Saturday, February 24, 2024

3rd Annual Law vs. Antisemitism Conference, Feb. 25-26 at FIU College of Law

Anti Semitism Conference poster_R4The 3rd Annual Law vs. Antisemitism Conference begins tomorrow and runs through Monday at FIU College of Law. We have more than 100 registrants from all disciplines and all over the country.

The program includes keynote speeches by Marc Stern of the AJC and Rabbi David Saperstein, formerly of the Union for Reform Judaism; a screening of the film Recipe for Change: Standing up to Antisemitism with producer Todd Shotz; and a Sunday evening reception at the Jewish Museum of Florida-FIU. And, of course, good food.

All panels and presentations will be livestreamed, for those who cannot make it to FIU. There is a link listed for each panel.

Posted by Howard Wasserman on February 24, 2024 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, February 15, 2024

Jurisdictional confusion never goes away

This decision from the District of Delaware has everything from every class I ever teach 8 pages from a frivolous case--courts with Eleventh Amendment immunity, judges with judicial immunity, § 1983 claims against private actors, absence of a private right of action, incomplete diversity, declination of supplemental jurisdiction, and perhaps Rooker. Everything. The case seems to be an elderly couple lashing at after their adult children moved them off of some property.

The case caught my attention because of footnote 1. After dismissing for failure to state a claim the claims against several private individuals (family members, two private practice attorneys, a law firm, a legal aid organization, and the electrician who cut off the power to their property) for lack of action under color, the court drops this footnote:

See Itiowe v. Trentonian, 620 F. App’x 65, 67 n.2 (3d Cir. 2015) (per curiam) (noting that dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction may be appropriate where a plaintiff brings constitutional claims against non-state actors without plausibly alleging that they acted under the color of state law); see also Hagans v. Lavine, 415 U.S. 528, 536-37 (1974).

Jurisdiction/merits confusion will never go away. State action/under color presents one of the early examples of conflation (along with Title VII's numerosity requirement) and an easy case for merits treatment. One of my early cases clerking on the Eastern District of Pennsylvania involved a defense 12(b)(1) motion for lack of state action* and us writing an order instructing the parties to treat this as a merits/12(b)(6) issue, citing a published opinion from Judge Becker on the Third Circuit. How much we forget. Or it is continued malign influence of Bell v. Hood, under which courts find lack of jurisdiction if an otherwise obviously federal claim is sufficiently weak. See also Judge Newsom's take.

[*] I don't recall all the details and we did not publish anything. But the case arose from an assistant DA assaulting a defense attorney in open court. I used it as a class problem for years--how seriously should we take the idea of a state position "enabling" conduct for under color purposes?

Posted by Howard Wasserman on February 15, 2024 at 12:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Fifth Circuit and favorable termination

I wrote in December about the Fifth Circuit decision in Wilson v. Midland Cty., about the application of Heck to a claim by a woman convicted of crimes in Texas where an ADA was moonlighting as the judges' law clerk. Judge Willett's panel opinion held the claim Heck-barred because Wilson was no longer in custody (she completed her sentence a decade ago), while decrying the injustice of the result.

The court granted rehearing en banc and scheduled argument for May. As I wrote, there is a circuit split on whether Heck applies to a person who no longer is in custody. No matter the result here, the issue seems to be teeing up for SCOTUS resolution.

Posted by Howard Wasserman on February 15, 2024 at 09:40 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, February 10, 2024

Thoughts on the disqualification case

• The prevailing wisdom seems to be reversal on the ground that states lack the power to adjudicate eligibility, at least without congressional approval. Many of the exchanges about that lack of power took a procedural focus--the process by which state courts would do this; differing evidentiary rules and standards of proof; the risk of disuniformity; the absence of federal control; etc.

None of these is real--or at least each is answerable and resolveable. But the justices never seemed inclined to hear those resolutions. Consider:

    • Disuniformity can arise in any adjudication in any court system in any posture, unless the Court exercises original jurisdiction over all cases, which it cannot and will not do. But we could get disuniformity from one process the justices accepted--prosecution for insurrection. Imagine Trump committed separate allegedly insurrectionary acts--January 6 and, then after leaving office, he pulls an Aaron Burr. That prompts separate prosecutions in separate federal districts in separate circuits, perhaps under different interpretations of the rules of evidence--and perhaps disuniform rulings as to his eligibility. (Admittedly slightly different because it is two distinct insurrectionary acts--but we could imagine a link between the two or a single conspiracy with acts in two places).

    • SCOTUS exists to resolve disuniformity. But the Court demurred from control over this issue contra most other current legal issues. And it did so in a way that placed the plaintiffs and states in a catch-22. An exchange between Justice Barrett and Jason Murray illustrates. Barrett expressed concern for being stuck with the record from the lower court; Murray responded that the Court could adopt independent factual review as it does under New York Times and for other "constitutional facts;" Barrett replied by complaining about having to decide without deference from lower-court fact finding. Which is it--SCOTUS must control the lower courts or SCOTUS must have lower courts to defer to? We could find a similar solution to Justice Alito's concerns for different evidence and proof rules--NYT dictates, as a matter of substantive constitutional law, the standard and burden of proof for defamation. Why not for § 3?

    • A system in which constitutional enforcement occurs in courts must account for enforcement mechanisms. Nothing "just happens." Accepting that the "self-executing" nature of § 3 means Trump became ineligible as soon as he engaged in insurrection (as Murray argued), that ineligibility still must be enforced through some mechanism. And, Murray argued, the only available mechanism once someone occupies the office is impeachment (accepting, from Griffin's Case, that collateral attacks on presidential action are impossible). But Gorsuch would not hear it, insisting that is a separate question. But that separate question is one of the issues at the heart of the case--how to enforce § 3.

• The President is a national officer. But he is not selected nationally--he is selected by some combination of 50 states and D.C., potentially through 51 selection mechanisms. I have not heard a good argument for why § 3 is different from other things states can consider and use to control ballot access and selection of federal offices, including the presidency.

• An unfortunate narrative has developed about "how could all these supposedly brilliant law professors have been wrong." Most legal scholarship is normative rather than predictive--scholars do not predict what the Court will do, they write about what the Court should do and what the law should be. That the Court disagrees does not make the  scholars "wrong" and the Court "right," other than in the (Robert) Jacksonian sense in which infallibility follows from finality and from actually having power to impose their constitutional views on others.

