Thursday, December 07, 2023

Many camps respond to the antisemitism hearing

From bouncing around the internet, it seems to me that reactions to the context matters remarks from the three university presidents fall into three camps:

Camp One: They were right, although they did not express the point well. This is the First Amendment community, me included. I recommend what Lee Kovarsky and Eugene Volokh wrote, basically arguing there is no "genocide exception" to the First Amendment. Maybe the presidents could have said it better, but the essential point--context matters--is correct and unavoidable under the First Amendment and these universities' voluntary commitments to free speech. Update: Two more in this camp: Popehat (no surprise--he offers some good examples of what falls on which side of the line) and David Lat (who makes a version of my argument that conservatives will be singing a different tune if Magill follows through on her suggestion to decouple Penn's code of conduct from the First Amendment and the university cracks down on Students for Life of America).

Camp Two: They were wrong; any mention of eliminating Israel is a call for genocide and any call for genocide is a threat or harassment to any individual Jewish person who hears it. This is the ADL, Hillel, and other Jewish organizations. This is many of the non-lawyers, especially alums of the three schools, who do not understand or care about free speech, at least where they dislike the speaker and like the target of the speech. This camp is going to be very upset when Jewish students who support the Hamas war are sanctioned for supporting genocide. (Update: Most importantly, Camp Two wants these presidents to resign in disgrace).

Camp Three: The sudden solicitude for hateful and offensive speech is problematic and insincere because they have not (and likely still would not) express similar solicitude for calls for genocide against Black people or Palestinians. This seems to be many conservative and/or Jewish lawyers and legal academics. It perhaps is Stefanik, had she gotten different answers at the hearing(although, again, bad-faith actor, so who knows?). I think many in this group share the free-speech commitments of Camp One, but doubt the presidents will continue to do so. They watched schools come after speech and speakers because groups other than Jews felt "unsafe" or "threatened;" they watched schools issue public statements and offer support over numerous major world events that affected students as citizens of the world but did not affect the university as university; they watched solicitude and lack of consequence for students who occupied public spaces (the sort of content-neutral regulations universities can enforce). Yet when Jewish students felt unsafe on campus or when Jewish students were affected by world events, they were silent--no (or mealy-mouthed) public statements, a sudden understanding that hateful speech is protected, and a sudden devotion the Chicago Principles. Camp Three also worries about where we go next--when the next big event triggers different speech targeting different groups, how will universities act?

For the moment, therefore, Camp Two and Camp Three align--the presidents' answers were unacceptable and morally bankrupt and all should resign in disgrace. The question is where Camp Three goes as we move away from the heat of this hearing. I believe many in Camp Three recognize that the presidents were right and context does matter. And they must know that going to Camp Two likely will be worse for Jewish students, conservative students, and other preferred speakers. A second question, as I think I have said before, is how to respond when university leaders do the right thing for the wrong reason. If universities should abide by Chicago Principles and allow constitutionally protected offensive speech, should Camp Three accept and work with the right result, even if they reached it for the wrong reasons. Some of this may be suspicion that the commitment will not last when Jews are not the target (see above). But if so, it seems to me Camp Three's response to the hearing should not match Camp Two. Instead, it should be "welcome to the party, pal, but we will be watching to ensure you adhere to these newfound commitments. And your failure to do so may provide a basis for Title VI liability."

Posted by Howard Wasserman on December 7, 2023 at 11:27 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, December 06, 2023

Penn abandons the First Amendment (Updated)

Lee Kovarsky and Eugene Volokh offer great defenses of the presidents' answers at Tuesday's hearing, reaching similar conclusions to me in more articulate terms.

Unfortunately, the bad-faith pressure provided too much. Penn President Liz Magill posted a video, apologizing for answering the "does this violate the code of conduct" question in constitutional terms and stating her views that calls for genocide are threatening. She announced plans to reconsider the university code of conduct, with particular reference to whether calls for genocide should be punished as harassment or intimidation. As she put it, "Penn's policies have been guided by the Constitution and the law," but those policies must be "clarified and evaluated" in light of the new rise in antisemitism on campus and across the country.

This is bad for several reasons. As Eugene argues, students must be free to debate important moral, political, legal, and historical questions of when political violence and large-scale loss of civilian life is justified--in Gaza, in Israel, in Germany or Japan during World War II. Those debates are impossible if the university deems such discussions to threaten those who are part of or affiliated with the group suffering in war.

Supposed supporters of Jewish students and Israel may come to regret changes to the policies. Many regard Israel's war on Hamas as a genocide; Jewish supporters of Israel's war effort therefore violate the revised code that regards promoting genocide in the abstract as "threatening" some undefined and unknown Palestinian students. (An emailer described to me an incident at a private university in which a student was reprimanded for saying those defending Hamas are defending baby-killers and thus offending those students--not too far afield. Refusing to have the Constitution and law guide university policies can only lead to more such incidents). Supporters of Israel and Jewish students complain that universities have failed to protect Jewish students from offensive speech in the past two months when they have bent over backwards to protect every other groups from offensive speech. This is a fair criticism. But the answer cannot be to give universities an actual weapon--more-restrictive/less-speech-protective conduct codes-- that universities might use against Jewish speakers.

Finally, of course, the change will not appease bad-faith actors. When Penn applies its new, less-protective policies to sanction a Jewish student who "harassed" a Palestinian student by supporting "genocide" in Gaza, Elise Stefanik and Virginia Foxx will demand that Magill explain why her university has abandoned the freedom of speech.

Update: Claudine Gay (Harvard) issued the following statement:

There are some who have confused a right to free expression with the idea that Harvard will condone calls for violence against Jewish students. Let me be clear: Calls for violence or genocide against the Jewish community, or any religious or ethnic group are vile, they have no place at Harvard, and those who threaten our Jewish students will be held to account.

The first sentence works and would have been helpful at the hearing. I think the devil is in the last clause of the second sentence--does "threaten our Jewish students" mean in the First Amendment sense or in the colloquial sense?

Posted by Howard Wasserman on December 6, 2023 at 09:33 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Harvard Hillel responds to President Gay

Harvard Hillel was not pleased with university President Claudine Gay's testimony, especially her answer about "context" to Stefanik's question. It sent the following email:*

[*] For those wondering, since I did not go to Harvard: I donated to Harvard Hillel in Dan's memory years ago. One cannot escape their mailing list.

Here is the key paragraph:

We are appalled by the need to state the obvious: A call for genocide against Jews is always a hateful incitement of violence. President Gay’s failure to properly condemn this speech calls into question her ability to protect Jewish students on Harvard’s campus. Chants to “globalize the intifada,” an endorsement of violent terrorist attacks against Jewish and Israeli civilians, and “from the river to the sea,” an eliminationist slogan intended to deprive Jews of their right to self-determination in Israel, have become tragically routine at Harvard. President Gay’s testimony fails to reassure us that the University is seriously concerned about the antisemitic rhetoric pervasive on campus. We call on President Gay to take action against those using threatening speech that violates our community standards. 

Again, this errs as matter of basic U.S. free speech law. And note the move--in the first sentence it is incitement of violence, in the second it is threatening. But with more--- context---nothing in this paragraph is legally accurate.

In fairness to Hillel, its mission is different than that of members of Congress or attorneys; it acts on commitments other than free speech. But if politics is the art of the possible, Hillel would be better served by recognizing and working within the limitations that free-speech commitments impose, rather than denying they exist and thus demanding what a university or government cannot give.

I reprint the email in full after the jump.

Dear Harvard Hillel Community,


Earlier today, Harvard President Claudine Gay testified before Congress about rising antisemitism at Harvard. When pressed during her testimony, President Gay repeatedly equivocated, refusing to characterize calls for the genocide of Jews as a breach of Harvard’s code of conduct, instead saying the offense “depends on the context.” 


President Gay’s refusal to draw a line around threatening antisemitic speech as a violation of Harvard’s policies is profoundly shocking given explicit provisions within the conduct code prohibiting this kind of bullying and harassment.


We are appalled by the need to state the obvious: A call for genocide against Jews is always a hateful incitement of violence. President Gay’s failure to properly condemn this speech calls into question her ability to protect Jewish students on Harvard’s campus. Chants to “globalize the intifada,” an endorsement of violent terrorist attacks against Jewish and Israeli civilians, and “from the river to the sea,” an eliminationist slogan intended to deprive Jews of their right to self-determination in Israel, have become tragically routine at Harvard. President Gay’s testimony fails to reassure us that the University is seriously concerned about the antisemitic rhetoric pervasive on campus. We call on President Gay to take action against those using threatening speech that violates our community standards. 


We do agree with President Gay’s testimony that education on antisemitism is urgently needed at Harvard. Harvard Hillel is ready to work with the administration to bring robust education and training on the history of the Jewish people and the evolution of antisemitism to every audience at Harvard — administration, faculty, staff and students.   


We will continue to hold the University administration accountable to make Harvard a place that Jewish students can learn, live, and thrive without fear and intimidation. 

Posted by Howard Wasserman on December 6, 2023 at 10:16 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

More oxes, more gore, more free-speech opportunism

The House Committee on Education and the Work Force held a hearing with the balanced title Holding Campus Leaders Accountable and Confronting Antisemitism, with Claudine Gay (Harvard), Liz Magill (Penn), Sally Kornbluth (MIT), and Pamela Nadell (History & Jewish Studies, American). Video (I have not had a chance to watch yet) here; news reports here, here, here, and here. More detailed report here.

Committee Chair Virginia Foxx (N.C.) set the tone in her prepared remarks:

Today, each of you will have a chance to answer to and atone for the many specific instances of vitriolic, hate-filled antisemitism on your respective campuses that have denied students the safe learning environment they are due. As you confront our questions in this hearing, remember that you are not speaking to us, but to the students on your campus who have been threatened and assaulted and who look to you to protect them.


Harvard also, not coincidentally but causally, was ground zero for antisemitism following October 7th and is the single least tolerant school in the nation according to the Foundation for Individual Rights and Expression’s 2024 College Free Speech
Rankings. UPenn is right behind them at 247th of 248. MIT is in the middle of the pack.

First, I am old enough to remember Republicans seeing large numbers of students who claimed to have been denied a "safe learning environment" because of "vitriolic, hate-filled" speech (anti-Black, anti-immigrant, anti-LGBTQ+, anti-feminist)--and deriding those students as "snowflakes" who need to grow up and learn to hear and engage with ideas they disagree with, even if they find them offensive. Now, students are "threatened and assaulted" by offensive speech; universities have failed to protect these wronged non-snowflakes; and students earn invitations and special mention at congressional hearings. I also am old enough to remember Republicans complaining about universities issuing public statements about current events and condemning speakers for certain expression. Now university leaders lack the "moral clarity" and "courage to delineate good from evil and right from wrong." And thus to do what? I guess shut down or sanction offensive speech or issue public statements against it.

Second, Foxx's demand for universities to "do something" about all this antisemitism conflicts with the criticism in the second quoted paragraph. Because much of the antisemitic speech people complain about remains constitutionally protected,* shutting down or criticizing that speech would earn these schools worse rankings in FIRE's next survey. FIRE evaluates not only formal university efforts to shut down speech but also the extent to which students "feel" that they cannot speak because fellow students and university officials think less of them and/or criticize them for their ideas. Both are what Foxx seems to demand of Harvard, Penn, and MIT. (If it is not clear, I think the FIRE survey is scientifically nonsensical. That Republicans have weaponized it in this way all the more so).

[*] Examples of actual assaults or unprotected speech are relatively rare. Some unprotected speech and conduct--occupying buildings, interrupting classes, projecting images onto buildings, chalking--lacks protection regardless of its antisemitic content. We perhaps can make hay if schools refuse to punish those who engage in unprotected activities or punish them differently than those who engage in the same activities with different messages. (See, e.g., the non-punishment of some pro-Hamas/anti-Israel events at MIT).

