PrawfsBlawg

More anti-antisemitism as fig leaf

Wesleyan President Michael Roth offers the latest "Trump is using Jews and it will end badly" take. He highlights the White House "Shalom ____" tweets ("Shalom Khalil," "Shalom Columbia," whatever) and the large dose of sarcasm in which Jews should not find comfort. And he calls out the ADL for losing sight of its mission in defending Musk's Nazi salute and in only belatedly (and under pressure) supporting due process for Khalil.

Roth makes one interesting move--highlighting why Jews are safe at Wesleyan (my kid feels perfectly at home) and why the "situation was different at Columbia. Protests became violent (both in the actions of the participants and those of the police who were called in to quell them). Tensions between supporters of Palestinians and Israelis were at times extreme." He highlights a March Atlantic article by Franklin Foer that "document[s] some serious antisemitic activity."

I read Foer's article (missed it in March). It discusses numerous incidents of antisemitic violence and harassment. But it mixes them with examples of obnoxious-but-protected speech, obnoxious-but-core faculty speech, and violations of neutral regulations (e.g., occupying buildings) that would be unprotected regardless of the occupiers' motivation (although the university's selective non-enforcement raises distinct discrimination concerns). For example, academic freedom and the First Amendment protect professors who engage in polemic, inside- and outside-of the classroom, at least to a point; Foer describes a prof's actions without identifying any line or where it might be. Foer argues (and Roth accepts) that this reflects an overall antisemitic environment. But the conversation must separate the protected from the unprotected--what makes students uncomfortable from what violates their rights.

More Law v. Antisemitism

David Schraub writes about the ADL's announcement that it will not sponsor future editions of the Law vs. Antisemitism Conference unless the organizers grant it the right to exclude speakers, including those from Jewish Voice for Peace. David addresses the problem from his experience as site host for the 2023 Conference at Lewis & Clark. I agree with everything David says about the craven anti-intellectualism of the ADL and Academic Engagement Network.

I served as site chair for the 2024 Conference at FIU (link includes videos of every panel), held about five months after October 7. We discussed questions of balance in organizing panels, but encountered no demands about panel composition and no demands about who should or should not be allowed to appear or present at the conference. I cannot imagine the conference chairs will agree to this demand. This means the purported leading advocacy group on antisemitism will no longer sponsor the largest academic conference devoted to the issue because it cannot dictate the ideological content of the conference.

TL;DR: It's too much money to stand on First Amendment principle

I signed a letter of Northwestern alums urging the Board and the administration to hold the line. The well-lawyered response did not inspire confidence that NU will hold out--"With the federal government providing hundreds of millions of dollars annually to Northwestern in student financial aid and research grants, each of our choices carries risk to our institution." Worse, it does not appear NU (or any other school, perhaps save Princeton) wants to make the government take the money (something that, at the end of the day, it might be unable to do). In Civil Rights, we discuss how narrowing private rights of action (implied or under § 1983) to enforce Spending Clause enactments leaves funding cuts as the sole enforcement mechanism and how that is hard to do, given the statutory procedural and substantive protections. Apparently the real reason is that the federal government will not strip funds from Alabama for a discriminatory driver's license policy; it will strip funds from Northwestern for not doing enough to silence objectionable speakers.

Meanwhile, as another law firm falls, I wonder: Each firm has committed $ 100 million to pro bono work on which it and the Administration agrees. But will firms do additional work (beyond $ 100 million) on pro bono matters with which the Administration does not agree? Or is it committing to limiting its pro bono activities to those issues the Administration will support.* And does no one see the First Amendment problem with that? Milbank actually had an additional thing I had not seen with other firms--it pledges viewpoint and political diversity in its pro bono committee.

[*] Reportedly, Paul Weiss has stripped from its website PR stories about its pro-LGBTQ+ work. So that hints at the answer.

I join

Josh Chafetz (Georgetown). I join you heartily and gratefully. This is fine--very.

Searching for agreeable Jewish organizations

My wife and I are struggling to find space in the Jewish community, given our (to some extent) heterodox views about Israel and Israel's centrality to the Jewish faith and what it means to be Jewish, as well as our willingness to tolerate (or at least accept the reality of) antisemitic speech on and off campus and the First Amendment obligation to deal with hateful views.

I am more troubled by this silly poster than I probably should be. But so much seems wrong: The easy jokes about "kvetching." The centrality of complaining to much Jewish humor. The First Amendment. The fact that people said the same thing to Jews (perhaps including my grandparents) 100 years ago. The fact that Jewish study calls us to question (which is just another form of complaining) everything. Beyond all that, this bothers me because it accepts the MAGA framing that all who disagree with us (however mild or peaceful) should shut up or leave, which runs counter to my understanding of Judaism and democracy (which run together here).

(Assuming this is real. I found it floating around social media and commented on by a lot of people I trust. I will delete if I learn it is false).

Combatting antisemitism (Updated)

This is the Trump Administration's latest undefined-and-meaningless catch phrase. It appears in the surrender agreements from Columbia, Paul Weiss, and Skadden. Marco Rubio has cited it as a central feature of American foreign policy and thus a reason to deport non-citizens who engage in certain protest activities.

But what does it mean and what does it allow?

Antisemitism has existed for one day less than Jews have existed, in many evolving forms and severity. So I do not know how Donald Trump and his minions (no pun intended) are going to eliminate it now--people are going to believe what they believe and say what they will say. And if we cannot eliminate it, I worry that Donald Trump and his minions will do what they are doing--controlling what people say and believe by arresting and deporting those who engage in wrong-think, stripping money or otherwise threatening universities who do not align campus speech (faculty and student) with the Administration's views, and coercing law firms into pursuing litigation (whatever that may look like) against those who hold or express those wrong views. That is before we get to the impossibility of defining antisemitism and controversy over the HIAS IHRA definition and the likelihood that many will consider Rumeysa Ozturk's op-ed or an academic talk about the Gaza death-toll "antisemitic." And before we get to how heads would explode if a Democratic administration declared that "combatting racism" represented U.S. policy and compelled universities to do to (purportedly) racist speakers what the current Administration is doing or threatening as to (purportedly) antisemitic speakers.

Update: As if on queue, Harvard, with the same code for "do more to restrict speech the Administration does not like," although addessed as "addressing" (rather than combatting). Yes, antisemitism "is present on our campus," as it is everywhere in the world. Also present on campus is racism, misogyny, anti-trans bigotry, anti-Nazi hatred, and a whole range of ideas that different people may like or dislike. What do these schools believe they can do without undermining any commitment to free thought, free speech, and academic freedom? Because Donald Trump does not care about those--he just wants "those people" off campus. So nothing short of that will appease him. Or too many Jewish organizations.

Free speech stuff

Random stuff, connected by the Administration's assault on free speech and the refusal of many to recognize or acknowledge it for what it is.

1) Good statement from J Street criticizing the Trump Administration for using "fighting antisemitism" as pretext for attacks on immigrants and universities and on constitutional protections, especially free speech. It echoes the not in our name theme that many in the Jewish community have pushed.

2) I see a telling disconnect between how people (especially Jews) view the detention of Rumeysa Ozturk and the detention of Mahmud Khalil. Many people see Ozturk as a free speech problem--agents seized her for core First Amendment activity of writing an anodyne newspaper op-ed. But they view Khalil as purely a due process problem--seizing and deporting him is fine, so long as they give him process prior to deporting; no one acknowledges that the government seized him for core First Amendment activity of protesting. (This was the ADL position--give him process, but thank you for protecting delicate students from pro-Palestine speech). Even if you accept that Khalil violated some campus rules in those protests, the government does not revoke green cards for minor property violations; the special attention to him arises from the message underlying those violations. One cannot distinguish the underlying speech problem from these cases, at least under U.S. free speech law.

3) NYU canceled a speech by Johanne Liu, former president of Doctors Without Borders, apparently fearing her talk would be perceived as anti-Trump and antisemitic. The last decade has been filled with people insisting that the greatest to free speech comes from a university canceling or disinviting speakers (it is a key metric in FIRE's free speech report card) or otherwise interfering with their ability to speak and be heard without interruption. Those who do not like what the speaker says should sit quietly and politely listen, perhaps asking a challenging (but polite) question in Q&A. Apparently that applies when the objecting person is a queer sophomore wanting to avoid feeling othered by the speaker--not when the objecting person is the President of the United States supported by masked ICE agents. I pick on FIRE a lot, but I want to hear what they have to say on this.

On institutional neutrality

Amid failures of universities to speak as one voice against the attacks on academic and of law schools to speak as one voice against attacks on law firms and the legal profession, critics complain about institutional neutrality and the Chicago Principles--the supposed view that institutions should not take corporate positions on matters of public concern.

As I wrote a few days after the election, the Chicago Principles do not require institutional silence. The Kalven Report said:

[f]rom time to time instances will arise in which the society, or segments of it, threaten the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and its values.

The Administration threatens the university mission by cutting funding and seizing control over hiring and curriculum; Kalven would say a university can (must) defend its interests and values. That universities and law schools have failed to do so reflects not institutional neutrality but cowardice.

Challenging EOs

Genevieve Lakier's guest post at Balkinization criticizes the Fourth Circuit stay of an injunction barring enforcement of Trump's anti-DEI executive order. She argues that the Fourth Circuit treated the EO as government speech, a broad statement of government policy, ignoring its legal force and immediacy. Demanding that challenges wait until agencies enact regulations implementing the EO prolongs its chilling effect.

Trump's penchant for EOs creates some puzzles for constitutional litigation.

1) When is something sufficiently enforceable as to allow litigation? Had Trump urged--at the State of the Union or in a letter to congressional leadership or some other public message--Congress to enact identical anti-DEI legislation, no one can bring suit until Congress enacts (and Trump signs) the legislation. Had Trump given a speech--but no signed EO--ordering executive agencies to enact identical anti-DEI policies, no one can challenge anything until the agencies act. So what is it about the EO that makes it different and challengeable when neither of the other two do not? Is it the president's signature?

2) Jack Goldsmith argues that courts issue more universal injunctions against Trump actions than against actions by Democratic presidents. Sam Bray counters that Goldsmith relies on studies that do not count universal vacaturs of regulations under the APA. That exclusion skews the numbers--"The Biden administration issued a lot of rules that were stopped with vacatur; the second Trump administration is at present relying a lot on executive orders, and they are being stopped with injunctions. Any narrative that counts only injunctions and leaves out vacatur will miss the fundamental equivalence in the judicial action against both administrations."

3) It also makes convenient Ohio S.G. Elliot Glaser's argument that universal vacatur is permissible but universal injunctions are not. So courts can universally stop the common mechanism through which Democratic Presidents act but not universally stop the common mechanism through which Republican Presidents (especially Trump, who sees EOs as reflecting his power as a man of action) act.

