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)

Thursday, July 15, 2021

Who gets to cancel?

Four people have been arrested (and more arrests appear likely) over online racist abuse directed at the three members of the English soccer team who missed penalty kicks in Sunday's Euro finals.

Such arrests would be impossible in the U.S>, because racist speech is protected. (Or likely protected--we would need to know more about what exactly these people said and did and whether the context pushes it into an unprotected category such as harassment or fighting words). Instead, these speakers would have been subject to a range of private consequences. Their identities might have been exposed and they might have been ridiculed, criticized, shunned, and dismissed from jobs and other positions. That is, private people would have expressed their disagreement with and criticism of the original speakers and their racist speech, in the face of more limited government power to do so.

So two points. First, this illustrates the problem with the derisive label "cancel culture." What I described above is counter-speech, the Brandeisian remedy for evil counsels; to write it off is to leave some able to speak but not others or to control how speech is exercised. Second, this illustrates the divide between the U.S. and Europe over hate speech and presents the question of which approach is superior--privately administered consequences or government-imposed consequences.

Posted by Howard Wasserman on July 15, 2021 at 12:15 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, July 14, 2021

Ron DeSantis says the quiet part out loud, undermines anti-protest laws

Protesters opposing the Cuban government blocked several Miami-area roadways Tuesday, including a major highway. Police responded by shutting down the highway, creating buffers a great distance from the protesters in either direction and routing cars off the road, allowing protesters to do their thing. They "negotiated" an end to the protests and reopened the roads around 11 p.m. last night, almost twelve hours after the protests began.

Florida Governor Ron DeSantis famously signed an "anti-riot" bill. A protester can be cited for "willfully obstructing the free, convenient, and normal use of a public street, highway or road." Penalties are enhanced if someone blocks a roadway during a protest that comes to destroy property. And the bill provides immunity for anyone who runs over a protester in the street. But  police attempted to negotiate and keep the protesters safe, but never issued a dispersal order. No one was cited yesterday and police made sure no drivers got anywhere near the protesters by blocking the roadway.

DeSantis was asked about this; the Miami Herald describes his answer:


Read more here: https://www.miamiherald.com/news/local/community/miami-dade/article252766758.html#storylink=cpy

“What is going on in Cuba in particular, those are not simply normal, run-of-the-mill protests like we see here in the United States. They don’t have freedoms respected there, whereas in the United States, you have a panoply of freedoms that are respected,” DeSantis said. “They are seeking an end to the regime itself.”

He added: “They are trying to end the regime. So that is fundamentally different from what we saw last summer where people were burning down buildings — and this was fortunately not happening in Florida to a large extent — burning down buildings, looting, breaking windows and targeting law enforcement and all those things.”

This is incoherent. The extraordinary measures that people in Cuba are taking to end the regime and their lack of a "panoply of freedoms" has nothing to do with protesters in Miami, who have that panoply and are able to engage in "normal, run-of-the-mill protests." They chose this method of protesting, apparently to draw maximum attention to the cause (which, logic suggests, is what every group wants to do). Many BLM protests got out of hand when police confronted protesters, issued dispersal orders (often very quickly and simply because the gathering was large), and attempted to clear the protesters--that never happened yesterday. Finally, the BLM protests "target[ed] law enforcement" only in the sense that their protests criticized and sought to change the behavior of law enforcement, just as Tuesday's protests criticized and sought to change the Cuban regime. So the difference, according to DeSantis, is the subject of the protest--targeting law enforcement is bad and grounds for mass arrests for blocking highways, targeting the Cuban regime good and grounds for law-enforcement to allow a major roadway to be shut down for half a day.

The anti-riot law, which is the subject of several ongoing First Amendment lawsuits, is an example of a law written in content-neutral terms but has a content-based motivation and is likely to be enforced in a content-based manner. Yesterday's events illustrated that point. We saw how police responded to similar actions during the 2020 protests, before the new law was enacted. And we saw how police responded yesterday, with the new law in place. Combined with DeSantis' statements distinguishing anti-Cuba protests from anti-police protests, the lawyers challenging these laws have a new piece of evidence for arguing these laws are content- (if not viewpoint-) discriminatory.

Just to be clear: I am not criticizing the protesters; breaking laws to protest injustice is a storied free-speech tradition. And police should give protesters a certain amount of leeway for spillover. But the response of police and the governor illustrate First Amendment problems with Florida's vaunted laws enacted less than three months ago.