Things unsurprisingly went downhill from there. The exchange garnering the most coverage features Rep. Elise Stefanik (NY) asking whether calling for the genocide of Jews (a fair interpretation of "from the river to the sea") violates university codes of conduct or constitutes bullying or harassment. Magill, Gay, and Kornbluth all responded with some form of "context matters," looking at whether it is directed or whether it crosses into conduct.

But context does matter, at least for public universities and private universities (such as these and most elite research universities) agreeing to abide by the First Amendment--as these and other Republicans have been demanding for years when it comes to speakers they like demeaning, offending, and harassing listeners they don't like. A general call for genocide that does not cross into true threats, incitement, or harassment--which is to say most such speech--retains constitutional protection and thus cannot violate a code of conduct interpreted in light of free-speech concerns. Perhaps the presidents' erred in not framing their discussion of context in an explicitly First Amendment framework. While discussing "context" and "wide berth to freedom of expression," none presented in concrete terms of what this means for codes of conduct and what speech is permitted on campus. Or perhaps respond this way--"if Nazis can march in Skokie, Hamas-loving students can chant 'river to the sea' at Harvard."

I apologize that I am becoming (have become?) redundant on this. But the point remains relevant so long as political leaders (and advocates, some of whom I assumed knew better) make bad-faith statements at bad-faith hearings that show their commitment to free speech lasts as long as their agreement (or lack thereof) with the speech at issue and their sympathy (or lack thereof) with the targeted-and-unsafe student group. And I return to my initial question--what do they expect university presidents to do and who will they react when university leaders address other "viotriolic, hate-filled" speech? On that, this Politico interview with Eugene Volokh hits on many of these issues. Although the piece mentions the coming hearing, Volokh does not talk about it in the Q&A. Based on his answers, I expect (hope) he would be as critical of this hearing and this general conversation.

The 3d Annual Law vs. Antisemitism Conference, hosted in February at FIU, will include a roundtable discussion on campus antisemitism and free speech. We will try to work through these issues.

Posted by Howard Wasserman on December 6, 2023 at 10:04 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday, December 02, 2023

Oxes, goring, etc.

One important argument for protecting speech you find offensive rests on the impossibility of laying down a principled standard to separate speech and speakers you find offensive from speech and speakers that others find offensive but that you like. If you succeed in getting government to sanction the former, it opens the door to government sanctioning the latter. And you cannot do anything about it without drawing accusations of hypocrisy.

Case in point: Universities have sanctioned faculty members for pro-Israel/anti-Palestinian/anti-Hamas speech. In several ways, they present the mirror of cases involving anti-Israel/antisemitic/pro-Palestinian/pro-Hamas speech:

    • No one can agree on which is which. Did the USC prof wish death on Hamas or on all Palestinians? Did he intentionally step on the memorial display or only accidentally? The current crisis has created a counterpart to "is anti-Zionism antisemitism"--is "anti-Hamas anti-Palestinian." Whatever the merits of the questions and whatever the distinctions one can draw (based on one's views of the content at issue), government should not be drawing them.

    • Apologies are as sincere as the listener is sympathetic to the apologist's speech. One case involves a doctor at Johns Hopkins who called Palestinians "morally depraved" and "savage animals" and responded "god willing" to claims that his call for reclaiming every inch of Israel would produce large-scale slaughter. He apologized, saying his "messages in no way reflect my beliefs, me as a person, a physician, a friend, or colleague." A reporter for the Washington Free Beacon called for Hopkins to forgive the doctor. Why? Because the doctor treated the reporter's daughter--"as the father of a Klugman patient, I know he means it. Why? Because I witnessed with my own eyes how he delivered medical care.” I will let the absurdity of that last part sit without comment.

It would be great if people calling for bans on SJP and similar campus speech would see this story as a warning, as a logical risk (if not inevitability) of their efforts. I doubt it will.

Posted by Howard Wasserman on December 2, 2023 at 06:13 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, November 27, 2023

Brown University faculty commit category error

More than 260 faculty and staff at Brown University signed an open letter to President Christina Paxson urging the university not to pursue criminal or student-conduct charges against a group of students arrest for staging a sit-in at a campus building.

 The letter attempts to play "gotcha" with Paxson. They cite her statement to faculty about ensuring "that individual members of the community are free to voice their views, including using their voices to urge lawmakers or other universities to take specific actions or, more generally, express their beliefs on matters of conscience." And they cite her NYT op-ed decrying past instances of state censorship ship of everyone from Galileo to Darwin to communist professors and how those censors were on the "wrong side of history." It follows, the letter argues, that the sit-in enjoys the same constitutional protection, because "freedom of expression is not restricted to speech but includes the right to protest and to perform civil disobedience." The students "undertook a peaceful act of civil disobedience, following a time-honored American tradition."

Whatever the merits of the request, the authors commit a category error in conflating civil disobedience with protected speech and protest. Civil disobedience (including "peaceful acts of civil disobedience") does not enjoy First Amendment protection from sanction. Those who engage in civil disobedience do so to either protest and challenge unjust laws (e.g., lunch counter sit-ins) or to call attention to some other cause through disobedience (e.g., the letter's list of policy changes, such as South Africa divestment, that Brown has enacted in the wake of past sit-ins). The disobedience at issue here falls into the second category. But those who engage in that second category violate valid laws (e.g., a prohibition on occupying the university president's office) with the goal of drawing attention to their cause. They violate that law knowing--and believing it worthwhile--to face punishment and sanction in the name of a larger cause. We may regard that as noble or worthwhile, but it does not confer immunity from neutral, otherwise-valid regulations. And the school enforcing its rules about use of the office does not conflict with Paxson's stated support for free speech, including speech by those with marginal or unpopular views. These students enjoy many ways to advocate for a ceasefire, most of which would not--at a school, such as Brown, voluntarily binding itself to the First Amendment--run afoul of school rules or subject them to arrest or sanction.

We could, generously, read the letter as making a prudential point--the school should refrain from sanctioning them because of their motivations and because of Brown's long history of successful sit-ins and occupations. But that argument does not require the broader efforts to tie this to genuinely protected speech.

Posted by Howard Wasserman on November 27, 2023 at 03:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 22, 2023

PJ as a chilling tool

I wrote earlier this month about the Tennessee lawsuit against Kathy Griffin and how the many who believed personal jurisdiction was lacking allowed their substantive views to affect their jurisdictional views. It was possible, of course, that forcing a speaker to defend nonsense defamation claims in a distant forum adds to the chilling effect and the goal of silencing speakers.

Thank goodness Elon Musk and Twitter (never X) can illustrate the point with this tortious interference lawsuit in the Northern District of Texas against Media Matters and reporter Eric Hananoki, over an investigation into Twitter allowing ads to run next to antisemitic content, after which several major advertisers withdrew (for the moment) from Twitter.

Twitter is a Nevada corporation with its principal place of business in California. Media Matters is a D.C. not-for-profit with its PPB in D.C. Hananoki is a Maryland citizen. The speech was directed to the world via the MM website and other online and traditional media outlets. The complaint identifies several advertisers who withdrew, none incorporated or having PPB in Texas. The best it can do is that many Twitter users are in Texas and many of the advertisers do business in Texas. Unless they have something else, that will not cut it--there was no "Texasness" to the Media Matters report or to any criticism of Twitter. This is what speech-chilling personal jurisdiction in a speech-chilling BS lawsuit looks like.

Putting a cherry on this as a Civ Pro exam: The Fifth Circuit has held that state anti-SLAPP statutes do not apply in federal court, whereas the Ninth Circuit holds that California's statute does apply in Federal Court.

Posted by Howard Wasserman on November 22, 2023 at 01:17 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, November 21, 2023

Jews and Free Speech

In light of tensions on- and off-campus over rising Jew hatred and Jew-hating speech, I drift back to Skokie. That case marks a watershed for First Amendment protection of hateful speech. And it famously featured Jews on all sides: The speech targeted Jews; two Jews -- ACLU executive direct Ira Glasser and ACLU staff attorney David Goldberger--led the fight to protect that speech; and many Jews and Jewish organizations supported Skokie's efforts to stop the march and took issue with Glasser, Goldberger, and the ACLU.

So I wonder: What, if anything, does Jewish law say about free speech? Is there something Jewish about free-speech maximalism? Or is it the opposite? Curious if anyone has written on this.

Posted by Howard Wasserman on November 21, 2023 at 11:01 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

What is Michael Bloomberg talking about?

Michael Bloomber published an op-ed in Sunday's Wall Street Journal (on the "crisis in higher education" reflected in on-campus speech supporting Hamas and the October 7 massacre in Israel.  He presents the usual laundry list of complaints about past campus-speech issues, then claims--without explanation or logic--that those past issues cause the current campus antisemitism. It is nonsense.

Some commentators really want to argue that pro-Hamas campus speech is beyond the pale and universities should and can restrict it. But people spent a decade opposing--and crying "cancel culture" over--efforts to keep TPUSA and Milo Yiannopoulos off campus on the grounds of the speech being offensive. So we end up with Bloomberg's word salad.

1) College presidents have accepted and allowed conformity of views and intolerance for opposing views and students have not been "taught to engage in constructive argument and debate." This leads to "support for terrorism, dressed in the language of social justice" and students "default[ing] to slogans and slurs." What is the causal logic here? That students support Hamas because they were not exposed to brilliant competing ideas that would have changed their minds? That resistance to listening to offensive ideas leads one to support authoritarianism? That pro-Hamas students can do nothing but muster slogans and slurs, as opposed to the brilliant and well-thought-out civil and scholarly debate of "build the wall" or calling LGBTQ+ people "groomers" or whatever the hell Milo used to talk about.
2) College presidents issued statements over George Floyd, etc., but said nothing about October 7. Oh, and they ought to adhere to the Chicago Principles. I agree that the timing  is suspicious and that we have reason to fear presidents will return to prior practices when events target a group other than Jews. But if Bloomberg believes universities should get out of public statements, it seems to me he should welcome them seeing the light, regardless of when or why. So either Bloomberg wants presidents to speak out, contra Chicago principles, or his criticism of them is moot.
3) We need affirmative action for conservative faculty, apparently because conservatives are better able to "teach students how to engage in civil discourse." Obviously he has no support for that conclusion--some conservatives outside the academy certainly engage in plenty of uncivil discourse, so I do not know why it would be better if they are brought into the academy.
4) His paean to academic freedom ends with a call for trustees and university presidents to "manage" faculty, contrary to notions of shared faculty governance that form one cornerstone of academic freedom.
5) He gives the game away with these two sentences, several paragraphs apart, but revealing of just where he wants to take this. First, he says "[s]tudents who wish to hurl epithets and reveal their bigotry should be able to do so." But he closes the piece by saying "[t]he bigotry infecting campuses will spread until college presidents directly address its causes and their own role in fostering them." But if bigotry is constitutionally protected, as the first sentence suggests, what does Bloomberg want these presidents to do, as he raises in the last sentence? Kick the speakers off campus? Create safe spaces away from the offensive speech? Speak out and denounce antisemitism? That is, Bloomberg seems to want presidents to do to left-wing supporters of Hamas what Bloomberg and others complain universities have done to right-wing speakers over the past several years.

Posted by Howard Wasserman on November 21, 2023 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, November 17, 2023

A standing problem?

The University of Florida chapter of Students for Justice in Palestine, represented by the ACLU, has sued Ron DeSantis, Florida State University System Chancellor Raymond Rodrigues , UF President Ben Sasse, and the UF, and moved for a preliminary injunction. The complaint alleges that Rodrigues, on DeSantis' command, ordered all state universities to deactivate any recognized SJP chapters (USF and UF have chapters). The complaint adds that DeSantis promoted this idea during a recent GOP debate. The complaint does not allege that UF has, at this point, done anything in response to that order.

