PrawfsBlawg

More graduation free speech nonsense

Popehat calls out BU President Robert A. Brown for a lack of commitment to free speech dressed in cancel-culture/free-speech-warrior bullshit. I wish I could say it any better than he did.

CUNY Law graduation: Everyone screws up a free speech problem (Updated)

I missed this story from two weeks ago, although the latest fallout continued yesterday. The student-chosen student speaker at CUNY Law's May 12 graduation, Fatima Mousa Mohammed, took aim at Israel and many other targets. People have responded in expected ways. Also as expected, no one covers themselves in free-speech glory.

• The three minutes drawing the most attention can be found here--Mohammed refers to "Israeli settler colonialism;" accuses Israel of, essentially, war crimes; accuses CUNY of supporting various evil causes; and praises CUNY Law (students and faculty) for supporting BDS. She later urges fights "against capitalism, racism, imperialism and Zionism around the world." Nothing in this speech falls outside of First Amendment protection and I presume school administrators either read and approved the speech or imposed no limits on its content.

• Which parts of the speech cross into antisemitism? For me, the obvious point is when she singles Zionism out as a unique evil to fight, distinct from racism and imperialism; if Zionism means the existence of a Jewish state (irrespective of Israel's current government and policies), that statement singles out Jews as a unique group not entitled to a homeland. Many people consider BDS antisemitic for similar reasons--it singles out Israel, and thus Jewish citizens and businesses, from all other wrongdoer governments. As for the rest, "Israeli settler colonialism" reflects her characterization of Israeli actions and policies; I disagree with the characterization and doubt the truth of much of what she describes. But does that (and can that) reflect protest of the Israeli government without crossing into Jew hatred? I leave comments open, because I confess that I remain unable to tell the difference in the gray areas.

• It appears students, including Jewish, support her and her words. CUNY's Jewish Law Students Association issued a statement (co-signed by Students for Justice in Palestine and other student groups) condemning Zionism as inherently racist and imperialist and condemning outside critics lobbing "absurd and false claims of antisemitism" against the "wishes of the majority of CUNY Law’s Jewish students." To be sure, CUNY Law's student body does not reflect a typical audience, including of American Jews. And query whether either group speaks, as the letter claims, for the majority of Jewish law students.

• What should objecting audience members--particularly graduates--have done in response to the speech? Should it be permissible to boo, jeer, heckle, etc. and up to what point? (Mohammed pauses at points because of audience cheers, so audience reaction obviously is fair game). Should they have walked out, thus missing a singular event in their lives? Recall that the anti-cancel-culture folks insist that either  is inconsistent with a commitment to free speech, which requires that people hear speakers, even without the opportunity to respond, so conversations can happen another day.

• Critics' reactions demonstrate, again, why few people truly believe in free speech as a principle, regardless of their rhetoric. CUNY's Chancellor and Board issued a statement yesterday that begins with this gem:

Free speech is precious, but often messy, and is vital to the foundation of higher education. Hate speech, however, should not be confused with free speech and has no place on our campuses or in our city, our state or our nation.

Ah, yes, "we believe in free speech, except when we don't like that speech." Since hate speech does not fall outside free speech protection, this is an inane statement. Worse, it is too generic. The problem with the speech, if any, is its antisemitism. So to call it hate speech--without identifying the particular racial/religious group attacked and without criticizing Mohammed for that specific form of hatred--shows the Board's unwillingness to specify and call out antisemitism (if that is what they believe this was) by name when it sees it.

Similarly, Republican legislators give lie to their supposed free-speech commitments by calling for CUNY to lose federal funding because students engage in constitutionally protected speech and the public university does not prevent them from doing so. I await Rep. Lawler's support as anti-LGBTQ+ forces emerge on campuses.

• What is the point of a graduation speech? Free speech aside, did Mohammed overstep by making the event about herself and her causes rather than those of her classmates? Students seemed to support her and must have suspected what she might do when they selected her. Mohammed framed a students v. administration narrative (all the things students achieved in the area of social justice, in the face of administration opposition); she thus likely viewed herself as speaking for, and reflecting the causes of, her classmates. But should this type of speech avoid controversy in its nature, in deference to the least-supportive member of the graduating class for whom this represents an important day and milestone?

Update: FIRE sent a letter to the chancellor pointing out the stupidity of "hate speech is not free speech." The letter then explains why CUNY, as a state institution, cannot punish Mohammed for her speech. This seems an odd tack, however, because I did not read the Board statement as threatening any sanctions against Mohammed.* I read the statement as a poorly written attempt to criticize Mohammed and to get on the right side of public officials (Rep. Lawler, NYC Mayor Eric Adams) criticizing Mohammed. In other words, CUNY engaged in government counterspeech., which I hope we agree is consistent with the First Amendment.

[*] Query what sanctions it could impose if it wanted to. I doubt CUNY could withhold her degree at this point, although I guess there is a nice question of when the property interest in the degree vests--when diploma is in hand, when the President completes the ceremony and allows the graduates to move their tassels? It could try to interfere with her Bar admission, although that is not CUNY's decision.

Law meets entertainment news

A fun confluence. In April, a divided Ninth Circuit panel held that a state law limiting honking of car horns to warnings did not violate the First Amendment as applied to a person honking in support of a political protest. The court declined rehearing last week.

The issue, and thus the decision, has merged with the day's leading pop-culture story--the WGA strike. Burbank police have placed signs near Disney and Warner Bros. studies announcing that "excessive horn use" violates the vehicle code, in response to neighbor complaints about passing drivers honking in support of picketing writers. Applying the law in this context illustrates why Judge Berzon's dissent had it right. In this context, the government interest is less traffic safety than noise--and there is no difference in the noise from car horns as from the other noisemaking associated with the pickets.

Thick-skinned judges

From Judge Joshua Wolson (E.D. Pa., with whom I clerked on that court), dismissing a lawsuit by a state judge against the Daily Beast for describing her as "QAnon-linked:"

Being a Judge is a great job. But it comes with downsides. What we do, we do in public, and we subject ourselves to public discussion and criticism of our decisions, both fair and unfair. Federalist No. 78 noted the importance of Judges being independent of the “effects of those ill humors, which are the arts of designing men, or the influence of particular conjunctures [that] sometimes disseminate among the people themselves.” The Federalist No. 78 (Alexander Hamilton). That remains just as true today as it was in the 18th Century. Being a judge requires a thick skin and a willingness to make decisions in the face of criticism, even unfair criticism, and to remember that sticks and stones may break my bones, but names can never hurt me.

That view of judges needing thick skin and the ability to handle even unfair criticism and continuing to do the job departs from the attitude expressed by Justice Alito, Judge Duncan, Judge Ho, and others, demanding sanction for or defense against their critics. Is it easy to say this when discussing another judge reacting to criticism (in rejecting that other judge's efforts to silence those criticism) than when handling unfair criticism directed at oneself? (Note that I am not attributing that position to Judge Wolson or suggesting he would react differently to criticism targeting him).

Dodgers reinvite Sisters (Update)

The Dodgers have reversed course and reinvited the Sisters of Perpetual Indulgence to the team's June Pride Night, after other LGTBQ+ groups threatened to pull out of the event. As far as I can tell, FIRE never said a word.

Update: The LA Times' LS Granderson has thoughts (may be paywalled), as does the Catholic League.

More on FIRE

I hope I am premature in my anticipatory criticism of FIRE; time will tell. I follow FIRE's statements pretty closely and will update (and eat crow) if it says anything. But two further points:

1) FIRE recently changed its name from Foundation for Individual Rights in Education to "Foundation for Individual Rights and Expression." This does not strike me as mission creep; this represents an intentional branching and rebranding beyond the educational context. As I understand it, FIRE and its supporters believe the ACLU has wavered in its commitment to free expression in the face of contrary commitments to equality and The Trump Resistance; they see themselves filling the gap in protecting free speech throughout society. So this is, in fact, something on which they might weigh in.

2) FIRE's Twitter thread on the Chappelle story reveals not-happiness with the comedy club's choice--dropping everyone's favorite word and wondering whether the club would have "canceled Prince because Tipper Gore and the PMRC didn’t like ‘Darling Nikki’." That is, the thread takes the club to task for "canceling" a speaker in deference to lefty critics, where it would not have done the same to conservative critics of a lefty icon such as Prince. (The answer is probably not. But private actors get to make such choices and distinctions in the name of their expressive preferences).

But if it is wrong as a matter of a "culture of free speech" (their words) to reject Chappelle but include Prince--as FIRE clearly believes--it is wrong to criticize the club for rejecting Chappelle while ignoring the Dodgers rejecting Sisters of Perpetual Indulgence. FIRE might argue that a comedy club, as an "artistic and culture venue[]," carries a unique mission. That seems a thin reed, putting aside that sports teams and stadiums should qualify as "culture venues" that draw a lot more people than comedy clubs.

Some kind of culture

So: A large organization plans to host and honor a particular group. People, including political leaders, object to the honoree's expression and call for the large organization to disinvite the honoree because they object to, and find offensive, that expression. The large organization disinvites the honoree.

According to FIRE and others, this is bad--cancel culture and hecklers' vetoes and woke-mob-hive-mind silencing, oh my. They deem it bad when a Minneapolis comedy club canceled Dave Chappelle shows. They deem it bad when students shout down campus speakers. They deem it bad when colleges disinvite commencement speakers.

The Dodgers announced they had removed the Sisters of Perpetual Indulgence from its Pride Night event, scheduled for June. The group describes itself as a "'performance, charity, and protest group that features drag as well as queer and trans nuns that “promote human rights, respect for diversity, and spiritual enlightenment.'” Marco Rubio,* Fox News, and the Catholic News Agency describe it as "an anti-Catholic hate group which exists to desecrate and degrade the Catholic faith" furthers "modern, secular, and indeed anti-religious 'values.'" (Note the scare quotes).

[*] Who insists faith in God is at the "heart" of our Nation's values, which might be news to those who drafted the constitutional provision excluding religion as a qualification for public office, to say nothing of the First Amendment.

Of course, the protesters in those other, censorious "cancellations" directed similar criticisms towards the targeted speakers--Dave Chappelle or Ann Coulter degrade the humanity of LGBTQ+ people. Yet Rubio, Fox, and their fellow travelers scream about wokeism gone wild destroying free expression when anyone seeks to exclude them from any space.

I do not expect consistency from Fox News or Marco Rubio; their reactions provide further evidence that their support for free speech ends where their agreement with the speaker ends. FIRE, on the other hand, purports to support free speech as a principle and touts its willingness to protect speech (and criticize supposed censors) from both sides. It often gets lumped in with conservative free-speech opportunists, which is mostly unfair.  While I believe FIRE sees too much equivalency left-wing law students' obnoxious and disruptive noise and right-wing government's legal speech restrictions, it genuinely treats similar speech restrictions by both sides in a similar way.

