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 (1)

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)

Monday, June 01, 2020

"We have a different Court"

In an apparently unhinged Monday phone call with governors, the President urged states to enact new laws prohibiting flag burning. According to sources, the President said "We have a different court" and that "if you wanted to try a very powerful anti-flag burning law, we’ll back you.” (Not sure if that means the administration would not back a state that tried a moderately powerful law).

I know these are unserious ravings of an unserious person, but it does reveal how little he understands.

First, under judicial departmentalism, Trump's suggestion is lawful and consistent with his constitutional oath, as is action by any governor and legislature. If they believe these laws consistent with the First Amendment, they can act on that understanding.

Second, for what it is worth, new laws would be unnecessary in many states where anti-flag-burning laws remain on the books. They remain unenforced because state officials know what would happen if they tried.

Third, even if a logical solution to the problem of violent protests, it could not resolve the current situation (assuming these protests peter out after a few more days). Imagine a state enacted or announced plans to enforce a flag-burning law tomorrow. The law would be enjoined immediately by a district court and affirmed by a court of appeals, both bound by Johnson and Eichman. It would be awhile before it reached that "different Court." Alternatively, the right to burn a flag is one of the few clearly established rights, so no officer would attempt to enforce that law on pain of losing qualified immunity in a subsequent civil action.

But indulge the President's fantasies that "we have a different Court" (Kennedy was the last holdover from the Eichman Court) that would resolve the flag-burning question differently. Would it, writing on a clean slate? The Court has earned its reputation as extraordinarily speech-protective; no coherent theory of free speech can tolerate the viewpoint discrimination that would prohibit burning a flag in protest but allow wearing a flag as a shirt or altering a flag to create a different message. At worst, the Chief would join the liberals in another 5-4 decision. But Gorsuch appears as speech-protective as his former boss. Alito and Thomas have cited Johnson to support the principle of viewpoint neutrality (when other cases could have served the same purpose), which I would think they would not have done if they had the doctrine in their cross-hairs. Plus, this would provide an easy opportunity for Republican appointees to silence the "Court is political" voices by demonstrating that their jurisprudence does not inevitably and ineluctably lead to the Republican-preferred outcome. Justice Scalia got 30 years out of Johnson as pretty much the lone example of his originalism leading to a disfavored outcome. So perhaps the President is right--we do have a different Court and it would declare the law invalid by a 9-0 vote rather than a 5-4 vote.

Posted by Howard Wasserman on June 1, 2020 at 03:33 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Friday, May 29, 2020

The remedy to be applied (Updated)

At the risk of spending more time taking seriously something fundamentally unserious.

As I am coming to understand it, § 230(c) does two things. (c)(1) says the ISP or web site is not liable as publisher or speaker for third-party content in actions for defamation, invasion of privacy, etc. (c)(2) accords immunity for "good faith" actions in restricting access or removing material that it believes unprotected or "otherwise objectionable" (although I am not sure what cause of action exists for an improper takedown). The premise of the "policy of the United States" reflected in the EO is that companies that engage in content- or viewpoint-based takedowns engage in "editorial conduct" do not act in good faith, thereby a) removing (c)(2) immunity and b) rendering them publishers who should be liable as such. Neither of these can be squared with the statutory text.

But what about what Twitter actually did in this case--engaging in its own speech by slapping a label on the post or promoting contrary messages. Section 230 is silent as to an ISP engaging in its counter-speech to the content it allow on its site. But no one doubts that a private bookstore or newsstand could allow content while labeling it or organizing it in a way that expressed the owner's distaste for that content and that it could not be liable for such actions. So even if the EO could remove an ISP's protection (which it cannot), it cannot stop it from doing what it did here.

And many comments about all of this (tweets by Trump, Ted Cruz, etc.) are about how Twitter is violating the First Amendment by its own counter-speech, treating it the same as enforced silence. Putting aside that these are private companies, this is a perverse take on free speech.

Posted by Howard Wasserman on May 29, 2020 at 10:13 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, May 28, 2020

Thoughts on the Twitter EO (Updated to include final Order)

Thoughts on the final new EO.

1) It cites Packingham and Pruneyard to support the proposition that social media has become the "functional equivalent of a traditional public forum" and the "modern public square." But Packingham was a case about how social media is so important that government cannot prevent people from accessing it; it does not support the proposition that social-media companies are bound by the First Amendment. It studiously avoids Manhattan Community Access, which rejected the idea that opening a private space for speech (a bulletin board, open mic at a comedy club) subjected the owner to First Amendment limitations. And part of the rationale was that the Constitution does not "disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property." To the extent the EO commands the FTC to try to impose those obligations on social-media platforms (Twitter mentioned by name), it will run into that limitation.

2) The irony (perhaps intentional) is that the EO was prompted not by restricting speech, but by engaging in counter-speech--exercising its own First Amendment right to label something Trump posted as bullshit. Even if Twitter were somehow obligated to treat its platform the way government is supposed to treat the public square and not bar any protected speech, it cannot, consistent with the First Amendment, be prohibited from speaking in its own voice. So the Twitter conduct the EO aims to stop is not the Twitter conduct that precipitated the EO.

3) The EO's goal seems to be to impose the platform/publisher distinction onto  statutory language that does not create and cannot bear that distinction. Eugene Volokh explains the platform/distributor/publisher distinction and § 230 as it stands. He explains that § 230 gives social-media companies the immunity of a platform (e.g., telephone companies) even when it acts like a distributor (e.g., a bookstore or newsstand). Congress could change that, but has not. The EO attempts to impose that interpretation as executive-branch policy, but I am not sure the text can bear it. I leave to others to parse this out.

4) To relate this to Adam's various posts, the EO and the discussion around § 230 reflects the conflation of descriptive and normative arguments, of "is" and "should." The EO argues that any "editorial conduct" makes the entity a publisher and outside the protection of (c)(1) and (c)(2). But that is not what the statute, as it is written, says or means. As Eugene argues, it could have said it and it could be amended to say it. In others, maybe Twitter "should" lose immunity and the law should be written to do that; under the law as it "is," Twitter does not lose immunity.

5) It is not clear what practical effect the EO has. It seems to want the FTC and FCC to undertake regulatory activities that neither may have the power to take in an area that typically is not subject to agency action. Section 230 immunity arises when a service is sued for defamation or for an improper take-down; neither of those has anything to do with the agencies. It prohibits federal spending on misbehaving sites. It seems to want the FTC and state AGs to consider unfair/deceptive trade practice proceedings against sites for controlling content, but that would seem to run into some First Amendment problems.

6) The press is going to spend the next several days talking about the this and not the 100,000 dead Americans. So this is more shit flooding the zone.

Update: I agree with the general consensus that, while this will have no legal effect, it will make life difficult and annoying for Twitter, under the threat of the federal government (including a corrupt AG) watching them and their users. Which is the point.

Posted by Howard Wasserman on May 28, 2020 at 01:33 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Sunday, March 29, 2020

L'état, C'est Trump

"When they disrespect me, they're disrespecting our government."

Put aside that the First Amendment exists so people can disrespect the government. The President--or any government official--is not the government and the two should never be conflated.

