Thursday, January 14, 2021

Today in cancel culture

One cheer only for President Trump's recorded statement on Wednesday urging his supporters to refrain from violence.

He loses one cheer because he never mentioned Biden or that the election has  been resolved and produced a legitimate result. Trump's calls for non-violence--that violence is inconsistent with the "movement" (a word he repeated)--ring hollow when he simultaneously continues to convince people that the election was illegal, fraudulent, and stolen, the greatest political crime in history. Some of these people believe it is 1776 because Trump has told them it is; to continue to say "it's 1776 but do not be violent" is incoherent.

He loses a second cheer for his final-minute detour into the First Amendment and the problem of "canceling." His obvious targets were Twitter/Amazon, corporations and other donors withholding money from GOP officeholders, and other businesses and institutions working to distance themselves (in sensible and silly ways) from him, his family, those who aided and abetted Trump through his presidency, and those who created the conditions in which the assault on the Capitol occurred. But he (and others) continue to ignore the way in which these actions are themselves an exercise of First Amendment rights to express, through disassociation and non-support, opprobrium. If donating and spending money to support an official or candidate is protected expression, then so must withholding that money. When Twitter and Amazon should be treated as unique actors, under current law they are not, so banning speakers or speech communities from their spaces is an act of expression. If a private sports organization such as the NFL can and should fire the sons of bitches who do something as offensive as kneeling during the national anthem, then a private sports organization such as the PGA can fire the business owned by a person who incited an assault on the legislative branch.

Sorry, this still is not the speech in which "Trump became President." He has 114 hours and 14 minutes as I draft this for that to happen.

Posted by Howard Wasserman on January 14, 2021 at 05:46 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (8)

Monday, January 11, 2021

Citizens United meets cancel culture

The premise of the campaign-finance/First Amendment connection is that spending money to support candidates (as expenditures and contributions) is a form of expression by the donors/spenders--expressing their support for the candidate, what the candidate stands for, and what he will do in office. Whether true, the premise could be tested in the coming months and years as companies request the return of donations or refuse to donate to candidates who voted in favor of the objections to electoral votes.

Shouts of "cancel culture" by the "leftist mob" are sure to follow. But if donating to candidates is First Amendment activity, then so must refraining from donating to candidates who act in ways of which you do not approve. To insist that corporations--whose constitutional right to donate you have demanded--must continue funding you regardless of your actions reveals that complaints about cancel culture really are complaints about counter-speech.

Mind you, I do not expect this newfound corporate conscience to last. But while it does, it is the logical flipside of the Court's entire body of campaign-finance jurisprudence.

Posted by Howard Wasserman on January 11, 2021 at 02:42 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, January 09, 2021

On "cancel culture"

A great post on cancel culture from Sasha Volokh at the VC. He touches on the Hawley book contract, social media control (presciently written before Twitter banned the President and the accounts of everyone the President was using to try to get around the ban), private universities, and school-curriculum choices. I join his closing point:

"Cancel culture" is a broad term that embraces lots of different acts and lots of different consequences—boycotts, firing, piling on to someone on social media, refusal to be friends, rescinding a college acceptance or speech invitation, pulling down a statute, taking a book off the curriculum, etc. In some cases, some of those acts might violate someone's rights. This is especially true when someone has made a contractual commitment to do the opposite, or when a government is doing the acting. Governments have certain duties to be evenhanded, but people lack those duties. Instead, people have freedom, both freedom to choose how to use their property and other resources, and more generally a right to choose who they'll associate with. Those are core freedoms. We should feel free to argue about how people ought to exercise their freedoms, but always recognize that the freedoms are theirs to exercise.

Contrast this with the statement of the National Coalition Against Censorship's statement on the Hawley book, which concludes that the "best defense for democracy is a strong commitment to free expression." This rests on one of two competing premises--either that the only one engaging in "expression" here is Hawley's or that the expressive rights of the publisher must be in the direction of producing more speech.

NCAC also errs in relying on this idea: "Many of the books–and many of the authors–are highly controversial and generate intense opposition. When that happens, it is crucial that publishers stand by their decision to publish, even when they strongly disagree with something the author has said." Perhaps that is the correct principle in the standard-issue "author of YA fiction says controversial thing about topic du jour" case or in the "non-group members cannot write well about groups" case. This is not that. Simon & Schuster reacted to Hawley's actions as a United States Senator that contributed (in their view) to a mob storming the Capitol and attempting to interfere with the work of the government. That is a distance from JK Rowling taking an unpopular position on gender issues.

And a third example comes from various Republicans and conservatives on Twitter, defining "private company exercises control over the country's leader" as something that happens in China and complaining that the culling of right-wing extremists from the site has reduced their followers.

Posted by Howard Wasserman on January 9, 2021 at 10:48 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, January 08, 2021

No on Brandenburg (Updated)

Updates at bottom.

Here is the full transcript of Soon-to-be-Ex President Trump's remarks to the pre-sedition rally. After reading it (and at this point hearing Trump's voice as I read his words), I will follow-up on this post by being more assertive: There is no way this is punishable incitement under Brandenburg.

The speech is largely a string of oral tweets from the past few weeks and months and no different than what he has said at rallies, most recently on Monday in Georgia: The press as enemy of the people and not telling the truth; fanciful and farcical nonsense stories about election misconduct; "sir" stories about the people who are nice to him; touting of his accomplishments as President;* crowd size; cancel culture and critical theory; and the usual airing of grievances 11 days to late. He also laid out a series of election-reform proposals. And he told lies about what the Constitution allows or requires.

[*] There is an amazing disconnect. Before Wednesday, Trump still had competition from Andrew Johnson and James Buchanan. That race is over. But Trump and his supporters continue to talk about him as one of the top Presidents.

The words spoken matter--they must explicitly or implicitly encourage lawless action, allowing for rhetorical hyperbole, overstatement, and even offensiveness. Second, and related, Eugene Volokh argues that modern doctrine is unlikely to treat as incitement words that do not on their face call for unlawful conduct (e.g., Antony's funeral oration or the often-misquoted "will no one rid me of this troublesome priest"). Third, context matters. The lawless action must be "imminent" and "likely." So the same words spoken in front of a large crowd determined to "stop the steal" two miles from the Capitol while votes are being counted is different than spoken at a rally in northern Georgia on a Monday night. Finally, whatever we may think we "know" about Trump's intent, it is hard to prove beyond a reasonable doubt.

The general content here is not incitement of anything; it is standard Trumpian fare. It does not matter that the speech is designed to get the crowd upset at the injustices visited upon Trump and upon them.  Nor does it matter that it is likely or foreseeable that some would act unlawfully upon hearing these words and becoming outraged. The point of moving to Brandenburg from the old clear-and-present danger test was that we punish conduct not speech and that we do not routinely punish speakers because of what unconnected third parties do. We also want to leave speakers free to engage in words--one man's vulgarity and all of that.

With that in mind, much of this speech does not call on or encourage anyone to do anything, much less something that is lawless and imminent.

Here are the only segments that might come close:

1)

All of us here today do not want to see our election victory stolen by a bold and radical left Democrats which is what they are doing and stolen by the fake news media. That is what they have done and what they are doing. We will never give up. We will never concede. It doesn't happen. You don't concede when there's theft involved.

Our country has had enough. We will not take it anymore, and that is what this is all about.

And to use a favorite term that all of you people really came up with, we will stop the steal.

This is from the beginning of the speech. It is hard to see this as other than hyperbole.

2)

We will not let them silence your voices. We're not going to let it happen.

Not going to let it happen.

[This was followed by a chant of "Fight for Trump," for which Trump thanked the crowd].

He is urging the crowd to not let the silencing of their voices happen, not to engage in unlawful action.

3)

[Speaking of Pence doing the non-thing of sending the votes back to the states] That takes courage, and then we are stuck with a president who lost the election by a lot, and we have to live with that for four more years. We're just not going to let that happen.

This could be read as urging people to not to let happen the four years of the Biden Administration. But, again, allowance must be made for rhetoric and hyperbole.

4)

We're going to walk down. Anyone you want, but I think right here, we're going to walk down to the Capitol--

And we're going to cheer on our brave senators and congressmen and women and we're probably not going to be cheering so much for some of them.

Because you'll never take back our country with weakness. You have to show strength and you have to be strong.

We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated. Lawfully slated.

I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. Today, we will see whether Republicans stand strong for integrity of our elections. But whether or not they stand strong for our country, our country. Our country has been under siege for a long time.

This was the segment that has been making the rounds in the media and that I quoted in my prior post. Note that last paragraph specifically speaks of marching to "peacefully and patriotically make your voices heard" after calling for strength. In rejecting tort claims against Trump arising from a 2016 rally, the Sixth Circuit emphasized that Trump followed his call to get the protester out, the alleged incitement to assault, by saying "don't hurt him" as mitigating the meaning of the words and the intent. Similarly, the call for strength is tempered by the call to do it peacefully. That call for peacefulness is perhaps tempered the other way by the subsequent insistence that the country has been "under siege"--peacefully talking is not the "strong" response when one is under siege.

In any event, again, fiery rhetoric is allowed.  Also, in terms of imminence, the above occurred less than 1/5 of the way into the speech. So does that mitigate the intent or likelihood of encouraging imminent lawlessness if he then keeps talking? Eugene Debs spoke for something like three hours in Canton.

5) This is the final 90 seconds-or-so:

I said something is wrong here, something is really wrong, can't have happened and we fight, we fight like hell, and if you don't fight like hell you're not going to have a country anymore.

Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children, and for our beloved country, and I say this despite all that has happened, the best is yet to come.

So we are going to--we are going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we are going to the Capitol, and we are going to try and give--the Democrats are hopeless, they are never voting for anything, not even one vote but we are going to try--give our Republicans, the weak ones because the strong ones don't need any of our help, we're try--going to try and give them the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue.

Again, not encouraging or hinting at lawlessness. "Fight like hell" lest we no longer have a country is troubling, but in context does not suggest fighting in the physical or unlawful sense as opposed to be speaking out--again, rhetorical hyperbole is fair game. Trump is talking about marching, not storming the Capitol. Urging people to give members of Congress "pride and boldness" could mean peacefully speaking or protesting in support of what the crowd wants and hopes they will do.

This analysis goes to a possible post-January 20 (or even post-January 12) criminal prosecution. It is a separate question whether this constitutionally protected speech could be the basis for impeachment-and-conviction. Josh Blackman and Seth Tillman argue that it cannot.

Without getting too far into the point (this post is already too long), otherwise-protected speech can be the type of abuse of office that impeachment exists to punish. As Volokh argued, the view that Trump's speech was unprotected comes from a gut feeling that POTUS should not engage in such talk, regardless of the Brandenburg line. As he outs it, "Trump's failure was a failure not as a speaker, of the sort that strips speakers of First Amendment protection. It was a failure, a massive and unjustifiable failure, as a public servant." Impeachment exists to remedy those failures. Update: Jonathan Adler and Ilya Somin agree that the First Amendment is not a bar to impeachment, grounded in the broader view that impeachable conduct need not be criminal.

Posted by Howard Wasserman on January 8, 2021 at 11:05 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Thursday, January 07, 2021

Brandenburg Concerto

Does anything that Trump or Rudy said at the pre-putsch rally satisfy Brandenburg? I describe the Brandenburg paradigm as standing in front of a torches-and-pitchforks mob outside a poorly guarded jail and shouting "let's go get this guy." And at least the Sixth Circuit holds that "get him out of here (but don't hurt him)" to a grandstand of rallygoers surrounding a protester is not enough. How close were yesterday's statements to calls to invade the Capitol right now?

Here is Trump: "And after this, we're going to walk down there, and I'll be there with you, we're going to walk down ... to the Capitol and we are going to cheer on our brave senators and congressmen and women . . . And we're probably not going to be cheering so much for some of them. Because you'll never take back our country with weakness. You have to show strength and you have to be strong."

And Rudy: "If we are wrong we will be made fools of, but if we're right a lot of them will go to jail. So let's have trial by combat."

Brandenburg is (and must be) a high hurdle, so I doubt it. Is either specific enough as a call for a physical attack? (Rudy might say "trial by combat" refers to an alternative adjudicative process and was a criticism of how courts have handled their lawsuits--although how many of the people who heard him know that and how many would hear "combat" as a general call to arms to put wrongdoers in jail). How will a court regard temporal imminence if the crowd had to walk some distance from the Ellipse to Capitol Hill after the speakers were done--we'll take the fucking Capitol after we walk two miles.

Update: Eugene Volokh thinks not, because Trump's words were not specific enough about rioting or invading the building. Fiery rhetoric designed to promote peaceful protest must be allowed, even if some might act violently on it. He allows that what is different here is that Trump's job is not only not to call for imminent lawlessness (that is everyone's job), but to stop lawlessness when it occurs, so he ought to steer farther from the line. But that is a political concern over governmental duties, not baked into Brandenburg.

That last point works in both directions. The special obligation on government officials does not affect the Brandenburg analysis. But it also makes morally blameworthy speech that comes nowhere near Brandenburg. Had Trump not spoken at the rally, he has been fomenting what happen with his charges of fraud and stolen landslides--none of that is close to incitement, all of it would be regarded as morally blameworthy.

Posted by Howard Wasserman on January 7, 2021 at 08:48 AM in First Amendment, Howard Wasserman | Permalink | Comments (8)

Thursday, December 24, 2020

Third-party universality

A judge in the Northern District of California has universally enjoined the President's Executive Order on diversity training. Plaintiffs are several non-profit LGBT education and advocacy organizations that do trainings and education programs for local businesses, governments, and health-care providers. These programs cover systemic bias, anti-racism, white supremacy, and other issues the EO attempts to stop. The court held that the EO violates the First Amendment.

The court made the injunction universal/nationwide, based on third-party effects. "Permitting Plaintiffs to provide training regarding “divisive concepts,or to promote those concepts,would do Plaintiffs little good if their sources of employment and funding remain subject to the Executive Order." Pointing to evidence of third-party cancellation of programs in which the plaintiffs were scheduled to participate, "[i]njunctive relief is necessary to allow third parties to hire and/or fund Plaintiffs without fear of violating the Executive Order."

Third-party effects can expand the scope of a particularized injunction, in the sense of protecting those with whom the protected plaintiff engages in its protected capacity. For example, the injunction stopping enforcement of the Muslim travel ban as to the University of Hawaii protected actual and potential students; the injunction stopping enforcement as to HIAS protected actual and potential HIAS clients. Similarly, the court is correct that protecting these plaintiffs requires protecting those who do business with them.