Read more here: https://www.miamiherald.com/news/local/community/miami-dade/article252766758.html#storylink=cpy

Posted by Howard Wasserman on July 14, 2021 at 07:44 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, July 09, 2021

Texas continues race to bottom with Florida

Texas and Florida are locked in a bizarre race to the bottom in enacting the most stupid and constitutionally problematic laws. Florida jumped into the censor-social-media-in-the-name-of-stopping-censorship and was smacked down in federal court.

Texas decided to follow suit, proposing its own absurd law (nice summary here). It includes some new features, including record-keeping, notification, public-disclosure, and process requirements surrounding how sites moderate content that I expect the state will justify in the name of consumer protection but which might be vulnerable to challenge. It tries to learn from Florida's mistakes--no Disney exception and targeted sites are not defined by size. And Texas does not prohibit sites from appending statements, comments, criticisms, or warnings to posts; it does not attempt to stop sites from engaging in counter-speech in response to user content.

But the same problems remain The definitions exclude news sites and others that "preselect" content and for which user content (such as comments) is incidental to presentation of that preselected material; the news-organization exception was one of the content-based defects Judge Hinkle noted in Florida. It defines censorship as to "block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression," which limits the order and manner in which sites can have material presented--any listing of sites puts one thing over another, which treats some material better than other; chronological or alphabetical would be the only options. And it prohibits that "censorship" on the basis of viewpoint, which means sites cannot  prohibit any expression--Nazis, racists, anyone--because of disagreement with an otherwise constitutionally protected message.

Expect a carbon-copy opinion from a court in Texas soon.

 

Posted by Howard Wasserman on July 9, 2021 at 05:28 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, July 07, 2021

Today in dumb lawsuits

Coming to my neck of the woods in the Southern District of Florida: Class action lawsuits by Trump against Twitter and Jack Dorsey; YouTube and Sundar Pichai; and Facebook and Mark Zuckerberg; all allege violations of the First Amendment and the constitutional invalidity of § 230 (I guess because by protecting private actors, it incentivized their censorship or improperly delegated censorial power).

I think we can agree that this is stupid, for many of the reasons that this lawsuit was stupid. But wait, this one gives us more:

• There may not be personal jurisdiction here. Some of the named defendants are not Florida citizens. Trump was still President and residing (if nor domiciled) and tweeting from D.C. when Twitter and Facebook banned him. So the act of banning him was not "aimed at" Florida.

• Venue may not be proper. My understanding is that terms of service agreements include forum-selection clauses that funnel these cases to California. I have to look into that further. Update: Yep. Brad Heath of Reuters reports that Twitter and Facebook both require that federal lawsuits be in the Northern District of California]

• I do not know how you get a declaratory judgment that a law is invalid without suing the person charged with enforcing that law. Facebook, Twitter, et al., do not "enforce" § 230. They enforce their private terms of agreement and the rules for their sites. If § 230 has the effect of converting them into state actors (it does not, but work with me) in banning Trump and others, they still are enforcing their own private terms of service; but those terms of service have been converted into public regulations subject to First Amendment limits. The companies are not enforcing § 230. Enforcement of § 230 rests with someone in the executive branch. But no government officials have been sued. Update: Another problem with this issue that has been raised: Challenges to the constitutional validity of all provisions of the CDA of 1996, including § 230, must be heard by a three-judge district court.

• The purported class is everyone banned since June 1, 2018 within the United States, which includes a whole of people engaged in unprotected speech (as opposed to Trump's protected-but-false-and-offensive speech), That may be too broad to certify.

• The captions list the first plaintiff as "DONALD J. TRUMP, the Forty-Fifth President of the United States," which might be one of the saddest things in any pleading. And I teach the case brought by "NARUTO, a Crested Macaque." This is worse.

• Yes, the lawyers who filed this nonsense should be held up to public ridicule and potential clients should take this into account in deciding whether to retain them.  Also, referring to "Democrat lawmakers" works on Twitter and the Republican echo chamber; in real life, it is disrespectful. This tells us one of two things: 1) The lawyers are talking to the public rather than the court or 2) The lawyers assume the judge will be as hacky as they are; neither is likely to play well with the judge. Whether that warrants sanctions or PR consequences is another story.

Update: A point I saw raised: Trump spent four years arguing that he was not a state actor when blocking people from his Twitter and Facebook pages, while now arguing that those who created the site he was using are state actors. Are those positions reconcilable? If Twitter and Facebook are state actors, how does that affect the people who use those sites in their relationships to other users? If the site is state-run, does that make every piece of the site state-run, such that the individual user also is a state actor?

