From Free Speech Coalition, Inc. v. Rokita, decided Friday by Judges Frank Easterbrook and Amy St. Eve:

Indiana seeks a stay of the preliminary injunction that a district court entered preventing the enforcement of Ind. Code § 24-4-23, which requires web sites to limit minors' access to certain sexual materials.

Indiana's statute is functionally identical to one adopted by Texas. That statute has been held to be valid [by the Fifth Circuit, though the Supreme Court has agreed to hear the case]. Free Speech Coalition, Inc., which is a plaintiff in both the Indiana case and the Texas case, asked the Supreme Court to prevent enforcement of the Texas statute while that litigation continued. That application was denied, so the Texas statute is now in force.

We do not see any adequate reason why Texas's law may be enforced pending the [Supreme Court's] decision on the merits in Free Speech Coalition v. Paxton, while Indiana's may not be enforced. Functionally identical statutes should be treated the same while the Supreme Court considers the matter. Accordingly, Indiana's request for a stay is granted. The stay will remain in effect until the Supreme Court has issued its mandate in Free Speech Coalition v. Paxton.

Briefing in this appeal will be deferred until the Supreme Court has decided Free Speech Coalition v. Paxton.…

But Judge Ilana Rovner concurred in part (as to deferring briefing) and dissented in part (as to the stay of the trial court injunction):

I can certainly see the value in terms of judicial efficiency and deference in the approach taken by the majority here, and it has an intuitive appeal. Because of the opposite procedural postures of the two cases, however, granting the stay here upends the status quo and imposes a burden on the plaintiffs that cannot be justified by the Supreme Court's summary denial of the stay here.

The Fifth Circuit in Paxton held that the age-verification component of the statute was constitutional, and the plaintiffs did not seek a stay in that court. Therefore, the "status quo" at the time the Supreme Court was presented with the stay motion was that the statute was not enjoined and was being enforced—and the plaintiffs therefore were already subjected to its burdens. The Supreme Court's summary decision without any comment or dissent merely left the case as it found it, leaving the parties no worse off than they had been.

Here, in contrast, the district court held that the statute was unconstitutional, and granted a preliminary injunction, enjoining it on First Amendment grounds and denying the motion to stay that injunction. The result, of course, is that the Indiana statute has never been in force, unlike the Texas statute. We have not yet had the opportunity to consider the appeal on the merits, and therefore, the current state in our case is that the plaintiffs have not been required to comply with the burdensome requirements of the Act. If we were to alter that status quo, we should do so only by considering the stay on the merits and determining that a stay is appropriate under that analysis. Otherwise, we impose a cost on the businesses and individuals that have to comply with the Act, and curtail their First Amendment rights, based solely on an unreasoned stay denial even though the only court decision as to this Indiana statute held that the burden is unconstitutional. And such a precedent could have drastic consequences in a future case where the economic burden of a statute was even greater, by subjecting the parties to that burden while awaiting the Supreme Court's decision without ever considering the relative harms to the parties.

If we reached that conclusion after a careful analysis of the stay motion on the merits, the result would be justified. But to reach it for parity alone, when the cases are presented in opposite postures, accords too much weight to a one-sentence denial of a stay by the Supreme Court, and that is too thin a reed to support imposing what, in our case, have been deemed unconstitutional burdens. We should impose such burdens only after considering the standards appropriate to a stay appeal on the merits: the likelihood of success on the merits and existence of irreparable injury to the moving party, the injury to the other party if a stay is granted, and the public interest. The grant of a stay without proceeding through that analysis unjustifiably absolves the moving party of its burden of proof in its quest to upend the district court's denial of that stay.

A denial of a stay by the Supreme Court, which might turn on the relative harms to the parties and not the merits of the legal claim, is not a decision on the merits of the case, nor is a grant of certiorari. By granting a stay of the district court's injunction here, and allowing enforcement of a law deemed unconstitutional by the district court, we give the Supreme Court's stay denial an impact beyond its precedential value. One could as easily argue that the Court's grant of certiorari signals a concern with the Fifth Circuit's determination of constitutionality, and favors leaving the district court's determination in place. Either approach is problematic, because neither the summary denial of the stay nor the grant of certiorari is a decision on the merits, nor should they be treated as such.

Although I do not support granting the motion, I am sympathetic to the argument that sometimes the most prudent and respectful course is to hold an appeal in abeyance until the Supreme Court's ruling, particularly in a situation such as the one before us involving functionally-identical statutes. But a true abeyance here would be to freeze the proceedings in this case as is, retaining the status quo until the Supreme Court issues its decision. Holding proceedings in abeyance is also supportable, given that the grant of certiorari means that the likelihood of success component of the stay motion is up in the air. It is a legally-supportable approach that adequately defers to the Supreme Court's decision to consider the merits of the underlying issue here.

For that reason, if we choose not to consider the motion before us on the merits, the more supportable approach would be to suspend proceedings until the Supreme Court issues its ruling, as we have done numerous times where a pending Supreme Court case may be dispositive. Summarily granting the stay and upending the status quo, and allowing a statute that the district court has determined to be unconstitutional to take effect without holding the moving party to any burden of proof, should not be an option….

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[A.] From today's Pennsylvania Supreme Court majority opinion in Oberholzer v. Galapo, written by Justice Kevin Dougherty, joined by Chief Justice Debra Todd and Justices Christine Donohue and Sallie Updyke Mundy:

Dr. Simon and Toby Galapo (appellants) own a home in Abington Township, Montgomery County, the rear yard of which borders the property of Frederick and Denise Oberholzer (appellees). Although the properties are separated by a creek, low-lying shrubs, and some tall trees, the houses and yards remain visible to one another. In November 2014, a brewing feud between the neighbors over landscaping issues reached a boiling point after Dr. Galapo confronted Mr. Oberholzer about a resurveyed property line and Mrs. Oberholzer responded by calling him a "fucking Jew."

This prompted the Galapos in June 2015 to erect the first of many signs primarily displaying anti-hate and anti-racist messages "along the back tree-line directly abutting [the Oberholzers'] property line, pointed directly at [the Oberholzers'] house, and in direct sight of [other] neighbors' houses." All told, the Galapos posted twenty-three signs over a years-long span, during which the neighbors continued to quarrel over other minor nuisances….

The signs included, among others, "No Place 4 Racism," "Hitler Eichmann Racists," "Racists: the true enemies of FREEDOM," and twenty more. The Oberholzers sued, claiming the Galapos' posting of the signs constituted "(1) private nuisance; (2) intrusion upon seclusion; (3) defamation – libel and slander; (4) publicly placing the Oberholzers in false light; and (5) intentional infliction of emotional distress." The trial court ordered the Galapos to move or reorient the signs so that they "be positioned in such a way that they do not directly face and target [the Oberholzers'] property: the fronts of the signs (lettering, etc.) are not to be visible to [the Oberholzers] nor face in the direction of [their] home."

Today, the Pennsylvania Supreme Court held the injunction violated the Pennsylvania Constitution's free speech clause. The Court applied its 1978 precedent in Willing v. Mazzacone, which generally suggested that injunctions against speech (in that case, against libel) are unconstitutional prior restraint, and held that it applied to this situation as well. Recent court decisions throughout the country have mostly concluded that the federal First Amendment doesn't prohibit permanent injunctions against speech found to be constitutionally unprotected, for instance because it is libelous. But state courts are entitled to read their state constitutions as more speech-protective than the federal Constitution. A few excerpts from the 57-page opinion:

[1.]

The fact that one purpose of the Galapos' signs was to engage in a "personal protest" against the Oberholzers does not alter this conclusion [that the speech cannot be enjoined]…. Article I, Section 7 [of the Pennsylvania Constitution] "specifically affirms the 'invaluable right' to the free communication of thoughts and opinions, and the right of 'every citizen' to 'speak freely' on 'any subject' so long as that liberty is not abused." Those sweeping terms necessarily include the right to use speech as a means of (peaceful) protest.

[2.] For purposes of this categorical protection,

What matters is whether the "speech is of public or private concern, as determined by all the circumstances of the case." "Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." Further, the "arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern."

And the speech here was on a matter of public concern, even though it stemmed from a private dispute:

Mrs. Oberholzer admitted to making an offensive, anti-Semitic remark to Dr. Galapo, which some might argue is "part of a broader, societal trend of hate and violence toward Jewish people." In response, the Galapos erected on their own lawn stationary signs decrying hatred, anti-Semitism, and racism. We have no hesitation in finding "[t]hese are concerns of general interest to the Jewish community and the wider public[.]"

[3.] Injunctions might be proper when "substantial privacy interests are being invaded in an essentially intolerable manner," but that high threshold was not met here:

The Galapos' signs are stationed exclusively on their own property and they lack any coercive or other element that might implicate the Oberholzers' privacy interests. Nor do the signs present any type of actionable, non-speech-based nuisance, like excessive illumination or loud noises. The signs are just that: signs. All homeowners at one point or another are forced to gaze upon signs they may not like on their neighbors' property—be it ones that champion a political candidate, advocate for a cause, or simply express support or disagreement with some issue. If a single judge could suppress such speech any time an offended viewer invoked a generalized right to residential privacy, without proving more—specifically, that substantial privacy interests are being invaded in an essentially intolerable manner—it would mark the end to residential expression; after all, we cannot ignore that the Galapos have property rights too….

[W]e do not doubt the permanent injunction judge's finding that the Galapos' signs "severely and negatively impact the [Oberholzers'] well-being, tranquility, and quiet enjoyment of their home." That finding, however, is not equivalent to a determination "that substantial privacy interests are being invaded in an essentially intolerable manner[,]"and the record does not support such a conclusion in any event.

[4.] Nor does it matter that the injunction "only ordered the Galapos to turn their signs around and make them opaque rather than take them down entirely": "By preventing the Galapos from directing their message to one of their intended audiences—the Oberholzers—the court violated the Galapos' speech rights."

[B.] Justice Kevin Brobson dissented, arguing that content-neutral injunctions aimed at preventing private nuisances caused by residential speech are constitutional; here's an excerpt (though this opinion is also quite long):

[1.]

[T]he signs were not directed toward the public. Instead, the Galapos erected the signs in their back yard and directed them strictly toward the Oberholzers—i.e., one private home—while placing zero signs in their front yard for the public to see. Additionally, if the Galapos intended to reach a broader audience with the signs, there would be no need for the Galapos to appeal from the trial court's order entering the Injunction because, under the Injunction's limitations, the signs were still visible to the neighbors, just not the Oberholzers. The nail in the coffin that cements these points is Dr. Galapo's testimony that it was irrelevant whether anyone other than the Oberholzers saw the signs. Thus, the foregoing makes clear that the Galapos' signs were targeted speech designed to disrupt the quiet enjoyment of the Oberholzers' home….

[2.]

I fail to see how a severe and negative impact upon the well-being, tranquility, and quiet enjoyment of the Oberholzers' home is insufficient to warrant injunctive relief. Surely, the quiet enjoyment of the home is a "substantial privacy interest." The Majority also offers no explanation for how a severe and negative impact on that interest has any meaningful distinction from an "intolerable invasion" of privacy.

[C.] Justice David Wecht dissented as well, also in a long opinion. A few excerpts:

[1.]

I conclude ultimately that the injunction here is not a prior restraint and does not violate the no-injunction rule, a rule that in any event does not exist in Pennsylvania, and one that would not apply to this case even if it did exist here. Contrary to the Majority's analysis, equity courts possess the authority to issue certain kinds of narrow injunctions that restrict speech so long as those injunctions can withstand either intermediate scrutiny (for content-neutral injunctions) or strict scrutiny (for content-based injunctions). Because the instant injunction survives application of either standard, it should be upheld.

[2.]

At the heart of the prior restraint doctrine is the idea that "a free society prefers to punish the few who abuse rights of speech after they break the law [rather] than to throttle them and all others beforehand." Narrowly tailored permanent injunctions do not throttle speakers before they break the law. Rather, they threaten subsequent punishment for repeat lawbreaking.

[3.]

[T]he injunction here also is extremely narrowly tailored to remedy the nuisance without burdening any more of the Galapos' speech than is absolutely necessary. The injunction does not prevent the Galapos from expressing—to the Oberholzers or to anyone else—any of the messages that appear on any of the twenty-three signs. The injunction merely prohibits the Galapos from expressing those views in the exact manner that they had been employing—i.e., the tortious manner, which consisted of a years-long performance involving a rotating assortment of nearly two dozen signs placed along the property line so that they would be visible from inside the Oberholzers' home.

Even with the injunction in place, the Galapos remain free to communicate the messages featured on their signs to the Oberholzers in any other way that they please. They can move the signs to their front yard. They can hang fliers on telephone poles in the neighborhood. They can place bumper stickers on their cars. They can post the messages on a social media application for neighbors. They could even stand on the sidewalk in front of the Oberholzers' home holding the signs. I could go on. The critical point here is that the present injunction is laser-targeted to remedy the nuisance while preserving the Galapos' right to express their thoughts and ideas in a non-tortious manner….

Furthermore, even assuming that the Majority is correct that the Galapos' aim here was at least partially to educate the "local community" on "the consequences of hatred and racism," … [t]he injunction has no impact at all on the Galapos' freedom to speak to the community about anti-Jewish hatred in any of the usual ways that many of us do [citing several articles about anti-Semitism, including by Justice Wecht himself].

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So reports the Johns Hopkins Hub; here's the underlying statement, from the President, Provost, and top deans:

As leaders of Johns Hopkins University, we are often called upon in the face of global, national, or local occurrences to issue public statements on behalf of the institution. These requests are usually grounded in a sense of connection to the values and purpose of our university and our common humanity, and on the occasions when we have issued such statements, we have attempted to choose our topics and words carefully.

In recent years, requests for institutional statements have increased in frequency. The subjects upon which we have been urged to speak have varied widely—human rights violations, acts of discrimination, changes in health regulations, incidents of targeted violence, military conflicts, and natural disasters, among others, have led to calls for a university statement.

Often those seeking such statements want us to identify and condemn the actors whom they regard as principally responsible. In other cases, those seeking statements simply desire an expression of concern or sympathy for the persons directly affected by the incident in question. However, we must recognize that taking institutional positions can interfere with the university's central commitment to free inquiry and obligation to foster a diversity of perspectives within our academic community.

As is the case with many of our peers, we have been weighing the value, appropriateness, and limitations of such institutional statements. We—as university leaders and deans—have arrived at a strong commitment to make institutional statements only in the limited circumstances where an issue is clearly related to a direct, concrete, and demonstrable interest or function of the university. We write today to share our reasoning on this important issue and to clarify and deepen our commitment to a posture of restraint.

To begin, the very idea of an "official" position of the university on a social, scientific, or political issue runs counter to our foundational ethos—articulated most clearly in our Statement of Principles of Academic Freedom—to be a place where competing views are welcomed, challenged, and tested through dialogue and rigorous marshaling of evidence. The university is the site, more than any other institution in our society, where the process of truth-seeking through intense and open contestation is given pride of place. Although institutional statements may feel warranted, consoling, or, at times, even necessary to guide the university through difficult moments, experience has shown that they can be counterproductive, and even at odds with our core mission. These statements can too easily fuel a perception that there are approved or endorsed "institutional" views on political or social issues, which may, in fact, conflict with the views of members of our community. They risk interfering with our truth-seeking function and compromising the ethos and credibility of the institution in the process.

Additionally, institutional statements can be perceived as performative or rote: They can excuse the absence of meaningful action to bring the community together in challenging moments, take up difficult questions, and learn, discuss, and debate together in a mutually respectful and supportive manner. They also can unintentionally model for our students that the only, or best, avenue for engaging with issues is to make public statements, obscuring that there are more effective ways to make change in the world.

Moreover, such statements foster an expectation that the institution will speak on a wide range of topics and a perception that when we decline to do so, it is a signal that the issues or the concerns of affected community members are unworthy of our attention. Why do some domestic or international conflicts or crises command our institutional attention, while others are regarded as less salient?