But it did not follow that the injunction stopping the travel ban should protect other state universities, other immigration organizations, or other potential immigrants who have nothing to do with those plaintiffs. Similarly, it does not follow that this injunction must protect other training providers who have nothing to do with these plaintiffs or other entities who do not and would never do business with the plaintiffs. Giving relief to other grantees/contractors, who have nothing to do with the plaintiffs, is not necessary to give the plaintiffs complete relief.

Posted by Howard Wasserman on December 24, 2020 at 01:04 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Thursday, December 17, 2020

Departmentalism and the First Amendment

Last month I speculated that government officials might enact laws they know will not survive judicial review but that make good political and constitutional statements.

Case in point is the bill that New York Governor Andrew Cuomo signed Wednesday. The bill prohibits the state from selling or displaying "symbols of hate," defined to "include, but not be limited to, symbols of white supremacy, neo-Nazi 10 ideology or the Battle Flag of the Confederacy." And it calls for the enactment of measures to prohibit the sale of symbols of hate on the grounds of the state fair or other fairs receiving public funds. The first clause is fine, although largely symbolic (not sure how many New York office buildings are flying swastikas). The second is almost certain to be declared invalid if challenged in court; the prohibition is a viewpoint-discriminatory restriction on speech that will occur in a limited public forum.

Cuomo acknowledged that constitutional questions surround the bill and promised to work with the legislature on "technical changes" to correct potential constitutional problems, although I am not sure what small change will save the fairgrounds portion. Eugene Volokh points out that the law likely cannot be challenged at this point because it does not ban anything; it orders a state agency to enact regulations. Perhaps this is why Cuomo believes there is an opportunity for changes that avoid constitutional problems.

Cuomo explained his reason for signing despite the constitutional questions:

This country faces a pervasive, growing attitude of intolerance and hate — what I have referred to in the body politic as an American cancer,” Cuomo wrote in his approval message.

“By limiting the display and sale of the confederate flag, Nazi swastika and other symbols of hatred from being displayed or sold on state property, including the state fairgrounds, this will help safeguard New Yorkers from the fear-installing effects of these abhorrent symbols.”

So did Cuomo act in an "unconstitutional manner" or violate his constitutional oath? It depends on whether he believes the law is valid, apart from what courts might conclude. And the concerns Cuomo describes--intolerance and hate is a problem--can be part of the legislative and executive calculus. He seems to be trying to thread a needle here--signing a broad law for show, then attempting to dial it back to address constitutional concerns. But in a broad departmentalist sense, what he did is fine.

Is there a difference between what Cuomo and New York did here and what other states have done with strict abortion bans? None of these laws will survive judicial review under current jurisprudence. One difference is that the abortion bans are designed to create litigation with the hope/expectation that a different SCOTUS majority will change its constitutional interpretation and render the laws valid. I doubt Cuomo expects SCOTUS to change its views on hate speech, viewpoint discrimination, or public forums. Should that matter to how we evaluate a departmentalist executive?

Posted by Howard Wasserman on December 17, 2020 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Thursday, December 03, 2020

Lethal religion

The Third Circuit held in an unpublished opinion that a Delaware prison did not violate RLUIPA or the First Amendment in denying a Jewish prisoner the use of teffilin (leather boxes connected by long leather straps). The maximum-security prisoner has a history of mental illness, being violent, threatening suicide, and smuggling contraband. Teffilin might allow him to smuggle contraband in the boxes or to harm himself or others with the straps and the prison could not divert the resources and manpower necessary to monitor his use. A dissenting opinion argued that RLUIPA requires the state to show more than inconvenience, including that it would be impossible (not merely inconvenient) to authorize the additional overtime and work hours necessary to supervise the plaintiff while he prays.

Posted by Howard Wasserman on December 3, 2020 at 08:49 AM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Tuesday, December 01, 2020

Judicial departmentalism, writs of erasure, and the stupidity of political hackery

Tennessee state representative Jay Reedy has introduced a resolution calling on Congress "to enact legislation to prohibit the desecration of the United States flag." Reedy is being dragged by free-speech types.

As a matter of judicial departmentalism, Congress could constitutionally enact this law and Reedy and his compatriots can constitutionally urge Congress to do so. If Congress believes that the best understanding of the First Amendment is that it does not prohibit flag desecration, it can act on that understanding and enact legislation prohibiting flag desecration. And Reedy can urge that action. It would be a waste of time, a zombie law that could never be enforced because of existing judicial precedent (any attempt at enforcement likely would not enjoy qualified immunity). But Congress could pass such a law, if only for symbolic purposes. And Reedy may have good reason for wanting it to do so.

Here is why Reedy is stupid: A federal law prohibiting flag desecration already exists. Because judicial review does not erase laws, the provisions of the Flag Desecration Act of 1989, declared invalid in Eichman, remains on the federal books. So the problem is not that Reedy is urging Congress to enact an "unconstitutional law," since Congress can make its own judgments as to constitutionality, even if they differ from those of SCOTUS. It is that Reedy is urging Congress to enact a law it already has.

Posted by Howard Wasserman on December 1, 2020 at 03:12 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Saturday, November 28, 2020

More state universality (Updated)

A judge in the Eastern District of Kentucky enjoined a Kentucky executive order closing schools, finding it violated the First Amendment rights of a K-12 religious school. (H/T: Eugene Volokh). It is unsurprising in its analysis--the order was not generally applicable because it applied to K-12 schools but not preschools or colleges and universities. Whatever--I have given up reading these decisions as anything other than a sub silentio reading of the First Amendment to opt-outs for religious institutions and behaviors, no matter the societal costs. Update: The Sixth Circuit reversed.

More interesting to me is that the court made the injunction universal/non-particularized, prohibiting enforcement of the EO as to all religious schools, not only the plaintiff. The court did not use the words universal or non-particularized and did not acknowledge the ongoing scope-of-injunction controversy, while providing further evidence that this issue is not limited to challenges to federal law. I presume the key here is that the lawsuit was brought not only by the school, but also by the Attorney General on behalf of the Commonwealth. "Complete relief" for the AG must protect all members of the public.

In the Before Times of 2018, I spoke on universal injunctions before the meeting of the National Association of Attorneys General. I suggested they might be of two minds on the issue. On one hand, universality works against them as the defendants to be enjoined from enforcing many state laws. On the other hand, they want universality when suing the federal government to stpp. This is a third hand--the AG suing the Governor to stop enforcement of a provision of state law.

Posted by Howard Wasserman on November 28, 2020 at 12:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, November 23, 2020

Paying for vaccination and the First Amendment

I am intrigued by this idea making the rounds: Pay people (amounts thrown around are $ 1000-$1400) for getting the COVID vaccine. The plan achieves three things: 1) Ensures broader vaccination towards herd immunity (estimates say a 70% rate is necessary); 2) economic stimulus; and 3) support those suffering financial loss in the economic downturn.

A question: Would someone with a religious objection to vaccination have a First Amendment or RFRA claim? Is not receiving a widely available benefit, unavailable to you because of your religious beliefs, a violation of religious exercise? And, because that is all the rage these days, what would be the remedy if this is a violation? How would the Court level up--requiring the government give the religiously unvaccinated $ 1000? Or would the Court level down and prohibit the government from doing this?

Posted by Howard Wasserman on November 23, 2020 at 01:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Wednesday, November 18, 2020

Departmentalism and virtue signalling

A mini controversy erupted at Northern Iowa in October, when the student government refused to recognize a chapter of Students for Life, calling it a "hate group." The university President reversed the decision and recognized the group.

From a First Amendment standpoint, the President's decision was correct. Had the initial denial stood, SFL would have sued and won, obtaining an injunction, perhaps (limited) damages, and attorney's fees. But that prospect arose during student-government debates, when one student senator "opined that recognizing Students for Life out of concern that refusal could subject UNI to legal liability was an 'extremely facile and weak' defense that 'privilege[d] . . . money and . . . admins over student well-being.'”

The university did not share the student's position, for obvious reasons. But suppose it did? And how does that position--"we are going to do (what we believe to be) the right thing, judicial defeat be damned"--square with judicial departmentalism? My assumption has been that executive/legislative departmentalism ends when the certainty of judicial liability and attendant consequences (particularly attorney's fees) begins. But suppose government adopts that student senator's ideal that it should promote "student well-being" even at the threat of legal liability. That is, the government takes the position that it is better to promote its constitutional vision even knowing that vision will lose in court, in exchange for the goodwill of some constituency. This may be especially appealing to a public university. It can do the "right" thing in the moment (such as promoting the anti-racism cause or protecting students from offending messages)--and if the court forces the university to change, so be it. The university might benefit from that approach--"we can't do what you want because we will lose in court" becomes "we really tried to do what you wanted but those unelected federal judges got in the way." I am glib in the title in labeling this virtue signalling, but it would allow the university to keep some groups happy. Ironically given the new anti-racist context, this is why governments often welcomed judicial involvement in the early days of reform for schools and other institutions post-Brown--they could make the necessary changes, while blaming the courts.

Returning to the UNI case, the president might let the student government decision stand, then recognize SFL once the court orders it to do so; a win-win situation for the university, which keeps a segment of the student body happy while ultimately doing what the Constitution compels.

I heard about the UNI story while thinking about FIU, which has seen two public incidents of students posting social-media videos of them using using racial epithets while singing and dancing. And to hear undergrads tell it, such expression is quite common in the community. Students would like to see the university take action, while the university has recognized what happens if it does. In an interview, a student from FIU's Black Student Union brought up the 2015 case in which the University of Oklahoma expelled two students and revoked a fraternity charter over a viral video. That Oklahoma case is unique in that the students never challenged their expulsions; they (perhaps wisely) accepted the punishment and escaped the limelight rather than trying to become public free-speech martyrs. Oklahoma's actions might serve as precedent that a university could take a stand if it is willing to take its chances in court. On the other hand, I remain convinced that had the students sued, they would have won. A university that follows the OU model thus will encounter one student who sues and the game will be over. The separate question is how many schools would take that path?

To be sure, I am not urging this situation. I hope a university adopts the First Amendment position that ideas, even hateful and offensive ones, are protected and that government cannot engage in viewpoint discrimination. And I hope the university is willing to defend that view in the face of student anger. But there is more than a little wiggle room for those schools that do not. And then what happens?

Posted by Howard Wasserman on November 18, 2020 at 12:42 PM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, November 13, 2020

Retaliation or Evidence?

A weird case from MD Fla: The owner of an indoor farmer's market, a vocal opponent of masks, sues over enactment and enforcement of a county mask ordinance, in which the market was twice cited for having maskless customers. Among the claims was First Amendment retaliation--that the county singled the business out because the owner has spoken out against masks.

But this seems an odd retaliation case because his speech would appear to justify the county in enforcing against him because it provides evidence of a possible violation. Garden-variety retaliation is the owner of a business criticizes the mayor about something, so the county singles him out for enforcement of general code provisions, unrelated to the speech (e.g., the owner criticizes the mayor's redevelopment plans, so the county sends in the health inspector). But here, the speech that was retaliated against seems to provide cause, or at least evidence, for the enforcement decision. If county officials are trying to determine where to direct enforcement efforts and what businesses might not comply with the mandate, it is is reasonable to infer that the business owned by the outspoken critic of masks might violate the ordinance. It becomes problematic if his is the only business cited. But it is a stretch to claim retaliation that his is one, or even the first one, to be cited.

The case is at the 12(b)(6) stage, so more will be fleshed out later in the case.

Posted by Howard Wasserman on November 13, 2020 at 09:38 AM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Saturday, October 24, 2020

Declaratory judgment of protected speech

ElDfrdHUcAEQYGkThe Lincoln Project erected these billboards in Times Square, suggesting lack of concern about COVID by Ivanka Trump and Jared Kushner. Attorney Marc Kasowitz sent the Lincoln Project a two-paragraph letter stating the billboards are "an outrageous and shameful libel" and that if they "are not immediately removed, we will sue you for what will doubtless be enormous compensatory and punitive damages."

Needless to say, the statements on the billboard are not libelous, regardless of whether they are outrageous or shameful. And it is doubtful that Javanka will recover compensatory and punitive damages, let alone enormous ones. The billboards imply callous disregard for COVID deaths, which is non-actionable opinion. The quotation from Jared comes from a Vanity Fair article about the administration's COVID response. The full statement is that New York Governor Andrew Cuomo did not do enough to get PPE, so "his people are going to suffer and that's their problem." It is at least ambiguous whether "their" refers to Cuomo or "his people" (meaning New Yorkers); so even if it leaves a false impression, it does not rise to actual malice. The juxtaposition of their photos with body bags and death tolls is hyperbole. And, again, these are government officials.

Anyway, this letter is no different from the many bumptious letters that President Trump and other Republicans send to their human and bovine critics over plainly protected speech. They often give attorneys a chance to wave the banner of the First Amendment in their responses. But Popehat views these letters as a genuine threat to free speech when in furtherance of "abusively frivolous" defamation claims (which this letter is). So he offers a proposal:  The "'That's Not Defamation' Declaratory Relief Act:"

Under the statute, the Lincoln Project could send a demand to Kasowitz and the Kushners to withdraw the threat. If they don’t withdraw the threat, Lincoln Project can sue under the statute seeking a declaration that the speech is not defamatory. They can bring the equivalent of an anti-SLAPP motion immediately. If they prevail, they get an order that the speech is not defamatory ....AND they get attorney fees collectible from (this is key) either the Kushners or Kasowitz. If the judge finds the threat was frivolous, he or she can impose penalties on top of the fees. Would make legal threats have consequences.

White views attorneys as a big part of the problem. We expect people who believe they have been wronged to be angry and to lash out. We perhaps should expect more restraint from public officials and in the past we got it, but the human reaction is understandable. Attorneys are supposed to understand the law, to recognize the difference between hurt feelings and actionable defamation, and to talk their clients off the ledge, especially from throwing around money and power. An attorney who sends a letter such as this does the opposite; indeed, he exacerbates those money-and-power imbalances.

A declaratory judgment of protectedness is theoretically available under the current Declaratory Judgment Act, but defendants do not avail themselves of the option. Likely because most such letters are empty threats (Donald Trump has yet to sue over 2016 reporting of sexual-assault allegations) and the defendant's prefer avoid litigation, especially because attorney's fees are not recoverable under the current law. White's proposal makes the attorney demand part of the game.