Another Update: How does the invalidity of § 230 affect the under-color argument? The defendants act under color (allegedly) because § 230 gives them immunity from suit and delegates censorial power and because the threatened repeal coerced/compelled/induced them to censor certain messages. But if § 230 is invalid (facially, according to the complaint), would it not be a good thing that Congress sought to amend or repeal? Alternatively, if the court declares § 230 invalid, does that eliminate the close nexus, so the defendants no longer are under color?

Posted by Howard Wasserman on July 7, 2021 at 12:28 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, July 02, 2021

Reconsidering doctrine

From the final Orders List: Justice Thomas again calls for reconsidering qualified immunity (p.30 of List), including that it makes no sense to us the same standard for police officers making split-second decisions as for a college administrator making deliberate and calculated choices about enacting and enforcing policies (here, creating free-speech zones  on campus). Thomas again calls for reconsidering New York Times (p.41 of doc) and Justice Gorsuch has joined as a wingman (p.44), which suggests this campaign might begin to have legs.

The assault on NYT is notable because it runs opposite to the trend among  free-speech advocates and scholars--their view is that NYT, while great, is insufficient and requires additional protection through anti-SLAPP statutes to stop the filing of bad lawsuits (those that fail under NYT) to bankrupt and silence defendants. Gorsuch adds an odd bit about how few defamation cases go to trial, ignoring that few cases go to trial on any topic because of how 12(b)(6) and summary judgment have been interpreted and applied.

The danger of the emerging Thomas/Gorsuch position is figuring out what it means to "reconsider" NYT. Does it mean eliminating the entire First Amendment edifice (standard of proof, burden of persuasion, protection for parody and satire, protection for anything other than provable statements of fact) and leaving everything to state law? Or does it mean eliminating actual malice as the state-of-mind requirement but leaving the rest in place? And how much of the difficulties that Gorusch decries for defamation plaintiffs derives from actual malice as opposed to the rest of that constitutional edifice? Neither Thomas nor Gorsuch says.

Posted by Howard Wasserman on July 2, 2021 at 01:12 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

On Americans for Prosperity

SCOTUS on Thursday declared invalid a California law requiring not-for-profits to file with the state their Schedule B's revealing major donors. It was another largely 6-3, with Roberts writing for the majority, Thomas joining in all but a few parts, Alito and Gorsuch joining in all but a few parts, and Sotomayor writing the dissent. A couple of points aside from the First Amendment merits

First, the majority declared the California law facially invalid because of its overbreadth, while Thomas questions overbreadth and facial unconstitutionality. Thomas seems to use that departure to fight about universality, making two points. First, while speaking of facial invalidity, "the Court does not say that it is 'provid[ing] relief beyond the parties to the case'"--that is, it is not expressly making the judgment universal. Second, Thomas argues that the judgment does not depend on facial invalidity, only the opinion--"One can understand the Court’s reasoning as based on the fundamental legal problems with the law (that are obvious in light of the facts of this suit) that will, in practice, prevent California from lawfully applying the disclosure requirement against a substantial number of entities, including petitioners."

This is the right way to understand facial invalidity, within the distinction between judgments and opinions. The Court's judgment/injunction remains particularized to the parties. The reasoning in the opinion explaining the judgment establishes judicial precedent that the law is invalid when applied to anyone else. That precedent binds courts in future cases, compelling the court declare the law invalid and to reject new enforcement efforts against others.  If California attempts future enforcement, the new targets must go to court for a new or expanded injunction. They will get it, because SCOTUS precedent establishes that the law is invalid as to all persons. But they must take that step. And California does not violate the injunction in this case by attempting future enforcement against others.

Second, I am intrigued by Zachary Price's model of "symmetrical constitutionalism, which I discuss in a forthcoming essay. Price proposes that justices should favor "when possible, outcomes, doctrines, and rationales that distribute benefits across major partisan divides, as opposed to those that frame constitutional law as a matter of zero-sum competition between competing partisan visions." The idea is to focus on the principle at issue, rather than on who won the immediate case, where the principle will protect politically distinct people and entities

On its own, AFP fits Price's  model, as shown by the range of groups--ACLU, NAACP, PBS--that filed amicus briefs in favor of the plaintiffs. But the Court divided across ideological/partisan lines and the case is being reported and analyzed as a victory for wealthy conservative groups and their wealthy conservative donors. One reason for many is a belief that the "other side" does not follow the principle as much as the outcome--Justice Alito would be less solicitous of the First Amendment concerns if, say, Texas tried to do a deep-dive into Planned Parenthood's donor base. Another is the fear of this case as a stalking horse for further limits on campaign-finance regulation by imposing the same protections for contributions as for expenditures, which plays into a zero-sum competition between competing partisan visions.