As the tide of statements has risen across the university, it has become clear that the more statements we publish, the more injurious the slight to members of our community when we decline to issue a statement in response to some other incident. This pattern not only undermines our commitment to inclusivity but also erodes trust in institutional leadership and, as noted earlier, compromises our core mission as a place of open inquiry and diverse perspectives.

For these reasons, we will restrict our communications to the standard we have articulated—limiting our statements to those occasions where an issue is clearly related to a direct, concrete, and demonstrable interest or function of the university. This means that not issuing a statement will be our default in the great majority of cases we are likely to face.

We acknowledge that the line between those issues that implicate a core interest of the university and those where the impact is less direct is not always easily drawn. But the inevitability of hard cases is not an argument against the approach we are adopting, which we believe will address the lion's share of cases that typically confront the university. Against this benchmark, for instance, a decision by government to reduce our permitted scope of activities might well justify a statement, but an event that has occurred internationally or nationally and that has no direct or concrete impact on our capacity to discharge our mission would not.

Critically, this posture of restraint does not mean the university will be unresponsive or unfeeling in the face of controversy or tragedy. Our priority is to respond to the events around us through the channels that are our university's core strength and time-honored calling—creating knowledge, engaging with ideas, and bringing discoveries and care to the world. When an external event affects members of our community, our university's focus will be to engage interested members of our community in educational and community programming that addresses the topic. Where appropriate, the university can offer direct support and engagement for those among us who are affected by the matter.

Further, our commitment as university leaders to embrace a policy of restraint is not meant to signal that members of the community should retreat from the world or the priorities of our institution. Indeed, our faculty, students, and staff engage the communities around us in countless productive ways, and we will continue to encourage our scholars to bring their ideas and expertise to inform the critical issues of the day. With the opening of the Hopkins Bloomberg Center, our capacity to serve as a platform to explore these issues has been magnified. And the university will remain unwavering in its commitment to values and aspirations in areas of strategic importance such as those embodied in foundational documents like the Ten for One and the Second Roadmap on Diversity, Equity, and Inclusion.

Finally, we are eager to engage faculty colleagues in an examination of whether this posture of restraint is appropriate not only for university leaders and deans but also for departments, centers and other units of the university. We will be working with the Johns Hopkins University Council to develop an answer to this question over the course of the fall term and to solicit broad input from the university, including divisional academic advisory boards and senates.

Of course, the dedication to institutional restraint will not apply to any individual faculty member speaking in their own scholarly or personal capacity. Again, the intent of this commitment is to extend the broadest possible scope to the views and expressions of our faculty, bolstering the freedom for them to share their insights and perspectives without being concerned about running counter to an "institutional" stance.

Ours is an extraordinary institution, a place furthered by the courageous interrogation and boundless discovery of our colleagues. The project of the university as an institution is to create the conditions for that exploration, discovery, and engagement, even for controversial or disquieting ideas. Against that overarching and foundational goal, we believe that the policy of restraint to which we are now committing ourselves is timely, principled, and critical for the continuing relevance and mission of our university.

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Just heard that one: "[H]e gives twice who gives promptly : payment rendered promptly is worth twice as much," though I take it that this can be used for anything (e.g., requested advice) and not just payment. Apparently stems from Publilius Syrus, though perhaps it was old when he was young.

Thanks to Fred Triem for passing this along.

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This was just announced today; if you're interested, please apply, and if you know people who might be interested, please pass this along to them.

Opportunity for Post-JD Scholars

The Hoover Institution at Stanford University is seeking an outstanding early-career legal scholar interested in researching free speech law, in preparation for seeking an academic position at a law school or elsewhere.

If selected, you would work on your own research with the guidance and supervision of Senior Fellow Eugene Volokh, who has moved to Hoover after 30 years as a Professor of Law at UCLA School of Law. You would be appointed a Research Fellow with the Center for Free Expression, for one year from July 2025 through June 2026. The term may be renewed, if both you and Hoover agree, for one extra year. You would be expected to be physically present at the Institution, working full-time, with no competing major professional commitments.

There is no teaching obligation, so you would have maximum time to research and write. However, you would be expected to help organize and participate in occasional conferences, workshops, and lectures, and to work on occasional projects with Volokh or other Senior Fellows. These tasks would all be related to free speech law and are expected to help promote your own research and future career.

Eligibility Criteria:

• You must have a JD or its equivalent by June 2025.
• You must commit to staying for at least one year (July 2025 through June 2026). The date range might be moved back slightly if required because of a judicial clerkship that will keep you occupied until July to September 2025.
• A judicial clerkship (past or upcoming) is not required, though it is a plus.
• Work experience as a lawyer is not required, though some such experience is a plus.
• A PhD in another discipline is not required, though neither is it frowned upon.
• You must have written a publishable law journal article already while in law school or shortly after. Whether it has already been published or not does not matter, so long as it is essentially complete. That article need not have been on free speech law.
• You must be planning to work on free speech law, understood broadly. This is not limited to First Amendment law, but includes federal or state statutes, common law rules, state constitutional provisions, transnational or international legal provisions, and rules of important private institutions—so long as they relate to the regulation (or deregulation) of speech, press, expression, assembly, expressive association, petition, and the like. Likewise, it includes doctrinal, historical, theoretical, and empirical scholarship.
• We prefer projects on important but insufficiently studied topics, rather than on ones that have already been heavily researched by others.

To Apply, Please Submit:

• Your resume
• Your law school transcript
• Plans for at least two research projects, described in some detail; draft Introductions for what would become journal articles tend to be a good format
• At least one published or completed and publishable research article
• Any other articles, whether published or in draft
• Contact information for three professors or other legal scholars who can speak to your intellect, writing, or research agenda

Requirements:

The Research Fellowship position provides full Stanford benefits with a salary range of $80,000-125,000. Depending on individual circumstances, a housing and relocation allowance may also be provided.

Completed applications must be submitted online by Deadline to Apply: February 1, 2025

Please direct questions to Julie Park at julp@stanford.edu.

About Stanford University's Hoover Institution:

The Hoover Institution on War, Revolution, and Peace is a public policy research center devoted to the advanced study of economics, politics, history, political economy, and law—both domestic and foreign—as well as international affairs. It is located on the Stanford University campus and is an academic unit of the University.

The Hoover Institution is an equal employment opportunity and affirmative action employer. All qualified applicants will receive consideration without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, protected veteran status, or any other characteristic protected by law.

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From Magistrate Judge Steve Kim's opinion in Perez v. Engleman (C.D. Cal.), decided two months ago but just recently affirmed by District Judge George Wu:

Petitioner Jonatan Perez is a federal inmate in the custody of the Bureau of Prisons (BOP) who lost 41 days of good-conduct-time credit (among other sanctions) after a BOP disciplinary decision finding that he had engaged in conduct disrupting or interfering with prison security and operations. Petitioner was identified in a public TikTok video made with a contraband cellphone showing him and several other inmates preparing, cooking, or eating contraband food [shown above -EV] inside a low-security federal prison camp….

When interviewed, the suspected inmates remarked that it was "very easy and convenient" to get contraband food into the prison camp. Petitioner added that "he used to be a Chef" and "would help cook inside the dorm and help others make food." …

No express BOP regulation, however, prohibits video recording or social media posting as such. BOP investigators thus had to rely on a catchall regulation—as pertinent here, prison code 199—prohibiting conduct that (a) disrupts or interferes with the security and orderly operation of a BOP facility, and (b) is "most like" an otherwise expressly prohibited act. Since cellphones or similar electronic devices—essential to creating video content or posting it on social media—are of course banned inside federal prisons, petitioner and the other inmates identified in the TikTok video were each charged in an incident report with generally prohibited disruptive conduct most like the expressly prohibited possession, introduction, or use of a contraband device….

Petitioner sued, claiming that there wasn't enough evidence supporting the discipline, but the court ultimately agreed with the prison:

It was undisputed, for starters, that petitioner was one of the inmates shown in the TikTok video preparing and cooking lobsters—undeniably contraband food—while in BOP custody. It was also undisputed that someone in the prison camp (even if unidentified) used a contraband cellphone to record the video of petitioner handling those lobsters. And while the DHO [Disciplinary Hearing Officer] could not find petitioner guilty based solely on his decision to remain silent during the UDC [Unit Discipline Committee] proceedings, she could still draw an adverse inference of petitioner's culpability based on his silence when asked to admit or deny the charges in those proceedings. In the face of those facts, then, petitioner has not met his burden to show—under the highly deferential some-evidence standard—that the DHO's decision was "so devoid of evidence" that it lacked any "basis in fact" or was "otherwise arbitrary."

To be sure, petitioner consistently denied (and continues to deny) knowing that he was being recorded with a cellphone. He claimed, for instance, that someone could have recorded him surreptitiously by using the camera-phone's zoom feature from a distance. But the DHO was not compelled to accept that theory or to blindly credit petitioner's claimed ignorance of being filmed while preparing contraband food. Nor did the DHO need, as petitioner maintained, "definitive evidence" of his awareness that he was being filmed—she needed only "some evidence." And by that standard, the DHO could have objectively relied on the apparent close camera angle to petitioner—as revealed on the face of an incriminating video screenshot—to find his professed ignorance of being filmed not credible.

Of course, that is not the only permissible inference that the DHO could have drawn from the screenshot (including possibly for some reasons posited by petitioner). But federal due process "does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board." What matters instead is only whether the BOP's determination was rational, not whether it was right or whether a federal court would reach a different decision in the first instance. By those lights, it was objectively reasonable for the DHO to infer petitioner's awareness of being recorded with a cellphone based on the record evidence, including the facially incriminating video screenshot.

Petitioner also challenges, however, the DHO's added finding that he was "complicit" in the creation or posting of the TikTok video itself. He maintained below, for instance, that there was no evidence of his "willful participation" in the production of that video as such. And he also points to the lack of any evidence establishing even his knowledge of the video's apparent purpose—online posting through the public TikTok platform. In petitioner's view, such intent or (at least) knowledge is needed to find him guilty of disruptive conduct because, without it, inmates engaging in otherwise innocent behavior behind bars would be guilty of such conduct anytime they are passively filmed by someone else—even if they don't consent to (or even if they happen to be aware of) being filmed with a contraband device.

But contrary to petitioner's assertions, it was unnecessary for the DHO to find that he intentionally planned or participated in the production of public social media content—on top of finding that he knowingly permitted an illicit recording of him preparing contraband food—to find him guilty of disruptive conduct. For one thing, nothing in prison code 199 suggests it requires specific rather than just general intent to find an inmate guilty of disruptive conduct. And for another, unlike his hypothetical inmate unwittingly recorded doing innocent activities, petitioner was not filmed engaging in innocent conduct—he was recorded while doing something undeniably prohibited in prison: cooking and eating lobsters.

It is one thing to maintain that the BOP may not discipline an inmate for disruptive conduct for no reason other than that he may have been captured by illicit video—without his consent or knowledge—while engaged in otherwise authorized or innocent conduct. It is altogether different, however, to claim that the BOP cannot treat the preparation of contraband food—while being knowingly filmed with a contraband device—as disruptive conduct unless the inmate either intended the recording to be posted online or knew what it would be used for afterward…. So even if there were insufficient evidence that petitioner intentionally helped produce the TikTok video or knew that the recording of him would be posted online, the BOP's disciplinary decision can still be upheld based on the credited evidence that petitioner knowingly took part in an unauthorized video recording by a contraband device while handling contraband food….

Gwen M. Gamble represents the prison.

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From Webb v. Aspen View Academy, decided Thursday by Magistrate Judge Scott Varholak (D. Colo.); the plaintiff was the Business Manager of a public charter school, and alleges she was fired in part based on a Facebook post (though there's a lot more there as well, discussed in the long opinion). Note that, the government may generally discipline (including by firing) an employee based on the employee's speech if

1. the speech is said by the employee as part of the employee's job duties, Garcetti v. Ceballos (2006), or
2. the speech is on a matter of purely private concern, Connick v. Myers (1983), or
3. the damage caused by the speech to the efficiency of the government agency's operation outweighs the value of the speech to the employee and the public, Pickering v. Board of Ed. (1968).

Here's the court's analysis of items 2 and 3:

After examining the content, form, and context of Plaintiff's Facebook Posts, the Court concludes that Plaintiff's speech contained therein was a matter of public concern. The Plaintiff's speech in the Facebook Posts, as understood by Defendants, primarily concerned the safety and efficacy of COVID-19 vaccines. In the first exchange, Plaintiff added her input to a lengthy discussion regarding the safety of vaccines and opinions towards vaccine mandates, particularly as they related to schoolchildren. The discussion involved over a dozen individuals. In response to multiple individuals stating that they refused vaccines for their children based on research that they had conducted, Plaintiff stated: "I did lots of research and vaccinated both my son and daughter. You're welcome." Another individual who had an opposing viewpoint responded to Plaintiff's statement, and the two engaged in a back-and-forth discussion.

Candidly, the discussion devolved—with Plaintiff telling the other individual to "enjoy [her] cancer," and the other individual stating that she "pit[ied]" Plaintiff's children and sarcastically asking for "someone [to] pass this bitch a cookie." But the core communication related to which viewpoint regarding vaccines (and, as Defendants understood it, COVID-19 vaccines specifically) was more supported and more protective of children. This topic is one of public concern….

A similar analysis applies to the second Facebook post. There, Plaintiff states that she has received the COVID-19 vaccine in order to "be able to reduce the spread, travel[,] and not have to wear a mask per our public health order." Plaintiff states her belief that others should "get a vaccination or wear a mask to protect others," and that doing so is "good for the human race." Plaintiff concludes by encouraging others to "ask YOUR [doctor] what they think, [because] they'll suggest the vaccine and administer it while wearing a mask!!!" Plaintiff's post received numerous responses from different individuals, many of whom supported her viewpoint and many of whom opposed it.

Again, Plaintiff's speech contains arguably offensive content, with Plaintiff stating that the "[c]onspiracy theories, and big pharma stuff is bullshit…STFU!!" But the plain message of Plaintiff's speech—supporting the COVID-19 vaccine for adults and encouraging others to consult with their doctors on receiving the vaccine—was one of deep interest to the community.

The Court further rejects Defendants' argument that speech contained in the Facebook Posts was not intended to be "disseminated publicly" because the speech was not, for example, "submitt[ed]…to a local publication for dissemination" or made "out loud" at "a public meeting of the DCSD or AVA Board of Directors." In both instances of speech on Facebook, the conversation that Plaintiff was posting into or that resulted from Plaintiff's post involved numerous engaged individuals representing a broad swath of viewpoints. Indeed, Defendants acknowledge that Plaintiff's posts caused "parents and staff" within the AVA community to ask questions, and that "[m]ultiple employees" shared Plaintiff's posts with AVA. The Court is therefore confident that Plaintiff's speech made on Facebook was disseminated at least as publicly (and likely more so) than if it had been made in a "local publication" or at a school board meeting….

Having determined that Plaintiff's Facebook posts were not made pursuant to Plaintiff's official duties and were made on a matter of public concern, the next question is whether the government's interests, as employer, in promoting the efficiency of the public service, are sufficient to outweigh Plaintiff's free speech interests….

In the Tenth Circuit, "[t]he only public employer interest that outweighs the employee's free speech interest is 'avoiding direct disruption, by the speech itself, of the public employer's internal operations and employment relationships.'" But the employer need not show that the speech "in fact disrupted…internal operations and employment relationships." "It need[ ] only to establish that the speech could potentially become so disruptive to…operations as to outweigh [the employee's] interest in the speech." …

Viewing the facts in the light most favorable to Defendants, Defendants simply have not established that Plaintiff's speech actually disrupted AVA's operations and employment relationships, or held real potential to do so.