There is an interesting Fed Courts angle to this. Under Skelly Oil, an action seeking a declaration that speech is constitutionally protected/non-defamatory does not arise under federal law, because the underlying enforcement action (a defamation suit) would not arise under federal law. It could only reach federal court on diversity. So if White wants these cases in federal court, the statute should include a jurisdictional grant that does not rely on the Well Pleaded Complaint Rule.

Posted by Howard Wasserman on October 24, 2020 at 12:51 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Monday, October 05, 2020

Thomas and Alito defend Kim Davis

SCOTUS denied cert in Davis v. Ermold, which held that Kim Davis did not enjoy qualified immunity in refusing to issue marriage licenses to same-sex couples because it offends her religious beliefs. Justice Thomas, joined by Justice Alito, issued a cri du ceour respecting the denial of cert., lambasting Obergfell as creating a "novel constitutional right" having "ruinous consequences for religious liberty."

Three things.

First, Thomas proceeds as if Smith no longer is good law and that the First Amendment demands an opt-out from a generally applicable law or satisfaction of strict scrutiny. He cites Smith in a footnote, but to argue that Obergefell is more illegitimate because not done through the legislative process. This seems disingenuous. I doubt that if Kentucky had legalized SSM by statute with no religious accommodation, Thomas would be more willing to accept those ruinous consequences for religious liberty.

Second, I am waiting for a good argument for why having issue licenses to same-sex couples is more a violation of religious liberty than having to issue licenses to inter-racial couples or inter-faith couples. All can be, and have been, subject to religiously based objections by some people. Would Thomas be staking out this position if someone denied a marriage license to Noah Cohen and Mary-Margaret O'Reilly?

Third, whatever one believes about a private baker or photographer, it should not extend to a government official performing her official functions. Her job as a public employee is to carry out the law. If that law offends her religious or other sensibilities, then she should quit. We would not allow someone to enlist in the Army and then refuse to fight in a war; we would not allow an atheist police officer to refuse to conduct traffic at a church. There is no reason to allow a clerk to refuse to issue a marriage license.

Posted by Howard Wasserman on October 5, 2020 at 02:45 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Sunday, October 04, 2020

Tucker Carlson: Not to be Treated as Making Factual Statements (in Former Model's Defamation Case)

In McDougal v. Fox News Network, 2020 WL 5731954 (Sept. 24, 2020), Fox News essentially argued that Tucker Carlson was not to be taken seriously, and a federal judge agreed. Here's the background to the court's dismissal in the defamation case brought by former actor-model Karen McDougal.

National Enquirer CEO David Pecker, on behalf of parent company American Media, Inc., purchased the rights to a story about an alleged 2006-2007 affair between former model and actress Karen McDougal and Donald Trump. Trump’s attorney Michael Cohen then purchased the rights from American Media, Inc. This purchase was allegedly a “catch and kill” operation—that is, the Enquirer’s parent company American Media, Inc. bought the rights to McDougal’s story to prevent her from revealing damaging information about Donald Trump. News of this catch and kill operation (and another similar one) came out in the 2018 investigation of Michael Cohen on charges of violation of campaign finance law. Cohen ultimately pleaded guilty.

In the meantime, Fox News host Tucker Carlson aired a segment on December 10, 2018, shortly before Michael Cohen’s sentencing, in which he described the conduct of Karen McDougal and the other woman who had accused Trump of infidelity as follows:  “Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn't give them money. Now, that sounds like a classic case of extortion.”

The district court held that Carlson’s statements were non-actionable hyperbole that no reasonable viewer would treat as factual. The court reached this conclusion by analogizing the case to a series of prior decisions in which courts had treated similar statements as exaggerations for effect rather than accusations of crime, especially when the statements involved contested political disputes. The court also interpreted the “extortion” statement in the context of Carlson’s show, “Tucker Carlson Tonight.” The court noted that the stated purpose of the show is to “challenge[ ] political correctness and media bias,” and its “general tenor” tips viewers off that Carlson “is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.”  The court even suggested that the commentary could be viewed as “bloviating” and further noted Carlson’s disclaimer that he was assuming what Michael Cohen said was true “for the sake of argument,” which would put his listeners on notice that they were not dealing with “a sober factual report.” Finally, the court posits “this overheated rhetoric is precisely the kind of pitched commentary that one expects when tuning in to talk shows like Tucker Carlson Tonight, with pundits debating the latest political controversies.” The court therefore held that the statements were “not factual representations and, therefore, cannot give rise to a claim for defamation.”

As an alternate basis for dismissal, the court also held that McDougal, a public figure, had failed to plead Carlson made his statements with reckless disregard for their falsity (that is, with actual malice). Allegations that Carlson was personally and politically biased in favor of Trump—as allegedly evidenced by Trump’s “47 Tweets” in support of Carlson--were insufficient grounds from which to infer actual malice.

[For a somewhat similar case suggesting Rachel Maddow’s “colorful commentary” on a news story was not actionable as defamation based in part on the fact that reasonable viewers wouldexpect her to use subjective language that comports with her political opinions” Herring Networks, Inc. v. Maddow, 445 F. Supp.3d 1042 (S.D. Cal. 2020)]. [This last part was added after my original post: I found the Maddow case a few hours later while doing further research on recent defamation cases.--LL]

Posted by Lyrissa Lidsky on October 4, 2020 at 01:32 PM in First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (1)

Sunday, September 27, 2020

Proving anti-Jewish discrimination

Eugene Volokh unearths a 10-year-old S.D.N.Y. decision in an action alleging co-workers in a government job referred to him as a "dumb Jew" or "fucking Jew."

Eugene focuses on one defense--that the plaintiff was not Jewish because his mother was not Jewish, he had not converted, and he was not practicing. The court rejected the argument, deeming it not the court's place to define who is Jewish and finding it sufficient that the plaintiff defined himself as being of Jewish "heritage," even if not practicing. One of Eugene's commentators nominates this as the new definition of chutzpah--calling someone a "fucking Jew," then arguing that he is not Jewish.

The rest of the decision is interesting apart from the chutzpah. The court denied summary judgment on a Title VII claim against the city. But the court dismissed a § 1981 claim, because the plaintiff alleged religious rather than racial discrimination. This seems like a pleading error. Courts will treat Judaism as more than a religion for § 1981 purposes. And that would have been an appropriate approach in this case, where the plaintiff did not practice Judaism and focused more on his "heritage" than his religion.

The court  granted summary judgment on claims against several harassing co-workers. Although there was evidence the co-workers had created a hostile religious environment, they were not state actors because they were not his supervisors. This is incoherent. The under-color question should be whether the defendant used his official position to engage in unconstitutional conduct and whether that position made the unconstitutional conduct possible. That should be satisfied here--the unconstitutional conduct is the religiously motivated harassment and they could engage in that harassment only because of their official positions in government. Harassment does not require a supervisory relationship, so it should be irrelevant to the under-color/state-action analysis.

Posted by Howard Wasserman on September 27, 2020 at 01:36 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, September 14, 2020

Dorf on ending the anthem at sporting events

Michael Dorf considers the argument, floated by former NBA coach Stan Van Gundy, for eliminating the national anthem from sporting events. We do not do it at any other public or entertainment gatherings (movies, plays, concerts); it is not the type of event requiring public ritual (compare, e.g., a government proceeding); and it is creating more problems than it solves. It also is an historical accident--a band played it spontaneously during the Seventh Inning Stretch at a game in the 1918 World Series (in the closing month of World War I)--that caught on.

I confess that I enjoy the anthem as part of the game. But I see Dorf's and Van Gundy's point.

Posted by Howard Wasserman on September 14, 2020 at 09:58 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (18)

Friday, September 11, 2020

Cancel culture as a circle of baseline hell

Thinking out loud.

Skip Bayless' comments on Dallas Cowboys quarterback Dak Prescott ("being quarterback of the Cowboys is too important a position for someone who struggles with mental-health issues, or at least not for someone who wants to talk about those issues") are so stupid that they are unworthy of a response. They are noise--an "inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others." They certainly are too stupid to have been spoken in a media outlet that purports to be a forum for serious discussion, even of sports. And they suggest that Bayless is an unserious person.

Will Bayless be "canceled"--fired, suspended, or whatever? Fox Sports issued a statement disagreeing with Bayless' comments and saying they had "addressed" the issues with Bayless. I expect that to end it--no cancellation. And I do not expect Bayless to apologize or otherwise address it.

The separate question is whether Bayless should be cancelled, to which critics of "cancel culture" will say no. But I wonder if those who oppose cancelling someone for bad speech are trapped in a form of Rick Hills' baseline hell-the inability to establish a neutral baseline from which to analyze a problem. I presume that even the strongest critic of cancel culture would agree with the following:

    1) A private media organization could decide that it should not hire Bayless because it does not like his views on mental illness.

    2) A private media organization is not obligated to pay money and provide a platform to any person, so it can decide who it does or does not wish to give a platform based on the content of his speech and whether the organization shares, agrees with, and wishes to promote those views.

    3) The decision not to hire Bayless because of his absurd views would be a valid exercise of the organization's expressive rights--a decision about with what people and views it wishes to associate.

If the above is true, then firing Bayless should not raise different issues or problems. Either is an exercise of the media organization's judgment as to the views it wants to promote and with which it wants to associate. It would require a distinction between beginning and continuing--that ending a relationship because of disagreement with speech is different than declining to begin a relationship because of disagreement with speech. But that is a baseline problem--it rests on a belief that the starting point (on the platform or not on the platform) makes a substantive difference.

Similarly, sponsors could make the three decisions described above as to whether to sponsor Bayless' program and decline to buy time, from which it follows they could pull their money after-the-fact. To say otherwise requires the same distinction-without-a-difference between ending a relationship because of speech and declining to start that relationship because of speech.

I also wonder if we can distinguish cancelling Bayless for his speech from cancelling the Chicks or Mel Gibson or a professor for his speech. With the latter, we are cancelling from a primary role (making movies, making music, teaching classes) because of their out-of-role speech. But cancelling Bayless would reject him from his primary role because of his behavior in that primary role. Does that make a difference?

Posted by Howard Wasserman on September 11, 2020 at 10:46 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (14)

Thursday, September 03, 2020

Universality, facial invalidity, and the First Amendment

I am a couple of days late to this Third Circuit decision declaring invalid as-applied, but not facially, the age-verification, labeling, and record-keeping requirements of the Child Online Protection Act. But the court reversed on scope-of-injunction, limiting the bar on enforcement to the named plaintiffs.

Two bits of good news. The court dropped a footnote that "nationwide" is the imprecise term, citing Justice Thomas' Trump v. Hawaii concurrence that the problem is not geographic scope but "universal character." And the court ended in the right place--with an injunction particularized to the individual plaintiffs.

The bad news is how it got there. These plaintiffs--journalists, commercial photographers, and producers of sex-education materials--were niche actors and different from typical players in the pornography industry. Given their unique facts and positions, the remedy protecting them should not protect differently situated actors. But that should not matter. Even if non-party pornographers were similarly situated to the plaintiffs, absent class certification, the injunction should not protect beyond the plaintiffs; it is unnecessary to accord complete relief or to remedy the violation of those plaintiffs' constitutional rights.

One point of confusion is that two associations--the Free Speech Coalition and the American Society for Media Photographers--were plaintiffs in the case, although their claims were dismissed for lack of associational standing. An injunction protecting an associational plaintiff can become broader, as in protecting the association it must protect its members (Michael Morley describes this as a de facto class action). But this injunction never protected the associations, who lacked standing. But that proves the point. There is no reason to consider the organizations' standing if the injunction protects them at the end of the day. Particularity in the injunction is more consistent with the other rules of civil litigation.

Posted by Howard Wasserman on September 3, 2020 at 03:25 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, August 29, 2020

Palin lawsuit against New York Times continues

Sarah Palin sued The Times over an editorial describing a link between the shooting of Gabby Giffords and Palin's PAC's publishing a map featuring gun sights "targeting" Democratic districts. The case has a convoluted procedural history. The district court held an evidentiary hearing on a 12(b)(6) motion seeking information to aid the plausibility analysis, then granted a 12(b)(6); the Second Circuit held that the evidentiary hearing was improper, then reversed the order granting the 12(b)(6).

The district court on Friday denied summary judgment to both parties. Palin had moved, arguing that stare decisis on constitutional issues is less rigid and that actual malice should not apply in the changed factual and media circumstances of the 55 years since New York Times. The court made quick work of rejecting that argument, explaining the difference between horizontal and vertical stare decisis and dropping the cute line that "binding precedent . . . does not come with an expiration date."*

[*] Usually.

The court denied the defendants' motion. It concluded that a reasonable jury could find the editor (and thus the paper) acted with actual malice as to alternative, defamatory meanings of the words in the editorial and actual malice as to the falsity of that alternative meaning. This is an unusually (although arguably appropriately) forgiving view of actual malice. The court sounds at several points as if it believes the evidence favors the defendants and does not believe (by clear-and-convincing evidence) they acted with actual malice. But the court is conscious that the weighing of evidence is not appropriate for summary judgment and must be the subject of a trial.

Posted by Howard Wasserman on August 29, 2020 at 02:41 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, August 28, 2020

3d Circuit reveals division on union clawbacks

After Janus v. AFSCME declared invalid union agency-fee statutes as violative of the First Amendment , the next question became whether the non-members could clawback frees from within the past 2-3 years (within the statute of limitations). The Seventh, Second, Sixth, and Ninth Circuits said no and without dissent, relying on some form of good-faith defense to § 1983--because the unions believed the fees permissible under state law and judicial precedent.

The Third Circuit joined the chorus in an action against the Pennsylvania Teacher's Union, but  revealed the first deep divides. Judge Rendell adopted the prevailing view of a good-faith defense, along with principles of equity and fairness, to preclude liability where a private actor relied on prevailing law. Judge Fisher concurred in the judgment, relying on a historic principle that that judicial decisions declaring laws invalid or overruling precedent did not generate retroactive civil liability. And Judge Phipps dissented, arguing that neither defense existed at common law, so the actions to recover past fees should proceed.

Curious to see if this issue makes its way to SCOTUS before the Court fully pursues qualified immunity.

Posted by Howard Wasserman on August 28, 2020 at 05:25 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, August 27, 2020

Bad Legal Takes and the writ of erasure fallacy

Moderate Mentality reminds us that the federal flag-desecration law remains on the books, because a decision declaring a law invalid and unenforceable does not erase it from existence. So, yes, MM, federal officials could use closed-circuit TV and facial-recognition software to try to hold people accountable. As long as those officials do not mind losing in court and being made to pay damages and attorney's fees.