4) I wonder if the in-between nature of EOs warrants courts issuing DJs but not injunctions. An injunction is less necessary or appropriate when there is no enforceable policy to enjoin. But--accepting Lakier's argument that the EO is sufficiently imminent and chilling--a declaration that the policies commanded in the EO might be a sufficient fallback. Lakier seems open to this. And it satisfies what Steffel suggests to be the purpose of DJs--so one need not act at one's peril to determine their rights.

Kilborn v. UIC

Seventh Circuit holds that UIC Law Prof Jason Kilborn adequately pleaded a First Amendment retaliation claim where the school sanctioned him in response to student objections to tests and discussions of some race-related issues in class and to how he spoke about the subsequent controversy. (I wrote about the early days of the case--in 2021). Some noteworthy things in the opinion:

• Garcetti does not apply to a professor's testing and classroom speech or to out-of-class conversations arising from the controversy over his classroom speech. Academic speech is presumptively (if not per se) of public concern--engaging students on policy issues, giving them a taste of real-world controversies, and addressing controversies within a public institution, such as when it is ok to refer to racial slurs in classroom materials. The court declined to do the Pickering balancing at the 12(b)(6) stage. So we go back for discovery and summary judgment, unless the school decides to cut its losses.

• No qualified immunity on Garcetti. This is interesting. Pre-Garcetti, Connick/Pickering offered "qualified protection" for academic freedom . Garcetti left open (in a footnote and a Souter concurrence) whether it applied to academics and no Seventh Circuit precedent applied Garcetti to university classroom speech. Thus, "[b]ecause our pre-Garcetti cases clearly establish a right to academic freedom in this con- text, and neither Garcetti nor our more recent case law undermines that right," the right to classroom speech Kilborn alleges was beyond debate--pre-Garcetti precedent told UIC administrators they could not punish Kilborn for this speech and Garcetti did not suggest any differently.

This is a good result in the eye of someone (me) who hates qualified immunity. But it seems to flip the presumption--absent new law telling the university speech is unprotected, it should have understood that it was protected and thus not sanctionable. Implicitly, university officials were not free to apply Garcetti on their own or to anticipate Garcetti's application to classroom speech in the absence of contrary precedent. But QI usually goes the other way--the officer can act absent clear precedent that he cannot act. I think this case will make an interesting puzzle in the next edition of the § 1983 treatise.

• Defendants have QI on Kilborn's compelled-speech claim (based on having to go through diversity training). Barnette clearly establishes a right to be protected against compelled speech by the government as sovereign; it does not speak to government as employer. And whatever Janus said about compelled subsidies for unions does not resolve employers compelling employees to speak. In an essay a few years ago (part of a symposium FIU hosted on Barnette's 75th anniversary), I suggested that Garcetti could undermine or limit Barnette in the employment context, particularly in light of Janus. This opinion at least suggests that is an unresolved question in a damages action.

Again, note the inconsistency, which turns on different defaults. UIC was protected in reading Barnette and Janus narrowly and acting on the view that it could compel employee speech absent precedent saying otherwise; it was not protected in reading Garcetti broadly and acting on the view that it could stop classroom speech absent precedent saying otherwise.

• If it carries the day elsewhere, the court's free speech analysis protects university professors against state and federal efforts to stop DEI and other "woke" classroom speech. If the First Amendment protects a prof whose classroom speech (in the school's warped view) makes certain students feel bad or uncomfortable, it protects her when she (in the state's warped view) makes those students feel good or comfortable.

Moynihan on real chilling effects

Don Moynihan (Michigan, Public Policy) on government chilling speech in real and meaningful ways but no one noticing because people have been screaming about woke college students for so long. It captures most pieces of the current free speech crisis in one space, missing only Columbia and the ADL surrendering any pretense to caring about free speech and civil liberties.

Not in my name (Update)

It is a strange time to be Jewish in America. Government censors purport to be protecting us by trying to silence speech that they regard as antisemitic (which usually means critical of Israel and Israeli policy). Universities are targeting and punishing speakers and speech in the name of protecting Jewish students, at the cost of intellectual and academic freedom. Leading Jewish organizations (especially ones that rhyme with Panty Exclamation Teague") welcome anyone who supports the Netanyahu government, including when they make Nazi salutes or spread false claims that Leo Frank framing a Black man.

And it is a feeding frenzy across the ideological spectrum. As Democrats begin to fear a loss of Jewish support, they see the need to "do something" to show that they will protect Jews, even from imaginary or overstated threats. And so Democrats in the Democratically dominated Connecticut has introduced a bill targeting antisemitism (and anti-Islam bias, but let's not kid ourselves) on all campuses in the state.

Update: I guess I should add stripping funding from a university because it did not do more to restrict speech that certain people do not like.

This will not end well for Jews, because it never does. And we are foolish to pretend otherwise just because we like where the winds blow in the moment.

My son is a 1st-year at a school in Connecticut. People on campus sent out the bat signal for students to make themselves heard at a hearing today. He nabbed a speaking slot. His comments are after the jump.

My name is Reuben Wasserman, I am from Miami, Florida, and I am a first year student at Wesleyan University. I OPPOSE SB 980 An Act Improving Safety on the Campuses of Institutions of Higher Education.

When I was applying to colleges just last fall, I was constantly asked by my peers which Florida universities I was applying to, just in case I decided to stay close to home. My answer was simple: none. I refused to apply to any universities in Florida largely because of the student repression and attacks on academic freedom occurring on those campuses. I knew about those policies all too well; my parents are both professors at a public Florida university. I saw firsthand the impacts that increased state scrutiny had on their classes, conferences, and on students and faculty alike. I watched these anti-free speech measures create an atmosphere of fear not only on college campuses but extending off campus as well. When I was admitted to Wesleyan, I saw not only the chance to attend a college I enjoyed but a chance to escape student and faculty repression. This measure destroys my chance at that. And the worst part? It destroys this chance in the name of my protection.

I proudly identify as Jewish. My father started wearing a yarmulke after the horrific Tree of Life shooting in a show of resistance to antisemitic violence and rhetoric. I watched my peers in middle school do Heil Hitler as a joke and a sneer at me and my three other Jewish classmates. I am very familiar with what antisemitism looks like. It’s impacted me, it’s impacted my family, and most of all it’s impacted my community for centuries. So I will not let this bill speak for me as not only a Jewish person but a Jewish student in Connecticut. This bill does not protect me. Banning speech will never protect me. Controlling what we discuss in the classroom and on campus will never protect me. The surveillance that this bill enacts ensures that the freedom of speech and academic freedom of my peers and professors is at best discouraged and at worst outright punished.

I want to remind you again: I’ve seen this all before in Florida. The laws with similar intentions passed by the Florida state legislature did not reduce antisemitism. Virulent antisemites like the Proud Boys still exist at home. I still received jeers as an openly Jewish student in high school. Instead of protecting me, the Florida laws created a culture of fear in which those very discriminatory actions thrived. That culture did not protect me as a Jewish person, nor will protect me in Connecticut this time around. As a Floridian, as a Jewish person, and as a Connecticut college student, I urge you to vote NO on SB 980. It will not protect me. It already hasn’t.

Harper's Letter and real threats to free speech

Amid genuine government efforts to restrict or retaliate against speech--the White House limiting AP access because of objections to its style guide, deputized private thugs removing people from town hall meetings, government stripping funding from universities where researchers focus on certain topics and viewpoints--some have returned to the infamous Harper's letter of 2020. They wonder-facetiously, since we all know the answer--whether the Harpers authors worry that government threats to suppress speech (as opposed to annoyed readers complaining about the authors themselves) threatens "the free exchange of information and ideas, the lifeblood of a liberal society" or creates a "stifling atmosphere [that] will ultimately harm the most vital causes of our time." Does a promise from the Acting U.S. Attorney for the District of the District of Columbia (and nominee for the permanent slot) to "be vigilant in standing up against entities like the AP that refuse to put America first" suggest that "journalists [will be] barred from writing on certain topics" and face "swift and severe retribution" for what they say? Or is that only when it comes from an Oberlin sophomore complaining about these authors rather than the machinery of the United States government.

I do not expect intellectual honesty from Bari Weiss and her fellow travelers (and some of the Harper signatories should have known better, even in 2020). Most do not fear reprisal from this administration and do not care that their critics or ideological opponents will face such retribution:

    "Hey, please be thoughtful in how you write about powerless trans people"--dire threat to free speech.

    "You lose your government funds if you use the word trans person and your ability to access common spaces if you do not describe bodies of the water with out preferred terminology"--no problem.

I think we are witnessing the Converse Cry-Wolf. It is not that these people screamed about threats to free speech for so long that no one believedsthem when they now warn about real threats to free speech. It is that these people do not even recognize, acknowledge, or care about these real threats to free speech.

Defining misinformation

Free speech advocates opposed government efforts, urged by members of the public, to restrict and eliminate misinformation about COVID, the 2020 election, January 6, conversion therapy, and other subjects. They warned, in part, about the danger of giving the government the power to define what is true and to restrict speech the government defines as "misinformation." If you give the Biden Administration the power to define the truth about COVID and to suppress as "misinformation" any speech that departs from that truth, nothing stops the Trump Administration from defining the truth about something liberals care about and suppressing as misinformation speech that departs from that truth.

I did not expect that the warning would become real over something as stupid as Donald Trump unilaterally renaming the Gulf of Mexico and his administration insisting that using that name reflects a "commitment to misinformation" worthy of sanction. Yet here we are.

Update: Eugene has more.

Time is a flat circle, sport-and-speech edition

My first published article at FIU, Symbolic Counter-Speech, explored the idea of using symbols to protest the symbols themselves.  Examples included events up to and at the start of the Iraq War, when Canadian baseball and hockey fans booed Star-Spangled Banner to protest the U.S.-led war and U.S. baseball fans booed Oh, Canada because Canada did not support the war. (Surprisingly, the U.S. did not go so far as to rename it "Freedom Bacon").

Reports of Canadian hockey fans booing the anthem in response to President Trump initiating a trade war with Canada shows we have gone nowhere in 22 years.

Update: Fans at a game between Nashville and Ottawa in Nashville booed Oh Canada. Free speech for me and for thee.

Nazi jokes and Nazi salutes

I have no real use for the ADL and less for Jonathan Greenblatt. I have long believed they see antisemitism lurking around every corner, often in a way the conflicts with my views on First Amendment protection for hate speech. So I am not the group's target audience. And October 7 produced a genuine uptick in antisemitic speech and incidents, so I began to see a bit of the group's point.

But Greenblatt and the group's response to Elon Musk's adventures destroys any credibility. First, it was a Nazi salute; it did not just "appear to be," as so many outlets (including The Forward) described it. And it was made on stage at an inaugural even by a person with an office in the West Wing and the ear of the new President. Minimizing it as "an awkward gesture in a moment of enthusiasm" is absurd. Greenblatt exacerbated the problem by condescendingly telling everyone who disagrees with him (those who are "on edge") to chill out by "giv[ing] one another a bit of grace, perhaps even the benefit of the doubt, and take a breath" and "hop[ing] for healing and work[ing] toward unity in the months and years ahead." As if Musk and the president he supports are not expressly targeting those they do no like. Demanding that one side give the benefit of the doubt and work toward unity--while the other runs roughshod--is offensive nonsense.