As for actual disruption of this type, the most that Defendants can muster is that "questions were asked [by parents and staff] as to whether it was professional for an employee of the school to be posting on a social media platform;" AVA had "a few conversations with parents and staff [who] felt that [the speech] was an unprofessional, inappropriate remark to put on social media;" and "[m]ultiple employees shared [the speech] with AVA and were showing it around the school because…they couldn't believe it."

None of the individuals who were asking questions, involved in conversations, or sharing the speech are identified. There is no evidence that Plaintiff's speech strained internal employment relationships or harmony, impacted the ability of AVA to achieve its organizational and educational goals, or impaired Plaintiff's ability to effectively perform her job. Defendants do not provide support for the notion that a public employer has an interest in restricting speech simply because it causes member of the public to have "conversations" or "ask questions."

Nor does the record support a significant potential for disruption. For example, Defendants (understandably) focus on Plaintiff's statement to the parent of an AVA student to "enjoy your cancer," when arguing that Plaintiff's "inappropriate and insulting" language damaged AVA's mission. Defendants proffer that this type of language may "create an environment where students are encouraged to be similarly insulting, [or] where staff members feel free to insult, or fear insult from, other members of the school community."

But this instance of speech occurred on July 8, 2020—well over a year before Plaintiff's termination. Yet Defendants offer no evidence that any of the feared organizational disruptions occurred during that year (besides "a few conversations" with unidentified parents and staff), nor do they provide any reason to believe that these disruptions would materialize over a year after the speech occurred. Relatedly, the lack of documented real-time disciplinary actions for Plaintiff's speech undercuts the strength of Defendants' fears of potential disruption. While Mr. Barber may have had a "verbal conversation" with Plaintiff about "times where…she made some social media posts being angry," the urgency of Defendants' real-time concern about Plaintiff's speech on Facebook does not correspond to the weight that Defendants now seek to place on the harms that the speech could have caused….

Defendants' testimony does indicate that the Facebook posts may have only been a "small piece of" what Defendants considered. Defendants also rely on, for example, documented negative interactions with staff, mistakes raised by the finance committee, and being late with required audits. Looked at in the light most favorable to Defendants, the record could be construed to indicate that the Facebook posts exerted "little or no influence on the employer's decision," such that it "cannot be said to have played a substantial part in the employment decision."

Plaintiff, of course, disputes the legitimacy of these alternative reasons—arguing that they were part of a "pretextual…search for unprofessional conduct after the decision to terminate" Plaintiff for protected speech had already been made. But the record could be read to support the opposite conclusion as it relates to the Facebook posts, with the Facebook posts being unearthed and provided as "more of the unprofessional behavior" only after Mr. Barber and AVA leadership had already recommended that AVA consider terminating Plaintiff.

Ultimately, the record is not so clear on the role that Plaintiff's Facebook posts played in her termination as to merit summary judgment for either Plaintiff or Defendants. Instead, the issue should remain with the factfinder, as is typical in cases such as this.

The court also plaintiff to proceed on her Colorado Lawful Off-Duty Activities Statute, which I discuss at pp. 309-10 of this article; note that the statute would apply to the off-duty speech and other lawful off-duty activities of private employees and not just government employees.

Plaintiff is represented by Bradley John Sherman (Cornish & Dell'Olio, P.C.)

The post Claim That Public School Employee Was Unconstitutionally Fired for Sharp Pro-COVID-Vaccine Post Can Go Forward appeared first on Reason.com.

From Thursday's decision by Chief Judge Kristine Baker (E.D. Ark.) in For AR Kids v. Town of Rose Bud (paragraph numbers omitted):

For AR Kids is a Ballot Question Committee organized under Arkansas Law in December 2023 with the purpose of placing its "Educational Rights Amendment of 2024" on the November 2024 ballot. The proposed amendment would amend Article 14 of the Arkansas Constitution to, among other things, require all schools receiving public funds to meet identical standards and would require universal access to pre-K education….

You can see the text of the proposed Amendment here.

[P]laintiff challenges the Town's ordinance No. 2024-03 passed and adopted by the Town on June 17, 2024. {[The Ordinance] provides in part that "any business or religious or political entity desiring to solicit business, membership or signature for any purpose will be required to rent a booth or spot as selected by the City of Rose Bud, Arkansas, at any such event from which and only from which such solicitation activities may be conducted."} The Town seeks to enforce Ordinance No. 2024-03 at its upcoming event "Summerfest" which takes place in a public park from June 20, 2024, at 4 p.m. until June 22.

The Ordinance was first introduced at a meeting of the Town Council on June 13, 2024, after a member of the Ballot Question Committee inquired about seeking petition signatures at Summerfest.

Mayor Gorham stated at the June 13, 2024, meeting that Summerfest is happy to host the speech of political parties, but not the speech of ballot question committees because "this is a family environment, there is nothing political about this, this is not the type of place that you want to come and get bombarded and asked to sign a petition and read about it or anything like that."

Mayor Gorham clarified that the canvassers could not totally be banned under the law. He stated, "[i]t is not my belief that they should be out there, that they should be allowed to be out there, or what they're doing is right. I want that known, because what's on their ballot, I don't think 98 percent of the town agrees with, but there's nothing we can do, except vote the right people out and the right people in in November."

Plaintiff applied to rent a booth on at Summerfest on Saturday, June 22, 2024. At the hearing, the parties agreed that plaintiff could maintain the booth that it rented throughout Summerfest from June 20-22, 2024.

At the hearing, defendants agreed that Ordinance No. 2024-03 does not regulate plaintiff from seeking signatures for its petition on public rights-of-way surrounding Summerfest including on Baseball Field Road and School Road.

Defendants maintain that plaintiff is prohibited from soliciting signatures for its petition on the Town-owned property immediately outside the Summerfest entrance because it is Town-owned property….

Plaintiff has established a likelihood of success on the merits based on the record before the Court…. Plaintiff has also established the threat of irreparable harm based on the First Amendment interests involved and plaintiff's inability to collect an adequate number of signatures before the July 5, 2024, deadline. Based on the record before the Court at this stage in the proceedings, the balance of the equities favors protecting the plaintiff's First Amendment rights by granting the temporary restraining order….

The court didn't explain its First Amendment reasoning, but here is the plaintiffs' argument, which the court presumably found persuasive, at least in part. This was an ex parte emergency temporary restraining order, so the City didn't present a written argument, though its lawyer participated in the oral argument. According to the Arkansas Democrat-Gazette (Dale Ellis),

Searcy attorney Don Raney, representing the city of Rose Bud, argued at Thursday's hearing that the ordinance was written only to ensure that festival-goers would have a good time and not have to deal with canvassers.

"Everybody is for freedom of speech," Raney said, "but sometimes there's a right of freedom from speech."

(Note of course that this is just an excerpt from Raney's argument; I'm afraid I don't have a full transcript that I can share.)

John C. Williams of the ACLU Foundation represents plaintiffs. Thanks to Prof. Robert Steinbuch for the pointer.

The post Court Strikes Down Arkansas Town Limit on Signature Gathering at Town Festival appeared first on Reason.com.

The post Monday Open Thread appeared first on Reason.com.

From People v. Rolfe, decided Tuesday by the Appellate Court of Illinois, in an opinion by Justice James Knecht, joined by Justices Amy Lannerd and John Turner:

This appeal stems from a June 4, 2021, interaction between defendant, who was protesting and seeking racial justice, and city employees, who were removing "memorials" or "posters" from utility poles near city hall. We note defendant's appellant brief identifies defendant as a nonviolent protestor and member of an activist group opposing police brutality and government misconduct in Winnebago County….

Stephanie Peavy, a code-enforcement officer with the City of Rockford[,] … testified she enforced city administrative ordinances…. [O]n June 4, 2021, … Peavy began the day by removing memorials from utility poles in the area…. In the previous few months, this task had been done fairly frequently, at least weekly….

Peavy testified it was a common occurrence to see defendant. On June 4, 2021, defendant approached the three yelling profanities and racial slurs. He was also blowing the siren on his bullhorn. Defendant came "[w]ithin a couple feet" of the group. Defendant called the three "Ku Klux Klan members" and racist city workers. The three continued cleaning and completed the task. They attempted to hurry, as defendant was harassing them.

Peavy testified "[t]he [bull]horn was rather loud." She stated she was not issued hearing protection for removing posters from a pole. The siren was "[a]bsolutely" close enough to hurt her ears. Peavy stated they reported the incident to the police via e-mail. Peavy did so because this "felt like this was kind of an escalated event." It was common for the workers to be recorded while they were out there and to hear the things they said, but "[t]he siren was new." The situation "just seemed a little different this time."

On cross-examination, Peavy acknowledged defendant did not physically harm her, touch her, or threaten her. When asked if he said anything to her personally, Peavy said he called the group names. Peavy believed the bullhorn noise was loud enough to cause hearing damage.

On redirect examination, Peavy testified defendant "was using a siren and a bullhorn" and "was shouting" at her. Being in a group made her feel more secure….

[Discussion of similar evidence from the other employees omitted. -EV]

Defendant testified on his own behalf. On June 4, 2021, defendant, who considered himself a "protestor," was sitting outside city hall and noticed the memorials in the area were being removed. Defendant knew, based on the wardrobe, city workers were removing the memorials. Defendant grabbed his phone and started to live stream on Facebook.

Defendant grabbed a megaphone and headed toward the memorials, narrating his efforts for the live-stream viewers. Defendant spoke into the megaphone, stating Rockford government employees were removing the memorials. Defendant intermittently changed between using the siren function on the megaphone and using the talk function, as both could not be used at the same time. As defendant arrived at the memorials, he would begin filming, showing the light pole and "what was going on." He estimated he was "three to ten feet" away, in constant motion. Defendant explained he used the megaphone to draw attention to the government employees' actions….

The jury found defendant guilty [of disorderly conduct] …. The court sentenced defendant to 24 months' conditional discharge and fined him $150, plus the minimum court assessment of $439. The court ordered defendant have "no unlawful contact" with [Peavy and other employees] and no unlawful contact with City Market and City Hall….

While we agree the disorderly conduct statute "cannot criminalize protected speech," defendant has not proved his disorderly conduct convictions are based on only "protected speech." We agree the content of defendant's statements were protected. Despite defendant's repeated characterization of his conduct as only words, defendant's choice of words is not the issue.

Defendant's conviction is based on more than words. It was his conduct of shouting into a bullhorn and blaring the bullhorn's siren as close as three feet from government employees and continuing the conduct while following those employees…. Defendant has, therefore, not met his burden of proving his convictions violate the first amendment's protection of free speech….

Under section 26-1(a)(1) of the Criminal Code of 2012, one commits disorderly conduct "when he or she knowingly *** [d]oes any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace." To convict defendant, a jury had to find beyond a reasonable doubt "defendant knowingly engaged in conduct that (1) was unreasonable, (2) alarmed or disturbed another, and (3) provoked a breach of the peace." …

Viewing the evidence in the light most favorable to the prosecution, we find the evidence sufficient for a rational trier of fact to find the elements proved beyond a reasonable doubt. Contrary to defendant's bare contention, no evidence of a group or public response is necessary to provoke a breach of the peace. The Illinois Supreme Court has held, "A breach of the peace may as easily occur between two persons fighting in a deserted alleyway as it can on a crowded public street." In addition, the fact defendant did not directly threaten the government workers does not undermine his convictions, as direct threats are unnecessary.

Here, viewed in the light most favorable to the State, the evidence shows defendant engaged in unreasonable conduct that alarmed or disturbed the city workers and provoked a breach of the peace. The testimony of the workers, as well as defendant, establishes defendant used a bullhorn near them. Defendant admitted being as close as three feet from the workers while using the bullhorn and blaring the siren. The workers testified defendant's yelling into the bullhorn and the siren were loud enough to cause hearing damage, and they felt threatened and scared.

The testimony further establishes defendant followed or entered their pathways to continue this conduct. Any rational jury could have found the elements of disorderly conduct proved beyond a reasonable doubt….

We further note defendant, in his reply brief, states "there is zero evidence that [defendant] played loud noises directly into the employees' ears and faces." Defendant is incorrect. Even defendant acknowledged in his testimony the bullhorn could have been perceived as pointed at the employees' heads….

The post No First Amendment Protection for "Shouting into a Bullhorn and Blaring the Bullhorn's Siren as Close as Three Feet from Government Employees … appeared first on Reason.com.

Sorry; should be fixed tonight or tomorrow, but in the meantime just click on the post title, get to the individual post page that way, and you can see and add comments there.

UPDATE: Fixed now.

The post Glitch Leads Our Comment Links Not to Appear on Front Page, but They're Still on Each Individual Post Page appeared first on Reason.com.

From the Foundation for Individual Rights and Expression (FIRE) (assembled from the Twitter thread, with some nonsubstantive modifications):

USC has just dismissed charges against a professor who was filmed telling a group of protesters last fall, "Hamas are murderers. That's all they are. Every one should be killed, and I hope they all are."

Following the on-campus exchange last November, students launched an online petition and filed formal complaints calling for Prof. John Strauss's termination, accusing him of discrimination, harassment, and fostering an unsafe environment. USC spent 7 months "investigating" the <2-minute exchange caught on film and finally determined Strauss did not engage in discrimination or harassment, and his conduct did not create a hostile environment.

USC's policies promise to protect faculty speech from institutional censorship or discipline — even when others disagree or feel offended. But for Prof. Strauss, voicing his opinion got him a 1mo. campus ban and a 7mo. investigation. While we're thrilled to learn Prof. Strauss won't face additional sanctions for his speech, it's important to remember that a 7-month investigation based on clearly protected political speech is enough to chill speech for both Strauss and the larger USC community.

Colleges and universities must strive to be places of free inquiry, open dialogue, and rigorous debate. When Strauss directly engaged with protesters sharing a message he disagreed with, he was embodying — not undermining — that goal.

For more details on the underlying incident, see this post.

The post USC Dismisses Charges Against Professor Who Said Hamas Should Be Killed appeared first on Reason.com.

Note particularly Keith Whittington's Originalism: A Critical Introduction, which Justice Barrett cited several times.

UPDATE: The Criminal Procedure treatise on which Orin Kerr is a coauthor was cited today by Justice Jackson in Erlinger v. U.S. I didn't read that case as closely, so I missed the cite; thanks to commenter JoeFromtheBronx for pointing it out.

The post Congratulations to Randy Barnett, Will Baude, Steve Sachs, and Keith Whittington, Whose Academic Work Was Cited in <i>Rahimi</i> appeared first on Reason.com.

A few practical thoughts for future cases (all bold emphasis added):

[1.] The Court solidly accepts (with only Justice Thomas dissenting) that "the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others," at least after a judicial finding of such threat. That judicial finding can be in a civil case, and without proof beyond a reasonable doubt.

[2.] The majority opinion is likely to add force to arguments for the constitutionality of so-called "red flag" laws, which empower courts to order seizure of firearms from people when there is sufficient specific, articulable evidence that those people are dangerous (generally for mental-health-related reasons). Of course, much will depend on the details of the particular laws.

[3.] The decision, however, does not validate all restraining order statutes. Consider, for instance, California Code of Civil Procedure § 527.6; that statute authorizes "harassment restraining orders" based on "clear and convincing evidence" of "harassment," which includes not just "unlawful violence" or "a credible threat of violence," but also (emphasis added)

a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.

{"Course of conduct" is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email. Constitutionally protected activity is not included within the meaning of "course of conduct."}

Courts have sometimes issued such harassment restraining orders based just on repeated online public criticism, or other offensive speech, with no findings of "credible threat to the physical safety of others." (See the recent post on Adams v. Gulley, California Judge Orders Removal of Reddit Criticism of Scientist/Consultant Who Publicly Criticized English Lucy Letby Murder Trial.) And California law categorically mandates that "The court shall order a person subject to a protective order issued pursuant to this section to relinquish any firearms" (as indeed happened in Adams v. Gulley). Such orders, issued in the absence of any finding of threat to physical safety, should remain challengeable under the Second Amendment.

