Tuesday, May 24, 2022

Eleventh Circuit Judge Newsom in the news

Three weeks of grading and a round of edits have limited my writing here. Let me jump back in with a short ode to the recent work of Eleventh Circuit Judge Kevin Newsom.

Everyone is talking about Newsom's opinion for a unanimous panel declaring every significant provision of Florida' social-media law constitutionally invalid. Although a few disclosure provisions survive, the opinion is an overwhelming win for the web sites--content moderation is First Amendment-protected editorial decisionmaking; social-media sites are not common carriers (and slapping that label on them is meaningless, anyway); and the state has no legitimate, much less substantial or compelling, interest in telling the sites what speakers or speech it must keep on the site. The decision creates an interesting procedural bind. A district court declared Texas' similar law constitutionally invalid and enjoined enforcement, but the Fifth Circuit stayed the injunction without explanation following oral argument. The plaintiffs in that case have asked SCOTUS to lift the stay and reinstate the injunction; that is pending. We are left with this weird sort-of splitt--all reasoned opinions (one Eleventh Circuit and two district courts) declaring the laws invalid against tea leaves (the unexplained stay and the tenor of argument) hinting at the Fifth Circuit coming out the other way. Is that enough for the Court to take the case?

Equally interesting is two Newsom concurrences. U.S. v. Jimenez-Shimon, written by Newsom for a unanimous panel, declared valid a federal law criminalizing firearms possession by undocumented immigrants and affirmed a conviction. He then concurred in his opinion to question the use of tiers of scrutiny for the Second Amendment (which should be based on text and history) and generally, with a nice thumbnail sketch of the many pieces of First Amendment doctrine that he calls "exhausting," "judge-empowering," and "freedom-diluting." Resnick v. KrunchKash reversed a jurisdictional dismissal, finding that a § 1983 action against a creditor for using state garnishment proceeding was not wholly insubstantial and frivolous. Newsom concurred for the panel to reject Bell v. Hood and the idea that a case is so frivolous as to deprive the court of jurisdiction; calling it an issue that had bothered him since law school, Newsom argued that a claim that pleads a federal issue on its face gives the court jurisdiction, even if the claim is an obvious loser. These are of a piece with his concurrence from last year adopting the Fletcher view that standing is merits, wrongly mischaracterized, and arguing that any limits on Congress' power to create new private rights comes from Article II rather than Article III.

I unsurprisingly agree with Newsom on standing and Bell and have written as much. It is interesting to wonder about Newsom's broader agenda. He is young (49) and conservative. Is this a way to position himself as potential SCOTUS pick? But he proceeds not through outward insanity in destroying the administrative state and Commerce Clause, as with the Fifth Circuit folks, but as thoughtful and scholarly, pondering important-but-not-hot-button issues that have "bothered" him since he sat in Fed Courts as a law student and that he is trying to work out 25 years later.

Posted by Howard Wasserman on May 24, 2022 at 10:41 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, May 11, 2022

Random reactions to some items in the news

My response to some random news items.

Leah Litman and Steve Vladeck argue discuss the constitutional rights that could be on the chopping block if the Dobbs draft becomes the Court's opinion, with the provocative headline "The Biggest Lie Conservative Defenders of Alito's Leaked Opinion Are Telling." Conservative commentators and others have taken umbrage, especially to the headline and to the implication, pointing to Alito's efforts to distinguish abortion from other unenumerated rights and the supposed "popularity" of these other rights. As Leah and Steve argue, there are distinct pieces to this: 1) What GOP legislatures and executives might try to do and 2) How SCOTUS will respond to litigation over such efforts.

The lens of judicial departmentalism sharpens what is happening here. Legislative and executive officials have never been bound by SCOTUS precedent; they have been free to enact and enforce/threaten to enforce laws that run afoul of Roe/Casey, Griswold, Obergefell, etc. Those efforts fail in the lower courts, which are bound by SCOTUS precedent, and likely fail in SCOTUS in the absence of willingness to overrule precedent. If the Alito draft becomes the Opinion of the Court, it does not authorize previously unauthorized conduct in the political branches. It emboldens them to pursue these laws, believing that these efforts will be less pointless (because having a better chance of success) and less costly (because defeat in court means attorney's fees). One commentator (not sure who) argued that Roe is unique because it never gained broad acceptance, unlike Brown. Describing Brown as widely accepted is so ahistorical that whoever said it should no longer be taken seriously. But Brown illustrates how judicial departmentalism operates. The Southern Manifesto and pieces of "Massive Resistance" exemplified how political branches can continue to follow their own course.

The issue always comes returns to SCOTUS and how ready it is to overrule precedent. Massive Resistance failed when courts smacked them down (as happened in Cooper and elsewhere), except courts did not do that often enough. Similarly, if a majority of SCOTUS does not follow Alito where his opinion leads, fears from the left are unfounded. But it is disingenuous, as Litman/Vladeck critics do, to say that GOP politicians cannot and will not attempt to push the envelope--they always have been able to do so and always have done so. Just as it is disingenuous to argue that the Dobbs draft does not lay the rhetorical and precedential groundwork to overrule other cases because the Justices may choose not to do so.

Vice tells the story of Romana Didulo, a Candian Q-Anon person who convinced followers (who believe she is Queen and running Canada behind the scene) to stop paying their utility bills because water and electricity are free. The consequences to her followers, many of whom are financially vulnerable, should be obvious. This is a consequence (ironic? unfortunate? inevitable) of our approach to free speech. Because it is almost always impossible to stop or punish the bad speaker, consequences fall on those who listen to the bad speaker and engage in criminal (1/6 insurrectionists) or unwise (the people who stop paying their utility bills) activities. We hope the negative consequences prompt listeners to turn away from the speaker, who, deprived of an audience, stops speaking. But that is a long process and one that often harms those who cannot afford it, while the powerful remain insulated.

Posted by Howard Wasserman on May 11, 2022 at 04:49 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, May 02, 2022

Boston's flagpole program not government speech

A unanimous-in-the-judgment SCOTUS holds in Shurtleff v. City of Boston that Boston's program of flying private flags (on a pole usually reserved for the city flag) did not constitute government speech and denying permission to a group to fly a "Christian" flag violated the First Amendment. Breyer writes for six. Kavanaugh joins the majority but writes a short concurrence to argue that "religious persons, organizations, or speech" cannot be excluded from "public programs, benefits, facilities, and the like." Alito concurs in the judgment, joined by Thomas and Gorsuch, to offer a different approach to government speech. And Gorsuch, joined by Thomas, concurs in the judgment to complain about Lemon.

The meaningful dispute is over how to identify government speech. The majority relied on a multi-factor balancing test, considering the history of the expression, the public's likely perception or who is speaking, and the extent to which government shapes or controls the expression. The Court found that the first favored the city (with a lengthy discursive on how government communicates through flags, including the story of Boston flying the Montreal flag following a bet on a Bruins-Canadians playoff series) but the third favored the speaker, because the city exercised no meaningful involvement in selecting flags or crafting their messages. Labeling this  as private speech ended the case, as the decision to deny permission to the plaintiffs was unquestionably viewpoint discriminatory.

Alito continues relitigating Walker v. Sons of Confederate Veterans (the specialty license-plate case)--he includes a footnote explaining why the Court got that wrong. He rejects the balancing test, arguing that any of the factors can indicate government speech or government censorship. Instead he urges a clearer and more specific approach to government speech. First, the government must speak in the literal sense--a person acting within the scope of power to speak for the government must purposefully communicate a governmentally determined message. Second, government cannot express its message through a means that abridges private speech (citing, e.g., Wooley). As to the first point, government can deputize private persons as its agents who voluntarily agree to convey the government message or government can adopt private speech as its own, such as taking ownership of the private speech), but not by subsidizing, facilitating, or providing a forum for that speech.

Although Alito's approach is cleaner on paper, I am not sure it is clearer in application or produces more obvious results. Shurtleff did not involve government speech under any approach and Alito's first point (was the government communicating an intentional message) turned on the same control that drove the majority's third factor. Walker represents the point at which Alito and the majority will reach different conclusions. The question is where the different approaches go in the many cases in between.

A different issue--and possible future bomb--involves whether government has speech rights. Alito drops a footnote arguing the federal government does not have such a right, but that states might have free-speech rights against the federal government. The text of the First Amendment--prohibiting Congress from abridging--eliminates any free-speech right for the federal government against itself. But extending that restriction to state governments in the 14th Amendment as to private individuals does not answer the question of the speech rights of states as to the fed. So is the next line of lawsuit against anything policy from a Democratic administration going to be a claim that it violates Texas' free-speech rights?

Posted by Howard Wasserman on May 2, 2022 at 11:40 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Sunday, April 24, 2022

HB7 lawsuit

Filed Friday. Plaintiffs are a history prof at Central Florida, two public-school teachers, a rising kindergartner, and the owner of a DEI consulting firm. The choice to file everything in one action has its drawbacks. Consider:

• The First Amendment analysis and likely conclusion varies among the four educational plaintiffs. The prof has the strongest free speech claim, given the scope of academic freedom and its incorporation into the First Amendment. The student has the weakest claim, because I do not believe students have a First Amendment right to learn or not learn anything or to receive (or not) any information as part of the public-school curriculum.* The public-school teachers are somewhere in the middle, claiming some mantle of academic freedom but generally treated like most public employees. Query whether it would have made strategic sense to bring separate suits, allowing the court to focus on the unique First Amendment analysis for each and to earn a strong victory on the one obvious winner.

[*] if they do, consider the unintended consequences--a conservative student would have a viable First Amendment claim against a school board that prohibits, for example, teaching that Jim Crow was anything other than an unalloyed evil.

• The consultant brings a claim as an employer, alleging that the law infringes her right to present certain views in employee and organizational trainings by defining certain trainings (those that present certain viewpoints) as employment discrimination. But I am not sure this claim is appropriate for an offensive pre-enforcement claim. Any employment discrimination would be challenged by the employer filing an administrative or civil action. No defendant--the governor, the AG, members of the Board of Education, and members of the Board of Governors--is responsible for enforcing those provisions in that context. To the extent the consultant is concerned about what her employees might do, she may have to wait and defend on First Amendment grounds.

Posted by Howard Wasserman on April 24, 2022 at 01:26 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, April 21, 2022

Bad legal journalism

I (and most lawyers) regularly complain about how badly the media covers courts and law. I am particularly attuned to sloppy and inaccurate use of procedural terms (e.g., "enjoining a law"). I hope for better from a publication such as Bloomberg, which is dedicated to talking about law. No such luck, as shown in a story about efforts of Gov. DeSantis and his legislative lackeys to punish Disney's objections to "Don' Say Gay" by repealing its exclusion from the state's social-media law. The story begins "Florida’s governor may be able to impose swift retribution against Walt Disney Co. for publicly disagreeing with the state’s “don’t say gay” education law."

First, the author seems quite blase about the governor of a state seeking retribution against someone who disagrees with state policy and about legislators agreeing that "the governor’s anger was well placed, and we’re happy to take it up." So new legislation targets an entity when that entity takes a political position that angers the governor and legislators back the governor. The reporter describes it as "retribution," yet treats that as an ordinary thing that happens (and, implicitly, should happen) when members of the public disagree with government officials. As opposed to one of the core things the First Amendment is designed to prohibit.

Second, she misconstrues the likely First Amendment validity of the social-media law. She writes as if the Disney exclusion was key to district court's reasoning in declaring the law invalid, quoting another Republican calling this a "good bill" because it treats all providers evenly. She also calls reversal of the district court "a real possibility" simply because it is on review to the 11th Circuit. But the Disney exception was not central or even necessary to the district court's analysis, functioning more as an absurd cherry on the constitutionally invalid sundae of this law. The court found the law compels speech under Tornillo, making it invalid no matter how even-handed--government can neither compel some people nor all people to speak or to carry the speech of others. And the court identified three reasons the law is "as content-based as it gets" before mentioning Disney. DeSantis, et al live in a fantasy world if they believe expanding the scope of the law eases its constitutional problems, yet the reporter echoes their points as if they are legally plausible. There also is no way the 11th Circuit, as conservative as it may be, reverses on this; these laws are not valid without overruling multiple areas of precedent.

I wish writers and editors did better than this; I would expect it from those at a publication that specializes in law.

Posted by Howard Wasserman on April 21, 2022 at 09:28 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, April 19, 2022

Restricting tenure, but not understanding why

Florida has passed a law designed to limit tenure by requiring tenured faculty to be reviewed by the Board of Trustees every five years. Gov. DeSantis announced the law at a press conference Tuesday (between promises to investigate Twitter's efforts to resist Elon Musk's takeover bid). The law does not specify a review procedure, so the devil will be in the details of what each university's Board comes up with.

The whiplash over the law's justifications is fun to watch. If I thought DeSantis or his minions had shame or self-awareness or that anyone in this state cared, I would say they have undermined their own cause. Instead, it is just Tuesday.