This becomes something of a test. If a comedy club disinviting Dave Chappelle because of his (offensive-to-some) expression is a free speech problem drawing concerns from FIRE and other free-speech proponents, then the Dodgers disinviting the Sisters because of their (offensive-to-some) expression is a free speech problem drawing concerns from FIRE and other free-speech proponents.

Backlash and the preferred first speaker

Fred Wellman's On Democracy podcast hosted Kevin Kruse (Princeton) to talk about his new book of essays, Myth America: Historians Take on the Biggest Legends and Lies About Our Past (2023). Later in the conversation, Kruse argues that we should not speak about "backlash" to social movements (race in the '60s or '70s or LGBTQ+ today). Backlash suggests a natural and inevitable force that blames the movement for the reaction--by pushing for its rights, Group A caused pushback. Rather, we must see the counter-movement as a similar, conscious, organized social movement that pursues a different, conflicting agenda. That is, the current wave of anti-LGBTQ+ legislation is not a "backlash" to those who pursued an agenda favorable to LGBTQ+ rights, something that just happened as a Newtonian reaction; it is a conscious choice by certain people to pursue an agenda unfavorable to LGBTQ+ rights. Perhaps the anti-LGBTQ+ movement only appeared because the pro movement appeared and enjoyed success; before that, they never thought or cared about LGTBTQ+ people. But that should not remove the intentionality and choice inherent in the anti-actions--they do not want LGBTQ+ people to have certain rights and they chose to pursue that agenda. Nor should it be framed as a "lesson" to the LGBTQ+ movement, showing why they should not have pushed for their rights in the first instance.

I am trying to figure out how this reframing fits within the preferred first speaker concept. I think they share a conceptualization--both "sides" in any situation share equal footing. One does not enjoy a superior right, each pursues a conscious and intentional agenda, and we should not understand one as causing the other.

Working through that.

Florida drops one effort to destroy the First Amendment

The Florida bill to overhaul defamation law, set up a challenge to New York Times, and allow public officials to sue critics into oblivion is dead, at least for now. (H/T: Volokh). A cynic (including my co-author) would say that some Republicans figured out that the changes were more likely to hurt conservative media. I think they could not get their shit together and it will return next year.

Harry Belafonte and the First Amendment

Harry Belafonte died Tuesday, at the age of 96. Belafonte was one of the celebrity signatories to Heed Their Rising Voices, the editorial advertisement seeking support for MLK and the civil rights movement that gave rise to New York Times v. Sullivan.

Social media and state action

The court granted cert in a case from the Ninth Circuit (finding state action) and a case from the Sixth Circuit (finding no state action and taking a very different analytical approach).

Beyond the conclusion, I am concerned for how the Court approaches this. Some lower courts apply a "close nexus" test, which usually applies to purely private actors engaging in private conduct having some government connection or requirement. The analysis here should be different, where the defendant is a government employee/official and the question is whether that official status enabled his conduct. These cases should look more like rogue or off-duty cops, as opposed to labor unions collecting fees through a government-controlled process. It is a subtle difference, but it is more than semantic.

On the other hand, dammit--the publisher said no substantive changes on these edits.

No standing even if you say obnoxious things

I forgot about the Connecticut attorney challenging a state law prohibiting ridiculing or holding people or groups up to contempt on account of creed, religion, color, and other characteristics. I wrote about the lawsuit 18 months ago, doubting standing based on his private practices of sharing Dave Chapelle videos and making fun of his Italian-American friends. The district court agreed that he faces no credible threat of prosecution, although only after the Connecticut Supreme Court answered a certified question that the statute does not cover private non-commercial conduct.

Viewpoint discrimination in synagogue protests (Updated)

I have written the past couple years about ongoing anti-Israel (drifting many descending into blatant anti-Semitic) protests outside an Ann Arbor synagogue. Several congregation members brought a tort claim against the protesters. The claim (rightfully) failed in the Sixth Circuit. Ronald Lewin, a veteran religious-liberty litigator, sought cert, arguing that protest (at least the sort of obnoxious protests at issue here) should be prohibited outside houses of worship, as obnoxious protests are prohibited outside reproductive-health facilities. SCOTUS denied cert.

But then we have this story-- a gay Orthodox Jew has protested outside a Florida Orthodox shul every Shabbat and holy day, after the rabbi asked him and husband not to return because homosexuality violates Jewish law. I cannot identify a more appropriate place for this protest, showing the problem with Lewin's categorical bar. And if this protest is ok, we encounter obvious and egregious content (if not viewpoint) discrimination.

Update: An Ann Arbor resident suggests I understated the anti-Semitic nature of some of the protesters and signs (such as "Jewish power corrupts"), so I amended my language accordingly.

Fox and Dominion settle

For $ 787.5 million, just on the Fox side of meeting halfway. Unsurprising.

Settling the typical defamation is problematic from a First Amendment standpoint--the court loses an opportunity to declare First Amendment values and the prospect of that even a nuisance settlement (which partisans will pitch as more, see Nicholas Sandmann) will incentivize new suits. Dominion was the rare case in which the plaintiff had a genuine chance to win and the evidence from the summary judgment record showed genuine wrongdoing by the media outlet. The settlement thus deprives the public of insight into the Fox News' problematic operations. And Fox News and others retain incentives to do this all over again.

FIRE adopts preferred first speaker

According to FIRE Executive VP Nico Perrino, in an op-ed endorsed by the Chief of the LAPD. Here is the central basis for the claim:

Protesters have every right to engage in peaceful, nondisruptive protest. But they do not have the right to take over someone else’s event and make it their own. This is a basic point, and we understand it in almost every other context. Nobody argues that you have a free speech right to stand up during a Broadway musical and sing along with the actors or to scream at a public library book reading.

Just because the public is invited to attend an event — and sometimes to speak during a Q&A period — does not make it the public’s event to disrupt or transform as it pleases. Your distaste for a speaker doesn’t grant you a right to prevent a willing audience from listening to that speaker.

There must be places in a free and pluralistic society where groups can freely associate and share ideas without first seeking approval from a crowd of hecklers. Colleges are such spaces. It’s the very reason they exist.

The first speaker has full First amendment rights and can say or not say what he wants. Counter-speech is proscribed--peaceful (must all speech be "peaceful') and not interfering with the first speaker (who presumably can speak over the counter-speaker). Maybe the counter-speaker has a right to speak during Q&A. But the first speaker controls who gets to speak in that window and presumably can ignore any counter-speaker or any audience member who wants to challenge what he says.

Perrino works off the paradigm of the Judge Duncan/Stanford debacle--invited speaker in a reserved speaking space on a college campus with an audience space that likely is a non-public forum.I see three big problems with Perrino's argument. But he draws from that paradigm a general principle: counter-speaking to and over a speaker in the moment is not protected speech.

I see several problems with that focus and that conclusion.

 

1) Perrino may be broadly right about that paradigm. He tries to bolster the point that "[n]obody argues that you have a free speech right to stand up during a Broadway musical and sing along with the actors," bolstered by a recent story about audience members singing "I Will Always Love You" during the finale of the show The Bodyguard.

Rather than "heckling is never protected speech," a better framing is "heckling is protected speech, but it yields to content-neutral rules in a forum." This may seem semantic, but semantics matter. A rock concert is protected speech, although it may have to follow neutral noise regulations; driving around town playing music and speaking through a speaker is protected speech, although it may yield to neutral noise regulations. If heckling is never free speech,  it remains unprotected when the forum-and its rules and expectations--changes. While the audience should not sing along at a musical, the audience does (and the performers expect the audience to) sing along at a rock concert in the same theatre. Cheering speech at a soccer match looks different than cheering speech at golf tournament.

2) The premise that "heckling is never protected speech" affects what counter-speakers must do and the form of counter-speech FIRE's solution is the alternative program--find a room elsewhere and express your ideas to a separate audience. But that is not counter-speech or protest, as it does not allow counter-speakers to be heard by, respond to, or protest their target.

Counter-speakers could instead take to a nearby public forum (e.g., a public campus space near the building containing the reserved space) and protest there. But Perrino's view forecloses that option. If heckling is never protected speech, then counter-protesters cannot heckle in a traditional public forum; the original rally or demonstration remains s "someone else's event" that counter-speakers "take over" (at least to the extent they are loud and can be heard). That traditional public forums allow for competing groups to be heard or that the rules account for "prolonged, raucous, boisterous demonstrations" does not appear to matter.

Worse, it carries to speakers and counter-speakers occupying the same public forum. Thus, counter-protesters on the of the U Va sidewalks cannot outnumber and outspeak the Proud Boys walking on the campus streets chanting "Jews will not replace us." Pro-equality protesters on the sidewalks around city hall cannot outnumber and outspeak the Klan or Nazis holding a rally on the steps. Students at FIU cannot outnumber and outspeak the bigoted "preacher" using the quad. This is an impoverished view of the role of counter-speech.

3) Perrino's analysis is incomplete within his reserved-classroom paradigm because he does not define "peaceful" or "nondisruptive." If peaceful means non-violent, the word does nothing--neither original nor counter speech can be violent. If peaceful means silent or nonverbal, that proves too much. Audience members can react out-loud to speech--booing, hissing--up to some undefined point of disruption. (Stanford Dean Jenny Martinez recognized this in her post-Duncan letter). No one has defined disruption--whether it means preventing the reserved event but does not include momentary reactions that cause the speaker to pause or delay but that do not undermine the event.

Positive non-silent reactions--applause, laughter, cheers, snaps--may cause the speaker to pause or delay; speakers build those delays into their speeches. If the forum rules prohibit non-silent reactions, they must prohibit positive and negative reactions. Otherwise, the rules cease to be viewpoint neutral, as required in a non-public forum.

4) Perrino doubled-down in a Twitter thread, arguing "[i]f you take over someone else's event, call it what it is: punishable civil disobedience, not free speech." On this point, I would recommend Jenny Carroll's (Alabama) forthcoming Yale L.J.  article arguing for a First Amendment civil-disobedience affirmative defense to crimes (e.g., trespassing) arising during protests; the idea is to allow juries to consider the expressive nature of the person's (prohibited) conduct and acquit accordingly. I wonder how the defense would apply in the context of a disruptive counter-protester.

5) That the police chief seized on the simplest version of Perrino's argument--based on the headline that Perrino may not have written--raises further red flags.

6) Perrino (and FIRE) overuse "heckler's veto." Perrino criticizes those who argue that hecking is "'more speech,' not an attempt to carry out a 'heckler’s veto' on the speaker." A heckler's veto occurs when government silences a speaker out of fear of the audience reaction to speech. It might extend to a complete prohibition on a speaker (e.g., the speaker must cancel the event) where government officials fail to enforce a forum's regulations against a hostile audience; Duncan could have become a heckler's veto had the students pushed further. Absent government action and the speaker being prevented from speaking, it is neither fair nor appropriate to call counter-speech a heckler's veto. This framing accepts and instantiates the preferred speaker. It assumes a  "first" speaker and gives him preferred status. It assumes that one speaker has priority, that anyone on the other side is a heckler rather than a speaker, and they censor, rather than counter-speaking or presenting competing ideas, censor. The Proud Boys at U Va have priority over their critics, their critics are not speakers, and their critics do something wrong by appearing in larger numbers and  uttering their message more forcefully.