Posted by Howard Wasserman on March 29, 2020 at 07:45 PM in First Amendment, Howard Wasserman | Permalink | Comments (9)

Tuesday, March 03, 2020

The procedure of frivolous political defamation actions

The Donald Trump Campaign today sued the Washington Post in the District of D.C. over a June 2019 column by Greg Sargent. This follows the campaign's suit in New York state court against The New York Times. Meanwhile, Devin Nunes is up to seven lawsuits against various persons, bovines, and business entities.

This rash of lawsuits has many First Amendment advocates calling for more states and the United States to enact anti-SLAPP statutes. These suits represent the modern analogue to Southern officials' defamation campaign against northern media outlets in the 1950s and '60s. But I have been slow coming to the "anti-SLAPP is necessary" position; if the protections of New York Times were sufficient to stop the barrage 60 years ago, they should be sufficient now.

The answer comes from the latest episode of the All the Presidents Lawyers podcast. First Amendment advocate Ken (Popehat) White explains that the purpose of these lawsuits is not to win, because most of the suits are garbage under NYT and the plaintiffs and their lawyers know that. Rather, the purpose is to drag people into court and impose the time, burden, distraction, and cost of having to defend themselves, with the added benefit that it may make people and the press less willing to criticize these people. In theory, only an anti-SLAPP law--with its attorney's fees provision and expedited dismissal--addresses that problem. The alternative (in federal court) is sanctions under FRCP 11 and attorney's fees against counsel under § 1927. But courts may be reluctant to impose sanctions against a congressman, president, presidential campaign, or other powerful and famous plaintiff--especially to award attorney's fees as a sanction, which is the way to address the financial cost to the plaintiff that the lawsuit is intended to impose. Perhaps Nunes' seven nonsense lawsuits would indicate a sufficient pattern that a judge might find attorney's fees necessary for deterrence of client and attorney. But not in the mine run of cases.

Some commentators have suggested that the availability of an anti-SLAPP statute affects litigation choices. Nunes sued Twitter (a California company) and McClatchy Newspapers (publisher of the Fresno Bee) in Virginia, which lacks a strong anti-SLAPP law, rather than California, which has one. Both courts have declined to dismiss for lack of personal jurisdiction, with analysis revealing confusion over the newly narrowed scope of general jurisdiction. Some commentators have suggested that the choice of forum (federal over state court) or the choice of parties depends on whether the federal court would apply the state's anti-SLAPP law.

But we should be more nuanced on the question of anti-SLAPP laws in federal court. I have argued that the special SLAPP motion should not apply in federal court (the position of the D.C. Circuit, in which the new Trump Campaign action was field), because FRCP 12 and 56 cover the issue. (And a 12(b)(6) dismissal, in which the court considers whether the statements as pleaded are opinion, can get the defendant out of the case quickly enough). By contrast, the SLAPP attorney's fees provision should apply in federal court. Under the "relatively unguided Erie analysis," not applying the fee provision would cause a plaintiff to choose federal over state court and the attorney's fee provision is bound up with substantive state policy concerns for protecting the free speech rights of its citizens. If the real concern is the cost of having to defend even a nonsense suit, an attorney's fee provision addresses that.

Finally, it is notable that the Trump Campaign, rather than Trump, brought these two suits. I am not sure how the campaign can claim injury from statements about Trump. One commentator suggested the Campaign sued to get the WaPo case in federal court. The Campaign is a Virginia corporation with its principal place of business in New York; Trump, the commentator implies, is a D.C. domiciliary and thus not diverse from the Post.

This returns us to Where In the World Is Donald Trump? Trump was a New York domiciliary prior to January 20, 2017. In October, he (and Melania) renounced his New York citizenship and filed a Declaration of Domicile in Palm Beach County, Fla., establishing Mar-a-Lago as their permanent residence. Trump thus appears to be a Florida citizen--he has a residence there and expressed his intent to remain. Although Trump resides in D.C., he has not manifested an intent to remain there (unless he manages to get Republicans to repeal the 22d Amendment). So it is wrong to say the case could not be in federal court were Trump the named plaintiff--it would be an action between a citizen of Florida (alone or with a citizen of New York/Virginia) and wherever the Post is.

On that point, this case offers a different procedural lesson, because plaintiff counsel screwed up the jurisdictional statement with respect to the Post. Paragraph 10 reads:

On information and belief, defendant WP Company LLC d/b/a The Washington Post is a District of Columbia limited liability company with its principal place of business in Washington, D.C.

An LLC is a citizen of every state in which one its members is a citizen. So identifying an LLC as a party cannot establish jurisdiction because the LLC has no independent citizenship; you have to dig into the LLC's structure to identify individuals or corporations whose citizenship does not depend on someone else. Plaintiff did not bother doing that. I assume that some digging will lead to Jeff Bezos, who is a citizen of Washington state and/or some D.C. corporation. But the complaint, on its face, does not establish federal jurisdiction. And reflects the sort of bad (or disinterested) procedural lawyering I warn my students about. Curious if the Post will raise that or move on, knowing what jurisdictional discovery would reveal about its structure.

Posted by Howard Wasserman on March 3, 2020 at 04:35 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Thursday, February 27, 2020

Criticizing basketball ref is protected speech

The Sixth Circuit on Thursday issued the opinion (by Judge Sutton) in Higgins v. Kentucky Sports Radio, holding that talking about sports, including criticizing officials, constitutes speech on a matter of public concern and thus could not be the basis for liability in the absence of the intent necessary to constitute incitement. (I wrote about an exchange during oral argument).

It is a great opinion by Sutton. It includes quotation from Gen MacArthur about protecting American freedoms such as "the freedom to boo the umpire." Saying that talking about sports represents speech on a matter of public concern is important to my ongoing project about fan expression. If talking about the game, including the refs, is protected on radio and the internet, it should be protected in the bleachers.

Posted by Howard Wasserman on February 27, 2020 at 04:38 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, February 26, 2020

YouTube not a state actor (Updated)

When SCOTUS decided Halleck last term and held that a private company managing public-access cable channels is not a state actor, it was obvious that this meant online platforms such as YouTube or Twitter were not state actors. And so the Ninth Circuit held on Wednesday in PragerU v. Google, a challenge to YouTube policies restricting or demonetizing certain videos. The court rejected the argument that YouTube performed a traditional-and-exclusive public function in managing a speech forum (the argument rejected in Halleck) or that YouTube's public declaration that it is committed to free expression changes its private nature.

This was easier than Halleck. There was something to the position that Justice Sotomayor took in her Halleck dissent that it was a delegation case rather than a public-function case--the government took on a responsibility then delegated it to a private entity. YouTube is an electronic version of the private comedy club discussed in Halleck.

This part of the opinion ended on an interesting point, telling everyone, in essence, to calm the f*&^ down:

Both sides say that the sky will fall if we do not adopt their position. PragerU prophesizes living under the tyranny of big-tech, possessing the power to censor any speech it does not like. YouTube and several amicus curiae, on the other hand, foretell the undoing of the Internet if online speech is regulated. While these arguments have interesting and important roles to play in policy discussions concerning the future of the Internet, they do not figure into our straightforward application of the First Amendment.