Posted by Howard Wasserman on August 27, 2020 at 06:27 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (11)

Wednesday, August 26, 2020

NBA players try a different peaceful protest (Updated Aug. 28)

Vice President Pence's RNC speech this evening was to include criticisms of professional athletes for kneeling during the National Anthem. The criticism has always been disingenuous nonsense--critics demand peaceful protest, then tell the players they are peacefully protesting the wrong way.

So the players will try something new tonight: Not playing. The Milwaukee Bucks announced a boycott of this evening's Game 5 of their opening-round series. The Boston Celtics and Toronto Raptors discussed doing the same in their second-round game scheduled for Thursday. So the NBA canceled all games. No word on whether the Milwaukee Brewers (who have a home game Wednesday evening) or MLB will follow suit, although I doubt it. Update: I spoke too soon and happily stand corrected. The Brewers canceled their game. Other MLB teams are discussing doing the same, including the Mariners, who have the most African American players in MLB.

So what will be wrong with this form of peaceful protest? Does not playing disrespect veterans and troops? Is it wrong to politicize sports? Will Pence change his speech to decry cancel culture while calling for boycotts of this "politicized" NBA? Will everyone admit that the objection is to the message--that police are behaving badly--and nothing more neutral than that? Stay tuned. (Updated: No way on that last one).

August 28 Update: The NBA playoffs will resume Saturday. The league and union agreed to establish a social-justice coalition focused on voting, civic engagement, and criminal-justice and police reform. It also calls on teams that own their arenas to work with local election officials to convert the arena into a polling place. It is interesting that the push for racial justice has swerved into voting rights--recognition that voting rights are as endangered and that everything else happens only if people can vote and vote for officials who will pursue that agenda.

Posted by Howard Wasserman on August 26, 2020 at 05:23 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (14)

Tuesday, August 25, 2020

Nomenclature and judicial review (Updated)

The erroneous nomenclature that courts use in describing constitutional review contributes to common misunderstanding. Case in point: The Fourth Circuit decision affirming the convictions of two white-supremacist Charlottesville protesters under the Federal Anti-Riot Act, while declaring invalid certain portions of the statute as inconsistent with Brandenburg. The court talks about "invalidating" the statute, while commentators speak of the court "striking down" or "throwing out" the law, in whole or in part.

But the court did not do anything to the statute or those provisions of the statute--they remain on the books and they remain part of federal law, not erased or thrown out.

A more accurate description of what happens also would be cleaner: The court held that those provisions could not be enforced against these plaintiffs because doing so would violate their First Amendment rights, then affirmed the convictions because their conduct violated other provisions that could be enforced consistent with the First Amendment. The same is true of discussions of severability. The court does not sever some provisions from others--eliminating some and keeping others--because the entire thing remains on the books. I suppose what we call severability could be a way of asking whether the court can enforce some provisions and not others or whether the Constitution prohibits enforcement of all the language in the statute. Or it could be framed as Henry Monaghan described overbreadth--the presence of some constitutional defects means the statute cannot be applied, because there is a right to be convicted only under a constitutionally valid statute.

Either way, it would be cleaner to think about courts applying or not applying some provisions, rather than courts erasing them from existence.

Update: Zachary Clopton (Northwestern) reminds me that my discussion sounds in the debate between Justices Kavanaugh and Thomas described in a footnote in AAPC, which I wrote about after the decision and which Zach wrote about in Yale J. Reg. I think Thomas would agree with the approach I describe. Kavanaugh is correct in AAPC that future enforcement of the invalid provisions will be barred, at least in the Fourth Circuit, as a matter of precedent.

On further thought, this cases illustrates why injunctions should be particularized and why precedent does the real work. The constitutional issue arose in a government-initiated enforcement action--a criminal prosecution against these individuals, who then attempted to defeat enforcement by arguing that the law is invalid and thus cannot be enforced against their conduct. No one believes that the judgment in this case applies to anyone other than the defendants or that the government violates the judgment if it attempts to enforce the "invalid" provisions against someone else; in fact, the only thing the judgment does here is affirm their convictions. The prospective non-party effects of this decision come from the opinion, operating through precedent and stare decisis to require any court within the Fourth Circuit to dismiss a future attempt to enforce those provisions. So I return to my argument that a pre-enforcement injunction anticipates the enforcement judgment--and if the latter is limited to the parties, so is the former.

Posted by Howard Wasserman on August 25, 2020 at 03:55 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, August 21, 2020

After the Golden Age: The Fragility of the Fourth Estate

The period between 1964 and 1984 was the Golden Age of press cases in the United States Supreme Court. In that twenty-year span, the Court decided more landmark press cases than ever before or since. The press cases decided during this Golden Age contain some of the US Supreme Court’s loftiest rhetoric about the role the press plays in our democracy, and when read as a whole, the cases evince a strong commitment to the idea that the press serves as the Fourth Estate—the unofficial branch of government tasked with checking the other three. Though the Court never wholly embraces the terminology of the Fourth Estate, its foundational decisions contemplate the press playing a vital role in our constitutional scheme of separation of powers. This role makes the press the watchdog that informs us what the legislative, executive, and judicial branches of government are up to and continually replenishes the stock of news – real news – that enables informed public discussion and rational public policy. 

As I hope to show in an article I've been working on for some time now, the Court during the Golden Age implicitly recognized that the press was a powerful institution that could protect its role in fostering democratic discourse between government and its citizens. Although the Court recognized in dicta the special role played by the press in democracies, the Court was reluctant to grant special privileges to an institution that could leverage its power and resources to fight against incursions by the official branches of government. Thus, the Court granted the press (and often simultaneously individual speakers) strong constitutional protection from direct government censorship, such as prior restraints or compelled publication, but was reluctant to grant affirmative rights such as access to information in government hands (with press and public access to criminal trials being a notable exception).

At the time, the Court had before it impressive examples of the press performing its role of checking government abuse of power and informing citizens without any assistance from the government. The press had the resources and will to deploy investigative expertise, leverage public opinion, and pursue legal challenges to fend off attempts by the legislature or executive branches to limit press power. Moreover, the press of the day played a critical role as an intermediary, facilitating communications between and among the legislative, executive and judicial branches with the public.  In light of this, the Court's reluctance to grant "special rights" or exemptions from generally applicable laws to the media is understandable. It explains how the Court could lionize the press in its rhetoric but still reiterate that the First Amendment provided the press no rights beyond those granted to the public: the press of the Golden Age simply didn't need government assistance to fulfill its democratic functions. Just as the official branches of government must leverage their political power to win battles in the public arena, so, too, did the Court expect the press to leverage its power and resources to protect its ability to function as the Fourth Estate. 

What about now? The press of today bears little resemblance to the press of the Golden Age, and the assumptions about press power underlying the Supreme Court's Golden Age press cases deserve renewed scrutiny.

The institutional press is no longer the powerful juggernaut of the Watergate era, united by a set of professional norms and capable of uncovering corruption at the highest levels of government by deploying sustained and expensive investigative expertise. Instead, the institutional press has been beset by devastating competitive and economic forces. Advertisers have fled. Just since 2008, newsrooms lost half their employees--and that was BEFORE the pandemic, which promises further newsroom carnage. Traditional media continue to face a crisis of legitimacy, with public opinion about their performance split along partisan lines. The public increasingly turns to social media speakers rather than traditional media for information, further eroding traditional media’s roles as gatekeepers and translators of news and information. At the same time, the President of the United States has conducted a sustained campaign to undermine the credibility of traditional news media, branding them "fake news" and the "enemy of the people" in over 1,900 anti-press tweets between 2015 and 2019. He has also sued journalists for libel, has tried to bar critical reporters from White House press briefings, and has issued executive orders designed to silence other critics. (To be fair, the prior President wasn't great for the press, either). Meanwhile, money to hire media lawyers to litigate these issues is in short supply.

What seems clear is that traditional media's ability to play the role of Fourth Estate is declining, and there is no obvious successor stepping into the breach. Instead, we are faced with a diminishing supply of reliable information about what our government is up to, with serious consequences for our democracy.

In my new article, I expect to argue that at a minimum, this decline should lead us to reexamine the assumptions underlying the Golden Age press freedom cases. If the press is less able to use "self-help" to maintain the separation of powers”\ between itself and the official branches of government, than perhaps it is time to impose more affirmative constitutional obligations on government officials to enable an institution or individuals to play a watchdog role. Perhaps some "special rights" must be accorded to those willing and able scrutinize our officials and provide reliable information about what they're up to. Even though dicta in Roberts Court decisions suggests skepticism of, if not outright hostility to, the press, our democracy depends on an informed citizenry armed with facts and not just opinions about those who govern them.  From that perspective, analysis of whether the First Amendment might play a role in shoring up today's Fourth Estate seems overdue. 

Posted by Lyrissa Lidsky on August 21, 2020 at 05:15 PM in Constitutional thoughts, Current Affairs, First Amendment, Lyrissa Lidsky | Permalink | Comments (6)

Monday, August 10, 2020

Hate Speech Returns to Campus

Students are returning to campus soon, and with them they are sure to bring more controversies over where the lines are drawn between free speech and speech that may be censured and censored.

Just last week, a controversy broke out at Princeton about a student's use of the n-word in social media. A white Princeton student responded on Facebook to a Black Fordham graduate who posted "We know you hate n---s" by saying that the Black graduate had gone to prep school and could not "speak for the n---s." This incident followed publication by a Princeton classics professor of an op-ed questioning some of the racial justice proposals made in a faculty petition to Princeton administrators; in that op-ed, the Professor called one Black student group a "terrorist organization."

Inevitably, Princeton administrators issued statements deploring the speech used in both incidents. With regard to the white student's use of the n-word, administrators branded it “contrary to Princeton’s commitment to stand for inclusivity and against racism” but said that the speech nonetheless did not violate university policy. Similarly, the President of Princeton condemned the classics professor's labeling of the student group as a terrorist organization, calling it "irresponsible and offensive," but the President said the speech was nonetheless protected by university policy.  

Many students rejected these conclusions on the grounds that a university committed to inclusion cannot tolerate hate speech. Their views seem to mirror those found in a recent survey:  81 percent of students on college campuses said that colleges should not punish offensive speech, but when asked whether colleges should restrict racial slurs, 78 percent said yes.  Moreover, seventy-one percent of students surveyed believed colleges should be able to restrict the wearing of costumes that involve racial or ethnic stereotypes. 

Unlike other campus free speech controversies, Princeton's are not governed by the First Amendment, because Princeton is a private university. State universities like mine are forbidden by the First Amendment from punishing protected speech, but Princeton is not. Nonetheless, Princeton seems to have adopted policies that protect free speech on its campus to the same extent the First Amendment does.

In my experience, many students and faculty, among others, are often surprised to discover the First Amendment protects a great deal of deeply offensive and even hateful speech. Indeed, the Supreme Court has stated: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Though many countries criminalize hate speech—that is, speech that demeans or dehumanizes a person or group based on their race, religion, ethnicity, sex, or sexual orientation—hate speech simply is not a legal category in the United States. Hate speech uttered within a classroom can be punished because it substantially disrupts the learning environment, but hate speech uttered by students speaking as citizens in public spaces—including online spaces--usually cannot. In that situation, state universities can only punish a student’s hate speech if it happens to fall into a recognized category of speech that is unprotected by the First Amendment. These categories include incitement, threats, defamation, discrimination against an individual, or fighting words.  The Princeton student’s Facebook post occurred in an online conversation about a public issue and did not fall into any of these categories. Had he been a public university student, the First Amendment would tie the hands of administrators seeking to censor or discipline him, leaving them to resort to counterspeech asserting that his speech did not comport with their values.

To many students today, the First Amendment's recommended response to hate speech is no longer satisfactory. Throughout our history, the First Amendment has asked us to put up with speech that evokes strong emotions based on a belief in the protective and healing power of discourse and the ability and willingness of citizens to come together and speak out against hate. What’s happening now in our country—with engaged students and other citizens speaking out and marching against racist violence, racist policies, and racist iconography—is exactly what our First Amendment envisions. In the long run, counterspeech is supposed to drown out hateful voices and sweep away repugnant ideas through the process of public discourse. 

Yet, to many critics, the victory of counterspeech over hate speech seems uncertain and counterspeech seems an insufficient remedy for the emotional wounds that hate speech causes. What they would prefer is an authoritative declaration that some speech, and some thoughts, are outside the bounds of civilized discourse and need not be tolerated. They take little solace from the arguments that I find compelling: that we have chosen this path because the power to censor is more often used to protect the powerful than the powerless, and we trust citizens more than we trust our governments to decide which ideas will prevail in the competition for adherents. Moreover, consensus formed through public discourse lends legitimacy to policy outcomes. Critics of the counterspeech cure would seemingly reject the lofty rhetoric of Justice Louis Brandeis, who once wrote that the First Amendment presumes “that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.” From their perspective, "evil counsels" have for too long drowned out good ones, and government power should be used to drive out the evil counsel of racists for good. The problem with this stance is that it depends on the benevolence and good faith of our government leaders or administrators in deciding whose views are so far out of bounds they can't be tolerated. Such benevolence or wisdom or restraint is certainly not something I take for granted, especially not now. 

Nevertheless, I know that in the war of generations, the younger always wins.  I just wonder what victory looks like.

Posted by Lyrissa Lidsky on August 10, 2020 at 01:25 AM in Constitutional thoughts, Culture, Current Affairs, First Amendment, Lyrissa Lidsky, Web/Tech | Permalink | Comments (9)

Saturday, August 08, 2020

Podcasts on cancel culture

Since I have been writing about cancel culture this week, here is an episode of Noah Feldman's Deep Background podcast, featuring Osita Nwanevu of the New Republic discussing cancel culture and why it is not a threat to free speech. On that note, Nwanevu debated Yascha Mounk on the subject on Slate's The Gist.

Posted by Howard Wasserman on August 8, 2020 at 02:19 PM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Thursday, August 06, 2020

Anti-SLAPP fee-shifting in federal court

I have argued in prior posts that the solution to SLAPP suits is not the  heightened standards from state laws (which cannot apply in federal court) but attorney fee-shifting. The paradox has been that most fee-shifting provisions apply to actions disposed of under the statutory standard, but not under a different standard. Thus, if the state statutory standard does not apply and the case is resolved on a simple 12(b)(6), the fee-shift does not apply.