As structured, this creates a bit of standing (or is it ripeness--who the hell knows) puzzle. Rodrigues' order is not self-enforcing; it does not, of its own force, deactivate UFSJP and thus does not, of its own force, injure UFSJP, meaning Rodrigues does not injure UFSJP. How would an injunction against Rodrigues help UFSJP--perhaps by ordering Rodrigues to withdraw the order? The connection between DeSantis and UFSJP is more remote.

UFSJP's injury arises from UF deactivating it or threatening imminently to deactivate it, something UF has not done or even moved to do. The court could (and probably will) find that the order that chapters "must be deactivated" creates the necessary imminence--the order says UF must do this and UF cannot ignore that command, meaning it will, likely soon, take steps to deactivate. (Much as courts allow plaintiffs to file pre-enforcement challenges before an enacted law's effective date). But, taking the "doctrine" seriously, it is not an easy question. It certainly demonstrates the challenges and necessary precision for plaintiffs in framing these cases.

Posted by Howard Wasserman on November 17, 2023 at 10:48 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, November 16, 2023

Kavanaugh and Barrett on universality

SCOTUS refused to stay an injunction prohibiting enforcement of Florida's anti-drag law; Justices Thomas, Alito, and Gorsuch dissent.

Justice Kavanaugh, for himself and Justice Barrett (mostly) issued a statement respecting denial of the stay. It says in relevant part:

Rather, for purposes of its stay application, Florida challenges only the scope of relief ordered by the District Court—namely, that the injunction prohibits state enforcement of the law not only against Hamburger Mary’s but also against other entities that are non-parties to this litigation. To be clear, if this Court, for example, were ultimately to affirm the District Court’s First Amendment judgment on the merits, the State could not successfully enforce this law against anyone, party or not, in light of stare decisis. But district court judgments do not have that stare decisis effect. And the State here contends that the District Court otherwise lacked authority to enjoin the State from enforcing the law against entities other than Hamburger Mary’s. Therefore, the State says that it should be able to enforce the law against those non-parties during the pendency of its appeal.

No federal statute expressly grants district courts the power to enter injunctions prohibiting government enforcement against non-parties in the circumstances presented in this case. The question of whether a district court, after holding that a law violates the Constitution, may nonetheless enjoin the government from enforcing that law against non-parties to the litigation is an important question that could warrant our review in the future. But the issue arises here in the context of a First Amendment overbreadth challenge, which presents its own doctrinal complexities about the scope of relief.

I argued that the district court messed up the scope-of-injunction analysis. In particular, this was not a proper case for overbreadth, which Kavanaugh sees as the reason this case does not present the proper vehicle. Nevertheless, credit for recognizing that stare decisis provides the prospective non-party effect of this decision, whether binding or persuasive.

The opinion adds a footnote, which Barrett does not join, distinguishing enjoining enforcement of statutes and setting aside agency regs under the APA.

Posted by Howard Wasserman on November 16, 2023 at 10:37 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, November 15, 2023

More campus speech

Three private universities--Brandeis, Columbia, George Washington--have suspended campus chapters of Students for Justice in Palestine and/or Jewish Voices for Peace. Columbia and GW said the groups violated university policies--holding events or rallies without notice or permission or following procedures (Columbia) and for projecting images onto campus buildings. Press reports (or the universities) have been unclear as to whether they also acted against offensive messages in those unauthorized rallies or light projections. Assuming the universities bind themselves to free speech and academic freedom principles (as I imagine all, as prestige universities, do), that makes a difference as to whether they acted consistent with those principles. Universities can ban groups for not getting permits or for misusing buildings as a projection screen; they cannot ban groups when the problem is the content and viewpoint expressed. Relatedly, to the extent they acted to enforce these neutral policies, the decision must be consistent with past enforcement of those policies against other groups. Is a 90-day suspension the usual sanction for improper projection--or did GW act more harshly against SJP because it disagreed with its messages or viewpoint.

Two other new writing on this. The Academic Freedom Alliance yesterday issued a statement on campus protests, identifying principles that should guide universities in the current environment. Without naming names, AFA hits may point:

Members of the campus community have the right to engage in vigorous political debate and even to articulate extreme political views, but they have no right to try to intimidate or menace other members of the community, violate university policies or state and federal laws, or interfere with the education or lawful activities of other members of the campus community. Any violations of university policies should be expeditiously investigated and university rules protecting the integrity of its mission should be stringently enforced.

Eugene Volokh wrote about the phenomenon of "censorship envy"--a group demands censorship of offensive speech by pointing to past censorship of speech offensive to some other group. As Eugene describes it, the reaction is "[i]f my neighbor gets to ban speech he reviles, why shouldn't I get to do the same?" This principle captures the controversy over failure by universities and DEI offices to prohibit or even criticize some anti-Israel/antisemitic speech, in light of how universities and DEI offices have responded to other hateful or offensive speech in recent years.

Posted by Howard Wasserman on November 15, 2023 at 04:38 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Sunday, November 12, 2023

Sorkin on free speech

I have written about my change of heart regarding Aaron Sorkin--loved The American President, Sports Night, and West Wing at the time, now find everything about his work (including the earlier work on rewatch) insufferable and repetitive.

But in thinking about stuff happening on campus and the positions of many in the Jewish community on and off campus, this speech from American President sprung to mind: (this is from the president's press conference near the end, responding to GOP criticisms (in-story and real-at-the moment) of the President being a member of the ACLU and opposing flag-burning bans:

America isn’t easy. America is advanced citizenship. You’ve gotta want it bad, ’cause it’s gonna put up a fight. It’s gonna say, “You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.” You want to claim this land as the land of the free? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms.

Admittedly, still kind of insufferably over-the-top. But it contains the kernel of the right idea for Jewish students encountering discomforting, oppressive, offensive speech. Video after the jump.

Posted by Howard Wasserman on November 12, 2023 at 05:00 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, November 09, 2023

With great speech comes great responsibility

Interesting statement from University of Chicago President Paul Alivisatos on an important consequence of the Chicago Principles of campus expression:

The Chicago Principles protect the voice of each and every member of our community, inviting all to listen and to engage in a collective dialogue. The sum of this dialogue, noisy and fraught though it may sometimes be, is a kind of gift that we offer to each other through our considered participation. I write to remind you that the inheritance of our university’s environment of free expression comes with serious responsibilities.

He concludes "Our environment of free expression is a gift, and I urge each of you to honor and utilize our gifts responsibly so that we may all deepen our understanding." I think the statement is consistent with Paul's conclusions.

Posted by Howard Wasserman on November 9, 2023 at 09:54 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (2)

Monday, November 06, 2023

The remedy to be applied . . .

Irony can be pretty ironic.

Posted by Howard Wasserman on November 6, 2023 at 06:36 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Sunday, November 05, 2023

University hypocrisy on free speech

David Bernstein links to a letter from Bill Ackman (a hedge fund guy I confess to never having heard of, but apparently he is well known) to the Harvard administration detailing his conversations with Jewish Harvard students about the campus atmosphere for Jewish students. Ackman describes the atmosphere as "dire and getting worse, much worse than I had realized." Ackman notes the university's stated commitment to free speech, but responds in two ways. He points to the "legal limitations on free speech" (fighting words and true threats), which simply are not present here, even in the "eliminationist" "river to the sea" message.

And he points to Harvard's past track record on campus free speech (citing, unfortunately, to FIRE's questionable ratings system) and arguing the claim "rings false and hypocritical to the university at large and the Jewish community in particular." Ackman repeats the point that David and I raised--universities did not discover the "right" approach to speech controversies--stay out of public controversies, respect that speech can be ugly and make people uncomfortable--until Jewish students were in the crosshairs.

But I keep coming back to what Ackman (or anyone else) wants Harvard and other universities to do. Ackman makes 7 asks. The second and third involve identifying and sanctioning protesters chanting "Intifada and other eliminationist statements" and students making antisemitic statements or sharing antisemitic imagery in Slack message boards--without regard to many (most?) of these chants and messages being fully constitutionally protected--ugly, but constitutionally protected. While demanding "an environment with true freedom of expression," he seems to want Harvard to treat antisemitic speech the way schools had been treating anti-Black, anti-LGBTQ+, anti-immigrant, anti-abortion speech in prior years.

So if not that, then what? If schools should not continue the same erroneous course, we should be glad that they have seen the light. even under suspicious circumstances and for suspicious motivations--that the same messages directed at any other group would be widely denounced if not silenced). There may be an independent benefit to calling out that inconsistency, either to prompt schools to acknowledge past mistakes and to agree not to return to the old approach when the speech targets other groups. School have not done either, enabling the hypocrisy charge. (David made this point in an email exchange, and I agree).

But Ackman--and others--want more. Ackman's fourth ask is that Harvard facilitate the process of identifying racist and antisemitic students for future employers or grad schools. But this triggers a distinct free-speech debate. On one side is the employer's or (private grad program's) free speech and free association interests--cancel culture as "more speech." On the other is the specter of McCarthyism and black lists that Genevieve Lakier (Chicago) highlights. To have Harvard (which is the "government" in this context) enable those blacklists or to have public grad programs enforce them might strengthen the analogy.

Addition: Michelle Goldberg captures the big picture on this, noting the collision between calls for Jews and Israelis to receive the same protections that other groups have received against "identity-based slights" and the First Amendment rights of Zionism's critics and academic freedom. She speaks with Kenneth Stern, director of Bard College's Center for the Study of Hate and author of a 2020 book (with forward from Nadine Strossen) on how Israel/Palestine has played on campus.

Posted by Howard Wasserman on November 5, 2023 at 11:47 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday, November 04, 2023

Substantive frivolousness and jurisdictional frivolousness

The Sixth Circuit held Friday that there is personal jurisdiction in Tennessee in a defamation suit against comedian Kathy Griffin over her tweets about Samuel Johnson, who was recorded harassing a prom-bound LGTBTQ student. The court found jurisdiction on three key facts:Griffin tagged and addressed some tweets to the Board of the Tennessee-based health-care company of which Johnson was CEO, urging that he be fired and and removed from the board (the claim is for tortious interference with employment and IIED); the tweets focused on the Tennessee-based activities of a Tennessee citizen and his continued employment in Tennessee; and she relied on a video of a video of the incident produced in Tennessee. The court distinguished precedent rejecting PJ in a case arising from Griffin's Twitter activities over the Nick Sandmann incident in 2019.

The First Amendment community took an unusually strong stance on the PJ issue in this case. (Griffin spoke about the case, including jurisdiction, on an episode of the Slandertown podcast). But personal jurisdiction seemed obvious in this case. The plaintiffs, and First Amendment commentators, emphasized the Sandmann cases. But the court rightly distinguished precedent, where the relevant events occurred outside Kentucky and the statements about the case went to the world; given the absence of "Kentucky-ness" over the coverage, I doubted Kentucky courts would have jurisdiction before anyone filed suit. Here, on the other hand, the people, events, and consequences of this case were entirely in Tennessee; the only things outside Tennessee were Griffin and many (probably most) of her Twitter followers. The case possessed that "Tennessee-ness" necessary for the effects test.