Posted by Howard Wasserman on February 26, 2020 at 06:00 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Friday, January 31, 2020

Appellate argument (and law school), encapsulated (Updated)

From the Sixth Circuit argument in Higgins v. Kentucky Sports Radio, a lawsuit brought by a college referee who was attacked online by Kentucky basketball fans (particularly through harassing phone calls and negative reviews of his roofing business) following some controversial calls in a game UK lost. The defendants are the radio station and announcer who reported on and promoted the efforts, in a way the plaintiff alleges constitutes incitement and conspiracy to defame. (H/T: Regular reader and commenter Asher Steinberg).

In an argument that otherwise went well for the radio station, I loved this exchange (around 19:00) between the station's attorney and one judge (not sure who turns out to have been Judge Sutton), when the judge asked whether a more direct instance of incitement would have survived 12(b)(6):

Attorney: Your Honor, I'm hesitant to comment on hypotheticals. The point is that is not this case.

Judge Sutton: OK, wait. I hate to break it to you, particularly with some law students here. That is all we do. *** You want to win for your client today. And we do not want to issue a ruling that we will have to denounce tomorrow for the next case.

Posted by Howard Wasserman on January 31, 2020 at 08:33 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Thursday, January 16, 2020

Universal consent decrees

Two U Conn students who were prosecuted and sanctioned by the university for violating the school policy against "disruptive behavior" for uttering a racial slur have filed suit in the District of Connecticut, claiming the school sanctions violate the First Amendment. (H/T: Eugene Volokh). The case should be easy as a First Amendment matter--the students seem to have shouted the slur into the ether, not directed at anyone and not accompanied by any threatening conduct.

But it is procedurally interesting, potentially complicated, and seemingly wrong. After the jump.

In 1990, U. Conn. entered a consent decree in a lawsuit brought by a then-student named Nina Wu, who was sanctioned for saying "no homos" on a board on her dorm-room door. The consent decree permanently enjoined U. Conn. from enforcing a provision of its student code "against this plaintiff or any other student." This is a universal injunction, protecting the universe of U. Conn. students (or it is at least non-particularized). I would argue the court cannot and should not issue such an injunction. The completeness of Nina Wu's remedy is unaffected what might happen to do students 30 years later--that is, students who were not born at the time of the injunction. On the other hand, U. Conn. could have entered the consent decree with Wu, then voluntarily altered its conduct and declined to enforce the provision against any other student (which is what usually happens). But this case offers a third option--U. Conn. voluntarily bound itself to non-enforcement as to non-parties as a matter of an enforceable judicial order. Can a defendant do this? Can the court do it if the defendant agrees? Can a court enforce it as it would a properly scoped injunction?

The plaintiffs frame their case, at least in part, as an attempt to enforce the consent decree. They allege in ¶ 8 that they have standing to enforce the decree because of its stated scope. But then the procedural posture makes no sense--why (and how) can a plaintiff file a new lawsuit to enforce a judgment in a different action, even if in the same district and assigned (under a local related-case rule) to the same judge. It seems to me that the proper course have been to move to intervene or join as plaintiff in Wu and to move the court with jurisdiction over the injunction to enforce or modify. Filing a new lawsuit before a new judge is proper if asking for a new injunction protecting these plaintiffs as to these defendants.

Posted by Howard Wasserman on January 16, 2020 at 04:47 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, January 12, 2020

What we mean by one-sided

Reviews for the documentary "No Safe Spaces"--an exploration featuring Adam Corolla and Dennis Prager of anti-conservative speech restrictions on college campuses--have divided along expected partisan lines. Conservative publications praise it for exposing anti-conservative-speech biases on campus, liberal publications decry its one-sidedness in criticizing campus liberals as censorious, without considering the problems that racist, sexist, etc., speech causes on campus.

This column is the first I have seen calling the film out for a different one-sidedness: Not engaging with equal-and-opposite efforts by conservative groups and leaders--including the President--against liberal speech. The author labels this "free-speech tourism," waving the banner of free speech when their political compatriots are attacked, while seeking to impose similar restrictions on speakers they find political objectionable. Thus, the film celebrates supposed free-speech champions who have called for de-platforming of liberal speakers and have sued critics on specious defamation claims. In an interview described in the piece, Corolla pleaded ignorance to censorship efforts from the other side, which should show a lack of seriousness or understanding of the project.

The combination of this column and left-leaning criticism of the film reveals where we are: Much of the right is not serious about its First Amendment advocacy, while much of the left does not want to talk about, or use, the First Amendment.

The piece closes on a nice point about free speech:

The doc's inability to grapple with growing animosity toward free speech on both sides of the political aisle shows just how hollow these concerns among conservative "free-speech tourists" are. * If you don't call out your own side or loudly defend the First Amendment rights of your political enemies, you're not a free-speech warrior. You're a free-speech tourist.

Posted by Howard Wasserman on January 12, 2020 at 04:09 PM in First Amendment, Howard Wasserman | Permalink | Comments (3)

Thursday, December 12, 2019

Jewish-as-race-or-national-origin

I have not weighed in on the dispute over the administration's new order on anti-Semitism and Title VI. I do not like the new regs in my guise of free-speech advocate, because it appears to have potential to incentivize schools to restrict a lot of protected speech (including naked anti-Semitism) for fear of losing federal dollars.

But I do not understand the supposed apprehension that David Schraub describes: Jews do not want to be described as having a distinct national origin because it highlights "otherness," non-Americanness, and the historic charge of disloyalty. Schraub argues that "[i]f Jews are deemed “just” a religious group, then they are not covered by Title VI. Publicly funded programs, under this view, could discriminate against Jews with impunity." But this is incomplete. Schraub ignores the word "race" in Title VI, which seems to capture Jews without having to get into existential debates about nationality and the disloyalty they imply. SCOTUS has held that Jews are protected under § 1982 and Iraqi-born Muslims under § 1981. Lower courts have relied on that case law to hold that Jews are protected as a racial group (defined by "ethnicity and ancestry") under Title VI and Title VII (although other courts disagree). The point is that reading Title VI to protect Jews is neither unusual nor dangerous.

Posted by Howard Wasserman on December 12, 2019 at 07:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (5)

Monday, November 25, 2019

Eric Rasmusen, IU, and the First Amendment

For those who missed it, Indiana-Bloomington Provost (and law professor) Lauren Robel issued a public statement excoriating business professor Eric Rasmusen's publicly expressed views about women, racial groups, LGBTQ people, and others, while insisting that the First Amendment prevented the school from firing the tenured professor. The school did prohibit Rasmusen from teaching single-section required courses and imposed special blind-grading obligations. Rasmusen has responded. Many, such as Gregory Magarian (Wash. U.) on the blog Lawyers, Guns, and Money saw this as counter-speech in action. Brian Leiter doubts that a university administrator should comment on a faculty member's speech--he argues Robel should have stopped at "the First Amendment protects this speech, Rasmusen does not speak for IU, and we are monitoring to ensure compliance with anti-discrimination laws. Josh Blackman questions whether there is a First Amendment difference between firing a professor and hampering his teaching by reducing the size of his classes--either is a sanction imposed because of his speech.