Posted by Howard Wasserman on February 10, 2024 at 06:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, February 08, 2024

The constitutional validity of the Presidential Succession Act

Following on Steve's point: The Presidential Succession Act does not permit someone to simultaneously serve as a House and act as president. Section 19(a)(1) states the "Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President." Section 19(b)(1), should it devolve to the PPT, states "the president pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President." The West Wing producers did not have the character do this for the good of the country--the statute requires resignation. And it does so to avoid the Incompatibility Clause problem.

Legislative succession may raise other constitutional problems. Article II § 1 cl.6 empowers Congress to provide by law for a double vacancy by "declaring what Officer shall then act as President." This raises two possible problems. There is some question whether the Speaker or PPT, while legislative officers, qualifies as an officer of or under the United States; legislative officers may not qualify for succession, incompatibility aside. Alternatively, in the moment he resigns the Speakership and his House seat, the person ceases to be an officer--the condition to act as president--who can then take the oath to act as president.

So there may be constitutional problems with § 19. It is not the problem Calabresi identifies because the statute does not say what he suggests it says. And the statute, by requiring resignation, does not prove the larger point about whether the President is an officer.

Posted by Howard Wasserman on February 8, 2024 at 10:50 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Erie and litigation finacing in Florida

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

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

Posted by Howard Wasserman on February 8, 2024 at 09:43 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, February 06, 2024

Reining in the lower courts

The Tenth Circuit rejected a Bivens claim against U.S. Marshals who beat a man unconscious outside his home while executing a warrant. The Court noted, but did not rely on, the fact that the plaintiff was assaulted outside his home, whereas officers attacked Bivens inside his home. The Court relied on the differences between deputy marshals and ATF agents and the availability of USMS grievances against the officers. The case reveals how absurd Bivens has become. And the court uses language that seems to acknowledge that absurdity while blaming SCOTUS for forcing lower courts to reach such absurd results.

SCOTUS often grants cert to pull lower courts back into line when decisions get to far afield, even if SCOTUS forced them there through its decisions and the language of its decisions. That is, SCOTUS pulls lower courts back when they take the doctrine too far, even if the lower courts' decisions reflect natural extensions of SCOTUS precedent. Some cases allow the Court to say "we didn't mean that." This arguably explains Taylor v. Riojas, where the Court held (in a summary reversal) that leaving a prisoner in a cold, barren, feces-strewn cell obviously violated the Eighth Amendment without precedent. It arguably explains HHC v. Talevski, where the Court ensured of the continuing vitality of  § 1983 "and laws" actions.

Might the Court take this case or a similar case--in which the basic logic is "no Bivens claim because this guy is not named Bivens"--to pull back from the worst nonsense? Or is Bivens so doomed that the Court's next move will be to overrule it?

Posted by Howard Wasserman on February 6, 2024 at 03:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, February 05, 2024

JOTWELL: Pfander on Beswick on Canada's approach to governmental accountability

The new Courts Law essay comes from James Pfander (Northwestern) reviewing Samuel Beswick, Equality Under Ordinary Law, 106 Sup. Ct. L. Rev. (forthcoming 2024), comparing Canada's constitutional tort system with the mess in the United States. As Jim notes at the bottom and to coin a phrase, "Poor Robert Boule."

Posted by Howard Wasserman on February 5, 2024 at 11:38 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, January 29, 2024

§ 3 of the 14th Amendment . . . and Baseball

I bet Gerard never thought of this angle:

Scott Bomboy of the National Constitution Center discusses the case of Victor L. Berger, a German-immigrant socialist elected to the House following an Espionage Act conviction. The House twice refused to seat Berger on § 3 grounds--following his initial election and then when he won a special election after the first refusal. SCOTUS overturned Berger's conviction in 1921, because the trial judge should have recused after making many derogatory and discriminatory comments about German immigrants.

The judge? Kennesaw Mountain Landis. Landis' reputation is shot, fairly or otherwise, for his (uncertain) actions around the integration of MLB in the 1940s. And here he is making another negative contribution to a major historical event.

Posted by Howard Wasserman on January 29, 2024 at 06:22 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Swarthmore, whatever comes after redux

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

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

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

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

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

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

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

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

Posted by Howard Wasserman on January 29, 2024 at 11:00 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Gersen on academic freedom

From the New Yorker (paywalled). Some good inside-baseball about Harvard since October 7 and the flipping of free-speech positions (what I have been calling Camp 3).

Posted by Howard Wasserman on January 29, 2024 at 08:46 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sunday, January 28, 2024

Swarthmore revisited

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

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

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

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

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

She ends with:

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

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

Posted by Howard Wasserman on January 28, 2024 at 11:20 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Saturday, January 27, 2024

More thoughts on campus speech (Updated)

Several things:

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

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

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

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

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

Posted by Howard Wasserman on January 27, 2024 at 12:36 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, January 25, 2024

Qualified immunity and the inversion of the law/equity divide

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

Here is one paragraph early in the opinion.

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

Three things strike me about the passage:

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

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

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

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

Posted by Howard Wasserman on January 25, 2024 at 09:14 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday, January 20, 2024

Every animal who, under color . . .

Fun case from the Eighth Circuit: Whitworth v. Kling (8th Cir.), arising from a K-9 (named Dutch) biting a guest in his off-duty handler's house. The court rejected a Fourth Amendment unreasonable-seizure claim against the handler, because the bite was unintentional and not part of the officer's official efforts. The court treated the K-9 as the officer's weapon used to engage in force--in this case, the sort of unintentional force that does not violate the Fourth Amendment.

But the court ignored two other paths to the same result.

One is that Dutch did not act under color because he did not pretend to perform his official duties----he was playing fetch in his yard off-duty, got distracted, and ignored commands to disengage--or use his position to enable his conduct. That is obviously silly. Section 1983 precludes that approach--"[e]very person" under color. And cases treat K-9s as an officer's tool rather than as the officer. But the thought is fun. And consistent with my use of the pleadings in Naruto v. Slater (the "monkey selfie" case) in Civ Pro.

Another path is that the officer--off-duty, playing fetch in the yard, and not attempting or appearing to perform any job-adjacent acts through Dutch--did not act under color. The dog bite is analogous to an off-duty officer's service revolver accidentally discharging and injuring a visitor to his house. I wonder why the court did not pursue this.

Posted by Howard Wasserman on January 20, 2024 at 05:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Friday, January 19, 2024

The law of Trump and easy cases

I mentioned previously that people have proposed classes on "Law of Trump"--a discussion of the many, many legal issues that have arisen in litigation involving Trump and those in his orbit. A lot of it has touched on Civ Pro and Fed Courts, hence my interest.