I wonder if the First Amendment folks conflated substance and procedure. They view the case as frivolous, because Griffin's statements were some combination of true, opinion, and hyperbole that cannot form the basis for defamation or IIED liability or, it should follow, an employment claim. This, they argue, is another example of performative defamation litigation designed to chill Griffin's internet advocacy (Griffin is a target for trolls and others); Johnson sued to shut her up. And making her not only defend, but defend in a distant place, furthers the silencing goal. But substantive frivolousness does not necessarily translate to jurisdictional frivolousness--that the lawsuit is nonsense does not mean the location is independent nonsense. Geographic inconvenience could form a piece of the performative nonsense--see Rudy Giuliani's defamation suit against Joe Biden in New Hampshire. But not always. And not here. Imagining the case had merit (as a court must in determining jurisdiction), this lawsuit is about Tennessee.

Griffin moved in the trial court to dismissed under 12(b)(2) and 12(b)(6), but the district court did not address the latter. She asked the court of appeals to do the 12(b)(6) analysis and dismiss, but the court wanted the trial court to take the first pass at that issue.

Judge Cole concurred. He argued that jurisdiction rests on the tweets tagging or speaking to the company and discussing Johnson's employment; absent those tweets, the case looks different. He might have come out the other way if Griffin's original tweet had described Johnson but not mentioned the company by name or location. That different case would turn on Johnson's conduct and Griffin's role as an LGBTQ+ activist and whether she was passively discussing events on the internet or whether she directed electronic activity into Tennessee with the intent to engage or interact with people or businesses there. I do not know what to think of that. On one hand, courts must recognize the undivided nature of internet communications--it is impossible for one Twitter user to control who views her tweets where, such that any communication is directed everywhere, not to the forum state. On the other hand, the analysis should acknowledge when a speaker in Califonia speakers to the world about an exclusively Tennessee thing.

Cole added this at the end: "Our opinion also does not comment on the veracity of Johnson’s allegations in making our personal jurisdiction determination." True and not disputed. But interesting that he saw need to mention the point and head off any suggestion that finding jurisdiction suggests the suit has any merit. Maybe this is why the First Amendment crowd was so vested in the court finding a lack of jurisdiction.

Posted by Howard Wasserman on November 4, 2023 at 12:34 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, November 01, 2023

More on campus speech

First, Neil Buchanan offers a different take on the limited options (beyond moral suasion) available to universities.

Second, the ACLU joined FIRE in criticizing the ADL's calls for universities to shut down SJP. The letter references the chilling effect from "ideologically motivated efforts to police speech" during the McCarthy Era. The ADL did not take the comparison well--'We are not talking about so-called ideological differences; we are talking about actual threats of violence directed towards Jewish students. Frankly, we would rather the see the ACLU spend its time defending the rights of Jewish students to attend school safely and free from the threat of violence.”' Of course, we are not taking about "actual threats of violence," as the First Amendment understands that concept. And the refusal to recognize that explains the university's bind.

Posted by Howard Wasserman on November 1, 2023 at 06:04 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Lowering Expectations or What are universities supposed to do?

Jewish advocates; pro-Israel and Jewish students, alums, donors, faculty and others; the Biden Administration; and others are demanding that university leaders "do something" about the recent wave of campus antisemitism/Judenhass, to "do something" to keep Jewish students safe. A serious question, though: What are universities and university leaders supposed to do?

Begin with several premises:

    1) Jewish students and others have faced a wave of antisemitic speech, speakers, and conduct, to a degree most American Jews have never experienced.

    2) Much  antisemitic speech (as with most hate speech) is constitutionally protected. Horrible and unnerving, but constitutionally protected. It takes a lot for speech to cross the line into harassment, incitement, fighting words, or true threats. Much of what we have seen on campuses the past 24 days does not cross (or even come near) that line. This is partly definitional--people disagree over what speech is or is not antisemitic. That demonstrates one problem with trying to ban "hate speech"--people will never agree on what it is, especially when applied to one's own speech or to those groups one cares about.

    3) Public universities are subject to the First Amendment. Many private universities and colleges (and most selective private institutions) voluntarily--and perhaps as a matter of contract--self-impose the limits reflected in the First Amendment. Almost all universities commit to academic freedom, which means allowing faculty (and perhaps students, depending on one's theory) the full range for in-class, scholarly, and extra-mural speech.

So now what?

Many parents, students, faculty, donors, high schools, and others want the university to shut this speech down and punish those who engage in it. They want SJP defunded or barred from campus. They want the university to expel the student who posted on social media that Jews (or at least those who attended a pro-Israwl rally) can burn in hell. That is not an option, given the premises above.

Chemerinsky asks that "we stop being silent and  . . . say the antisemitism must be condemned and it is not acceptable on our campuses[.]" It is "all the more important that they show moral leadership and speak out against the antisemitism that is rampant now, as they would condemn all other forms of racism and hate on campus." Accept Chemerinsky's point that schools must speak out and condemn. Is  speaking out and condemning sufficient? Would a university satisfy donors, parents, faculty, students, and interweb pundits everywhere by calling out antisemitism generally or specific acts and actors? And would calling out antisemitism stop it and thus keep Jewish students safe--would name-and-shame from the dean deter anyone committed to engaging in antisemitic speech? Does any committed advocate care that the dean or the university president labels their speech antisemitic or criticizes them? Maybe public statements will convince some people watching this to recognize the problem of antisemitism and to support their Jewish colleagues. But that does not stop the "unacceptable" antisemitic speech on the campus from those who choose to continue to engage in it.

Schools (and the government) must pursue speech that crosses the line--true threats, bomb threats, protests that descend into violence (such as the video of Harvard protesters surrounding and blocking a Jewish student trying to walk across campus). Schools must ramp-up security to ensure that bad speech does not turn into bad conduct. But they must do so in a way that does not chill protected speech (the majority of what we are dealing with) and not in a way that turns the university into a police state.

Schools should enforce content-neutral rules and laws--for example, rules against tearing down other people's fliers in public spaces or rules against projecting words and images onto campus buildings. But most such rules carry relatively minor sanctions, far less than what many are demanding. And schools cannot punish unauthorized antisemitic tearing or projecting more harshly than other unauthorized tearing or projecting.

Schools can stop and sanction discriminatory conduct--the teacher who makes Jewish students stand in a corner, the resident assistant who refuses to help Jewish students, the work-study supervisor who treats Jewish students less favorably. And they can stop speech and conduct taken on behalf of or as the university. But, again, that represents a small piece of this.

David Bernstein criticizes universities' (including George Mason, his home institution) silence the past three weeks compared with how universities pushed DEI training and issued public statements on non-campus major world events about which non-Jewish students cared. I agree that administrators have been inconsistent. But then what? Accepting (as David does) that universities should not opine on world events, is it good that universities came belatedly to the right path, even if for the wrong reason? Or should the university continue its erroneous path because it affects "my" group?

So if universities cannot impose consequences on most abhorrent speech and university statements will be little more than symbolic, what is left? The answer seems to be the dreaded cancellation--privately imposed social, economic, employment, and other consequences, that express the canceller's response to offensive speech. This could be hard (recording and shaming those who remove fliers of kidnapping victims) or hard (loss of jobs and other positions). I am not arguing that this is the right thing to do. I recognize the problems--the risk of tit-for-tat and the general fear it creates among those who wish to speak. But if the goal is to "stop" antisemitism--something that, let's face it, no one has been able to do for millenia--it represents the only way to impose meaningful consequence and thus deterrence. Alternatively, people must lower their expectations and accept that loud-but-symbolic support from the university and from fellow students (such as the non-Jewish students going to eat at Cornell's kosher dining hall), along with vigorous policing of unprotected activity, is the best we can do under the First Amendment.

Posted by Howard Wasserman on November 1, 2023 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday, October 28, 2023

More on deactivating SJP

The ADL and the Brandeis Center for Human Rights sent a letter to 200 university presidents, urging them to investigate, and presumably defund and deactivate, student chapters of Students for Justice in Palestine. I mentioned Florida's efforts and FIRE's letter to Florida university presidents. Eugene Volokh argues this turns on a factual question that the public does not know and that the university might know--the degree of coordination between individual SJP chapters, national SJP, and Hamas. Under Holder v. Humanitarian Law Project, federal material support statute does not (and probably cannot) reach independent, non-coordinated speech, even in support of a terrorist organization or its cause and efforts. The question is whether SJP's claim to be "part of" Hamas is real or rhetorical hyperbole and the degree of independence among Hamas, national SJP, and individual SJP chapters.

Needless to say, the ADL letter (like the initial memo from the Chancellor of the Florida State University System) is not as nuanced as Eugene's analysis. It lists a lot of stuff--"'SJP chapters are not advocating for Palestinian rights; they are celebrating terrorism'" and promoted anti-Israel channels--that is pure, constitutionally protected speech. The vaunted SJP "toolkit" encourages fliers, protests, teach-ins, and other events on U.S. campuses. This seems far from the activities in Holder--training designated groups in using international law and international organizations to get things and engaging in advocacy for these groups.

The ADL letter ends with the usual:

We fully recognize and support students’ First Amendment rights to freedom of speech, even odious speech. We remain committed, however, to calling out and speaking out against antisemitism and anti-Israel bias. And we certainly cannot sit idly by as a student organization provides vocal and potentially material support to Hamas, a designated Foreign Terrorist Organization.

Note the key move: It believes SJP is doing two things wrong--providing vocal support to Hamas and (potentially) providing material support. That is, it acknowledges that vocal support is not material support, at least without more. But vocal support for terrorism--just saying out loud terrorism is a good thing or that some act is not terrorism but resistance--should (must?) remain constitutionally protected, even under the broadest reading of Holder.

Posted by Howard Wasserman on October 28, 2023 at 04:51 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, October 27, 2023

Ginsburg on institutional neutrality

Tom Ginsburg (Chicago) urges universities to adopt the Kalven principles of university neutrality towards the events of the day. Ginsburg highlights a couple interesting points. First, "[a]fter many years of speaking out so regularly, schools look defensive when adopting a stance of silence only when a large massacre of Jews occurs." (I made a similar point). Second, departmental statements present larger problems than university statements--junior faculty and grad students feel a greater "need to toe a party line announced by those who control tenure and resources" than by a distant university president, especially in those departments that "seem to treat public-facing statements as being as central to their mission as is research."

Posted by Howard Wasserman on October 27, 2023 at 08:58 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, October 26, 2023

Nazis without antisemitism?

In the Star Trek episode Patterns of Force (included in most lists of top-1o Original Recipe episodes), Kirk and Spock encounter a planet with a government modeled on Nazi Germany. A human history professor (maybe supposed to be Kirk's mentor) established the system because Nazi Germany was the most efficient state in history and he believed that such a state, benignly run, could succeed. The episode makes the generic "absolute power corrupts absolutely" point, but not much more. Kirk and Spock stopped spinning the dreidel and dressed in Nazi uniforms, although the word "Jew" does not appear in the episode (Original Star Trek is a generally secular-and-irreligious world).

The premise of the show is ridiculous in all respects. Nazi Germany was a kleptocracy. More importantly, Nazism cannot be benign--its "race-and-space" idea demands an other to conquer. Still more importantly, for Nazism (as opposed, perhaps, to general fascism) the other must be Jewish. Judaism was the regime's central obsession. The Nazis killed or imprisoned other groups, but not in the same numbers and not with the same focus. For example, some LGBTQ people might escape death by agreeing to fight or to marry and bear children for the Fatherland--certainly human rights violations denying their personhood and humanity. Jews did not enjoy that option.

I thought of this as Ron DeSantis attempts to curry favor with Jews by ignoring the First Amendment to stop pro-Hamas speech and groups. The same Ron DeSantis refused to condemn the neo-Nazis marching in full Nazi regalia (so, again, not general fascists--Nazis) in front of Disney World and other places in and around Orlando. How do we square that? Many of these Nazis (particularly the groups outside Disney; other groups did target area synagogues) do not hate Jews--or at least do not make Judenhass their central tenant. Their central obsession is LGBTQ+ people and the "groomers" at Disney; since DeSantis hates the same group of people, he was not inclined to condemn them. And since he does not associate this group with antisemitism or antisemitic speech, he does not lose credit with the Jewish community for failing to do so when he targets different antisemitic speech from a different group.