Greenblatt made himself look worse by chastising Musk over bad puns about Nazi leaders, taking umbrage about the Holocaust as a unique event that should never be joked about. (Maybe have a word with Mel Brooks?). One might see this as attempted compensation--chastising the joke to overcome the criticism for his response to the salute. But I think Greenblatt sincerely sees the latter as worse than the former. And that reflects bizarre priorities--an online joke deserves strident condemnation but a political speech celebrating a president set to pursue some problematic policies is no big deal. Of course, it is consistent with the view that the pro-Palestinian shouts of an Oberlin student represent an existential threat to Jews but government policy that harms Jewish interests is no big deal.

To be clear, both of Musk's actions warrant condemnation. And both are constitutionally protected, so nothing (besides cementing my negative opinion about him) should befall Musk. Greenblatt's disparate treatment reflects more about the ADL than it does on Musk's character. That is sad.

Update: From Jodi Rudoren at the Forward. She makes a point I considered after posting--the subsequent jokes should lend some "context" to the salute, strengthening the view that it carried an antisemitic message. Also, Greenblatt's quotations are moronic--"we don't know anything, but I can say it was not a Nazi salute."

Settlement and New York Times v. Sullivan

It is not news that at least three members of SCOTUS (Thomas, Alito, Gorsuch) have shown some desire to at least revisit New York Times v. Sullivan. I have been sanguine, and perhaps Pollyanna-ish, in believing there are not two more votes to undo the Court's first-and-strongest act of protecting free speech. But news reports that Paramount wants to settle Trump's suit against CBS over supposedly deceptive editing of 60 Minutes' Kamala Harris interview*--hot on the heals of Disney settling the suit against George Stephanopoulous over saying Trump had been found liable for rape--suggests the regime collapsing in a different respect.

[*] Purportedly because Paramount worries--and may have been told by told as much by incoming FCC Chair Brendan Carr--that the FCC will resist a proposed merger with Skydance Media and that Paramount must make concessions to Trump and his administration.

Prior to the 1960s, the Times' refused to settle defamation acti0ns. Adolph Ochs regarded settlement as "tribute" and would spend money only for litigation. By the early 1960s, $300 million in potential defamation liability to Southern officials (including $ 3 million against the Times for "Heed Our Rising Voices") rendered that strategy unworkable. That partly explains the Times taking Sullivan's case to SCOTUS as a First Amendment issue--it needed the decision to stop the organized strategy of extortionate litigation as a legal weapon to silence the media.**

[**] The rise and demand for anti-SLAPP statutes reflects the view that speakers need protection against not only liability but the cost of litigation itself, where plaintiffs seek to use the judicial process as the punishment.

We have returned to extortionate litigation but against a more compliant, and compromised, media ownership. And as bad as the Disney/Stephanopoulos case was, the Paramount/60 Minutes case is worse. The district court in Stephanopoulos had denied a motion to dismiss and there was at least a plausible claim that Stephanopoulos was not substantially truthful (and knew as much) when he repeatedly said Trump had been found liable for rape (rather than sexual abuse). Paramount wants to settle before the case even gets that far. And their case is absurd--Trump cannot identify any way in which 60 Minutes editing the interview  injures Trump in a legally cognizable way such that, however deceptive, it loses constitutional protection. But Paramount has no interest in fighting for free speech where it conflicts with its business interests. A settlement in this case arguably extends beyond extortion to something like bribery--Paramount would give Trump tribute in exchange for the merge despite facing no real risk of legal jeopardy.

This post provides an opportunity to promote two pieces of scholarship: Samantha Barbas' Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan, which uses the Times' internal files to explore the case as one about civil rights, and Thomas Healy's review of the book in Michigan Law Review.

Can Donald Trump block people on Twitter?

I taught Lindke v. Freed in Civil Rights today and I genuinely do not know the answer. But I think it is yes, he can--Knight Foundation v. Trump comes out the other way under Lindke.

Step One of the analysis requires that the official exercise government-provided authority to speak for the government in that forum, derived from some statute or other source of law. The President has the power to speak to the public and what he says may reflect official policy. But no statute or constitutional provision obligates him to do so, certainly not on Twitter. And the fact that he uses Twitter to repeat things that the government announces more formally elsewhere (e.g., an executive order) does not make the social-media page the formal government mechanism.

It is unfortunate that the government used a case about a government employee (Lindke was city manage) to address this question rather than a case involving elected officials who are expected (as a matter of representative democracy) to speak to the public about the business of government but are not required by law to do so.

Curious to hear what others think. What's that definition of insanity everyone uses?

Tell me what a heckler's veto looks like, this is what a heckler's veto looks like

Prattville, AL removed Prattville Pride's float from the annual Christmas parade after Prattville Pride notified the city about vague threats (to throw eggs and water at the float) and asked for additional security and police presence. The mayor said the city would "not put the rights of parade participants ahead of the safety of tits (sic) citizens." Judge Huffaker of the Middle District of Alabama was having none of it, enjoining the city from keeping Prattville Pride out of the parade and ordering the city to provide police protection for the float and to enforce criminal laws as appropriate.

The court recognized that "the heckler’s veto is what the Court has before it today." That term has been abused of late, used (including by free-speech proponents) to cover loud-and-obtrusive counter-speech that makes life difficult for one set of speaker-and-willing-listener. The "preferred first speaker problem" (in which the first speaker is deemed a speaker and opposing speakers a form of censorship) reflects this over-expansion of the concept. This is what the concept means--one group threatens unlawful activity because it dislikes a speaker and the government's solution to potential crime is to silence the speaker.

Also, kudos to Judge Huffaker for FN 3: "During the hearing, the Court provided counsel for the City with a hypothetical where it asked whether the City would react the same way and remove a float of Alabama fans who wanted to celebrate their Iron Bowl victory in response to similar threats from Auburn fans. Counsel stated that the City would do so. The Court seriously doubts that."

60 Minutes swallows nonsense campus-speech narratives

In an absurdly fawning piece on University of Austin as the answer to cancel culture and student self-censorship (uncited, but obviously based on FIRE's statistic nonsense) and thus the only place committed to open-minded and all-sides debate (as opposed to a politically one-sided grift).

The piece reveals the stickiness of the conservative narrative of censorious liberal students attacking conservative speakers and making them "feel" unwelcome while the right commits the free-and-open exchange of ideas. t never distinguishes between government censorship and one person's First Amendment desire to disassociate from another person because the latter spews hateful ideas. And it never mentions: 1) Florida's actual laws restricting what faculty and students can say, teach, and learn on campus and seeking to eliminate tenure or 2) four university presidents (whom the piece mentions at the outset as an example of left censorship) lost their jobs because Republican legislators and wealthy donor Bill Ackman (mentioned as a UATX supporter) believed they had failed to sufficiently restrict or sanction pro-Palestinian campus speech. It thus continues the narrative that the real threat to free speech is an offended sophomore at Oberlin and not the laws of a state.

Attorney courage and state interference

More on the controversy over the Florida Department of Health efforts to stop tv stations from airing ads supporting an reproductive-freedom constitutional amendment: John Wilson--the attorney who drafted letters threatening tv stations with civil and criminal nuisance actions, was named as defendant in the EpY action, and loudly quit his job--filed an affidavit with the district court (presumably in support of a motion to dismiss) saying: 1) people in Governor DeSantis' office drafted the letters and ordered Wilson to send them under his name and department; 2) people in DeSantis' office ordered Wilson to enter contracts with outside counsel; and 3) Wilson resigned a week later rather than send a second round of letters.

As to ## 1 and 2: It is not surprising that DeSantis is behind these efforts or that he tried to launder those efforts behind Public Health. Nor do I imagine there is more fallout, other than perhaps to get DeSantis and his aides added to the suit.

As to # 3: There is a nice PR question as to how much to praise Wilson. Usually the "I'm drawing a line" involves someone willing to do X but not Y--"I'll decline to report this wrongdoing, but I won't forge documents to hide it." Here, Wilson's "line" was I will do X once but not twice. What changed--why did his conscience not stop him from attaching his name and sending letters on October 3 but stopped him from doing the identical thing with identical letters on October 10? In what way could the wrongfulness of those letters become apparent in those seven days?

The Free State of Florida

I am getting the hang of this "Free State of Florida" thing, as well as the general Republican status as the party of free speech. It does not undermine freedom (and free speech in particular) to remove books from libraries; to control what teachers say in and out of the classroom; to control what professors write; or to require social-media companies to carry certain speakers and messages on their private sites. And now it does not violate free speech for the head of an executive agency to send a letter to a tv station warning it about legal implications, including criminal prosecution, if it runs a political ad that he insists is false.

For all the Republican talk about Tim Walz spouting fire in a crowded theatre (and I wish he would stop doing that), this line--the right to free speech "does not include free rein to disseminate false advertisements which, if believed, would likely have a detrimental effect on the lives and health of pregnant women in Florida"--is a long-winded way of telling the station it can be punished for doing just that.

And, of course, Oberlin sophomores shouting about a Charles Murray talk constitute the real threat to free speech.

Tinker and universities

The Sixth Circuit reversed a 12(b)(6) dismissal of a lawsuit by a then-pharmaceutical student who was investigated and dismissed (although the dismissal was reversed) for social-media posts that violated "professionalism" standards. The court found her speech protected and that the right of a university student not to be punished for protected speech clearly established (despite on-point precedent involving a pharmaceutical student and social-media posts about sex and fashion). It also handles some fun Civ Pro stuff about what evidentiary materials a court can use on a 12(b)(6) without converting to summary judgment.

This should be an easy case, at least at 12(b)(6). Her speech was online and off-campus; unrelated to the school, her activities as a student, and her future career as a pharmacist; and violates professional norms only if those norms are unacceptably content- and viewpoint-based.

One problem: The court relied on the "disruption" test developed in high-school speech cases (Mahanoy and Tinker). Circuit precedent requires it, although recognizing that what disrupts a university should be different than what disrupts a high school. Still, the prospect that a university can restrict speech under the quasi-heckler's-veto that prevails in high schools is dangerous. In essence, that is what the school tried here. And I would have preferred a more rousing defense of an adult's free-speech rights.

Musk suit proceeds v. Media Matters

So says Judge Reed O'Connor, denying motions to dismiss for lack of personal jurisdiction, improper venue, and failure to state a claim in Twitter's suit against Media Matters and a reporter.