But not so with the Florida anti-SLAPP law, according to Judge Martinez of the Southern District of Florida. Florida law provides for fees for any action that is "without merit" and based on constitutionally protected speech. The determination that the action is without merit can be made under any procedural device, such as 12(b)(6) (as in this case). In other words, the statute is a garden-variety fee-shifting provision serving substantive policy ends, the same as other fee-shifting provisions held to apply in federal diversity actions. So an action dismissed on a 12(b)(6) can provide the basis for an award of fees.

This is unique to Florida's anti-SLAPP statute. But it produces a conclusion that balances the requirements of the REA/Erie/Hanna against First Amendment interests.

Posted by Howard Wasserman on August 6, 2020 at 03:38 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

More cancel culture and counter-speech

Efforts continue to define and defend criticisms of cancel culture, beyond "I know it when I see it" or "Canceling for me but not for thee." Jonathan Rauch takes a crack in Persuasion (free registration required), identifying six warning signs, the presence of some or all suggest canceling:

• Punitiveness, in that the goal or effect is to cost a job or other opportunities.

• Deplatforming, which includes disinvitations, demands for retractions, and shout-downs.

• Organization

• Secondary Boycotts

• Moral grandstanding, through "ad hominem, repetitive, ritualistic, posturing, accusatory, outraged" rhetoric.

• Truthiness

Punititiveness perhaps helps. But there must be circumstances in which someone's deeds or expression are so egregious that calling for his removal from a job or position or platform should be fair game, such that non-governmental actors can decide to remove him from their circle of discourse and engagement. The person remains free to speak, but private persons need not listen, nor provide him with a platform. And private companies can choose not to retain him as an employee, private consumers can choose not to do engage in business with him, and people and entities in general can elect not to associate with him. If that is permissible, then the dispute is not punitiveness or deplatforming, but where to draw the line. We can identify ridiculous overreactions. But some situations are not ridiculous overreactions.

Five of Rauch's categories involve forms or manners of expression and thus of counter-speech. These purportedly neutral rules perpetuate the problem of the preferred first speaker--they impose unique limits on the type of speech regarded as "legitimate" when used by those who object to a speaker. For example, Rauch does not call for an end to all "ad hominem, repetitive, ritualistic, posturing, accusatory, outraged" rhetoric, only that used in response to someone. He rejects shout-downs, thus obligating counter-speakers to engage civilly and openly through dialogue in a way that original speakers are not obligated to do. A categorical line between organizing (rallying many people to a cause, which is somehow a bad thing) and persuading imposes an obligation of reasoned discourse not placed on an original speaker.

Rauch does treat everyone the same as to truthiness--it is as problematic when President Trump lies and distorts as when left-leaning groups lie and distort. But then we are not talking about cancel culture as some unique threat to free speech. The threat is lying, whoever is lying and wherever that person stands in the exchange process.

These and other efforts bring me back to Chief Justice Rehnquist in Hustler v. Falwell: "If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description [cancel culture] does not supply one."

Posted by Howard Wasserman on August 6, 2020 at 12:11 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Tuesday, August 04, 2020

Debate: Free speech v. Cancel culture (Updated)

Ken (Popehat) White for the position that "cancel culture" is a cynical ploy to undermine counter-speech v. Greg Lukianoff (of the Foundation for Individual Rights in Education) for the position that the real source of protection comes from "free speech culture," which means a culture of accepting other people's views and going along for the ride.

Unsurprisingly, I agree with White. Critics of cancel culture are imposing norms on "more speech" that they do not impose on the speech being rebutted and are essentially insisting that more speech not be too harsh. Lukianoff makes the good point that a culture of free speech is as important as formal legal protection for free speech. But he never deals with White's argument that much of what is derided as cancel culture is counter-speech, including many of the outrageous examples he offers. Lukianoff emphasizes the heralded legal principles "Sticks and stones" and "to each his own," which are possible responses to obnoxious speech. But there is no reason they should be the only responses to obnoxious speech.

Lukianoff kind of proves White's point with his requests: Don't call people hypocrites, welcome temporary allies, and don't lump free-speech advocates (himself or Nadine Strossen) with cynical partisans (Charlie Kirk). The last is well-taken, although most serious free-speech advocates do not do that. But the last is inconsistent with the first, which seems to require us to accept Charlie Kirk's support for free speech rather than recognizing its hypocrisy. In any event, Lukianoff's argument is about policing speech, about declaring some expression out of bounds. His arguments never answer that concern.

Update: As if on cue: Kelly Loeffler--Senator and senatorial candidate from Georgia, co-owner of the WNBA Atlanta Dream, and critic of BLM and kneeling basketball players--cries "cancel culture" because WNBA players wore t-shirts supporting her opponent in the coming election. It is difficult to imagine anything more central to the First Amendment than speech saying "Vote for X." Can it possibly lose protection because spoken in response to Loeffler's statements about about BLM and the flag?

Meanwhile, Auburn is investigating a (non-tenure-track) faculty member for "fuck the police" tweets and a Republican congressman is calling for him to be fired for anti-police hate speech. Proving White's point that there are hypocrites and grifters.

Posted by Howard Wasserman on August 4, 2020 at 02:25 PM in First Amendment, Howard Wasserman | Permalink | Comments (7)

Sunday, August 02, 2020

Sandmann: Bringing the Dream

Nicholas Sandmann settled his defamation action against the Washington Post this week, and he is not done yet.

Sandmann's defamation suits arose after several media outlets caricatured him as a smirking racist based on a video clip of him wearing a Make America Great Again hat and watching a Native American man beating a drum amidst a chaotic crowd at the Lincoln Memorial. The video clip went viral after it was posted by someone at the scene, and the media picked it up for repetition and commentary. Their spin on Sandman's supposed smirk was supported by statements from Nathan Phillips, the Native American man at the scene. The viral video spurred viral outrage. The problem was that the video as a whole, which was readily available, tended to dispel the narrative gleaned from the clip of Sandmann and Phillips. Viewing the video as a whole, Sandmann did not appear to be in a confrontational posture vis-a-vis the Native American man or others at the scene but instead seemed to be in the posture of an awkward teenager watching a curious scene with his peers as a group of Black Hebrew Israelites hurled insults and invective at them. 

Sandmann was fortunate to procure the counsel of famed attorney L. Lin Wood, who filed defamation suits against ABC News,  NBC News, CBS News, the New York Times, Gannett, Twitter, and Rolling Stone; having already settled with CNN and the Washington Post, Sandmann is still seeking damages in the aggregate of over $750 million, and he has threatened additional lawsuits. 

As a lawyer, I hesitate to put too much significance on any case before it has made its way into a published appellate opinion. Until then, it may very well be an anomaly. This case has drawn extensive publicity and partisan commentary because it has come to represent a strike against the perceived arrogance and bias of the mainstream media and the slipshod investigative habits old and new media actors employ in the digital era.  On its face, the video clip of Sandmann, together with statements made by the Native American man at the scene, seemed to confirm what many liberal partisans seem to believe: Anyone who wears a MAGA hat must be a heartless white supremacist. It is clear that many media outlets took the clip on its face and republished it and drew conclusions from it without watching the whole video, which became readily available at a rarely early juncture in the whole controversy. Conservative partisans have attributed the media's rush to judgment to bias at a minimum and possibly malice, but it is just as likely to be a result of laziness and a desire not to fall behind digital competitors. Regardless, Sandmann's settlements have led some to call for more defamation lawsuits to hold media accountable (and may be part of a larger trend of plaintiffs using defamation suits strategically as vehicles for political messages, but that's a story for another day, Devin Nunes).  

The partisan lenses through which the Sandmann cases are being refracted obscure the interesting legal questions the cases raise. One important question is about what's required to prove actual malice in this case, but another is this: under what conditions does a person who "goes viral" by being in the wrong place at the wrong time become a public figure for purposes of defamation law, and does it matter if that person is a child? The distinction between public figures and private figures is crucial in defamation law, because private figures can recover for defamation by proving the defendant published a defamatory falsehood about them negligently, but public figures must prove actual malice, that is, that the defendant published the defamatory falsehood knowingly or with reckless disregard of the truth. (Actual malice is a term of art not to be confused with common law malice). Sandmann's cases become much harder to win if he is a public figure and must prove actual malice, although he may choose to prove actual malice even if he is deemed a private figure, because doing so gives him access to larger damages awards. 

Some commentators have suggested that Sandmann should be treated as a limited-purpose public figure because he became embroiled in an event that was clearly of public concern at the site of the Lincoln Memorial. The Supreme Court's cases defining the category of limited-purpose public figures predate social media, but they do involve people who were thrust into larger controversies by the press or partisans; in general, they suggest that becoming a limited-purpose public figure requires a plaintiff to do something more than being in the wrong place at the wrong time and thus becoming fodder for public controversy. For example, in Time Inc. v. Firestone, five Supreme Court justices concluded that a woman married into a prominent family did not become a public figure simply by seeking a divorce through the judicial process. In Wolston v. Reader's Digest Ass'n, the Court held that a man who had previously been convicted of contempt for refusing to respond to a grand jury investigation on mental health grounds was not a public figure. And in Hutchinson v. Proxmire, a research scientist applying for a federal grant was not public figure, either.  Extrapolating from the Supreme Court cases, plaintiff should not be treated as a limited-purpose public figure because others embroil him in a public controversy of their creation: his entrance into the controversy must involve some degree of volition. The absence of meaningful volition is bolstered by the fact he was a minor on a school field trip standing on the steps of a public monument when he went viral.  Even examining Sandmann's actions through the lens of the multiple factors indicating limited-purpose public figure status elucidated by lower courts, Sandmann arguably did not do "enough" to be treated as a limited-purpose public figure. The factors lower courts look to often include whether (1) the plaintiff has access to channels of effective communication; (2) the plaintiff voluntarily assumed a role of special prominence in the public controversy; (3) the plaintiff sought to influence the resolution or outcome of the controversy; (4) the controversy existed prior to the publication of the defamatory statement; and (5) the plaintiff retained public figure status at the time of the alleged defamation. Sandmann apparently did nothing to ask for the infamy that attached to him based on the publication and misinterpretation of the viral video clip (and likely spurred at least in part by his hat). He did, however, gain access to the media after the fact to rebut any allegedly defamatory falsehoods. For some courts, this might be enough to tip Sandmann into the limited-purpose public figure category (see, for example, Gilmore v. Jones, 370 F. Supp. 3d 630 (E.D. Va. 2019), though that conclusion would not be faithful to the parameters of the category defined by the Supreme Court. 

A better, though still problematic, argument is that Sandmann and other "victims" of viral videos like him are involuntary public figures. This category comes from dicta in the Supreme Court's 1974 case, Gertz v.Robert Welch, in which the Supreme Court speculated: "Hypothetically it may be possible for someone to become a public figure through no purposeful action of his own."  The Supreme Court has left the definition of the category to the lower courts, which have not reached consensus on how to define involuntary public figures and, indeed, whether the category even continues to exist.  (Cf., e.g., Clyburn v. News World Communications, Inc., 1990; Marcone v. Penthouse Int’l Magazine, 1985; Schultz v. Readers Digest Ass’n, 1979)  One approach is represented by Dameron v. Washington Magazine, Inc, 779 F.2d 736 (D.C. Cir. 1985).  A plane crashed when Dameron was the sole air-traffic controller on duty, although subsequent investigations absolved him of any blame for the crash.  Eight years later, however, a magazine article attributed the crash to controller error.  The District of Columbia Circuit Court of Appeals held that Dameron was an involuntary public figure for purposes of discussion of the crash, and therefore his libel action failed for lack of proof of actual malice on the part of the magazine. The D.C. Circuit concluded that even though Dameron had taken no voluntary actions,  "[t]here was indisputably a public controversy" in which "Dameron played a central role."  Thus, the court concluded that a person may become an public figure simply by being in the wrong place at the wrong time.

The US Court of Appeals for the Fourth Circuit took issue with this approach in Wells v. Liddy on the grounds that it "rest[s] involuntary public figure status upon ‘sheer bad luck.’"  According to the Fourth Circuit, the relevant factors in determining involuntary public figure status are (1) whether the allegedly defamatory statement arose in the context of a discussion of a "significant public controversy" in which the plaintiff was a "central figure," and (2) whether the plaintiff "assumed the risk of publicity."  A plaintiff assumes the risk of publicity by "pursu[ing] a course of conduct from which it was reasonably foreseeable, at the time of the conduct, that public interest would arise."  The court also demanded that, as in the case of limited-purpose public figures, the controversy must pre-exist the defamation, and the plaintiff must "retain[ ] public figure status at the time of the alleged defamation."  The Liddy court was thus much more careful than the Dameron court not to conflate public interest in an individual with that individual’s involvement in a public controversy.  

Sandmann's attorney Lin Wood is familiar with these categories. Lin Wood famously represented Richard Jewell, the security guard at the 1996 Olympics who was falsely reported in the media to have planted the bomb that killed two and injured 110.  Jewell, far from being the culprit, was actually a hero: he spotted the bomb and prevented more people from being injured.  Nonetheless, the mere fact that he was in the wrong place at the wrong time and thus his actions became newsworthy led a Georgia court to label him an involuntary public figure when he sued the media for publishing defamatory falsehoods about him. 

Although Sandmann still has many defamation battles left to fight, they may never result in a precedent-setting legal opinion guiding the development of defamation doctrine in the digital era. In the meantime, though, these cases give those of us who love defamation law plenty to talk about. 

Posted by Lyrissa Lidsky on August 2, 2020 at 07:54 PM in Current Affairs, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (9)

Saturday, August 01, 2020

Judicial departmentalism and particularity on Twitter (Updated)

In 2019, the Second Circuit held that Donald Trump could not ban people from following him on Twitter for viewpoint-discriminatory reasons, affirming a declaratory judgment. Trump and Daniel Scavino, the aide who runs his Twitter account, unblocked the plaintiffs and many others. But they did not unblock two groups--those who had been blocked before Trump became President (where there was no First Amendment problem with blocking them because he was not a government official at the time of blocking) and those who cannot point to a specific tweet that caused them to be blocked (where there is no evidence of viewpoint discrimination).

The Knight Foundation on Friday filed a new lawsuit on behalf of those two groups, asking for a declaratory judgment and injunction ordering the unblocking of these new plaintiffs.