Much of the Law of Trump involves not new law, but easy application of established principles, applied to a new, often-unprecedented context receiving outsized attention. Take Clifford Frost, one of Trump's fake Michigan electors, now facing eight state felonies over the scheme. Frost filed a federal action to enjoin the prosecution, although he does not assert a constitutional defense; he recasts a sufficiency-of-the-evidence defense as a 14th Amendment violation and as bad faith. This was, and should be, an easy case for Younger abstention.

Posted by Howard Wasserman on January 19, 2024 at 12:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Koppelman on the Colorado cake wars

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

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

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

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

Posted by Howard Wasserman on January 19, 2024 at 10:31 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

More interrupting during argument?

Is it me or do justices increasingly cut-off litigants not to ask a new question or to push back on an answer but to stop the litigants from talking anymore in response to a question. In essence, the justice saying "I've heard enough in response to the question I asked; stop talking."

It is particularly bad during the sequential/serial/round-robin stage. The Justices use the time to make speeches and arguments and lead attorneys into one-word answers  ("Don't you agree . . ."), then cut them off with a "thank you" when the attorney attempts to give a complete answer or to try to use the answer as part of her argument. This supports criticism (I cannot remember where is saw it) that appellate arguments have morphed into congressional hearings, in the worst sense. 

But I noticed it three times in the "main" arguments in Devillier v. Texas (on how to sue for just compensation for a taking)--once each from the Chief, Alito, and Gorsuch. This is more jarring, because it undercuts what the advocate is supposed to be doing. The skill in argument involves weaving answers to questions into affirmative arguments. An attorney did not only answer the justice's question, she used her answer to further her prepared argument. Stopping the attorney from completing her answer makes that impossible. In all instances, another justice jumped in with questions, so the attorney was not left hanging. But if it becomes more commonplace, it reflects a real change in what argument is supposed to be.

Posted by Howard Wasserman on January 19, 2024 at 09:31 AM in Howard Wasserman, Judicial Process | Permalink | Comments (3)

Wednesday, January 17, 2024

JOTWELL: Mullenix on Lammon on finality

The new Courts Law essay comes from Linda Mullenix (Texas) reviewing Bryan Lammon, Manufactured Finality, 69 Vill. L. Rev. (forthcoming 2024) on parties manufacturing finality through voluntary dismissals and other moves.

Posted by Howard Wasserman on January 17, 2024 at 09:47 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, January 15, 2024

Perspectives on the International Criminal Court and International Criminal Law and Procedure: A Symposium in Memory of Megan Fairlie

FIU College of Law and FIU Law Review will host Perspectives on the International Criminal Court and International Criminal Law and Procedure: A Symposium in Memory of Megan Fairlie, beginning at 9 a.m. Friday, February 2, 2024. The programs honors the work of Megan Fairlie, my FIU colleague from 2007 until her death in 2022. The event will be livestreamed.

Program after the jump.

Opening Remarks: Dean Antony Page (FIU College of Law)

Panel IA Tale of Two Defendants in International Tribunals

Diane Marie Amann (University of Georgia School of Law)

Michael P. Scharf (Case-Western Reserve University School of Law)

Moderator: Mario Loyola (FIU College of Law)


Panel IIThe Academic Work of Megan A. Fairlie

Mark A. Drumbl (Washington and Lee University School of Law)

Göran Sluiter (University of Amsterdam)

Jennifer Trahan (NYU Center for Global Affairs)

Moderator: Kerri Stone (FIU College of Law)


Panel IIIMegan A. Fairlie's Career at FIU College of Law

Video Presentation

Altanese Phenelus (FIU College of Law '14)

Megan Roth (FIU College of Law '17)

Casey Waldeck (FIU College of Law '20)

Moderator: Howard M. Wasserman (FIU College of Law)


Panel IVSome Challenges in International Criminal Law

Nancy Combs (William & Mary Law School)

Milena Sterio (Cleveland-Marshall College of Law)

Yvonne M. Dutton (Indiana University-Robert H. McKinney School of Law)

Moderator: Tawia Baidoe Ansah (FIU College of Law)

Posted by Howard Wasserman on January 15, 2024 at 09:31 AM in Howard Wasserman, International Law, Teaching Law | Permalink | Comments (0)

Sunday, January 14, 2024

Dan predicted the future of college sports

Catalyzing Fans (Harv. J. Sports & Ent. L. 2015) was Dan's last published paper, co-authored with Michael McCann (New Hampshire) and me. The paper was accepted several weeks before Dan's murder.

The topic and journal were ironic, since Dan did not know or like sportsball. He hatched the germ of an idea--fans crowdfunding to attract players to come to their favorite teams or to convince teams to sign and keep fan-favorite players--and came to Michael and me as people who do like and know something about sportsball. The proposal was marginally or indirectly practical when we were writing (2012-14). Marginally practical as to professional sports because actually player salaries dwarf whatever groups of fans can raise, meaning those funds are not likely to affect player or team choices (at least financially; perhaps the show of fan love has emotional effects). Indirectly as to college sports because players could not be paid for anything relating to their play or status as athletes; fan money could go to, for example, producing and distributing t-shirts to help recruit a star high-school athlete.

But then I learned about Michigan's One More Year Fund, which has been credited with helping retain many of the players who helped them win the college football national championship, and its new successor, the One More Year Fund, which raised more than $ 100,000 in three hours earlier this month. These funds operationalize Dan's idea--fans contribute any amount of money to a central committee that distributes the funds to players who, in this case, stay with the team rather than enter the transfer portal. And they have a direct and meaningful practical effect in college sports. Because players do not receive salaries from the universities and certainly not in the tens of millions annually, the hundreds of thousands or low millions that star players receive provide a meaningful income and thus a meaningful incentive to decide to return to the school.

Posted by Howard Wasserman on January 14, 2024 at 02:31 PM in Howard Wasserman, Sports | Permalink | Comments (0)

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

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

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

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

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

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

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

Posted by Howard Wasserman on January 14, 2024 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, January 12, 2024

Interview with Danielle Holley of Mount Holyoke

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

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

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

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

Posted by Howard Wasserman on January 12, 2024 at 12:32 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, January 11, 2024

Is the British Monarchy different from all other constitutional monarchies?

I share Dan's views of the final season of The Crown. And I look forward to reading his paper. The paper also gives me an excuse to post something I thought about after watching the final season and doing some googling about the real people and events: Is the British monarchy unique compared compared with the many other constitutional monarchies of Europe? That could be as a matter of power. Or it could be as a matter of how seemingly out of hand it is--in terms of monetary cost, public interest and obsession, "out of touch," being tabloid fodder, whatever. The perception is that the British royal family is dysfunctional. Is it uniquely so compared with the royal families of Norway or Denmark? We don't hear stories about those families--is it because they are not as closely connected to the US or is the British monarchy different?