On personal jurisdiction, I wrote at the time Musk filed suit that I did not see the necessary "Texasness" in stories written about a California company by a D.C.-based reporter and published to the world by a D.C.-based entity. The court found that Texasness because two of the "blue-chip" companies Media Matters featured as having ads running next to Nazi content (and who stopped advertising on Twitter) were Oracle and AT&T, both Texas companies located in the Northern District. On one hand, a claim that plaintiff's speech tortiously interfered with defendant's contact and relationship with a Texas company can be seen as directed to Texas or involving Texas conduct. On the other, this seems far more attenuated than stories about forum conduct by forum citizens in the forum; paraphrasing Walden v. Fiore, Twitter suffers the same injury regardless of the location of the companies featured advertising next to offensive content. The same analysis basically resolves venue--a substantial part of the events giving rise to the claim occurred in the Northern District as the location of the businesses interfered with.

On the merits, this suit raises the prospect of businesses using tortious interference to end-run New York Times for broad public speech. The Court has blocked past efforts, as by imposing an actual malice requirement on intentional infliction distress. I think the same thing needs to happen here, although O'Connor did not require plaintiffs to plead those additional facts. The merits discuss was, to coin a phrase, conclusory and failed to show what allegations establish which elements (to say nothing of the fact that MM's statements, as described in the complaint, were true).

While not a final judgment, denials of dismissal for lack of personal jurisdiction represent a common use of mandamus in federal court. Query whether Media Matters pursues that course to try to get away from Judge O'Connor as quickly as possible.

More on Rankin's revenge

I was a bit glib and non-specific in this post. But it now appears more than a few teachers out there have made comments on social media to the effect that they wish Thomas Matthew Crooks had better aim; Libs of TikTok and Moms for Liberty have found and identified many of those teachers and their posts and are demanding scalps; and attention-starved and/or craven public officials are making noise about firing and/or decertifying those teachers. So let me try the fuller analysis here.

The leading, and factually similar case, is Rankin v. McPherson. A clerical worker in the sheriff's office had a conversation with her co-worker/boyfriend after hearing news of the attempted assassination of President Reagan, in which she said something to the effect of "if they attempt to shoot him again, I hope they get him." SCOTUS held that her firing violated the First Amendment. Her statement was on a matter of public concern and was not a threat or otherwise unprotected. And the Pickering balance--employee interests in commenting on matters of public concern against interests of the government employer in promoting workplace efficiency--favored the employee. The statement was made in a private conversation (albeit one in the workplace) and did not affect her co-workers, workplace relationships, performance of anyone's job, or overall functioning of the agency. As a clerical employee, she did not have contact with the public as part of her job and did not affect the office's law enforcement functions.

Ironically, Twitter exchanges I have seen fail to mention or discuss Rankin, which is a somewhat forgotten case (as so many Marshall opinions are) even among the First Amendment crowd.

In thinking about Pickering, it is worth remembering that the case involved a teacher, fired over a teacher over his letter to the editor criticizing the school board's funding priorities. Criticism of the school board did not per se affect the functioning of a school in terms of his classroom duties, his harmony with fellow teachers, or the ability of his superiors to control and discipline him. And the Court would not presume that the teacher brought his negative views into the classroom.

So what happens if schools fire or discipline teachers because of these social-media posts? As with the statements in Rankin, expressing hope outside the workplace that a political leader would be assassinated (whether as a wish for a future shooter or regret for a past shooter's failure) is non-job speech, touches on a matter of public concern, and is not a threat or incitement or otherwise unprotected. Everything thus turns on Pickering. These teachers spoke entirely outside the workplace to the public at large rather than at work to a colleague. The statements lack even a remote connection to their jobs or to their employers, because they were not talking about the school district or education (contra Pickering). Teachers are public-facing employees. But schools cannot assume that teachers will bring their personal political views into the classroom as to allow them to fire teachers who express views that school administrators find offensive or contrary to the values of the school. Absent some evidence that the teachers will attempt to convince their students that Crooks should have bought a better scope or otherwise that assassinating Donald Trump would be a good thing,* the school cannot argue that the teacher's publicly expressed political views that never find their way into the school or curriculum undermine discipline or the efficient educational operations.

[*] Which would constitute a fireable offense because elementary and secondary teachers exercise less control over their classroom speech.

The problem may be actual or anticipated parent reaction--a school might be able to argue that functions have been disrupted or undermined if parents complain or object to their children being in one of these teachers' classes. While that sounds like a heckler's veto, lower courts have rejected the idea that Pickering's disruption prong constitutes such a veto--as the Second Circuit put it, parents are not outsiders to the speech and speaker but participants in public education whose cooperation is required for the system to work.

Cases in which teachers have lost on Pickering tend to involve statements that go towards children and the teachers' possible interactions with children--a guidance counselor publishing a sexist relationship-advice book; a school counselor indicating an unwillingness to handle trans kids as the school deems fit; a teacher with a membership in NAMBLA; or a teacher who blogs critically about her students. Nothing that these teachers said bears on their students or on what they teach. Indeed, if these teachers can be fired for these obnoxious statements about world events, it seems to follow that schools could fire teachers for holding or expressing an array of obnoxious beliefs on an array of matters of public concern. Something I thought Libs of Tik Tok and Moms for Liberty decried as cancel culture . . .

On-point precedent (Updated)

The latest target of Libs of Tik Tok has on-point precedent on her side. Maybe there is a difference between a special-ed teacher and a clerical police employee, although I doubt it. The school would have to show some risk that she has brought or will bring her heinous political views into the classroom. Unless cop-porn has changed the legal landscape.

Update: Seems to be spreading and escalating. A teacher in Oklahoma City posted "[w]ish they had a better scope" and the state superintendent announced that he was coming for her license, insisting that "[n]o one in Oklahoma education system will support the assassination of @realDonaldTrump. It will not be tolerated. Ever!" Interesting response--query whether it extends to those supporting the assassination of anyone else (suppose Crooks decided to shoot at Biden--new reports suggest he picked his target at random). Or to those who, for example, insist that Derek Chauvin was justified in killing George Floyd. Otherwise, this guy gave himself a viewpoint-discrimination problem, atop everything else.

More on Younger--Exhaustion and the limits of defensive litigation

I am thinking through some points in my post about 11th Circuit Judge Robin Rosenbaum's call for rethinking the scope of Younger, at least in electoral speech cases.

Rosenbaum argues that "Younger has evolved to allow states to impose a state-exhaustion requirement on those trying to exercise core First Amendment rights." This is a bit nit-picky, because I agree with her basic criticism. But it is inaccurate to say Younger imposes an exhaustion requirement. An exhaustion delays federal litigation by requiring the plaintiff to pursue other procedures before going to federal court. But the plaintiff should get to federal district court eventually. On the other hand, when the federal court abstains under Younger, that plaintiff will never return to federal district court in a § 1983/EpY action. The rights-holder remains in state administrative and judicial proceedings, with the possibility of a federal forum through SCOTUS review of the state's highest court. Rather than creating exhaustion, Younger limits offensive pre-enforcement § 1983/EpY litigation and compels defensive litigation on important free speech issues. Still potentially problematic, depending on one's views of the lines between offensive and defensive litigation. But not as inconsistent with the text and purpose of § 1983.

The key to Rosenbaum's argument is an objection to Younger's application to state administrative proceedings (at least in First Amendment case), which delay access to state courts. She identifies two arguable problems. First, while Younger perhaps fairly presumes parity between state and federal courts in willingness to vindicate federal rights, that presumption should not apply to state administrative agencies, even with eventual state judicial review. Second, delaying access to state court may delay the first meaningful opportunity to raise federal issues--a rights-holder has an adequate opportunity so long as he can raise issues in some state proceeding, even if it does not come until several steps down the line. That is, if the PAC cannot raise First Amendment issues before the hearing board, it is enough that it can appeal the board's decision to a state appellate court and raise the First Amendment there--regardless of how long it takes to get to that second level of review.

On the other hand, the upshot of Younger is to push rights-holders out of federal district court and into state proceedings that must run their (state-determined) multi-level course. It is not clear why the first level must be judicial rather than administrative. Nor is it clear why the opportunity to raise federal issues must come at the first stage of the multi-level process, if that process must run its course before those rights can be vindicated. That is, why does it matter whether the rights-holder can raise and prevail on his federal rights at the first stage if the state will appeal that decision in any event and force completion of those proceedings.

The answer to that goes to preliminary relief, available in offensive federal litigation but not in defensive state litigation. A rights holder (such as the PACs in the Georgia case) can obtain a preliminary injunction in federal court, allowing it to engage in political speech pending resolution of the constitutional questions. From a defensive posture, especially within an administrative process, the rights-holder must remain silent and ride out the proceeding. That, ultimately, becomes the real issue with Younger's push into defensive litigation.

Cheering speech in context

Protection for cheering speech--fan speech during sporting events--depends on context. Different sports employ different norms and practices, which affect what is acceptable fan speech. Obviously, the constant thunder of a basketball game at Duke's Cameron Indoor Stadium does not carry over to Wimbledon, where fans cheer between points but are expected to remain silent during play.

That works well enough in trying to define the rules for fans in those stadiums in which First Amendment rules apply and in which the stands can be seen as some kind of public forum. But tennis also apparently has norms limiting what fans cheer for or against and how. Two cases in point from Monday.

Novak Djokovic was upset with the Wimbledon crowd during his victory over Holgar Rune for disrespecting him by shouting "booo" at him; he rejected the idea that it was Rune fans supporting their player by chanting his name ("Ruuuuune"). Alexander Zverev had a long conversation with American Taylor Fritz when they met at the net following Fritz's five-set victory, apparently angry at how loudly some in Fritz's box cheered, especially when it was obvious that Zverev was injured. It probably did not help that Fritz's girlfriend made several (since-deleted) Instagram posts about women supporting Fritz, perceived as referencing several accusations of domestic abuse against Zverev. Indeed, Zverev clarified that Fritz's coaches and trainer were respectful, so it it was someone else being disrespectful--do the math.

So it is ok to cheer for Player A but not against Player B. And do not cheer too loudly. And do not cheer (at least not overly hard and loud) for Player A if Player B is injured. Strange.

The source of the complaints should not surprise. Djokovic cannot get the fans to love him despite being the unquestioned G.O.A.T., so he somewhat leans into the villain role. And Zverev is poster-child for the ATP's perceived unwillingness or inability to hold players accountable for off-court misconduct.

Rethinking Younger

Interesting Younger case from the 11th Circuit. The Georgia AG pursued a state administrative action against a PAC associated with Stacey Abrams for failing to register and file various reports. The state commission found reasonable grounds and referred the case to the AG, which referred the matter to the state administrative hearing body. Between those events, the PACs filed a § 1983 action to enjoin the state proceedings. The court held that the district court should have abstained from the federal action.