[4.] The majority repeated Heller's statement that "prohibitions … on the possession of firearms by 'felons and the mentally ill'[] are 'presumptively lawful'"; Justice Kavanaugh's concurrence did the same, though Justice Thomas's dissent noted that this statement in Heller was "dictum." This suggests that the Court remains generally open to those restrictions, even though it turns out such restrictions actually lack a long historical pedigree.

At the same time, perhaps there is some room after Rahimi for this "presumpti[on]" to be rebutted with regard to people convicted of felonies that don't suggest a "credible threat to the physical safety of others," especially if those felonies are part of the well-post-Framing increase in the number of nonviolent crimes that are classified as felonies. A few courts have so concluded (to oversimplify slightly); U.S. v. Range (3d Cir. 2023) (en banc) is one example. I expect that the Court will send Range back to the Third Circuit for further consideration in light of Rahimi; we'll see what the Third Circuit judges say on remand.

[5.] The Court expressly declined to resolve whether the most relevant history is as of 1791 (when the Second Amendment was ratified) or 1868 (when the Fourteenth Amendment, which has been read as applying the Second Amendment to the states, was ratified):

We also recognized in Bruen the "ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the right against the Federal Government)." We explained that under the circumstances, resolving the dispute was unnecessary to decide the case. The same is true here.

This may be important for various questions, including whether limits on gun acquisition or possession by 18-to-20-year-olds are constitutional.

[* * *]

Some broader methodological takeaways:

[6.] The Court's six conservatives remain solidly committed to analyzing arms restrictions by considering pre-ratification and shortly post-ratification history, and not using balancing tests, "strict scrutiny," "intermediate scrutiny," or the like. Speculation that Justice Barrett was moving away from that approach, based on her Vidal v. Elster concurrence, was plausible at the time of that concurrence, but appears not to have been borne out. Justice Barrett's concurrence in Rahimi reaffirms her originalist approach; to the extent it notes differences from some of the other Justices, it has more to do with her skepticism of certain uses of "tradition" (as opposed to "original history," which she continues to endorse as "generally dispositive").

[7.] Five of the six conservatives (all but Justice Thomas) are willing to uphold restrictions that fit generally within a "regulatory tradition" going back to ratification, but that go beyond the specific details of those historical regulations:

[W]hen a challenged regulation does not precisely match its historical precursors, "it still may be analogous enough to pass constitutional muster." The law must comport with the principles underlying the Second Amendment, but it need not be a "dead ringer" or a "historical twin."

In particular, the majority pointed to

1. "surety laws," under which "a magistrate could "oblig[e] those persons, [of] whom there is a probable ground to suspect of future misbehaviour, to stipulate with and to give full assurance … that such offence … shall not happen[,] by finding pledges or securities," coupled with
2. "going armed" laws that imposed prison terms on people for "riding or going armed, with dangerous or unusual weapons, [to] terrify[] the good people of the land," which tended to lead "to actual violence." (As the Court held in Bruen, the "going armed" laws prohibited going armed in circumstances that created a clear threat of violence, and didn't ban "peaceable public carry.")

The majority concluded:

Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.

[* * *]

Finally, a couple of quick thoughts about the three liberal Justices' concurrences (though their views, as minority views on the Second Amendment, are less practically significant at this point) and about Justice Thomas's dissent (which is likewise less practically significant, as a dissent):

[8.] The liberal Justices continue to reject Bruen and possibly Heller as well, and prefer a "means-ends scrutiny" test (sometimes intermediate scrutiny, under which nearly all gun restrictions have been upheld, and sometimes strict scrutiny). Justice Jackson in particular argues that the Bruen historical approach should be rejected because it has proved unworkable in lower courts:

In my view, as this Court thinks of, and speaks about, history's relevance to the interpretation of constitutional provisions, we should be mindful that our common-law tradition of promoting clarity and consistency in the application of our precedent also has a lengthy pedigree. So when courts signal they are having trouble with one of our standards, we should pay attention.

[9.] Justice Thomas stresses (as Judge Ho did in his separate Fifth Circuit opinion) that:

This case is not about whether States can disarm people who threaten others. States have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution. Most States, including Texas, classify aggravated assault as a felony, punishable by up to 20 years' imprisonment. Assuming C. M.'s allegations could be proved, Texas could have convicted and imprisoned Rahimi for every one of his alleged acts. Thus, the question before us is not whether Rahimi and others like him can be disarmed consistent with the Second Amendment. Instead, the question is whether the Government can strip the Second Amendment right of anyone subject to a protective order—even if he has never been accused or convicted of a crime….

The post Some Takeaways from Today's <i>Rahimi</i> Second Amendment Opinions appeared first on Reason.com.

The article is here; the Abstract:

Speech damages someone's reputation when it leads others to believe that that person has done something that reflects poorly on their character. When that belief is also false the reputational damage is undeserved, and it is the point of American defamation law to protect individuals from suffering such undeserved reputational damage.

It is easy to understand why individuals would need protection from false and derogatory claims made about them in works of nonfiction, such as journalism, documentaries, and biographies. But it is not immediately clear why individuals would also need protection from fiction. Although authors of fiction often base their fictional characters on real people, they do not typically make real people characters in their stories. Even when they do put real people in their stories and depict them as doing bad things, the audience is still usually meant only to imagine the real people doing those bad things.

Nevertheless, some works of fiction are not only about real people but also do real and undeserved damage to their reputations. It may not be true, as has often been alleged, that Aristophanes's comedy The Clouds gave Socrates the reputation for rejecting the gods and corrupting the young that later led to his execution. But readers of parodies of news articles published on sites like The Onion and The Babylon Bee are sometimes duped, especially when they are already inclined to think poorly of the public figure that is being ridiculed.

Of course parodies are believed only when they are not recognized as parodies. But there are other genres of fiction that mix facts into the story, such as biofiction, biopics, and docudramas, and it is not always easy for audiences to distinguish what the author is making up from what the author is, or ought to be, trying to get right.

The biographical drama Amadeus suggested that Salieri poisoned Mozart, re-popularizing an old rumor about Salieri that the filmmakers must have at least strongly suspected was false. Salieri, being dead, is in no position to bring a lawsuit. But the villain of the docudrama When They See Us, Linda Fairstein, is alive and is suing Netflix and Ava DuVernay, the director, for defamation.

Fairstein was chief of Sex Crimes Prosecution during the investigation and prosecution of the "Central Park Five," five Black and Latino teenagers who were convicted of the beating and rape of a jogger in Central Park but who were exonerated years later after a serial rapist whose DNA was found at the scene confessed to the crime and said that he had acted alone. Fairstein alleges that she was defamed in several scenes in the docudrama, including in a scene where she is depicted as concealing potentially exculpatory evidence from the defense and a scene where she is depicted as instructing officers to use harsh interrogation techniques. As a result of her depiction in When They See Us, Fairstein's publishing contract was canceled (she had become a best-selling mystery writer since leaving the DA's office), her literary agents dropped her, #cancellindafairstein trended on Twitter, and Glamour magazine expressed regret they had named her Woman of the Year in 1993.

As the docudrama When They See Us makes clear, fiction about real people can do serious damage to their reputations. It is another question whether it is ever appropriate to hold an author of fiction legally liable for that damage. One aim of defamation law may be to reflect our pre-legal moral duties of care to avoid damaging others' reputations. If so, one important consideration for determining how defamation law should handle fiction is whether and when an author of fiction would count, morally speaking, as having wrongfully damaged someone's reputation.

But defamation law is also answerable to another moral value, namely, freedom of speech, that may be in tension with these pre-legal duties of care. Even when it is plausible that an author of fiction has wrongfully damaged someone's reputation, there might still be a reason of freedom of speech, even an overriding reason, to shield such an author from liability.

This Article will address the question of what limits, if any, freedom of speech would place on holding authors liable for the reputational damage they cause with fiction. By "freedom of speech" I will not be referring to the First Amendment but rather to one conception of the moral idea underlying it. According to this conception, the limits that freedom of speech places on the scope of authors' liability for causing false and defamatory beliefs are whatever limits are necessary to adequately protect our interests as potential authors and audiences, and whose costs are acceptable in terms of other interests. To apply this conception, it will be necessary to identify our interests as potential authors of and audiences for fiction about real people, and to assess how these interests would be affected by different limits.

Ultimately, I will argue that freedom of speech is consistent with holding authors liable for reputational damage caused by their violations of fiction's "veracity rules" and for reputational damage caused by mistakes that their target audience would be expected to make. But liability for beliefs that are traceable to mistakes that only an author's incidental audience would be expected to make is, I will argue, prohibited by freedom of speech, so long as the costs of that protection remain acceptable.

The post Journal of Free Speech Law: "Fiction, Defamation, and Freedom of Speech," by Prof. Collin O'Neil appeared first on Reason.com.

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From today's decision in Carter v. Southwest Airlines, Inc. (consolidated with Carter v. Local 556, Transport Workers Union of Am.), decided today by Judge Edith Brown Clement, Kurt Engelhardt, and Cory Wilson (for my earlier post on the case, see here):

On August 7, 2023, the district court held Southwest Airlines in contempt for failing to comply with a Title VII judgment and ordered company lawyers to attend "religious-liberty training" as a sanction…. [W]e GRANT Southwest's motion for a stay pending appeal because the order likely exceeded the district court's civil contempt authority….

A jury found that Southwest Airlines violated Title VII and the Railway Labor Act by firing flight attendant Charlene Carter because of her religion; specifically, for publicly posting and privately messaging to another Southwest flight attendant images of aborted fetuses in furtherance of her religious beliefs. As part of its judgment, the district court ordered Southwest to, among other things, post the verdict and judgment on company bulletin boards and to email the same to all flight attendants, informing them of their Title VII and RLA rights (the "notice requirement").

{The district court also enjoined Southwest "from discriminating against Southwest flight attendants for their religious practices and beliefs, including—but not limited to—those expressed on social media and those concerning abortion" and "from failing to reasonably accommodate Southwest flight attendants' sincerely held religious beliefs, practices, and observances."}

To comply with the judgment, Southwest reinstated Carter, posted the verdict and judgment in all flight-attendant breakrooms, and emailed all flight attendants the verdict and judgment. The email stated that "a federal court in Dallas entered a judgment against Southwest" and "ordered us to inform you that Southwest does not discriminate against our Employees for their religious practices and beliefs." Southwest also published an internal memo stating that Southwest believed Carter's messages were "inappropriate, harassing, and offensive," "extremely graphic," and "in violation of several Company policies." The memo further stated that, although Southwest would implement the judgment, Southwest was "extremely disappointed with the court's ruling and [was] appealing the decision to the Fifth Circuit Court of Appeals."

Carter moved the district court to hold Southwest in contempt, arguing that these communications—the email and memo—violated the judgment. Carter contended that the email violated the judgment because it said that Southwest "does not discriminate" rather than "may not discriminate," which was the language the court's order required. As for the memo, Carter claimed that it demonstrated that Southwest could continue to discriminate against flight attendants' religious beliefs and practices. The district court agreed that Southwest had violated the notice requirement and therefore held Southwest in contempt. As contempt sanctions, the district court directed Southwest to circulate a statement—verbatim—to its flight attendants "to set the record straight" and ordered three of Southwest's in-house lawyers to attend religious-liberty training with the Alliance Defending Freedom {"a nonprofit, public-interest legal organization that provides litigation services, funding, and training to protect First Amendment freedoms and other fundamental rights"}.

[T]here is a strong likelihood that the contempt order exceeded the district court's civil contempt authority…. A court's civil contempt power "is not a broad reservoir of power, ready at an imperial hand"—instead, it is "a limited source; an implied power squeezed from the need to make the court function." Civil contempt sanctions are "remedial" and "designed to compel future compliance with a court order" by either "coerc[ing] the defendant into compliance with the court's order" or "compensat[ing] the complainant for losses sustained" as a result of the noncompliance. Criminal contempt sanctions, by contrast, are used to "punish defiance of the court and deter similar actions." Generally, "criminal [contempt] penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." Whether a contempt order is civil or criminal turns on the "character and purpose" of the sanction involved.

Southwest argues that the district court abused its civil contempt power in requiring Southwest's in-house lawyers to attend "religious-liberty training, which neither secures compliance with an order nor compensates Carter for any noncompliance." Per Southwest, "the only permissible sanctions [after a civil-contempt finding] were requiring a new 'may not discriminate' email and awarding Carter contempt-related attorneys' fees, because those are the least-restrictive means of ensuring compliance with the judgment and compensating Carter."

We agree with Southwest that "religious-liberty training" will not compel compliance with the order nor compensate Carter. To start, "[c]ivil contempt differs from criminal contempt in that it seeks only to coerc[e] the defendant to do what a court had previously ordered [it] to do." Because the court did not previously order Southwest's lawyers to attend religious-liberty training, we are skeptical that it can do so in the civil contempt context.

Moreover, "the beneficiary of civil contempt is the individual litigant." But here, Carter receives no apparent benefit from the training requirement. The three attorneys ordered to attend training were not involved in the decision to terminate Carter and do not supervise Carter, and there was no evidence adduced at trial that they, personally, hold animus against Carter or her beliefs. Additionally, the training was not limited to Title VII training but rather encompassed all religious-liberty training, which could include topics like the First Amendment and the Religious Freedom Restoration Act that are irrelevant to securing compliance with a Title VII judgment. So, the mandatory training plainly is not the least restrictive means of remedying Southwest's non-compliance.

Carter argues that courts regularly require legal training "in the relevant subject area" to support her claim that "Title VII training" secures Southwest's compliance with the order. This is true, but such mandatory training is at least in part a punitive remedy and therefore not a civil contempt sanction….

At bottom, it appears that the district court sought, at least in part, to punish Southwest for what the district court viewed as conduct flouting its holding that Southwest had violated Title VII. But its punitive sanctions likely exceed the scope of the court's civil-contempt authority….

Southwest would likely suffer an irreparable harm [absent a stay] "in the form of a criminal [punishment] imposed without the necessary due-process protections." The training likely burdens their liberty interests too, as the injury of being forced into the training could not be undone. "It is the likely unconstitutional nature of the [punishment] that renders the harm it causes to [Southwest] irreparable."

Because of this, the Fifth Circuit concluded, the sanction should be stayed pending appeal, though the logic of the analysis suggests that the sanction likely won't be reinstated (at least unless on remand after appeal the District Court concludes the attorneys' actions constituted criminal contempt, and proceeds with a criminal contempt hearing, with all the procedural protections that this would require).

Thanks to Howard Bashman (How Appealing) for the pointer.

The post Fifth Circuit Blocks Order Requiring Defendants' Lawyers "to Attend 'Religious-Liberty Training' as a Sanction" appeared first on Reason.com.

The article is here; the Abstract:

Until the late 18th century, defamation was often treated as an actionable wrong even when the defamer's claims were undeniably true (indeed, sometimes especially when true, as reflected in the slogan, "the greater the truth, the greater the libel"). In the following centuries, however, truth became a complete defense to defamation lawsuits. Even outside the law, falsity became an essential element of the common understanding of "defamation," to the point that today most English dictionaries and many extralegal discussions of the defamatory treat it as necessarily untrue.

Here I challenge the new understanding of the wrong of defamation that took flight under the law's wing, arguing that it is unduly narrow. Accurate defamation is a serious wrong and current understandings—and tort practice, in particular—harmfully hide this fact. Privacy law, moreover, does not provide adequate redress for it either, for reasons I set out.

The post Journal of Free Speech Law: "True Defamation," by Prof. Jeffrey S. Helmreich appeared first on Reason.com.