Posted by Howard Wasserman on January 11, 2024 at 03:52 PM in Howard Wasserman | Permalink | Comments (0)

Monday, January 08, 2024

Sprigman on narrowing plagiarism

Chris Sprigman (NYU Law) argues for narrowing the definition of plagiarism to ease its use as political weapon. Sprigman emphasizes plagiairism's twin purposes--protecting the original sources of ideas and protecting readers from being defrauded--and limits the "core offense" to copying of "valuable collections of words," those that readers and original authors would care about, in light of the academic work's core intellectual contribution. Sprigman does IP, so he compares how copyright polices the use of ideas with plagiarism's (current) overinclusiveness.

Posted by Howard Wasserman on January 8, 2024 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Saturday, January 06, 2024

What do we mean by "Socratic Method"?

Orin Kerr posted his 1997 article on the decline of the Socratic Method in law school. It is an interesting read, featuring interviews with several HLS professors (Orin wrote the piece for a seminar). He divides the subjects into three groups--Traditionalists (using the true-and-traditional SM); Quasi-Traditionalists (mixing Socratic "flavor" with other techniques); and Counter-Traditionalists (rejecting SM in favor of panels, lectures, and group problems).

So a question I have wondered about since I began teaching (and maybe since law school): What does the "Socratic Method," in the purest sense, entail? What are its essential elements? What did the professors of the '40s-early '60s do that post-'80s teachers do not? From the descriptions of what the non-traditionalists (whether quasi- or counter) do, I think I identify the following elements:


    Targeted at one on-call individual for at least some period

    Case-centric and tied to the Langdellian case method. That is, the Q&A focuses on a particular case and hypothetical off-shoots of those cases. No pre-set problems or hypos. No broader discussion of the issues as a whole, disentangled from the particular case.

    No prof resolution of the questions or issues at the end of the questioning

    Randomized cold-calling with no (or very little) notice or warning of when you might be called on. No volunteers.

    Last names only.

    No passing unless the student has formally opted-out in advance. Or at least the pass results in some embarrassment for the student or the burden falling on his neighbor.

Additional elements? Did I list anything that should not be part of the definition?

If I am right about these "elements," then I have never had a traditionally Socratic professor, including among those who began teaching before the 1990s. Even the greatest media representation--The Paper Chase--was not purely Socratic; one plot line involved Hart gathering the courage to raise his hand in class. No one on my faculty uses the pure-and-traditional SM. I am not purely Socratic for a bunch of reasons that vary by class, although my student evals seem to disagree. FWIW, this fits my experiences on appointments committees, where every candidate describes her teaching style as "modified Socratic"--code for "rigorous but not obnoxious."

Also if I am right, I am not sure what is lost. I do not see the pure SM as so much more rigorous and challenging than the modified SM Orin's subjects describe.

Comments left open, because I am curious about this.

Posted by Howard Wasserman on January 6, 2024 at 03:23 PM in Howard Wasserman, Teaching Law | Permalink | Comments (6)

Friday, January 05, 2024

Friedersdorf on changes to free-speech culture

In The Atlantic. He offers a nice summary of the moving and changing pieces, including the big-picture moves between different eras from the '80s to now, with October 7 (and perhaps December 5) marking the beginning of a new era.

Posted by Howard Wasserman on January 5, 2024 at 09:47 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, January 04, 2024

Two items on campus speech and other protests

Two items on campus speech and other protests.

• Journalist Mark Oppenheimer has a podcast called The Syllabus, dealing with campus politics. The latest episode features Jacques Berlinerblau (Georgetown) discussing the proper role of protest on campus in light of the purposes of universities as spaces for expert discussion, not discussion writ large. He also has an interesting take on the role (or abandonment of the role) of teaching in the undergrad space.

• Jenny Carroll (Alabama, headed to Texas A&M) published Policing Protest: Speech, Space, Crime, and the Jury in Yale L.J.; she argues for a defense for expressive conduct, allowing juries to acquit someone of content-neutral offenses that implicate speech activity. The defense operates as a middle ground or hybrid of justification and nullification.

I thought of the paper (which Carroll presented at FIU last year) in light of recent protests on-campus (sit-ins in the President's office) and off (blocking bridges and airport roads). I have criticized calls for prosecutors and universities to drop charges against those who engage in civil disobedience, because civil disobedience includes bearing the consequences of breaking the law in furtherance of a cause. Carroll offers a middle ground. The First Amendment does not provide a basis for dismissing the charges, but it offers the jury (as voice of the community) to decide that free-speech values should prevail in a particular case. In other words, prosecute the Bay Bridge 78 (they are 11.14 times as great as the Chicago 7) or the Brown students who sat in the president's office and let them try to convince a jury of the expressive righteousness of their cause.

Posted by Howard Wasserman on January 4, 2024 at 12:13 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, January 03, 2024

A new Bivens Catch-22

After federal officials attempted to strip Michael Cohen of his home confinement and placed him in solitary confinement in retaliation for his public statements, Cohen obtained habeas relief. He then sought Bivens damages against Donald Trump, Bill Barr, and a bunch of officials in the corrections system. The Second Circuit affirmed dismissal of the Bivens action, to no one's surprise (except perhaps Cohen and his attorneys)--this is a new context (because the cause is not called Bivens or Carlson) and there are always special factors counseling hesitation. The court relied on the special factor or availability of alternative remedies--the habeas relief that Cohen sought and received.

But note the double work habeas does here. Because Cohen challenged, in part, the terms of his sentence (imprisonment rather than house arrest), a successful damages claim would have implied the invalidity of that part of the sentence. Such a claim is Heck-barred unless he can show "favorable termination" of the criminal proceedings, such as through habeas relief undoing the sentence. But his success in satisfying that preliminary requirement to pursue damages means he has no Bivens claim at all. On the other hand, had he failed in obtaining habeas relief, he might have been able to pursue the Bivens action, only to find it Heck-barred because he failed to show favorable termination.

Posted by Howard Wasserman on January 3, 2024 at 09:16 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 01, 2024

AI will not replace us! Tools will not replace us!

The Chief's Justice's 2023 Year-End Report takes on the new role of AI in the courts. The report features the usual historical discursive on how technology evolved in courts and litigation beginning with the typewriter in the 1870s and continuing to new AI tools. He includes the history of Shepardizing, with this nugget--"Lawyers facing a deadline might skip this stage, proclaiming that “'the Lord is my Shepards.'” But Roberts insists that machines and AI cannot fully replace human actors in the judicial system, especially judges, who must make decisions involving "gray areas" (he uses the term twice) of fact-specific judgments and "open questions about how the law should develop in new areas."