7) I have made this point before. Under Perrino's argument, the pro-Ally/anti-Nazi patrons of Rick's engaged in a heckler's veto or acted as censors here. Or the rules of Rick's as a forum are different than the rules of a classroom at Stanford Law School. But the "heckling is not free speech" cannot stand as a blanket principle.

 

I plan to return to the preferred first speaker this summer, although I have been struggling to figure out how to approach the problem. This offers some organizational ideas.

Pico and public libraries

Judge Pitman (W.D. Tex.) ordered Llano County to return twelve books to the public library shelves and enjoined further book removals. The court said Pico applies with greater force to public school libraries, because schools receive uniquely great deference and public libraries are "designed for freewheeling inquiry." The county has appealed.

During law school, I interned at the American Library Association's Office of Intellectual Freedom. One of my tasks was drafting letters to library boards about limits on the power to remove stuff from the library because of disagreement with content (back then, we worried about internet filters). The letter was usually enough and we never litigated these cases. We are in new times.

District Court gets defensive/offensive right--standing still sucks

In 2021, I wrote about an Eighth Circuit case in a challenge to Arkansas' exclusive-private-enforcement ag-gag law. An animal-rights organization brought an offensive challenge to the law against several farm owners/potential plaintiffs. A divided court found the chilling effect of the law and the threat of suit established injury-in-fact for standing. I criticized this focus on standing, because the plaintiffs had no § 1983 cause of action against non-state actors; the court did not address that issue because it went to the merits and standing serves as a threshold.

The district court corrected that on remand. It granted defendant's motion to dismiss, concluding that the plaintiffs cannot satisfy § 1983 because the would-be state-law plaintiff does not act under color. The court further rejected plaintiff's argument that in finding an injury the court found state action. While the issues can be "one-and-the-same," the finding of a threshold does not necessarily satisfy the element. Nevertheless, that the plaintiff raised and thought the argument could work shows how far the law of standing has constitutionalized an essentially merits inquiry and needlessly complicated constitutional litigation.The court also explains offensive and defensive litigation and when only one is available--why state action allowing a defense does not equate with state action/under color allowing an offensive action, why every case plaintiff cites arose defensively and thus does not support the § 1983 argument it attempts to make, and why a Fourth Circuit offensive action against a state agency with state-law enforcement power does not support an offensive action against a private would-be plaintiff.

More thoughts on the ideological divide on free speech

Three stories and cases that illustrate the ideological/political divides over free speech.

• The trial court in Dominion v. Fox denied summary judgment for Fox; granted summary judgment for Dominion on falsity, defamation per se, factual, and certain affirmative defenses (such as neutral report); and denied summary judgment for Dominion on actual malice. So the case goes to trial, but Dominion has to prove only malice and damages; everything else is established. I have focused on (and taught about) the process in this case--how unusual it is for a plaintiff to get SJ on its claim absent burden shifting. Courts do not lightly relieve plaintiffs of their burden of persuasion at trial.

On the substance, the case illustrates the strangeness of the right-wing desire to overrule New York Times. Were Dominion required to prove  negligence by a preponderance, the only issue at trial would be how much money Fox must pay Dominion. Does Fox somehow think that legal change will not blow up on them and similar outlets?

• We have the first judgment declaring invalid the latest right-wing obsession--prohibiting drag. Judge Thomas Parker (WD Tenn.) declared the law invalid as content- (and perhaps viewpoint-) based and granted a TRO prohibiting enforcement. By its terms, the goes beyond the existing obscene-as-to-minors law by singling-out OATM speech by drag performers. And its history (a valid consideration under Reed) shows the state enacted the law after its sponsor tried (only partially successfully) to stop a drag show as a public nuisance. I expect many cases to come out the same way.

When we learned RAV (which at that point was about six years old) in law school, a classmate criticized the case's principle. A viewpoint-based obscenity prohibition, he argued, was impossible--a law could not, for example, prohibit Democratic obscenity while allowing Republican obscenity because that political focus gives the expression SLAPS value and thus makes it non-obscene. Tennessee (and other) Republicans obsessed with non-sexual drag have shown us how it is possible.

• George Mason invited (apparently without student consultation) Virginia Governor Glenn Youngkin to give its commencement address. Some students objected, based on the policies Youngkin has pursued--including anti-trans and anti-race-in-educationstuff that DeSantis has tried in Florida to greater fanfare. FIRE and others have responded by, unsurprisingly, treating student objections as efforts at censorship. GMU President Gregory Washington echoed the platitudes by saying "'I don’t believe that we should silence the voices of those with whom we disagree, especially in this forum where there is no imminent threat present as a result of the disagreements.'" Instead, it was important to "giv[e] Youngkin a platform so students can not only hear his perspective, but also so conversations about differences can ensue."

I think we have reached Peak Preferred First Speaker. Because the only way to understand students as "censors" is if the invited First Speaker has an absolute right to speak and all others bear nothing more than an obligation (legal, moral, ethical, civic) to shut-the-fuck-up and listen.

FIRE and others object to the withdrawal of the invitation. But the objecting students must urge disinvitation as opposed to noninvitation because the university invited Youngkin unilaterally, before students had an opportunity to object. Suppose the university held a plebiscite on whether to invite Youngkin and the students vetoed the choice. I expect that FIRE, President Washington, and others would react the same way--the students are improperly denying the Governor of Virginia a platform to speak. If so, this is not about disinviting--this is about obligating everyone  to allow any First Speaker to be invited without objection and to listen to his perspectives. Alternatively, I cannot see a meaningful difference between objecting before or after the invitor (university administration) acts.

Moreover, this case is worse than the Duncan case. One can argue that "civil discourse" compels objectors to listen to the First Speaker and engage him (always politely) during Q&A (I doubt the position because the First Speaker need not engage with any student). But accepting that with Duncan or other open-forum speakers, Youngkin will not do a Q&A at graduation. So students are obligated, in Washington's words, to sit and hear his (and only his) perspective and maybe"conversations about differences can ensue" at some other undefined moment in time. Because I am sure

The final problem here is that graduation is supposed to celebrate the students and their accomplishments. So the rule is "shut-up-and-listen even if it casts a pall over a significant accomplishment." Or the rule is "avert your eyes by skipping your graduation." Either seems to be less about some theory of civil discourse and more about a duty to listen to those with power.

Other projects (especially the work on SB8) have captured my attention for the past 18 months, directing me away from exploring the first-speaker issue. I need to circle back to that project soon.

Judge Duncan still does not get it

I was not at Judge Duncan's talk at Notre Dame last week, have not seen video, and have not read a transcript. I have only Bloomberg's with-a-gain-of-salt reporting. Whatever the sins of the most-disruptive Stanford students at Stanford, Duncan continues to recast the protest (and perhaps all criticism of him) as something other than the exercise of free speech the First Amendment envisions.

According to Bloomberg, the students acted wrongly because they "'staged a public shaming.'" Duncan had "harsh words for the Stanford protesters on Friday, saying they were there to 'heckle' and to 'shame.' 'Let’s say the quiet part out loud. The mob came to target me because they hated my work and my ideas,' said Duncan."

Yes, and? Heckling and responding negatively to a speaker is counter-speech. Public shaming is counter-speech. Targeting a government official for criticism because they hate his work and ideas is counter-speech. In fact, it seems to me exactly what people are supposed to do in response to a government official's disagreeable actions. Note Duncan's move here--criticizing his work and ideas, least in anything other than a polite conversation in which he is under no obligation (or inclination) to engage, is mob behavior. To criticize ideas is to censor those ideas.

Duncan continues to harp on "civil discourse" as the only form of appropriate discourse. But that encounters two problems. First, it ignores the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. (Maybe this is why conservatives are so hot to overrule New York Times). Civil discourse is perhaps an ideal; it is not the limit of the First Amendment. Second, Duncan concedes it appropriate to abandon civil discourse at times; writing in the WSJ, he justified his in-the-moment rudeness towards the students because sometimes anger is the appropriate response to “vicious behavior.” But that is a fancy way of saying "they started it." And, of course, the students would say he started it through a judicial decision rejecting, in dismissive tones, concerns about how the government addresses trans people. The students viewed that decision as an example of vicious governmental behavior, therefore, on Duncan's argument, anger should be the appropriate response.

Duncan is not talking to me or trying to convince me. But like many other "free-speech warriors," he cannot help but reveal the thinness of his actual support for free speech other than his or the speech he likes.

Still more on Stanford (Updated)

 Steve (welcome!) reports (with a copy of Dean Jenny Martinez's letter) on the for-the-moment resolution of the Stanford-Kyle Duncan debacle. A couple of points.

Martinez recognizes that some protesters--those who waved signs, those who snapped or hissed, those who asked provocative or even obnoxious questions--engaged in protected counter-speech for which they should not be punished. The letter also references a "non-disruptive level of audience reaction" as protected and appropriate in the forum, an important recognition of the gradations at work. Within the space reserved for a speaker event, it is not a simple binary between silently listen, display signs, and ask questions on the one hand and complete chaos on the other; oral counter-speech remains permissible prior to the point of disruption (wherever that begins). FWIW, Judge Duncan has not made similar distinctions; he expressed particular annoyance with the snapping.

As to my point about asymmetry: The President of West Texas A&M prohibited student organizations from putting on a drag show (scheduled for next Monday), calling it "derisive, divisive and demoralizing misogyny" and akin to blackface, and insisting that, despite the adult audience, drag shows cannot be harmless. The student group has sued and should win the TRO allowing them to hold the event. (Interestingly, the President recognizes that his decision violates the First Amendment but says he does not care). So again--obnoxious counter-speech v. formal state prohibition on student speech. Yes, there are counter-examples on both sides. But a trend is developing. Plus, I wonder how Judge Duncan--and his insistence that speakers be allowed to speak without interruption no matter how offensive the speech--would rule if he is on the Fifth Circuit panel for any appeal in that case.

Update: Popehat weighs in and again gets everything right.

How else are you supposed to do it?

Journalist Jason Garcia is upset that the Speaker of the Florida House acknowledged that the bill altering state defamation law is "intentionally unconstitutional" and designed to trigger litigation and provide SCOTUS an opportunity to overrule New York Times and other defamation precedent.

Put aside that "intentionally unconstitutional" should mean, at most, "unconstitutional as judicial precedent understands the First Amendment" and that a legislature can hold and act on competing constitutional understandings. But even at the most judicial supremacist, what else is a legislature supposed to do if it believes judicial precedent wrong and wants to challenge (and change) it? If a state cannot do what Florida is trying here,  judicial supremacy means the popular branches lack the power to disagree with the judicial understanding or to create mechanisms to express that disagreement and urge the court to change path. The Court's word is not only final but unchanging and irrevocable.