Judge Newsom wrote another Fed Courts treatise for the panel. Although the PACs filed the federal action before the hearing body received the referral to commence its proceeding, the court applied the piece of Younger under which the court must abstain if the state proceeding commences after the federal proceeding but before any "proceedings of substance on the merits have taken place in federal court." The plaintiffs had filed a complaint and a motion for a preliminary injunction and the court had handled some case-management motions. But the court had not ruled on the PI motion or otherwise engaged with the merits in the few weeks before the state proceeding commenced.* And the fact that the state conducted a thorough multi-year investigation of the PACs undermined the suggestion that the case falls within the bad-faith exception.

[*] The court rejected the district court's reliance on its "experience managing cases" in defining the point at which the state action is too late.

Judge Rosenbaum concurs to call on the courts to "reconsider just how far Younger should extend." Rosenbaum fears Younger in a case involving core political and electoral speech; that speech has achieved greater protection than it had at the time of Younger. Whatever the merits of abstention in 1970s actions involving communists, nude dancing, and "Deep Throat" (speech which the Burger Court was backing away from protecting), Citizens United and other recent campaign-finance cases vault such speech into a unique First Amendment core demanding the "strongest protection." (A cute rhetorical move in a case in which a Republican AG was going after a Democratic PAC). She complains that two of the Middlesex factors--state interest and adequate opportunity to raise federal issues--invariably favor abstention and the exceptions are too narrow to offer help. This imposes an exhaustion requirement for those wishing to engage in core political speech during and around an election. And she identifies the "Goldilocks" problem in Younger--plaintiffs must hit the sweet spot between state enforcement being sufficiently imminent to warrant standing but before that state enforcement has begun.

Recent criticisms of Younger--especially in the work of Fred Smith (Emory)--focus on efforts to challenge proceedings within the criminal justice system, such as bail or the corrupt mess in municipal courts in Ferguson and elsewhere. The argument is that federal courts should not defer to broken state systems that the federal action challenges. Rosenbaum focuses on one area of substantive law that abstention disparately effects, in a way that undermines the substantive purposes of that law.

Thoughts on NetChoice

I decided to begin the day with NetChoice, the case about which I would have something to write. Then I can read about how the framers, 11 years removed from a revolution against a king, created a monarch (more powerful than the one it replaced) who is selected and serves for a few years at a time but otherwise can do no wrong.

Anyway, NetChoice. The argument somewhat previewed the result, but the internal dynamics may have been messy.

• The Court is unanimous on the disposition of this appeals--vacate both lower courts and tell them to do the analysis over, because this is a facial challenge. Justice Kagan writes for six (the Chief, Sotomayor, Kavanaugh, Barrett, Jackson) to explain a proper approach to facial challenges and to trace the Court's editorial-judgment jurisprudence (Tornillo, PG&E, Turner, Hurley, Pruneyard, and FAIR). She writes for five (loses Jackson) to explain how that jurisprudence applies to render the core provisions of the laws constitutionally invalid and to highlight how badly the Fifth Circuit messed up. Justice Barrett concurs to complain about the complexities of facial challenges and to suggest plaintiffs would have an easier time with a narrower as-applied challenge. Justice Jackson does not join the parts of Kagan's opinon (III-B and C) that explain how that jurisprudence ought to apply to these laws, deeming it premature. Justice Thomas concurs in the judgment to explain why facial challenges should not be allowed. Justice Alito concurs in the judgment for three (Thomas and Gorsuch) to explain why the Court should not have opined on the First Amendment questions and then to offer a contrary First Amendment analysis.

• This will be lost in the procedural mud and the news of the day, but: Five-and-a-half Justices offered a strong vision of First Amendment protection for curators of all kinds and of the limits of government trying to balance the market in ways it deems proper or in ways that will help the speakers and speech it likes.

• Justice Jackson's choice is odd. She joins Kagan's summary of the jurisprudence (III-A) but not its application (III-B and C). But Kagan completes that summary with three general points--1) the First Amendment protects curation of third-party speech; 2) that does not change when the compiler allows most speech or only excludes a small amount of speech; and 3) the government does not have an interest in balancing the expressive marketplace. Those three principles imply the resolution as to the core provisions--the sites have a First Amendment right to do this and Florida and Texas cannot rely on the only interest either has offered for these provisions. So if Jackson believes the statement of legal principles (with their obvious implications) is proper, I am not sure why she departed from the actual application.

• Justice Thomas explains everything that is wrong with facial challenges, including that they enable universal injunctions. But this is wrong, as Dick Fallon has argued. A declaration of facial invalidity is a statement about the law that has preclusive effect on the parties and precedential effect on future parties. It does not disappear the law, it does not adjudicate the rights of non-parties, and it does not stop future enforcement against non-parties. Although facial resolution from SCOTUS dictates the outcome of that future enforcement as a matter of precedent, that is how precedent is supposed to work. Perhaps apprehensiveness about facial challenges is of a piece with the idea (observed more in the breach) that the Court should decide no more than necessary to decide the case. But that is a prudential rule, not grounded in Article III or separation of powers. Of course, the Court could get to the same place if it did not insist on judicial supremacy, on it having the final word on the constitutional question that binds all other actors.

• The Court limits (majority view) or rejects (Thomas view) facial challenges as a way to keep the Court from wielding too much power at the expense of the other branches, where those branches would be stymied by the Court's pronouncements on the Constitution to make or enforce the laws against non-parties in the future. But the Court would not need that limit if it did not assume that a declaration of facial validity binds the executive in the future.

• Murthy v. Missouri held that states and users lack standing to challenge the Biden Administration's jawboning of social-media sites, reflecting the Court's distaste for "massive kitchen-sink, lots-of-plaintiffs/lots-of-defendants/lots-of-bad-conduct constitutional claims." Something similar might be at work here. These laws have core provisions raising constitutional problems (limits on curation and notice requirements) for specific actors (Facebook and YouTube) for specific conduct (their home pages or news feeds). Litigation by a trade association challenging all provisions of the law goes too far. Again, that limit might have cross-ideological effects.

• It will be interesting to see what happens going forward. Might it be worth it for NetChoice (or just Facebook and YouTube) to rework this as an as-applied challenge to the moderation and notice provisions (which a majority of the Court said violate the First Amendment) and leave the rest for another day? There is an argument (Ilya makes it) that the invalidity of these core provisions is sufficient to create the necessary overbreadth compared with any legitimate sweep of the law (such as Gmail or Uber reviews).

• Florida AG Ashley Moody took to Twitter to announce that the Court unanimously sided with it--"We are pleased that SCOTUS agreed with Florida and rejected the lower court’s flawed reasoning—invalidating our social media law. While there are aspects of the decision we disagree with, we look forward to continuing to defend state law." This is impressive in its understatedness and in its cynicism that my fellow Floridians will not read the opinion or get their news from an accurate source. "Aspects of the decision we disagree with"--the Court rejected the entire First Amendment edifice on which Florida relied. Kagan's opinion sees "the First Amendment issues much as" the Eleventh Circuit did in Judge Newsom's excellent opinion. Moreover, in emphasizing the Fifth Circuit's wrongness, the Court impliedly announced the Eleventh Circuit's correctness as to the constitutional invalidity of the core provisions.

Judicial departmentalism and the Ten Commandments

A quick word on the new Louisiana law allowing a sect-specific version of the Ten Commandments in all public-school classrooms.

The governor and legislature acted in a legitimate way. They believe the law constitutionally valid and acted on that view, even if that view runs contrary to binding SCOTUS precedent. And they acted in something other than a purely performative, wasting-taxpayer-dollars way, to the extent they believe (not unreasonably) that the current Court might overrule Stone.

Critics must wrestle with this problem: If Louisiana did not or cannot do this, a court could never reconsider or revisit precedent. It takes a new law or enforcement of an old law to create new litigation allowing the court to resolve the constitutional question and to change the law if it sees fit. If a state cannot do this, decisions declaring that government cannot do something are set in stone (no pun intended) and never can be changed. Whatever one thinks of the constitutional validity and/or wisdom of these displays and whatever one thinks about whether the Court should reconsider Stone, it cannot be that any judicial precedent lies procedurally beyond reconsideration.

Content-neutral to content-discriminatory and the changing nature of campus protests

Great conversation among Jane Bambauer, Eugene Volokh, and Erwin Chemerinksy on the Free Speech Unmuted podcast.

I will flag the conversation at the end of the hour-long discussion--when and why schools might choose not to enforce their content-neutral campus regulations against expressive activities and how failing to enforce now might disable future attempts to enforce against different groups or positions. That is,allowing a pro-Palestine group to occupy the quad or block the entry gate in violation of campus rules may render future efforts to enforce facially neutral regs against a different group content- or even viewpoint-discriminatory, at least in the near term.

The discussion offers another example of how the changing nature of campus speech--which I discuss here and here--creates new problems for university administrators. When campus protests focused on a limited number of issues about which there was general agreement, universities could afford non- or under-enforcement of neutral TPM regs because no other group or speakers wanted to use those same spaces. No pro-nukes or pro-draft groups wanted to occupy the quad or block the gate, even if they disagreed with the anti-draft occupiers. And there were not other groups seeking to use the space to speak on other issues. Offering leeway to anti-nuke campers thus did not risk opening the space up to all groups for the near future. Not so, going forward, as Erwin argues. If a pro-Israel group wants to block the campus gate at Berkeley or an anti-choice group wants to occupy the lawn, the university cannot enforce those TPM regs more strictly than it has been doing now.

TikTok ban and 3-judge district courts

TikTok challenged the new law banning it (at least with Chinese ownership), alleging violations of the First Amendment, equal protection, bill of attainder, and taking. Pursuant to § 3(a) of Division H of the Act, it filed the petition with the D.C. Circuit.

Congress essentially adopted for challenges to the statute the procedure for challenges to regulations implementing and enforcing the statute. But reviewing regulatory action looks appellate, while reviewing the validity of enforcing legislation involves an exercise of original jurisdiction, including taking evidence about standing (unfortunately) and the plaintiff's factual allegations about things such as the impossibility of compliance and the effect on speech. And Congress had such a process if it wanted quick multi-judge review--3-judge district courts.

Nothing good happens after 2 a.m. or when you testify before a House Committee (Updated)

David Pozen on Columbia President Minouche Shafik shattered multiple norms over how the administration deals with faculty and students.

But consider a broader lessen: University presidents have nothing to gain and everything to lose from engaging with Virginia Foxx, Elise Stefanik, and the other bad-faith Republicans on the Committee on the Education and the Workforce. Attempt (however badly worded) to defend academic freedom and the First Amendment, lose your job immediately (Liz Magill) or after they come after you on something else (Claudine Gay). Cravenly kowtow to them by throwing faculty and students under the bus, as Shafik did, destroy any credibility or support from many of your constituents--and likely fail to appease those you are trying to appease.

Update: Stefanik has called on Shafik to resign or for the Board to remove her.