On one hand, DeSantis properly identifies the purposes of tenure--"to protect people so that they could do ideas that may cause them to lose their job or whatever, academic freedom"--and the supposed reason for limiting it--that "once you’re tenured, your productivity really declines." (Bracket for the moment whether the latter is true). On the other, he and others give the game away by ranting about indoctrination, smuggling ideology and politics, creating intellectual orthodoxy, and pushing ideas like socialism and communism. If  the purpose of tenure is to allow people to express unpopular ideas inside and outside the classroom, that must include those ideas that DeSantis and his henchpeople do not like and over which they want to fire tenure professors. So while purporting to limit tenure so it does not become a sinecure, they acknowledge they would limit tenure to stop professors from saying things they do not like or that students do not like. The goal is to ensure professors whose speech is "in line with what the state’s priorities are and, frankly, the priorities of the parents throughout the state of Florida."

DeSantis says he wants to protect "dissenting" ideas. But dissenting from what? It appears to be from the views that he and the state and the state's parents want. The point of tenure is that the governor should not dictate what professors teach and write. Unless he is not concerned that orthodoxy exists, only that professors may not share and express his orthodoxy.

Posted by Howard Wasserman on April 19, 2022 at 04:28 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, March 21, 2022

Exclusivity and personal rights in bounty litigation

Those insisting that SB8 is unprecedented and those warning of every new law "modeled" on SB8 ignore that we have been leaving in a similar world for some time. Two Ninth Circuit cases show the prevalence of such laws and the broader implications of the surrounding procedural arguments.

California law requires businesses to post signs when their produces contain certain carcinogens. "Any person in the public interest" may bring suit against a business that fails to post signs; the penalty is $ 2500 per violation per day, with "any person" keeping 25 % plus attorney's fees. Like California's former false-advertising laws, private enforcement is not exclusive and the AG and other public officials can initiate enforcement actions.

In B&G Foods, the target of a state enforcement action brought a § 1983 action against the "any person" state plaintiff (a serial enforcer). The court assumed the "any person" was a state actor, then held the lawsuit barred by Noerr-Pennington, under which a person cannot be liable under federal law (including a § 1983 constitutional action) for the petition activity of seeking relief in state court. In California Chamber of Commerce, the court declared the state law constitutionally invalid as violating business' First Amendment rights against compelled expression; it enjoined the AG and an intervenor environmental organization from future enforcement.

The federal plaintiff in B&G did what Rocky and I proposed--sued the "any person" state plaintiff as a state actor to enjoin that enforcement action and to establish precedent about the constitutional validity of state law. I think the court was correct in rejecting the claim, although for the wrong reason. I would say the state plaintiffs did not act under color because their enforcement authority is not exclusive and they do not keep the entire public-serving penalty. If these plaintiffs act under color, then every private A/G and qui tam plaintiff acts under color; it should not be that broad. At the same time, although seemingly consistent with Ninth Circuit precedent, this expands Noerr-Pennington by giving state and local governments petition rights. It thus protects private persons who act on behalf of the government, as opposed to petitioning on behalf of their personal/private interests, which was the original basis for NP. We may have to explore that more in-depth.

Chamber did not address whether the advocacy group acts under color, which should have been necessary to enjoining them from future enforcement. On the other hand, I credit the court with self-restraint in not enjoining non-party private persons from bringing new enforcement actions.

Posted by Howard Wasserman on March 21, 2022 at 04:31 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, March 03, 2022

Heckling, counter-speech, and heckler's vetoes (again)

UC-Hastings Fed Soc invited Ilya Shapiro to speak, but he was shouted down by the audience (several videos in links). FIRE labeled this a heckler's veto. The Hastings administration condemned the students because "the act of silencing a speaker is fundamentally contrary to the values of this school as an institution of higher learning; it is contrary to the pedagogical mission of training students for a profession in which they will prevail through the power of analysis and argument." And it is threatening to enforce conduct-code provisions for disrupting the event, while continuing "efforts to ensure that we equip all community members with the knowledge and skills to engage respectfully, thoughtfully, and sensitively with each other and with a wide array of theories, identities, political viewpoints, and perspectives."

I have discussed the uncertainty about the lines among counter-speech, heckling, unprotected counter-speech, and hecklers' vetoes. But what I wrote here bears repeating and elaborating. The protesting students were in the wrong, but for narrow reasons. And it cannot be resolve by invoking the dreaded heckler's veto.

The students did not engage in a heckler's veto. They engaged in heckling, a form of Bradneisian counter-speech. Were Shapiro speaking on an open campus sidewalk and the protesting students shouted back from an adjoining sidewalk, this should be the result. Same if the students remained outside the room or outside the building producing similar noise. There is nothing improper in heckling or attempting to "shout down" a speaker.

The protest crossed the line and lost its protection via the neutral rules of the classroom forum,. Those rules presumably granted Shapiro (and the student group that invited him and reserved the room) a greater expressive right than the dissenting audience members; those neutral rules made Shapiro and Fed Sco preferred first speakers. The source of the heckler's veto is not the protesting students or the attempt to shout Shapiro down and prevent him from being heard. The source lies in the administration failing to remove the disruptive students or otherwise control the situation; governmental inaction or failure to protect deprived him of the ability to speak. The government could have shut the protesting students up or removed from the room; it can sanction them after the fact. The removed students cannot claim their speech rights were violated; by heckling in that time and place, they engaged in civil disobedience, an unlawful act for which they must be willing to pay a price. The open question is whether post-event sanction of the (improperly) protesting students is sufficient to overcome the charge of a heckler's veto; I would say not, but this is a separate question.

I continue to reject the administration's command for respectful, thoughtful, and sensitive engagement with competing viewpoints and theories. Shapiro, like any first speaker, bore no such obligation--he could say whatever he wanted and need not listen to or respectively engage with any disagreeing audience member or what she had to say (I am not saying Shapiro would have approached it this way, only that he bore no obligation to hear and engage with any audience member). The administration was wrong to impose such an obligation on the heckling students. The students were in the (legal) wrong because of the forum rules, not because of some broader compelled commitment to respectful dialogue to which only they are subject.

Posted by Howard Wasserman on March 3, 2022 at 12:03 PM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, February 14, 2022

Weird procedure and Palin v. New York Times (Updated Several Times)

Jed Rakoff is an excellent judge. But his approach to Palin v. NYT has been procedurally bizarre.

First, he held an evidentiary hearing (testimony from James Bennett, the op-ed's primary author) in deciding a 12(b)(6) motion, without converting to summary judgment; the Second Circuit reversed. Second, Rajoff denied summary judgment, hinting that the evidence did not support actual malice by clear-and-convincing evidence but that it was not his job to weigh the evidence. This was proper, although unusual--most judges are not so forgiving of plaintiffs.

Today, Rakoff announced he would grant the Times's motion for judgment as a matter of law, although the jury is deliberating and he will allow the jury to reach a verdict. It is not unusual for a judge to let a case go the jury knowing he will grant JML. He gives the jury a chance to get it "right" and enters judgment on the verdict, insulating his opinion from appellate review. But he can resolve the case as he sees fit if the jury gets it "wrong." But it is unusual (and perhaps improper?) to announce that intention while the jury is deliberating. If any juror learns of Rakoff's announcement, that seems to provide a basis for reversal of a judgment on the verdict or at least a new trial--the deliberations become a sham if the jurors know how the case ends regardless of what they do. If there is a chance the jury learns of his announcement it presents at least a colorable new-trial or appellate issue that will make life tougher for the Times in defending the judgment. [Update: On further thought, Rakoff could grant a new trial, then grant summary judgment before the new trial begins or JML after the plaintiff's case n the second trial]

Further Update: Jury finds for NYT. This moots the above discussion, although it remains a weird process, unless we somehow learn that jurors learned about Rakoff's plan before the verdict. Watch out for news reports saying that NYT lives another day or that the Court or jury reaffirmed NYT, which reflect basic ignorance about what district courts do.

Further, further Update: It turns out the use of NYT and actual malice as the standard is based in part on New York's anti-SLAPP statutewhich codifies actual malice (likely as a hedge against SCOTUS overruling)* although in an amendment enacted after the op-ed was published. Judge Rakoff held, as a matter of New York law, that the law applied retroactively and the instructions to apply actual malice applied the statute and the First Amendment. Overruling New York Times as the constitutional standard would not change the standard under New York law, meaning the result would be the same. SCOTUS typically does not take cases that turn on state law.

[*] This presents the opposite of a zombie law--a statute that continues providing heightened protection of individual rights when the Constitution does not require that heightened protection. Like RFRA or RLUIPA. What do we call them? Super Laws, as they not only are no undead but enjoy extraordinary powers? I wish I had thought to include this opposite category in the paper.

Further, further, further update: The jury found out via push notifications on their phones. The jurors insist it did not affect their deliberations. Judge Rakoff notifed the parties and gave them the opportunity to seek any relief they believe appropriate based on this, while noting that no party objected to his plan to issue his FRCP 50 order while allowing the jury to continue deliberating. Everyone is scrambling to figure out what effect, if any, this will have.

Posted by Howard Wasserman on February 14, 2022 at 07:17 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, February 01, 2022

Taking Pico for a ride and other preocedural musings on removing books

Some thoughts on the flurry of efforts to remove* books and materials from school libraries and curricula.

[*] Some people are upset about the use of the word "ban" in this context since the books remain available from other sources. That is a dumb argument, but I do not feel like fighting it.

This offers an opportunity to revive and underrated William Brennan First Amendment opinion--Board of Island Trees v. Pico. A plurality (Brennan for Marshall, Stevens, and most of Blackmun) held that the First Amendment limits school power to remove materials from the library based on disagreement with the content or ideas expressed in those books. The Court is more deferential to school boards than it was in 1982, so perhaps this will not fly. But it is an argument worth watching.

Many efforts give parents private rights of action to sue over  stuff they do not like. Republican officials laud themselves for following the Texas S.B. 8 trick of using the threat of civil litigation and damages to influence behavior and believing that will avoid federal litigation, while not realizing that not everything is S.B. 8. Schools and school board must make any changes to curricula or libraries, even if those changes are made on threat of a private suit and private liability; that provides a government target for a suit challenging any removal on First Amendment grounds. Imagine anti-Ruby Bridges Parent A threatens a suit because the book makes his child feel bad that his grandparents opposed school integration and the school, fearing liability, removes the book; to the extent that raises First Amendment issues, I-would-like-my-kids-to-know=history parent X who want the book to remain can sue the board to enjoin removal. The latter parent's First Amendment rights should prevail over the former parent's state-law rights.

Going further on procedure: Perhaps Parent X can intervene in Parent A's suit against the school, arguing that X's kids have a First Amendment interest that will be impaired by the state suit and that the school will not sufficiently vindicate? Alternatively, perhaps Parent X, seeing Parent A's suit, can ask a federal court to enjoin Parent A's state lawsuit because the judgment in that suit would compel the government to remove some materials and thereby violate Parent X's (kids') rights? This would seem to fit three exceptions to § 2283 (depending on timing) and not be barred by Younger.

Finally, a matter of state procedure: If the removal of Ruby Bridges is required by state law because its presence  makes A's kids feel uncomfortable, does the removal of Ruby Bridges make X's kids feel uncomfortable, by denying the basic history of Louisiana in the 1950s? Perhaps A and X can sue the school for competing judgments. Or X intervene in A's suit to protect state-law interests in not having his kids feel uncomfortable. The key to defeating S.B. 8 is that "any person" can include a friendly plaintiff who wants to help Whole Woman's Health litigate the law. "Discomfort" is a similarly boundless concept that goes both ways and can allow some unexpected claims from unexpected sources.

Posted by Howard Wasserman on February 1, 2022 at 04:11 PM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, January 27, 2022

Israel, Jewish teaching, and a strange law (Updated)

A teacher at a Jewish school in Westchester County, N.Y. has sued the Temple and Temple leaders, alleging that she was fired for writing statements critical of Israel on her personal blog (the post at issue was written after she was hired, before she started, and on my birthday, which may not be a material fact). The suit is brought under a provision of New York law that prohibits adverse employment action based on a person's "legal recreational activities," which the plaintiff alleges includes blogging (no comment). The story has garnered s attention, in the Jewish press because it exposes possible fault lines within the Jewish community over Israel and how anti-Zionism fits into Jewish teaching. A number of Jewish academics and leaders issued an open letter to the Temple supporting the woman.

The claim seems to me doomed under the ministerial exemption. Our Lady of Guadalupe says teachers are ministers (for FMLA and ADA purposes, but the First Amendment idea should carry), at least if their duties touch minimally on the religious. Paragraph 11 of the complaint says:

The job was secular rather than religious, and no religious ordination or training was required. The teaching responsibilities were essentially limited to the teaching and tutoring of the Hebrew language to WRT’s learners and students. The other job responsibilities involved assisting and supporting the development of social, cultural and community service programs for the teenagers in the WRT community. 

I doubt that is sufficient to get around the First Amendment. She is teaching Hebrew at least in part because it is necessary for students to learn prayers and "social, cultural, and community service programs" are part of the core of what a Temple does.

But I am wondering if we even reach the First Amendment. Does this law preclude an employer from taking action against someone who expresses or reveals objectionable views, views the employer believes inconsistent with its mission, if done as part of a lawful recreational activity? Can a kosher deli fire a waiter who attended the Unite the Right Rally? What if the Temple fired a custodian or security guard who attends a rally in support of Holocaust denial? If the law prohibits these actions, does that raise First Amendment problems as to the employer, who must employ someone with objectionable political views? If the employer could fire those employees, how does it get around this law? Can the employer fire a person not for their recreational activities (blogging, attending a rally) but for their expressed views, using the lawful recreational activities as evidence of those views?