Once again, inefficient but appropriate. Trump unblocked the plaintiffs, as we was obligated to do by the judgment. He negotiated with the Knight Foundation to unblock others, not out of an immediately enforceable legal obligation but a recognition of what would happen if he did not unblock--a motion to extend the existing judgment to additional individuals, which would succeed and which would impose that legal obligation. But he identified two groups differently situated than the plaintiffs who, in Trump's view, have not suffered similar violations of their First Amendment rights. This requires new litigation, a new analysis of the First Amendment, and a new declaration of First Amendment rights, duties, and relations.

Update: A further thought on the process: We know the plaintiffs recognized the particularized scope of the original judgment by the fact that they filed a new lawsuit on behalf of these plaintiffs. Had the original judgment protected these non-parties to that action, they could have moved to enforce the judgment, to hold Trump or Scavino in contempt, or to convert the declaratory judgment into an injunction.

For better or worse, this how the process should work. And Trump should not be accused of disobeying a court order or otherwise ignoring the court.

Posted by Howard Wasserman on August 1, 2020 at 06:41 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (8)

Friday, July 24, 2020

(Update) Grab your fedora, we are all journalists now and other thoughts on the Portland TRO

A federal judges issued a TRO preventing federal paramilitary force in Portland from targeting journalists and legal observers. An existing preliminary injunction, to which the City stipulated, does the same as to Portland police. Some thoughts and questions.

First, the TRO requires journalists and legal observers to identify themselves through badges or distinctive clothing (hats, press passes, etc.). Some concerns and questions.

Vintage-reporter-fedora-hat-camera-picture-id510580998First, it is about time we revived this look from His Girl Friday or The Brady Bunch.

Second, this seems to run afoul of the principle that the press does not have special status from other speakers when it comes to what they can say and their access to spaces. The key access cases speak of information-gathering by the press and the public. I expect that some non-press people in the mix of these protests are there to observe and record. And they possess or can possess the same equipment that allows a reporter to do her job--a device that takes photographs, moving pictures, and audio recordings. And I assume fedoras can be purchased online. Maybe the point should be to not have paramilitary forces using force and effecting arrests indiscriminately against anyone who happens to be in a crowd but is not engaging in unlawful activity, not only those with J.D.s or an institutional affiliation.

Second, the government tried to defeat the plaintiffs' standing with a string of cases making it difficult to challenge practices within the criminal-justice system (choke holds during arrests, discriminatory bail or sentencing); the cases rest on the refusal to speculate that the plaintiff will break the law and thus come in contact with the criminal-justice system and be subject to those policies. The court rejected that because threat to plaintiff arose not from breaking laws, but from engaging in protected First Amendment activity--"It is one thing to ask citizens to obey the law in the future to avoid future alleged harm. But it is quite another for the Federal Defendants to insist that Plaintiffs must forgo constitutionally protected activity if they wish to avoid government force and interference." Good call.

Third, the court orders wide dissemination of the order, including to Bill Barr and Ken Cuccinelli and those with supervisory authority over agents in Portland. The reason is that "the Court considers any willful violation of this Order, or any express direction by a supervisor or commander to disregard or violate this Order, to be a violation of a clearly established constitutional right and thus not subject to qualified immunity" in any Bivens action. This is odd. The violation of the order is not necessarily the same as a violation of the underlying constitutional rights protected by the order, but only the latter would be the basis for a Bivens action. The court seems to be couching its power to enforce its order with its power to award damages should an injury occur. That is, it will use its equitable power to enforce its equitable order by imposing a legal remedy. Equity cannot enjoin a crime, but can it enjoin a constitutional tort? Any way, I am troubled by the practice--made necessary by unwise qualified-immunity doctrine--of courts announcing that "henceforth, some right is clearly established.

Update: From a conversation with a Remedies colleague: A court can enforce an injunction through civil contempt, which can be compensatory. A court could order the violating defendant to pay money to the plaintiff in the amount of the injury suffered. And if that injury were physical (e.g., medical expenses from being shot), the remedy would look like compensatory damages. But Bivens and qualified immunity still have nothing to do with this. A plaintiff need not bring a Bivens claim if the remedy is contempt for an existing court order in an ongoing case. And qualified immunity should have no role to play in the court enforcing an existing order.

Posted by Howard Wasserman on July 24, 2020 at 08:26 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, July 15, 2020

Anti-SLAPP law does not apply in Second Circuit

The Second Circuit has joined the chorus holding that state anti-SLAPP laws (in that case, California's) do not apply in federal court. The case arises out of a lawsuit against Joy Reid over two tweets with a photo of a woman in a MAGA hat interacting with a Latinx teen at a city council meeting; one tweet described the plaintiff as shouting epithets at the teen (who said their interaction was civil), while the other juxtaposed the infamous 1957 photograph of the screaming white teen in Little Rock.

The Second Circuit joins the Fifth, Eleventh, and D.C. Circuits in not applying them, compared with the Ninth and First that. The court followed the prevailing approach--FRCP 12 and 56 provide the standards for pre-trial resolution, leaving no room for state law. The court rejected the amici argument that the SLAPP law serves a "distinct function of protecting those specific defendants that have been targeted with litigation on the basis of their protected speech," supplementing rather than conflicting with the FRCP. But this is a policy argument, one that contradicts the policies underlying the FRCP themselves. The court also rejected the defendant's argument that she can recover attorney's fees under the statute for a 12(b)(6) dismissal; the statute allows fees when the defendant prevails on the statutory motion to strike, not on some other basis.

Tellingly, the four most recent cases have gone this way, while the First Circuit decision is from 2010 and the seminal Ninth Circuit cases is from 1999, with several Ninth Circuit judges calling for its reconsideration in 2013. The courts of appeals are congealing around the correct Erie answer and may not require SCOTUS resolution, one point of percolation.

But that might not be the correct answer as a matter of the First Amendment and the need to protect speakers, especially media, against frivolous lawsuits by powerful individuals designed to chill public criticism. (Query whether this is such a case, but bracket that for a moment). Many First Amendment advocates want a full federal anti-SLAPP statute. For the moment, I think a fee-shifting statute, combined with vigorous use of Twiqbal would be sufficient to get rid of cases early in the process and to protect defendants from the intentional imposition of litigation costs. But I need to look in greater detail at how federal courts have looked at defamation claims under that pleading standard.

SLAPP and Erie aside, this case may be more troubling for Reid going forward. The court held that the plaintiff (who spoke and was photographed at city council meetings advocating against sanctuary-city laws) was not a limited-purpose public figure; she lacked media access, did not thrust herself into a public controversy, and stepped forward for interviews only after the first alleged defamation. Thus, the plaintiff had to allege negligence, not actual malice. The court also rejected Reid's argument that the second tweet (juxtaposing the photos) was not an actionable assertion of fact, because a reasonable reader could understand it as equating the plaintiff's conduct with "archetypal racist conduct."

It is interesting that this case came to litigation. When the plaintiff's lawyer asked Reid to delete the posts, Reid did so and apologized, which would seem to suggest the absence of negligence. But the plaintiff sued anyway. And we continue forward.

Posted by Howard Wasserman on July 15, 2020 at 07:01 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, July 08, 2020

Justice Kagan’s Warring Views on the Religion Clauses

Today (Wednesday) the Supreme Court decided two cases involving questions of law and religious rights: Our Lady of Guadalupe School v. Morrissey-Berru (No. 19-267, consolidated with 19-348), which addressed the scope of the First Amendment’s “ministerial exception,” and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (No. 19-431, consolidated with 19-454), which determined the legality of regulations exempting employers from ACA-mandated contraceptive coverage for religious reasons. Justice Kagan joined the majority in both—in full in Our Lady and in the judgment in Little Sisters. But in what appears as case of the right hand not knowing what the left hand is doing, a footnote in her concurring opinion in Little Sisters misreads the majority opinion she joined in full in Our Lady. (Of course, she could be putting forth a revisionist reading.)

Our Lady grounds the so-called “ministerial exception” clearly in the broader doctrine of church autonomy. That doctrine, supported by the Religion Clauses, “protect[s] the right of churches and other religious institutions to decide matters ‘of faith and doctrine’ without government intrusion.” (Slip op. at 10) (quoting Hosanna-Tabor, 565 U.S., at 186). Further, “[s]tate interference in that sphere would obviously violate the free exercise of religion, and any attempt by government to dictate or even to influence such matters would constitute one of the central attributes of an establishment of religion. The First Amendment outlaws such intrusion.” (10).

Our Lady observed that “[t]he independence of religious institutions in matters of ‘faith and doctrine’ is closely linked to independence in what we have termed ‘matters of church government.’” (10) (quoting 565 U. S., at 186). The First Amendment “protect[s] [religious institution’s] autonomy with respect to internal management decisions that are essential to the institution’s central mission.” (11). What is more, “a component of this autonomy is the selection of the individuals who play certain key roles.” (11). The Court notes that the “‘ministerial exception’ was based on this insight.” (11). And the “constitutional foundation” for the Court first recognizing this exception in Hosanna-Tabor “was the general principle of church autonomy”—“independence in matters of faith and doctrine and in closely linked matters of internal government.” (12). To support this, the Court notes three earlier church autonomy cases, all of which had to do with the control of church property (though in some, but not all, “the authority and appointment of a bishops” was also at issue).

In other words, the ministerial exception is a sub-part (“component”) of the First Amendment’s church autonomy doctrine. It is sufficient to violate the church autonomy doctrine by violating the ministerial exception, but it is not necessary. One can still violate the doctrine even if the exception does not apply. Put another way, within the larger circle of the church autonomy is a smaller circle of the ministerial exception. Justice Kagan joined all of this without comment.

Now turn to her concurrence in Little Sisters. There she claims that “there is no general constitutional immunity, over and above the ministerial exception, that can protect a religious institution from the law’s operation.” (Kagan Concurrence at 3 n.1). Yet how can this be squared with Our Lady? There the Court clearly stated that the ministerial exception is a “component” of the church autonomy doctrine. It is not the entire doctrine. But Justice Kagan wants the “component” to swallow the hole. To put it differently, in Little Sisters Justice Kagan sees the ministerial exception circle and the church autonomy circle as having perfect overlap.

Actually, that may be understating it. Justice Kagan appears to view the ministerial exception as being the only way that the Religion Clauses “can protect a religious institution from the law’s operation” via a “general constitutional immunity.” But as I have noted earlier on this blog, that runs smack dab into Trinity Lutheran’s footnote 4, which notes categorical protection from laws or government actions that, among other things, specifically target religion as such. Justice Kagan joined Trinity Lutheran’s footnote 4 in full as well.

These warring views do not appear reconcilable. I guess we will have to see in future cases which version of the First Amendment Justice Kagan will endorse.

Posted by James Phillips on July 8, 2020 at 07:10 PM in Constitutional thoughts, First Amendment, Religion | Permalink | Comments (4)

Tuesday, July 07, 2020

The First Amendment and the preferred first speaker

Harper's has published online (and will publish in print) a letter on "justice and open debate" from a cross-section of journalists, authors, and academics, including several law professors. They decry a "new set of moral attitudes and political commitments that tend to weaken our norms of open debate and toleration of differences in favor of ideological conformity." They allude to  recent events involving fired editors and analysts, canceled books, investigated professors--what has come to be called, loosely, "cancel culture."

The authors claim to "uphold the value of robust and even caustic counter-speech from all quarters," but to fear that "it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought." Ken White (Popehat to those on Twitter and KCRW) sees the letter as drawing an untenable (or at least elusive) distinction between "silencing" and "more/responsive/critical" counter-speech. White labels this the "problem of the preferred first speaker," the " tendency to impose norms of civility, openness, productiveness, and dialogue-encouraging on a RESPONSE to expression that we do not impose on the expression itself." In other words, the original speaker is free to say what she wants however she wants; the response must listen to, engage with, and respond to that speech. "Shut up" is not acceptable counter-speech.

This is an extension and expansion of the problem of campus speech and "controversial" speakers. The invited speaker (Charles Murray, whoever) is the preferred first speaker, entitled to have his say; those who object or oppose his views are expected to sit quietly, listen to what he says, perhaps ask a question or make a comment during Q&A (if he deigns to call on them). Anything else (such as a noisy protest outside the hall) is the dreaded heckler's veto.

Both situations create a puzzle . We do not want people to lose their livelihoods for their speech, nor do we want speakers chased off campus. But we also should not hamstring one side of the debate--to paraphrase Justice Scalia, we should not allow the original speaker "to fight freestyle," while requiring counter-speakers "to follow Marquis of Queensberry rules." I do not know the right answer or correct balance either to the recent online issues or to campus speech (the latter will not be an issue for awhile, unfortunately). But this letter does not provide it.

Meanwhile, White provides a great title for the article I hope to write.

Posted by Howard Wasserman on July 7, 2020 at 01:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Monday, July 06, 2020

Notes on Barr v. AAPC

There is a lot in the Court's decision in Barr v. AAPC, declaring invalid the government-debt exception (enacted in 2015) to the ban on robocalls to cell phones (enacted in 1991), but holding that the remedy is to allow government to enforce the original 1991 ban on everyone. Kavanaugh writes for the Chief, Thomas, and Alito that the exception is unconstitutionally content-based and does not survive strict scrutiny and for the Chief and Alito that the remedy is to level everyone down. Sotomayor finds the law constitutionally invalid under the less-rigid scrutiny proposed by Breyer and severable. Breyer writes for Ginsburg and Kagan that the law is constitutionally valid under less-rigid scrutiny, but that, since everyone else disagrees, they agree that the 2015 exception is severable. Justice Gorsuch agrees the 2015 exception invalid on a different analysis, but that the proper remedy is prohibiting enforcement of the entire robocall ban. So one 6-3 on the First Amendment issue, a largely different 7-2 on severability.

• The First Amendment portion is Reed redux. Five Justices (Kavanaugh's four + Gorsuch) say that the statute is content-based and requires strict scrutiny because it distinguishes based on subject matter--robocalls about government debt are ok, everything else (non-government debt, political speech, sales calls about baseball tickets) are prohibited. Breyer continues the squishier balancing he proposed in Bartnicki and then in Reed. The First Amendment is designed to protect political speech, public forums, and an airing for all viewpoints, but is not designed to interfere with commercial regulatory schemes that incidentally affect speech and that do not affect meaningful public discourse. Such incidental regulation should be subject to a less-rigid balancing of the seriousness of the speech-related harm, the importance of countervailing government objectives, the likelihood the regulation will achieve those objectives, and whether there are less-restrictive ways of doing so. Applying that, Breyer argues that the speech disadvantaged (non-government debt collection) is commercial and highly regulated, while the government has an interest in protecting the public fisc by enabling collection of government debts through calls made solely to collect government debt.