FWIW, my kid and I visited Wesleyan this week for admitted-students days, occurring the same time as "Israel Apartheid Week." There were posters on campus, an attempt to interrupt the President's welcome speech, a banner hung in the room during the speech, and a rally (with probably about 50-60 students) on what I presume is the "free-speech spot" on campus. It include chants and speech, mostly about divestment and nothing that crossed into blatant antisemitism. I have a thicker skin and a different commitment to free speech than the average 18-year-old. But unless I believe I never should encounter any offensive speech, nothing came close to harassment or intimidation.

National Lawyers' Guild (Updated)

I am curious how the National Lawyers' Guild feels about being dragged into the Erwin Chemerinsky mess, cited as legal authority and counsel to tell Erin Chemerinsky that she had a First Amendment right to give her speech at Chemerinsky's home. Did someone from NLG give the advice? And how do they feel about being ridiculed nationwide for how wrong they are about the First Amendment?

Update: David Schraub (Lewis & Clark) shares the answer. NLG acknowledges that the student said it had advised her that she had a First Amendment right to pull this stunt, it does not confirm doing so or the content of the advice. It says a person's First Amendment rights may extend into non-public forums and that the government actors' suppression of speech in those spaces may violate rights. While true as a legal principle, most commentators agree it does not apply to this situation.

The kids are (kind of) alright

My Temple does a program for final-semester HS seniors, a capstone to their Jewish educations designed to explore Jewish values and ideals and their connection to the real world they are about to enter (to the extent college is the real world). My kid is doing it this year, in a group of about 10 kids.

On Monday, I spoke with the group about free speech on campus. I tried to give the spiel that many schools include (or have spoken about including) in freshman orientation--the basic categories of unprotected expression, the limits on content and viewpoint discrimination, the permissibility of neutral time, place, manner restrictions, the ideas behind protest and civil disobedience, and academic freedom. I tried to get at what I think is a basic idea: Much (most?) of the speech they will encounter on campus, however offensive, is constitutionally protected; they should not count on the university to either talk back or silence the objectionable speakers; and the remedy to be applied is more speech. And, given the context, I tried to frame it in terms of Jewish values, something I have mentioned before and am trying to get my head around (it helps that Brandeis is the source of the "more speech" idea).

At least from their reactions, they seemed receptive. he most skeptical eye turned to the idea that a professor could publish a book denying the Holocaust or give a speech denying October 7 without consequence. Mostly, they did not want to sit back and let the worst antisemitic speech go, but they understood the difference between talking back and silencing.

But the experience, along with recent events on this campus, convinces me that schools should include something like this in orientation.

Specific Performance and the First Amendment

The Bryn Mawr Film Institute canceled a screening of The Child Within Me, a documentary about Israeli musician Yehuda Poliker, citing fears about appearing to endorse Israel and its position in the war. A state trial court issued an injunction ordering the Institute to show the film, pursuant to terms of the contract.

This surprised me. I assumed that the First Amendment would limit specific performance, where the order would compel the party to engage in speech it no longer wished to engage in. Much as the Thirteenth Amendment (if I remember right) limits specific performance of employment contracts. The only thing I found (courtesy of a 2019 law review article) is a 1982 Indiana Court of Appeals case involving a contract for a newspaper to run an ad for a political candidate. The court enjoined to newspaper to perform the contract and run the ad. As to the First Amendment, the court ended the opinion as follows:

The appellant finally contends that the trial court's decision violated its first amendment guarantee of freedom of the press. Again, we agree with the appellant that a newspaper has a right to publish or reject advertising as its judgment dictates. However, once a newspaper forms a contract to publish an advertisement, it has given up the right not to publish the ad unless that right is specifically reserved or an equitable defense to publication exists. The Herald-Telephone's first amendment right is not being infringed. It may still choose to publish or not publish any material it wishes, as long as the decision is made before a binding contract is formed. The trial court's decision is not constitutionally infirm.

It would appear that a party can contract away any right against compelled expression. I have asked my wisest contracts colleagues for more; I will update if I hear anything. I am leaving comments open for anyone who knows anything about the contracts side of this.

SCOTUS narrows when officials act under color online

SCOTUS on Friday decided  when public officials can block people from their social-media pages. Lindke v. Freed (from the Sixth Circuit, a claim against a city manager) became the lead case; O'Connor-Ratcliff v. Garnier (from the Ninth Circuit, claims against school-board members) was vacated-and-remanded for reconsideration in light of Lindke.

Justice Barrett wrote Lindke for a unanimous Court, describing the standard as:

a public official’s social-media activity constitutes state action under §1983 only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.

A few thoughts:

• The court properly recognized that the question is not when a nominally private person acts under color, but when a state official engages in state action or functions as a private official. While SCOTUS has had few cases on the latter issue, it ignores the obvious analogy to off-duty officers who use the badges of authority to engage in misconduct; there is a wealth of lower-court precedent, typically (although not exclusively) involving law enforcement. The court emphasizes (and this arose a lot during argument) that public officials retain private lives and First Amendment rights when they are "off duty." The Court thus repurposes the idea that "the state-action requirement 'protects a robust sphere of individual liberty;'" rather than grounds for not subjecting private actors to constitutional liability, it limits the scope of a public official's job responsibilities., a requirement that the official have some "off-duty" time to engage in his own First Amendment activities.

• The Court takes a narrower approach to state action than I would have liked to see. The official "must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action." If maintaining and posting content to the site is not part of the official job functions and responsibilities that bind the government, the official does not act under color, no matter how much the site appears to be official. The open question is how courts apply this to sites that an elected official uses to "further" her job duties or as a "tool of governance" but which are not required by state law and not a formal part of her job duties. Perhaps custom gets there, except courts do not easily find something so persistent, permanent, and well-settled as to have practical force of law. It seems unlikely social media (10-years-old) and even web-based communications (maybe 25 years old) reach that level.

• Davison v. Loudon Cty. and Knight Foundation v. Trump--the leading cases finding state action in a public official maintaining an official or quasi-official for purposes of communicating and interacting with constituents about government business--must come out the other way. Both courts focused on the appearance and function of the activities on the site--the discussion of public content, the indicia of official status. But that is step two under Lindke. The courts now never reach that issue if the official does not have  actual authority to speak on the government's behalf about the matters at issue. For example, even on her official "chair" site, the chair of the Loudon County Board of Supervisors does not have actual authority to speak on the government's behalf about, say, a recent school-board meeting. And her web site site is not the only space in which that information appears--the city likely posted it to the government's official site. The chair uses the site to engage with constituents and keep them informed about government events as an elected official, which is not a formal part of her job on behalf of the government. Maybe the President is different, although he still lacks formal speaking authority about a lot of what he posts on social media. Along those lines, I doubt a legislator or member of a multi-member body can ever be a state actor. As individuals, they do not speak for or otherwise bind the government and are not authorized or required to speak for the government or the body. Future litigation in O'Connor-Ratcliff might tell us more--that case involves elected officials who used their campaign sites to discuss public matters after taking office.

• I think the opinion downplays the importance of engagement between the public and officials (especially elected officials) within formal official-controlled channels, even where such engagement does not bind the government and does not constitute a legally authorized or compelled part of the job. Yes, an official should be able to maintain a private site that touches on public matters, just as an official should be able to discuss public issues with friends at a barbecue. But when an official opens a site and invites the public to communicate with her about public affairs, that looks like something other than a barbecue with friends. The Court could have concluded that Freed's site is private without erecting the additional hurdle that renders many job-adjacent functions--those that "further" the job without being legally authorized--not state action.

• I will link to this Will Baude post trying to make heads or tails of the Court's odd mandate in the case--vacating the Sixth Circuit "[t]o the extent that this test differ from the one applied by the Sixth Circuit." My best guess is that this is sloppy language, reflecting that the Justices ignore (if they even grasp) the procedural nuances, the differences between judgments and opinions, etc. The Court uses more expected language-vacating and remanding for further proceedings consistent with this opinion--in O'Connor.

• The Court at one point gives us this: "'editorial control over speech and speakers on [the public employee’s] properties or platforms' is part and parcel of it. Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own." Is editorial control also part and parcel of Facebook's First Amendment rights and control of its site immune from government command? Or will the Court give us the farce that a government official exercises editorial control to keep citizens from speaking to them but that private entities lack the same editorial control to control who speaks on their spaces?

Penn faculty sue Penn to stop cooperation with committee

My initial reaction to Fakhreddine v. University of Pennsylvania is that we have reached pinnacle of performatively stupid (or stupidly performative) litigation over campus speech post-October 7/Gaza War. Plaintiffs are pro-Palestine/anti-Israel faculty suing to stop Penn from cooperating with requests from the House Committee on Education and the Workforce, which they claim targets them (the lead plaintiff is mentioned in the House letter) and their expressive activities. Claims are for violations of the First and Fourteenth Amendments, Pennsylvania Constitution, and breach of contract.

On further reading, the suit is less clueless as I thought. I think plaintiffs lose and it is not close. And it still has the hallmarks of performative litigation cum bad lawyering: Hundreds of paragraphs listing political grievances--including complaining about a separate lawsuit by a student against Penn, the IHRA definition of antisemitism, and  the "McCarthyesque" (some version of the word appears 12 times) Committee. It uses "dox" (some version appears more than 30 times) to mean any publicity (e.g., Elizabeth Magill was doxxed because people emailed her with harsh criticism following the December 7 hearing). And it makes the pleading mistake of incorporating by reference prior counts into each new count; the 11th Circuit regards this as an indicator of an impermissible "shotgun pleading;" it at least shows sloppy drafting.

It confuses whether Penn acts under color of federal law or under color of state law. It never cites § 1983, as it should for claims against state actors, although many lawyers (erroneously, in my view) treat EpY as the cause of action when seeking something other than money, regardless of the government entity. It bases the under color arguments on Penn's cooperation with the Committee, a federal entity; that makes Penn act under color of federal law. But then it asserts a 14th Amendment claim, which cannot apply if Penn's joint action is with the federal government such that it acts under color of federal law.

If not complete performative nonsense, where do I think it still fails?

    • It argues for state (or federal) action from the private person's voluntary cooperation with the federal government. It emphasizes that the Committee did not subpoena the records; it sent a non-binding letter request. But close nexus requires government compulsion or overwhelming encouragement of the private conduct rather than the private entity willingly agreeing with and working with the government.

    • It seems to me the constitutional claims and the breach claims are inconsistent, assuming this qualifies as a breach. If the letter request is sufficiently coercive to place Penn under color, Penn cannot be liable for breach--the coercion would seem to make conformity with the contract impossible. If Penn is making a voluntary choice, it cannot act under color.

    • Legislative immunity lurks here, although a step removed. The real violation here is the Committee request. But Speech-or-Debate immunity shields such a claim--a court will not question whether a legislative request violates the Constitution. The question is how far down legislative immunity extends. Can a court the constitutional validity of a legislative request in the course of resolving a constitutional claim against the party subject to that request? (A recent 9th Circuit case raises a similar issue--I may write about that later next week).