Steve Vladeck suggests that Roberts abandons his "misbegotten suggestion that the job of a judge is to simply call 'balls and strikes,'" a vision of judging that allowed for no ambiguity or discretion in the judicial role. That was nonsense in 2005, as legal scholars pointed out, and continues to be. In fact, the Report distinguishes judges' discretionary "gray-area" judgments (judgments about whether someone is a flight risk, about an allocuting defendant's sincerity, about whether a district court abused its discretion, and about developing open legal issues) from non-discretionary, in-or-out questions about tennis serves that tournaments entrust to optical technology.*

[*] Query whether Roberts intentionally--and tellingly--did not use as his analogue the automatic strike zone systems that MLB is testing. Ball-or-strike is as non-discretionary as a serve--it is in the zone or not in the zone. But Roberts didn't tell a Senate committee that an umpire's job is to call a serve in or out. Using the new automated strike zone would have acknowledged too obviously that what he said at the time was nonsense.

Posted by Howard Wasserman on January 1, 2024 at 10:03 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, December 21, 2023

Shifting narratives on antisemitism

I watched the HBO documentary No Accident, chronicling the civil conspiracy trial against Jason Kessler, Richard Spencer, and other organizers of "Unite the Right"  in Charlottesville. The jury found the individuals and groups liable for civil conspiracy under Virginia law but hung on civil conspiracy under federal law; the court reduced an award of (mostly punitive) damages of more than $ 24 million to about $ 2.35 million, given Virginia-law limits on punitive damages. I am considering holding a "Civil Litigation Night at the Movies" next semester, given how the case touches on every class I teach--Civ Pro (lots of stuff about discovery), Evidence (a detailed look at trial and how lawyers prove facts), and Civil Rights (the case began with a focus on a provision of the KKK Act of 1871, although that is not where things landed).

The film highlights some Jewish themes--Roberta Kaplan's Passover Seder, an information session at a New York City temple, discussions (in 2019) of increases in antisemitism, explanations of  "white replacement theory" and Jews' roles in that. But I was struck by how outdated those discussions of antisemitism felt and how much the conversation around antisemitism has changed in the past two months. Now  Republican such as Elise Stefanik are calling out antisemitism in the mainstream media, while making common cause with the villains in this movie. I do not mean to oversimplify--left-wing antisemitism existed in 2017 (e.g., efforts to exclude Jewish organizations from the Women's March and Gay Pride programs) and right-wing antisemitism has not disappeared. But the narrative changed very quickly. Or it vindicates Tom Lehrer.

Posted by Howard Wasserman on December 21, 2023 at 03:35 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, December 18, 2023

The Times, Dobbs, and SB8

The New York Times had a big piece Friday on the behind-the-scenes events leading to Dobbs. I want to comment on SB8's cameo in the story.

The piece describes the SB8 case as the beginning of the fall of Roe and the failure to stay enforcement before the law took effect as the point at which "Roe was partially undone." I saw one surprising bit in this section--that Justice Gorsuch was incommunicado except through Justice Alito on the evening of August 31 (the law took effect at midnight September 1). He expressed no view until the next day (which Alito relayed to the rest of the Justices), then voted to deny any injunction the following day. Beyond that weirdness, everything the Justices said in internal memos (as quoted in the Times) appeared in the opinions in the stay order--Roberts' view that the existence of the law might create an independent violation and Justice Sotomayor's view that it was a "pity that we cannot do the right thing."

The problem with giving SB8 a meaningful role in the drama leading to Dobbs is that the outcome of the case should have been obvious. The Court had never said the mere existence of the law violates the Constitution independent of enforcement. The Court cannot stop the law from taking effect, because the Court cannot enjoin a law, independent of its enforcement. And the Court could not, in a § 1983/EpY action, enjoin unknown private actors from doing anything. All of this should have been obvious when the private case reached the Court.

Posted by Howard Wasserman on December 18, 2023 at 12:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, December 15, 2023

Favorable termination and miscarriages of justice

Case out of the Fifth Circuit, written by Judge Willett, on Heck v. Humphrey and the so-called Heck bar or habeas exception to § 1983:

A former county ADA in Texas moonlighted for two decades as law clerk to the judges of that district. He was discovered in 2019 and disbarred. Erma Wilson was convicted of cocaine possession in 2001 and received an 8-year suspended sentence. Wilson learned about the conflict when a capital conviction was overturned on habeas (she was not among the many people who received written notice from the DA about the conflict) and brought a § 1983 action, more than two decades after her conviction and more than a decade after completing her sentence.

Heck precludes § 1983 damages actions that would functionally call into question the validity of a conviction or sentence; habeas provides the sole federal vehicle for challenging state convictions. A § 1983 plaintiff must show "favorable termination" as an element of her claim. The problem arises when, as in Wilson, an individual no longer is in custody and thus cannot challenge the conviction or sentence through habeas. The Heck majority adopted favorable termination as an absolute rule. Justice Souter concurred in the judgment to argue that favorable termination should apply only at the "intersection" of habeas and § 1983, where both vehicles might be available; it should not apply when habeas is unavailable because the plaintiff no longer is in custody. Souter illustrates with a hypo that basically matches this case--a procedurally compromised conviction where the person does not learn about the compromise until after his release from custody. In Spencer v. Kemna, five Justices in three separate opinions adopted that position. This precipitated a circuit split--five circuits, including the Fifth, hold that Heck always applies; six allow for some exceptions; the answer depends on whether lower courts can count noses to find binding precedent or whether SCOTUS creates binding precedent only through a single majority opinion. Because the Fifth Circuit requires favorable termination, Wilson's claim was Heck-barred.

Judge Willett was outraged. He described the conduct and the outcome as "utterly bonkers," "difficult to explain," "hard to take in," and "underscor[ing] that the American legal system regularly leaves constitutional wrongs unrighted." He footnotes the last with references to prosecutorial immunity, Monell, and qualified immunity, stating "Upshot: Many Americans’ rights are violated but not vindicated."

Two questions of interest going forward:

1) What happens next. Willett emphasizes that the en banc court or SCOTUS could overrule its precedent on this point. Which avenue will and should the plaintiff pursue?  En banc Fifth Circuit review (and overruling) allows Wilson to avoid Heck and pursue her claim. But it does not resolve the broader circuit split; even if the Fifth Circuit changes its position, five other circuits continue to deny relief to plaintiffs in Wilson's shoes.* Much depends on what Wilson and/or her attorneys want to achieve--a remedy for her in this case or a broader change in the law. I guess this case may offer an interesting example of the occasional gap between cause lawyering and individual representation.