Posted by Howard Wasserman on July 2, 2021 at 09:22 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, July 01, 2021

Florida social-media law (unsurprisingly) violates the First Amendment

Judge Hinkle of the Northern District of Florida declared that the law violates the First Amendment and preliminarily enjoined its enforcement. This result was over-determined from the start. The court adopts the views  that speech-protective commentators had been arguing from the beginning, which seemed clear from the argument on Monday.

    • Social-media sites are not state actors and cannot violate the First Amendment. So the law cannot be justified as a way to vindicate users' First Amendment rights.

    • Social-media platforms look more like the newspaper in Tornillo and the parade in Hurley and the state has no interest in "balancing the debate." They look less like the shopping mail in Pruneyard or the interviewing classrooms at Harvard Law School; allowing speakers onto your property is different from controlling the owner's speech or dictating how the owner must provide that access.

    • The law is "as content-based as it gets" and subject to strict scrutiny (which Florida conceded at argument it could not survive). This seemed obvious. It treats political candidates and speech by or about candidates different from other speakers and speech. It regulates large platforms but not smaller ones. It is viewpoint discriminatory, motivated by a desire to protect conservative speech and speakers. And that is before the court reached the Disney carve-out.

All-in-all, a slam dunk. And it is hard to envision a different outcome in the 11th Circuit. It would be cheaper for Florida to go back to cut bait and start over. But it will not, because Ron DeSantis has judges to run against in 2024.

Posted by Howard Wasserman on July 1, 2021 at 03:03 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, June 30, 2021

Understanding "cancel culture" and "offense"

It is obvious beyond peradventure (as Justice Brennan used to say) that conservative cries of "cancel culture," "liberal snowflakes," and "offended at everything" are bullshit projection. But nothing illustrates the point better than this Fifth Circuit case.

According to the complaint, a public-school teacher got pissed off that a student was excused from reciting the Pledge; he assigned the class to write the pledge (which the plaintiff refused to do); made in-class speeches offering to pay her to live in a better country and railing about Sharia law, sex offenders, etc.; and generally treated the plaintiff less favorably than her classmates. The district court denied summary judgment, finding issues of fact about the teacher's motive and actions (he insists that writing the pledge was a class assignment rather than a way to require a statement of loyalty). The teacher immediately appealed under the collateral order doctrine to challenge those findings but not to argue that the law was not clearly established. The Fifth Circuit dismissed the appeal for lack of jurisdiction; only legal issues are immediately reviewable under the COD, not factual findings or the finding of factual disputes.

Judge Duncan dissented, with a strange conclusion that emphasized that "[w]e live in an easily offended age. Even Dr. Seuss is controversial," while imagining cases in which students are compelled to pledge written ideas contrary to their religious beliefs and students refuse to recite the words of the Declaration and King's "I Have a Dream" speech (or the one line from the speech Judge Duncan knows).

But Duncan's outrage is laughable for several reasons, showing the lack of real commitment to the First Amendment. First, it seems odd to complain about how easily offended everyone is in a case that alleges that a teacher was offended by a student's constitutionally protected right to refuse to salute the flag and retaliated against that student in a number of (unhinged, unprofessional, and arguably unconstitutional) ways. When one objects to Dr. Seuss or a Confederate monument or the Pledge, one is an easily offended snowflake; when one objects to Critical Race Theory or wokeness or other liberal-but-protected speech, it is standing up for principle or some other noble cause. Second, Duncan would be the first person to support the long-standing conservative project to allow students to opt-out of an assignment requiring a student to write "Praise be Quetzalcoatl." So it is odd to see that as a slippery-slope example while dissenting in a case allowing a student to opt-out of an assignment.

There is an interesting qualified immunity question that the teacher did not properly tee-up on appeal: Assuming he gave the written assignment as a form of pledge (the disputed fact in question), is it clearly established that this violates the First Amendment? The dissent says no, pointing out that no case has ever found a violation from a written pledge. The majority quotes Barnette: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." (emphasis in case). What wins out--the absence of a factually identical case or the clear statement of general principle in the controlling SCOTUS opinion?

Posted by Howard Wasserman on June 30, 2021 at 12:58 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Zuckerberg and Facebook do not act under color

Nor surprising, but quite definitive.

Facebook cannot be sued because entities, as opposed to individuals, are not proper targets of Bivens actions. The stupidity of this case aside, this is problematic, because it creates another way in which Bivens is not parallel to § 1983--the company could be sued if a state or local government coerced or conspired with it to do something, but not if the federal government does that.