Posted by Howard Wasserman on October 26, 2023 at 08:46 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, October 25, 2023

First Amendment Projection (no, not that kind) (Updated)

GW students projected antisemitic/anti-Israel messages onto a campus building. The messages ("Palestine from the river to the sea") are protected. They were "spoken" from a public space in which they had the projector. The only  issue is that they expressed them by projecting words onto the sign of a university building. So what is the property and First Amendment law for projecting images and messages onto someone else's property? (For the moment, accept that GW intends to hold itself to First Amendment obligations).

    • Is it akin to defacing a property with paint, or chalk, or paper. Government therefore can prohibit (or stop once started) any use, including expressive, of its non-forum property. Perhaps subject to not doing so in a viewpoint-discriminatory manner. I do not believe there is any history of this practice, so GW has not designated this as a public forum.

    • Does it not involve use of the property at all? Is projecting onto a building no different than projecting the images, a la the Bat Signal, into the sky? Therefore, it is speech made off and without using government property, so government cannot prevent or stop it, within First Amendment bounds.

    • If projection involves "use" of the property, what governmental interest justifies stopping that use. Not preservation of the property, since the projection does not harm or affect the property. That leaves something like wanting to keep the building clear of images, perhaps for concerns that everyone will start projecting stuff--although it can serve that interest with a lesser policy, such as a first-come-first serve or other TPM rules. Or it leaves an interest in avoiding the risk or appearance of government association with the messages.

As with other campus groups and protests, the noise-to-signal ratio is out of whack. The point is not that the students expressed antisemitic ideas or that the ideas make Jewish students feel "unsafe." That is the world of free speech. The only point is the rules around projection--whatever they turn out to be.

Update: LeeAnne Fennell (Chicago) shares Maureen Brady's 2020 HLR article and Lee's JOTWELL review on the issue. Maureen focuses on private property, arguing for something like nuisance incorporating anti-commandeering and the dignitary interest in avoiding misatttribution. Government property raises distinct issues, although the misattribution point carries forward. I think Brady and Fennell would agree that 1) projecting onto the government building is different than projecting into the sky and 2) the use of the property, independent of damage to the building, implicates a government interest.

Update: GW issued a statement. Projecting violated university policy (whatever that means), the university is investigating, and the university will take "any appropriate steps" under university policy--plus all the usual "does not reflect our values/we're here for you" pablum. Based on the comments to the tweet, the statement did not satisfy people who want the university to expressly decry antisemitism and/or want the students expelled.

Focusing just on the last point: During the 2016 election season, Emory students chalked "Trump 2016" message on campus, apparently outside of the space where chalking is allowed. Various lefty campus groups went nuts about the "pain" and the university investigated and threatened the students with punishment. Obviously, the university could sanction students for chalking in violation of university policy; it could not (if committed to abiding by the First Amendment) impose a stricter sanction for out-of-space chalking of pro-Trump messages than of anything else. That is, if chalking is not grounds for expulsion, chalking "Trump 2016" cannot be grounds for expulsion The same goes here: If projecting images onto a campus building is not grounds for expulsion (and I doubt it is), projecting antisemitic images onto a campus building cannot be grounds for expulsion. This is Free Speech 101.

On the first point, critics of GW may have a point. Emory's President met with several dozen students and expressed understanding for students' "genuine concern and pain" and ordered revision of bias-reporting proceedings. GW's statement (which as one commentator points out did not mention Jews or antisemitism) does no such thing.

Posted by Howard Wasserman on October 25, 2023 at 11:45 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, October 24, 2023

Dammit, Florida, stop making me defend this crap (Update)

If government would accept that horrible ideas and those who speak them are protected, life for free-speech maximalists would be easy. Horrible speakers can engage in horrible speech and I can ignore or talk back, without having to defend them. Unfortunately, governments too often either forget or figure it is easier to score political points and lose in court. This puts free-speech advocates in the position of having to  remind government of its constitutional obligations, thereby lending public voice to a defense of bad speech and bad speakers.

Case in point in Florida: State University System Chancellor Ray Rodrigues issued a statement two weeks ago labeling as criminal activities and violations of Florida laws against antisemitic activities campus demonstrations calling for Israel to be wiped off the map and justifying the October 7 attacks and killing Jews. Rodrigues yesterday called on state universities to deactivate two campus chapters of Students for Justice in Palestine, arguing that SJP provides material support to Hamas because it considers itself "part of" the movement against Israel. Both are absurd arguments for restrictions on constitutionally protected speech and efforts that would, if pursued, cost the state an injunction and attorney's fees in court. Plus, it forces me to side with people who want to see me and my family dead.

Update: Although FIU does not have a registered SJP chapter, the South Florida chapter held a rally at FIU Wednesday, alongside a competing rally. Meanwhile, the state promises to "crack down on campus demonstrations that delve beyond protected first amendment speech and into harmful support for terrorist groups," meaningless verbiage since most "harmful support for terrorist groups" is, in fact, protected First Amendment speech. Many lawsuits to follow.

Further Update: FIRE wrote to the Presidents of UF, FSU, FIU, USF, and FAU.

Posted by Howard Wasserman on October 24, 2023 at 08:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, October 20, 2023

Free speech line drawing (Updated)

UC-Davis history professor Jemma DeCristo faces some internal and external troubles over a tweet reading "[One] group of ppl we have easy access to in the US is all these zionist journalists who spread propaganda & misinformation,” she wrote. “They have houses w addresses, kids in school. They can fear their bosses, but they should fear us more," followed by emjois of a knife, an ax, and blood droplets. DeCristo has been disappeared from Twitter and from Davis' web site. Many people, including free speech maximalists, believe this crosses the First Amendment line, uniquely among the various rallies, tweets, and statements (including from DeCristo) celebrating the October 7 massacre, the fire at the Israeli embassy in Jordan, the firebombing of the Berlin synagogue, etc.

I do not see why this tweet--as despicable as it is--crosses a First Amendment line that similarly reprehensible speech has not. It does not reach incitement--it does not urge specific action at any time and place, certainly not imminently, and thus is unlikely to lead to such imminent lawless action. It does not reach true threat--it does not mention or address any particular person or group in any time or place, making it, at best, against all Jews (or at least all Jewish journalists). The emojis do not make the threat more specific in time or place. And the norms (such as they) surrounding emojis on social media arguably push this away from a threat and into rhetorical hyperbole.

Again, I am not defending this person or the content of her speech--both suck. But I do not understand why free-speech maximalists  have gotten off the train here.

Update: An email interlocutor points me to US v. Hussaini (S.D. Fla. 2022), refusing to dismiss a federal threats indictment against a person who posted You Tube videos threatening to kill Christians by stabbing out their eyes with a knife and to murder Black people by burning their bodies in a fire. The court rejected defendant's argument that his statements were not directed at a sufficiently discrete group of people, citing Virginia v. Black and US v. Cox from the Sixth Circuit. Reliance on Cox is questionable--the statement there was made by phone to a bank employee and referenced harm to "you all" and "people there" in the bank, including the listener. Reliance on Black is iffy because the Court rejected the view that any cross burning is done with intent to intimidate, which would protect most cross burnings occurring in a field and away from any particular person or group. Nevertheless, Hussaini stands as at least persuasive authority that online speech threatening an enormous group can constitute a sanctionable true threat, even if the result lacks real support and explodes this heretofore narrow category of unprotected speech. If the threats to all Christians and all Black people can be punished as threats, so can DeCristo's tweets.

Posted by Howard Wasserman on October 20, 2023 at 09:20 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, October 17, 2023

Irony Alert, Academic Freedom Edition

On Steve's post about former Purdue President calling for the end of tenure: The last episode (Sept. 2022) of Keith Whittington's unfortunately discontinued Academic Freedom Podcast featured an interview with . . . Mitch Daniels. The episode description says "During his time at Purdue, President Daniels has carved out a national reputation as a leader on campus free speech issues. Daniels shares the principles and practices he has followed to dramatically improve Purdue’s rating as a defender of academic freedom. The university most recently appeared at number three on FIRE’s College Free Speech Rankings." I guess he changed his mind.

To be fair, FIRE's rankings mostly measure student perception and feelings and the usual campus-speech hobby horses (tolerance for speakers, disinvitations, student attitudes towards disruption, "openness" to difficult conversations, fears that fellow students will think worse of you because of what you say, etc.). It also includes how many times a school sanctioned a scholar for their speech during a "campus controversy." Tenure, the vigor of tenure protections, and the attitude of top administrators towards tenure are not part of the study* despite, as Steve describes, the obvious connection to the university's mission of disseminating knowledge and to protecting the expression of unpopular views.

[*] Which also may explain how three Florida State University System institutions, including mine, can be in the top 50 despite a state effort to eliminate tenure in anything more than name.

Posted by Howard Wasserman on October 17, 2023 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, October 16, 2023

The right thing for a suspicious reason

We have witnessed two things on college campuses in the past week: Many schools allowing pro-Hamas rallies, statements, and literature and most schools refraining from issuing corporate statements (or issuing anodyne statements that satisfy no one).

Perhaps this is how it should be: Many believe, like Paul, that universities should not make broad statements on public disputes. Northwestern President Michael Schill urged that position,* grounded in the Chicago Principles and the Kalven Report, in arguing that the university should not speak for its individual members and that he would avoid "statements on political, geopolitical or social issues that do not directly impact the core mission of our University, the education and futures of our students, or higher education." And many believe that campus spaces, especially on public universities, are public forums that should be open for constitutionally protected speech, however offensive and obnoxious, and that administrators should not interfere to protect offended listeners.

[*] Then followed it with a somewhat more defensive statement when someone suggested he "believe[s] that the University as an entity should not be governed by a set of values … that everything is relative."

The problem is that universities reached this epiphany about campus speech when the speech celebrated the deaths of Jews and when even the stuff about Israel is tinged with comments about ovens and gas chambers. Prior to that, many (most) university officials took a different approach. They believed it necessary and appropriate to express solidarity and support African American students following George Floyd's (and other) murders or for women following Dobbs. They believed it necessary and appropriate to regulate, threaten, and sanction student speech--Halloween costumes, microaggressions, chalking sidewalks, singing songs on a bus surrounded by members of your group and unheard by anyone outside the group. Jeffrey Flier, former dean of Harvard Med School, makes this point (paywalled) in arguing that universities should move to the Chicago position of neutrality on non-educational issues, while pointing to Harvard President Claudine Gay's multiple statements and efforts to get out of the hole.

If the carousel ends in the right place on this, I am glad. But it is hard not to be suspicious of the context.

Posted by Howard Wasserman on October 16, 2023 at 09:31 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, October 12, 2023

Is this cancel culture (Again)?

The president of NYU's SBA sent a message, as President, to the student body placing "full responsibility" for the terrorist attack in southern Israel on Israel. Winston & Strawn withdrew her employment offer. It also appears there is a move to try to remove her as President.

Cancel culture? Orin Kerr (who believes such a thing exists) has several thoughtful Twitter threads. He argues that the line between the expressive act of imposing consequences on someone's speech and cancellation involves the tendency to react too quickly to the speech, to construe ambiguous statement ungenerously, and to ignore historical context. That is consistent with arguments tying it to proportionality--"cancellation" is often disproportionate to the objected-to message.

I would note that the usual "cancellation is the worst thing ever and a violation of free speech norms" voices on the right are, as always, silent when the targeted/canceled speaker comes from the left. 