On why I think I am (mostly, generally) right

I appreciate Rick's response to my post on Stanford. I want to hit a few points.

• I said at the outset of my post that I vastly overgeneralized. To the extent I overstated the point or understated lefty's willingness to use state power to target speech, mea culpa. Yes, the left (often?) uses formal state power to suppress speech (and I oppose those efforts when they happen). But I stand by the point that in the current political-cultural narrative of "both sides suppress speech," the juxtaposition is young "social-justice warriors," often but not always on campus, making a lot of noise and complaining about "harmful" speech, compared with whoever Florida went after yesterday (the state is trying to strip the Miami Hyatt Regency of its liquor license over a drag show). I cannot think of a current Democratic-controlled state undertaking efforts mirroring what is happening in Republican-controlled states. Maybe campus speech codes? Maybe states using existing public-accommodations laws against expressive businesses? What else am I missing?

• I hope my post did not read as a defense of what the students or associate dean did; I am not sure I know enough to say. We might describe their conduct many ways--rude, obnoxious, unprofessional, counter-productive, many others. I do not believe we can describe it as falling outside of the First Amendment--especially the hostile signs and questions that created a nasty environment but did not prevent him from speaking. So I am troubled by the suggestion (to be clear, from Judges Ho and Branch, not from Rick) that the government should deny bar membership because of obnoxious-but-protected speech.

• I have read reports (yes, grain of salt and all that) that Judge Duncan was videoing protesters outside the building and the room and perhaps making negative comments to them (that is not clear). But it suggests that Duncan adopted an adversarial posture with people independent of the in-room disruption, people who I think we agree behaved in an appropriate manner towards a speaker this dislike. I admit I do not know how things would have gone had the protest remained silent or outside and he been able to give his prepared remarks and then respond to questions. I infer that his response to the question about the pronoun case would have gotten the same "read the opinion" response.

• Do we have a good sense of who did what among students in the room--who silently protested,* who asked questions,** who shouted and disrupted? And how does that affect how we evaluate the behavior of other audience members and of Judge Duncan. Video shows Duncan giving dismissive responses to some actual questions. Who asked those questions? If A acts like an idiot and interrupts, does that justify a non-response or dismissive response to a legitimate-if-challenging question from B, who did not join in the circus? In a mixed audience, how should we expect the speaker--especially a speaker who is an Article III judge--to engage with those who disagree  but attempt to engage?

[*] I believe silent, non-disruptive-if-distracting protest offers a fourth option to the three that Rick identifies.

[**] Can questions for an invited speaker be hostile? True, it may not be the best way to get a good answer. But does it fall outside expressive norms?

• At bottom, I think I come out that there is blame to go around here. It ought not fall on one side.

Asymmetrical Censorship

Conventional wisdom holds that "both sides" want to restrict speech and lack respect for the First Amendment and free speech values. But that "both sides" framing overlooks the mechanisms through which each side disrespects speech. Vastly overgeneralizing and we can find exceptions, but:

    • From the left, private persons or entities exercise some form of free speech to oppose or counter speech and speakers they do not like--shouting down speaker, banning speakers from social-media sites, boycotting speakers, etc. That is, what gets framed as "cancel culture," especially on college campuses. One can disagree with such tactics. And these tactics can run afoul of some neutral rules--such as the rules governing a forum. But we cannot deny that those exercising it are: 1) private persons and 2) exercising some form of their own expression, however stupid we might believe them to be.

    • From the right, officials use the power of the state to silence speakers--banning drag shows, making some classroom speech unlawful, threatening reprisal against speakers who criticize government officials, arresting protesters and journalists, overruling speech-protective precedent to make suing critics easier, etc.

It seems to me that one is worse, because one has many more formal and practical consequences. But the intense pull of "both sides" in national coverage requires that a sophomore at Oberlin is as great a threat as the governor of Florida (and wannabee president).

This dynamic appears in the fallout from the events at Judge Duncan's Stanford speech. Judge Ho (Fifth Circuit) and Judge Branch (Eleventh Circuit)--who previously threatened to stop hiring Yale grads as law clerks--argue in the National Review that disruptive students should suffer consequences, including denying bar admission on character-and-fitness grounds. So lefty Stanford students do not want  Judge Duncan to speak and wield practical actions (some of which are arguably their own form of free speech) to stop him. Righty judges respond by using the full force of the state to punish them for their speech. And everyone will treat them as equivalents.

Stanford, preferred first speakers, and the nonsense of "civil discourse"

Grading has denied me time to write about the Stanford debacle. I somewhat was waiting for Ken White to cover it, expecting that I would share his take--and I do.

I will add the following: This demonstrates why the "civil discourse" trope--students should not protest, they should sit quietly and politely listen to the speaker, then engage with the speaker in a "Platonic dialogue"--is and always has been bullshit. The speaker bears no obligation to engage with the questions. And Judge Duncan did not engage--including with actual, thoughtful (if pointed and hostile) questions. When someone asks the speaker about something he wrote (such as the opinion refusing to allow a prisoner to use his proper pronoun), "read what I wrote" is not engaging in civil discourse. And acting as if he was not on the panel is certainly not. That the questions and questioners were hostile does not excuse non-answers; it shows how those who censor speech use "politeness" and "civility" to silence counter-speech.

I like Ken's framing of the point: "The protesting students’ rights and interests are neither inferior to nor superior to the interests of the FedSoc and Judge Duncan. Policing the civility of the response to speech and not speech itself is incoherent nonsense. Put another way, if you say “fuck you” to your classmates, they may say “fuck you” back. If you set out to provoke a response, put on your big boy pants when you get one."

I also reject the framing of this as a "shouting down" issue. Yes, the protesting students prevented him from speaking, in violation of Stanford's forum policy. But if the students had done what the policy allows and urges--oral protests outside the building, silent protests through t-shirts and signs inside the room--Duncan would have responded the same way. He went to Stanford itching for a fight--not sure whether I buy the theory that he sought to raise his profile for a SCOTUS appointment--and would have been as dismissive and rude to silent protesters. No student should have the temerity to protest him--free speech means sit there and listen to what he has to say.

Chris Walker (now at Michigan) visited FIU this week. He shared that when he taught at The Ohio State University, Fed Soc invited a speaker from the ADF. OutLaw held a bake sale outside. The speaker bought something. That is not discourse. But it is effective protest.

Offended observer standing and the substance of the Establishment Clause

SCOTUS on Monday denied cert in an Establishment Clause case arising from a public vigil in Ocala, Florida. Justice Gorsuch agreed with the denial of cert while Justice Thomas dissented; both criticized "offended observer standing" in Establishment cases, repeating the themes in Gorsuch's concurring opinion (joined by Thomas) in American Legion.

I therefore re-up my 2019 post on why the Gorsuch/Thomas position eliminates pure Establishment Clause challenges to government religious expression and activities by eliminating any plaintiff with standing. Absent some compelled participation or exclusion (which would violate other constitutional provisions), no one suffers an injury from the display or program.

So many First Amendment defects, so little time (Updated)

Florida SB 1316 would require non-journalist bloggers who write about members of the state executive or legislative branches to register with the state.

The bills has so many constitutional defects that different commentators can find and focus on different things. Jeff Kosseff (Naval Academy) focuses on the loss of anonymous speech. Kosseff wrote a book on that, so it makes sense that he would lock onto that when I did not. I latched onto the registration requirement, which goes beyond prohibiting anonymity and into an effective licensing system. (A bill could prohibit anonymous speech by requiring bloggers to publicize their names; this bill prohibits anonymity while authorizing a formal government database of speakers, a further constitutional problem). It also creates a new set of arguments for the state. Sen. Jason Brodeur, the bill's sponsor, does not appear to be a smart person, but someone must have told him that a flat ban on anonymous speech could not fly. But I believe Brodeur hopes to defend the bill as a lobbying regulation--any non-journalist who writes (for pay) about Florida public officials seeks to influence those officials and thus engages in lobbying, which the state can regulate through formal state registration and authorization. That does not save the law--A legislature likely cannot define lobbying to extend beyond "direct communication" with government officials on specific government business; speech "about" an official, even for money, cannot qualify. But it suggests a scheme beyond prohibiting anonymous speech.

The bill has prompted a different question over how we write and talk about law--how much should we worry (and write)about performative legislation? Josh Chafetz wants us to consider (and describe) the broader context--whether the bill originates with governor and/or legislative leadership (which makes passage more likely) or  with a random backbencher pandering to the base; we should not get too worked up if the bill has no realistic chance of passage. Kosseff, emphasizing the increase in these bills, urges vigilance in all cases--"If a legislator proposes a bill, which could be considered at any moment, I'll take that proposal seriously until it's off the table." I think the positions co-exist--Josh does not suggest ignoring the bill, only making context and likelihood-of-passage part of the story and the analysis.

Finally, Kosseff says "So many of us -- me included -- have taken the First Amendment for granted over the past few decades. I fear that it's about to face some pretty big stress tests and we're pretty unprepared." Early in my career, a senior colleague questioned my interest in writing about free speech; I responded that this area is fun because we usually win. That may be changing.

Update: So I was right about three things. Sen. Brodeur explains on Twitter that he sees this as a lobbying regulation.  This violates the First Amendment because calling something lobbying, beyond that core definition, does not make it lobbying. And Sen. Brodeur is not a smart person.

Florida to register bloggers

SB 1316. The basic idea seems to be to treat non-journalists who write about DeSantis and other state officials as lobbyists.

It seems pretty obvious this cannot survive First Amendment scrutiny, even if enacted. Meanwhile, I guess I should now get out all my posts about Ron DeSantis and Republican legislators as crazy, dangerous authoritarians with no understanding or respect for the First Amendment or principles of free speech.

Florida redefines defamation law

Continuing my discussion of horrible new Florida laws. Rocky and I discussed DeSantis' 2022 never-reduced defamation-reform plan. It has been introduced in the current session. I describe some of the provisions after the jump.

Two things remain from the original proposal (and why we discussed it in our SB8 articles): The bill has serious and obvious First Amendment defects (many First Amendment people would call it "blatantly unconstitutional"). And those constitutional defects cannot be raised or adjudicated in offensive pre-enforcement litigation, because they define the elements of a private right of action for damages; speakers must sue and raise the First Amendment as a defense. Some defamation defendants might have the option of removing the private action to federal court on diversity grounds, an option unavailable to SB8 defendants.

Here are the bill's lowlights, all of which should raise serious First Amendment problems.

• Statewide (or near-statewide) venue for defamation actions. One of the key ways SB8 supposedly stacked the deck.

• Fee-shifting for prevailing defamation plaintiffs, plus removing defamation action from offer-of-judgment fee-shifting. This runs against the trend of granting fees to prevailing defendants to deter performative defamation actions (even absent full application of a state SLAPP in federal court).

• Limits on when someone can become an accidental, involuntary, or limited-purpose public figure. In particular, non-elected public officials (read: cops)  do not become public officials solely by virtue of employment and no one becomes a public figure by denying accusations of wrongdoing. This is enables police officers involved in excessive-force incidents to use defamation suits to silence critics--they can go on a media tour to deny the allegations and neither their government job nor media access renders them public figures.