Equality of Silence

Thorough discussion in the Chronicle of Higher Ed (paywalled) about private universities enacting (mostly*) content-neutral restrictions on the time, place, and manner of campus speech in the interest of keeping the peace. The piece includes comments from Brian Soucek (Davis) and Genevieve Lakier (Chicago). Brian captures the problem with these peace-keeping policies--"It really takes some commitment to decide no, we’re going to stand by our First Amendment principles even when they mean that campus will be a little more unruly and disruptive than we’re used to."

[*] Some--American's requirement that fliers be "welcoming and build community" or regs limiting fliers to advertising campus events--are content-based.

In fairness to the universities, they do not act solely out of an institutional desire avoid unruliness and disruption. The threat of Title VI liability--imposed regardless of the protected nature of the speech at issue--drives them to "stop" antisemitism by stopping antisemitic speech. And the only way to do that is to stop all speech. So here we are.

Lots of campus speech

• Beware an equality of silence. Universities cannot restrict anti-Israel/antisemitic/pro-Hamas speech solely because of its viewpoint. The solution to "pervasive antisemitism" therefore is to enact--and properly enforce--neutral regulations. Thus Barnard has banned all messages and signs on dorm-room doors. Several schools have prohibited messaging fliers (those not advertising upcoming events). That eliminates antisemitic speech, but at the cost of a vibrant speech environment and students' best and most convenient means of communication.

• Several states are moving laws prohibiting state funds from going to student groups that "support" terrorism and terrorist groups, specifically Hamas. The laws are vague in two respects. One is whether "support" means financial or whether it also includes expressions of support. The other is whether financial support for Gaza and the people of Gaza constitutes support for Hamas. The latter two could raise First Amendment concerns.

• UC-Berkeley police have opened an investigation into the protest cum riot outside a speech by an Israeli lawyer. The report indicates a focus on property destruction and trespass in breaching the building and reported assaults on students attempting to enter the building, distinct from the loud-and-obnoxious protests and chants outside the building. Curious to see if they are able to keep those separate.

• A question that came up during several programs in the law-and-antisemitism conference: Can a school be liable under Title VI for a hostile education environment for failing to stop or punish protected antisemitic speech. My instinct is no, because federal law should not compel (at least a public) a university to face a § 1983 action by a censored student. And perhaps the federal government coerces a private university (placing it under color) by requiring it to censor protected speech on threat of Title VI liability. But several conversations suggest that DOE may push the view that the protected nature of antisemitic speech does not excuse the hostile environment it creates.

• Campus signs have "targeted" the Jewish student-body president, naming her as someone supporting genocide (and thus unable to hide) and calling for Zionists to be out of office, along with the usual crap, much of which cross the antisemitic line. One question is whether the student president and other campus leaders occupy some unique position--akin to a public official--for purposes of analyzing when speech is "targeted" and thus stripped of its protection. That is, does a student open herself to even antisemitic criticism by holding a campus leadership position?

Universality and litigation procedure in the social-media cases (Updated)

Universality reared its head in the social-media cases, especially the Florida case. The plaintiffs brought a facial challenge, which perplexed the Justices who found some applications of the law that would be valid (e.g., DMs and email services). Michael Dorf offers one solution. In trying to avoid this problem, Paul Clement (arguing for the providers) tried to emphasize the particularity of the preliminary injunction--it protects his clients but does not prohibit enforcement against anyone other than his clients and it should remain in place to protect his clients from a wave of statutorily authorized $ 100,000 civil actions while litigation continues on remand to the trial court.

Clement is half right on this. The injunction protects only his clients, so the state could enforce against violators not within the NetChoice consortium. But the injunction does not (or at least should not) protect his client from civil suits. The unknown random people who might sue are not parties to the action and do not work in concert with the state, therefore the injunction cannot bind them. They likely do not act under color and thus could not be sued or held liable in an offensive § 1983/EpY action--they are not exclusive enforcers and sue to enforce their own rights to be on the platform, making them ordinary litigants pursuing an ordinary (if constitutionally dubious) state-law cause of action.

The case thus illustrates another limitation on offensive litigation in a mixed enforcement regime--any pre-enforcement injunction cannot stop private enforcement as a matter of the judgment, only as a matter of precedent. (Edit: My initial post said we forgot to mention this in our Cornell piece--turns out we did talk about it at 151-52. Mea culpa).*

[*] Anyone else experience the feeling of writing so much on a topic you forget what you've said?

Erie and litigation finacing in Florida

The Florida legislature is considering legislation that would, among other things, require automatic disclosure of financing agreements. Wisconsin enacted a similar law in 2018 and I wrote about the Erie issues it creates in federal court. Same issues and analyses arise here. Florida adds another wrinkle: Disclosure must be made within 30 days of commencing the suit, as opposed to as part of the discovery process. I have used this as a puzzle in the Erie part of Civ Pro for the past few years; now I have a local hook for it.

One additional question: Is there an equal protection or First Amendment problem in that the Florida law only applies to financing agreements for which the financier will receive some cut of any settlement or judgment. It does not apply to those--such as Elon Musk financing Gina Carano's suit against Disney over her firing from The Mandalorian or Peter Thiel and Hulk Hogan's suit against Gawker--who do not expect a return on their financing and do so for some personal or political goal. I suppose the answer depends on the purpose of the rule and how much an uncompensated funder can influence a litigant's decisionmaking. (Hogan declined lucrative settlement offers from Gawker; some argue that Thiel's funding removed Hogan's ordinary litigation incentives and strategies).

Swarthmore, whatever comes after redux

My kid did not particularly like Swarthmore during the campus visit, so I feel ok enjoying the media-and-podcast tour by Wesleyan's president while criticizing the statements from Swarthmore's president.

That said, in response to Steve, I did not intend to criticize Smith for condemning "river to sea" or "jihadist" as part of a call for civility. (Although I am suspicious of many calls for civility, which can be vague and perverted into content-based suppression of (often) less-powerful speech on the pretext of a content-neutral concept such as civility). My point (which I did not frame well) is that she shifted within that paragraph--from explaining what is and is not protected to what she dislikes to a call for civility. And that confused her message.

And that said, Suzanna Sherry emails with a different criticism of Smith's statement (email quoted with Suzanna's permission):

Whatever the merits of Smith’s general points, I find this bit (emphasis mine) very telling about her own sympathies (which she should not be broadcasting in such a statement):

        For instance, chanting “from the river to the sea” is heard by many as antisemitic and a direct threat against Jews.             Referring to Arabs or Muslims as “terrorists” or “jihadists” is Islamophobic and anti-Arab. Such rhetoric is simply                 unacceptable and I condemn it.

The difference between “heard by many” and “is” suggests (a) that the Hamas chant is not antisemitic but merely heard as such; and (b) that the “such rhetoric” in the third sentence refers only to the Islamophobic/anti-Arab statements and thus that “river to the sea” is not unacceptable and she does notcondemn it. The referent in the third sentence is ambiguous – it could include both the previous sentences or only the one immediately preceding it – and my point is that the difference in phrasing between the first two sentences tells us which she means.

There may be a response to that; I leave it to Steve to make it, if he chooses.

One more thing I did like in Smith's letter: Although the school allowed the sit-in to continue last semester and will not do the same with future sit-ins, those who engaged in last semester's actions may be receiving notices of conduct violations. University leaders, including the Stefanik Three, have been under fire, in part, for discovering protection for offensive speech only when it targeted Jews (Jeannie Gersen notes this criticism). I initially read Smith as saying last semester's sitters would receive a pass while putting those who engage in future civil disobedience on notice that they will be removed from the space and sanctioned--which would potentially have replayed that criticism by protecting the pro-Palestine/anti-Israel group and sanctioning future pro-Israel protesters. Rather, her point was that the sitters were not stopped in the moment but may face consequences.

Swarthmore revisited

Perhaps unsurprisingly, I am less enamored than Steve of the statement by Swarthmore President Val Smith. Pieces are worthwhile, including the reminder that civil disobedience includes facing the consequences of one's actions. And her conclusion--a longer version of "it depends on the context"--is right. But the rest is vague, conclusory, and question-begging, in a way that can (and perhaps will) be used to restrict a lot of otherwise-protected speech at the school. (My disagreement with Steve's assessment of the letter may reflect our different priors about campus speech).

She calls out those who intimidate and threaten those with opposing views, clearly singling out counter-speech, although she does not explain what intimidate or threaten or retaliate means. She says speech that makes people "feel threatened" is unprotected, ignoring how targeted speech must be to constitute a threat. She says "peaceful" does not mean absence of physical harm; it also includes yelling into  bullhorns when the volume causes physical harm (whatever that means).

She at times shifts, without explanation, from what speech can be sanctioned to what she (individually or on behalf of the university) does not like to calling for civil discourse as a normative aspiration. So:

All of us must consider what it means to truly be part of this community and how our words affect each other. For instance, chanting “from the river to the sea” is heard by many as antisemitic and a direct threat against Jews. Referring to Arabs or Muslims as “terrorists” or “jihadists” is Islamophobic and anti-Arab. Such rhetoric is simply unacceptable and I condemn it. As we engage with those of different perspectives and backgrounds, I urge us all to be mindful that the pathway to common ground is paved with respect and understanding. I am confident that members of this community can find ways to express their views without resorting to harmful or hateful speech that impedes the effectiveness of their advocacy.

What does any of this mean? That something is "heard" as antisemitic or Islamophobic is irrelevant--antisemitic or Islamophobic speech is (in most contexts) protected. What does it mean that she "condemn[s]" such rhetoric, especially after what came before? She may be right about what makes or undermines effective advocacy, but, again, I am not sure how that fits with the rest of the letter.

She ends with:

Nothing I’ve written here is intended as a threat to free expression or an attempt to silence any particular view on campus. On the contrary, my intention is to maintain an environment where individuals are free to express varying views and opinions without fear of retaliation.

If that is her intention, she failed. If I am a Swarthmore student, I have no idea what I am able to say, other than that I cannot occupy a campus building to say it. And she suggests an overbroad interpretation, inconsistent with First Amendment principles, of campus speech codes and of how much speech the college can restrict and sanction.

More thoughts on campus speech (Updated)

Several things:

• Stephen Carter writes in The Times about the importance of free speech to the campus mission of intellectual curiosity and the mistakes and inconsistency of everyone--left and right--since October 7. Some really great stuff here. I do not agree with all of it, especially as to extent of protection for interruption and private opprobrium for other speech.

• [Update]: And this ALI interview with Geoff Stone, hosted by David Levi. (Note: Stone holds the Edward Levi Chair at UC, named after David's father).