Posted by Howard Wasserman on October 12, 2023 at 10:25 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, October 05, 2023

Keeping no one happy

In the wake of a May 2023 student speech at CUNY Law graduation that some saw as defending Palestine, others saw as anti-Semitic, and which every relevant government actor responded to incorrectly, the Forward reports, based on the minutes and student notes of a September faculty meeting, the school will not have a student speaker. But students will speak at some pre-graduation programs.

They say a good compromise leaves everyone unhappy. If so, mission accomplished. Critics say the school is silencing students and curtailing speech rights. An anti-Semitism activist says allowing the student to speak at the pre-graduation ceremony is a step in the right direction but does not go far enough. He also calls for the dean to be fired for complaining about anti-Palestinian harassment following last spring's graduation, which he reads as co-extensive with the "Jewish community’s outrage and pleas to CUNY to recognize their civil rights on campus."

This is not going away easily.

Posted by Howard Wasserman on October 5, 2023 at 09:49 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, August 31, 2023

Judicial departmentalism in Tennessee (Updated)

In June, a judge in the Western District of Tennessee declared the state's drag-show ban constitutionally invalid and enjoined the Shelby County D.A. from enforcing the law. The D.A. of Blount County, located in the Eastern District of Tennessee, announced intent to enforce the law there with the help of police, including against the organizers and hosts of an upcoming pride event. Organizers of the upcoming event and a drag performer sued local officials and the state A.G. Chris Geidner and FIRE are dismissive of and outraged by the actions of the Blount County officials.

Update: A judge in the Eastern District issued a TRO that includes prohibiting defendants from interfering with Blount Pride Fest, scheduled for Saturday. More below.

Let's break this out.

On the surface, this is an easy case, without full-bore judicial departmentalism. The W.D. Ky. order "ENJOINS District Attorney Steven J. Mulroy from enforcing the AEA within his jurisdiction in SHELBY COUNTY, TENNESSEE." The Blount County prosecutor was not a party to that case and not bound by the injunction. Nor should he be bound by the declaratory judgment, which declares the rights of "the parties." Accepting that non-judicial actors must adhere to judicial precedent (i.e., rejecting departmentalism in favor of judicial supremacy), district court opinions do not establish binding precedent, within the district and certainly not outside the district. The district court's declared the law invalid in general. But the law of precedent dictates the effect of its declaration beyond the parties; the law of precedent says district court decisions are persuasive on other courts. There is no good argument that a district court opinion should have greater effect on executive officials than on other courts. And in a judicial-departmentalist world (where judicial precedent does not bind non-judicial actors), the fact that the precedent comes from an out-of-district trial court means the Blount County DA does not even face the guaranteed judicial loss (and attorney's fees) as if he pursued new enforcement in the face of binding judicial precedent.

On the surface, things are proceeding as they should. One group of rights-holders successfully sued to stop enforcement by one official against them; a second executive official pursued enforcement against a second group of rights-holders; the second group of rights-holders sues the second executive and raises the same (strong) constitutional arguments, including pointing to the prior district court opinion as persuasive authority; and we see what happens. My guess is they would get a TRO or preliminary injunction allowing this weekend's event to occur, have the law declared invalid (because First Amendment law is clear, even without the prior district court opinion on this law), and recover attorney's fees.

Here is where the case gets complex. Blount Pride, the plaintiffs in the second action, argue (¶¶ 85-90 in the Complaint) that the Blount County DA and all state executive officials are bound by the prior DJ. They argue that county DA's act as the state in enforcing state laws, thus the DJ against the Shelby County DA binds all state officials who enforce this law on behalf of the state--the AG (who litigated the first case, although not named as a party) and every county DA. Although they do not specify, I think they are using this for a preclusion argument.

But the scope-of-judgment problem is not about the defendants bound in the first case--it is about the plaintiffs protected in the second case. The first action declared the rights of and protected that plaintiff, Friends of Georges. Although the injunction used typically sloppy language, we know that DJ's declare the rights of "the parties" and injunctions should extend no further than necessary to protect the plaintiff--again, so long the plaintiff (and its members*) are protected, the injunction goes no further. The plaintiffs thus argue that the prior DJ as to Friends of George dictates to every official who enforces the anti-drag law that it is constitutionally invalid and cannot be enforced against Blount Pride.

[*] See also Michael Morley and Andrew Hessick's forthcoming piece arguing against associational standing.

This argument fails on three points:

    1) If Blount Pride believes it is protected by the existing WD Tenn. judgment, its move should be to return to that court for further relief where the DJ has been ignored. My guess is Blount Pride knows its rights had not been declared.

    2) Given # 1, this lawsuit attempts to use non-mutual preclusion--a new plaintiff, not party to the prior case, using preclusion against a prior party. But governments (and government officials sued in their official capacities) are not subject to non-mutual preclusion.

    3) The preclusion argument ignores Doran--"[N]either declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute." That is this case. The prior DJ and injunction stops enforcement of the anti-drag law "with respect to" Friends of George and its members; it cannot directly interfere with enforcement of the anti-drag law against anyone else, such as Blount Pride. Even if every DA and the AG were parties to the first case, that judgment has no direct effect on the efforts to enforce the law against new individuals.

Michael Dorf wrote a post considering what it means to say § 3 is self-executing:

However--and this is an obvious but crucial point--that does not mean that it is literally self-executing. State and local election officials who attempt to place Donald Trump's name on a primary or general election ballot will not find their hands stayed by a mysterious force field or a lightning bolt.

Section 3 is self-executing in the way that other self-executing provisions of law are, not in the way that laws of nature are. To say that Section 3 is self-executing is to say only that government officials can and indeed must give it effect even absent implementing legislation.

I would add that effect will be given when disputes--likely multiple disputes--over attempted application reach court for the court to resolve.

We can say the same about the First Amendment. No mysterious force field or lightning bolt stops the Blount County DA from attempting to enforce the anti-drag law, even if the First Amendment protects drag performance. When the DA and a drag performer dispute whether the law is valid, the case must move to court to resolve that particular dispute. That is what happened when Friends of George disputed with the Shelby County DA. It now happens separately when Blount Pride disputes with the Blount County DA.

Again, things in Tennessee are playing as they should within the judiciary--certainly if you are a judicial departmentalist and even if you are a judicial supremacist. Adjudicating constitutional rights requires litigation. That process is long and cumbersome and not as clean as the First Amendment "protects your right to dress and perform in drag" and "First Amendment protections apply everywhere." But it gets where we are supposed to be.

Update: Two words on the new TRO. First, as always, the court overdid the order, prohibiting defendants from "enforcing, detaining, arresting, or seeking warrants or taking any other action to enforce or threaten to enforce T.C.A. § 7-51-1407 pending further order of this Court," without limitation to the plaintiffs (the festival organizers and one drag performer). This is not a class action and such breadth is not necessary to protect these plaintiffs.* Second, the court in no way believed that the prior district court opinion controlled. The court called the opinion "well-written, scrupulously researched, and highly persuasive," "well-reasoned," providing "an adequate basis for [a] decision," and reflected the analysis "the Court is likely to adopt" in this case. But--contrary to plaintiffs' arguments and shouts from FIRE, Geidner, and others--defendants' enforcement threats did not violate or ignore that order, nor did defendants do anything a priori wrong in threatening enforcement.

[*] A few years ago, I spoke (with Suzette Malveaux) to the National Association of Attorneys General about universal injunctions. A point I thought of, but did not get a chance to make, is that they, among all litigants, should be circumspect on this. While they may love universality when suing the federal government, universality could and would come back to bite them as defendants in challenges to state law. That point, unmade, stands.

Posted by Howard Wasserman on August 31, 2023 at 10:44 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 30, 2023

More merits and standing overlaps

The Third Circuit rejected a First Amendment challenge to Pennsylvania's anti-discrimination/anti-harassment PR rule (ABA Model Rule 8.4(g)), concluding that the lawyer plaintiff (Zachary Greenberg) lacked standing. Given the definitions of harassment and discrimination, the plaintiff's planned speech (teaching CLE classes in which he would oppose hate-speech bans, repeat racist epithets in discussing cases, support due process protections for people accused of sexual misconduct, and support the right to express intolerant racist views) did not violate the rule and did not face a credible threat of enforcement.

This strikes me as good illustration of standing constitutionalizing an obvious merits issue. The plaintiff did not suffer an injury because his planned speech did not violate the rule and thus he did not risk liability for it. But that is the same as saying the rule does not violate his First Amendment rights by imposing liability on him for his protected speech. In fact, that is how the First Amendment would be raised and adjudicated in an enforcement action--the state initiates disciplinary proceedings against Greenberg; Greenberg defends by arguing that his speech does not constitute harassment or discrimination or that if it does, the statute is constitutionally invalid because his speech is protected by the First Amendment; and the disciplinary proceeding fails on the merits (either before the Bar or before the Pennsylvania Supreme Court).

If that analysis goes to the merits in an enforcement action, it should go to the merits (and not jurisdiction) in a pre-enforcement action. A pre-enforcement action allows a rights-holder to determine her substantive rights without having to violate the law and risk sanction. That pre-enforcement action should mirror the enforcement action. If jurisdiction is not an issue in one, it should not be in the other. The counter might that the question of the scope of the law and whether it reaches speech (the first defense in an enforcement proceeding, independent of the constitutionally protected nature of the speech) is a question of state law and that the federal court lacks jurisdiction to address state law. But courts do not fine-grain the standing analysis in that way.

Greenberg tried to argue that he would alter his speech based "on his perception of the social climate, which he sees as infested by '[w]idespread illiberal impulses for ‘safetyism,’”" citing studies of public distaste for offensive speech. But the court refused to find injury, traceable to the rule, from Greenberg's discomfort in speaking freely or in losing professional reputation, job opportunities, and speaking opportunities. This is important. The PR rules should not sanction lawyers for protected-but-obnoxious speech. The First Amendment should have nothing to say about social consequences for being publicly obnoxious.

Posted by Howard Wasserman on August 30, 2023 at 12:23 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, August 25, 2023

What makes a career?

Congratulations to Jenny Martinez on her appointment as provost at Stanford. According to the Chronicle of Higher Education (paywalled), Martinez's main accomplishment as dean and main qualification for the job was "defending free speech" in the Judge Duncan debacle. In fact, "[b]y elevating Martinez to its top academic post, Stanford is making a statement in the continuing free-speech debate. Leaders across the country will look to Martinez to uphold that stance, particularly as she assumes jurisdiction over not only the law school but also Stanford’s entire student body."

I praised Martinez's letter at the time, particularly for recognizing the expressive nature of heckling and in-the-room protest. But the idea that this one event was central to her appointment or that education leaders nationwide will read this as some endorsement of an approach to campus speech is laughable.

Posted by Howard Wasserman on August 25, 2023 at 07:04 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, August 01, 2023

The future of New York Times and SLAPP laws

A federal judge last week dismissed Donald Trump's $ 450 million lawsuit over CNN describing his post-election statements as "the Big Lie." Despite some gratuitous shots at New York Times and the media* (some judges can neither help themselves nor resist the temptation to audition for a higher court), the court recognizes that NYT has nothing to do with this case because every statement at issue is opinion rather than provably false fact and political motivations do not affect speech's constitutional protection. That is, this action fails not because of actual malice but because of the entire First Amendment edifice.

[*] And truly gratuitous praise for the affirmative-action decision, which has nothing to do with anything. Again, cannot help themselves.

The case also illustrates a separate point about anti-SLAPP laws and their importance in protection speech. In my view, the special dispositive motion, which does not apply in federal court in the Eleventh Circuit, is not necessary to deter frivolous defamation suits and protect speakers against the costs and burdens of litigation. Rule 12(b)(6) suffices in most cases to end litigation quickly and without discovery--thanks to Twiqbal (it is hard to plead falsity and actual malice) and to how much of the First Amendment regime creates questions of law for the court (such as whether a statement constitutes fact or opinion).