Employment lawyers, please help.

Update: My colleague Kerri Stone offers this primer from a law firm discussing the law in the shadow of the 2020 protests. It seems to suggest that the law gives employees broad rights against adverse employment action for non-work expressive activity. It mentions a 2017 lawsuit by a NY Post sportswriter fired for comparing the inauguration of Donald Trump with Pearl Harbor and 9/11; the suit was dropped, but it might have had legs.

Update II: A reader emails to argue that the lawsuit is frivolous because the ministerial-exemption issue is so obvious and that this suggests an ulterior motive by the plaintiff, her lawyers, and those supporting her. There is a genuine moral question of whether and how synagogues should be open to competing views on Israel and whether support for Palestinian justice is consistent with Jewish commitments to social justice. But that is for the Jewish community and each synagogue to resolve. It does not belong in court. The ministerial exemption exists because courts should not be telling religious organizations what its. And that is why the reader suggests the plaintiff, her lawyers, and those supporting her may have an ulterior motive.

Posted by Howard Wasserman on January 27, 2022 at 10:09 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 24, 2022

Which parts of NYT v. Sullivan?

Sherry Colb writes about the cert petition in Coral Ridge Ministries, a series of defamation actions against the Southern Poverty Law Center for labeling it a hate group. The petition, on which the Court called for a response, asks the Court to overrule New York Times or limit it to public officials and not public figures.

I have argued before that the talk of overruling NYT is non-specific to the point of inaccuracy. What do people want to eliminate--the actual malice requirement or the larger edifice created in later cases? Coral Ridge seems an inappropriate case for this issue, because this case should not fail on actual malice but because "hate group" is opinion based on subject criteria rather than a provable assertion of fact.

Posted by Howard Wasserman on January 24, 2022 at 01:13 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday, January 22, 2022

District court preliminarily enjoins UF conflicts policy

From Friday. The opinion by Judge Mark Walker is near perfect. He loses a point at the end when the court appears to make the injunction universal by ordering UF to take no steps to enforce the conflicts policy "with respect to faculty and staff requests" to testify or consult on cases, not limited to requests from the plaintiffs. The court denied relief as to the policy prohibiting faculty from including institutional identification when signing amicus briefs, because the court could not determine whether that was a university or a "figment of Dean Rosenbury's imagination."

This is not a good opinion for defendants or their lawyers. The opinion begins by comparing UF to the erosion of academic freedom and free speech at Hong Kong University (including removal of a memorial to the victims of Tiananmen Square) not from overt actions of the Chinese government but from university administrators wanting to keep Beijing happy; footnote 12 adds that "[i]f those in UF's administration find this comparison upsetting, the solution is simple: Stop acting like your contemporaries in Hong Kong." The court emphasized the intemperate statements of the chair of the Board of Trustees, which Walker said "made plain that UF was beholden to the Florida Legislature and that it would not permit its faculty to continue offending lawmakers in Tallahassee." Walker calls out UF's lawyers for: 1) failing to adequately brief Pickering or to recognize Pickering as applicable; 2) trashing the plaintiff professors (who continue to work for their client and to educate the students who pay their client for an education) as traitors, robbers, mercenaries, political hacks, and disobedient liars; and 3) failing to identify UF's interests or how professors' testimony disrupts UF's mission despite four opportunities to do so (including the court continuing argument for a week to give defense counsel an opportunity prepare).

The opinion came on a rough day for the State University System. FIU President Mark Rosenberg resigned out of the blue citing family health reasons, an explanation the Miami Herald eyed with suspicion. This comes a week after FIU's provost resigned. Four Florida universities--FIU, UF, North Florida, and South Florida--are about to enter presidential searches. And the state is considering legislation (when not working on bills compelling the national anthem, prohibiting public-school teachers from talking about LGBTQ+ issue or helping LGBTQ+ kids, and prohibiting teaching historical events that make white people feel bad) that would exempt early stages of presidential searches from sunshine laws. And now a federal court found that the flagship university regards faculty with, at best, contempt.

Posted by Howard Wasserman on January 22, 2022 at 04:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Judicial Process | Permalink | Comments (0)

Ann Arbor opts for more speech, not enforced silence

A group of anti-Israel protesters has demonstrated outside Ann Arbor's Beth Israel Synagogue every Shabbat since 2003. A tort lawsuit by some congregants against the protesters rightly failed. The Ann Arbor City Council last week passed a resolution "'condemn[ing] all forms of antisemitism, and in particular the weekly antisemitic rally on Washtenaw Avenue." and declaring "'its support for the Beth Israel Congregation, their guests, and all members of the Jewish Community in Ann Arbor, each of whom has the right to worship, gather, and celebrate free from intimidation, harassment, and fear of violence.'"

The Council passed the resolution on Tuesday evening, three days after Colleyville (which it does not mention), although it was in the works for several months. The synagogue had been calling on the city to do something for several years. The Council issued a resolution in 2004, a year after this began, but nothing more recent. The mayor has publicly condemned the protests and apologized to the congregation.

The resolution also "'calls upon the persons who rally to express antisemitism on Washtenaw Avenue to renounce extremism, disband, and cease their weekly show of aggressive bigotry.'” Which, that ought to do it, thanks very much, Ray. The group leader and the lead defendant is Henry Herskovitz, who I assumed was Jewish-but-vehemently anti-Israel; it seems he "identifies himself as a former Jew and has spread Holocaust denial and praised neo-Nazis in blog posts."

The Forward quotes Rabbi Nadav Caine that the synagogue declined involvement in the lawsuit out of hope and faith that the city would take a stand. That point is too bad. I had hoped the synagogue stayed out of the lawsuit because they knew the lawsuit could not and should not succeed. While they could not stop the congregants, they knew enough not to get involved.

David Super has a post about performative politics, which I may want to discuss further. Performative politics can take many forms. This resolution is one example of the form--dictum with no legal force and no likely practical force. But Brandeis might have had such performative steps in mind. Like the synagogue, the city can do nothing to stop these speakers or their speech. But they can take a public stance against those speakers and their speech as part of the public dialogue.

Posted by Howard Wasserman on January 22, 2022 at 11:44 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Henry Ford apologized?

I had no idea until a link in this article on the long history of antisemitic conspiracy theories took me to Ford's 1927 written public apology following negotiations with Louis Marshall, president of the American Jewish Committee. Ford said he did not know about the content in the Dearborn Independent or The International Jew because he turned management to others; was "shocked" and "mortified" by their content; retracted the statements; withdrew the publications from circulation (although they were, and remain, out there); and asked for forgiveness from the Jewish community for unintentional harm. Marshall responded with a promise to further the request for forgiveness "so far as my influence" can reach, because "there flows in my veins the blood of ancestors who were inured to suffering and nevertheless remained steadfast in their trust in God." Of course, the apology did not prevent Ford from receiving a medal from Nazi Germany.

The apology arose as an effort to resolve a defamation lawsuit against Ford and the Independent by a Jewish lawyer named Aaron Sapiro that exposed Ford's antisemitism. Although the alleged defamatory statements had nothing to do with Sapiro's being Jewish, defense counsel struck two Jewish jurors, plaintiff counsel struck an ex-Klansman, and the judge asked during voir dire whether "any of you, by blood or by marriage, connected with the Jewish race." The case ended in a mistrial when Ford accused Sapiro of bribing a juror and a juror gave a newspaper interview. Ford reached his deal with Marshall to avoid a new trial, wanting to avoid continued bad publicity.

Posted by Howard Wasserman on January 22, 2022 at 10:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, January 18, 2022

The Great State of Texida (or Floxas)

Can we combine Texas and Florida into one state? In terms of enacting stupid performative zombie legislation that serves no purpose and addresses no societal problem, they are engaged in a race to the bottom to out-dumb one another. Merging them into one means we can write about the stupidity one time and be done with it.

In July, Texas followed Florida in prohibiting social media companies from regulating speakers and speech on their sites; its law met a similar judicial fate. Now comes Florida SB 1298, which requires all professional sports teams that contract with state and local governments to play the national anthem before games, something Texas passed last year. Like the Texas law, this bill is especially insidious because I do not know who will or wants to challenge its validity or how. (I have not seen any litigation challenging the Texas law). At the committee hearing introducing the bill, a committee member laughed and asked if anyone does not play the anthem; the moron sponsor said it is a "proactive" measure.

Let me offer one interesting twist on this: Could a fan kicked out of the stadium for refusing to stand make out a close-nexus argument against the team, since state law requires the anthem and thus compels the team's actions? I do not think it works because state law requires teams to play the anthem but is silent at what the team should or should not do with fans. But it offers a new way, beyond public funding, to get at teams that attempt to regulate fan expression.

Posted by Howard Wasserman on January 18, 2022 at 01:49 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, December 28, 2021

What does it mean to have gone to law school?

New York State Senator Brad Hoylman (D) announced a bill defining as a public nuisance (subject to public and private litigation) the promotion of "harmful, false, or unlawful" speech. It targets social-media sites whose algorithms promote or prioritize such "hateful or violent" content, treating it as an affirmative act (compared with passive hosting of third-party speech) not subject to § 230 protection. The obviously problematic piece is making actionable "a false statement of fact or fraudulent medical theory that is likely to endanger the safety or health of the public," a rule that would 1) empower the government to determine medical truth and 2) lacks the required imminence.

First Amendment scholars, lawyers, and commenters jumped to identify the obvious problems with the law under existing precedent and the likelihood its enforcement would be enjoined shortly after it takes effect. They also have pointed out that Hoylman graduated from Harvard Law School, a shot at HLS ("what the hell are they teaching there?") or at Hoylman ("did he not take a First Amendment class or did he just not pay attention?") or at both.

But consider three other possibilities.

    1) One must know the law to ignore it. HLS did a good job of teaching the First Amendment and Hoylman learned it well. But in his new position he does not care, choosing to score political points rather than adhere to the constitutional law that he was taught and knows well.

    2) One must know the law to find ways around it to serve (what one believes are) greater societal goals. HLS did a good job of teaching the First Amendment and Hoylman learned it well. And Hoylman is using that knowledge to find ways around that law in pursuit of a higher purpose or social goal. Whether one shares that goal tells us nothing about how well the law is taught and learned at HLS.

    3) Stop being judicial supremacist. HLS taught and Hoylman learned the First Amendment as interpreted by the courts. As a legislator, he is not bound by judicial precedent or that judicial interpretation and can proceed on his own understanding in drafting, introducing, and pushing legislation. His position may lose in court, but he has the departmentalist authority and discretion to pursue his competing vision within the legislative process. On this last point, perhaps we test the "HLS taught and Hoylman learned the First Amendment" hypothesis by whether Hoylman knows that his position will lose and chooses to pursue it anyway (a defensible position in a judicial-departmentalist world) or whether he believes what he proposes is consistent with prevailing judicial precedent.

Posted by Howard Wasserman on December 28, 2021 at 03:01 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, December 26, 2021

Project Veritas injunction remains against New York Times

From Friday. The New York trial court enjoined from using materials and enjoined to recover materials from third parties and to destroy the materials within their control. The opinion is a tour de force of bad legal analysis, including: placing attorney-client privilege and the First Amendment on roughly equal planes of fundamentalness; granting the injunction without proof that the Times did anything wrong in obtaining the material (contra Bartnicki); taking the Times statement that there is no evidence of wrongdoing as an admission that there could have been wrongdoing; finding that memoranda about Project Veritas conduct is not on a matter of public concern; and generally treating The Times as purely a litigant engaged in discovery rather than as a media entity operating outside litigation.

The opinion is fascinating because Judge Wood writes with extraordinary certainty while being extraordinarily wrong and extraordinarily likely to be reversed on appeal, at some point.

Posted by Howard Wasserman on December 26, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, December 03, 2021

I say obnoxious things so I have standing

A Connecticut law prohibits ridiculing or holding people or groups up to contempt on account of creed, religion, color, etc. Although the law is limited to advertisements, it has been applied in other situations. Eugene Volokh explains why the law violates the First Amendment. One infamous recent case occurred in late 2019/early 2020, when two U Conn students were prosecuted for shouting racial epithets in the air; that charge was dismissed. The attorney for one of those students, Mario Cerame, filed suit last month, asking the court to declare the law violates the First Amendment.

How does Cerame have standing for this offensive pre-enforcement suit? A plaintiff must show that he intends to engage in constitutionally protected conduct that is proscribed by law and that there is a credible threat of enforcement against the plaintiff. Check out ¶¶ 13-18: Cerame alleges that he regularly ridicules Italian-Americans (he is Italian-American), Scientologists, and other racial or religious groups, and he retells jokes and shares video clips of comedians. He also alleges that he speaks, trains, and works on free-speech issues and and in doing so "uses words that are not uttered in polite company."  In other words, "I like to say obnoxious things in my personal and professional life, therefore I reasonably fear prosecution under the law."