On a different note, the Magarian interview is interesting as a wide-ranging discussion of where the First Amendment is trending. Note particular his discussion of Citizens United as not quite the bogeyman everyone says.

Posted by Howard Wasserman on November 25, 2019 at 10:59 AM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Saturday, November 23, 2019

Protesting Harvard-Yale (Updated)

Yale_Harvard_Protests-e1574537307629The second half of the Harvard-Yale Game was delayed for 48 minutes when students from both schools rushed the field to stage a climate-change protest calling for both institutions to divest from oil, gas, and other energy investments. Many protesters eventually left the field, while the last stragglers were escorted by police; I do not know how many students were arrested. [Update: This report says 42 students were charged with misdemeanor disorderly conduct]

Just to be clear (and putting state action to one side);

• The students should have been untouchable had the protest remained in the stands. While climate change has nothing to do with football, chanting and displaying signs about divestment is not inconsistent with cheering and displaying signs at a football game.

• The students were properly subject to arrest (reports suggest some wanted to be arrested). While engaging in expressive behavior, they did so in a place they had no right to be. This is civil disobedience--breaking the law, and accepting the consequences, to draw attention to the cause and the protest.

• This demonstrates why politics and speech are inseparable from sports. No one would be talking about a few hundred Ivy League students protesting climate change in the middle of campus. The protest now is a national story. And it is part of the story of a great football game--Yale won 50-43 in Double-OT, staging a late-game comeback, clinching the victory in darkness (no lights at the Yale Bowl), and claiming a share of the Ivy League title.

Posted by Howard Wasserman on November 23, 2019 at 04:45 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, November 12, 2019

Daily Northwestern gets pummeled--some thoughts (Updated)

I am a graduate of Northwestern's Medill School of Journalism, although I never worked at The Daily Northwestern and never pursued journalism as a career. I am following and interested in the scorching negative reaction to the paper's apology for its coverage of a campus speech by Jeff Sessions last week, at which protesters gathered outside and some protesters attempted to force their way into the lecture hall, where they were confronted and restrained by campus police.

It appears the paper overreacted and that its reporting, including the photographs it took and posted online, followed appropriate journalistic standards. It also appears that some of the sharp reaction to the apology reflects the "these damn snowflakes" annoyance with millenials, such as the paper's suggesting that it harmed and "retraumatized" student protesters by reporting on them (which is what the protesters seem to charge). And the paper seemed to be motivated by the possibility that its photographs and reporting could be used as a basis to identify and sanction student protesters--Northwestern does not provide amnesty for protesters who violate university rules (such as sneaking into the reserved lecture hall) and students are not excused from attendance policies because they were out protesting.

On the other hand, I would like to see more criticism of NU President Morton Schapiro, who uttered the following (according to The Daily) in a speech he gave to visitors over parents-weekend (my friend whose kid goes to Northwestern did not attend the speech).

Although Schapiro said he supports Sessions’ right to speak on campus and NUCR’s right to invite him, he questioned whether the former attorney general was “the right speaker” for NU. He said that on a campus as liberal as Northwestern’s, there is little opportunity to share conservative thought in a way that starts dialogue.

Schapiro — who said he is personally “not a fan” of Sessions — said NUCR missed a chance to do so by inviting him rather than a different conservative speaker.

“They had an opportunity and they didn’t use it,” he said. “All it was was polarizing. All it was was making the campus more unhappy. All it did was blow up and make things even worse.”

I await Schapiro's list of conservative speakers who would be "right" for NU, sharing conservative thought in a way that starts a dialogue but that does not make the campus unhappy. Say what you will about Sessions--and he apparently criticized the protesters in his speech, while paying lip service to freedom of speech. But Sessions was Attorney General of the United States and compared with the current occupant of the office, he looks like Nicholas Katzenbach. So what speaker would have been more acceptable to this crowd?

Finally, a thought on civil disobedience. Part of the debate is whether students should be sanctioned for breaking rules or obligations when protesting--skipping class to attend the lecture, sneaking into the closed hall in an attempt to interrupt Sessions' speech, etc. NU does not excuse such violations, taking the position that there are trade-offs and that students must make choices and bear responsibility for their actions. The Associated Student Government called on the university to change those policies, at least for "students with marginalized identities."

It seems to me the dispute here is over what civil disobedience means. NU students (the protesters, the ASG, the Daily editors) appear to believe that there is a free-speech opt-out from the rules--that if you are protesting, then university rules about attendance or closed spaces do not apply. But the idea of civil disobedience is that you peacefully violate a law--and accept the consequences for that violation--to call attention to the injustice of that law or something else. There is no right to interrupt the speech within the reserved hall; if you believe it is important to interrupt anyway, civil disobedience means you will do it anyway--and you accept the consequences.

The fascinating thing is how much has changed in 30 years. I would not have described NU as a particularly liberal place when I was there.

Update: A statement from Medill Dean Charles Whitaker. It is a strong statement that: Defends the Daily's coverage of the protests as consistent with journalistic standards; takes student activists to task for threatening paper staff and insisting that journalists should not have covered disadvantaged communities in a public protest; criticizes the editors for apologizing which, while well-intentioned, sends a chilling message about journalism; and calls on angry alums to give them a break, reminding them that these are students who are learning and dealing with a unique firestorm.

Posted by Howard Wasserman on November 12, 2019 at 06:52 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Monday, November 11, 2019

John Oliver on SLAPP suits

John Oliver's Last Week Tonight did a long piece on SLAPP suits, including his experience as the target of one by coal baron Bob Murrary in state court in West Virginia (a state that lacks a SLAPP suit). And Devin Nunes sued Twitter in Virginia (which refused to dismiss) because its SLAPP statute is weaker than the one in California (the natural forum for that suit). The video is embedded after the jump.

The piece is funny, although too simplistic in a blanket call for statutes with a call for coordination. A federal statute cannot define the pleading standard in state court, although it perhaps could require attorney's fees.* So a federal statute would not have jelped State statutes cannot define the pleading standard in federal court (the subject of a circuit split, where the "does not apply" position seems to be winning) but can require attorney's fees in federal court.

[*] This would be an interesting § 5 question. Are procedural protections such as a pleading standard and fee-shifting congruent-and-proportional to protecting the First Amendment rights of the targets of these suits?

Also, the show missed a great irony. It discussed a $ 5 billion SLAPP suit that Trump brought against journalist Bob O'Brien, admittedly for the point of hurting O'Brien. But the story did not mention that Trump prevailed in the Stormy Daniels lawsuit--a suit designed to criticize the President of the United States--under California's SLAPP law and recovered six-figures in attorney's fees.

 

Posted by Howard Wasserman on November 11, 2019 at 07:00 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Saturday, October 26, 2019

Baseball and politics, again

The Astros win in Game 3 last night means there will be a Game 5 in Washington Sunday night, which means a game attended by President Trump (although not to throw out the first pitch).

Question to watch: Will fans boo trump, chant "impeachment" or "Ukraine," or otherwise criticize the President? And how will MLB and the Nationals respond?