The real protection comes from awarding the prevailing defendant anti-SLAPP attorney's fees. That alleviates the costs (if not the distraction) of litigation, regardless of how long it goes. One judge in the Southern District has held that Florida's anti-SLAPP law disentangles fees from the dispositive motion--a defendant can recover fees when the court finds the suit without merit and filed for an improper purpose, regardless of the mechanism for that finding. This contrasts with other states in which defendants recover fees when they win on the special anti-SLAPP motion (which cannot be brought in most federal courts). Waiting to see if CNN seeks fees and whether this judge follows his district colleague as to the availability of fees.

Posted by Howard Wasserman on August 1, 2023 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, July 31, 2023

Peak scope-of-injunction confusion

Judge Presnell (M.D. Fla.) may have produced the singularity of scope-of-injunction confusion in refusing to narrow-and-stay his injunction prohibiting enforcement of Florida's anti-drag law. The plaintiff is the owner of an Orlando restaurant that presents drag performances; the court preliminarily enjoined state officials (properly) from bringing "any enforcement proceedings" (improperly). The state sought to stay the injunction to the extent it went beyond the plaintiff--which Presnell describes as "neuter[ing]" the injunction.

Presnell emphasizes the law's facial invalidity in justifying the scope of the injunction. In doing so, he commits several category errors.

• The court relies on overbreadth cases allowing rights-holders to challenge a statute because of the statute's broader effects. But First Amendment overbreadth does not expand the scope of the court's order. It allows a rights-holder whose speech could be constitutionally regulated by the challenged law to raise the law's constitutional invalidity because it would be constitutionally invalid as to someone else's speech. Overbreadth allows a party to make constitutional arguments and to gain judicial relief based on those arguments about how the law affects non-parties. But nothing in that doctrine extends the judicial remedy to those non-parties; it merely gives the party additional arguments.

    Many overbreadth cases are not § 1983 offensive pre-enforcement actions; they are enforcement actions in which rights-holders raise the First Amendment as a defense (despite the defendant engaging in unprotected activities). Although the overbreadth arguments are the same, no one believes that an order dismissing a state enforcement action (e.g., a prosecution of the corporation or an attempt to strip its liquor license) protects anyone beyond that party.

    Here lies the benefit of Henry Monaghan's justification for overbreadth--valid law due process. Due process requires that any law be constitutional valid before it can be enforced against anyone, even if those constitutional defects do not affect the party to the case. This explains why an Carol Anne Bond could raise federalism defects in a chemical-weapons ban.

• I am not entirely sure why the court went the overbreadth route here. Nothing the plaintiff wants to host in its restaurant falls outside constitutional protection--it is not obscene or obscene-as-to-older-minors; this is not a case of a plaintiff arguing "my speech is unprotected but the law reaches other people's protected speech." The law is overbroad in the sense of not narrowly tailored, but that is a different thing.

• The court relies on Califano v. Yamasaki as to the availability of facial challenges. But it ignore the parts of Califano that the injunction should provide "complete relief to the plaintiffs." However constitutionally invalid the law might be or however broad the constitutional arguments he can make, the remedy benefits the plaintiff. And allowing continued enforcement of this law against others does not deny the plaintiff complete relief.

• The court conflates, in the most explicit language I have seen, geographic and party scope. The court says the following:

    • Responding to Eleventh Circuit doubts about so-called nationwide (but really universal) injunctions, the court says this "injunction is neither nationwide, nor does it pertain only to a limited class of individuals."

    • This law is not limited to a discrete universe of plaintiffs; it could apply to the vast majority of Floridians.

    • "To limit Defendant’s enforcement of the Act only to Plaintiff would subject everyone else in Florida to the chilling effect of a facially unconstitutional statute. Consequently, a statewide injunction which includes non-parties accords with the extent of the violation established."

The court expressly conflates nationwide/statewide and university. Every injunction as to a federal law is nationwide and every injunction as to a state law is statewide--the injunction prohibits enforcement of the law against the plaintiff every place in the nation/state that plaintiff goes.* Thus, of course this injunction is and should be  statewide--Florida cannot enforce this law against any restaurant that HM Florida, LLC owns and operates. But Presnell issued a universal injunction, one that protects everyone everywhere; that is the problematic piece of this.

[*] And out of state, but the protection against that comes from the limits of a law's extraterritoriality, not the injunction.

Again, this is why nomenclature matters and why the wide adoption of "nationwide" confuses the analysis. This injunction suffers the  identical defect as the Mifepristone or student-loan or sanctuary-city injunctions against federal laws and regs--it protects beyond the plaintiffs without class certification. But because we have used "nationwide" to describe those, Presnell could purport to distinguish those cases and thus the doubts about those injunctions--"those were nationwide injunctions, whereas this injunction is statewide."

• On the court's reasoning, the more people subject to a law, the more people whose rights the law infringes, and thus the more proper a universal injunction. That means that universal injunctions should be the norm, at least for laws of general applicability. But that would undermine the principle that enjoining a prosecution as to one person leaves the state free to prosecute others. And it renders FRCP 23(b)(2) useless--if a state can enjoin enforcement against everyone subject to a law when one person sues, no plaintiff would ever need or want to certify a civil-rights class.

• This also demonstrates how universal injunctions allow individual judges to arrogate a great deal of power, at the expense of other courts--to play constitutional hero. Yes, this law chills the speech of many, many people. The remedy for that is for any chilled speaker to sue and obtain an injunction protecting itself against enforcement (as the plaintiff did here) and for the opinion in one case to guide future courts handling future lawsuits from other speakers asserting their rights and seeking a remedy that protects them. If Presnell is right about the law's validity, his opinion in this case will persuade other judges to reach the same conclusion and issue injunctions protecting future plaintiffs. Moreover, if Presnell is wrong about the law's constitutional validity, his single order deprives any other judge or court from the opportunity to address that question.

Bad all around. While I hope the 11th Circuit affirms that the drag laws are constitutionally invalid, I also hope it corrects as to the scope of the injunction. Meanwhile, I wish courts would get this stuff right so I do not have to keep defending the authoritarians in Florida's government.

Posted by Howard Wasserman on July 31, 2023 at 02:41 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, July 13, 2023

303 is the new Citizens United

That is, critics will misconstrue what it said, misconstrue its context in an effort to make it more evil (that already is happening), blame it for every bad thing that happens going forward, and treat it as different from every other Supreme Court decision in its potential for lower-court mischief. On that last point: Every incorrect Supreme Court decision (i.e., decision with which I disagree) can spawn new incorrect decisions (i.e., decisions with which I disagree); that is the nature of precedent. 303 critics have seized that possibility to suggest 303 was somehow uniquely wrong--wrong in a way beyond most wrong decisions--such that the Court never should have decided the case at all (because of the above misconstruction of its procedural context).

The story of the Michigan hair stylist prompted Chris Geidner to label 303 as uniquely bad because 2023 is full of horrible people doing or threatening horrible things to the LGBTQ+ community--it is certain that bad people will try, and courts may allow,  to use the decision to further bad ends. Again, it seems, beyond what we expect from any decision we do not like. I agree with much of what he argues, including that public accommodations laws should survive strict scrutiny even as to expressive products and services, something 303 never analyzed. But several points reflect an elevation of 303 to demonic status (call it 303 Derangement Syndrome).

    1) Life is bad in the 2o jurisdictions that do not protect LGBTQ+ people in their public accommodations laws. But it was bad before 303 and 303 did not worsen that. As a descriptive default, all discrimination in places of public accommodation is lawful unless government enacts a law changing that default. In a state without statutory protections for LGBTQ+ people, it has always been legal for a private business to refuse them service because of that status. 303 does not change that. Perhaps it "empowers" bad people to try new bad things. But they could do that all along. And the air of anti-LGBTQ+ bigotry might have provided sufficient incentive without SCOTUS input.

    2) Bigots will push the boundaries and it might work. Courts may interpret and apply 303 more broadly than Dale Carpenter suggests it should be. Or people may not sue. Or the state civil rights commission may not pursue the claim. (The fact of two-prong enforcement makes some enforcement likely). Or the salon owner may appeal. But what makes 303 different? That is how this works--a court issues a decision, the public and other actors conform their conduct to that decision, new conduct spawns new litigation, and that litigation takes time (and money and effort) to resolve itself. We cannot wring our hands over this because the Court reaches a conclusion we do not like, not matter how deep our distaste for the decision. The subsequent process does not render the precipitating decision illegitimate.

Geider closes with this:

To argue that a narrow reading of 303 Creative v. Elenis is the path forward is certainly a good argument, but it’s not a fact.

Those concerned about the implications of the ruling and the rippling consequences that could become a post-decision aftershock are speaking from a point of persuasion based on our recent experience. And advocates and others seeking to protect robust enforcement of nondiscrimination laws should respond accordingly.

Of course advocates should respond--whether by driving that salon into the ground through public criticism or by pursuing litigation and enforcement. And I do not read Carpenter or anyone else as suggesting otherwise. Again, however, why is this decision different from all other decisions?

Posted by Howard Wasserman on July 13, 2023 at 10:27 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, July 12, 2023

Stupid bigots, smart(er) bigots, and 303

The owner of a Michigan hair salon announced that she would not serve trans customers, advising them to go to a pet groomer. The public response caused her to take her social media private.* From the left, the theme is "what hath 303 wrought?" From the right, the theme is "stop overreacting or misconstruing 303--the plaintiff there and the Court disavowed refusal to serve based solely on identity."

[*] The public exercising their First Amendment rights to criticize someone's offensive speech and conduct? Or censorship and cancel culture? You decide.

As framed, this falls outside any possible good-faith application of 303, because she described it in terms of the customer's identity as trans--a categorical refusal to serve a person because of that person's identity that the Court disclaimed. Some respond with, essentially, "Lower Court Judges Gone Wild"--forget what 303 said, this is what crazy business owners will try to do and what courts in red states will allow them to get away with.

But I do not believe this case depends on a parade of horribles. Instead, it requires a smarter bigot with a better framing. Imagine: "Through my hair styling customized to each client, I use my unique expressive artistry and work closely with each client to help them express themselves and the image they wish to present to the world. And by giving a feminine hairstyle to a trans woman (whom I believe a man as a matter of biology and biblical teaching), I am compelled to send a message that this person is a woman, something I reject." That does not sound meaningfully different from Lorrie Smith making a web site telling the marriage story of a same-sex couple and thereby being compelled to send a message that two people of the same sex can marry.

Dale Carpenter offers a hopeful take on 303: It applies to products and services that are custom-made and expressive where the objection is to the message sent within the product or service. That seems to cover hair styling--it is creative and thus expressive and every hair cut is unique to that person. Perhaps it depends on whether the stylist insists that her styling match perceived gender--she will not give a "male" haircut to a cis person; this might separate the refusal of service from the client's trans identity. Or on the fact that once the client leaves the salon, the stylist's participation is not presented to the world, contra the web site that identifies 303 as the creator.

I appreciate Dale's attempt to read the decision narrowly and agree that the demand for line-drawing in hard cases is not unique to this case. I think this case shows that intelligently framed objections could cut a large swath.

Posted by Howard Wasserman on July 12, 2023 at 01:18 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, July 05, 2023

Injunctive absurdity

Judge Doughty of the Western District of Louisiana found that federal jawboning of social media sites with respect to COVID, the 202 election, and Hunter Biden likely violates the First Amendment and enjoined hundreds of federal officials (including all of State, HHS, and DOJ) from engaging in a whole range of speech urging social-media companies to remove material. Some thoughts:

• He finds that Missouri and Louisiana have standing, in part, on behalf of their citizens' speech rights, even though states cannot exercise parens patriae standing against the federal government. The court also cannot say that the sites removed speech because of government coercion or that they would not have removed the speech without government action, which should be essential to traceability and redressability. And to the extent the evidence is unclear, the plaintiffs bear the burden of establishing standing so the uncertainty should go against standing.