The claims against Zuckerberg failed in part because the complaint did not plead facts showing direct involvement by Zuckerberg with respect to the plaintiff organization's page, as opposed to running Facebook generally. The court refused to infer direct involvement from allegations of Zuckerberg being a "hands-on CEO" making it "highly likely" that he was. Any coercion or encouragement government officials gave Facebook to limit vaccine misinformation did not connect to any specific actions against the plaintiff. And § 230 immunity did not encourage or coerce this conduct, because that immunity does require Facebook or Zuckerberg to do anything and immunity does not hinge on Facebook doing anything.

The court dismissed without prejudice and denied leave to amend. The plaintiffs moved to "supplement" the controlling complaint with new information about the Biden Administration's efforts to stop online vaccine misinformation. The court treated this as a preview of what new allegations plaintiffs would put in a new pleading and concluded they would be insufficient for the same reason the current allegations are insufficient. So the case is over and the next stop is the Ninth Circuit.

Posted by Howard Wasserman on June 30, 2021 at 12:05 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, June 29, 2021

Executive v. Legislative and Twitter blocking

Judge Domenico of the District of Colorado held that Rep. Broebert did not act under color and thus did not violate the First Amendment in blocking a viewer from her @laurenboebert account on January 6 (but not from her official @RepBoebert House account). According to the court, Broebert started this account before she was elected to Congress and uses this account to discuss political issues, her legislative agenda, and bills she has introduced. This case is analogous to a Tenth Circuit decision from January finding no state action in blocking people from an account started during an initial campaign and containing more campaign-related material than office-related.

The court did a few things I believe are incorrect and problematic along the way and may confound these cases going forward, even if the result is probably correct.

First, Domenico went on a brief discursive about why there might not be a cause of action, citing Ziglar v. Abbasi and noting the recent retrenchment of Bivens, although he does not resolve that issue because Boebert did not raise the issue. This is wrong. In shrinking Bivens actions for damages, the Court has never suggested that it also wished to shrink Ex Parte Young actions against federal officials. In fact, Ziglar recognized the availability of injunctive relief, despite the absence of an express cause of action authorizing injunctive relief, as a special factor counseling against recognizing the Bivens claim. He rejects the plaintiff's assumption that the court's equitable powers provide the cause of action because "equity follows the law." But that ignores SCOTUS' statement in Armstrong: "The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England." Not sure what Domenico is aiming at, but that is a pretty clear statement that equitable actions are not the same as Bivens actions and do not require an express right of action.

Second, Domenico adopts a very cribbed understanding of the official actions of legislators. As he puts it, "legislators legislate. Their state-created powers are to propose legislation and to voteand little else." Later he says that "Individual legislators do not have the constitutional power to either make law or abridge speech, and thus their individual actions are not within the First Amendment’s coverage." But legislators do a lot more as part of their jobs. One thing they do is communicate with their constituents. If an individual legislator held a press conference, gave a speech, or convened a constituent town hall and excluded certain people from the event because of their viewpoints, that legislator acts under color and could be subject to a First Amendment suit. I have never heard anyone question this. This is the social-media version of that. It may be, as the court later says, that it is impossible to distinguish a legislator's statement as legislator from her statements as candidate for reelection. But that is different from saying a legislator's public statements are never under color of law.

It seems to me Domenico conflates legislative functions (proposing and voting on legislation) and official functions performed by a legislator, such as public communications. The latter are covered by legislative, or Speech-or-Debate, immunity, while the former are not. But the under-color question is supposed to be whether the defendant's conduct was made possible by his public position and authority. Legislators can do a lot more than purely legislative functions as a result of their office, some of which could violate the First Amendment. Domenico tries to reframe the question as authority to act on behalf of the state, but that has never been the standard. Domenico relies on West v. Atkins, which was about when private individuals are under color, a different inquiry.

Third, Domenico argues that the First Amendment says "Congress" shall make no law, which means "Congress, not its individual members, commands the federal government, and it is that body that the First Amendment sought to constrain." But the First Amendment has not been limited to formal legislative enactments. This would mean that the First Amendment does not "constrain" an executive officer (e.g., an FBI agent) from arresting someone because he did not like the person's speech or because of his religious views. I presume Domenico did not mean to say that.