• Identifies situations in which actual malice is presumed. These include relying on "unverified anonymous reports," repeating something that is "inherently implausible," and failing to validate. The irony, of course, is DeSantis seeks to target the people who picked on Nick Sandmann, Kyle Rittenhouse, etc. But this language is more likely to enable claims by Dominion against election deniers and other conspiracy theorists who repeat nonsense that only a crazy person or reckless person could believe.

• An allegation that someone discriminated on all sorts of bases constitutes defamation per se, with statutory damages of $ 35k. This should not fly because such an allegation or report of an allegation may be opinion or hyperbole, either of which is protected.

• Where that allegation of discrimination is because of sexual orientation or gender identity, a plaintiff cannot prove truth if the defendant relied on religious or scientific beliefs. This exacerbates the viewpoint-discriminatory nature of most defamation. But it shows how the accusation of discrimination is non-provable opinion--both involve competing, non-falsifiable "beliefs" rather than facts. Nevertheless, it may have a chilling effect in reporting and reporting on widespread discrimination--especially around LGBTQ+ status--in the state.

• A statement by an anonymous source is presumptively false. And where the defendant refuses to disclose the identity of the anonymous source, the plaintiff (including a public figure or official, it appears) need only prove negligence.

As I said, each bullet point will draw serious First Amendment scrutiny and many should be declared invalid. Much depends on how much of the First Amendment defamation edifice is constitutionally compelled. That is, how much leeway does a state have to define the scope and application of actual malice in its defamation law and what limits does the First Amendment impose from above. For example, can a state shift the burden to prove truth in anonymous-source cases or does the First Amendment place the burden on the plaintiff? Can a state define who qualifies as a public official/public figure required to prove actual malice or does the First Amendment control?

Regardless, it again demonstrates that what Texas did with SB8 was not new; it reflected a specific application of a state's longstanding ability to define torts and private rights of action. Again, decry Florida's blatant disregard for free speech. Do not treat the process as unprecedented or problematic.

Making a hash of pre-enforcement offensive litigation

In Fund Texas Choice v. Paxton, a First Amendment challenge to three sets of Texas laws a purporting to prohibit funding and facilitating legal out-of-state abortions--SB 8, HB 1280 (a trigger law that took effect 30 days after Dobbs), and pre-Roe zombie laws. Some blame for the hash rests with justiciability doctrine, some rests with the district judge.

To demonstrate the hash, I will identify the key legal or mixed principles, then identify the court's holding in the case, then show where (I believe) it goes off the rails.

Legal Principles and Findings:

    • No public enforcement of SB8.

    • The attorney general lacks power to enforce pre-Roe laws; enforcement rests with local DAs. Nevertheless, Paxton made numerous public statements about his intent to enforce those laws.

    • The attorney general has the power to enforce HB 1280 and made numerous statements indicating an intent to enforce the law with respect to out-of-state abortions.

    • HB 1280 has no extra-territorial effect and the attorney general's public-but-informal hints and suggestions, falling short of a full statement of intent, do not overcome the law's text.

    • Texas repealed its pre-Roe laws by implication. Based on binding Fifth Circuit precedent and undone by legislative findings in SB8, the post-Roe regulatory scheme for legal abortion cannot co-exist with the pre-existing bans on virtually all abortions.

    • The court never analyzed whether enforcement of the pre-Roe laws violates either the First Amendment or the right to travel.

Conclusions:

    • Claims against Paxton dismissed for lack of subject matter jurisdiction based on lack of standing and sovereign immunity. Although the court does not specify, it appears to be for lack of standing and/or sovereign immunity. Because Paxton cannot enforce any of the challenged laws against plaintiffs' desired conduct (he cannot enforce pre-Roe laws and cannot enforce HB 1280 as to the plaintiffs' desire conduct), he is not a responsible executive officer and plaintiffs lack traceability and redressability.

    • Preliminary injunction granted against several named local DAs (although the court has not certified the defendant class of all DAs) from enforcing pre-Roe laws as to funding or facilitating out-of-state abortions.

Why this is all such utter nonsense:

    • Bickel defended standing and the "passive virtues" as eliminating unnecessary constitutional adjudication. But consider how much and how detailed the adjudication necessary to dismiss this case for lack of jurisdiction--to say that the court lacked the power to consider the constitutional validity of Paxton's conduct or the scope of the plaintiffs' constitutional rights. The court analyzed the attorney general's power under three sets of laws, the effect of the attorney general's grandstanding and bumptious threats, and the extra-territorial scope of new state law. But the real meaning of these conclusions (putting aside their normative correctness) should be substantive--Paxton's conduct does not and cannot violate the plaintiffs' rights because he lacks the power to impose any legal consequences on their conduct. No constitutional violation means no injunction. But the court had jurisdiction to analyze all of this.

    • Were this accurately treated as merits, plaintiffs could tailor a lawsuit such as this one. Paxton has been running around hinting about enforcing HB 1280 extra-territorially, even if he lacks the power to do so. It would benefit the constitutional system if plaintiffs could react to those hints by obtaining an express declaration that he cannot do so, whether because he lacks power under state law or because doing so would be constitutionally invalid. Instead, they have that analysis and those determinations, but without legal effect. (It might have precedential effect, as it is essential to the holding; but district courts cannot create binding precedent and jurisdictional holdings tend to carry less substantive precedential force as to any underlying constitutional issues.

    • The court drops the following footnote in dismissing the claims against Paxton:

While the Court dismisses Plaintiffs’ H.B. 1280 claims without prejudice, it recognizes that there may be certain situations where the statutory analysis changes. For example, the analysis might change if a local prosecutor imminently threatens charges for funding out-of-state abortions or an opinion from the Attorney General’s office declares it illegal. 

The court did not dismiss the claims against Paxton for lack of imminence, so I do not see why imminence has entered the mix. He dismissed them because HB 1280 unambiguously does not allow extra-territorial application. I do see why either of those events changes that conclusion. The court recognizes that Paxton is hinting at extra-territorial enforcement "for the deliberate purpose of deterring funds from facilitating out-of-state abortions." But if those hints and threats do not overcome unambiguous text, a local DA's more imminent and specific threat or a formal AG opinion should not do so. Either the executive position can overcome unambiguous text (in which case these claims against Paxton should proceed, based on his posturing) or they cannot (in which case the footnote is wrong).

    • If pre-Roe laws were repealed by implication, the claims against the DAs should have been dismissed on the same bases as the claims against Paxton. Repealed laws no longer exist as law, leaving the DAs nothing to enforce. A court cannot enjoin an executive from doing something he lacks the authority to do. DAs can no more enforce pre-Roe laws than Paxton can enforce HB 1280--in either case, no existing state law prohibits funding or facilitating out-of-state abortions and thus the target executives have nothing to enforce. In fact, the argument for lack of jurisdiction as to the DAs is stronger than as to Paxton. Paxton has an extant law he could enforce in the abstract, but the court interpreted it to be unenforceable in the current circumstances; the DAs have nothing but air.

    • Making even less sense, the court uses implied repeal as the sole basis to find likelihood of success on the merits and to grant the injunction. The court never discusses whether the pre-Roe laws violate the First Amendment or the right to travel; that the laws were repealed by implication makes them invalid and unenforceable.

    • The last point arises from the court treating impliedly repealed laws differently from expressly repealed laws, a unique category subject to unique analysis. But that framing makes no sense. Had the legislature repealed pre-Roe laws, the court would have dismissed for lack of standing (what I think should be merits, but same result); again, the lack of a law on the books leaves nothing to enforce and the court cannot enjoin the executive from what he cannot do. Had the law not been impliedly repealed, it would be a Dobbs-dezombified law; the court must consider whether the living law applies extra-territorially (the court says it does) and whether it violates the First Amendment or the right to travel (the court never says). Instead, impliedly repealed laws create a third thing--extant (thus potentially enforceable, giving plaintiffs standing) but per se invalid (thus obviating analysis of their constitutional validity). I have never seen anything like this and the court does not explain or justify this category of law.

How the case should have been resolved:

    • The court should have reached the merits as to Paxton enforcing HB 1280, a live law. There ought to be consequences for executive saber-rattling, even when ungrounded in state law, having the purpose and effect of deterring conduct that is lawful under state law and constitutionally protected. The court should have addressed whether the law, if applied extra-territorially as Paxton has threatened, violates the Constitution.

    • If pre-Roe laws were impliedly repealed, it should not have enjoined the DAs. If implied repeal remains an open question, then the court should have analyzed their constitutional validity before entering the injunction.

    • Someone in the comments to Volokh's post on the decision suggests the Fifth Circuit will certify the question of implied repeal to the Texas Supreme Court. That may be a good idea. But the district court's analysis cannot stand regardless of that court's decision. If the laws were impliedly repealed, the district court erred in enjoining enforcement. If the laws were not impliedly repealed, the district court never addressed or resolved the substantive constitutional issue, which the reviewing court ought not do for the first time.

Pretty bad all around.

DeSantis exposes how much First Amendment doctrine he hates

Ron DeSantis on Tuesday hosted a roundtable on "legacy defamation practices" which illustrates the breadth of his campaign against free speech (that he does not like) and how most observers and press reports misunderstand that.

• Someone attacked "actual malice" as an "invention of the Supreme Court inconsistent with the way the Founders thought about libel and freedom of speech." The program included Nick Sandmann as an example of a victim of defamation. But Sandmann did not lose because of NYT or actual malice; he was a private figure who had to prove negligence. He lost because of other aspects of the defamation regime--the statements were not provably false assertions of fact as opposed to opinion. That does not change because NYT goes away. Another panelist lost a case because the judge found the (supposedly deceptively edited) report neither false nor misleading, another piece of defamation law with a long history and having nothing to do with actual malice.

• An important response to the attack on NYT should emphasize the case's facts and historical context: A coordinated campaign of defamation suits by government officials to silence and suppress the civil rights movement by using defamation law to prohibit criticism of government, analogous to seditious libel. Similar campaigns become possible if the Court eliminates NYT--government officials or powerful privte individuals to sue critics into silence. Make DeSantis own this point; he likely will do so, happily. But it should be part of the conversation.

• DeSantis purported to be fighting for the "little guy" because he has a platform to defend himself. But he then took off on the "Russia collusion hoax" for its reliance on anonymous sources. If anyone had a platform to defend himself against the media, it is the target of the Russia collusion hoax (whose name, of course, went unmentioned). He also complained about the coverage of Brett Kavanaugh--again, a fairly powerful individual with a national platform through which to respond to critics.

• Moreover, the First Amendment protects the right to speak anonymously, which should include the right of others to report or repeat that anonymous speech. DeSantis seems obsessed with anonymous speech as a unique evil. It is of a piece with a drafted-but-never-introduced bill that would have presumed statements from anonymous sources to be false, among other likely constitutionally invalid changes to defamation law.