This is an interesting theory, although I am not sure it works. "I like to do X, have done X in the past, and plan on doing X in general terms at some indefinite point in the future" is usually not sufficiently specific or concrete. Much of the obnoxious speech he describes occurs in his personal life or with his "closest and dearest friends," so is unlikely to be prosecuted. He may have a better shot with the argument that his professional free-speech work has him using the bad words involved in free-speech controversies. A few district courts have accepted this standing theory in challenges to new anti-harassment/anti-discrimination bar rules. The theory makes sense with a  bar rule--"I use these words in my work and am worried that the Bar may come after me;" it seems less of a credible gthreat that the government would pursue criminal charges against a lawyer for his professional work. Courts are forgiving of standing in First Amendment cases, but I do not know if it goes that far.

Cerame has never had the law enforced against him despite past ridicule of Italian Scientologists and posting of Dave Chappelle videos, which pulls him out of SBA. The next question is whether the pattern of charges being brought against others shows that Cerame's is the type of speech targeted; Eugene has written about recent enforcement. The one I know about is that UConn case--two students shouting racist epithets in the middle of campus (not at any person), where they were heard by people in surrounding buildings--which seems far afield from Cerame's speech. That the charges in the UConn case were dismissed raises an interesting question of what we mean by credible threat of enforcement for standing purposes. Does "enforcement" mean arrested or charges brought or does it mean prosecution? If charges are brought and dropped, has the law been "enforced" as to make future enforcement substantially likely?

Posted by Howard Wasserman on December 3, 2021 at 07:11 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, November 28, 2021

More on the preferred first speaker and the futility of "conversations"

The First Amendment presumes a model of "reasoned debate" in which parties hash out ideas through reasoned and civil discourse. That does not reflect practice, because of what I have described (borrowing Popehat's phrase) as the problem of the "preferred first speaker," in which an initial speaker has unfettered discretion to speak however he wishes, while the burden of civility rests on counter-speakers to "sit quietly, listen to what he says, perhaps ask a question or make a comment during Q&A" if the preferred speaker deigns to engage with them.

Case in point is comedian Dave Chappelle's visit to his former performing-arts high school, ostensibly to meet and engage with supporters and critics. According to reports (there is no video or audio, since everyone was told to lock their phones in magnetic pouches), there was not much "discussion" to be had. One student stepped to the microphone and said "I’m 16 and I think you’re childish, you handled it like a child." Another asked a question described as "antagonistic." Another walked out. Chappelle's responses were varying degrees of mocking or dismissive--"My friend, with all due respect, I don’t believe you could make one of the decisions I have to make on a given day;" "I’m better than every instrumentalist, artist, no matter what art you do in this school, right now, I’m better than all of you. I’m sure that will change. I’m sure you’ll be household names soon.” The student who left "couldn’t even entertain the idea of a conversation."

This is the essence of the preferred first speaker. Chappelle said what he wanted to say in his show and perhaps in his opening comments at this assembly; people complained about some of the things he said in the show; and his response was to refuse to engage with their criticism beyond, essentially, you have no idea what you're talking about. Perhaps the exiting student did not want to entertain a conversation, but it does not appear Chappelle did, either, beyond "shut up." Of course, only the responders, not the preferred first speaker, are expected to engage in that conversation.

(Note: My discussion is based on these news reports, which are based on interviews with unnamed student attendees. Perhaps it went down much differently and perhaps Chappelle engaged more, in which case kudos to him. Chappelle had a camera crew with him, so maybe we will see footage in the future).

Posted by Howard Wasserman on November 28, 2021 at 03:38 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 24, 2021

UF Task Force Report on Outside Activities

University of Florida President Ken Fuchs on Tuesday accepted the Final Report of the Task Force on Outside Activities, appointed after the university refused to let three faculty members testify as expert witnesses in a challenge to new Florida voting regulations.

The Task Force recommended a policy that reaffirms academic freedom and the right of faculty to speak on matters of public concern and reaffirms that speaking out on such matters is not "outside activity" that must be reported to the university. University review remains necessary when a faculty seeks to testify as an expert in litigation. The review will operate under a "strong presumption" that requests to testify will be approved. The presumption must be rebutted by by clear-and-convincing evidence that the testimony conflicts with an important and particularized interest of the university, beyond generalized assertion of a conflict of interest or an undifferentiated fear of harm. The Report also recommends changes to the process for reviewing conflicts of interest.

The CHE article quotes Clay Calvert, a journalism professor and First Amendment scholar, reminding the university that a "conflict of viewpoint is not necessarily a conflict of interest" and that decisions should not be grounded in fears of financial reprisals from the state or attempts to curry favor with the state.

The new policy is not good enough for the plaintiffs in the lawsuit against the university, which appears designed to challenge any system of discretionary approval for any faculty speech.

Posted by Howard Wasserman on November 24, 2021 at 10:38 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, November 19, 2021

The Times plays defense and no one cares

Apropos of my post on the obviously First-Amendment-violative injunction the state trial court issued against The New York Times: No one has argued that The Times should be able to bring a federal action against Judge Wood to enjoin him from holding that hearing on the OSC or from further adjudicating the case. No one has argued that The Times can sue the clerk of the Supreme Court Court of the State of New York, County of Westchester to stop him from docketing the order or accepting further papers from PV in pursuing this case. It appears sufficient--for First Amendment, due process, and "judicial review" purposes--that The Times can defend in state court, appeal through state court, and reach SCOTUS if necessary. No one has argued that allowing PV to bring this private suit and to make The Times defend in state court "thwarts federal judicial review" of a significant constitutional issue.

Posted by Howard Wasserman on November 19, 2021 at 09:38 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (11)

The puzzle of prior restraint

"Prior restraint" is trending today following a New York trial court's show-cause order to The New York Times. The court ordered the paper to show cause why it should not be required to remove and cease publishing certain document from Project Veritas (which allegedly contain attorney-client-privileged material), not publish such documents in the future, and cease efforts to obtain further documents. And it orderied The Times to cease those activities pending a hearing on the OSC.

The "prior restraint doctrine" distinguishes "prior restraint" from "post-publication punishment." A prior restraint is a law or order that prohibits speech before it occurs and requires a speaker to obtain government permission before speaking--e.g., a licensing or permitting system or, as here, an injunction barring future speech. A post-publication punishment identifies some speech as unlawful, but functions through through the mechanism of sanction or punishment after the speech has occurred--e.g., criminal penalties for burning a flag or fines for displaying an off-premises sign. The distinction originates in the Blackstonian conception of free speech (which, depending on who you believe, may have been incorporated as the original understanding of the First Amendment), which held that prior restraints are impermissible but that the government has unfettered power to punish the speech after the fact. The distinction survives under the modern First Amendment further along the spectrum--government generally cannot punish speech after the fact and it really generally cannot impose prior restraints.

While a cornerstone of modern free expression, the distinction is somewhat artificial. From the speaker's standpoint, there is no distinction between an agency saying "you must get permission before burning a flag and we hereby deny you permission" and a statute saying "you will go to jail if you burn a flag"--the result is that I am not allowed to burn a flag. From the speaker's standpoint, a law threatening jail time for engaging in speech "restrains" my speech "prior" to it occurring--I will not speak if I know I will be sanctioned. And all restrictions on speech, however characterized, are enforced through post-speech punishment. If I fail to obtain permission (whether because I do not bother trying or because I am denied permission) and I speak anyway, the sanction (jail, fines, whatever) will not come until after I speak without a license. If I am enjoined and I speak anyway, the sanction will be contempt after I speak, enforced through jail, fines, and other fun.

The prior-restraint doctrine purports to limit unfettered discretion in licensing. But no one has more unfettered discretion than a police officer deciding whether to stop me from speaking or waving my sign in the moment or a prosecutor deciding whether to prosecute me. That is, a system requiring a permit (e.g., to hold a protest) cannot grant the officials running the system unfettered, before considering the protected nature of the speech for which the permit was sought; the First Amendment does not care about police having unfettered discretion once the person is holding a protest and the challenge to the arrest or prosecution would consider the protected nature of the speech involved.

Moreover, if a judge ultimately must decide whether some speech is protected and publishable, it strange to distinguish between the judge making that decision pre-speech and post-speech.* Consider the Times/Project Veritas dispute. The case turns on whether The Times obtained PV's documents lawfully (which appears to be the case) and whether stopping a third-party from disclosing attorney-client-protected material is a need of the highest order (which probably is not the case, unless the privacy interests in attorney-client communications somehow are more important than the privacy interests of a sexual-assault victim). There is no obvious distinction between the court deciding that now and stopping the speech and further search for documents and the court deciding that later and imposing damages for the speech and the search for documents. In theory the former is worse because we lose the benefit of the speech getting "out there" and contributing to the market in the interim. But imagine that The Times had conspired with the leaker to obtain the documents--it would refrain from publishing knowing that the court will impose damages or another sanction on it at the end of the day. Or take a defamation case. Is it worse for a court to prohibit X from publishing defamatory statements about A than imposing damages for X's defamatory statements after he published them?**

[*] Or, to add a third layer--pre-speech in an offensive action by the newspaper challenging the permitting law.

[**] Beyond the point of this post, but there may be a distinction between an interim or preliminary judicial determination and a final judicial determination following trial. That is, a court can issue a preliminary injunction, stopping speech off a preliminary or initial review of the merits; a court imposes post-publication punishment following a full hearing on the merits. Eugene Volokh has urged this line with respect to defamation injunctions--a court can prohibit X from speaking about A going forward, but only after a full proceeding determining that what X wants to say is defamatory.

There is one possible distinction, at least with injunctions. If I am denied a permit, I can speak anyway and in the subsequent enforcement proceeding I can challenge the permitting system and the decision to deny the permit, in addition to arguing that my speech was protected. If I am enjoined, the collateral-bar rule holds that I cannot speak or publish in violation of the injunction and challenge the contempt order by arguing that the injunction is invalid or should not have been entered; I must comply with the injunction and appeal it.

Posted by Howard Wasserman on November 19, 2021 at 09:22 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Sunday, November 14, 2021

RBG and patriotic symbolism

Josh Blackman writes about an attempt by Bryant Johnson, RBG's longtime trainer, to defend the Justice against Katie Couric's report about RBG's comments on Colin Kaepernick. According to Johnson, RBG knew nothing about the Kaepernick controversy at the time of the interview. He subsequently explained to RBG that Kaepernick was protesting racial injustice rather than the country and that he chose this method at the suggestion of a veteran as a more-respectful alternative; RBG responded that she did not know the whole story and should not have answered the question. Josh calls B.S.

I return to my prior question: Does this tell us anything about how Ginsburg would have voted in Eichman and Johnson? Johnson's defense of RBG rests on the premise of her not having the full story and changing her mind once she realized Kaepernick was showing respect. But that leaves RBG's line at patriotic symbolic counter-speech showing unquestioned contempt for government and not allowed in the places their families came from, for which flag-burning qualifies. So what would she have done with flag-burning?

Posted by Howard Wasserman on November 14, 2021 at 04:13 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Sunday, November 07, 2021

Academic freedom in Florida and the quiet parts out loud

Perhaps trying to prove my point that attacks on academic freedom are likely to spread throughout the Florida SUS, Florida Atlantic University (public university in Boca Raton) is considering a proposal to give the full Board of Trustees, not the Board president alone, final authority on tenure decisions.

One trustee, recently appointed by DeSantis, wants a complete file beyond the short bio. She also wants to be able to plumb that file for a lot of additional information to use in a nakedly content- or viewpoint-based decision. Money quote from the article:

One paragraph doesn’t tell us a lot about a professor, his viewpoints, his research, his political affiliations or potential donations,” among other factors, she said. “I’m concerned about tenure moving forward. I speak not just for myself but for the governor. I can’t think of any other position out there where people have a job for life."

This will be used as evidence by the first person denied tenure under this new system. It also demands to see and rely on information that goes beyond the tenure file reviewed in any department, college, or provost's office. My tenure file contained nothing about my affiliations or donations (I suppose people could guess, although they would be wrong based on some of my recent work). I would wonder how DeSantis feels about this person speaking for him, but he probably shares her views.

Also evincing my point about what this happening outside the national media eye when it happens at a place other than the flagship university, the story is from the South Florida Sun-Sentinal, not the Washington Post or even the Miami Herald.

Posted by Howard Wasserman on November 7, 2021 at 08:47 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Saturday, November 06, 2021

Standing problems in UF prof lawsuit

Despite UF backing down, the three professors filed suit Friday, seeking to enjoin as violative of the First Amendment "any policy or practice that provides the Univerity discretion to limit Plaintiffs' ability to undertake outside activities, on a paid or unpaid basis, on the ground that the proposed activity is not aligned with the “interests” of the State of Florida or any of its entities or instrumentalities."

Standing is a problem here. The plaintiffs got the relief they are suing for--permission to testify in the case and be paid for it--so they are not suffering an ongoing injury traceable to university policy or practices (or, in my preferred framing, their rights are not presently being violated). They try to get standing through Susan B. Anthony List, where the Court held a plaintiff can establish standing for a future injury where she intends to engage in arguably constitutionally protected activity that is proscribed by the challenged law and there is a credible threat of future enforcement. Consider ¶ 43 of the complaint:

Unless and until it is rescinded or declared unconstitutional to the extent it equates the University’s “interest” with that of the State, the University’s Policy will continue to impede Plaintiffs from serving as expert witnesses or otherwise lending their analysis or expertise to litigation challenging State policies, in violation of the First Amendment.