Fourth, Domenico's approach draws a sharp line between legislative and executive officials. Because the executive's actions have practical legal effects that an individual legislator's actions do not, the former act under color in running their Twitter feeds in ways the latter do not. The factors that governed in Trump and Davison (content, appearance to the public, ways of operating the feed) are irrelevant to legislators. Again, that works if the standard is whether an official's actions "bind" the government as policy; it does not work if the question is (as it should be) whether the actions are "made possible" by the official position, because legislators do a lot of things made possible by their positions.

Again, I am not sure Domenico did not reach the correct result, because the Davison/Trump factors make this look like a private rather than official feed. But his analysis misses the mark in many ways that would have bad and far-reaching effects on the First Amendment and constitutional litigation.

Posted by Howard Wasserman on June 29, 2021 at 06:58 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, June 25, 2021

Thoughts on Mahanoy

SCOTUS decided Mahanoy Area Sch. Dist. v. B.L. on Wednesday. Justice Breyer wrote for eight, holding that the school violated the plaintiff's First Amendment rights in suspending her from the J.V. cheerleading team. Justice Alito concurred for Justice Gorsuch. Justice Thomas dissented, unsurprisingly. Some thoughts after the jump.

• Kudos to Justice Breyer for using the word "fuck" in describing B.L.'s messages rather than expurgating, saying "F-word," or using some stupid euphemism.

• The Court rejected the Third Circuit's approach creating a three-tier structure: 1) In-school speech subject to Tinker; 2) out-of-school speech potentially regulated by the school under ordinary First Amendment standards; 3) out-of-school speech beyond the school's regulatory power. Instead, it is two tiers: Tinker is the standard whenever schools have the authority to regulate speech, in or out of school, while some speech may be beyond the school's power to regulate.

Because of that rejection, the school district framed this as a victory, as "vindication of schools’ authority to protect students and staff and to fulfill schools’ educational missions." Sure, it owes Brandi Levy $ 1. But the school sees this decision as endorsing its power to regulate a good deal of student speech, perhaps more speech than Breyer believed he was allowing in writing the opinion. This framing shows that we can expect much litigation in the coming years over attempts to punish out-of-school speech, especially online. Many district courts adopted a more capacious understanding of disruption than Breyer suggests.

The school did not mention that it also owes the ACLU substantial (liekly upwards of $ 750,000, given three layers of review) in attorney's fees. Uzuegbunam, which held that a claim for nominal damages avoids mootness, may prove to be the most significant case of the Term. Brandi Levy just finished her freshman year of college; if nominal damages were not sufficient to keep a case alive, this whole thing would have been moot.

• The Court identified three principles off-campus speech that usually, but not always, place it beyond the school's regulatory power: 1) The school is not in loco parentis; 2) Schools have a heavy burden to justify regulating speech outside of school or a school program or activity, lest students be left with no opportunity to speak; 3) Schools should respect, rather than restrict, student's efforts to express unpopular ideas. As a result, "the leeway the First Amendment grants to schools in light of their special characteristics is diminished."

The Court emphasized that the speech was otherwise constitutionally protected and entirely outside of school, so the school was not I/L/P; that there was no evidence of disruption; and that negativity and undermining team morale are not sufficient disruptions. Breyer closes with an acknowledgement that this was a teen's snap of a profanity and a vulgar gesture, "but sometimes it is necessary to protect the super-fluous in order to preserve the necessary."

• Justice Alito's concurrence attempted to reframe the majority. It staked out a more speech-protective approach in several ways (surprising, given the source).

    • Alito said he could not see this applying to college students, given their age, independence, and living arrangements. Their has been a split about whether and when Tinker applies to colleges; the better answer is it should not apply. It was good to see someone make it explicit.

    • Alito attempted to create a taxonomy of student speech. On one end is off-campus extensions school programs and activities. At the other is speech "not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern;" this lies beyond the school's reach, even if offensive, because Tinker does not create a heckler's veto under which offensiveness equals disruption equals power to regulate. In the middle is off-campus speech that disrupts the school, such as threats, bullying, and harassment (however difficult to define). B.L.'s snap was about the school but did not criticize or deride individuals, and it did not disrupt the school beyond affecting team morale.

• Alito being Alito, it is hard not to look for an ulterior motive. He emphasizes the school's power being grounded on ILP and the limits on ILP from parents' primary control over the children. Might that be used to expand the right of parents to opt their children out from assignments and programs they deem objectionable?