[*] The Seventh Circuit went the other way--it moved to the  "Heck applies" position in 2020 after years of allowing plaintiffs to avoid Heck where they diligently pursued the federal issues diligently and lost the opportunity to pursue habeas through no fault of their own.

2) Wilson's Other Options. The court fails to mention that Wilson had other options or whether she attempted to take advantage of them. Heck lists several ways to obtain favorable termination, including where the conviction has been "expunged by executive order, [or] declared invalid by a state tribunal authorized to make such determination." Lower courts have held the former to include pardons and executive clemency, at least where the pardon makes clear the basis and why it reflects favorable termination. Did Wilson seek a pardon? Alternatively, did she ask the state trial court to vacate the conviction? Neither the complaint, magistrate report, district court opinion, or Fifth Circuit opinion say so. Either would provide the needed favorable termination, mooting the question in this case of when favorable termination applies.

From the standpoint of § 1983's history, those options are unacceptable because they require plaintiffs to rely on state-law processes, whereas § 1983 reflects congressional distrust of state courts and state institutions; Souter makes this point in his Heck concurrence. At least in this case, however, I would expect even Greg Abbott to be receptive to a pardon; the optics and politics seem obvious.

Posted by Howard Wasserman on December 15, 2023 at 03:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, December 14, 2023

3d Annual "Law v. Antisemitism" Conference (February 25-26 2024)

The event web site and registration page is live.

Posted by Howard Wasserman on December 14, 2023 at 04:20 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

The House of Representatives is in Camp Two

The House on Wednesday passed a non-binding resolution condemning the rise of antisemitism on campuses and condemning Gay, Kornbluth, and Magill for failing "to clearly state that calls for the genocide of Jews constitute harassment and violate their institutions' codes of conduct." It includes the finding that "acts of hate, intimidation, discrimination, and violence-based on ethnicity or religion have no place in our country or in the global community." (Sounds pretty woke for a Republican-drafted proposition). One hundred twenty-five Democrats and one Republican voted against. Recall the old saying about anything that passes with bipartisan support.

The resolution reflects the Camp Two position--antisemitic speech (at least "genocidal" antisemitic speech, whatever that means and however one can tell) is never protected on college campuses. This position belies Stefanik's WSJ op-ed (unpaywalled) centering her criticism on the inconsistent treatment. But that was never her real point, as suggested in her actual questions and the way the rest of the hearing veered into standard conservative attacks on higher ed. This position also presents problems for Camp Three folks who share Camp One's free-speech commitments; as Popehat warned, bad things happen when you support Stefanik's bad-faith efforts at anything.

I have criticized FIRE a lot for its reaction to this dust-up and other stuff. But its (ultimately unsuccessful) statement urging the House to reject the resolution nails the point:

Condemning Presidents Magill, Gay, and Kornbluth for standing for free expression sends exactly the wrong message. FIRE knows all too well that colleges and universities — including Harvard, Penn, and MIT — have a checkered history in defending free expression. But instead of citing past hypocrisy to demand more censorship, Congress should hold these institutions to their newly found free speech promises.

FIRE also hits an additional important point:  "In fact, both sides of the Israel-Gaza conflict have accused each other of genocide." Too many people, especially Jewish groups urging universities to crack down on antisemitism, have ignored this point. If anything arguably reflecting a call for genocide is unprotected, then universities must target and sanction anti-Israel speech ("River to the Sea") and pro-Israel speech ("Stop Hamas"). As ever, empowering the government to censor eventually comes around to speech you like or requires government to draw impossible lines.

Posted by Howard Wasserman on December 14, 2023 at 10:19 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, December 11, 2023

Rules Enforcement v. Rules Advisement

Here is a good one for the next edition of Berman and Friedman's The Jurisprudence of Sport:

The Kansas City Chiefs had nullified what might have been a game-winning touchdown on pretty great catch-run-and-lateral because a Chief receiver (the guy who scored the TD) lined-up offsides. (Photo and video in the linked story). Chiefs Coach Andy Reid and quarterback Patrick Mahomes were irate about the call after the game (this followed a loss last week in which a non-call on pass interference cost the Chiefs a meaningful chance to tie the game in the closing seconds). The outrage surprised me because (check the photo) the illegal formation is so blatant and obvious. And the official threw the flag as the play began, so he could not have known what would follow or what he was taking away. It could be a let-'em-play situation--under 2:00 in a 3-point game between potential Super Bowl contenders. But I never thought of offsides as a ticky-tack call akin to a foot fault or three-second violation on which refs swallow their whistles. (Compare that with, going back to the Chiefs, refs not calling PI on a hail Mary at the end of last week's game). Maybe offensive offsides (where the players gains a few inches down the field) is different from a defensive player jumping the snap.

It turns out Reid and Mahomes had a different complaint: The officials failed to follow their ordinary practice of advising offensive players, especially receivers, when they line-up offsides and giving an opportunity to correct. The ref explained that the receiver never looked to the official on the sideline for advice and that he was so far over the line that he blocked the view of the ball. The official was helpless--a blatant infraction and no opportunity to follow the soft practice and correct it; the practice does not include the official identifying the problem for the player.

These sorts of "warning" systems offer an interesting insight into how sports rules operate, especially with how officials avoid what are proceed as ticky-tack violations and ensure the players "decide the game." We can distinguish two types of "warning" systems. This one works on request--the player looks to the official for a preliminary ruling to ensure compliance before the official can make a formal call, but the official is not expected to warn the player sua sponte. For others, the ref is in constant communication with the player, without awaiting that request. For example, NBA refs constantly talk to players jockeying in the post about the 3-second violation, warning them to step out of the line when it gets close (which is really at 5 seconds rather than 3). Batters and umpires did a similar dance for years over delays in getting into the box, with the umpire reminding the player about speeding it up when necessary; MLB switched to a formal clock in 2023 when that informal warning system proved ineffective at furthering the policy of moving the game along. It might be interesting to explore which practices develop for which rules and why. The latter cannot work with the offsides call at issue in the Chiefs game--a football field is too large and too loud.

I am trying to think of legal-system analogues to this sort of pre-ruling advice. One is how judges (sometimes) treat pro se civil litigants, advising them on how to proceed and how to correct pleading defects. Another is the informality of discovery, where some judges encourage informal communications between chambers and lawyers and how discovery should proceed, especially when disputes or deadlines arise. And we see that distinction at work--the judge reaches out to help pro se litigants, while the judge still waits for parties to reach out on discovery issues, even if the judge will resolve them without a formal ruling.