Update: MLB Commissioner Rob Manfred golfed last week with Trump and Lindsey Graham. I think I have my answer to the third question.

Posted by Howard Wasserman on October 26, 2019 at 02:03 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (1)

Tuesday, October 15, 2019

LeBron James: Shut up and make trades

You would think that LeBron James--who has used his expressive platform more than most mega-stars and has been told on more than one occasion to "shut up and dribble"--would support an NBA colleague attacked for doing the same. You would be wrong.

Everything LeBron said could have been (and has been) applied to his statements on subjects such as Black Lives Matter, police violence, the killing of Eric Garner, etc.: 1) Morey was not educated on the subject (Taiwan Hong Kong) about which he spoke (while admitting it was just his "belief" that Morey was not informed); 2) people could be harmed as a result of his speech; 3) bad things can happen from the exercise of free speech and you cannot think only of yourself when deciding what to say, on or off Twitter. Ironically,the Morey tweet was supported people protesting in favor of democracy and who were subject to police violence--the very ideas James purport and support in his speech.

Posted by Howard Wasserman on October 15, 2019 at 07:10 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (3)

Sunday, October 06, 2019

So glad sports are not political

Houston Rockets GM last week tweeted "Fight for Freedom. Stand with Hong Kong." This pissed off Rockets owner Tilman Fertitta, who insisted that Morey does not speak for the Rockets, which is a "non-political organization," although Fertitta regularly publicizes his support for the Bushes and President Trump. Morey's tweet caused the Chinese Basketball Association, headed by former Rocket star Yao Ming, to suspend cooperation with the Rockets following Morey's "'improper remarks regarding Hong Kong' to which it expressed its 'strong opposition.'" The NBA, trying to save its business interests, responded with the following word salad:

We recognize that the views expressed by Houston Rockets general manager Daryl Morey have deeply offended many of our friends and fans in China, which is regrettable. While Daryl has made it clear that his tweet does not represent the Rockets or the NBA, the values of the league support individuals' educating themselves and sharing their views on matters important to them. We have great respect for the history and culture of China, and hope that sports and the NBA can be used as a unifying force to bridge cultural divides and bring people together.

The ESPN story highlighted the league trumpeting the "open flow of ideas," although those words appear nowhere in the NBA statement and the reaction by the Rockets owner, the CBA, and the NBA all seem to reflect a desire to staunch the flow of ideas, since the premise of every reaction is that Morey was out of line to tweet a political opinion. Plus, in what universe is a statement in support of people protesting freedom "regrettable"? And who was "deeply offended," besides the leaders of an authoritarian state that is the target of pro-western protests?

Posted by Howard Wasserman on October 6, 2019 at 10:03 PM in First Amendment, Howard Wasserman | Permalink | Comments (8)

Saturday, August 24, 2019

More on SLAPP laws in federal court

The Fifth Circuit on Friday held that Texas's SLAPP law does not apply in federal court on diversity, following the (correct) analysis from the D.C., 10th, and 11th Circuits that the state law conflicts with FRCP 12 and 56 by adding an additional hurdle to trial. This decision complicates the circuit split because the 5th Circuit had held in 2009 that Louisiana's SLAPP law applies in federal court. The panel held it was not bound by circuit precedent. It was pre-Shady Grove, which the panel says sharpened the proper analysis. And the Texas law is different than the Louisiana law; the latter uses standards that look like summary judgment, while Texas imposes higher standards that more "manifest[ly]" conflict with the Federal Rules.

I doubt this will be the case on which SCOTUS will resolve the question, at least not immediately. The first move will be en banc reconsideration on the Fifth Circuit to resolve its internal split.

My conclusion on the overall Erie question is that the "special motion" provisions should not apply in federal court but fee-shifting provisions should. The question is whether that sufficiently protects free-speech interests, by allowing litigation to last a bit longer (until the protections of NYT can do their work in an appropriate case), but allowing the defendant to recover attorney's fees, which recoups the defendant's major financial burden.

Posted by Howard Wasserman on August 24, 2019 at 11:26 AM in Civil Procedure, First Amendment, Judicial Process, Law and Politics | Permalink | Comments (2)

Thursday, August 22, 2019

Popehat on free speech

Ken White (a/k/a Popehat), a criminal-defense and First Amendment lawyer, has a piece in The Atlantic exposing free-speech cliches. He is spot-on, as always.

Posted by Howard Wasserman on August 22, 2019 at 03:07 PM in First Amendment | Permalink | Comments (2)

Tuesday, August 20, 2019

MLS bans "political" signs

Deadspin destroys MLS's policy prohibiting "Using (including on any sign or other visible representation) political, threatening, abusive, insulting, offensive language and/or gestures, which includes racist, homophobic, xenophobic, sexist or otherwise inappropriate language or behavior." The league and teams have interpreted that language to prohibit signs protesting racism, fascism, etc., as well as signs using racist language.

The question should be who owns the stadiums MLS teams play in and the terms of ownership and operation of these facilities. If they are publicly owned and leased to the teams or if there is a substantial public involvement in the financing, building, and operation, it might trigger arguments that MLS teams act under color of state law and thus are bound by the First Amendment. A ban on political signs in a public space opened for expression should not survive constitutional scrutiny. Particularly where, as the Deadspin piece argues, MLS has encouraged "European-style, community-minded soccer fandom," where fandom and expression about community matters (beyond the team) are intertwined.

Posted by Howard Wasserman on August 20, 2019 at 10:23 PM in First Amendment, Howard Wasserman | Permalink | Comments (4)

N.C. Court blows the mulligan

I was right that the withdrawal of the original opinion in the "flip-off-the-cop" case could have been for the majority to find a new basis to justify the traffic stop without having to accept that flipping the officer off was constitutionally protected. Which it did, although now with a dissent.

The court does recognize case law (it somehow missed the first time around) that the finger is protected and less likely to constitute fighting words when directed at an officer. But the  majority offers a new theory: The officer could not tell who the defendant was flipping-off: the officer (which would be constitutionally protected speech) or another driver (which somehow would not be; if the latter, the officer could have believed that the situation between the defendant and the other driver was "escalating" and, if left unchecked, might have become disorderly conduct. Importantly, the officer needed only reasonable suspicion, not probable cause, to make the initial stop and determine if the defendant was trying to provoke another motorist.

The dissent calls out the majority for, essentially, making up facts. The officer testified that he saw the driver wave at him, then turn the wave into the middle finger directed at him; there was no testimony about the situation escalating or about concern for a gesture at another car. The dissent insists that flipping a middle finger is protected by the First Amendment and thus cannot provide reasonable suspicion. Although he does not say it, that should be true regardless of at whom the gesture was directed.

Posted by Howard Wasserman on August 20, 2019 at 01:51 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, August 17, 2019

Hit Man Podcast

iHeart Radio has a new podcast titled Hit Man. It tells the story of the book "Hit Man: A Technical Manual for Independent Contractors," the murder it supposedly inspired, and the lawsuit against publisher Paladin Press, in which the Fourth Circuit held that the book was not entirely protected by the First Amendment under Brandenburg. Also worth reading is Eugene Volokh's Crime-Facilitating Speech, which sought to develop a speech-protective framework for speech that provides information that can be used for bad purposes but that does not incite or advocate (under which I believe the book would have been protected).