As pleaded, that does not work. It is framed as if the existence of the policy without a declaration of its invalidity is a unique ongoing or future injury, which it is not. A declaratory judgment requires standing beyond "this policy is in place and will impede us." They need more, but I am not sure if or how they show a likely future injury. They can allege that they regularly testify as experts, including against the state; they will need to request permission; and they risk being denied in a future case because of the anti-state positions they wish to take and the university's discretion. And courts are forgiving of standing in First Amendment cases.

The problem for the plaintiffs is that this is not the typical First Amendment case. In the typical free-speech case, standing is based on the plaintiff's unilateral intended actions ("I want to handbill;" "I want to make possibly false statements about a political candidate") and the obvious presumption that the government will enforce its laws against violators (arresting the handbiller or charging the false statements). Here, standing depends on actions of others. Five things must happen--the state must future rights-infringing laws; those laws must touch on subjects on which the plaintiffs possess expertise; someone must challenge those laws in court; those plaintiffs must need expert witnesses; and plaintiffs must seek to hire these profs as experts. Each is necessary before the plaintiffs would suffer a future injury traceable to the policy--seeking and being denied permission to testify because they are acting contrary to university interests. Until each happens, these plaintiffs need not request permission for these activities and will not be subject to the policy. The court must overlook how speculative and beyond the plaintiffs' control these facts are. Perhaps the court will decide that past history makes each likely to occur and perhaps it will not that this is a First Amendment case and be more forgiving. But a court is unlikely to abide such speculation in an environmental case.

The complaint is inconsistent in identifying the First Amendment problem with the policies, which might affect the standing analysis (showing, again, how intertwined merits and standing are). It identifies four defects. 1) The problem is making profs request permission before testifying, which it calls a prior restraint. 2) The problem is the discretion the policy vests in the university, a position the Eleventh Circuit rejected last year in a challenge to conflict policies at a different SUS institution. 3) The problem is the university denying permission to engage in positions contrary to Florida's "interests," which creates viewpoint discrimination (because a professor could testify in favor of Florida in the same action). 4) The problem is the university equating its interests with those of the state, which is problematic but not necessarily violative of the First Amendment.* These are distinct First Amendment theories with varying likelihoods of success. The likelihood of future injury varies depending on the theory of the case. For example, if the constitutional problem is making profs ask permission for any outside expert activity or testimony, that injury is more likely (since it is obvious they may testify in the future), although the constitutional merits argument is weaker.

[*] If the university and the state are the same, UF's position that the university is the state may prove too much, affecting the eligibility of federal judges to hear these cases. Many judges on the Eleventh Circuit and the Florida district courts serve as adjunct professors, whether teaching full classes or as part of a group of trial-advocacy instructors. They recuse in cases involving the university. But if the university and Florida are the same, then must they recuse in any case to which Florida is a party? That would have dramatic consequences.

The X-factor is the task force that the UF President convened to recommend a new policy for professors who want to testify in cases in which Florida is a party, which was charged to submit a preliminary recommendation by November 29. That new policy could end this dispute, depending on what it says and which of the distinct alleged constitutional defects it resolves. A court may not want to do anything with this complaint for a month, knowing that the situation will in three weeks and the complaint will go away or be materially changed. Perhaps the court will let the case sit until those further developments, especially since the plaintiffs do not need preliminary relief.

Finally, not to (again) beat a dead horse: But how much simpler would it be for a court to say "your First Amendment rights are not being violated in this situation, so you lose your claim"?

Posted by Howard Wasserman on November 6, 2021 at 11:33 AM in Civil Procedure, Constitutional thoughts, First Amendment | Permalink | Comments (2)

Friday, November 05, 2021

More on academic freedom at UF (Updated)

Updated: The university backed down, at least for the moment. The president convened a task force (including Clay Calvert, an excellent First Amendment scholar who teaches in the journalism school, and law dean Laura Rosenbury) to develop policies for "how UF should respond when employees request approval to serve as expert witnesses in litigation in which their employer, the state of Florida, is a party." That framing is problematic, still conflating the university with the state of Florida, but we have to see. The president also ordered the university conflict's office to reverse recent decisions and allow faculty to testify, for compensation, in cases to which Florida is an adverse party.

The University of Florida Chapter of United Faculty of Florida issued a list of demands. After the jump, I summarize and comment.

1) Allow the three faculty members to provide paid expert testimony in the voting-rights litigation, as well as allowing other faculty to do the same in other cases. They also want the university to issue a formal apology. Makes sense. This is what started this whole thing, which has brought to light other academic-freedom concerns at the university, such as state laws requiring schools to conduct "intellectual environment" surveys and limiting what faculty can speak to students about.

2) Affirm the right of faculty to "conscience, academic freedom, free speech rights, and expertise in an expert witness context, regardless of whether they receive payment for their expertise." Obviously.

3) Affirm its support for voting rights and commit to opposing ongoing efforts to suppress voting rights in the state of Florida. This is stupid, over-grasping, and unnecessary. There are good arguments (from scholars across the political spectrum) that academic institutions should not take institutional positions on public issues, no matter how obvious the issues. This demand says "it is not enough that we be able to express our preferred position, you also must tell us that we are right in our position." It also plays into the narrative of liberal academics controlling the university and silencing those who oppose their messages by insisting that their views be the institution's views.

4) Formally declare that the University's mission to serve the public good is independent of the transitory political interests of state officeholders. Instead, UF should uphold its mission statement as the prime directive for all University activities. Good.

5) Donors should withhold donations unless UF complies with the four main demands, including explaining why they are withholding. Interesting, but unlikely to do much. One of the faculty members at the press conference announcing these demands said he had donated to the school in the past and would stop doing so. But I doubt that the donors the university cares about--those who build buildings and endow centers and chairs--would follow suit.

6) Officials at other schools should tank UF in their US News and other assessments, because of this, as well as its response to COVID, its "poor commitment to environmental sustainability," and broader attacks on employees' speech, academic freedom, and labor rights. This is trying to hit UF where it hurts. The university made a big deal about becoming the #5 public university in the 2021 US News (trailing UCLA, Berkeley, Michigan, and Virginia and tied with UNC and UC-Santa Barbara)--there is a photo circulating of DeSantis with university officials, holding a # 5 Gators jersey. Again, though, why drag an unrelated political issue such as the environment into this?

7) Professional associations should call out UF.

8) Accrediting agencies should investigate, since failing to protect academic freedom undermines its ability to provide a world-class education.

9) Artists, scholars, and intellectuals who are invited to perform at the University of Florida should decline these invitations until the University complies with our academic freedom demands. When declining an invitation to appear at the University, invitees should clearly specify why they are declining the invitation and, if they are active on social media, should use the hashtag #NotAtUF.

I asked Steve Lubet (Northwestern) for his thoughts, as he criticizes calls for academic boycotts. He writes:

Academic boycotts are bad in principle because they undermine the free exchange of ideas. I understand the impulse here, which is to exert maximum pressure on the administration, but it would be performative and counter-productive. Desantis and his acolytes don’t care much about artists or visiting scholars appearing at UF, so only the students and faculty will be hurt. They should try demanding that other universities drop UF from their sports schedules, which might actually have an impact.

I would add that it would create a political imbalance in the exchange of idea, because conservative speakers will be happy to speak at UF, not only for the opportunity to speak but also to own the libs.

10) Call for a UF Faculty Senate resolution affirming these demands.

11) Employees should refuse to disclose outside activities and conflicts of interest via the UFOLIO system. Until the University can be trusted to use this information responsibly, it should not be trusted with this information at all. Nothing like some civil disobedience as a topper. But they might consider Tracy v. Florida Atlantic University, a different conflict between an SUS entity and faculty speech. Tracy, a professor of communications and media studies, ran a blog that questioned Sandy Hook; the university asked him to disclose the blog as an outside activity, Tracy refused, and the university fired him for insubordination. The Eleventh Circuit affirmed summary judgment in favor of the university, concluding that the disclosure policy was not constitutionally invalid and thus firing him was not inappropriate. That one does not trust the university to use information responsibility, divorced from any apparent constitutional violation in the disclosure rules, does not excuse the obligation to comply with the disclosure obligations. I suppose if enough people stop complying the university cannot fire everyone for non-compliance, so maybe it works in the short term.

I presume the university will back down on this; it does not want this to remain a national story. I remain focused on how this trickles down to my school.

Posted by Howard Wasserman on November 5, 2021 at 12:11 PM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (0)

Wednesday, November 03, 2021

Academic freedom in the Florida State University System

I have been watching the situation at University of Florida closely, especially now that it appears this has implicated three law professors who sought to put their names on amicus briefs. This could spread to other schools in the State University System. It is front page of the Washington Post because it is UF, a flagship public university in a large state that purports to be a top public research institution; I would worry about stuff like this sliding under the radar at a smaller institution in a smaller state. Keith Whittington has been covering this at Volokh in his role with the Academic Freedom Alliance.

Meanwhile, the FIU Faculty Senate entered the fray. Interesting to see how FIU and the state respond.

Posted by Howard Wasserman on November 3, 2021 at 02:46 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, October 15, 2021

Misapplying the thin-skulled plaintiff

I agree with most of Ruth Marcus' takedown of Yale Law School's attempt to extort an apology from a student over an obnoxious email.*

[*] The student surreptitiously recorded his conversations with two deans--is Connecticut a one-party state?--and it is really hard to listen to those recordings in which the deans remind him of applying to the Bar and not laugh when the school says "No student is investigated or sanctioned for protected speech." No sanction, but a not-subtle "nice Bar Exam you have to take, shame if you get dinged by not apologizing."

I take issue with this:

Every first-year law student learns in torts class about the plaintiff with the “eggshell skull” — someone who suffers a greater injury than normal and must be compensated accordingly. But in the modern world, it seems, everyone’s skulls are susceptible to cracking at the slightest provocation.

The eggshell plaintiff is a go-to move in discussions (critical or supportive) of attempts to restrict offensive speech. Feminist anti-porn arguments rested on this theory--the eggshelliest person might decide to emulate porn and commit crimes against women, so this rule justifies banning porn. Marcus tries to argue that everyone is acting like an eggshell plaintiff as to offensive speech and that law-school administrators are allowing.

Both arguments rest on a misapplication of the eggshell-plaintiff concept. Marcus defines it correctly--a wrongdoer takes the injured person as he finds her and must pay a uniquely great compensation for a uniquely great injury. But this is a compensation rule, not a liability rule. A person is not liable for conduct that would not injure an ordinary person, and thus is not wrongful, even if it injures the eggshell plaintiff. The rule kicks in when the defendant has engaged in wrongful conduct and we have to determine how much he pays--compensation is tailored to the injured plaintiff, even if her injuries, and thus the compensation, are unusually great. We do not establish our liability rules according to the weakest, most sensitive, most easily persuaded, or the most easily offended. The eggshell rule cannot be used to justify greater restrictions on speech or conduct and should not be used to explain them.

Posted by Howard Wasserman on October 15, 2021 at 02:35 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

How would RBG have voted in Johnson and Eichman?

Katie Couric is being (rightly) criticized over revelations that she edited RBG's comments about Colin Kapernick and kneeling NFL players during a 2016 interview, citing a desire to "protect" the Justice from questions and issues that Kouric believed she was too old to understand. According to reports:

The final version of the story, which meant to promote a compilation of Ginsburg’s writings called, My Own Words, included her criticism of ‘stupid’ and ‘arrogant’ protesters.
But what was left out was arguably more inflammatory.
Ginsburg went on to say that such protests show a 'contempt for a government that has made it possible for their parents and grandparents to live a decent life.'
She said: ‘Which they probably could not have lived in the places they came from ... as they became older they realize that this was youthful folly. And that’s why education is important.’
Couric claims that she ‘lost a lot of sleep over this one’ and still wrestles with the decision she made.
I will leave criticism of Couric's journalistic practices and the cult of RBG to others.
 
I want to pose a different question: Given these views of disrespect for the flag, how would RBG have voted in the flag-burning cases? Burning a flag shows greater "contempt for government" and is more a thing someone could not do "in the place they came from" compared with kneeling during a flag-centered ceremony. Ginsburg generally followed the left-liberal view of free speech. But perhaps, like Justice Stevens, she believed the flag and its surroundings demand a unique First Amendment carve-out.

Posted by Howard Wasserman on October 15, 2021 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, September 24, 2021

Easy First Amendment cases

I wrote last week about a Sixth Circuit decision holding that the First Amendment protects a group of anti-Israel protesters who have protested outside an Ann Arbor synagogue every Shabbat since 2003 from an intentional-infliction claim by two members of the congregation. My post focused on the stupidity of standing and how it got in the way of the case--the district court dismissed for lack of standing (emotional injury insufficiently concrete) and the concurring judge agreed with that conclusion, while the majority said there was standing (obviously) but the claim fails under the First Amendment.

I did not write about the First Amendment issues because the case was (or would have been, if the district court had not injected standing into the mix) so obvious and easy. The protesters are on the public sidewalk in front of and across the street from the synagogue, both traditional public forums. They do not block the entrance, nor do they attempt to approach people entering the synagogue (so this does not look like the activity outside clinics). Their signs and chants are obnoxious and hateful. Protesting Israel in front of a synagogue is anti-Semitic, the paradigm conflation of Israel with Judaism and Jews. But nothing described in the opinion comes close to falling outside First Amendment protections or the source of liability.