Posted by Howard Wasserman on December 11, 2023 at 03:10 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (0)

Pressuring university presidents

The Times and Michael Dorf consider some of the faculty-governance issues circling the attacks that resulted in Liz Magill's resignation and the targeting of Claudine Gay at Harvard. (Sally Kornbluth has university support, for now). Dorf emphasizes the correctness (if insensitivity) of their answers to the actual questions asked, as well as the bad-faith politics and ideological goals underlying the hearing, Stefanik's questions, and the subsequent attacks.

I will add one other question to the mix: To what extent does gender play a role here? The presidents at the center of the storm are women. Dorf mentions three schools--Columbia, Cornell, and NYU--that have dealt with antisemitic incidents; all have women presidents. This was not the dynamic at the hearing, where women served as chair and lead attack dog. But wealthy male alumni and commentators have led the post-hearing charge. And I cannot help but wonder what would have happened or what would be happening now if male campus leaders had given legally accurate-if-ham-fisted answers.

On a separate-but-related note, I do not understand this statement from FIRE cheering Magill's resignation as an opportunity for Penn to reboot on protecting student speech (Penn is second-to-last in FIRE absurd rankings that have someone become a meaningful standard for evaluating campus speech). FIRE argues that "[a] change of leadership could be exactly what Penn needs — as long as the new leadership prizes dialogue, ideological non-conformity, a culture of free speech that takes seriously the search for truth, and the process of debate and discussion that will get students there." But Magill faced pressure to resign because she took (if in an overly lawyered way) the position FIRE advocates for--offensive antisemitic speech is protected if it stays with First Amendment bounds. Why does FIRE believe a future president will adopt and advocate for that position, having seen what happens when she does? Maybe this is about the inconsistency (so FIRE will move from Camp Three to Camp One when the right president comes in. But, again, that is not the question Stefanik asked. Moreover, many of the post-hearing attacks have framed it as "failing to protect Jewish students from antisemitism," not "restricted lots of speech until it targeted Jews." So I would not expect Magill's successor to come storming onto campus sounding like an academic Ira Glasser. 

Posted by Howard Wasserman on December 11, 2023 at 12:26 PM in Howard Wasserman | Permalink | Comments (0)

Sunday, December 10, 2023

Confusing what happened and what can happen on campus

Less than a week having lapsed since The Hearing, we have entered the stage in which people talk about the series of events in a way that is factually incorrect or confuses the issues.

1) Eugene Volokh writes up something I thought about after watching the video (which Steve linked to) of MIT grad student Talia Khan: Khan confuses several things, some of which the university can and should address and some of which it cannot and should not address. Khan talks about groups of students storming the offices of Jewish faculty, students blocking access to buildings, university enforcement of an office-banner rule against Khan's pro-Israel signs that was not enforced against Black Lives Matter posters, and an interfaith chaplain singling out Jewish students--all of that, if true, represents misconduct by university officials or content-discriminatory enforcement (or non-enforcement) of university rules. But Khan also talks about leaving her study group because members said the Jews at the Nova festival deserved to die; the university cannot and should not police repugnant statements in personal conversations.

A different part of Khan's statement struck me while raising the same problem. She mentions a classmate who was afraid to leave his dorm. But we again need to know more about why. Was it to avoid the offense of offensive signs and statements from protesters or was it to avoid the physical encounters? That makes a difference about how we understand not the antisemitism of it, but to understand what universities can or should do about it.

2) I have the same reaction to this piece in The Forward by a Penn undergrad alum and grad student at Columbia. She begins with the question of why Liz Magill "didn't immediately answer with an unequivocal, resounding 'Yes' when asked if 'calling for the genocide of Jews' is antisemitic?" She then shifts to a classroom assignment, in which the professor criticized her for presenting something on the Holocaust (using clips of the film Shoah) because it would make other students (those out at protests) feel uncomfortable and unsafe in the classroom and that "'this is a particular moment where Jewish suffering is not what people want to hear about.'" As with Khan, if true, this represents the university (through a professor in the classroom) infringing the speech rights of Jewish students because of the Jewish content of their speech. That is not what the hearing or the presidents' answers were about.

3) To kvell for a moment: My kid got into Wesleyan this weekend. So I was interested in this short interview with Wesleyan President Michael Roth, who in a previous era of university hatred spoke eloquently of liberal-arts education. Roth almost got it right, but not quite. He admits that his armchair quarterbacking is easy; insists that the presidents' obvious answer was "yes;" then insists that offensive speech is not violence and that students not have a right to avoid offense from non-targeted public speech. But that third point undermines the second point, unless there is an "advocacy of genocide" exception to the First Amendment or "advocacy of genocide" is, per se, incitement under Brandenburg or a true threat; neither of those points is true and I do not hear Roth suggesting either is. So I will deduct half a cheer for Roth for giving an easy answer, presumably knowing that he could not (given Wesleyan's commitments to students) to enforce that easy answer against a peaceful campus protest that included "globalize intifada" chants and signs. Still, I am glad my kid is going to Wesleyan.

4) One narrative has Magill, Gay, and Kornbluth refusing to say calls for genocide of Jews are antisemitic; this is erroneous, as they were not asked this, did not say it, and , in fact, tried to denounce such content. Nevertheless, the narrative has taken hold. Doug Emhoff said it at the menorah lighting. The author of the Forward piece linked above began with it. On my wife's listserv of Jewish alumnae, some insisted that the presidents refused to say that calls for genocide are even "bad."

5) If Paul agrees with me, that must mean we have found the correct answer.

Posted by Howard Wasserman on December 10, 2023 at 01:04 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, December 08, 2023

A mess of stuff on campus speech

A mess of items today that reflect different pieces of what I have been trying to put together this week.

1) Popehat began his Camp One defense by attacking the premise of the committee hearing:

A more realistic interpretation is that the hearing was a crass show trial primarily intended to convey that a wide variety of dissenting speech about Israel is inherently antisemitic, that American colleges are shitholes of evil liberalism, and that Democrats suck. Since Democrats do suck, they mostly cooperated. [citing statements by Pennsylvania Governor and potential 2028 presidential candidate Josh Shapiro].

As if to prove White's point, Doug Emhoff at the National Menorah Lighting took aim: "Seeing the presidents of some of our most elite universities literally unable to denounce calling for the genocide of Jews as antisemitic — that lack of moral clarity is simply unacceptable." Except Magill, Gay, and Kornbluth did not fail to denounce calls for genocide as antisemitic. No one asked whether calls for genocide or "river to sea" are antisemitic; Stefanik asked whether those statements constitute protected speech and they gave the correct answer of "it depends on context," because it does. In fact, they did at points condemn the message, just without expressing intent to sanction the speech where it remained protected.