• The line between lawful government speech and problematic jawboning or coercion is difficult. Judge Doughty makes no effort to engage that question or draw that line. He offers pages of examples of communications between government social-media companies in Newsmax-level conspiratorial tones, but does not explain where the line is or when some communications cross the line. Some examples lack any direct communication between government and the companies. For example, the court offers Anthony Facui's public media statements and congressional testimony criticizing hydroxychloroquine as a COVID treatment followed by social-media sites removing certain videos. Apropos the point above, the court says Facui may have spoken with sites, but does not remember. Again, however, the plaintiffs bear the burden of showing communication and causation.

• The court finds coercion, in part, because much of the targeted speech is "conservative." But viewpoint discrimination is irrelevant to the coercion line. Coercion is coercion regardless of any viewpoint preference--government engages in impermissible jawboning regardless of whose speech it targets. On the other hand, non-coercive government speech can be as viewpoint discriminatory as the government wants to be.

• The injunction is absurd in its breadth. From the binding side, it binds hundreds or thousands of officials. It prohibits officials from "urging" or "encouraging" social-media companies to adopt or change content-moderation guidelines or to do anything with "protected free speech" on their sites.

• The injunction is internally inconsistent; it swallows itself, in a way one commentator describes as the judge wanting to have his cake and eat it. After listing all the "protected" speech the government cannot encourage or urge sites to remove, the court limits the injunction to not reach "permissible government speech promoting government policies or views on matter of public concern" (such as appearances on TV to discuss the effectiveness of medical treatments, perhaps?). And it does not reach speech "informing" social-media companies of "threats that threaten the public safety or security of the United States;" "postings intending to mislead voters about voting requirements and procedures;" and  efforts to "detect, prevent, or mitigate malicious cyber activity." The line between "informing" and "urging" or "encouraging" is illusory and the court never attempts to define it. In any event, much of the speech covered by the injunction falls within the categories excluded by the injunction and vice versa.

For example, speech threatening the public safety of the United States retains constitutional protection unless it is a true threat or incitement, which most of the speech on these sites is not. So at the same time the injunction allows officials to inform social media companies of speech that threatens public safety, it cannot urge companies to do anything about that speech.

• I guess Republican officials now like universal injunctions, because this defines the concept. The plaintiffs are two states and about five individuals; the injunction prohibits government from taking steps to urge sites to remove the speech of any person on any site from any source. As always, the injunction could have been particularized to these speakers, those two states, and the citizens of those two states.

• Compounding the universality problem, the court refused to certify a 23(b)(2) class, because the plaintiffs had not presented a "working class definition." This demonstrates, from two directions, how universality undermines Rule 23(b)(2). Class certification is pointless and unnecessary if individual plaintiffs can obtain relief for an entire class of possible speakers. And if the court cannot define an appropriate class of speakers, it should not issue an injunction protecting every would-be member of that class.

Some free-speech advocates have argued that the federal government's conduct--from both the Trump and Biden Administrations--has crossed some lines. But this absurd injunction is not the answer.

Posted by Howard Wasserman on July 5, 2023 at 03:22 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, June 29, 2023

Predicting tomorrow

On Sunday, Jonathan Adler predicted the authors and outcomes of the major cases. So far, he has done well on authors--he called Harvard (Roberts), Moore (Roberts), Groff (Alito), and Counterman (Kagan); he missed on Mallory (Gorsuch, not Alito) and Abitron (Alito, not Sotomayor).

Three cases remain to be decided tomorrow--303 Creative and the student loan cases. Adler predicted Gorsuch would write 303 and Roberts the student loan cases. Those predictions look good right now. One more data point on 303 Creative--it is the lone remainder from the nine December cases and Gorsuch is the only Justice not to write from that sitting.

Bad news for public accommodations laws and an appropriate understanding of the First Amendment.

Posted by Howard Wasserman on June 29, 2023 at 02:39 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, June 21, 2023

The inanity of "Debate Me"

Phillip Bump critiques the new demand for "debate," calling it a lazy cop-out and "a cudgel meant not to inform but to entertain, to validate our skepticism and to feed our dislike of our opponents."

As if on cue, we have L.M. v. Town of Middleborough, denying a preliminary injunction against enforcement of the school dress code as to a shirt reading "There are only two genders." The opinion includes this gem at the beginning of the analysis portion of the opinion:

One can certainly argue (particularly with hindsight) that the actions taken by the Defendants were not in the best interest of the students Defendants were seeking to protect. Had Defendants permitted L.M. to wear the Shirt, perhaps he would have listened to and heard other students’ explanation as to why they viewed his message as hostile. Perhaps he would have learned from those students that they do not use the word “gender” to refer to chromosome pairs or anatomy but to identity. As a seventh-grader — a time when students are beginning to consider views of the world that differ from those of their parents — he may have been more open to that understanding if the discussion occurred in school and was not drowned out by the megaphone of the media and the adult protesters outside the school. And in that event, perhaps LM. would have chosen voluntarily to cease wearing the Shirt and the students Defendants were seeking to protect would not have had to enter the school past protesters amplifying L.M.’s words.

This is nonsense.

First, this kid is not open to changing his views, nor is he parroting his parents' views. We know this because the opinion quotes his long social-media post defending the t-shirt as expressing his views and not "targeting" anyone, comparing it to how he feels seeing Pride flags and diversity posters. (Put aside the specious comparison between a message with which you disagree and a message that targets someone's existence and identity). L.M. is locked in and is not going to change his mind if other students "debate" him or civilly challenge his views. In fact, I expect he would scream that he had been targeted (if not canceled) if many students challenged him. Relatedly, I think L.M. has pretty good reason to be pissed at the judge for that statement, which basically suggests that he is parroting his parents views and does not really believe or share them and could be swayed with a bit of the right discussion.

Second, the school does not want to become a debate society--math class is for teaching math and gym class is for sports, not for debating the finer points of gender identity. So the judge's proffered solution--students engaging with L.M. about the error in his views on gender--disrupts the educational process. And even Tinker allows the school to limit student speech to avoid disruption. So the school should allow L.M. to wear the shirt, then allow the educational process to be disrupted--therefore justifying prohibiting him from wearing the shirt.

Third, accepting some essential constitutional commitment to debate, what is the purpose of that debate and who does the debate convince--my interlocutor or my audience? In challenging L.M. on issues of gender, does little Sally seek to convince L.M.? Or does she seek to convince other students that L.M. is wrong? The judge assumed # 1. But that reflects a different understanding of debate and speech, distinct from the marketplace and more-speech visions of Holmes and Brandeis. The question for them was whether a speaker's bad message could be countered and what message the public would accept--neither care whether Abrams or Whitney changed their minds.

Fourth, rather than giving students a chance to debate-and-persuade the Unpersuadable L.M., allowing the t-shirt gives students the opportunity to decide (if they so choose) that L.M. is a provocative jerk and that they want nothing to do with him. Or to criticize him for these views. While I expect L.M. and his supporters would shout "cancel culture," this case illustrates why much of what people deride as cancellation is "more speech." L.M. has a right to express his views--including, I believe, on a t-shirt in school. He does not have a right to speak free of other people adopting negative views of him and acting on those views.

Fifth, the result surprises me. I thought there had been a sea change in t-shirt cases, in which "people feel offended" and "people are talking about and objecting to the kid's t-shirt" was not sufficient. That is, the Tinker framework does not authorize an actual heckler's veto--the school silencing speech because it offends or angers the audience. But the court relied on First Circuit precedent allowing restriction on a showing of disruption or that the speech invades the rights of others. Although the shirt did not target any identifiable person, the shirt invaded the rights of students who identify differently to attend school without being confronted by messages attacking their identities.*

[*] Going back to my first point and to this post, does the judge believe it better for students who identify differently to allow the shirt and compel them to debate their identities, hoping to convince L.M. to change his mind about their humanity?

Posted by Howard Wasserman on June 21, 2023 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, June 07, 2023

Preferred first speaker, again

Reading (PA) police arrested a man for disorderly conduct for reading Bible verses (it sounds as if through a bullhorn or other amplifider) on the sidewalk alongside the Pride rally. Police insist the charges arose from the volume of his speech and not from reading the Bible. Several videos here.

This is the preferred first speaker in action, but in the traditional public forum of streets and sidewalks rather than a reserved lecture hall. The video shows the arresting officer asking the man to respect the ralliers and to "let them have their day." Adam Steinbaugh, an attorney for FIRE, makes two correct points: 1) "[S]peaking loud enough to be heard by a noisy crowd isn’t unreasonable. The police weren’t arresting people cheering at the event. That’s a stark display of viewpoint discrimination" and 2) "Speech people find offensive isn’t 'inconvenience.' It’s a manifestation of the 'verbal cacophony' that shows that the First Amendment means police can’t answer “inconvenient” or offensive speech with handcuffs."

Note the difference between Steinbaugh's (again, correct) analysis of this case and most discussions of Stanford, Yale, Hastings, and other cancellations-but-shout-down. No one has suggested that the Stanford students acted reasonably in jeering, snapping, and booing Judge Duncan, at a volume to be heard over Duncan's speech. No one has suggested that the First Amendment accepts "verbal cacophony"--quite the opposite, with everyone insisting the First Amendment demands civil discourse and the Stanford studewnts quietly and respectfully listening to what their better has to say, then perhaps asking polite-if-pointed questions.

So why the argument for different treatment? "Firstness" (again, the basis for the arrest) does not explain it; the ralliers were first speakers in that space by virtue of their permit; the Bible-quoting arrestee was an audience member responding and objecting to the first speaker, by Bible verses rather than snaps and jeers. "Shouting down" does not explain it; the arrestee engaged in counterspeech, at a volume and in a form that might make it difficult for the first speakers (the rallygoers) to speak as they wished or to be heard by willing audience members. He did not attempt to engage in civil discourse and he certainly did not intend to allow the ralliers to have their say in the manner they wished.

The remaining distinction involves the type of forum involved--designated-and-limited as opposed to traditional and open. Or we must sharply define what space constitutes the forum. Perhaps the lecturer's forum is the entire lecture hall (stage and audience area), while the rallygoer's forum is the sidewalk and parade route but not the adjacent sidewalk. (This supports the argument that loud protesters can stand outside the campus building--a distinct forum--and heckle to their hearts' content).

The point is the officer was wrong to arrest this guy (although he likely enjoys qualified immunity). And these cases are more complicated than everyone suggests.

Posted by Howard Wasserman on June 7, 2023 at 04:52 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, May 31, 2023

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.

Posted by Howard Wasserman on May 31, 2023 at 02:36 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

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.

Posted by Howard Wasserman on May 31, 2023 at 12:56 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, May 28, 2023

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.

Posted by Howard Wasserman on May 28, 2023 at 12:14 PM in Current Affairs, First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, May 24, 2023

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).

Posted by Howard Wasserman on May 24, 2023 at 06:48 PM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, May 22, 2023

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.

Posted by Howard Wasserman on May 22, 2023 at 09:46 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, May 18, 2023

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.

Posted by Howard Wasserman on May 18, 2023 at 01:32 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

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.

Posted by Howard Wasserman on May 18, 2023 at 09:56 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, May 08, 2023

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.

Posted by Howard Wasserman on May 8, 2023 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, April 26, 2023

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.

Posted by Howard Wasserman on April 26, 2023 at 09:50 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, April 25, 2023

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.

Posted by Howard Wasserman on April 25, 2023 at 06:40 PM in Culture, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)