From Steinbuch v. Pulaski County Circuit Court, decided today by the Arkansas Supreme Court (note that the lead plaintiff is a professor at the University of Arkansas at Little Rock):

Judge Welch presided over a civil action involving whether licensed attorneys in Arkansas are "officers of the court" and thus authorized under Arkansas Code Annotated section 5-73-122(b) to carry firearms in courthouses. The plaintiffs were Arkansas attorneys. Their complaint sought a declaratory judgment and injunctive relief. The defendants—the Pulaski County Sheriff and the Pulaski County Judge—filed a motion to dismiss the complaint. Judge Welch granted the motion to dismiss. Judge Welch ruled not only that the plaintiffs were procedurally barred from bringing the action but also that "an interpretation of ACA § 5-73-122 as suggested by the Plaintiff, [would] be [u]nconstitutional." Judge Welch also concluded that the "Plaintiff's [a]rgument fails, as it is founded upon a flawed premise that mis-reads the plain meaning of ACA § 5-73-122."

The plaintiffs appealed from the dismissal order. The appeal brought the interpretation of section 5-73-122 before this court. We affirmed in part and reversed and remanded in part. We held the statute's use of "officers of the court" included attorneys and that the statute allows them to possess handguns in courthouses. We therefore concluded that "the circuit court erred when it denied … plaintiffs' petition for a declaratory judgment." The charge on remand was not complex—Judge Welch was instructed to "enter an order consistent with this opinion."

Upon remand, Judge Welch entered a "Temporary Order on Lawyer/Officer-of-the-Court Carry, Partial Stay, Notice of Hearing, and Order of Partial Dismissal." The following includes some relevant excerpts from his order:

The Opinion [referring to this court's Corbitt decision] limits the Supreme Court's Superintending Authority over courts under Amendment 80. It also creates a new class of unlicensed, heretofore untrained, armed lawyers in courthouses of the State, in apparent conflict with the myriad of legislative enactments promoting carry permits….

The "Lawyer/Officer-of-the court Carry" Opinion ("LOCO," hereafter) ….

"Stakeholders" (In addition to the Sheriff, and the other parties), including Police Chiefs, and District Court Representatives will be invited to attend and submit input, on application, as Amici. The Court anticipates more than one hearing may be necessary to implement the vision of the Supreme Court….

IT IS ORDERED that PENDING THE HEARING, further implementation of "The Lawyer/Officer-of-the court Carry" Opinion in this case SHALL BE STAYED except as concerns the FIRST FLOOR of the Pulaski County Courthouse ….

Judge Welch proceeded to enter various additional stays of this court's opinion pending a hearing scheduled in August 2024…. [W]e issued notice to Judge Welch that his order may have violated the Code of Judicial Conduct….

The substance of Judge Welch's response can be summed up under two points. First, Judge Welch understood this court's mandate in Corbitt, which reversed and remanded his prior decision, as a charge to conduct further proceedings. He took that as his duty to consult with others, issue a variety of orders, and implement the court's decision as he deemed practical and appropriate, and "that is what … Judge [Welch] did." He was wrong. His written response contains the following explanations:

For example, on April 22, 2024, Judge Welch began researching and reviewing other applicable laws and regulations that might impact the manner in which he would carry out this Court's holding. …

He also toured the North Little Rock District Court Complex; he reviewed layouts of other courthouses; and he met with numerous colleagues and county officials….

The varying floor plans of Pulaski County's many courthouses presented unique challenges not contemplated in the Corbitt Appeal Opinion or Mandate. He listened to the frustrations of those directly impacted by this Court's decision….

He issued the May 7 Order, the intent of which was to create a procedure for holding "further proceedings consistent with this [Court's Corbitt Appeal] opinion," while simultaneously balancing the valid safety concerns addressed in neither the Corbitt Appeal Opinion nor Mandate.

Second, Judge Welch explains that he meant no disrespect to this court but that his "style, diction, and delivery are consistent with the vigorous written debate that has defined our judiciary for over a century." He believes he properly exercised his right of free speech but "admits that some of its characterizations should not have survived the editor's pen … [and that his] diction may have deserved greater care and forethought." He also suggests that injury to reputation should not quash the right to free speech and that he spoke on a matter concerning the safe administration of justice….

This court is exercising its superintending authority under Amendment 80, section 4 of the Arkansas Constitution….

Rule 1.2 [of the Code of Judicial Conduct] provides that

[a] judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

We find that Judge Welch's order failed to promote confidence in the judiciary. It did the opposite and undermined public confidence. Labeling and referring to an opinion by the Supreme Court of Arkansas as "LOCO" erodes public confidence. His written opinion stating that the Supreme Court's opinion "creates a new class of unlicensed, heretofore untrained, armed lawyers in courthouses of the State" also erodes public confidence. To suggest that this court created a class of armed lawyers is dangerous, and it undermines the public's understanding of the judiciary's role. In Corbitt, we interpreted a statute passed by the Arkansas General Assembly. We interpret laws, we do not make them, and Judge Welch's suggestion to the contrary damages the public's view of the separation of powers and the role of the judiciary.

His response does not demonstrate that he understands the severity of his conduct. Suggesting that his comments were consistent with "the vigorous written debate that has defined our judiciary for over a century" is misguided. A trial court is not "participating in rigorous debate" when it receives a mandate from an appellate court and issues an order staying most of it and labeling it as "LOCO." That is disingenuous.

Imagine if circuit courts across this state were to ignore mandates and stay orders of the Supreme Court of Arkansas and our Court of Appeals. It would be unprofessional, rebellious, and harmful to the public's confidence in the judiciary's ability to follow its own rules. As judges, we must follow our established framework if we expect others to do the same. Judge Welch's actions had no place on the bench, and it is disheartening that, when given an opportunity to reflect, he failed to recognize the impact of his actions. The public must have confidence that judicial orders will be followed and that appellate mandates will be carried out. We find that Judge Welch violated Rule. 1.2….

Rule 2.2(A) provides that

[a] judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.

The comment explains that "[a]lthough each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law no matter if the judge approves or disapproves of the law in question." Judge Welch made it clear in his written order that he disagreed with this court's interpretation of the statute and with the statute itself. His opinion was sprinkled with disparaging remarks about the court's interpretation of the statute. He then purported to stay an opinion and a mandate of the Supreme Court of Arkansas for three months because he "believe[d] a need for restraint pending the Hearing [was] required before the influx of Lawyers Officers." Judge Welch exceeded the role of circuit judge by staying our decision. {We note that, although Judge Welch attempted to stay the implementation of our mandate, he had absolutely no authority to do so. Lower courts are vested with jurisdiction only to the extent conferred by this court's opinion and mandate, and any proceedings on remand that are contrary to the directions contained in our mandate are considered null and void.}

Judge Welch had earlier declared the statute unconstitutional; on appeal, this court disagreed and concluded that Judge Welch had erred by denying the plaintiffs' petition for declaratory judgment. On remand, any learned judge would know that the next step is to enter judgment for the plaintiffs—not to stay the supreme court's order and sua sponte attempt to create an administrative scheme that redefines the legislation and this court's mandate. A declaratory-judgment action seeks a declaration one way or another. It does not ask a judge to initiate and create an administrative scheme for application of a statute. That is not the role of the circuit court.

Further, the principle of fair and impartial treatment forbids judges from conducting independent fact-finding and ex parte discussions involving a case. Yet Judge Welch's response states that, following the Corbitt opinion and before entering his subsequent order, "[h]e also toured the North Little Rock District Court Complex; he reviewed layouts of other courthouses; and he met with numerous colleagues and county officials." This is independent fact-finding and ex parte communication. We find that he neither performed his duties impartially nor left his personal views behind him and he violated Rule 2.2….

Rule 2.3(B) states that

[a] judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, and shall not permit court staff, court officials, or others subject to the judge's direction and control to do so.

The comment explains that examples of bias include the use of demeaning nicknames or negative stereotyping. Using the word "LOCO" to refer to an opinion from the Supreme Court of Arkansas violates this rule. Judge Welch is a circuit judge with Amendment 80 general jurisdiction. According to the Sixth Judicial District's Administrative Plan, he is one of the circuit judges who hears cases in the civil-commitment mental-health court, thus we think he should be more circumspect with his word choice. Using the Spanish word loco, meaning crazy, cavalierly referring to another court's judicial order in a joking manner exceeds the bounds of appropriate judicial behavior. And when given an opportunity to respond, to admit only that he should have had better editing skills, suggests a lack of judicial maturity and reflection. We find that Judge Welch violated Rule 2.3.

We are also mindful that this court in 2012, acting on encouragement from Arkansas members of the American Board of Trial Advocates, added the following pledge of civility to the Attorney Oath of Admission to the Bar of Arkansas:

I will maintain the respect and courtesy due to courts of justice, judicial officers, and those who assist them.

To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communication.

It is not lost on this court that we administered this oath to the newest members of the Bar of Arkansas on May 3, 2024, only to have Judge Welch undermine it four days later, on May 7, 2024.

Because this court finds that Judge Welch has violated Rules 1.2, 2.2, and 2.3 of the Code of Judicial Conduct, we formally admonish him. Given his failure to recognize the severity of his actions, we order the following remedial measures:

• Enroll and complete Ethics and Judging: Reaching Higher Ground (JS 601), a web-based 6-week course with the National Judicial College from June 10 to July 25, 2024.
• Complete another 3 hours of ethics continuing legal education by September 30, 2024.

… Judges must be circumspect in their official roles and while presiding over a case. Judge Welch expressed his frustration at the wrong time and in the wrong manner. This court does not make law. His actions as a member of the Arkansas Bar were unacceptable and indeed fell far below what we expect from a member of the judiciary….

I'm skeptical of some of the analysis: For instance, I don't think that characterizing a higher court's decision as "creat[ing] a new class of unlicensed, heretofore untrained, armed lawyers in courthouses of the State" (as opposed to merely interpreting the law) is sanctionable misconduct. Likewise, the problem with labeling a court opinion as "LOCO" strikes me as unrelated to whether the judge "hears cases in the civil-commitment mental-health court," and unrelated to concerns about "bias" and "prejudice" as the Code of Conduct seems to use those words. Nonetheless, it does seem to me that trial judges ought not be labeling higher court opinions "LOCO," or staying higher court opinions for months because they think they're unsound.

The post Arkansas S. Ct. Formally Admonishes Judge Whose Order Characterized S. Ct.'s Opinion as "LOCO" appeared first on Reason.com.

The post Thursday Open Thread appeared first on Reason.com.

From Luo v. Volokh, decided today by the California Court of Appeal, in an opinion by Justice Helen Bendix, joined by Justices Frances Rothschild and Victoria Gerrard Chaney:

Appellant Xingfei Luo, also known as Olivia Luo, twice sought a restraining order against respondent Professor Eugene Volokh pursuant to Code of Civil Procedure section 527.6. Luo sought to prevent Volokh from identifying her in his writings….

[Cal. Code Civ. Proc.] Section 527.6 provides an expedited procedure to prevent harassment. By definition, harassment must have "'no legitimate purpose.'" "Legitimacy of purpose negates harassment." Constitutionally protected activity also is excluded from the definition of harassment. A court must find harassment by clear and convincing evidence before issuing an order prohibiting the harassment.

Section 527.6 defines harassment as "unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." A course of conduct is defined as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email."

{Luo described the parties' relationship as follows: "Volokh has learned my info through litigation." Luo stated, "Volokh has published my info online and invited ha[t]ers to stalk, harass, threaten and commit violence against me. I continue to receive threatening and harassing phone calls and voice mails calling me cunt, slut, lying on men and indicating they will rape and kill me. At the end of July, I was forced to move out of my prior residence for safety concern."

Luo requested the trial court order Volokh to "[1] Remove any remarks, comments, or references from any publicly available documents or articles authored by [Volokh] that connect [her] real name with rape or sexual assault; [¶ 2] Remove any remarks, comments, or references from any publicly available documents or articles authored by [Volokh] that connect [her] with the cases in which she has received a protective order to proceed under a pseudonym; [¶ 3] Cease publishing any remarks, comments, or references that connect [her] with rape or sexual assault; [¶ 4] Cease drawing public attention to [her] name [when] associated with rape or sexual[ ] assault."

In a declaration filed in support of her petition for a restraining order, Luo averred that two unidentified persons telephoned her calling her "cunt, bitch, slut, lying on men" and threatening to rape and kill her. Luo did not know the callers' identities but assumed the callers read Volokh's writings. Luo, however, provided no evidence linking the callers to Volokh's writings. Luo averred that although she received court orders protecting her name because she was a victim of rape, Volokh published her name. Luo identifies no such court orders. Luo averred Volokh's "publication invites worldwide haters to threaten, stalk, and commit violence against me." Luo offered no citation to Volokh's writings supporting this assertion. Luo further averred she relocated because of these safety concerns.}

Volokh's conduct is not within the ambit of section 527.6's definition of harassment. Volokh's identification of Luo in a law review article and on his blog was not unlawful violence or a credible threat of violence. There was no evidence that Volokh stalked Luo, made harassing phone calls, or sent her harassing correspondence. Volokh's writings served a legitimate purpose—a discussion on how a litigant's use of a pseudonym could affect open access to court proceedings and impede investigations into a litigant's credibility. Luo's failure to cite to any evidence that Volokh harassed her within the meaning of section 526.7 is fatal to her argument that she demonstrated her restraining order petition has minimal merit….

The statute focuses "narrowly" on "interpersonal conflict." A section 527.6 restraining order may enjoin a "party from harassing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, abusing, telephoning, including, but not limited to, making annoying telephone calls, as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, or coming within a specified distance of, or disturbing the peace of, the petitioner." Luo did not request the trial court enjoin Volokh from any such proscribed activities.

Nothing in the statute precludes Volokh's identification of Luo by name….

Luo's contrary arguments are unpersuasive. She states, "If the writings, intentionally or inadvertently, embolden others to engage in harassing behavior towards Luo, they undermine any claim to legitimacy. Furthermore, if they perpetuate harmful stereotypes their purported legitimacy diminishes further." These arguments rest on incorrect factual premises because the record does not support Luo's belief that Volokh encouraged anyone to harass Luo. Luo provides no citation to any writing showing Volokh encouraged harassment or violence against her. Similarly, Luo cites no evidence that Volokh's writings "perpetuate harmful stereotypes," and we find none.

Luo states Volokh's writings are widely available and the "information, when in the wrong hands, can be weaponized to incite violence or harassment against a victim, such as Doe [Luo]." Luo argues Volokh has subjected her to "unnecessary public exposure and incitement." Again, Luo offers no evidence to support these assertions. Because there is no evidence Volokh encouraged others to commit violence or harassment against Luo, we do not consider whether section 526.7 could support a restraining order against someone who encourages others to harass….

{Given our conclusion that Luo's petition lacked minimal merit, we do not consider Volokh's other arguments supporting the trial court's ruling. We also do not address arguments that issuing a restraining order would violate Volokh's First and Second Amendment rights.}

Luo also tried to appeal the lower court orders depseudonymizing her (she originally sued me as a Jane Doe) and refusing to strike certain documents from her filings. The Court of Appeal, though, concluded that she incorrectly appealed those orders, and that the court therefore lacked jurisdiction to consider her appeal.

The Court of Appeal apparently did not see much basis for pseudonymity here, though: It on its own identified her by her name, even though the depseudonymization orders were stayed pending appeal, and she and I litigated the case as Doe v. Volokh. Thanks to Annika Boone Barkdull (Schaerr | Jaffe), who worked on the brief with me, and who represented me at oral argument.

The post My Identifying Would-Be Jane Doe Litigant in Law Review Article Wasn't "Harassment," appeared first on Reason.com.

From Justice Sotomayor's opinion today in NRA v. Vullo (the NRA was represented by the ACLU, with David Cole arguing before the Court; by William Brewer, Sarah Rogers & Noah Peters of Brewer Attorneys & Counselors; and by me):

[A.] Six decades ago, this Court held that a government entity's "threat of invoking legal sanctions and other means of coercion" against a third party "to achieve the suppression" of disfavored speech violates the First Amendment. Bantam Books, Inc. v. Sullivan (1963). Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.

Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that. As superintendent of the New York Department of Financial Services [DFS], Vullo allegedly pressured regulated entities to help her stifle the NRA's pro-gun advocacy by threatening enforcement actions against those entities that refused to disassociate from the NRA and other gun-promotion advocacy groups. [More factual details below. -EV] Those allegations, if true, state a First Amendment claim….

A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead. In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others. What she cannot do, however, is use the power of the State to punish or suppress disfavored expression….

[B.] In Bantam Books v. Sullivan (1963), this Court explored the distinction between permissible attempts to persuade and impermissible attempts to coerce. There, a state commission used its power to investigate and recommend criminal prosecution to censor publications that, in its view, were "'objectionable'" because they threatened "youthful morals."

The commission sent official notices to a distributor for blacklisted publications that highlighted the commission's "duty to recommend to the Attorney General" violations of the State's obscenity laws. The notices also informed the distributor that the lists of blacklisted publications "were circulated to local police departments," and that the distributor's cooperation in removing the publications from the shelves would "'eliminate the necessity'" of any referral for prosecution. A local police officer also conducted followup visits to ensure compliance. In response, the distributor took "steps to stop further circulation of copies of the listed publications" out of fear of facing "'a court action.'"

The publishers of the blacklisted publications sued the commission, alleging that this scheme of informal censorship violated their First Amendment rights. The commission responded that "it d[id] not regulate or suppress obscenity but simply exhort[ed] booksellers and advise[d] them of their legal rights." This Court sided with the publishers, holding that the commission violated their free-speech rights by coercing the distributor to stop selling and displaying the listed publications.

The Court explained that the First Amendment prohibits government officials from relying on the "threat of invoking legal sanctions and other means of coercion … to achieve the suppression" of disfavored speech. Although the commission lacked the "power to apply formal legal sanctions," the distributor "reasonably understood" the commission to threaten adverse action, and thus the distributor's "compliance with the [c]ommission's directives was not voluntary." To reach this conclusion, the Court considered things like: the commission's coordination with law enforcement and its authority to refer matters for prosecution; the notices themselves, which were "phrased virtually as orders" containing "thinly veiled threats to institute criminal proceedings" if the distributor did not come around; and the distributor's reaction to the notices and followup visits….

Ultimately, Bantam Books stands for the principle that a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf….

[C.] To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff 's speech. Accepting the well-pleaded factual allegations in the complaint as true, the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities into disassociating with the NRA in order to punish or suppress the NRA's gun-promotion advocacy.

Consider first Vullo's authority, which serves as a backdrop to the NRA's allegations of coercion. The power that a government official wields, while certainly not dispositive, is relevant to the objective inquiry of whether a reasonable person would perceive the official's communication as coercive…. As DFS superintendent, Vullo had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York. Just like the commission in Bantam Books, Vullo could initiate investigations and refer cases for prosecution. Indeed, she could do much more than that. Vullo also had the power to notice civil charges and, as this case shows, enter into consent decrees that impose significant monetary penalties.

Against this backdrop, consider Vullo's communications with the DFS-regulated entities, particularly with Lloyd's. According to the NRA, Vullo brought a variety of insurance-law violations to the Lloyd's executives' attention during a private meeting in February 2018. The violations included technical infractions that allegedly plagued the affinity insurance market in New York and that were unrelated to any NRA business.

Vullo allegedly said she would be "less interested in pursuing the[se] infractions … so long as Lloyd's ceased providing insurance to gun groups, especially the NRA." Vullo therefore wanted Lloyd's to disassociate from all gun groups, although there was no indication that such groups had unlawful insurance policies similar to the NRA's.

Vullo also told the Lloyd's executives she would "focus" her enforcement actions "solely" on the syndicates with ties to the NRA, "and ignore other syndicates writing similar policies." The message was therefore loud and clear: Lloyd's "could avoid liability for [unrelated] infractions" if it "aided DFS's campaign against gun groups" by terminating its business relationships with them.

As alleged, Vullo's communications with Lloyd's can be reasonably understood as a threat or as an inducement. Either of those can be coercive. As Vullo concedes, the "threat need not be explicit," and as the Solicitor General explains, "[t]he Constitution does not distinguish between 'comply or I'll prosecute' and 'comply and I'll look the other way.'" … Vullo allegedly coerced Lloyd's by saying she would ignore unrelated infractions and focus her enforcement efforts on NRA-related business alone, if Lloyd's ceased underwriting NRA policies and disassociated from gun-promotion groups.

The reaction from Lloyd's further confirms the communications' coercive nature. At the meeting itself, Lloyd's "agreed that it would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business." Minutes from a subsequent board of directors' meeting reveal that Lloyd's thought "the DFS investigation had transformed the gun issue into 'a regulatory, legal[,] and compliance matter.'" That reaction is consistent with Lloyd's public announcement that it had directed its syndicates to "terminate all insurance related to the NRA and not to provide any insurance to the NRA in the future."

Other allegations, viewed in context, reinforce the NRA's First Amendment claim. Consider the April 2018 Guidance Letters and accompanying press release, which Vullo issued on official letterhead. Just like in her meeting with the Lloyd's executives, here too Vullo singled out the NRA and other gun-promotion organizations as the targets of her call to action.

This time, the Guidance Letters reminded DFS-regulated entities of their obligation to consider their "reputational risks," and then tied that obligation to an encouragement for "prompt actio[n] to manag[e] these risks." Evocative of Vullo's private conversation with the Lloyd's executives a few weeks earlier, the press release revealed how to manage the risks by encouraging DFS-regulated entities to "'discontinu[e] their arrangements with the NRA,'" just like Chubb did when it stopped underwriting Carry Guard. A follow-on tweet from Cuomo reaffirmed the message: Businesses in New York should "'consider their reputations'" and "'revisit any ties they have to the NRA,'" which he called "'an extremist organization.'" …

[T]his Court cannot simply credit Vullo's assertion that "pursuing conceded violations of the law" is an "'obvious alternative explanation'" for her actions that defeats the plausibility of any coercive threat raising First Amendment concerns. Of course, discovery in this case might show that the allegations of coercion are false, or that certain actions should be understood differently in light of newly disclosed evidence. At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.

{Vullo also argues that she is entitled to absolute prosecutorial immunity for her enforcement actions. Putting aside whether a financial regulator like Vullo is entitled to such immunity in the administrative context, because Vullo did not raise this defense below with respect to the First Amendment claim (or even with respect to allegations unrelated to the consent decrees), the Court declines to consider that argument here in the first instance.}

[D.] Moreover, the conceded illegality of the NRA-endorsed insurance programs does not insulate Vullo from First Amendment scrutiny under the Bantam Books framework. Indeed, the commission in that case targeted the distribution and display of material that, in its view, violated the State's obscenity laws. Nothing in that case turned on the distributor's compliance with state law. On the contrary, Bantam Books held that the commission violated the First Amendment by invoking legal sanctions to suppress disfavored publications, some of which may or may not contain protected speech (i.e., nonobscene material).

Here, too, although Vullo can pursue violations of state insurance law, she cannot do so in order to punish or suppress the NRA's protected expression. So, the contention that the NRA and the insurers violated New York law does not excuse Vullo from allegedly employing coercive threats to stifle gun-promotion advocacy….

[E.] That Vullo "regulate[d]" business activities stemming from the NRA's "relationships with insurers and banks" does not change the allegations that her actions were aimed at punishing or suppressing speech…. One can reasonably infer from the complaint that Vullo coerced DFS-regulated entities to cut their ties with the NRA in order to stifle the NRA's gun-promotion advocacy and advance her views on gun control. Vullo knew, after all, that the NRA relied on insurance and financing "to disseminate its message." {Vullo's boss, Governor Cuomo, also urged businesses to disassociate with the NRA to put the organization "into financial jeopardy" and "shut them down."} …

The NRA's allegations, if true, highlight the constitutional concerns with the kind of intermediary strategy that Vullo purportedly adopted to target the NRA's advocacy. Such a strategy allows government officials to "expand their regulatory jurisdiction to suppress the speech of organizations that they have no direct control over." It also allows government officials to be more effective in their speech-suppression efforts "[b]ecause intermediaries will often be less invested in the speaker's message and thus less likely to risk the regulator's ire."

The allegations here bear this out. Although "the NRA was not even the directly regulated party," Vullo allegedly used the power of her office to target gun promotion by going after the NRA's business partners. Insurers in turn followed Vullo's lead, fearing regulatory hostility….

[F.] [N]othing here prevents government officials from forcefully condemning views with which they disagree. For those permissible actions, the Constitution "relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks." Yet where, as here, a government official makes coercive threats in a private meeting behind closed doors, the "ballot box" is an especially poor check on that official's authority. Ultimately, the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries….

Justice Gorsuch filed a one-paragraph concurrence concluding that courts should focus on deciding whether the plaintiff has "plausibly allege[d] conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff 's speech," rather than trying to articulate any multifactor tests (as some lower courts have done in this area) elaborating on this core question.

Justice Jackson also concurred, highlighting the fact that some government coercion can directly stifle speech (for instance, when the government is coercing bookstores not to carry a book) while other coercion retaliates against protected speech (for instance, when the government is coercing financial intermediaries not to do business with speakers). Both may violate the First Amendment, but, she argued, they should be analyzed somewhat differently; read her opinion (PDF pp. 26-31) for more details.

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From the Foundation for Individual Rights and Expression letter sent today to the Twin Ridge Elementary School (Maryland):

Our concerns arise out of an April 26 email TRES sent to school staff to address confusion regarding what conduct is required during the Pledge of Allegiance. The email  represented that per Maryland Education Code § 7-105(c)(3), "all students and teachers are required 'to stand and face the flag and while standing give an approved salute and recite in unison the pledge of allegiance.'" But the email failed to mention the opt-out provision of subsection (d), which states: "Any student or teacher who wishes to be excused from the requirements of subsection (c)(3) of this section shall be excused."

Not only does the TRES directive misrepresent Maryland law by suggesting it requires participation without allowing abstention, that misdescription of the law is one the First Amendment prohibits…. Over 80 years ago, in West Virginia State Board of Education v. Barnette, the Supreme Court invalidated a requirement that schoolchildren salute the U.S. flag and recite the Pledge of Allegiance. Even in the dark days of World War II, the Court recognized that requiring students to pledge allegiance to a national symbol is contrary to our national commitment to freedom of conscience. As the Court explained, "if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." …

I called the school's main number to ask whether it had a statement, and the person answering the phones said she had no idea, and hung up on me. If any readers know of any errors in FIRE's account of the matter, please let me know; I have generally found FIRE's factual accounts quite trustworthy.

The post 80 Years After S. Ct. Held Pledge of Allegiance Couldn't Be Mandated in Public School, Public School Seems to Try to Mandate It appeared first on Reason.com.

That's from Judge Kevin Newsom's concurrence yesterday in Snell v. United Specialty Ins. Co.; the opinion is quite detailed and thoughtful, so people interested in the subject should read the whole thing. Here, though, is the introduction and the conclusion:

I concur in the Court's judgment and join its opinion in full. I write separately … simply to pull back the curtain on the process by which I thought through one of the issues in this case—and using my own experience here as backdrop, to make a modest proposal regarding courts' interpretations of the words and phrases used in legal instruments.

Here's the proposal, which I suspect many will reflexively condemn as heresy, but which I promise to unpack if given the chance: Those, like me, who believe that "ordinary meaning" is the foundational rule for the evaluation of legal texts should consider—consider—whether and how AI-powered large language models like OpenAI's ChatGPT, Google's Gemini, and Anthropic's Claude might—might—inform the interpretive analysis. There, having thought the unthinkable, I've said the unsayable.

Now let me explain myself….

I think that LLMs have promise. At the very least, it no longer strikes me as ridiculous to think that an LLM like ChatGPT might have something useful to say about the common, everyday meaning of the words and phrases used in legal texts….

Thanks to Howard Bashman (How Appealing) for the pointer.

The post Judge Suggests Courts Should Consider Using "AI-Powered Large Language Models" in Interpreting "Ordinary Meaning" appeared first on Reason.com.

From P.D. v. Sullivan, decided last month by Judge Nelson Román (S.D.N.Y.):

Plaintiff seeks to proceed anonymously because the action involves "matters of a highly sensitive and personal nature, to wit, medical and mental health records and information." … There is little question that the instant case involves matters that are highly sensitive and of a personal nature—medical and mental health information are undoubtedly so. Moreover, Plaintiff is suing the Commissioner of the New York State Office of Mental Health in her official capacity, and therefore sues the government rather than a private entity. Furthermore, there is little to no prejudice to Defendant as she has not opposed Plaintiff's request and Plaintiff indicated he would provide his name to Defendant. Finally, Plaintiff's name and identity have been kept confidential from the public to date.

[On the other hand, though] Plaintiff argues that his identification "poses a risk of retaliatory physical and mental harm to Plaintiff, and even more critically, to innocent non-parties including his family members" … this risk of harm is vague and speculative. Plaintiff points to the combined "stigma" of mental health and Second Amendment rights but fails to elaborate on or provide any evidence of this supposed stigma. Nor does Plaintiff specify the nature of these potential harms. Plaintiff claims this is particularly true "within New York State's hostile anti-Second Amendment environment," and the Court is not entirely sure what Plaintiff means….

"… [T]here is a general presumption that parties' identities are public information." As implied by Plaintiff, the Second Amendment has fostered continued debate and discussion among the public in recent years. Accordingly, there will likely be widespread interest in Plaintiff's suit that challenges provisions of the New York State Mental Hygiene Law ("NY MHL") as unconstitutional under the Second and Fourteenth Amendments.

Admittedly, the identities of individuals who sue only the government and raise an abstract question of law may be largely irrelevant to the public's concern with the nature of the process. However, while Plaintiff's claims contest the constitutionality of a statute—certainly an abstract question of law—Plaintiff also argues the statute's constitutionality with respect to his specific circumstances. Plaintiff alleges that NY MHL § 9.39 is unconstitutional "as applied to Plaintiff." Accordingly, although the action appears to involve purely legal questions, disputes of fact may arise as the litigation progresses.

Finally, there are alternative mechanisms available to Plaintiff. "A plaintiff's confidentiality can be protected in multiple ways, including redaction of the documents and sealing, seeking a protective order, or entering into a confidentiality agreement." Accordingly, with regards to Plaintiff's argument that anonymity will create more transparency, the Court is confident that the parties can find a middle ground where the public has access to all pertinent information without the need for Plaintiff to proceed anonymously…. "Redacted and sealed submissions are routinely used in cases involving sensitive medical information." … "The fact that a case involves a medical issue is not a sufficient reason for allowing the use of a fictitious name, even though many people are understandably secretive about their medical problems." …

Plaintiff's Amended Complaint claims that he was admitted to a hospital under N.Y. Mental Health Law 9.39 "for emergency observation and evaluation"; that law provides for brief commitment for "mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others." But plaintiff states that he "consistently denied any suicidal ideation during his admission," and that "[b]y discharging Plaintiff and not converting Plaintiff's admission to an involuntary commitment under Article 9, the mental health professionals at [the hospital] determined that Plaintiff was not a danger to himself or others." Likely to produce an interesting legal debate; at this point, the court concluded only that the case to be litigated going forward under plaintiff's name.

The post No Pseudonymity in Case Challenging Denial of Gun Rights Based on Alleged Mental Health Problems appeared first on Reason.com.

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I'm delighted to report that Prof. Doriane Coleman (Duke Law School) will be guest-blogging this week about her new book, On Sex and Gender: A Commonsense Approach, which will be out Tuesday from Simon & Schuster. (Readers may be familiar with her past guest posts, chiefly on who should count as a woman in women's sports.) Here's the publisher's summary of the book:

On Sex and Gender focuses on three sequential and consequential questions: What is sex as opposed to gender? How does sex matter in our everyday lives? And how should it be reflected in law and policy? All three have been front-and-center in American life and politics since the rise of the trans rights movement: They are included in both major parties' political platforms. They are the subject of ongoing litigation in the federal courts and of highly contentious legislation on Capitol Hill. And they are a pivotal issue in the culture wars between left and right playing out around dinner tables, on campuses and school boards, on op-ed pages, and in corporate handbooks.