Between this, pulling books from the library, targeting drag shows as obscenity, dictating what speech private companies must carry, and limiting the topics that can be taught or discussed in the classroom (in the name of protecting ideas), DeSantis genuinely seems to be running for a president on a campaign of othering and censoring speech and speakers.

Bizarre (and arguably advisory and ultra vires) opinion in Warren v. DeSantis (Slight edit)

The case arises from Florida Governor Ron DeSantis suspending Hillsborough County (Tampa) State's Attorney Andrew Warren. The court held that DeSantis considered six things in suspending Warren--three impermissible under the First Amendment and three permissible under the First Amendment. DeSantis would have suspended Warren based on the latter permissible grounds had he not considered the former impermissible grounds; therefore Warren's retaliation claim fails under Mt. Healthy. DeSantis violated Florida law in suspending Warren, because those federally permissible grounds were impermissible under state law, because the facts did not show incompetence or neglect-of-duty. But the Eleventh Amendment* prohibits federal courts from granting relief against state officials for state-law violations. Thus, although the court makes a big production of announcing that DeSantis violated state and federal law, it grants no remedy and dismisses Warren's claims.

[*] Really the limits of § 1983, but that ship sailed.

This is a bizarre decision.

• I doubt it is proper for the court to say DeSantis "violated the First Amendment." Constitutional violations occur with adverse enforcement action, not with thoughts or ideas not acted upon. The adverse action here was suspending Warren. If DeSantis would have taken that adverse action regardless of anything related to Warren's protected speech, he did not violate Warren's constitutional rights, at least as we define the scope of the First Amendment in this context. Compare a racist cop who arrests a Black person on a charge for which he has probable cause; the arrest is valid because of probable cause, regardless of any racist ideas or statements the officer makes. We may disagree with that doctrine. But it, for the moments, defines when a government official violates someone's constitutional rights.

• The court should not have declared the state-law validity of the firing. This goes beyond mere dicta or even an advisory opinion. Warren brought a state law claim, which the court dismissed under Pennhurst (again, better if § 1983, but whatever). The propriety of the state-law reasons were not before the court. Worse, if the Eleventh Amendment, as elaborted in Pennhurst, strips courts of jurisdiction over state-law issues, the court pronounced on issues beyond its jurisdiction.

• I said the court should have abstained under Pullman and Hinkle's approach to the opinion confirms this. The case always turned on the suspension's state-law validity; the First Amendment provided a sideshow. The court did what Pullman seeks to avoid--passed on unnecessary federal constitutional issues in the face of controlling state-law issues.

• It is hard not to read this as a political shot for Warren to use in the media. He can wave the opinion and say a federal court backs his view that DeSantis ran roughshod over his First Amendment rights. It also represents a political shot at the Florida Senate, which will hold a "trial" on the state-law propriety of the suspension, affirming DeSantis' decision or reinstating Warren. Hinkle has created a detailed legal and factual record, particularly finding that DeSantis' insistence that Warren had a blanket non-prosecution policy was nonsense and that he knew (or at least should have known, had he looked) it was nonsense. This helps Warren in the press and in the public should he lose before the Senate. Warren can compare this opinion to any Senate decision finding the suspension warranted and use it to argue that the Florida Senate made an incorrect, politically motivated decision--"see, we know the Senate made a politically motivated decision, because here is a federal judge showing why the suspension violates federal state law." Hinkle hints at this motive by referring to the "heavily partisan Florida Senate."

George Santos, Lies, and Jewishness

I am skeptical of the new state and federal criminal investigations of George Santos will lead anywhere. I am persuaded by Eugene Volokh's arguments that campaign lies cannot be prosecuted--that counter-speech from the press and the rival candidate provide a sufficient check. (See this explanation for how opposition research works and why the Democrats failed so badly). Of course, that position rests in part on the difficulty of separating fact and opinion in political speech and in determining falsity in statements about complex policy and voting records. Santos presents something without nuance or uncertainty-factual and provably untrue statements about graduating from a college or having a grandparent born in one country at one time. But many people in American life, including politics, invent their biographies. I imagine SCOTUS would situated this in its recent line of cases refusing to criminalize politics.

There is a tempting counter argument that a candidate lying to get elected is akin to a job applicant lying in an interview--false statements to obtain a paying job (and the power that comes with it). But I think the public and widespread scope of campaign speech--paradoxically, speech is easier to sanction when it is said to a smaller group than a larger one--distinguishes the cases.

There is a nice question of whether this  affected the election and how that affects our sense of whether government can sanction his lies. Santos did not face a primary challenge for the nomination. He won the general election by more than 20,000 votes. I doubt that,when party affiliation is everything for many voters, 21,000 Republican voters would have voted differently had they known the truth about his background, education, and work history. Seeing the House GOP caucus embracing Santos and laughing about the story bolsters that thought. Perhaps Jewish identity would have prevailed over party identity, revolting against efforts to falsely appropriate our history and culture, especially the Holocaust. But I doubt it would have been 21,000 Jewish Republicans worth.

One unrelated point: Should Jews take pride that a political candidate lied to make himself Jewish and to attach himself to the name "Zabrovsky," the kind of name early-20th-century Jews ran away from. Maybe our societal position is not as tenuous as people fear--at least not in New York's Third Congressional District.

Quick thoughts on 303

I found a few interesting things in the questioning of Kristen Waggoner, counsel for petitioner in 303 Creative. (Mike Dorf has more about the "culture war" lines in the argument).

I

Although Waggoner repeatedly disavows it, 303 is arguing for First Amendment protection of implicit endorsement of an idea, rather than for the words spoken. Justices Sotomayor, Kagan, and Jackson peppered her with questions (real and hypothetical) about purely informational web sites--"Mike and Mark are getting married on this date at this place and these are the people in the bridal party." Even if that is 303's speech, it says nothing about marriage, same-sex marriage, or the righteousness of same-sex marriage. The First Amendment argument is not about the words being uttered on the web site, but that providing that information requires her to implicitly express her approval of same-sex marriage.

An exchange with Justice Barrett, designed to help Waggoner show that this is about speech rather than customer identity, drives the point home. Barrett offered two hypos of cis-het couples whose story (to be told on the web site) includes political statements--one that "we would have gotten married even if we were not cis-het because it doesn't matter" and the other "we were married to other people when we met at work, realized we were meant to be together, so we each got divorced six months later and now begin our lives together;" Waggoner said 303 would not do those web sites. Barrett's hypos involve objections the words and message written on the page--"everyone who finds their soul mate should get married, regardless of sexual orientation or gender identity." Most sites do not include such messages. The objection cannot be to the factual statement that Mark and Mike are getting married on June 10; it must be to the implicit endorsement in the artist announcing that fact. The follow-up should have been whether 303 would refuse to design a purely informational site--"Lily and Luke are getting married on this date at this place"--if she knew that Lily and Luke had divorced other people to be together. Would she consider that a similar implicit (and objectionable) endorsement of their marriage or their conduct?

The question becomes whether the freedom of speech protects against such implicit endorsements not grounded in the words themselves. The Court has pushed the complicity-in-sin idea through free exerise, but never through speech. What is the best way to read Hurley? One is that the parade organizers were compelled to send an implicit message of endorsement by including GLIB--having to include the group endorses the message that it is ok to be gay and Irish. Another is that GLIB itself sent an express message--possibilities and pride to be LGBT and Irish and with LGBT Irish people marching in the New York parade--that the parade was compelled to incorporate into its overall message. If Hurley means the latter, this case does not fit because Mike and Mark are not sending a message about LGBT rights by getting married--unless everything LGBT people do sends a message about LGBT rights.

II

I will admit to being annoyed by Waggoner's refusal to admit that, under her position, a web designers can refuse to do pages for mixed-race, mixed-religion, or (per Sotomayor's hypo) disabled couples. All entail the same endorsement. And the First Amendment does not turn on the "honorableness" of the message or distinguish between ideas we find odious and ideas we respect--if the seller of expressive products has a right not to sell where the product sends an objectionable implicit message, the nature of the message does not matter, only that the seller objects. Own it.

III

Waggoner repeatedly tried to generalize the principle--that it protects not only her Christian-web-designer-who-hates-same-sex-marriage, but other, left-leaning people, such as a "Democrat publicist" or "lesbian graphic designer." Dorf points to the adjective in the former as a culture-war dog whistle. I find the latter telling because it conflates identity with viewpoint--supposedly what she is not otherwise arguing. I doubt that most lesbian web designers object to opposite-sex marriage or would refuse to design page for a cis-het couple because it sends a message of approval for opposite-sex marriage. The refusal certainly would not be because of her LGBT status. That example--which she surely prepared, given how frequently she used--says a lot about how Waggoner sees the connection between identity and ideas.

Chamber of Commerce on corporate speech

The chief legal officer of the U.S. Chamber of Commerce told a Fed Soc panel (paywalled) that corporate activism--particularly so-called "ESG (environmental, social, and governance) investment--is First Amendment protected corporate speech. The statement comes days after Sens. Chuck Grassley, Tom Cotton, Marsha Blackburn, Mike Lee and Marco Rubio-- anticipating a Senate majority--sent a letter to numerous law firms threatening them with investigations for assisting corporations in that activity.

So two issues for the other side of the political and ideological spectrum:

• Will the Chamber of Commerce pursue this First Amendment position in court and in legislative chambers if and when Republican officials come after some of these companies and their lawyers?

• I thought FedSoc and the conservative constitutional movement oppose canceling, threatening, or targeting lawyers for representing clients on causes of which they disapprove. It was bad when people criticized or sought to impose market consequences on firms helping Donald Trump and his minions bring frivolous cases to overthrow the election with frivolous cases. Apparently it is ok to threaten government action against law firms that helping companies take steps not to help the environment or the common good.

Staying in your lawyering lane

Popehat offers a thread on bad lawyering arising from the recording of several Los Angeles City Council members and a union leader using racist slurs in discussing redistricting. An attorney for the LA County Federation of Labor emailed the LA Times, which obtained and published the recordings, threatening to sue. The latter was egregiously wrong (as the Times' lawyer demonstrated in a thorough response)--SCOTUS and SCoCA precedent protects publication of truthful, lawfully obtained information, including material that a third party unlawfully intercepts and passes to the paper, so long as the paper was not involved in the unlawful interception.  In fact, Bartnicki arose from an illegal recording of a conversation between two unions officials during contentious negotiations.

Popehat's thread focuses on the union attorney's "epically foolish" email. He offers three reasons she might have sent it: 1) She is a bad lawyer, which is unlikely in this case; 2) She is an expert on labor law but knows nothing about the First Amendment, so strayed from her area of knowledge; or 3) her client forced her to do this. The solution to # 2 is to recognize your lane and never send something like this without consulting an expert.

I want to add more to # 2. A colleague insists that every student should take First Amendment because every lawyer should know the basics of free speech. Even if you do not practice in the area (and most do not), that basic knowledge informs what you do. And a rudimentary knowledge of basic First Amendment principles can help you avoid errors on those principles.