But this Jewish News Syndicate column by Nathan Lewin sees this case as the first step towards enactment of Nuremberg Laws and a program of organized murder. He likens this to spray-painting a swastika on a temple. And to the cross-burning in Virginia v. Black, ignoring that Black and his fellow defendants won because the state had not (and in Black's case could not) prove intent to intimidate. He insists that these messages in this location are not trying to persuade, so they must be trying to harass and intimidate. But speech can do a lot in the vast space between pure rational persuasion and unprotected intimidation. I doubt Paul Cohen (to keep it mischpacha) or Brandi Levi (who is not, but everyone thought she was) was trying to rationally persuade anyone.

Lewin insists "there are solid reasons in federal and Michigan law o sustain the Jewish worshippers’ claim that gatherings and placards designed to harass and intimidate Jewish worshippers are not shielded by the Constitution." He does not  identify those reasons; the best he has is that the majority acknowledged that the case is not frivolous (and thus not dismissable for lack of jurisdiction), which is not much to hang onto. He is right that placards designed to harass and intimidate are not protected. The problem is that no facts show an intent to harass or intimidate and likely cannot, given how intimidation is understood in Black. Nor does he mention Skokie, which would seem to defeat any suggestion that parading anti-Semitic messages in a space with a lot of Jews loses constitutional protection.

Lewin is a well-known First Amendment attorney who litigated several significant religious-liberty cases. (He does not seem to like Judge Sutton, who wrote the majority, taking the time to point out that Sutton argued City of Boerne, as if to suggest Sutton is opposed to religious liberty). But this screed disregards basic free-speech principles, although I am not sure towards what end.

Posted by Howard Wasserman on September 24, 2021 at 01:31 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, September 20, 2021

Shorter Chronicle of Higher Education

Some members of the Stanford College Republicans are immature assholes who do immature asshole things and other members realize both of those facts. But nothing described in this story comes close to falling outside of First Amendment protections. Thanks for sharing.

Posted by Howard Wasserman on September 20, 2021 at 12:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, September 17, 2021

Jurisdiction, merits, and the First Amendment

From the Sixth Circuit, reaching the correct result for confused and convoluted reasons.

Anti-Israel protesters have picketed outside Beth Israel Synagogue in Ann Arbor every Shabbatt since 2003. Two congregants sued the protesters for intentional infliction and various civil rights claims and the city and various municipal officials for not stopping the protests. The district court dismissed the claims for lack of standing, finding that emotional distress is not a sufficient Article III injury. The Sixth Circuit majority held that the plaintiffs had standing, but that the claims fail on the merits because the protests are First Amendment protected activity. Judge Clay concurred, arguing that the plaintiffs lack standing and the district court lacks jurisdiction because the claims are so frivolous.

This is another example of standing and jurisdiction complicating and distracting straight-forward cases. Plaintiffs brought a long-established common law claim and the only question should have been whether the protesters expressive conduct was constitutionally protected and thus not a basis for liability. It makes no sense to erect, understand, and use threshold jurisdictional doctrines to complicate that issue. Would anyone have discussed standing or jurisdiction had this case been brought in state court? Then it should not be different in federal court.

Also, note, again, the defensive context in which the First Amendment was raised and judicially resolved. Paintiffs sued for damages, the protesters raised their First Amendment rights as a defense, and in agreeing with the protesters on the First Amendment question, the court dismissed the lawsuit. How is that not an "ordinary mechanism" or the "established process" of judicial review?

Posted by Howard Wasserman on September 17, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, September 15, 2021

Devin Nunes wins a small victory, for now

To show I can write about something other than SB8: This terrible Eighth Circuit opinion. The court holds that Devin Nunes did not sufficiently plead actual malice against Esquire and Ryan Lizza over publication of an article about Nunes' family's farm, because he had not sufficiently pleaded actual malice. (Nunes acknowledged he had not done so--he asked the court to reconsider the standard, which it obviously cannot do). But the court reversed dismissal of a claim against Lizza for retweeting a link to the story two months Nunes filed his original complaint. Retweeting constitutes republication. And because Lizza retweeted after the lawsuit denied the story, it was "plausible that Lizza, at that point, engaged in 'the purposeful avoidance of the truth.'"

This cannot be right. The denial or contesting of allegations, without more, cannot plausibly establish knowledge or reckless disregard as to truth of the statements, presumably in the face of other reasons to believe the story (which is why they published it). The implication of this is that a defamation claim can survive 12(b)(6) by alleging that someone retweeted the disputed story knowing that the target of the story has sued or otherwise contested its truth. Or, one step further, a plaintiff could survive 12(b)(6) by pleading that the reporter published the story despite pre-publication denials of the content. Either of those puts the defendant on notice of the denial, which raises the same plausible inference the defendant "purposefully avoided" the truth.

I doubt Nunes survives summary judgment, because I doubt he can establish evidence beyond his denial for Lizza to disbelieve the article. That is not enough to establish actual malice by clear-and-convincing evidence, as required. Still, letting this get beyond 12(b)(6) is not good. It raises again whether plausibility should account for a higher standard of persuasion, as it does on summary judgment.

And just to tie this back to SB8, because that is my life right now: No one seems to believe that Lizza was denied judicial review of his First Amendment rights by having to defend a lawsuit.

Posted by Howard Wasserman on September 15, 2021 at 06:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, September 01, 2021

SB8 and New York Times v. Sullivan

Mary Ziegler (Florida State) describes SB8 as the culmination of a decades-long strategy, centered in Texas, to use civil litigation to end abortion.

Ziegler reinforces our argument that current events around abortion in Texas recall events around pro-civil-rights speech in Alabama in the early 1960s. Alabama officials developed a coordinated plan to use civil defamation litigation under wildly pro-plaintiff state law to silence pro-civil-rights speech by civil rights activists and the Northern press. By the early 1960s, the New York Times faced $ 300 million in defamation judgments, prompting it to pursue the case to SCOTUS and ultimately change the First Amendment.

The difference, of course, is that SCOTUS in 1964 would interpret the First Amendment to end that strategy. Reproductive-rights activists and providers fear, probably rightly, that SCOTUS will not interpret the Fourteenth Amendment to end that strategy. But that shows that the concerns and complaints about SB8 are substantive rather than procedural--the current Court believes that states can ban abortions after six weeks of pregnancy and so will allow enforcement of that law.

Posted by Howard Wasserman on September 1, 2021 at 09:14 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, August 31, 2021

First Amendment concerns on the other side of SB8

It appears that a Texas state court has issued a TRO prohibiting a named individual (not Mark Dickson) and Texas Right to Life from bringing SB8 actions. I do not know what their cause of action was, nor do I know the breadth of what the judge ruled. Obviously the order cannot stop anyone other than the named defendants from bringing suit. And I do not know that Texas Right to Life was contemplating a lawsuit as much as gathering and providing information to individuals who might bring suits. A court enjoining those informational activities, distinct from filing the lawsuit itself, raises serious First Amendment problems--the same First Amendment problems created by possible SB8 lawsuits against rights advocates who provide information about where and how to procure services.

This is getting messy, in part because the reproductive-rights community is scrambling and no one wants to grasp the procedural issues hanging over this.

Posted by Howard Wasserman on August 31, 2021 at 12:31 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Understanding cheering speech

From Will Leitch at New York Magazine, on Mets players "booing" fans (through a thumbs-down) following a good play in reaction to fans booing players for, well, being the Mets. Leitch makes an interesting point about the psychology of the three actors involved--fans, players, and management. Fans boo the team as opposed to individual players (sometimes, at least--I think a lot of booing is more directed than Will does). "The team" is players and the management that built the team (recall the old Seinfeld joke that sports fandom means rooting for the shirt a player wears). But management sides with the fans against the players, leaving the players to personally bear the brunt of negative fan expression. When fans  turn their speech to ownership and management, they often are removed or have signs confiscated (to stay in New York, numerous Knicks fans were removed or had signs confiscated for criticizing fail-son owner James Dolan).

Update: A different take from Michael Baumann at The Ringer. Baumann makes a point that ties back to politics. He writes: "[P]art and parcel of loving something is—or at least should be—criticizing it when it goes off the rails. Unceasing positivity in defiance of fact isn’t love or support, it’s Stockholm syndrome." While that is true in sports, it has ceased to be true in politics, as Tom Nichols argues to the point of exhaustion. Neither side will tolerate criticism or acknowledge mistakes by their "side" or their "guys." In part, this is because the other side can and does weaponize internal criticism. My thinking or saying that the Cubs suck does not affect how the Cubs perform. My thinking or saying that Biden screwed up the Afghanistan withdrawal or the eviction moratorium affects media coverage and the political narrative, which then affects whether my guy or my side wins the next election. It is not healthy, but it is explicable.

Posted by Howard Wasserman on August 31, 2021 at 11:29 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Saturday, August 21, 2021

Bray on universal injunctions

Sam Bray comments on the universal injunction against repeal of the remain-in-Mexico policy. Bray calls out the "baffling" nonsense of the judge enjoining paragraphs of an agency memorandum, because "[p]eople get enjoined. Injunctions protect people from people. Or require people to do things." He offers the following:

  1. injunctions should be used for protection: they should protect plaintiffs (or plaintiff classes) from the enforcement actions of government officers;
  2. when the problem is not with end-of-the-line enforcement, but rather is upstream, such as a failure in the process of creating a rule or policy, the proper remedy is not an injunction but mandamus, which has a different logic and is focused not on the protection of the plaintiff but on the officer's performance of a legal duty;
  3. the fact that mandamus has its own limiting principles, such as the need to show a clear violation of a legal duty, means that some close to the line violations will not be remedied;
  4. point three is a feature of this proposal.

Well said.

Posted by Howard Wasserman on August 21, 2021 at 08:16 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, August 07, 2021

A parade of stupid over "Fuck Biden"

Not content to let Roselle Park, NJ be the epicenter of First Amendment stupidity, Blue Rapids, KS, a town of about 1000 people, has taken aim at a yard sign reading "Fuck Biden and Fuck You For Voting for Him" (a cute addendum that makes the political the personal). As in Roselle Park, the town has cited him for a violation of its obscenity ordinance, following a citizen petition objecting to the sign. This story mentions that Evansdale, IA managed to resist the urge to be equally stupid with the same sign.

This is becoming a recurring theme, so a primer for small-town mayors and their lawyers who should know better:

• Bad words such as "fuck" are not obscene as that word is understood in the First Amendment, therefore a municipal obscenity ordinance cannot be the basis for regulating such a sign. There is nothing about the message "fuck ____" that is erotic (to say nothing of prurient) or that depicts or describes sexual activity. And if the thing the sign wants to "fuck" is the President of the United States or his voters (or the draft or cheerleading or anything else), that sign has serious political value. It does not matter that people "think" the sign is obscene and a lot of people signing a petition expressing their view that it is obscene does not establish "community standard" (both of which feature in the Blue Rapids debate).

• "Fuck ____" as a non-sexual political message is constitutionally protected speech under Cohen, reiterated in Mahanoy. There is no community-standards piece to this. Community offense at a political message does not strip that message of protection. Quite the opposite--the message needs protection because of the community opposition.

"Think of the children" is of limited value where speech reaches a mixed audience of adults and children, especially for a person speaking to the world from the unique forum of her home. Government cannot limit adults to seeing what is fit for children. It follows that government cannot limit a speaker to uttering what is appropriate for children on the chance that some children might happen upon her message.

• Blue Rapids Mayor Jerry Zayas says "the matter belongs in the hands of the court" and "'Whatever the court decides, that is our justice system.'" This is an absurd statement from an elected official. The court decides only because Zayas lacks a rudimentary understanding of free speech and gets the courts involved by attempting to enforce this ordinance in a way at odds with the First Amendment. He could have followed the lead of the town in Evansdale, which, politics aside, recognized what the First Amendment commands. Of course, Zayas can be a good departmentalist and follow his (erroneous) constitutional understanding to enforce the law and force the court to rule.. But it would be nice if the public was aware that the mayor was costing it money it probably does not have on a cause that he (or the town lawyer) should will lose badly once the court does decide.

• The ACLU is involved, so, as in Roselle Park, this will be over quickly.

• How many cases like this will we see?

Posted by Howard Wasserman on August 7, 2021 at 10:47 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, August 06, 2021

A day in the year

One Year is a Slate podcast hosted by Josh Levin telling various stories from 1977. (I find it interesting because I turned 9 and it was in many ways the first year I was really aware of the world). This week's episode, Elvis, the Pledge, and Extraterrestrials, tells three stories tied to August 16, 1977. Two touch on interesting speech stuff.

The first is about the National Enquirer's coverage following Elvis Presley's death on August 16. The big focus is its practice of paying sources (such as Elvis' girlfriend and the paramedics who responded to the scene) for exclusive stories and to obtain photos of Elvis' body in the casket. Ian Calder, later of Calder v. Jones fame, features prominently. I remember that around this time People Magazine went on a TV advertising kick with the tagline "If it's in People, you know it's true," an effort to separate itself from the Enquirer.