Doriane Coleman challenges both sides to chart a better way. In a book that is equal parts scientific explanation, historical examination, and personal reflection, she argues that denying biological sex and focusing only on gender would have detrimental effects on women's equal opportunity, on men's future prospects, and on the health and welfare of society. Structural sexism needed to be dismantled—a true achievement of feminism and an ongoing fight—but going forward we should be sex smart, not sex blind.

This book is a clear guide for reasonable Americans on sex and gender—something everyone wants to understand but is terrified to discuss. Coleman shows that the science is settled, but equally that there is a middle ground where common sense reigns and we can support transgender people without denying the facts of human biology. She livens her narrative with a sequence of portraits of exceptional human beings from legal pioneers like Myra Bradwell and Ketanji Brown Jackson to champion athletes like Caster Semenya and Cate Campbell to civil rights giants like Ruth Bader Ginsburg and Pauli Murray. Above all, Coleman reminds us that sex not only exists, but is also good—and she shows how we can get both sex and gender right for society.

The Kirkus Review:

A pertinent study of legal, political, and cultural assumptions about a hot-button topic.

A legal scholar whose work encompasses sex discrimination law, elite sports, and scientific research, Coleman takes a firm stand in the heated culture war "between those on the left who want to erase sex and those on the right who want to erase gender nonconformity." The author addresses the book to "everyone who wants to understand what's going on for themselves, and who's inclined to be both inclusive and true to science and common experience."

Science, she asserts, defines sex as binary, consisting of characteristics that "build one of two forms of humans toward reproductive ends." Gender, on the other hand, is what our cultures do with our two physical forms, "the social constructions that are based on our sex," and "how we conceive of and express ourselves." Although the terms have been applied interchangeably in political and legal discourse, Coleman asks readers to hold the biological distinctions foremost in their minds. "An ideological preference for characterizing sex as a social construct, a stereotype, and a myth," she asserts, denies the science of sex differences as well as common sense.

At the heart of Coleman's discussion is the question of sex-based eligibility for elite female competition. Unlike participation in school sports and activities, where trans individuals should be welcomed, at the elite level, physical differences between males and females matter more, she argues. As a former competitive runner who competed at the national level, the author believes that however someone may identify, "a malebodied kid shouldn't be the girls' state champion." The author's careful, well-supported analysis is sure to be controversial, but, she writes, "my sense is that most people are not interested in a sex-blind society; they're interested in a sex-smart society."

A bold foray into messy terrain.

-Kirkus Review

And the blurbs:

"Civil rights for women matter and to get these right you can't ignore biology. This is a seminal book—the science, the law, the politics all explained so clearly. The extremes on the right and the left are dictating the narrative, but Doriane Coleman shows there's a reasonable way for the rest of us through all the noise."

—Edwin Moses, two-time Olympic gold medalist and chair emeritus of the United States Anti-Doping Agency

"Sex begins at conception. We don't construct it, it constructs us, from the cellular level to our complete, integrated systems—our physical forms and physiology. We're poised to reap immeasurable benefits from ongoing work in research of sex differences but only if, as Doriane Coleman argues, we can continue to be "sex smart" not "sex blind." The "common sense" here is just that; the information that should help form policy."

—Virginia M. Miller, Ph.D., Professor Emerita of Surgery and Physiology and former director of the Women's Health Research Center at the Mayo Clinic

"This book is a formidable challenge to our politics, on both the right and the left. Whether you agree with her or not, if you're interested in equality, Doriane Coleman presents a serious blueprint for common ground on matters of sex and gender. Informed by science, law, and personal experience, she brings compassion and intelligence to one of our most difficult cultural collisions."

—Guy-Uriel Charles, Harvard Law School professor and director of the Charles Hamilton Houston Institute for Race and Justice

"Male and female bodies are fundamentally different, and many clinical conditions impact females differently than males. Conflating sex and gender is disastrous to advancing healthcare for women and to their opportunities for success from athletic fields to board rooms. In this essential book, Doriane Coleman shows that a just society celebrates gender diversity without denying science."

—Mary I. O'Connor, MD, Olympian, Professor Emerita of Orthopedic Surgery at Mayo Clinic and co-author of Taking Care of You: The Empowered Woman's Guide to Better Health

"Whatever your politics, you need to read this book. Doriane Coleman lays out the what, the why, and the how of our culture wars over sex and gender. She knows that most women want to be free from sex discrimination, not to be liberated from sex itself—and that ignoring this will mean that, again, we get the short end of the stick. Let's instead adopt her commonsense approach to living together respectfully!"

—Martina Navratilova, 18-time grand slam singles champion and civil rights advocate

I much look forward to Prof. Coleman's visit!

The post Prof. Doriane Coleman (Duke), Guest-Blogging About "On Sex and Gender: A Commonsense Approach" appeared first on Reason.com.

Friday's decision in State v. Reeves, decided by Judge Jeffrey Clark (Del. Super. Ct.), evaluates the Delaware stalking law under which

he or she (1) "threatens, or communicates to or about another" on 3 or more separate occasions, (2) in a manner that would cause a reasonable person to fear for their safety or experience significant mental anguish or distress.

The court concluded that the statute would be unconstitutional as applied to certain contexts:

[T]he Statute would enable the prosecution of a doctor who tells a patient on at least three occasions that, although an operation may be necessary to save the patient's life, the effect of the operation will cause accompanying physical pain or injury. Likewise, the Statute would criminalize three complaints by a restaurant's customer on social media about poor service at the restaurant, that in turn, causes the owner severe mental anguish because his business failed as a result. The Statute would also criminalize when a person posts critical comments about another, at least three times, on social media when those comments would reasonably cause significant mental distress to another….

And the court had this to say about the state's argument that the law was constitutional because it only applied to "speech integral to criminal conduct":

In broad terms, the State seeks to characterize [the statute] as falling under [the] {speech integral to criminal conduct} exception in its entirety….

As an overview, the speech integral to criminal conduct exception is not as broad as the State contends. Nor is it an antidote, in and of itself, to Mr. Reeves' facial challenge. Typically, this exception has been limited to criminal conduct such as bribery, extortion, conspiracy, or the solicitation of others to commit a separate crime. For example, there is no First Amendment violation when the government prosecutes a defendant based upon a statement such as "pay me money, or I will report you for a crime." Nor is there First Amendment protection for a defendant's statement to a law enforcement officer offering money to avoid arrest. The speech in those examples is integral to criminal conduct in the same way as is speech used to extort or solicit another to commit a crime. Such speech deserves no First Amendment protection….

Some courts have incorrectly used this exception to rationalize upholding a statute that criminalizes speech … simply because their legislature passed a law labeling it criminal. The limited line of United States Supreme Court cases that have addressed this exception in no way supports such a broad reading.

First, in Giboney v. Empire Storage & Ice Co., the Supreme Court explained that, "[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." There, the Court examined speech by a defendant used solely to solicit another to violate the law. Nothing in the Giboney decision supports broadening this exception to permit a legislature to define all speech as criminal.

After Giboney, the Supreme Court revisited the exception in United States. v. Williams. There, the Court considered a First Amendment challenge to a statute that criminalized a defendant's offer to distribute illegal child pornography. In Williams, the Court held that, "[o]ffers to engage in illegal transactions are categorically excluded from First Amendment protection."

Then, more recently, in U.S. v. Hansen, the Supreme Court applied the speech integral to criminal conduct exception while explaining that speech intended to bring about a particular unlawful act has no social value and is, therefore, unprotected. Once again, Hansen fits within the historical pattern for this exception by applying it to the solicitation of another crime: an immigration law violation. All of the limited mandatory precedent applying this exception relies on one constant: the requirement that the speech be necessary to the commission of a totally separate crime.

The State did not fully explain its position regarding how [the stalking statute] could be considered a statute that criminalizes only speech integral to criminal conduct. Rather, it stresses that the General Assembly included speech and conduct within the definition of course of conduct. In that way, the State seems to contend that speech becomes conduct simply because the General Assembly defined it as such, thus ending the inquiry.

Several courts and commentators have recognized the difficulty of interpreting this exception so broadly because of the circularity of reasoning required to do so. {See, e.g., U.S. v. Matusiewicz (D. Del. 2015) ("[I]t is important that [the court] avoid interpreting Giboney's exception too broadly. Under the broadest interpretation, if the government criminalized any type of speech, then anyone engaging in that speech could be punished because the speech would automatically be integral to committing the offense. That interpretation would clearly be inconsistent with the First Amendment[.]"); see also Eugene Volokh, The "Speech Integral to Criminal Conduct" Exception, 101 Cornell L. Rev. 981, 1036 (2016) (arguing that it is inappropriate to apply Giboney to harassment and stalking statutes which allow speech to be criminalized based upon its offensive nature to its recipient, when speech that is "intended to annoy, offend, or distress does not help cause or threaten other crimes, the way solicitation or aiding or abetting does.").} For instance, the United States Court of Appeals for the Eight Circuit explained the pitfalls of such an application in U.S. v. Sryniawski, The Eight Circuit then addressed the need to limit the exception as follows:

Congress may not define speech as a crime, and then render the speech unprotected by the First Amendment merely because it is integral to speech that Congress has criminalized. To qualify as speech integral to criminal conduct, the speech must be integral to conduct that constitutes another offense and that does not involve protected speech."

As recognized by the Eight Circuit, were this Court to accept such an interpretation of this enumerated category, a legislature could define any type of speech as unlawful and supersede the First Amendment. That would be the antithesis to constitutional primacy over statutory law. It would permit mere statutes to swallow the First Amendment.

In Mashaud v. Boone, the District of Colombia Court of Appeals similarly rejected the argument that the District of Columbia's stalking statute permissibly curtailed speech "because it was integral to a criminal act— namely, stalking." There, the court characterized the argument as "fatally circular" and noted that, "[w]hile it is true that the First Amendment does not protect speech integral to criminal conduct, the speech must be integral to conduct that constitutes another offense that does not involve speech."

The State identifies case law in several states that have upheld applications of their statutes on the basis that the speech proscribed by the statute was speech integral to criminal conduct. For instance, in State v. Labbe, the Supreme Court of Maine examined the validity of Maine's stalking statute in light of Counterman. The Labbe court found that based upon the facts of that specific case, it was the defendant's "actions, not his words, that constituted the 'course of conduct' for which he was convicted and which cause the victim to suffer serious inconvenience and emotional distress." The Maine court also opined that some of the phone calls made by the defendant and directed toward the victim in Labbe were not really speech at all. Many of the calls were non-communicative because they consisted of the defendant's repeated calls and hang ups, leaving dead air, and breathing into the phone. The Labbe decision, although couched as a facial challenge, came after trial and more appropriately involved an as-applied analysis. Some court decisions, such as the Maine court in Labbe, have incorrectly blurred the difference.

The State also relies on State v. Hemmingway, where the Court of Appeals of Wisconsin held that because a defendant's speech was "incidental to and evidence of his intent to engage in a course of conduct that he knew or should have known would instill fear of violence in [the victim,] such stalking conduct does not trigger First Amendment scrutiny or protection." In essence, the Wisconsin court found valid a state legislature's statutory override of First Amendment protection simply because it labeled speech as criminal conduct. As in Labbe, the Wisconsin court in Hemmingway applied the facts of an individual case developed after trial, while couching its decision as a facial one. The authority cited by the State is unpersuasive because this exception does not properly permit a state legislature unrestricted license to define speech as criminal by redefining it as conduct….

The court nonetheless concluded that the overbreadth of the statute wasn't substantial enough, relative to its legitimate sweep, to make the statute unconstitutionally overbroad. Moreover, no as-applied challenge was brought in this particular motion (and, judging by the alleged facts, I think it likely that such a challenge would fail):

On balance, components of the State's prosecution of Mr. Reeves may fall, in part, within the speech integral to criminal conduct exception. {For instance, the State charges Mr. Reeves with an act of intimidation. To the extent that speech was used to intimidate the alleged victim into not filing a complaint against him, that application may fall within the speech integral to criminal conduct exception. That crime, in turn, may qualify as a component act within Mr. Reeves' alleged course of conduct that amounts to stalking.}

As a result, the prosecution can continue. But I think the court was quite right to reject the argument that a law criminalizing (for instance) speech that "communicates … about another" three or more times, "in a manner that would cause a reasonable person to … experience significant mental anguish or distress," is constitutional simply because such speech is integral to the criminal prohibition itself.

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From FIRE's letter sent yesterday to the University of Wisconsin (you can see the citations here); I generally trust FIRE's factual summaries, but if there is any error in the below, I'll of course be very glad to correct it:

FIRE is deeply concerned that UW-Madison has suspended two registered student organizations—Anticolonial Scientists and Mecha de UW Madison—amid criticism of chalk messages some group members allegedly wrote at an off-campus event earlier this month. Some of the messages expressed support for terrorist groups like Hezbollah and Hamas's Al-Qassam Brigades, and advocated the use of violence against Israelis and Zionists in the Middle East.

The student groups are currently under interim suspensions, pending investigation, with UW stating that, because "[s]ome chalkings endorsed violence, supported terrorist organizations and/or contained antisemitic comments," they could qualify as prohibited discriminatory harassment under the university's RSO Code of Conduct. But that conclusion cannot constitutionally stand. The off-campus chalk messages constitute political speech wholly protected by the First Amendment, which requires UW, as a public institution, to respect the groups' expressive and associational rights—even if some, many, or most people dislike their message.

There is, more specifically, no First Amendment exception that would remove protection from speech simply because it is deemed "anti-Semitic" or otherwise bigoted based on race or religion. Regardless of the viewpoint expressed, the rule is the same: Government officials cannot circumscribe expression on the basis that others find the ideas offensive or hateful.

This is particularly true at public colleges, where "conflict is not unknown," and "dissent is expected and, accordingly, so is at least some disharmony." The First Amendment instead "embraces such heated exchange[s] of views."

The Supreme Court has long recognized the public's interest "in having free and unhindered debate on matters of public importance" as "the core value of the Free Speech Clause of the First Amendment." And there is simply no question that chalking support for any participants in the Israel/Hamas war—the reverberations of which have been felt globally for many months—constitutes expression on a matter of public concern, which is defined broadly as speech "relating to any matter of political, social, or other concern to the community."

Nor is there evidence (despite UW's suggestion) that the students' political messages, written in chalk at a farmers' market nearly a mile from campus, would approach the legal bars for either material support for terrorism or discriminatory harassment—even if those same words had been written on UW's own sidewalks.

The Supreme Court defines discriminatory harassment in the educational context as only those statements which are unwelcome, discriminatory on the basis of protected status, and "so severe, pervasive, and objectively offensive that it can be said to deprive the victim[] of access to the educational opportunities or benefits provided by the school." The U.S. Department of Education's Office for Civil Rights has likewise clarified that discriminatory harassment "must include something beyond the mere expression of views, words, symbols, or thoughts that some person finds offensive."

Current events do not change this analysis. Earlier this month, OCR reiterated that "offensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a hostile environment under Title VI," and that "[n]othing in Title VI or regulations implementing it requires or authorizes a school to restrict any rights otherwise protected by the First Amendment to the U.S. Constitution." OCR's letter also emphasized that campuses have options for addressing the impact of hostile speech that avoid offending the First Amendment, including by offering a variety of support services to affected students.