It is in eight parts. The first episode, giving some background to the book, was quite enjoyable.

Posted by Howard Wasserman on August 17, 2019 at 11:18 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, August 15, 2019

N.C. court recalls opinion on the bird (updated)

Earlier this month, the North Carolina Court of Appeals held that flipping-off a police officer provided probable cause to conduct a traffic stop; it was a "rude, distracting" gesture that could cause a reasonable officer to believe a crime was being committed, such as disorderly conduct. This opinion was inconsistent with federal courts that have held that it is clearly established that flipping the bird is protected by the First Amendment. I did not blog about the case, but I had some interesting email exchanges about the case, including how it interacted with last Term's Nieves v. Bartlett.

Today, the court of appeals withdrew the opinion, with the panel retaining jurisdiction to dispose of the case. No idea what that means. It could mean a majority will hold that the officer lacked probable cause to stop the case. Or it could mean a new opinion finding a basis for probable cause that does not involve constitutionally protected expression.

While this is good for the First Amendment, it is hard not to wonder how much the universal derision the opinion received on the interwebs affected the judges and their decision to reverse course (as to reasoning if not result). And it is hard not to think that this is not a good thing for the judicial process. There are processes in place for reconsidering a decision. Those processes should not involve Twitter.

Update: I was briefly Twitter-famous last week (despite not being on Twitter) when people found this post and criticized me for "bemoaning" the restoration of rights caused by Twitter saying mean things about the decision. Other then piled on to suggest I was trying to take away their right to criticize the government. And one commenter here--in a more-thoughful and less-character-constrained way--suggested that sometimes this is necessary, if imperfect, to snap courts out of the assumption that every case is the same and routine.

I see the latter point. But if rights can  (in a tweeter's view) be "restored" by Twitter pressure on a court, then rights can be taken away by Twitter pressure on a court. I cannot remember the judge or the case. But in 1995, a judge in the S.D.N.Y.  suppressed evidence in a criminal case, saying that a person running upon seeing a police officer does not give probable cause to stop, because people of color in New York have learned from experience not to trust the police and to avoid all interactions. The judge was lambasted and threatened with impeachment; he withdrew the opinion (not sure if it was in response to a motion to reconsider) and held the search was valid. Imagine the Twitter response, had it existed.

Posted by Howard Wasserman on August 15, 2019 at 01:11 PM in First Amendment, Howard Wasserman | Permalink | Comments (4)

Monday, August 12, 2019

Protest (and be punished) like it's 1968

At the Pan Am Games, fencer Race Imboden knelt on the gold-medal podium during the anthem and hammer-thrower Gwen Berry raised her first. Both face sanction, because not much has changed since 1968. The U.S. Olympic and Paralympic Committee offered this internal contradiction: "Every athlete competing at the 2019 Pan-American Games commits to terms of eligibility, including to refrain from demonstrations that are political in nature,” although "[w]e respect his rights to express his viewpoints.” No, you clearly do not respect his rights to express his viewpoints when those viewpoints are political in nature. Because standing at attention during a national anthem while playing "for your country" is never political.

The USOPC (did not realize the "P" had been added) is not bound by the First Amendment and can restrict athlete speech however it wishes. But do not pretend that you also respect the athletes' rights to express their views.

Posted by Howard Wasserman on August 12, 2019 at 09:39 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (7)

Saturday, August 10, 2019

"The Grievance Studies Affair," purpose, and result

FIRE's So to Speak podcast interviewed the three authors (Jim Lindsay, Helen Pluckrose, and Peter Boghossian, the latter of whom is on the faculty at Portland State) behind the "Grievance Studies Affair." The three wrote and submitted a series of papers designed to show that certain humanities disciplines, which they call "grievance studies," lack scholarly rigor and feature a broken peer-review process. Seven papers were accepted, four were published, and seven were still in play when everything was exposed last fall. Boghossian was sanctioned by his university (subscription required) for failing to obtain IRB approval for a study on human subjects (the editors and reviewers who read the papers).

Critics of the the authors and their hoax accused them of  trying to get people fired and departments shut down, comparing them with Hungarian Prime Minister Viktor Orban's efforts to ban gender studies at Hungarian universities. The authors reject this criticism; they insist they respect academic freedom and did not want to see anyone fired or any departments closed. Instead, they hoped universities would use the information they exposed to recognize the defects in these fields and thus discount scholarship in these fields and these journals when making tenure and hiring decisions.

But what is the difference between people being fired and people being denied tenure or not hired? The result is the same--scholars who publish this stuff in these journals should not be working as professors in these universities. And if these departments cannot (or should not) hire these scholars, the departments will close. The difference is motive. Orban want to control what academics write and wants to close gender studies because of political and ideological objections to the field; Lindsay, Puckrose, and Boghossian want these journals to do better in their peer-review and publication decisions and want these scholars to do better in their research and writing. One opposes academic freedom; the other protects academic freedom by ensuring that a university is place of intellectual rigor and serious truth-seeking--that academic freedom serves its purpose.

So Lindsay, Puckrose, and Boghossian would like certain people not to have jobs in academia--those who write what they believe (and what they believe they have proven to be) poor scholarship undeserving of publication and tenure. They claim to have a good reason for that goal and we can debate the means and ends (I am largely agnostic over the whole thing). But it is disingenuous to suggest that lost jobs and empty departments are not the logical conclusion of what they believe they have shown and what should happen.

For what it is worth, I am somewhat surprised that FIRE cared about this case, except perhaps for the sanctions imposed on Boghossian, which are somewhat specious. And I am surprised FIRE approached the hoax and this interview as the typical culture-war/tyranny-of-the-left/silence-the-right campus-speech issue. The authors wrote papers reaching (sometimes silly) left-leaning conclusions, which fits the ideology of the journals and the fields. But FIRE usually does not care if lefties say or write silly things and it generally does not care about the vigor of  discourse in scholarly journals. FIRE cares about viewpoint discrimination, when one position is allowed and the other shut down or when one position is foisted on unwilling listeners. But the hoax did not show such discrimination--that otherwise similarly rigorous scholarship reaching a right-wing conclusion was not published. One of the authors described this as his one regret in the project--they never wrote a paper reaching that reverse ideological result to see if it would be published. Had they done so and the piece been rejected, they would arguably have shown the sort of political biases about which FIRE cares. Without that, this really looks like a take-down of silly lefties and silly academics--fun for many, but not FIRE's typical bailiwick.

Posted by Howard Wasserman on August 10, 2019 at 02:17 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Friday, August 09, 2019

Money talks

People are calling for a boycott of Equinox in the wake of disclosure that owner Stephen Ross is hosting a Trump fundraiser. Expect more of this following the release by Texas Rep. Joaquin Castro of a list of Trump donors. Ross issued a nonsense statement that first tries to shame critics for, unlike him, "sit[ting] outside the process and criticiz[ing]." He then insists that he supports the President's economic policies (read: big tax cuts for him) while supporting racial equality and inclusion, and that he is not ashful about disagreeing with the President or about expressing his opinions (although he did not specify whether he expresses those contrary opinions to Trump--given what we know about Trump, I doubt it).