Yale responds to Judge Ho

NLJ story here. The school revised its free-expression policies to include three conditions on protesting/disagreeing with a speaker: no blocking access to the event or facility; no disrupting the event and university operations; no compromising the safety of those attending or other members of the community. Dean Gerken sent a letter to the community highlighting the hiring of a new dean of students, the revision to the code of conduct prohibiting surreptitious recording of classes and other school events and activities, and a commitment to students resolving disagreements in-person.

I do not know whether it satisfies Judge Ho's complaints about free speech on campus, which I found disingenuous; they equate protest and criticism of an invited speaker with cancellation or drowning out. Free speech means sit-and-listen and hope the speaker deigns to engage with you or go away; anything else violates free-speech norms. The new policies seem to leave room for that sort of counter-speech so long as they do not "disrupt" or "block access," vague and capacious terms that could create problems if applied too broadly. (For example, a sufficiently large peaceful protest outside a building forces people to navigate a crowd to get inside--I would hope the school does not treat that as prohibited blocking).

Trump v. CNN

Donald Trump has sued CNN for reporting and op-eds comparing him to Hitler and using the term "Big Lie;" he seeks $ 475 million in damages.

This lawsuit demonstrates something I have argued for awhile--the call to overrule New York Times as shorthand for rejecting or limiting actual malice is a red herring, distracting from a broader attack on political speech, criticism of government and other influential persons, and the First Amendment's broader speech-protective superstructure. A host of First Amendment principles destroy this case, regardless of actual malice. Everything the suit complains about is political speech and criticism, opinion, and rhetorical hyperbole--all at the core of First Amendment protections; it points to no provable and verifiable statements of fact that can form a basis for defamation liability. The suit would overrule the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." It is difficult to imagine a clearer example of caustic and sharp rhetorical hyperbole than comparing a political leader to Hitler.

The suit also suggests that because CNN purports to be a news organization, it enjoys less First Amendment protection--including the loss of protections of actual malice--than other speakers. It argues that actual-malice protection should not apply

where the media defendant is not publishing statements to foster debate, critical thinking, or the 'unfettered interchange of ideas' but rather seeks to participate in the political arena by offering propaganda.

This is insane on several levels. It suggests there is something called "propaganda" entitled to less protection; it allows government to define and draw the line between that and fostering debate; and it insists there is a distinct category called "news" (never defined) and limits certain media speakers to that category. The irony of this media/other speaker distinction is that it turns NYT on its head. The Court has long debated but never resolved whether NYT applies to nonmedia defendants. Trump's suit goes the other way--media defendants enjoy less protection than other speakers.

This is an absurd suit that should go down in flames at the 12(b)(6) stage and should result in sanctions for the ethically challenged lawyers who filed this. In addition, Florida's anti-SLAPP statute could rear its head. The statutory dispositive motion does not apply in federal court. But Florida's statute contains a unique fee-shifting provision--fees are available for any action that is "without merit," not limited to actions  rejected under the special anti-SLAPP motion (as in most anti-SLAPP laws). One judge in the Southern District of Florida has applied the statutory provision (which should apply in federal court) to award fees where the action was dismissed on an ordinary 12(b)(6). Trump thus could be on the hook for attorney's fees for this abuse of process.

A state could stop this in the Fifth Circuit

I have not had much to say about the Fifth Circuit's abomination in NetChoice. (Mike Masnick at TechDirt offers a good summary). The First Amendment analysis is absurd; it should be stayed soon; SCOTUS must grant cert (given the nature of the internet, the Court cannot allow this circuit split to survive); and I hope reversed later this Term by (at worst) 6-3 (Gorsuch is the only person about whose vote I am unsure). Someone said it reads like a Twitter rant and I think that is fair.

But the timing of this story is fortuitous. The Society for the Advancement of Judaism, an NYC Reconstructionist synagogue that has rented space to a local Republican organization refused to do so for an event with election-denier Dick Morris. The organization is protesting, insisting that this is not about Morris and election denialism but about a new general refusal to rent to Republicans--while the Temple could legitimately decide it does not want its forum used for election denialism, denying the forum to all Republican speech is different. NetChoice rested on a similar distinction--while sites perhaps can take steps against Nazi speech (which the Court dismissed as hypothetical), taking steps against "mainstream" conservative or Republican views is "censorship" that the state can stop.

Privately owned speech spaces (this Temple or the comedy club in Halleck) provide the best analogy to social-media sites--a privately owned space in which speech can occur, opened to speakers. Under the Fifth Circuit's logic, a state or city could pass a law preventing such spaces from "censoring," at least as to the "ordinary Republican speech" this organization says it intends to present.

Bad lawsuits from the left

Florida Governor Ron DeSantis suspended Hillsborough County (Fla--includes Tampa) state's attorney Andrew Warren from office, pursuant to his constitutional power to suspend any state officer not subject to impeachment. The basis for the removal is Warren's intention not to prosecute for receiving or providing abortions and gender-affirming healthcare, which DeSantis described as a refusal to enforce state law.  Warren filed suit in federal court; he alleges the suspension violates the First Amendment (because Warren has merely spoken about exercising his discretion not to prosecute, but has not been presented with or done anything with any live cases) and the Florida Constitution (because DeSantis did not establish proper grounds for suspension).

This is a bad lawsuit. Like many lawsuits from the right, it is partly for show, to look strong in standing up to the other side. Warren gave a press conference talking about how DeSantis abused his power and acted undemocratically in removing a twice-elected official who received more votes in Hillsborough County than DeSantis had. That rhetoric does not differ from Republican cries during Trump's impeachments. It seems to me there are two problems with the suit, at least in federal court.

The First Amendment claim fails under Garcetti and the patronage cases. Accepting that DeSantis retaliated for Warren's expression and nothing he did in office, Warren is a policymaking official and he spoke as part of his formal job duties; the First Amendment does not protect such speech from employment consequences. DeSantis is not Warren's "boss" and that Warren owes his job to the county voters and not to DeSantis or anyone under DeSantis' control. But DeSantis enjoys a (limited) supervisory role over Warren. Job-related speech--a promise as to how he intends to perform his official functions--is not protected as a basis for suspension if it constitutes misfeasance, neglect of duty, or incompetence. If a policy-level employee can be fired for cause for job-related speech without First Amendment recourse, a person can be suspended for job-related speech that provides a legal basis for removal without First Amendment recourse.

Warren's real argument is that his speech cannot constitute misfeasance, neglect, or incompetence. That is a question of state law that a federal court will not (and arguably should not) touch. This is a paradigmatic Pullman abstention case--if there were a good First Amendment claim, it can be mooted by an open-and-unresolved state law issue of whether Warren's conduct met the state-constitutional standard* for removal, which a state court should resolve in the first instance. At worst, I would expect the district court to certify the state issue to the Florida Supreme Court. Pullman abstention and certification are disfavored in First Amendment cases because of the chilling effect in the litigation delay, but Warren's First Amendment claim is  weak and the state issues are uniquely central and dispositive. Of course, Warren does not want to be in state court, especially not the Florida Supreme Court. But that is why we have these doctrines.

[*] Federal courts do not abstain from federal constitutional issues in deference to a parallel state constitutional issue. They do abstain in deference to a unique state constitutional issue.

I do not know much about Warren, but he appears to have political aspirations and is willing to take on the current state power. Which is great. But political fights are no more proper in federal court when undertaken by a politician I agree with for a cause I support.

Update: A reader offers another reason the Court cannot hear this case--a plaintiff cannot bring a § 1983 or Ex parte Young claim for a violation of state law and a federal court cannot order state officials to follow state law.

More on preferred first speakers and the minimization of counter-speech

Two recent examples of the "Preferred First Speaker" problem and how it is warping discussions of speech and counter-speech, even among First Amendment advocates.

The first is the cancellation of a show by Dave Chappelle at a comedy club in Minneapolis, when club staff refused to work the show. Greg Lukianoff and Conor Friedersdorf regard this as another example of cancel culture and deplatforming of a world-famous comedian; while the club is a private venue, its actions are "bad for free speech." Ken White (Popehat) shows why this line of argument stacks the deck in favor of the first speaker and and against counter-speakers--no one asks whether the initial speaker's (Chappelle) speech is "good for free speech," only the responsive speech. At the same time, Friedersdorf and Lukianoff presumably would have been find had the club owner fired the employees who refused to work the show, without recognizing that their refusal to work is imbued with some free-speech interests. The point is that it is not enough to say "bad for free speech," without evaluating the competing free-speech interests. A lot was made about the show having been booked and canceled. But I expect if the story was "we refused to book Chappelle in the first place because our employees made clear they would not work the show," the reaction would have been the same.

The second is this National Review piece complaining about some University of Michigan med students walking out of the White Coat ceremony during a keynote speech by a UM professor who is a prominent anti-choice activist. The conservative reaction to this incident combines with the reactions to various "disruption" incidents to reveal how preferred the first speaker is. Opponents cannot protest loudly in the room, cannot protest loudly outside the room, cannot silently protest in the room, and cannot absent themselves from the room. Free speech requires that they sit silently and listen and say and do nothing, no matter how much they disagree. On this view, all protest and all counter-speech violates the free-speech rights of the powerful person given a formal platform. That cannot be right.

The piece also worries that this incident shows these students are not fit to be doctors:

One of those duties is to care for patients who may have different political views. If a patient says or believes something with which doctors disagree, they still must care for that person. One cannot be confident that they will properly serve this patent if they have cannot tolerate beliefs that contradict their own.

Note that "tolerance" now means not only allowing someone to speak, but having to stay and listen to what she has to say. Taken to its logical end, a doctor or medical student cannot protest or object to anyone's speech, because they may have to treat that person and doing anything other than sitting and listening to what someone has to say equals lack of tolerance and implies that they therefore would not properly treat that person. Third, it is iconic for this to come from the National Review--the only time I heard of doctors refusing to treat patients over political disagreements was in 2010-11, when several doctors announced that anyone who voted for Obama should seek care elsewhere.

Disinformation & Defamation: A Loss for Veritas, A Strike for Truth?

A variety of defamation lawsuits connected to the discredited allegations of massive election fraud in the 2020 presidential election (sometimes called the "Big Lie") are proceeding to discovery. These suits not only seek to vindicate the reputations of the plaintiffs accused of participating in election fraud; they also seek to strike back against the campaign of disinformation underpinning the Big Lie.  For example, Dominion Voting Systems’ suits against Rudy Giuliani, Sidney Powell and My Pillow CEO Mike Lindell; former Overtock CEO Patrick Byrne; Newsmax; and Fox Corporation have all gotten the green light to proceed. Smartmatic, another voting systems company, is also proceeding with a number of separate defamation suits. 