The second (beginning around 16:30) is about Deborah Lipp, a New Jersey high-schooler who sued the school over the right not to stand for the Pledge (New Jersey law required students to stand at attention, even if not reciting the words). The district court ruled from the bench on August 16 that the law requiring students to stand was invalid. Levin notes that SCOTUS has never ruled on whether the First Amendment protects the right to remain seated, presenting that as an ongoing problem for students through clips of recent school efforts in Texas and Florida (of course) to compel student participation. Lipp tells the story of receiving a call from her daughter's teacher asking for her permission for the daughter to sit, telling the teacher that her daughter does not require parental permission, and the teacher taking that as an expression of permission.

The focus on whether SCOTUS has spkoen leaves out some things. First, less than a year later, the Third Circuit affirmed in Lipp in a short per curiam, agreeing that the state cannot "requir[e] a student to engage in what amounts to implicit expression by standing at respectful attention while the flag salute is being administered and being participated in by other students." So there is binding precedent in New Jersey, Delaware, and Pennsylvania (as well as the Virgin Islands) that schools cannot compel any participation, verbal or non-verbal. Second, SCOTUS precedent does not matter much when most of these cases follow a similar pattern. The school tries to push the student around, a district court tells the school to cut the crap, and the school does not appeal or push further. Alternatively, the school backs off in the face of the threat (often in the form of a letter from the ACLU or FIRE) that a court will tell it to cut the crap. This is not to minimize the costs and burdens on students when school districts become over-officious; I wish they would do a better job at this. It is to say that a SCOTUS decision (which the school also can ignore if it wants to deal with the political, legal, and financial fallout) would not make a difference.

Posted by Howard Wasserman on August 6, 2021 at 09:31 AM in Culture, First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, August 05, 2021

Jack Phillips goes on defense and no one complains

I stumbled across this while doing research for my SB8 paper. I think it illustrates my point that the partisan valence of the rights and rights-holders at issue influence the complaints and hand-wringingabout SB8's procedural and jurisdictional rules.

In June 2017, the day SCOTUS granted cert in Masterpiece Cakeshop, a trans woman ordered a cake from Phillips to celebrate her birthday and her male-to-female transition--it would be pink on the inside and blue on the outside; Phillips refused and the woman filed a complaint with the Colorado Civil Rights Commission, which found probable cause. In August 2018, a few months after SCOTUS' decision in Masterpiece, Phillips filed a federal action challenging the P/C finding and enforcement of state law as violating the First Amendment. In January 2019, the district court declined to abstain under Younger, applying the bad-faith exception. The Commission dismissed the administrative enforcement action, mooting the federal action. So the woman sued Phillips in state court for violating the state public-accommodations law. In June, following a bench trial, the state trial court rejected Phillips' First Amendment defense and found that he had violated the ordinance, imposing damages of $ 500. Phillips plans to appeal to the state court of appeals (and to the Colorado Supreme Court and then to SCOTUS).

The case illustrates that it is not unheard-of for rights-holders to be forced to assert federal constitutional rights in a defensive posture and in state court. Phillips is similarly situated to abortion providers and advocates who are the likely targets of SB8 suits, forced to defend private statutory actions for damages rather than government-initiated enforcement proceedings. Colorado courts likely are as hostile to the First Amendment rights Phillips asserts in defense as Texas courts are to the reproductive-freedom that providers and advocates will assert in defense in SB8 actions. The difference is that Phillips faces one action by one denied customer, whereas abortion providers face a tidal wave of lawsuits by random Texans across the state. But imagine that dozens or hundreds of LGBTQIA people order cakes, knowing they will be refused, then sue for damages; the similarity sharpens (although the amounts of money are very different). And both cases show why the well-pleaded complaint rule is such a bad idea--Phillips and Whole Women's Health should be able to gain that federal forum for their federal defenses.

Once again, many people complaining about abortion providers having to defend in state court would be happy to see Phillips sued into oblivion. But the procedural and jurisdictional propriety cannot turn on the rights involved.

Posted by Howard Wasserman on August 5, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 04, 2021

Defamation procedure II

Devins Nunes is not the only new defamation action raising interesting procedural issues. Alan Dershowitz sued Netflix and others for defamation over the documentary Jeffrey Epstein: Filthy Rich. Defendants answered yesterday; here is Netflix's Answer.

Netflix has good lawyers (the firm of Davis Wright Tremaine). But the Answer does many of the things that are inconsistent with the FRCP, that I try to teach students not to follow, but that are common in practice because no one--not plaintiffs, not defendants, and not judges (since Milton Shadur died)--cares about the content of the Answer. This would make a good final exam next spring.

Here are some problems:

    • Netflix responds to numerous allegations as it "lacks information sufficient to form a belief as to the truth or falsity of the
allegations and "on that basis, denies each and every allegation in" the paragraph. This is wrong. FRCP 8(b)(5) allows a party to "state" that it "lacks knowledge or information sufficient to form a belief about the truth of an allegation," which has the "effect of a denial." That is, a defendant can respond to an allegation by saying "I don't know" and the court will treat that as a denial. But Netflix said "I don't know and therefore I deny." That is not logically possible and not what FRCP 8(b)(5) authorizes. This might reflect a disconnect between FRCP 8(b)(5) and FRCP 11(b)(4), which requires a defendant to certify that denials "specifically so identified, are reasonably based on belief or a lack of information." But if 11(b)(4) allows a denial based on lack of knowledge, 8(b)(5) is superfluous.

    • This is one I had not seen before: After responding to 138 numbered paragraphs, the Answer has a subject-heading "General Denial" and states:

Each numbered paragraph in this Answer responds to the identically numbered paragraph in the Amended Complaint. Netflix denies all allegations, declarations, claims, or assertions in the Amended Complaint that are not specifically admitted in this Answer. To the extent the headings contained in the Amended Complaint constitute allegations, such allegations are denied.

        This is unnecessary. FRCP 8(b)(3) allows general denials of the entire complaint or a general denial of everything not admitted. But the Answer admitted and denied facts paragraph-by-paragraph. This blanket statement is unnecessary.

    • The Answer asserts 24 affirmative defenses. But most of these are not affirmative defenses--where the defendant admits the allegations in the complaint but raises new facts and law that cause those facts not to have their ordinary effect. These are expressly stated failure-of-proof defenses--defendant arguing that the plaintiff cannot prove the truth of the allegations in the complaint. For example, the sixth defense is that Dershowitz is a public figure and cannot prove actual malice by clear-and-convincing evidence. That is a failure-of-proof defense--Dershowitz will fail to prove his claim because he cannot carry his burden of persuasion on an element. The defendant is not required to plead the absence of malice. The twenty-third defense is that Dershowitz's reliance in his fraud claim was not reasonable. Again, this argues that Dershowitz cannot prevail on an element on which he bears the burden of proof--the reasonableness of any reliance. The defendant does not have to prove unreasonableness.

            Again, this is common. If the complaint alleges the plaintiff spoke with actual malice, denying the allegation is equivalent to saying  "we did not act with actual malice," which puts the plaintiff to the task of proving the disputed fact of the defendant's state of mind. If the complaint alleges the plaintiff reasonably relied on false statements, denying the allegation is equivalent to saying "his reliance was not reasonable," which puts the plaintiff to the task of proving the disputed fact of the reasonableness of his reliance. But defendants are afraid that will be lost to whomever reads the pleading. So they affirmatively state the failure of the element, even though that is not what the rules imagine.

    • The Answer includes a counterclaim under New York's new Anti-SLAPP law. I have written before about how the procedural defenses of anti-SLAPP laws should not apply in federal court. But New York's law creates a counterclaim that the claim is a SLAPP (as defined), allowing for recovery of attorney's fees and compensatory and punitive damages. It functions something like the tort of abuse of process, often raised as an affirmative defense to a questionable tort claim. This is a nice example of how one legal rule can be an affirmative defense and a counterclaim and the different roles each plays. The SLAPP issues will not defeat Dershowitz's claims (that will happen under New York Times), but they provide basis for Netflix to recover money apart from the resolution of the original claim. By establishing a new claim, New York found a way to allow federal defendants to pursue anti-SLAPP arguments and recover anti-SLAPP remedies, in a slightly different posture.

    • Netflix alleged supplemental jurisdiction over the counterclaim because Dershowitz's claims arise from the same set of facts. This is a legal and strategic mistake, although another common one.

        Why not allege diversity jurisdiction? That is the basis for jurisdiction over Dershowitz's original claims (defamation, fraud, and other torts) over the defendants. If there is diversity over the claims Dershowitz and all defendants, there must be diversity over counterclaims between the same parties. The fees and damages sought almost certainly will exceed $ 75,000. So § 1332(a)(1) is satisfied. Supplemental jurisdiction is supposed to be limited to cases in which there is no "independent" basis for jurisdiction. My guess is this practice derives from habit established in the paradigm case--plaintiff brings federal claims against non-diverse defendants and the defendants assert state counterclaims; supplemental jurisdiction is necessary in those cases. But it is not necessary when the basis for original jurisdiction is diversity and the same parties are involved in claims and counterclaims.

        There is a second problem--there may not be supplemental jurisdiction here. The best conclusion is that the SLAPP counterclaim is permissive rather than compulsory, because it does not arise out of the same transaction or occurrence as the claim. This case reflects a common posture--defendant does something to injure plaintiff, plaintiff seeks a remedy for the injury, defendant alleges that plaintiff's remedial efforts violate defendant's rights, defendant brings counterclaim based on those injuries. For example, courts generally hold that an abuse-of-process counterclaim is not compulsory to an original tort claim--the tort claim is based on the real-world events that caused the injury to the plaintiff, while the counterclaim is based on the action of filing the lawsuit. Or take Jones v. Ford Motor Credit. Plaintiffs believed the terms of their auto loans were racially discriminatory and brought ECOA claims while also stopping payment on the loans, prompting counterclaims to recover the money owed on the loans; the court said the counterclaims were permissive because the claims were based on the mark-ups in the loan agreement while the counterclaims were based on subsequent non-payment. Dershowitz's claims arise out of the documentary, while the counterclaim arises out of Dershowitz's subsequent lawsuit itself seeking a remedy for that injury; these are distinct real-world facts and events. There is a but-for connection--but-for the false statements in the doc, Dershowitz would not have sued, which would not have caused the alleged injury to Netflix. But such a but-for connection is generally insufficient.

        That matters because most courts treat "same transaction or occurrence" in FRCP 13(a)(1)(A) as meaning the same thing as "same case or controversy" (which courts interpret to mean "common nucleus of operative fact") in § 1367. That is, a counterclaim that is not sufficiently related to satisfy 13(a)(1)(A) is not sufficiently related to satisfy § 1367. That is why it makes sense for defendants to plead diversity jurisdiction when they can--it provides a basis for jurisdiction over the counterclaim independent of the original claim, jurisdiction that the district cannot decline to exercise. Some courts, including the Second Circuit in Jones, treat "same case or controversy" as broader than "same transaction or occurrence," allowing jurisdiction over a non-compulsory counterclaim where there is a "loose factual connection" among claims, including the sort of but-for connection we see here. At least to this point, however, the Eleventh Circuit has not treated them differently.

None of this matters, of course. Dershowitz is not going to push back on improper responses or bad affirmative defenses and I doubt he will both moving to dismiss the counterclaim for lack of SMJ (since Netflix can replead to establish diversity). Any errors  are harmless because the court and the parties treat them as such. The FRCP often is observed in the breach in the name of moving forward, for better or for worse.

Posted by Howard Wasserman on August 4, 2021 at 02:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Defamation procedure I

Yesterday saw developments in two stupid defamation lawsuits brought by two stupid people, but with some procedural fun thrown in.

First, Devin Nunes filed another defamation suit (how many is this?), this one against NBC Universal in the Eastern District of Texas over packages Nunes received from a Russian agent. This has the usual problems for a Nunes defamation suit--some of the challenged statements are opinion and rhetoric and there are no allegations showing actual malice. But as always, I am here for the procedure:

    • What the hell is the case doing in Texas? Nunes is from California and works in D.C; NBC Universal is a Delaware LLC with its PPB in New York. There is no connection between these statements and Texas, other than that they were heard in Texas along with every other place in the United States where MSNBC telecasts and Maddow tweets can be heard. The statements are not "about" Texas, Texas people, or Texas activities. Weird forum choice has been a common feature of Nunes' lawsuits; the first suit (against Twitter, Liz Mair, and Devin Nunes' Cow) went into state court in a remote spot of Virginia. But Virginia made some sense, since Mair lives there and it is close to D.C. Texas just seems random. Keeton v. Hustler is still out there (and the complaint, which for reasons of bad lawyering shifts into making legal arguments, cites it). But the recent jurisdictional trend in defamation cases is that there must be more of a connection between the statements and the forum, even for nationally distributed publications.

    • ¶ 10 states "MSNBC is at home in Texas and is subject to general personal jurisdiction in Texas," a statement which does not reflect the law as it has been for at least seven years and should be sanctionable. If that is the hook Nunes' lawyer plans to use, this should be over quickly.

    • Even if jurisdiction (and therefore venue) is proper, this case again seems ripe for transfer. No one and nothing central to this case occurred or is located in Texas. NBC has a good argument that its witnesses and evidence are located in New York, where it engaged in its reporting and broadcasting activities.