One issue we discussed during a SEALS panel on expressive conduct is how we handle the fact that consumers increasingly base their choices on their politics and conscience--avoiding businesses that support certain causes or that are owned by individuals who support certain causes. Contrary to Ross's statement, that is a form of direct engagement and support for (or opposition to) the things one deeply cares about (since we can't all put on million-dollar fundraisers).

But if buyers can express their political preferences through their consumer choices, why not sellers? Is it the difference in power, since the seller often is the only game in town? Is it because a seller's choices would look not like political preferences but like identity-based discrimination, which customers are allowed but businesses are not? We did not reach any great theoretical resolution on the panel. The question shows that it is not as simple as "this is a business transaction," because so much more is involved in both sides of that transaction.

Posted by Howard Wasserman on August 9, 2019 at 06:57 AM in First Amendment, Howard Wasserman | Permalink | Comments (2)

MAGA student speaks (with minor edits)

So now we know. The MAGA-hat-sporting student that Gonzaga Prawfs Jeffrey Omari described is Austin Phelps, a rising 3L who has taken to the pages of the same ABA Journal to give his side of the story.

Phelps' version differs from Omari's in two important respects. Phelps makes it sound as if the MAGA hat was not a late-semester sartorial one-off; it sounds as if he had worn the hat and a Trump-Pence 2020 shirt at various points in the semester and that his laptop was festooned with similar stickers.* He also says Omari did not call on him "with the frequency that left-leaning students enjoyed." Omari described a conservative student who participated in class (enough to make his views known) but how had to that point "not  . . . donned any political paraphernalia in the classroom."

[*] Yet another reason to ban laptops.

He also complains about called out for wearing a build-the-wall t-shirt to his "university-affiliated internship," which he attributes to Omari's op-ed. The internship enforced a neutral (although never-before-enforced) rule banning t-shirts with slogans while at work.

The rest of the piece combines a defense of free speech, with an explanation for his support for the President (including filling two SCOTUS seats "with conservative posteriors," so glad he writes like a serious future lawyer). All of which reflects "my struggle" as a conservative law student--which might not have been the best choice of phrase, considering the context.

Posted by Howard Wasserman on August 9, 2019 at 06:23 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (6)

Tuesday, August 06, 2019

Second Circuit revives Palin defamation suit

Decision here. I wrote about the case here.

The court of appeals correctly criticized the district court's weird use of an evidentiary procedure (testimony from the primary author of the challenged editorial) to evaluate the complaint. When a court considers information outside a complaint, it either must exclude the information and continue as a 12(b)(6) or convert to summary judgment; it cannot use the information and continue to treat the motion as a 12(b)(6). The Times argued that the testimony was background information that was "integral to" the material in the complaint; but that could not be right, because the information was obtained after the complaint was filed, as opposed to information the plaintiff could have relied on in drafting the complaint.

The problem with the decision was in holding that Palin's Amended Complaint (drafted with the assistance of that testimony) was plausible. This is bad for First Amendment purposes but procedurally interesting in two respects.

The court found that the district court had credited the editorial writer above the allegations in the complaint, which was improper. The district court had stated that the author's conduct was "much more plausibly consistent" with a mistake than with actual malice. But it "is not the district court’s province to dismiss a plausible complaint because it is not as plausible as the defendant’s theory. The test is whether the complaint is plausible, not whether it is less plausible than an alternative explanation." Twombly and Iqbal contain language that a complaint is implausible where there is a reasonable alternative explanation for the conduct (in Iqbal, the alternative was "protecting the nation after 9/11" rather than "invidious discrimination"). Lower courts have generally ignored that language; here, the Second Circuit flatly rejects that analysis, at least in this type of defamation action.

The court closed the opinion as follows:

We conclude by recognizing that First Amendment protections are essential to provide “breathing space” for freedom of expression. But, at this stage, our concern is with how district courts evaluate pleadings. Nothing in this opinion should therefore be construed to cast doubt on the First Amendment’s crucial constitutional protections. Indeed, this protection is precisely why Palin’s evidentiary burden at trial—to show by clear and convincing evidence that Bennet acted with actual malice—is high. At the pleading stage, however, Palin’s only obstacle is the plausibility standard of Twombly and Iqbal. She has cleared that hurdle.

But this raises an important point. The clear-and-convincing evidence standard has been incorporated into summary judgment, because whether a reasonable jury could find for the plaintiff must account for the standard. Should the same be true for 12(b)(6)--must it be plausible by clear-and-convincing evidence? This would twist pleading from its purposes, but Twombly and Iqbal did that in trying to make it a weed-out point. The question is whether we follow that to its logical conclusion.

The standard of proof may define how much of a problem this case will be for The Times and the First Amendment. The bulk of the analysis defines this as a case of competing factual inferences--Palin's facts show actual malice, the author says it was a mistake; if so, then this case cannot go away on summary judgment, because the court is equally prohibited from deciding witness credibility as would be required in this case--only a jury could resolve those questions.* That last paragraph of the opinion, emphasizing the standard of proof that will apply at trial and summary judgment, may have been a signal to the lower court about what should happen next.

[*] The court declined to treat the district court decision as one for summary judgment because, even as a summary judgment decision, the court impermissibly made credibility determinations.

Posted by Howard Wasserman on August 6, 2019 at 06:56 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Friday, August 02, 2019

Free speech on campus

A random assortment of free-speech controversies on campus. Some were discussed in programs at SEALS.

• Complaints about MAGA hats (and other clothing) in the classroom are becoming a somewhat common thing for deans to deal with, complaints coming more from students than faculty. For the moment, everyone seems to conclude that the clothing is permitted as protected speech that, while offensive and derogatory to many, is tied to the sitting President and within the bounds of allowable public discourse. Although one colleague wondered about a time we could have said the same about a swastika, when that changed for the swastika, and when that might change for MAGA. The only true solution is a school or classroom dress code, which nobody seems to want.

• What is worse--the epithet or the offensive idea behind the epithet? Should it be impermissible for someone to use a derogatory word--even when that word is contained in course materials being discussed--but permissible for someone to use the precise language describing an idea we now regard as offensive? Is it possible to distinguish them?

For example, what is the difference between quoting from cases the derogatory words for African-Americans, people with mental disabilities, or undocumented immigrants, and quoting  the derogatory ideas about women in Justice Bradley's concurring opinion in Bradwell v. Illinois. For another example, what is the difference between one student calling another student a derogatory name and one student spouting, approvingly, derogatory ideas as part of the class discussion (e.g., minority populations causing more crime); the former should be sanctioned because students should not attack one another, but what about the latter?

On one hand, it seems odd that the word is worse than the idea. On the other, if you treat them the same and sanction (as opposed to challenging and exposing) the expression of "wrong" ideas in a class discussion, it really does interfere with the supposed academic mission of exploring ideas and seeking truth. And you can respond to, challenge, and demonstrate the wrong-headedness of an idea; you cannot do that with an epithet (this is the justification for the fighting-words doctrine).