Now another defamation case involving accusations of election fraud joins them, this time involving an Erie, Pennsylvania postmaster. A Pennsylvania trial court has held in Weisenbach v. Project Veritas that discovery can proceed against Project Veritas, its founder James O'Keefe, III, and postal employee Richard Hopkins. The postal employee, Hopkins, accused Erie Postmaster Robert Weisenbach of backdating mail-in ballots during the 2020 presidential election. Hopkins based his accusations, which were published by Project Veritas and O'Keefe, on a conversation he supposedly overheard between Weisenbach and another postal supervisor. After the initial publication of these accusations, Hopkins was interviewed by the Postal Service's Office of Inspector General. Hopkins recanted his accusations during the interview, but later told Project Veritas he was coerced into doing so. Despite the questionable reliability of Hopkins' accusations, Project Veritas kept publishing them, and they were picked up and repeated by a number of Trump partisans and Trump himself. Meanwhile, the accused Postmaster Weisenbach, who was actually a registered Republican and Trump voter, had to flee his home. Hopkins lost his job with the postal service, but he was able to solicit, through online crowdfunding, hundreds of thousands of dollars from Project Veritas readers. A report of the Office of Inspector General found no evidence supporting Hopkins' allegations, but Project Veritas did not retract them. Postmaster Weisenbach sued Hopkins, O'Keefe, and Project Veritas for defamation and concerted tortious activity.

Defendants filed "Preliminary Objections" in the nature of a demurrer to the Postmaster Weisenbach's complaint. The judge overruled the objections, meaning the case against defendants proceeds to discovery. 

Defendant Hopkins' first objection was jurisdictional. He contended that the Federal Tort Claims Act gives exclusive jurisdiction to federal courts for claims made against federal employees acting in the scope of their employment. In other words, Hopkins argued that he made his allegations to Veritas and O'Keefe about the Postmaster Weisenbach while acting within the scope of his federal employment. The trial judge, however, found that Plaintiff's Complaint sufficiently pleaded that Hopkins made his statements to Project Veritas outside the scope of his employment and that he "was driven by financial gain and a desire to cast doubt upon the legitimacy of the election and the integrity of his employer." The court found the complaint sufficiently alleged that Hopkins was not acting in the scope of his employment because he was not making the allegations to achieve his employers' "ultimate objective of delivering the mail, but more in the nature of a personal errand." 

Defendants' second objection went to the sufficiency of the Plaintiff's pleading of defamation and concerted tortious activity. The judge found the allegations that Plaintiff had engaged in election fraud "because he was a Trump hater" capable of a defamatory meaning. The judge's phrasing is interesting, because it is not normally defamatory to misattribute someone's political party. The court indicated that Plaintiff alleged he can prove that he is not a "Trump hater," but it is unclear whether what is defamatory in the Plaintiff's allegation is the misattribution of political party or the allegation of illicit motive for backdating mail-in ballots. Regardless, the accusation of committing election fraud was clearly capable of a defamatory meaning! The court also rejected the argument that Project Veritas' allegations were mere hyperbole uttered online in the heat of an election contest, stating that consideration of context might by appropriate at trial but is inappropriate at the pleading stage, when all reasonable inferences must be drawn in the Plaintiff's favor. 

The judges also found the Postmaster's allegations that Hopkins, Veritas, and O'Keefe "conspired" to defame him sufficient to support his substantial assistance or "aiding and abetting" claim. The court wrote: "Count III indicates a laundry list of ways in which Project Veritas and O'Keefe substantially assisted Hopkins, including through encouragement to come forward, the drafting of the affidavit, instructions on how to profit from the crowdfunding account, keeping lawyers on retainer to defend Hopkins, and consulting with Hopkins on a daily basis, all with the common goal of defaming Weisenbach." The judge refers to the this as "concerted 'character assassination,'" rather than journalistic reliance on an inside source. 

Finally, the court held that regardless of whether a Postmaster is a public official, the Plaintiff's complaint adequately pled actual malice as to all defendants. The Complaint alleged that Project Veritas drafted Hopkins' affidavit, encouraged and aided him to solicit donations through online crowdsourcing, flew him to New York to be interviewed, and got him legal counsel.  The Complaint also alleged that Project Veritas initially claimed they had "multiple sources" for their false accusations. Moreover, Project Veritas "doubled down" after Hopkins recanted his story. Even after the Postal Service Inspector General issued a report stating there was no evidence the Postmaster had engaged in backdating, Project Veritas would not retract their accusations. Thus, the judge concluded: "Taken together, these facts, if ultimately proven, could be credited as circumstantial evidence that Project Veritas and O 'Keefe fabricated evidence to bolster their story, or at least harbored serious doubts as to the truth of Hopkins' claims." The judge also stated that a jury might find actual malice if it found, consistently with Plaintiff's averments, that Project Veritas had developed a pre-conceived story line and solicited information to fit based on a desire to "erode confidence in the security of mail-in voting."  The court therefore concluded that the Postmaster's "mosaic of averments" related to Project Veritas' fabrication of evidence, deliberate avoidance of truth, and "ulterior motive for publishing" constituted sufficient facts "such that a jury could eventually conclude by clear and convincing evidence that the alleged defamatory statements were published with actual malice." The judge acknowledged that Project Veritas' arguments that "their reporting 'had to be done quickly'" in the election context would be relevant to the ultimate determination of actual malice but was not relevant at the pleading stage. 

The judge also found sufficient the Complaint's allegations as to Hopkins' actual malice. This issue was straightforward, given the allegations that Hopkins overheard and deliberately misconstrued an ambiguous conversation, recanted his initial allegations, and then benefitted financially from his tale. 

The judge concluded by acknowledging the that the Supreme Court's First Amendment decisions strike a balance between "the need for a vigorous and uninhibited press and the legitimate interest
in redressing wrongful injury." He nonetheless noted: "The constitutional deck is not all stacked to one side."  Despite being "mindful of the chill that lawsuits such as this may have on our press freedoms," the judge allowed Weisenbach's claims to withstand Defendants' demurrers, stating "For now, 'the balance between the needs of the press and the individual's claim to compensation for wrongful injury' weighs in favor of the Plaintiff."

This suit is being brought on Weisenbach's behalf by Protect Democracy, which has a press release about the case here. 

 

 

The limits of swearing cheerleaders and an obviouly hollow victory

Free speech folks were watching this Tenth Circuit case, arising from the expulsion of a high school student for a private, out-of-school Snapchat post saying "Me and the boys bout to exterminate the Jews" with a photo of them wearing WW-II-era foreign military hats. In other words, it raised the open question from Mahanoy--out-of-school online speech not about school but raising concerns for in-school bullying, harassment, threats, and discrimination. The court reversed the grant of a 12(b)(6), holding that Mahanoy applies, the school did not have an interest in regulating this speech (despite its content), and there was no showing of substantial disruption. Good all around-and perhaps a hint that lower courts will follow Mahanoy to a sharper in-school/out-of-school line.

But the court remanded for consideration of qualified immunity, which will almost certainly be granted. The events underlying this case occurred in 2019, two years prior to Mahanoy and during a period in which courts allowed schools greater power to reach out-of-school speech that found its way into school and that could be perceived as threatening or discriminatory. Certainly there is no SCOTUS or Tenth Circuit precedent establishing that similar speech cannot be punished. So this is a small victory for the plaintiff that will not last long.

Florida Anti-Woke lawsuit proceeds, standing is weird

The district court denied (mostly) a motion to dismiss for lack of standing, finding most plaintiffs had pleaded (just barely) enough facts. In particular, the court allowed the claims by a University of Central Florida professor to proceed, rejecting the argument that profs speak as the government when teaching and so lack First Amendment for their classroom speech. (For the moment--the court acknowledged that its conclusion rested on 11th Circuit precedent that may not be long for this world). This decision comes on the heels of the district court denying preliminary injunctions as to most plaintiffs because they lack standing.

This just proves the insanity of treating standing as a jurisdictional doctrine independent of merits. If it is truly a jurisdictional issue, it must be proven by evidence, not based on the pleadings. Moreover, in denying the PI, the court decided that plaintiffs had not shown (through evidence beyond the pleadings) standing. It should not matter that plaintiffs have (barely) pleaded it if the court said they cannot prove it. For example, the court denied dismissal of the rising kindergartner's claim, even though it previously said the kindergartner had not shown an injury because the kindergarten curriculum did not include  any statutorily proscribed material.

What is the right time and place?

A group of protesters congregated outside of a Morton's Steakhouse in D.C. where Justice Kavanaugh was eating dinner, causing him to leave through the rear of the restaurant. Morton's issue the following:

Honorable Supreme Court Justice Kavanaugh and all of our other patrons at the restaurant were unduly harassed by unruly protestors while eating dinner at our Morton’s restaurant. Politics, regardless of your side or views, should not trample the freedom at play of the right to congregate and eat dinner. There is a time and place for everything. Disturbing the dinner of all of our customers was an act of selfishness and void of decency.

First, I just checked the Constitution and the right to peaceably assemble is followed by "petition their government for redress of grievances," not to "eat dinner." Maybe dinner is well-grounded in tradition and history as an unenumerated right, although the move of "dinner" to early evening was more of an early-19th-century development.

Second, other than chanting and making, the statement does not say how the protesters were "unruly" or "unduly harass[ing]."* The Politico story says protesters called the restaurant and urged the manager to kick Kavanaugh out. But that would have bothered the restaurant manager, not Kavanaugh or another diner. It does not appear the protesters entered the restaurant or went anywhere they were not legally entitled to be.

[*] And would it be ok if the protesters had "duly harassed" Kavanaugh and customers? Does Morton's believe there is some appropriate and permissible level of harassment? Good to know.

Third, what is the "time and place for" protesting public officials? (Or to paraphrase Hillel--if not now, when; if not here, where?). The home is off-limits; non-official public outings are off-limits; the front of the Court was declared (by the Court) not to be a public forum; and there is fencing around the Court's grounds, denying anyone close access to where he works. So where is the appropriate time and place to assemble and protest a powerful government official?

Cue the converse abortion ad hoc nullification machine

The Times considers the First Amendment implications of abortion being legal in some places and illegal in others. And individual news reports about how Dobbs is being received and applied with respect to other rights and issues suggest this will not be limited to abortion.

Cert dened in Coral Ridge Ministries

Beginning on p.11, with dissent from Thomas but not Gorsuch (who has called for reconsidering NYT v. Sullivan) or anyone else. I guess the Court is not ready to undo the foundation of modern free speech.

This case was never a good vehicle for overruling NYT because the statements at issue (labeling a ministry a "hate group") are clear protected opinion; the district court dismissed the claim on opinion and actual-malice grounds, while the court of appeals addressed the latter. Unless the Court wanted to undo the entire defamation edifice (at this point, who knows?), this was not the right case. My guess is that explains why Gorsuch did not join Thomas, as opposed to him changing his mind about undoing the First Amendment.

Judge Newsom in the news

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

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

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

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

Random reactions to some items in the news

My response to some random news items.

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

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

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

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

Boston's flagpole program not government speech

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

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

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

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

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

HB7 lawsuit

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

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

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

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