Posted by Howard Wasserman on August 4, 2021 at 01:46 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Monday, August 02, 2021

SB8, racist speech, and partisan presumptions

Concerns about the process of SB8--privatizing enforcement, preempting offensive pre-enforcement litigation, and pushing rights-holders into a defensive posture--come from the left. So do fears that this could catch on. In urging the invalidity of this enforcement framework, the Whole Women's Health Complaint argues:

18.The answer to that question must be no. Otherwise, states and localities across the country would have free rein to target federal rights they disfavor. Today it is abortion providers and those who assist them; tomorrow it might be gun buyers who face liability for every purchase. Churches could be hauled into far-flung courts to defend their religious practices because someone somewhere disagrees with them. Same-sex couples could be sued by neighbors for obtaining a marriage license. And Black families could face lawsuits for enrolling their children in public schools. It is not hard to imagine how states and municipalities bent on defying federal law and the federal judiciary could override constitutional rights if S.B. 8 is permitted to take effect.

But is this limited to conservative attacks on liberal rights-holders, as the complaint offers (other than the gun-rights example)? Could liberals use private enforcement and would the political alignments and arguments flip?

Imagine a state wants to eliminate racist speech. It prohibits the oral, written, non-verbal, or symbolic expression degrading or dehumanizing a person based on race and creates a private tort action for damages and attorney's fees for "any person" offended or bothered by such expression. This law violates the freedom of speech as currently judicially interpreted to the same degree that SB8 violates the right to reproductive freedom. But a would-be racist speaker (e.g., someone who wants to burn a cross on his own lawn or  display a "White Lives Matter" sign or stand on the corner and shout that only white people should be allowed to vote) could not bring an offensive action to declare the law invalid or stop its enforcement. As with SB8 actions, there is no one causing the racist speaker an injury, no one to sue, and no one for the court to enjoin. Such a racist speaker must continue to engage in his racist speech, get sued by that random "any person," and raise the First Amendment as a defense. Or he will refrain from speaking from fear of suit and liability. Either way, the point of the law is to chill or sue racist speakers into silence.

Would those on the left objecting to SB8 object to this strategy of silencing racists and racist speech? If not, is the reason that liberals favor the right to reproductive freedom affected by SB8 while opposing or wanting to limit the right to engage in racist speech? And can that be an acceptable distinction?

Posted by Howard Wasserman on August 2, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, July 27, 2021

"Fuck Biden" summons dismissed; now what?

A New Jersey Superior Court vacated obscenity charges against Andrea Dick after Roselle Park withdrew the summons.

So now what?

• Do Dick and the ACLU bring a § 1983 action for damages and/or for an injunction prohibiting future enforcement of the obscenity ordinance as to signs? The mayor and city attorney struck a defiant tone. The mayor decried the "sad reality" that the city cannot regulate decency. The city attorney insisted the original decision was correct but that "the continued attention garnered by the inappropriate display and the escalating costs to the taxpayers of continuing to litigate the matter causes far greater harm to the borough, as a whole, than good.” In other words, the city continues to argue that these signs violate its obscenity ordinance, suggesting both the possibility of future enforcement (perhaps when the nation is no longer paying attention) and the need for the deterrence that comes with an action even for minimal damages and attorney's fees.

• The Times reports on similar stories elsewhere in the U.S. Punta Gorda, Florida (on the Gulf Coast) enacted an indecency ordinance and is considering whether to issue a summons to a resident displaying a similar "Fuck Biden" sign. Punta Gorda appears smart enough to realize that profanity is indecent rather than obscene, so it is using the right legal theory. But a proper ordinance does not change that profanity is protected speech and so cannot be banned in most contexts.

• Roselle Park plans to amend its code to limit the amount of signage people can have in their property, although the mayor said the rules would not be retroactive and would not affect Dick's signs. It will be interesting to see what the township comes up with. City of Ladue v. Gilleo emphasized that one's home is a special medium that creates a unique message. Depending on the scope and details of the proposed ordinance, the city's interest in controlling visual clutter may not be sufficient to overcome the unique interest in speaking from one's own home.

Posted by Howard Wasserman on July 27, 2021 at 09:32 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, July 24, 2021

Framing constitutional violations

The New York Times op-ed board discusses the "Fuck Biden" signs in Roselle Park, NJ as an example of "a growing sense among many Americans that the United States cannot afford to maintain the full measure of its foundational commitment to free speech." It concludes that "The right to hang banners is a small thing, but the value of free speech inheres in acts of individual expression just as much as in grand statements of collective purpose." The authors are correct and show why the township is going to regret doing this.

I take issue with the introductory paragraph, less for how it affects this than for what it says about the SB8 lawsuit and my current project on the process of constitutional litigation. Here is the opening:

There is little question that Gary Bundy, a municipal court judge in New Jersey, violated the constitutional rights of Andrea Dick this month by ordering her to remove three banners emblazoned with crude messages about President Biden.

In constitutional litigation, we would not say Judge Bundy violated Dick's rights through his order. We would say Roselle Park (or some responsible municipal officer, whoever it might be) violated Dick's rights by issuing the citation and prosecuting the code violation over protected speech. Judge Bundy could have halted the violation by upholding Dick's First Amendment defense. But in failing to do so, Bundy did not violate her rights. Rather, his (IMO) incorrect decision allowed the municipality's violation to continue. But his decision is subject to appellate review and reversal--stopping the municipality's constitutional violation--including by SCOTUS if this ridiculous thing makes it that far.

Posted by Howard Wasserman on July 24, 2021 at 04:41 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, July 20, 2021

First Amendment fieldwork in Pleasant Grove

Last week, I happened to pass through Pleasant Grove, Utah.  First Amendment types will recall that, back in 2009, the Supreme Court issued a (unanimous) ruling in a case called Pleasant Grove City v. Summum, which had to do with government-speech and public-forum doctrines, and with a dispute over the City's refusal to put up a monument containing the "Seven Aphorisms" of Summum in its "Pioneer Park".  The City had accepted, the challengers noted, a privately donated monument of the Ten Commandments.  Well, because this is a full-service law-prawf-blawg, here is a picture of the Commandments, in the Park:

Pleasant Grove

There are, outside the photo, some other various monuments and plaques, and also some old-timey, Utah-frontier-era buildings/reproductions.

(For what it's worth, if you're in Utah, I recommend getting into the Wasatch over wandering through suburbs looking for SCOTUS relics.)

 

Posted by Rick Garnett on July 20, 2021 at 11:47 AM in First Amendment, Religion, Rick Garnett | Permalink | Comments (0)

More on Fuck Biden signs in NJ (Updated)

The worst thing happened to Roselle Park (NJ) in its efforts to get homeowner Andrea Dick to remove "Fuck Biden" signs from her yard--the story is in today's New York Times (including comments from Thomas Healy of Seton Hall). This will end badly for the township and a smart lawyer for the municipality would cut bait now.

A lot of bad stuff can happen in municipal court--the matters are small, many people appear pro se, and the judging and lawyering may not be top-tier. But the key is that no one knows about it, allowing some absurd cases and outcomes to fly under the radar. But this has become a national (or at least regional) story. Every First Amendment lawyer in and around New Jersey is about to come out of the woodwork offering to represent Dick* And when a knowledgeable lawyer gets this case before a knowledgeable court, the outcome will be quick and obvious.

[*] I am surprised the ACLU has not entered the mix. Facing continued suggestions that the organization is more committed to liberal causes than to free speech, this would be an easy win in support of a Trump supporter.

Of course, getting Dick out from under the fines is the beginning. The next step is a § 1983 action against the township, the code enforcement officer who issued the citation, and perhaps the mayor (the Times story suggests that the mayor pushed the enforcement officer to issue the citation), which will cost the township some real money. Politics aside, the municipal attorney should recognize this.

Update: The ACLU of New Jersey has taken the case.

Posted by Howard Wasserman on July 20, 2021 at 10:36 AM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, July 19, 2021

Bernstein on sport and speech

David Bernstein argues in Persuasion that sporting bodies should allow athletes to speak in non-disruptive ways around events, targeting the IOC, UEFA, and the NFL and considering players taking a knee, wearing expressive items on their uniforms, etc. Here is his key point:

No matter how much professional sports and sports fans may wish to separate sports from politics, it cannot be done. The debate re-emerges again and again with no resolution in sight, and you can bet it will kick into gear once the medal ceremonies start at the Tokyo Olympics.

So, rather than attempting to extricate itself from politics, sports should adopt a laissez-faire posture: Let everyone—owners, players, and fans—make political statements at sports matches.

I would supplement with the point I made last week after English fans heaped racist abuse on the three Black players who missed penalty kicks in the Euro finals: If fans are going to respond to sports in political terms, the athletes should be able to express themselves in political terms in the first place.

Posted by Howard Wasserman on July 19, 2021 at 08:47 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (3)

Saturday, July 17, 2021

Random free speech items in the news (Update)

Random free-speech items for a weekend morning.

A

A municipal court judge in New Jersey ordered a woman to remove "Fuck Biden" lawn signs or face fines of $ 250 per day (unable to post photo, but can be found in the article).* This is an absurd ruling, in which no one-- the judge, the town's attorney, or the reporter covering the story--understands the First Amendment. The town proceeded under its obscenity ordinance, even though: 1) the written word is almost never obscene in modern doctrine; 2) nothing about "fuck Biden" describes sexual conduct because the point of the message is not that this woman wants anyone to have sex with Joe Biden; 3) nothing about this appeals to the prurient interest, as opposed to angry and hostile politics; 3) Cohen establishes that the word "fuck" is protected as a verbal intensifier; and 4) even without Cohen, using the word as part of an anti-Biden message gives it serious political value, removing it from the definition of obscenity.

* The story includes the photo with the signs on full display, then uses "f-word" throughout. We have weird standards.

Everything about this is wrong on the law. The news report paraphrases the ordinance as defining obscenity as "material that depicts or describes sexual conduct or lacks any serious literary, artistic, political or scientific value." But either this ordinance is facially invalid or the reporter should not be covering courts. Merely describing sexual conduct is not enough; it must do so in a "patently offensive" way that also appeals to the prurient interest. And Miller is conjunctive--it must describe sexual conduct and lack SLAP merit. Again, however, obscenity should not be part of this discussion--Cohen makes clear that profanity as part of a political message is protected.

The woman's lawyer did not help through his comments to the media, showing that he may not understand what this case is about. He tries to argue the signs are not obscene because obscenity has changed, pointing to how people treated women's knees in the 1920s. He then railed about burning books and burning people (?!) in Nazi Germany. No mention of Cohen, fuck the draft, or recent cases holding that flipping someone off is protected, all of which is more doctrinally relevant than Nazi book burning. Maybe he is doing a better job in court than outside of it. But it would be nice if the ACLU or someone with the expertise to show the court and the public why this is nonsense were in the mix.

Update: Forgive me for not emphasizing enough the wrongness of the court's decision and her lawyer's seeming approach to the case. SCOTUS less than one month ago issued an opinion, binding precedent, saying the following: "And while B. L. used vulgarity, her speech was not obscene as this Court has understood that term. See Cohen v. California, 403 U. S. 15, 19–20 (1971). To the contrary, B. L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection." Anyone believing an obscenity ordinance could apply to these signs, in the wake of that opinion, should be disbarred and/or kicked off the bench.

Two final points. First, this shows why (as one of my colleagues argues) First Amendment should be required or overwhelmingly encouraged. Lawyers qua lawyers should know the First Amendment. And it is important enough that a municipal court judge or suburban township attorney should know the area, however rare it might be that it comes up in their work. Second, this illustrate the point made in this article by Norman Spaulding (Stanford), reviewed on JOTWELL by Suzette Malveaux: The Civ Pro taught as the ideal in law school is a far cry from the real procedure applied in local courts, such as this one.

B

President Biden and Press Secretary Jen Psaki are taking heat for criticizing Facebook and others for allowing bullshit vaccine information (my words) on their sites. Biden went so far as to say the sites are killing people, while Psaki acknowledged conversations urging the sites to do a better job of policing misinformation and providing. Several critics noted that this plays into the narrative of the Trump lawsuits that Democrats in government have coerced or compelled the sites to ban certain speakers and speech, making the sites into state actors.

Government officials, especially the President, speak to private actors; push preferred policies, issues, and ideas; and encourage those actors to act or not act in a certain way.  Government "speaks" and attempts to persuade; successful persuasion does not create a public-private conspiracy. In fact, we expect the President to "lead" in this way from the bully pulpit, by rallying the public to agree with them and criticizing those who do not. It is part of governing and part of public dialogue. And saying that allowing the speech is "killing people" is the sort of rhetorical hyperbole protected in that dialogue, no less so when uttered by a government official.

As David Frum argues, "'Please stop spreading anti-vaccine misinformation on your platforms' is a request very much in line with long traditions of presidential leadership challenging corporations to accept basic norms of social responsibility." On the other hand, Kevin Drum questions Biden's failure to include Fox News as among those killing people, as more influential (and I would add more direct) purveyor of vaccine falsehoods.

C

In twelfth grade, we read Swift's A Modest Proposal, then were assigned to write an essay in that style. I proposed that sober people should not be allowed to drive, leaving the roads to drunk people who, in time, would kill themselves or others. It feels as if that is where we are headed with unvaccinated people using public spaces.

Posted by Howard Wasserman on July 17, 2021 at 12:21 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)