• I learned about an ongoing controversy at the University of Tennessee. The state and the university have been trying to defund the student group Sexual Empowerment and Awareness at Tennessee (SEAT) and its signature event, "Sex Week." The legislature passed a law prohibiting state funds from being used for Sex Week. This was not a huge deal, because most of SEAT's non-private funds came from the student-activities fees program. Under Rosenberger, the university could not deny funds to SEAT because of disagreement with its sex-positive (and sex-provocative) viewpoint.*

[*] Rosenberger remains my favorite unintended-consequences case, in which a victory for one political position has been used as precedent to provide victories for the opposite political position. Religious conservatives cheered the decision, which held that the state could not deny activities funds to religious organizations. But the case's staunch prohibition on viewpoint discrimination has been used to stop university efforts to defund all manner of liberal student groups. I think this may make an interesting article, especially in showing the difference between judgment and opinion/precedent.

The university's solution, imposed after SEAT refused to "compromise with university administrators who have asked it annually to 'tone it down' and consider the impact of its language choices"** was to eliminate the student-activities fee pool, replacing it with a system in which the university approves and funds all speakers and programs. The university hopes this converts all student programs into the university's speech, allowing the university to pick and choose based on viewpoint or any other considerations. The new program has not been implemented, so it remains to be seen how it plays out.

I think it is a matter of allies. Right now, most student groups oppose the program; College Democrats and College Republicans both hate it. If many student groups do not get money under the new scheme, SEAT will continue to have many allies in the fight. If everyone gets money except SEAT (which is what the university and state hope will happen), SEAT may find itself alone in the fight.

[**] In other words, compromise by changing your speech to make it more palatable to the government.

• Last spring, three white University of Mississippi students posed holding weapons in front of an Emmett Till memorial the was riddled with bullet holes; the photo was taken by a fourth, unknown person, and posted on the private social-media page of one of the students. The identified students were suspended by their fraternity. The university referred the matter to the FBI, but did not continue its investigation because, it claims, it was unaware that the FBI had completed its investigation (the FBI concluded that the photograph was not a specific threat). News stories question how the university responded to that initial bias report in March, particularly whether the university knew the identities of the students at that time (they are Ben LeClere, John Lowe and Howell Logan). The university says it will resume its student-conduct investigation, although it initially said the photo did not violate the code of conduct because it happened off-campus in a non-school setting. And the story seems to be wrapped in broader discussions of removing Confederate monuments on campus.

Is there any doubt that the photo and posing in front of the monument are protected by the First Amendment? This is not an unprotected "true threat" because it is not targeted at "a particular individual or group of individuals." It occurred off campus and was posted to a private social-media page; so even if we allow a university greater leeway to regulate racist speech on the quad or in the dorm, it does not extend to these actions. The photo is racist and offensive and I am glad their fraternity expelled them. I would like to see the university take more seriously, in word and deed, its obligation to engage in counter-speech. And perhaps the three will crawl back into hiding. But a public university's speech code is limited by the First Amendment, which prohibits government from sanctioning someone for engaging in protected speech, no matter how much we hate what they say.

Update: An Ole Miss faculty member pointed to this 2016 story of two students who pleaded guilty to civil rights violations for hanging a noose and a Confederate flag around the campus statute of James Meredith. Other than one happening on campus and one off (which is irrelevant to the criminal charges), it is hard to see a meaningful distinction between this and the current case--they are equally threatening or equally non-directed.

Posted by Howard Wasserman on August 2, 2019 at 10:25 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (4)

Monday, July 15, 2019

Free speech: Change or leave?

A fascinating thing about the President's remarks this weekend about four female Democratic reps of color, and of many responses from several congressional Republicans, is the model of free expression they represent. That model amounts to "if you don't like it, leave the country." This is not new. The President and Republicans have said similar things about Colin Kaepernick, Megan Rapinoe, and other athletes who kneel during the national anthem.

In this vision, there is no room for someone to criticize government policies or actions with the goal of prompting change. Nor is there a need to respond to criticisms by explaining why those critics are wrong and that the current action is the proper course. There is no need or room for discussion or debate--critics should shut up or get out.

Of course, the President's critics are seeing something good (i.e., anything he does) and purposely writing or saying bad. That, we learned last week, is not free speech.

Posted by Howard Wasserman on July 15, 2019 at 11:11 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Monday, June 24, 2019

Whither Cohen?

In Iancu, Justice Alito's concurrence and the Chief's partial dissent both assert that Congress could constitutionally prohibit trademarks for vulgar or profane words (The Chief argues that Congress did so in the word "scandalous," while Alito argues Congress must amend the statute to do so). Alito goes so far as to argue that the word fuck, as hinted at in the F-U-C-T mark, "is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary."

But neither Alito nor the Chief cites Cohen. (Neither does Justice Kagan's majority opinion, because "scandalous" is not limited to vulgarity or profanity, so it does not matter to her analysis). And Cohen answers Alito's argument that profanity signifies nothing except emotion--emotion is an essential and inseparable part of the message.

Only Justice Sototmayor's partial dissent (joined by Justice Breyer) addresses that case. She argues that, at best, Cohen means that a restriction on profanity is viewpoint-neutral content discrimination. Profanity "tweaks" or "amplifies" the viewpoint, such that the message is without the profanity is "not quite the same" as with it. But targeting profanity does not target the viewpoint expressed in the message--California would not have allowed a jacket with "Fuck Draft Protesters."

I see Sotomayor's point, although I am not sure I agree. First, consider Justice Alito's plurality (which Sotomayor did not join) in Matal v. Tam, in which Alito argued that the "disparaging-mark" provision was viewpoint-discriminatory. Alito called it a "happy-talk clause" that prohibited registering any mark that criticized, whether the target was racists or anti-racists. A "clean-talk clause" should be equally problematic.

Second, if Sotomayor is correct, it gives short shrift to the possibility of the trademark program as a public forum, specifically a "limited public forum." A limited public forum is supposed to be a designated public forum (government space, opened for speech), although limited to specific speech or speakers. The limitations on the forum must be defined in viewpoint-neutral terms, although the terms can be content-discriminatory (e.g., a forum can be limited to political speech, but not to conservative political speech). Once that forum is established, any content-based restrictions on speech otherwise within the forum must survive strict scrutiny. Unfortunately, the Court has never explained well how to identify the definition of the limited public forum (which merely must be viewpoint-neutral) and exclusions from the established forum (which must be content-neutral, unless able to survive strict scrutiny). Sotomayor believes that, if the trademark system is a forum, the prohibition on "scandalous" (interpreted as "profane") marks makes it a limited public forum for non-scandalous (meaning non-profane) marks. But it as reasonable to see the trademark system as a limited public forum for "marks related to products offered for sale in interstate commerce." In that case, the limitation on scandalous/profane marks, being content-based under Cohen, must survive strict scrutiny.

Maybe this issue comes back around when Congress amends the trademark law to expressly prohibit profane marks.

Posted by Howard Wasserman on June 24, 2019 at 01:57 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)