or join as plaintiff in Wu and to move the court with jurisdiction over the injunction to enforce or modify. Filing a new lawsuit before a new judge is proper if asking for a new injunction protecting these plaintiffs as to these defendants.

Posted by Howard Wasserman on January 16, 2020 at 04:47 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, January 12, 2020

What we mean by one-sided

Reviews for the documentary "No Safe Spaces"--an exploration featuring Adam Corolla and Dennis Prager of anti-conservative speech restrictions on college campuses--have divided along expected partisan lines. Conservative publications praise it for exposing anti-conservative-speech biases on campus, liberal publications decry its one-sidedness in criticizing campus liberals as censorious, without considering the problems that racist, sexist, etc., speech causes on campus.

This column is the first I have seen calling the film out for a different one-sidedness: Not engaging with equal-and-opposite efforts by conservative groups and leaders--including the President--against liberal speech. The author labels this "free-speech tourism," waving the banner of free speech when their political compatriots are attacked, while seeking to impose similar restrictions on speakers they find political objectionable. Thus, the film celebrates supposed free-speech champions who have called for de-platforming of liberal speakers and have sued critics on specious defamation claims. In an interview described in the piece, Corolla pleaded ignorance to censorship efforts from the other side, which should show a lack of seriousness or understanding of the project.

The combination of this column and left-leaning criticism of the film reveals where we are: Much of the right is not serious about its First Amendment advocacy, while much of the left does not want to talk about, or use, the First Amendment.

The piece closes on a nice point about free speech:

The doc's inability to grapple with growing animosity toward free speech on both sides of the political aisle shows just how hollow these concerns among conservative "free-speech tourists" are. * If you don't call out your own side or loudly defend the First Amendment rights of your political enemies, you're not a free-speech warrior. You're a free-speech tourist.

Posted by Howard Wasserman on January 12, 2020 at 04:09 PM in First Amendment, Howard Wasserman | Permalink | Comments (3)

Thursday, December 12, 2019

Jewish-as-race-or-national-origin

I have not weighed in on the dispute over the administration's new order on anti-Semitism and Title VI. I do not like the new regs in my guise of free-speech advocate, because it appears to have potential to incentivize schools to restrict a lot of protected speech (including naked anti-Semitism) for fear of losing federal dollars.

But I do not understand the supposed apprehension that David Schraub describes: Jews do not want to be described as having a distinct national origin because it highlights "otherness," non-Americanness, and the historic charge of disloyalty. Schraub argues that "[i]f Jews are deemed “just” a religious group, then they are not covered by Title VI. Publicly funded programs, under this view, could discriminate against Jews with impunity." But this is incomplete. Schraub ignores the word "race" in Title VI, which seems to capture Jews without having to get into existential debates about nationality and the disloyalty they imply. SCOTUS has held that Jews are protected under § 1982 and Iraqi-born Muslims under § 1981. Lower courts have relied on that case law to hold that Jews are protected as a racial group (defined by "ethnicity and ancestry") under Title VI and Title VII (although other courts disagree). The point is that reading Title VI to protect Jews is neither unusual nor dangerous.

Posted by Howard Wasserman on December 12, 2019 at 07:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (5)

Monday, November 25, 2019

Eric Rasmusen, IU, and the First Amendment

For those who missed it, Indiana-Bloomington Provost (and law professor) Lauren Robel issued a public statement excoriating business professor Eric Rasmusen's publicly expressed views about women, racial groups, LGBTQ people, and others, while insisting that the First Amendment prevented the school from firing the tenured professor. The school did prohibit Rasmusen from teaching single-section required courses and imposed special blind-grading obligations. Rasmusen has responded. Many, such as Gregory Magarian (Wash. U.) on the blog Lawyers, Guns, and Money saw this as counter-speech in action. Brian Leiter doubts that a university administrator should comment on a faculty member's speech--he argues Robel should have stopped at "the First Amendment protects this speech, Rasmusen does not speak for IU, and we are monitoring to ensure compliance with anti-discrimination laws. Josh Blackman questions whether there is a First Amendment difference between firing a professor and hampering his teaching by reducing the size of his classes--either is a sanction imposed because of his speech.

On a different note, the Magarian interview is interesting as a wide-ranging discussion of where the First Amendment is trending. Note particular his discussion of Citizens United as not quite the bogeyman everyone says.

Posted by Howard Wasserman on November 25, 2019 at 10:59 AM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Saturday, November 23, 2019

Protesting Harvard-Yale (Updated)

Yale_Harvard_Protests-e1574537307629The second half of the Harvard-Yale Game was delayed for 48 minutes when students from both schools rushed the field to stage a climate-change protest calling for both institutions to divest from oil, gas, and other energy investments. Many protesters eventually left the field, while the last stragglers were escorted by police; I do not know how many students were arrested. [Update: This report says 42 students were charged with misdemeanor disorderly conduct]

Just to be clear (and putting state action to one side);

• The students should have been untouchable had the protest remained in the stands. While climate change has nothing to do with football, chanting and displaying signs about divestment is not inconsistent with cheering and displaying signs at a football game.