• Sotomayor argues the statute fails even under that test, because the government has not explained how collection calls about government debt are less intrusive and less privacy-invading than collection calls about private debt.

• Breyer (and the government) remain concerned that the application of strict scrutiny threatens regulatory schemes such as the SEC, FDCPA, and FDA, all of which limit what regulated entities can say in order to protect consumers. Kavanaugh dismisses the slippery-slope arguments, insisting that "courts have generally been able to distinguish impermissible content-based speech restrictions from tradition or ordinary economic regulation of economic activity."

• People have argued that the severability analysis shows that it is unlikely that the Court will declare invalid the entire ACA next Term, even if the individual mandate is invalid as a tax. Perhaps, although do not underestimate irrational hatred for the ACA. Plus, this case was as much a leveling case as a severability case--the 2015 exception was invalid because it treated the plaintiffs less favorably than collectors of government debt. The majority resolves that problem by "leveling down," leaving the 2015 exception unenforceable and placing all speakers in the same position of being unable to use robocalls. Gorsuch (joined by Thomas in this part) rejects this, arguing that the Court fails to remedy the violation of the plaintiffs' First Amendment rights--they want to be able to speak, not to have others prevented from speaking. The result of the case is that no one can make robo calls, which does not give the plaintiffs anything and harms non-plaintiffs.

The point of departure is what provision is invalid in this case. For Gorsuch, it was the original 1991 ban, whose invalidity is shown by the 2015 exception. Thus, the proper remedy for the violation is to make the 1991 ban unenforceable against the plaintiffs. But that, Kavanaugh argues, harms a different group of strangers--the millions of people who will be bombarded by robocalls.

• Kavanaugh's opinion includes a discursive footnote engaging Thomas on the  what it means to "invalidate" a law and what courts should do. I save that for a second post.

Posted by Howard Wasserman on July 6, 2020 at 01:35 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Thursday, July 02, 2020

Espinoza's Recasting of Trinity Lutheran Raises Religious Liberty Questions

On its surface, Espinoza v. Montana Dept. of Revenue (No. 18-1195) appears to be a complete victory for religious liberty. A 5-4 majority held that discriminating on the basis of religious status in the context of school funding violated the Free Exercise Clause. As the majority declared, “once the a State decides to [subsidize private education], it cannot disqualify some private schools solely because they are religious.” Slip op. 20. And the decision cast serious doubt on the discriminatory Blaine Amendments found in a majority of state constitutions. The outcome clearly belongs in the win column for Free Exercise Clause fans.

But perhaps more so than case outcomes, it is the doctrinal seeds down in the pages of the U.S. Reports that steer the course of the law. And the seeds sown in Espinoza raise unanswered questions for religious freedom. Specifically, Espinoza recasts a little discussed but significant point in Trinity Lutheran in such a way as to call into question the chances that some future religious discrimination claims will prevail.

First, a little conceptual background. The Court’s free exercise jurisprudence has three tiers of protection. In the lowest tier—laws deemed neutral and generally applicable under Employment Division v. Smith—the government must only satisfy rational basis (if even that), the least protective doctrinal test of the Court. Needlessly to say, free exercise challenges never win in this tier.

The middle tier of free exercise jurisprudence applies a strong version of strict scrutiny. The government must not only demonstrate that a law or action “advance[s] interests of the highest order,” but also that the law or action is “narrowly tailored in pursuit of those interests.” Slip op. 18 (cleaned up). Not surprisingly, government infringement of religious liberty “will survive strict scrutiny only in rare cases.” Lukumi, 508 U.S. at 546.

However, there is a third tier—the most protective—in the Court’s free exercise pantheon. Sometimes the Court is unwilling to engage in any balancing with government interests, so the state’s infringement of religious liberty is categorically barred. The ministerial exception is one example of this: once a religious organization demonstrates that someone is its minister, no government interest of any kind can authorize interference with the organization’s constitutional right to control its ministers. See Hosanna-Tabor Evangelical Lutheran Church and Sch. v. E.E.O.C., 565 U.S. 171, 181 (2012) (“Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.”) See also id. at 196 (“When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.”). No judicial balancing of government interests and free exercise freedoms required.

It is not just the ministerial exception that applies this categorical prohibition. Religious tests, whether for public office or otherwise, also trigger this categorical bar, with the Court grounding this prohibition in the Free Exercise Clause (admittedly the Test Oath Clause would do the same work regarding federal office). See Torcaso v. Watkins, 367 U.S. 488, 495 (1961); Town of Greece v. Galloway, 572 U.S. 565, 621 (2014) (Kagan, J., dissenting) (“[G]overnment, in its various processes and proceedings, imposes no religious tests on its citizens.”). No judicial balancing here either.

Finally, there is a third instance that gets tier-3 categorical protection: “government mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.” Lukumi, 508 U.S. at 547. Thus, “a law targeting religious beliefs as such is never permissible.” Trinity Lutheran, 137 S. Ct. at 2024 n.4 (emphasis added) (quoting Lukumi, 508 U.S. at 533). Strict scrutiny does not apply to such a law. Id. Rather, “[t]he Free Exercise Clause categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such.” McDaniel v. Paty, 435 U.S. 618, 626 (1978) (plurality opinion) (emphasis added). And the Court has referred to this as a “rule.” Trinity Lutheran, 137 S. Ct. at 2024 n.4.

Chief Justice Roberts’s majority opinion in Trinity Lutheran recognized the existence of tier-3 protection, wherein the government is categorically prohibited from infringing religious liberty. While much attention has been paid to Trinity Lutheran’s footnote 3, it is footnote 4 that contains a real nugget. There Roberts declared on behalf of a majority of the Court that “[w]e have held that ‘a law targeting religious beliefs as such is never permissible.’” 137 S. Ct. at 2024 n.4 (quoting Lukumi, 508 U.S. at 533) (emphasis added). He also cites McDaniel v. Paty, 435 U.S. 618 (1978). But, he observes, “[w]e do not need to decide whether the condition Missouri imposes in this case falls within the scope of that rule, because it cannot survive strict scrutiny in any event.” In other words, in Trinity Lutheran, a state’s discrimination in funding based on religious status may fall under the categorical bar (tier 3) or it may fall under strict scrutiny (tier 2), but because it fails the lesser test (tier 2), the Court saw no need to decide which tier applied.

Now, fast forward to the Espinoza decision. Repeatedly, Chief Justice Roberts relies on Trinity Lutheran for something that case did not actually decide: that discriminating in public funding based on religious character triggers strict scrutiny—

  • Trinity Lutheran distilled these and other decisions to the same effect into the “unremarkable” conclu­sion that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that trig­gers the most exacting scrutiny.” (quoting Trinity Lutheran, slip op., at 9-10). Slip op., at 8.
  • The Free Ex­ercise Clause protects against even “indirect coercion,” and a State “punishe[s] the free exercise of religion” by disqual­ifying the religious from government aid as Montana did here. Trinity Lutheran (slip op., at 10–11). Such status­ based discrimination is subject to “the strictest scrutiny.” (slip op., at 11). Slip op., at 11-12.
  • It is enough in this case to conclude that strict scrutiny applies under Trinity Lutheran because Montana’s no-aid provision discriminates based on religious status. Slip op., at 12.
  • [T]he[] dissents follow from prior separate writings, not from the Court’s decision in Trinity Lutheran or the decades of precedent on which it relied. These precedents have “repeatedly confirmed” the straightforward rule that we apply today: When otherwise eligible recipients are disqualified from a public benefit “solely because of their religious character,” we must apply strict scrutiny. Trinity Lutheran (slip op., at 6-10). Slip op. at 17.
  • Because the Montana Supreme Court applied the no-aid provision to discriminate against schools and parents based on the religious character of the school, the “strictest scru­tiny” is required. (quoting Trinity Lutheran, slip op., at 11). Slip op., at 18.

This is a re-characterization of Trinity Lutheran. That case saved for another day the question of whether that religious discrimination fell “within the scope of [the categorical] rule, because it c[ould not] survive strict scrutiny in any event.” 137 S. Ct. at 2024 n.4. But in Espinoza the Chief unequivocally cites Trinity Lutheran for the proposition that religious discrimination based on funding requires the application of strict scrutiny. Whether accidental or not, this is a revisionist reading. And this revisionist reading makes even less sense when Espinoza points out that “the infringement of religious liberty” there “is far more sweeping than the policy in Trinity Lutheran,” and “burdens not only religious schools but also the families whose children attend or hope to attend them.” Slip op., at 19.

This recasting of Trinity Lutheran has raises important questions for religious liberty down the road. For instance, is it no longer an open question as to whether specific targeting of religious status in the context of public funding fits under the rule of categorical prohibition (tier 3) or under strict scrutiny (tier 2)? After Espinoza, it certainly seems such discrimination fits under the latter. Though it is odd to answer that question by claiming it was decided by a previous case that refused to answer that question.

Likewise, what implications does Espinoza have for the scope of this categorical prohibition? Is it narrower? After Trinity Lutheran, the rule was that “a law targeting religious beliefs as such is never permissible.” Trinity Lutheran, 137 S. Ct. at 2024 n.4. And Trinity Lutheran relied on McDaniel, which declared that “[t]he Free Exercise Clause categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such.” 435 U.S. at 626. After Espinoza, though, one has to wonder whether this “rule” now does not apply to the context of public funding? What about other contexts? Is Espinoza the start of a trend to narrow the scope of the categorical prohibition? Time will tell.

The devil is in the details, they say. It is especially so in doctrine. While Espinoza is at some level a gift for religious liberty, and one hates to look a gift horse in the mouth, some legal victories can contain a Trojan horse hidden in plain sight.

Posted by James Phillips on July 2, 2020 at 11:10 AM in Constitutional thoughts, First Amendment, Religion | Permalink | Comments (4)

Tuesday, June 30, 2020

Third Circuit: Tinker does not apply off-campus

The Third Circuit held Tuesday that Mahanoy (PA) Area H.S.* violated the First Amendment by suspending a student (identified as B.L.) from the J.V. cheerleading squad for a snap showing the girl and her friends flipping the bird above the caption "Fuck Cheer." This is a great First Amendment decision.

[*] My wife's grandmother grew up in Mahanoy, which is why I bother to mention it.

The majority hit several important things.

    • The speech was off-campus. The student created the snap off-campus, on a weekend, on a non-school platform, and the fact that the comments were about the school or school personnel did not change its nature.

    • The First Amendment does not apply differently to extra-curricular activities or to students who participate in extra-curricular activities (unlike the Fourth Amendment or Due Process). Suspension from an extra-curricular activity (the punishment the school imposed) is not a lesser punishment subject to less-rigorous First Amendment scrutiny. Student-athletes are not subject to punishment for off-campus vulgarity to a greater extent than non-athletes would be.

    • Tinker does not apply to off-campus speech. This is huge, as this is the first court of appeals squarely to hold. Tinker is a "narrow accommodation" of the unique context of school, but makes little sense outside that context. School officials can control the spillover effects that make their way into school. But that has been true of off-campus real-world speech, so should be true of on-campus online speech. And while this leaves schools unable to regulate some crude, vulgar, or offensive speech, that is the point of the First Amendment, as Tinker recognized.

    • Outside of school and online, students have virtually full First Amendment rights, including to use profanity, which cannot be dismissed as "low value" or as expressing no message. "Fuck cheer," uttered by a frustrated high-school sophomore, has a meaning.

    • The student did not waive her First Amendment claims by agreeing to be subject to certain codes of student-athlete conduct.

The majority expressly does not resolve off-campus speech threatening violence or harassing particular students or teachers. Some such speech may be unprotected and subject to sanction and the school may have a sufficiently weighty interest in regulating that speech. The question of Tinker's applicability caused Judge Ambro to concur in the judgment. insisting there was no need to address the issue because the speech was obviously protected even under Tinker. Ambro is concerned about a broader swath of off-campus speech, such as  racially tinged speech or snaps reenacting and mocking victims of police violence.

The case does suggest that "Tinker" as a standard is different from the public school's regulatory authority. That is, the inapplicability of Tinker to off-campus speech does not divest a school of all authority to regulate that speech, leaving any sanction to government at large. The suggestion is that a public school has authority to sanction students for off-campus expression, but it must satisfy a different, more rigorous standard (strict scrutiny or a showing that the speech falls into an unprotected category). So perhaps a school could sanction a student for out-of-school true threats, rather than leaving it to the police and the courts. Perhaps a school could punish a student for out-of-school (constitutionally protected) racist speech, claiming a compelling interest in teaching racial justice or maintaining racial peace within the schoolhouse gates that society at large cannot claim. I have presumed that schools should have no power to regulate speech off-campus, that a student becomes an ordinary person outside of school. While affirming broad student rights, this opinion suggests otherwise.

And if that is true, what does it mean for universities, who generally are not governed by Tinker? Can a university claim a compelling interest in campus racial peace that might give it more power than society at large to sanction racist-but-protected speech?

Finally, an empirical question that I have not researched but that I would be curious if anyone knows the answer. The Third Circuit in the past half-decade has broadly protected student speech in several significant case, a seeming departure from the late-'90s/early-oo's, when schools routinely won cases involving online speech and t-shirts. Is the Third Circuit an outlier or have other courts come around?

Posted by Howard Wasserman on June 30, 2020 at 01:31 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, June 26, 2020

Anti-racism and the First Amendment

Jaden McNeil is a student at Kansas State and the head of America First Students, an organization that believes Turning Point USA is too liberal. Yesterday, McNeil sent a tweet congratulating George Floyd on being drug-free for a month. The tweet drew responses and condemnation from several K-State football players, followed by further condemnation from the head coach, athletic director, and university president. Several players called on the university to do something to "handle" this, while another promised not to play for the school if it "tolerates ignorance such as this." The university president promised to review its "options."

But there do not seem to be any options for a public university to handle this. McNeil is an asshole and deserves (but probably does not care about) public opprobrium, but his tweet does not seem to fall within any unprotected category of expression. Universities are in a bind. They can develop anti-racism in their curricula and institutional activities, they can counter-speak to racist messages (as they have done), and they can adopt and promote anti-racist messages. But under current doctrine, they cannot stop individual students from being racist and from saying racist stuff in public spaces. And they cannot design codes of conduct and anti-discrimination policies that can stop individual students from being racist and saying racist stuff. Athletes are developing their voices and discovering their leverage, which is a good thing and a long time coming. But that leverage and the university's desire to field a football team cannot compel the university to ignore the First Amendment.