2) David Bernstein said on Twitter (I cannot find the link) that the problem is not universities' failure to stop hate speech but their failure to enforce existing content-neutral campus regulations. The comments of the MIT student in the video Steve links to (and of other students who spoke outside the hearing) confirms that; universities can and should proscribe and sanction much of what she describes, although not because the speech is antisemitic. Had the hearing focused on those university failures, it would have played very differently. Of course that was never the point. Popehat again: "many people bought it, and now it’s being used as part of the culture war against higher education, and too many of you fucking fell for it."

3)Eugene Volokh emphasizes an often-overlooked value of speech: Know what people are thinking:

No-one likes rude awakenings, bitter lessons, and situations with which one is not quite sure how to cope. But they are tremendously useful. Many of us have indeed been rudely awakened to the magnitude of hostility in many American universities to Israel, Israelis, and Jews. But that's not because there has been a surge of such hostility: It's because the existing hostility has revealed itself.

Thanks to the freedom of speech, we have a better sense now than before of who our enemies are, and who our friends are. We have a better sense of how our institutions operate. We have a better sense of how the ideologies that many teach there can play out.

4) Glenn Reynolds attempts to, in my terms, move folks from Camp Three to Camp One:

But as much as I enjoy seeing these people stew in the juices of their hypocrisy – and believe me, enjoy it I do -- it is nonetheless true, as Eugene Volokh cogently points out, that free speech principles, and the First Amendment where it applies, prevent things like a selective ban on anti-semitism, or on “advocacy of genocide” or whatever.

He opposes proposals for new restrictions on campus and a new commitment to the old protections for campus speech. He argues campuses adopted those to protect lefties from the conservative establish; the reverse may have a salutary effect.

5) Rep. Stefanik published an op-ed in the Wall Street Journal (looking for an unpaywalled copy--will update if I find one) placing herself in Camp Three. Of course, that is not the position she pursued through her questions on Tuesday. Maybe she recognized the potential problem with Magill's suggested solution of expanding codes of conduct to reach more speech.

6) I will leave on this question: What will it take to move campers from Three to One? As I have said, I believe many of these campers agree that a lot of this speech (including a lot of the speech at the center of this week's controversy) is protected because it does not rise to incitement, threats, or harassment. But they: 1) Recognize that universities have not acted as if it were protected until Jews were the targets and 2) Expect universities to return to past practices when future speech targets different groups. Given that we cannot predict the future, what should universities do? Is an acknowledgement of the change--which no one has done--sufficient? Must it include a mea culpa (or kaper lanu--a detailed list of past improper firings, expulsions, and sanctions against faculty and students? Must that include some compensation or restitution to them? Does it require more formal prospective commitments? Must universities dismantle the DEI apparatus and presence of CRT programs (that is Reynolds' answer) and maybe all Sociology programs (another WSJ suggestion)? Something more? It would great to see this become the question, rather than unhelpful insistence--perpetuating universities past sins--that everything is incitement to violence.

Posted by Howard Wasserman on December 8, 2023 at 10:48 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Race or Rez?

In argument in Harrington v. Purdue Pharma (on the settlement of the opioid bankruptcy), there was much discussion of the "res" of the bankrupt estate. Justice Gorsuch and Barrett referred to it as a "rehz" (as opposed to "race"), a pronunciation I never heard before.

Posted by Howard Wasserman on December 8, 2023 at 06:47 AM in Howard Wasserman | Permalink | Comments (0)

Thursday, December 07, 2023

Many camps respond to the antisemitism hearing

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

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

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

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

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

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

Wednesday, December 06, 2023

Penn abandons the First Amendment (Updated)

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

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

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

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

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

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

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

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

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

Harvard Hillel responds to President Gay

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

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

Here is the key paragraph:

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

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

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

I reprint the email in full after the jump.

Dear Harvard Hillel Community,


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


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


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


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


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

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

More oxes, more gore, more free-speech opportunism

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

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

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


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

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

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

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

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

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

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

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

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

Tuesday, December 05, 2023

Court dumps tester case

On mootness grounds in a 3+-page opinion from Justice Barrett; the court vacates the lower-court judgment under Munsingwear.  The interesting stuff is two opinions concurring in the judgment.

Justice Thomas argues that the plaintiff lacks standing and, because standing is antecedent to mootness, the Court should resolve the case on that basis. His standing analysis--whether intentionally or not--illustrates why this is all merits. Thomas repeatedly describes standing as being about legal rights: " To have standing, a plaintiff must assert a violation of his rights;" plaintiff "lacks standing because her claim does not assert a violation of a right under the ADA, much less a violation of her rights." But the Court describes standing as being about injury, not legal right; standing asks whether plaintiff suffered an injury, while the merits consider whether he has a right under some legal source and whether that right was violated. Fletcher's essential insight, which Newsom carries forward, is the impossibility of separating the tww--one cannot suffer an injury unless a legal right attaches to it. I think either would say, on a clean slate, Laufer loses because she does not have a right to information under the ADA and thus loses on the merits. Is Thomas moving towards that view?*

[*] The injury/right separation becomes clearest for third-party standing--the plaintiff suffered an injury while some third party suffered a violation of her rights. Of course, Thomas rejects third-party standing.

Justice Jackson concurs in the judgment to argue that the Court grants Munsingwear vacaturs too automatically, although she agrees with vacatur here because the plaintiff--the victor below--unilaterally caused mootness. Jackson would ratchet up the burden on the party seeking vacatur to show a specific harm beyond disagreement with the lower-court judgment. There is no right to appellate review and the lower-court judgment--valid and binding and precedential when rendered in a live action--is entitled to a presumption of correctness and value that warrants its continuation.

Posted by Howard Wasserman on December 5, 2023 at 09:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, December 02, 2023

Oxes, goring, etc.

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

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

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

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

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

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

Friday, December 01, 2023

JOTWELL: Vladeck on Katz and Rosenblum on legal history in the courts

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Andrea Scoseria Kata & Noah A. Rosenblum, Removal Rehased, 136 Harv. L. Rev. F. 404 (2023), showing that the historical record as to the President's removal power is not as certain as judges and scholars (including Aditya Bamzai,Saikrishna Bangalore Prakash, to whom their essay responds) suggest.

Posted by Howard Wasserman on December 1, 2023 at 10:56 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, November 27, 2023

Brown University faculty commit category error

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

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

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

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

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

Wednesday, November 22, 2023

PJ as a chilling tool

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

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

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

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

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

Tuesday, November 21, 2023

Jews and Free Speech

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

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

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