Posted by Howard Wasserman on June 25, 2021 at 10:06 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, June 08, 2021

Speech and blame-shifting

There is a high burden to holding speakers liable for misconduct by others--absent some agreement or conspiracy, there must be intent that listeners engage in unlawful conduct and temporal imminence between the speech and the unlawful conduct. In part this is about freeing speakers to use rhetorical hyperbole and to be "vehement, caustic, and sometimes unpleasantly sharp." It also frees speakers to speak without fearing liability because of the actions of the lowest-common-denominator listener. And it places the blame on those who engage in misconduct--where it belongs--and removes (or at least limits) the option of excusing action by blaming the speech one heard.

We saw this in efforts in the '80s and '90s to regulate pornography on the ground that it conveyed messagess about sex and women, signaled to viewers that it was ok to sexually assault women, and even planted ideas in viewers about whether and how to engage in sexual assault. The arguments against those efforts raised this LCD issue--we do not set legal rules for the LCD (even in those areas without the shadow of the First Amendment) and we should not give those who engage in unlawful actions an excuse for those actions. More recently, we saw this in litigation against activist DeRay Mckesson attempting to hold him liable for negligence arising from violent actions by an unknown person during an anti-police-violence demonstration that Mckesson organized.

I am reminded of this in stories about Capitol Insurrection defendants (here is the latest) attempting to excuse themselves from pre-trial confinement and (presumably) ultimate conviction by insisting they were duped or manipulated by the speech of Q-Anon, Donald Trump, NewsMax, and a host of other speakers and platforms spreading lies about the election and the opportunity to rise above "his ordinary life to an exalted status with an honorable goal." They were helpless against the onslaught of lies, but their eyes are now open, thus they no longer are a threat to the public and not bad people who did bad acts deserving of punishment.

"The devil made me do it" is too pat. Even if one accepts (as I do not) that Brandenburg's requirements are too high and that it should be easier to impose liability on speakers, I think we can agree that the person whose actions cause an injury is more culpable than the speaker and should not be able to use bad speech and bad speakers to excuse or reduce the consequences of his misdeeds.

Posted by Howard Wasserman on June 8, 2021 at 10:57 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, May 30, 2021

Standing for (a challenge to) the national anthem or Standing up to zombie laws

There is a potential problem surrounding challenges to Texas' new law requiring the national anthem be played before all professional sporting events that receive state or local funds: While the law is a zombie, there may he problems challenging its validity in court.

No Texas-based professional sports team (there are 13) has indicated that it does not want to play the anthem. This kerfuffle began in February because the Mavericks did not play the anthem before pandemic games in empty arenas, but the team resumed playing it mid-season once everyone freaked out and once fans returned to the venue. That means no one will want to litigate the issue because no one will object to the legal requirement that they do something they intended to do.

Alternatively, if a team that did not intend to not play the anthem brought a lawsuit, it would be dismissed for lack of standing. The team could not show an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute. The team does not suffer an injury-in-fact if it does not wish to engage in the conduct (not playing the anthem) regulated by the law.

Moreover, no team appears to have a choice, because every league requires its teams to play the anthem. That again means no injury because the team is not able to engage in the constitutionally protected conduct. It also means no traceability and no redressability. The obligation to play the anthem, even against the team's wishes, comes from the league, not the Texas law; the team would be obligated to play the anthem if the law did not exist and an injunction prohibiting enforcement of the law would not allow the team to play the anthem.

The opening may be that the law is not written as a regulation ("all teams must play the anthem"). It imposes a contractual obligation--all contracts under which teams would receive public funds must include a provision in which the team promises to play the anthem and a provision stating that failure to play the anthem constitutes a default, subjects the team to a penalty, and may bar the team from future public contracting. A team thus could establish standing based on the injury of having to make the promise to play the anthem as a condition of receiving public funds, even if it intends to (or must, per league rules) play the anthem. Having to make the contractual promise violates the First Amendment and injures the team, even if it intends to comply.

I hope the latter is the case. Otherwise, the state could enact performative zombie legislation aimed at a non-existent problem and immunize that legislation from challenge because there is no actual problem. Meanwhile, state officials would point to teams playing the anthem and say "see, our law worked and we are protecting your interests and the interests of America."

Posted by Howard Wasserman on May 30, 2021 at 12:02 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, May 29, 2021

State action and free speech at Yankee Stadium

Bbf29345cc669fc1d263a670ebc12445-1Two fans at Thursday's game at Yankee Stadium were ejected from Yankee Stadium after hanging this banner from the mezzanine, to a chorus of verbal and nonverbal counterspeech. The men were removed for the stadium, but not arrested and allowed to keep the sign.

Newsmax finds this an affront to the First Amendment. First Amendment Twitter (literally, an account run by the First Amendment itself) says "I protect you from the government, not from the Yankees." Much as I hate to agree with anything appearing on Newsmax, it is not as simple as the First Amendment and its responders make it sound.