Like the 1960s, this period of protest and change could be remembered as much for the First Amendment activities and developments as for Fourteenth or Fourth Amendment developments (ideally all three). But that is a two-edged sword--the First Amendment may impose a barrier to some of the broadest intellectual goals of anti-racism and the broadest desires of those who want to stop racism. Unless the pressure of this moment compels a change in free speech doctrine, which seems unlikely and would be unfortunate.

Posted by Howard Wasserman on June 26, 2020 at 05:29 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Saturday, June 20, 2020

No TRO/Injunction against Bolton book

Judge Lamberth denied the government request for a TRO and preliminary injunction stopping publication of John Bolton's memoir. The court found that the government is likely to succeed on the merits because Bolton "likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations." But the distribution process is so far along that the court refused to stop it. The court was especially reluctant to order Bolton to, as the government requested, "'instruct his publisher to take any and all available steps to retrieve and destroy any copies of the book that may be in the possession of any third party.'" As the court put it, "for reasons that hardly need to be stated, the Court will not order a nationwide seizure and destruction of a political memoir."

The government likely will appeal, but I cannot imagine the D.C. Circuit reaching a different conclusion in four days. The complaint in this case requested a constructive trust to seize proceeds from the book and there is noise about a criminal prosecution. Lamberth was confident that Bolton had opened himself to both of those.

Some passing thoughts:

1) Another entry in the standing makes no sense chronicles: After finding no irreparable harm, Lamberth pivots to standing, pointing out that he could "reframe" the irreparable-harm factor in the equitable analysis as the redressability factor in the Article III standing analysis, while declining to do so. But it illustrates, even in passing, how standing really is constitutionalized merits and thus unnecessary.

2) He also did not address any First Amendment prior-restraint issues, again because unnecessary given the equitable analysis.

3) The irony of Bolton (likely?) losing the proceeds of the book: He was criticized in anti-Trump circles for refusing to present this material to the House or Senate during the impeachment proceedings and for choosing instead to tell the story when it is too late to help the country and when it will put money in his pocket. It looks like he may lose the money.

Posted by Howard Wasserman on June 20, 2020 at 12:31 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Thursday, June 11, 2020

Second Lafayette Square Lawsuit

A second lawsuit has been filed over the clearing of Lafayette Square on June 1. Plaintiffs are three individuals who were at the protests and plan to protest in the future. They have the benefit of one additional week of presidential statements and other developments to support allegations of retaliation, viewpoint discrimination, and the unreasonableness of the use of force.

This complaint has another wrinkle: A claim for violation of the Posse Comitatus Act for bringing forth military police and national guard troops in clearing the park. They claim "a non-statutory right of action to enjoin and declare unlawful presidential action that is ultra vires," then seek damages, a DJ, and an injunction. This seems weak for three reasons: 1) Any implied injunctive right of action cannot support a claim for damages; 2) I am not sure how they can show damages from the violation of Posse Comitatus, which requires showing some incrementally greater injury from the fact that military personnel might have been involved in the injurious First and Fourth Amendment violations; and 3) It seems unlikely that Trump will try to use military force again--thris morning's tweets about Seattle notwithstanding, the military has pushed back on this. Still, it is a cute theory for public consumption.

Posted by Howard Wasserman on June 11, 2020 at 05:39 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, June 10, 2020

Testing fan speech

NASCAR has barred Confederate flags from races, events, or properties, including those displayed or waved by fans. But who owns and controls the various tracks? And if the government, what is the connection between the government and NASCAR and is there enough of a connection to make NASCAR a state actor and to trigger the First Amendment? This is the first instance in which a private professional league issued a blanket ban on fan expression.

Posted by Howard Wasserman on June 10, 2020 at 07:30 PM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Lawyers doing lawyering

Good legal work from lawyers for CNN and and NY Times calling out bad arguments. David McCraw of The Times has been down this road.

Posted by Howard Wasserman on June 10, 2020 at 04:27 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, June 08, 2020

Calling the NFL's bluff

Roger Goodell is an incompetent liar. So I hesitated to rejoice over his video from last week in which he said, among other things, "We, the National Football League, admit we were wrong for not listening to NFL players earlier and encourage all players to speak out and peacefully protest." It never mentioned the flag, kneeling, or Colin Kaepernick, so I wondered how much he was committing to and how much wiggle room he tried to leave the league and himself so as to avoid displeasing the President and a segment of the fan base.

We may find out. Just before midnight, the President* tweeted "Could it be even remotely possible that in Roger Goodell’s rather interesting statement of peace and reconciliation, he was intimating that it would now be O.K. for the players to KNEEL, or not to stand, for the National Anthem, thereby disrespecting our Country & our Flag?" Imagine the NFL returns and players kneel and the President and the Trumpier team owners object. I can envision Goodell insisting that he meant that players were encouraged to participate in the ongoing protests or to speak on Twitter and other outlets; he did not mean they were encouraged to bring it onto the field.

[*] Or someone working his account. The use of "intimating" suggests it was not the President himself.

Posted by Howard Wasserman on June 8, 2020 at 01:28 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, June 07, 2020

What does Cohen v. California clearly establish? (Updated)

The stories are confused and seem incomplete. But apparently the sheriff of Lowndes County, Georgia confiscated from a protester in Valdosta a sign reading "Fuck Trump." Georgia law prohibits profanity in the presence of children under 14. (Update: A woman was arrested for violating the law with a different sign the following day. The article indicates the sheriff intends to continue enforcing the law).

The enforcement of the ordinance violates the First Amendment. Profanity is constitutionally protected and, at least outside of sexually explicit material on TV, adult speech cannot be reduced to what is appropriate for children. So although the Georgia Supreme Court declared that law valid in 1973, it cannot stand under modern doctrine.

The question is whether the First Amendment right to display a "Fuck ____" sign is clearly established--the constitutional question is beyond dispute so no reasonable officer could have believed seizing this sign was constitutionally valid. Is this like Johnson and flag burning? Or might a court actually say a jacket in a courthouse is different from a hand-made sign at a protest rally where children might be present?

Posted by Howard Wasserman on June 7, 2020 at 11:17 AM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Friday, June 05, 2020

Last act of a desperate man (or first act of Henry V)?

Many have pointed to the differences in how police responded to the George Floyd protests compared with the anti-shutdown protests. It is especially glaring to see police respond with resistance, impatience, and ultimately often-discriminate force and arrests of largely peaceful Floyd protests on public parks and sidewalks, while calmly de-escalating or ignoring heavily armed people in paramilitary gear in a space (the halls of the statehouse) they did not have a right to be in. Photos and videos show the latter protesters being as shouty and as in the officers' faces. And there were more explicit threats of unlawfulness, given that some protesters had military-grade weapons and were threatening government officials. Yet police stayed calm, used little force, and made few (if any?) arrests.

This is not new. In January 2017 (boy, does that seem like decades ago), I wrote about the lack of force and arrests in the first women's march and the airport protests following the first Muslim Ban. At the time I wondered why--whether it was as simple as the race of the protesters (or at least the racial valence of the protests, since many of the protesters and victims of police violence have been white).

One commenter suggested that the subject of the protests mattered: Police do not remain neutral and play peacekeeper when they and their misconduct are the targets of the protests, as opposed to President Trump or governors and their shutdown orders. Events of the past two weeks support that idea. Police in Minnesota were loaded for bear from the outset, prepared for confrontation and looking to stifle the assembly, before anything turned violent and before it spread to other cities; when people in other cities began protesting, police started from a confrontational, escalatory pose with the goal of clearing the streets. We have seen little of the patience and leeway accorded to other protesters. Videos making the rounds show police looking for an excuse to get physical and, once things have become physical, to clear the crowd. One video from Seattle shows a bike officer riding on the sidewalk and trying to squeeze into a narrow space between a person and the pushes; when he and the citizen unavoidably bump, the cop uses that as an excuse to make an arrest. Videos I have seen from yesterday in Buffalo, Philadelphia, and elsewhere show police determined to clear a space and taking out anyone in that space, regardless of whether they are peaceful and whether they are doing anything wrong.

It is telling that we have seen so many incidents of indiscriminate, unnecessary, and arguably excessive police force in response to protests against excessive force by police. And it is significant that we have seen so many incidents of police force despite officers knowing they are being filmed by every protester with a phone, not to mention media covering these events. One explanation is that police do not care; they are confident that nothing in the videos will cause them to lose their jobs or their qualified immunity. Another is that they are, intentionally or not, asserting power by showing what real excessive force looks like--"stop crying or I'll give you something to cry about"--and proving the protesters' point.

A third, more speculative explanation is that we are at the end of an era, that significant changes to policing and police impunity are coming. And at least some officers are trying to get in their last shots before it is too late. I hope reform is coming.

Posted by Howard Wasserman on June 5, 2020 at 12:42 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink

Wednesday, June 03, 2020

CDT challenges social-media executive order

The Center for Democracy and Technology has sued President Trump over the social-media executive order. Amazingly, that was issued less than a week ago--remember when that seemed this administration's most significant threat to free speech?

The complaint alleges CDT's organizational standing based on its interests in furthering free speech and online expression and the resources it will have to devote to engaging and monitoring the administrative actions the EO calls for. It also lays the ground for third-party standing on behalf of Twitter and other providers, arguing that the President's past retaliatory actions against private companies may deter them from filing lawsuits. The First Amendment theory is that the EO was retaliatory against Twitter for the exercise of its First Amendment rights, making it "ultra vires and therefore void ab initio."

The organizational standing theory works, at least for the moment. While controversial, this is the same theory that human-rights, immigration, and refugee organizations used in the travel ban and similar cases. Courts do not seem ready to jettison the theory. I am less sure about third-party standing, because it is not clear that "fear of Trump criticism affecting our stock price" is a sufficient barrier to Twitter and other companies enforcing their rights.

But it seems to me that the action fails because, at this point, the EO does not do anything. A legal enactment (whether an EO, regulation, or statute) does not violate rights or cause injury (beyond chilling effect, which is insufficient); the enforcement of that enactment violates rights or causes injury. A court cannot erase an invalid EO any more than it can erase an invalid statute; it can only declare its invalidity and enjoin its enforcement.

The problem is that this EO alone does not do anything and there is nothing to enforce right now, thus it cannot violate rights, cause injury, or otherwise do something that a court can enjoin. The EO commands administrative action that might, when taken, violate the First Amendment, the APA, or some other statute (I have not seen anything to make me believe the FCC has authority to interpret or apply § 230). But we will not know whether those administrative actions cause injury or violate rights until they are taken. Same with the FTC and DOJ surveillance and information-gathering--until we see the form it takes, we cannot know whether it is lawful. That also seems to create a problem for the retaliation argument. If the FCC has authority to interpret § 230 and it comes up with a valid interpretation, the retaliatory motive does not render it unlawful, at least so long as the resulting regulation is not limited to Twitter.

The only question is whether this failure is treated as standing (no one has been injured because the government has not done anything), ripeness (the issues are not fit for judicial resolution), or as substantive First Amendment (nothing happened yet to violate the First Amendment). But, at this point, I do not see how this lawsuit succeeds against an EO that, for the moment, is for show.

Posted by Howard Wasserman on June 3, 2020 at 12:02 PM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Tuesday, June 02, 2020

Suing over Monday's crowd dispersal

Here is what we know happened around 6:35 p.m. Monday next to Lafayette Square: Federal law-enforcement officials threw something (dispute whether it was tear gas or a smoke bomb) and pushed throw to move the crowd out of the area. Prior to that point, the crowd was lawfully gathered in a space that has been held to be a traditional public forum, was engaging in peaceful expressive activity, and not engaging in unlawful conduct. Attorney General Barr ordered federal officials to move the crowd, so the space was clear for the President to have his photo opportunity in front of the church. This was captured live on TV, as well as recorded on numerous phones. Federal officials also moved church personnel off of church property through tear gas or other device, presumably at the AG's command.

It looks like a significant violation of the First Amendment. But:

• We do not know the individual officers who threw the smoke/tear gas and there were too many officers in the phalanx. I suppose video forensics and FOIA might be able to identify. But any lawsuit would involve many Doe defendants and discovery to determine their identities.

• The plaintiffs could sue the AG on the theory that he directly ordered the unconstitutional behavior. This runs into Abassi and Iqbal, which seemed to limit if not foreclose Bivens claims against high-ranking officials on a supervisory theory. This case is different than Iqbal in that the supervisory conduct was a direct order to engage in First-Amendment-violative conduct in a specific situation, rather than enactment of general policies, making the causal connection more direct. I doubt that distinction would fly.

• It is not clear there is a Bivens action for free-speech violations. SCOTUS has assumed it several times, while most circuits have held there is. The Court may say that this is a different context (First Amendment, presidential security, massive protests) and thus find special factors counseling hesitation (presidential security, high-ranking official, etc.).

• Barr and any individual officers can claim that the security concerns provide a compelling interest justifying clearing the public forum of peaceful protesters, although any compelling interest in clearing space for a photo opportunity is a weaker argument. The talisman of national security may be sufficient to defeat any substantive First Amendment right.

• Even if this conduct violated the First Amendment, any defendant is likely to get qualified immunity. There is no precedent that places "beyond doubt" that the First Amendment is violated by the use gas/smoke to clear out peaceful protesters in a period of massive demonstrations so the president can do a photo opportunity. There certainly is no precedent making it beyond doubt that it is a violation for the AG to do it. The Court pays lip service to the legal rule that precise precedent is not required and that a right can be clearly established as a matter of general principle, but recent cases have, in practice, found immunity in the absence of substantially similar precedent. The two cases (Hope and Lanier) that have found rights clearly established on general principles involved egregious facts and were two decades ago. Is "gassing peaceful protesters in a public forum to allow a presidential photo op" the equivalent of selling foster children into slavery (Posner's famous example)? Probably not.

• Because the facts are unique and the absence of precedent obvious, a court likely would not touch the merits and would grant qualified immunity.

• No plaintiff would have standing to obtain declaratory or injunctive relief. They could not show imminent injury because they could not show both a substantial (or at least reasonable) likelihood that they would protest again and that the AG or federal officials would repeat their actions.

As someone said on a list serv, I hate writing this. But it is the law that we have at the moment. Maybe this case illustrates the urgency of the Court doing something about qualified immunity, outside the Fourth Amendment context.

Posted by Howard Wasserman on June 2, 2020 at 06:56 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)