• University of California's  regents will consider prohibiting academic departments from using university web sites and other channels for political messages unrelated to university business. The proposal responds to many departments at UC schools posting messages supporting Palestine and Hamas and criticizing Israel. Naturally, faculty scream academic freedom, although the inability of the department to speak as an entity does not limit their ability to speak as individual (or a group of) faculty. A question from this: Chicago Principles suggest that sub-units within a university should not engage on current events, for the same reasons the university as a whole should not. But what do Chicago Principles and ideals of academic freedom say when a sub-unit of the university (e.g., UC-Santa Cruz's Ethnic Studies Department) chooses not to abide by those principles but the university imposes them?

• At the upcoming 3rd Annual Law vs. Antisemitism Symposium, I will participate in a roundtable on the legal academy post-October 7. I plan to talk about the December 5 hearing, the range of reactions to it (back to my idea about three camps), and the lessons to be drawn. There is a lot of confusion on that last, as this story from FIRE demonstrates. FIRE is pushing back on proposals at several schools to revise campus speech codes to prohibit explicit calls for genocide against groups. I share FIRE's opposition to such efforts and its arguments against these proposals. But FIRE describes these efforts as "fallout" from the presidents' "disastrous" congressional testimony.

But what makes the testimony "disastrous?" If FIRE is worried about schools expanding their speech codes, the disaster was the presidents advancing (however inartfully) the pro-speech position ("protection of speech depends on context") and getting attacked by Elise Stefanik, who insisted that calls for genocide must violate campus speech codes ("the answer is yes!"), prompting universities to amend those codes to satisfy Stefanik and other committee Republicans. If so, the disaster lay in Stefanik's response, not in their testimony. Or the disaster was their inartfulness--failing to fully explain why context matters or to precursor their statements by condemning such speech. But that requires us to believe Stefanik--a dishonest actor--would not have had the same response to a fully articulated First Amendment vision explaining why many "river to sea" chants are constitutionally protected and thus do not violate campus speech codes.

Qualified immunity and the inversion of the law/equity divide

A divided en banc Fifth Circuit inVillareal v. City of Laredo rejected First and Fourth Amendment claims by a citizen journalist arrested for publishing nonpublic-but-lawfully-obtained information. The majority found no Fourth Amendment violation in her arrest for violating a state statute and that it was not clearly established the statute was constitutionally invalid--no precedent held as much and this does not rise to obviousness invalidity; standard qualified immunity stuff. The case produced four dissents including from Judge Willett argued that QI should not apply to this non-fast-moving, non-split-second situation. Again, standard QI stuff at this point.

Here is one paragraph early in the opinion.

Villarreal and others portray her as a martyr for the sake of journalism. That is inappropriate. She could have followed Texas law, or challenged that law in court, before reporting nonpublic information from the backchannel source. By skirting Texas law, Villarreal revealed information that could have severely emotionally harmed the families of decedents and interfered with ongoing investigations. Mainstream, legitimate media outlets routinely withhold the identity of accident victims or those who committed suicide until public officials or family members release that information publicly. Villarreal sought to capitalize on others’ tragedies to propel her reputation and career.

Three things strike me about the passage:

One is the denigration of what the plaintiff journalist does, a theme repeated throughout the opinion. That the journalistic ethics of her practices (contrasted with "[m]ainstream, legitimate media") render her less worthy of legal protection, in combination with a desire to benefit (in "reputation and career") from publishing stuff.

Second, this point captures the inversion of the law/equity divide in civil rights litigation. Historically, courts of law, and the remedies they provided, were the preferred forum for vindicating rights; plaintiffs should turn to courts of equity and equitable remedies only when legal actions could not remedy their injuries. But the majority says Villareal's first move should have been equitable-- she should have "challenged that law in court," meaning refrain from publishing and bring an offensive pre-enforcement EpY/§ 1983 action for a declaratory judgment and injunction. That is, she should have turned to equitable relief rather than legal relief.

Third, that advice imposes a catch-22. The Fifth Circuit may have rejected Villaeal's EpY action on standing grounds--whether because her intent to publish is not sufficiently immediate or likely or because the city disclaims any intent to enforce the law ("of course we would never arrest a journalist for attempting to publish truthful lawfully obtained information"), depriving her of the necessary imminent injury. Courts are forgiving in First Amendment cases, but views of merits infect the standing analysis; this is true of all courts and of standing generally, but the Fifth Circuit is uniquely obvious. This also begins to make the EpY action resemble a licensing scheme--the federal court order acts as permission to publish.

A bad decision all around. Query whether it prompts SCOTUS review. As Steve Vladeck has noted, SCOTUS spends much of its time correcting Fifth Circuit mistakes. What is one more among friends?

Koppelman on the Colorado cake wars

Andy Koppelman writes about Autumn Scardina and her lawsuit against Jack Phillips and Masterpiece Cakeshop (pending before the Colorado Supreme Court). Koppelman criticizes Scardina for "provok[ing] pointless fights" and offering the Court an opportunity to impose vague-but-bad expansions of free speech or limits on antidiscrimination law.

I have written about this lawsuit here and in our private-enforcement articles. Scardina's litigation demonstrates the commonality ubiquity, and liberal acceptance of defensive constitutional litigation. Like abortion providers and advocates under SB8, Phillips was forced to refuse to bake the cake, get sued, and assert his federal constitutional rights as a defense to liability in state court (so far unsuccessfully).* Unlike with abortion providers and advocates, liberal academics and advocates did not complain about the process or argue that the procedural posture of this case denied the federal courts the opportunity to engage in judicial review or Phillips the opportunity to vindicate his constitutional right.

[*] Colorado's civil rights law mixes public enforcement through the Civil Rights Commission and private enforcement through civil litigation. The Civil Rights Commission began proceedings against Phillips on Scardina's complaint; it dismissed that effort when Phillips brought a federal action to enjoin the proceeding and the federal court declined to abstain, citing Younger's bad-faith exception. Scardina then filed suit in state court.

But there is more to this. Rocky and I are working on piece # 5 in this series on private enforcement, arguing that public accommodation laws and "expressive products" offer the Blue-state counterpart to SB8 and the opportunity for a campaign of actual or threatened litigation to undermine constitutionally protected-but-locally unpopular right-wing conduct of refusing to provide certain products for certain customers. And this context is easier SB8 and other recent Red-State efforts--anyone can order a cake with a simple phone call (or many cakes with many phone calls). Koppelman's objection to Scardina's campaign (he calls it "reprehensible") shows why Blue states are unlikely to take this step. Koppleman is a liberal who believes in balancing LGBT+ rights and religious liberty. He, and other Democratic officials, may not want open legal warfare.

Florida DA prevails (for the moment) in dispute with DeSantis

Andrew Warren, the Democratic state's attorney in Florida fighting his suspension by Ron DeSantis, prevailed (at least for the moment) in the Eleventh Circuit last week.

The court adopted a broad scope for elected officials' free-speech rights against elected officials with supervisor authority. It expressed "skeptic[ism]" as to whether Garcetti applies to elected officials. It declined to resolve that point, because even under Garcetti, an elected official occupies a unique employment space and can speak on matters of public import, under his office's auspices, without reducing them to policy and without them undermining his office. The court then held that DeSantis relied on four First Amendment-protected reasons in suspending Warren, rather than two, as the district court held. The court (and Judge Newsom in a concurrence) focused on the district court conclusion that Warren's support for a reform-prosecutor organization's statement was unprotected because the statement contained one sentence about committing to not enforcing new post-Dobbs abortion laws; the district court erred in pulling that sentence out of its broader context, where Warren never enacted any such blanket non-enforcement policy.

The Eleventh Circuit remanded for the district court to redo its analysis of whether DeSantis would have made the same decision based on the remaining two unprotected considerations--a policy of scrutinizing certain low-level arrests and Warren's general existence as a "reform prosecutor." This is why I say Warren prevailed for the moment. The district court may conclude DeSantis would have removed him for those reasons standing alone. In fact, the district court probably should conclude as such, since it is pretty obvious DeSantis targeted Warren (Judge Newsom's concurrence notes that Warren bragged about this during a GOP primary debate) and would remove him from office for any reason he can find--whether it's two or six. So I expect that DeSantis wins on remand and the Eleventh Circuit affirms, owing discretion to the trial court's balancing.

To be clear, suspending Warren for those two remaining reasons likely violates state law, which allows removal for "misfeasance, neglect, or incompetence." But the state-law validity of the removal is not relevant to the federal claims. Newsom drops a footnote admonishing the district court for "repeatedly" declaring that that the firing violated state law and insisting that "[o]n remand, the district court should avoid such unnecessary (and impermissible) asides regarding the consistency of Governor DeSantis’s conduct vis-à-vis Florida law." (I raised this point in a prior post and the Florida Supreme Court complained about it in denying a writ of quo warranto seeking reinstatement). Warren loses his First Amendment case if DeSantis would have fired him even in violation of state law. And I think it is clear DeSantis would have fired him no matter what--whether because he genuinely believes all reform prosecutors are misfeasant, neglectful, or incompetent and acted on that honest belief; because he believes a Republican-supermajority State Senate will sign off on his decision;* or because he wants the short-term political benefit (in running for president) and is willing to lose at the end of the day. (My money is on # 2 or # 3).

[*] Under state law, the governor suspends the local elected official, which sends the matter to a trial in the Senate. The Senate can affirm the governor's decision and remove the official or reject the governor's decision and reinstate the official.

And so we return to my point since this case began: The real issue is here is the suspension's state-law validity; the First Amendment is a sideshow that does not affect the outcome or allow Warren to return to office. My initial view holds--the district court should have abstained under Pullman or at least certified the state-law issues to the Florida Supreme Court.

Interview with Danielle Holley of Mount Holyoke

I mentioned The Syllabus podcast last week for a discussion about campus protest. Maybe I will make this a permanent feature. Oppenheimer this week interviews Danielle Holley, the new president of Mount Holyoke College; they discuss the benefits of HWCs, "gender-diverse" HWCs, campus free speech and antisemitism, working with SFFA, and the problem of schools pushing STEM at the expense of the humanities. Holley is a former law school prof and dean, hanging in the land of liberal arts.

Some interesting non-law things in the talk: We visited MHC on the college circuit and a friend's daughter graduated from there. And my kid had the same reaction as Oppenheimer's daughter--why does everyone talk about STEM and not English and History on the campus tours.

The interesting law thing: Holley defends Magill and Gay that context matters. She argues that they should have recognized the BS context of the hearing and the premises of Stefanik's questions and thus prefaced every answer with "Of course I oppose antisemitism, but here is why this is protected."

One interesting exchange. Oppenheimer pushes on the benefits of the free-speech maximalist position; Holley exchanges why that ship has sailed, in part because neither side of the political spectrum will accept it and both sides want colleges to restrict speech. Of course, the fact that all sides want the college to restrict speech demonstrates why they should not restrict any (constitutionally protected) speech--the maximalist position requires neutrality of the rulemaker and letting all ideas out, no matter who supports or opposes, because someone will oppose everything. (Stipulating that universities have not been consistent--I remain happy if they figure it out now and moving forward).