• The students were properly subject to arrest (reports suggest some wanted to be arrested). While engaging in expressive behavior, they did so in a place they had no right to be. This is civil disobedience--breaking the law, and accepting the consequences, to draw attention to the cause and the protest.

• This demonstrates why politics and speech are inseparable from sports. No one would be talking about a few hundred Ivy League students protesting climate change in the middle of campus. The protest now is a national story. And it is part of the story of a great football game--Yale won 50-43 in Double-OT, staging a late-game comeback, clinching the victory in darkness (no lights at the Yale Bowl), and claiming a share of the Ivy League title.

Posted by Howard Wasserman on November 23, 2019 at 04:45 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, November 12, 2019

Daily Northwestern gets pummeled--some thoughts (Updated)

I am a graduate of Northwestern's Medill School of Journalism, although I never worked at The Daily Northwestern and never pursued journalism as a career. I am following and interested in the scorching negative reaction to the paper's apology for its coverage of a campus speech by Jeff Sessions last week, at which protesters gathered outside and some protesters attempted to force their way into the lecture hall, where they were confronted and restrained by campus police.

It appears the paper overreacted and that its reporting, including the photographs it took and posted online, followed appropriate journalistic standards. It also appears that some of the sharp reaction to the apology reflects the "these damn snowflakes" annoyance with millenials, such as the paper's suggesting that it harmed and "retraumatized" student protesters by reporting on them (which is what the protesters seem to charge). And the paper seemed to be motivated by the possibility that its photographs and reporting could be used as a basis to identify and sanction student protesters--Northwestern does not provide amnesty for protesters who violate university rules (such as sneaking into the reserved lecture hall) and students are not excused from attendance policies because they were out protesting.

On the other hand, I would like to see more criticism of NU President Morton Schapiro, who uttered the following (according to The Daily) in a speech he gave to visitors over parents-weekend (my friend whose kid goes to Northwestern did not attend the speech).

Although Schapiro said he supports Sessions’ right to speak on campus and NUCR’s right to invite him, he questioned whether the former attorney general was “the right speaker” for NU. He said that on a campus as liberal as Northwestern’s, there is little opportunity to share conservative thought in a way that starts dialogue.

Schapiro — who said he is personally “not a fan” of Sessions — said NUCR missed a chance to do so by inviting him rather than a different conservative speaker.

“They had an opportunity and they didn’t use it,” he said. “All it was was polarizing. All it was was making the campus more unhappy. All it did was blow up and make things even worse.”

I await Schapiro's list of conservative speakers who would be "right" for NU, sharing conservative thought in a way that starts a dialogue but that does not make the campus unhappy. Say what you will about Sessions--and he apparently criticized the protesters in his speech, while paying lip service to freedom of speech. But Sessions was Attorney General of the United States and compared with the current occupant of the office, he looks like Nicholas Katzenbach. So what speaker would have been more acceptable to this crowd?

Finally, a thought on civil disobedience. Part of the debate is whether students should be sanctioned for breaking rules or obligations when protesting--skipping class to attend the lecture, sneaking into the closed hall in an attempt to interrupt Sessions' speech, etc. NU does not excuse such violations, taking the position that there are trade-offs and that students must make choices and bear responsibility for their actions. The Associated Student Government called on the university to change those policies, at least for "students with marginalized identities."

It seems to me the dispute here is over what civil disobedience means. NU students (the protesters, the ASG, the Daily editors) appear to believe that there is a free-speech opt-out from the rules--that if you are protesting, then university rules about attendance or closed spaces do not apply. But the idea of civil disobedience is that you peacefully violate a law--and accept the consequences for that violation--to call attention to the injustice of that law or something else. There is no right to interrupt the speech within the reserved hall; if you believe it is important to interrupt anyway, civil disobedience means you will do it anyway--and you accept the consequences.

The fascinating thing is how much has changed in 30 years. I would not have described NU as a particularly liberal place when I was there.

Update: A statement from Medill Dean Charles Whitaker. It is a strong statement that: Defends the Daily's coverage of the protests as consistent with journalistic standards; takes student activists to task for threatening paper staff and insisting that journalists should not have covered disadvantaged communities in a public protest; criticizes the editors for apologizing which, while well-intentioned, sends a chilling message about journalism; and calls on angry alums to give them a break, reminding them that these are students who are learning and dealing with a unique firestorm.

Posted by Howard Wasserman on November 12, 2019 at 06:52 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)