At old Yankee Stadium (1923-2008, as renovated in 1976), this would be an obvious First Amendment case. The old Stadium was owned by New York City and leased to the Yankees for exclusive use on highly favorable terms. Plus, security was provided by off-duty New York police officers pursuant to a departmental program.

The NYCLU brought a lawsuit in 2009 on behalf of two fans who were ejected for refusing to stand in place when God Bless America was played during the Seventh-Inning Stretch. There were strong arguments that the Yankees--by virtue of their exclusive and beneficial use of publicly owned property and the involvement of off-duty officers in enforcing team policy--acted under color because of a "symbiotic relationship" with the city. A district court accepted it as to MLB in 1978 in holding that MLB violated the First Amendment by excluding female reporters from the locker room during the 1976 World Series  at the newly reopened Stadium. There also was an argument that the Yankees and the NYPD "jointly participated" in the alleged constitutional violation, because the Yankees used detailed officers to enforce their policies. The 2009 suit settled, with the Yankees taking a judgment for $ 10,001 and attorney's fees of $ 12,000.

The current stadium is owned by the New York City Economic Development Corporation (NYCEDC), a not-for-profit entity that is not a city agency. Its governing board has 27 members--7 appointed by the mayor at his discretion, 10 appointed by the mayor from nominees from the Borough Presidents and Speaker of the City Council, 10 appointed by the chair from a list approved by the mayor. The park cost about $ 2.3 billion, $ 1.1 in public money, and about $ 670 million from the team. I do not know the terms of the lease between the NYCEDC or the Yankees and whether they are as favorable as the terms of the lease with NYC on the old Stadium--although I cannot imagine the team gets less from this stadium than from the previous. I also do not know if security is provided through the NYPD program--pictures in the linked stories show people in uniform speaking with the banner holders.

There is a good argument that NYCEDC, given the manner in which its members are appointed, acts under color under Brentwood's entwinement test. But the Yankees, not NYCEDC, make and enforce these policies. The question is whether a private entity can have a symbiotic relationship with a public-private entity--do the Yankees act under color because they have a symbiotic relationship with an entity that itself acts under color because of its entwinement with the government? Alternatively, the plaintiffs might try to show symbiotic relationship from its exclusive use of a facility that was paid for largely with public funds, regardless of who holds title to the facility. A third option is carrying the joint-participation argument from the old Stadium, depending on whether the team has the same security arrangement with the NYPD.

If the bannermen can establish state action, do they have a First Amendment claim? Team policy requires that banners be "baseball-related, in good taste," not affixed to the stadium in any manner, and not obstruct anyone's view. The question is whether they were ejected for  displaying a banner in an improper manner or because of the content of the banner. I also would argue that the "baseball-related" limitation is invalid, given the broad scope of  the "cheering speech" fans engage in and (much as sports like to deny it) the historic link between social/political issues and sports. Fans can orally chant non-baseball-related stuff during the game, including that "Trump one." It should follow that a non-obstructive and non-affixed non-baseball related banner should be permissible.

Two last points. First, this should not be seen as the camel's nose for arguments that YouTube/Twitter/Facebook act under color; the connection to government is not bad. Second, I believe we can agree that Newsmax would be covering this story differently had the banner read "1/6 Commission Now" or "Trump Should Be Prosecuted."

Posted by Howard Wasserman on May 29, 2021 at 04:48 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, May 27, 2021

Even First Amendment violations are bigger in Texas

Texas must have been jealous that Florida was getting all the attention for enacting laws that violate the First Amendment to an extraordinary degree. Especially after it failed  to pass its social-media bill, to the consternation of Lt. Governor Dan Patrick.

Fortunately, the legislature did find a way to trample the First Amendment. The House passed the Star Spangled Banner Act (previously passed by the Senate and sure to be signed by the governor, again in response to Paxton's demagoguery), requiring that all contracts for services between professional sports teams and state and local entities that provides public funds include a promise to play the national anthem at the start of every event. It takes effect on September 1, although if history is any guide, a lawsuit will be filed next week.

Give Texas credit. There are plausible visions of free speech that might accept government compelling social-media sites to accept all speakers or to limit their power to bar speakers, given their role as forums for expression. I do not share the vision, but it is plausible. There is no plausible universe, barring SCOTUS overruling three or four precedents, under which the state can condition funds on private entities performing mandatory patriotic rituals.

Posted by Howard Wasserman on May 27, 2021 at 05:54 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)