UW's own discriminatory harassment policies and RSO rules reflect these appropriate limits on its ability to punish core political speech, with the RSO rules clearly stating they "will not be used to impose discipline for the lawful expression of ideas" and that "[t]he right of all students to seek knowledge, debate, and freely express their ideas is fully recognized by the University." This is surely because, as you know, free expression is a "longstanding priority" at UW-Madison, which has a dedicated mission and a values statement focused on "Free Expression at UW-Madison." That statement describes "the need for the free exchange of ideas through open dialogue, free inquiry, and healthy and robust debate," as "inherent" to the university's educational mission, "captured by our now-famous language about the importance of 'that fearless sifting and winnowing by which alone truth can be found.'"

Student organizations play an important role in the healthy speech ecosystem that UW's mission and values seek to foster. In turn, the First Amendment protects these groups' expressive and associational rights, fostering their ability to organize around causes and to attempt to influence our institutions, communities, and country. Nor can universities subject the speech of students in RSOs to additional, viewpoint-based scrutiny.

Instead, student groups' speech rights are broad, and they extend to expressing philosophical support for the use of force or violence. As the Supreme Court has held: "What is a threat must be distinguished from what is constitutionally protected speech," including "political hyperbole," given our country's "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."

Government actors may prohibit non-expressive conduct intended to provide material support, like property or services, to designated foreign terrorist organizations.   But the First Amendment's protection of robust debate prohibits government actors from limiting mere expressive activity or rhetorical support for such groups. That is so even where the net effect of the advocacy is to sway public opinion.

Despite what may be good intentions, UW does its community no service by censoring these controversial messages. Like many universities, UW is a community of people with sharply divergent views on a wide variety of issues. To the extent the chalked messages have informed UW students, faculty, and staff members of the presence of individuals with these views on campus, this should be seen as an opportunity for those who disagree either to engage with them in good faith—or, if they wish, to avoid such engagement. Censoring them will do nothing to change their minds, and will deny all parties the opportunity to learn from one another.

The First Amendment, and UW's longstanding commitment to its attendant norms, are most relevant on campus at precisely the moments like these, when social and political unrest triggers high emotions, deep divisions, and the temptation to turn to censorship. When a university departs from its core principles at these key moments and resorts to silencing views it deems odious, it sends the message that the university has subordinated both the rights of its students and its mission of liberal education to the political demands of the day.

We therefore urge you in the strongest possible terms, in this difficult season for campus discourse, to stand by the university's legal and moral obligations to respect students' core expressive freedoms. This requires promptly reinstating the Anticolonial Scientists and Mecha de UW Madison student organizations, and publicly disavowing any ongoing investigation into their clearly protected political speech.

Given the urgent nature of this matter, we request a substantive response to our inquiry no later than close of business Thursday, May 23, 2024.

The legal analysis sounds quite right to me. Note that, even if the government could forbid chalking in various places (and it's not clear whether it can, at least as to public sidewalks), it can't specially punish chalking that conveys particular views, including advocacy of foreign terrorist organizations and support for violence in foreign conflicts.

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From Edokobi v. Smith, decided yesterday by the Appellate Court of Maryland (Judges Kathryn Grill Graeff, Kevin Arthur, and James Eyler):

In the light most favorable to Edokobi, the complaint alleged, generally, three claims: first, during an argument in front of two of Edokobi's employees about payment for work Smith had performed, Smith called Edokobi "a piece of garbage." Second, after Edokobi's employees left, Smith cast "evil curses" upon Edokobi's life and business. And third, in private text messages between the parties, Smith called Edokobi "stupid," "evil," and "foolish," and threatened to remove Edokobi's industrial equipment from his warehouse.

Edokobi's second and third claims cannot satisfy the [publication] element of defamation. Even if the alleged statements were defamatory, they were not made to, or in front of, a third person….

Although [the first] statement was made in front of third persons, as a matter of law, it was not defamatory. "A defamatory statement is one [that] tends to expose a person to public scorn, hatred, contempt, or ridicule, thereby discouraging others in the community from having a good opinion of, or from associating or dealing with, that person." "The test is whether the words, taken in their common and ordinary meaning, in the sense in which they are generally used, are capable of defamatory construction."

What is more, "statements that cannot reasonably be interpreted as stating actual facts" cannot be defamatory. For example, "rhetorical statements employing loose, figurative, or hyperbolic language[,]" unless coupled with verifiably false statements of fact, as a matter of law, are not defamatory….

To be sure, … a statement in the form of an opinion may still be actionable "if it implies the allegation of undisclosed defamatory facts as the basis for the opinion." A statement does not rise to the level of defamation, however, "simply because the subject of the [statement] finds [it] annoying, offensive, or embarrassing." See also, e.g., Meier v. Novak, 338 N.W.2d 631, 635 (N.D. 1983) (holding that it is not defamatory to call someone an "asshole"); Cowan v. Time Inc., 245 N.Y.S.2d 723, 725–26 (1963) (holding that it is not defamatory to call someone an "idiot"). "The common law has always differentiated sharply between genuinely defamatory communications [and] obscenities, vulgarities, insults, epithets, name-calling, [or] other verbal abuse." "No matter how obnoxious, insulting, or tasteless such name-calling [may be], it is regarded as a part of life for which the law of defamation affords no remedy." So too here.

Smith's statement calling Edokobi "a piece of garbage" is not capable of defamatory construction. Taken in their common and ordinary meaning, these words can be understood only as a metaphor through which the speaker—Smith—is expressing an unfavorable opinion of the subject—Edokobi. The statement cannot reasonably be interpreted as stating actual facts and, by itself, does not imply the allegation of undisclosed defamatory facts as the basis for the opinion. It is not a statement that "tends to expose [the subject] to public scorn, hatred, contempt, or ridicule, thereby discouraging others in the community from having a good opinion of, or from associating or dealing with, that person."

Put simply: Edokobi may have been insulted by Smith's statement, but, as a matter of law, he was not defamed by it. Consequently, Edokobi's complaint failed to state a claim for defamation, and the circuit court did not err in dismissing it.

 

The post "After Edokobi's Employees Left, Smith Cast 'Evil Curses' upon Edokobi's Life and Business"—But Not Libelous Ones appeared first on Reason.com.

Politico (Blake Jones) reported yesterday:

California State University placed Sonoma State campus President Mike Lee on leave Wednesday after he agreed to protesters' demands to involve them in university decision-making and pursue divestment from Israel.

Lee sent a campus-wide memo Tuesday indicating that he had made several concessions to occupants of a pro-Palestinian encampment on campus. The memo was sent "without the appropriate approvals," CSU Chancellor Mildred García said in a statement, adding that she and the 23-campus CSU system's board are "actively reviewing the matter."

"For now, because of this insubordination and the consequences it has brought upon the system, President Lee has been placed on administrative leave," García said….

Lee told the campus that he would initiate an academic boycott of Israel, in which links to study abroad programs in the country would be removed from university pamphlets, among other measures….

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From State v. Dolcini, decided Monday by the Ohio Court of Appeals (opinion by Judge Jennifer Hensal, joined by Judges Scot Stevenson and Jill Flagg Lanzinger; for the factual backstory, see "85-year-old Hinckley man convicted twice for littering on Trump-supported neighbors" [WKYC, Phil Trexler & Marisa Saenz]):

Mr. Dolcini repeatedly placed paper material in the yards of two of his neighbors in response to political signs they displayed. The material was in bags that contained newspaper clippings, magazine articles, mail Mr. Dolcini had received, pamphlets, and other paper material. Mr. Dolcini had cut his address out of any of the mail, but the post office was able to use other identifying information on the pieces to determine they had been delivered to him. According to Mr. Dolcini, he delivered the material to promote the discussion of environmental issues. He removed his name because he did not want his mailbox to be blown up by an explosive, as had happened to another resident of his township.

Dolcini was convicted of littering, and sentenced to "30 hours of community service and … a $150 fine." Unconstitutional, the court held:

"Although a municipality may enact regulations in the interest of the public safety, health, welfare or convenience, these may not abridge the individual liberties secured by the Constitution to those who wish to speak, write, print or circulate information or opinion." Schneider v. State (1939) [a case involving the hand-to-hand distribution of leaflets -EV]. In Schneider, the United States Supreme Court noted that pamphlets "have proved most effective instruments in the dissemination of opinion." It also noted that "perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people." This Court has also recognized that "[t]he right to distribute, circulate, or otherwise disseminate ideas and written materials has long been recognized as constituting an integral part of the right of free speech."

In Martin v. City of Struthers (1943) [a case involving door-to-door canvassing -EV], the Supreme Court explained that the "[f]reedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved." Surveying the then-existing trespassing laws, the Court noted that those laws required a warning by a property owner to others to keep off the premises. It also noted the importance of leaving "the decision as to whether distributers of literature may lawfully call at a home where it belongs-with the homeowner himself."

According to Mr. Dolcini's affidavit, all the residences where he left materials had political signage in their yards and none of them had no trespassing signs posted. Thus, their consent to receive literature is "implied from community custom and tradition." Mr. Dolcini also indicated that he placed the reading material in waterproof bags that he bound with a rubber band and that he placed the bags near the homeowners' mailboxes.

Upon review of the record, we conclude that, under the uncontested facts that were listed in Mr. Dolcini's affidavit, Mr. Dolcini's delivery of political and other literature to his neighbors was protected speech under the First Amendment….

Alan Medvick represents Dolcini.

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AP, July 13, 2023, "unalive":

"Unalive" refers to death by suicide or homicide. It can function as adjective or verb and joins similar phrasing — like "mascara," to mean sexual assault — coined by social media users [especially on TikTok -EV] as a workaround to fool algorithms on sites and apps that censor posts containing discussion of explicit or violent content.

Plutarch, Life of Cicero, written circa AD 100; the Latin word for "they have lived" is apparently "vixerunt" ("third-person plural perfect active indicative of vīvō"):

And seeing that many members of [Catiline's] conspiracy were still assembled in the forum in ignorance of what had been done and waiting for night to come, with the idea that the men were still living and might be rescued, he cried to them with a loud voice and said: "They have lived." For thus the Romans who wish to avoid words of ill omen indicate death.

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In responding to criticism of the question, the journalist says that he's not anti-Israel (see here), and I have no reason to doubt that. He also notes, "everyone struggles with some thoughts on this matter":

Eden Golan brings risk and danger to Malmo as a singer of her beautiful country—even if it is a broadcasting competition. Crazy supporters of Hamas can take advantage of the situation and the interest in the [Eurovision Song Contest] for various activities. This was the question and nothing else

Here's my thinking: Of course someone has to consider the risk posed by the presence of people who are potential targets for attack—whether prominent Israelis, or Salman Rushdie, targets of crazed nonpolitical stalkers, or anyone else. It's the job of security people to consider those very risks, in deciding how to effectively protect the event (and I hope not in deciding to exclude the potential victim). And of course other people may indeed struggle with their own thoughts on this matter. Worry about risk of violence is a natural human reaction.

But the implication of the journalist's question wasn't, I think, just "Did the risk cross your mind?" Rather, the implication was, "Shouldn't you feel obligated to stay away because of the risk that people might attack you and in the process injure bystanders?," with the answer to that implied question being "Yes."

And that, it seems to me, isn't right. A proper response to such threats of violence generally has to be to defy them, and not to allow them to control our lives, as a matter of law or as a matter of morals. On balance, a norm that requires people to give in to such threats, and to stay away from events because of the risk to bystanders, will cause more long-term harm than a norm that people have the right to ignore such bystander risk. (Just to be clear, if the target of the threat doesn't want to defy it, I don't want to add to her problems by insisting that she defy it—my point is simply that such defiance is a proper response, and not one that should be faulted.)

Here's an analogy from the legal world (and of course I realize that the journalist's question had to do with moral obligations, not legal ones). The case is Governors Ridge Office Park Association v. McBrayer (Ga. Ct. App. 2021), where neighbors sued an abortion clinic owner for nuisance, partly on the grounds that

[McBrayer] knowingly brought with [him] a substantial risk of physical harm and property damage to [neighbors], [and] instilled a fear that a clinic of Dr. McBrayer might be bombed again, and their physical safety, lives and buildings might be threatened by activities such as the arson fire-bombing in May 2012 of the clinic in the Park operated by [McBrayer].

A jury awarded neighbors $1.5 million. (For an overseas zoning law analog, consider the Australian court decision upholding a refusal to allow a building permit for a synagogue because it could be a terrorist target, given "[t]he threat situation with respect to Jewish communities around the world and Australia.") And the anti-abortion activist group Operation Rescue hailed this as a means for fighting abortion clinics more generally:

This case is important because it gives other office park associations a template to follow when abortion businesses move in and cause disruptions…. We urge office parks where abortion businesses are located to sue for nuisance they cause.

They (the abortion clinics) cause the nuisance, Operation Rescue was arguing—not the protesters (such as Operation Rescue members) who come to protest, or the arsonists who try to or threaten to burn down the clinic and thus endanger its neighbors. And while the Operation Rescue statement of course didn't urge violent attacks or threats, the logic of the decision created an incentive for such attacks or threats—after all, the office parks' suit for the "nuisance [the clinics] cause" relies in large part on the presence of such criminal conduct on the part of the anti-abortion movement's violent fringe.

But the Georgia Court of Appeals reversed the verdict, relying in part on something like a right to defy:

If we were to hold that a legally-operated abortion clinic cannot even operate in a commercial office park zoned for medical practices without constituting a nuisance we would be, in effect, holding that such clinics cannot properly operate anywhere. As [amici curiae] correctly point out, such a holding could be used to expose a broad array of legal businesses and institutions to nuisance liability due to the fact that some find them controversial and some will protest their very existence.

Both legal protestors and criminals have caused disruption around a multitude of business and institutions, such as gun shops, fur retailers, Chick-Fil-A restaurants, police departments, synagogues, statehouses, Black churches, adult entertainment establishments, and mosques, to name a few. Under the common law, property ownership in Georgia does not guarantee only ideologically-aligned neighbors whose business practices will cause no upset or attract no controversy, and we will not hold otherwise.

For more, see The Right to Defy Criminal Demands, which also links this to many other legal examples. (Note that I filed a friend-of-the-court brief in the McBrayer case.) Thanks to Prof. Ellen Bublick for the pointer to the journalist's question story.

UPDATE: My original post overstated things slightly in the "proper response" paragraph. I've tinkered with it slightly and added the parenthetical to make clear that I don't demand defiance from the potential target of the attack (who has problems enough without my adding to them with such demands)—I only demand that we accept such defiance if that is the potential target's choice.

The post "Have You Ever Considered That Your Presence Poses a Risk to Other Participants and the Public?" appeared first on Reason.com.

The statement:

Dear members of the MIT community,

At my direction, very early this morning, the encampment on Kresge lawn was cleared. The individuals present in the encampment at the time were given four separate warnings, in person, that they should depart or face arrest. The 10 who remained did not resist arrest and were peacefully escorted from the encampment by MIT police officers and taken off campus for booking.

I write now because this is an unprecedented situation for our community, and you deserve a clear explanation of how we arrived at this moment.

But let me start by emphasizing that, as president, my responsibility is to the whole community: to make sure that the campus is physically safe and functioning for everyone, that our shared spaces and resources are available for everyone, and that everyone feels free to express their views and do the work they came here to do. As you will see, in numerous ways, the presence of the encampment increasingly made it impossible to meet all these obligations.

A timeline of key events

Here's a quick timeline, familiar from my past notes to you:

• The encampment began on Sunday, April 21, in violation of clear Institute guidelines well known to the student organizers. It slowly grew. Though it was peaceful, its presence generated controversy, including persistent calls from some of you that we shut it down. While we asked the students repeatedly to leave the site, we chose for a time not to interfere, in part out of respect for the Institute's foundational principles of free expression.
• Last Friday, May 3, we were able to contain a significant rally and counter demonstration through a very extensive coordinated effort, including with the City of Cambridge, which shut down Mass. Avenue. Among other measures, we set up high temporary fencing around the encampment to help maintain separation between the groups. This event drew several hundred people from outside MIT in support of each side.
• On Monday, May 6, judging that we could not sustain the extraordinary level of effort required to keep the encampment and the campus community safe, we directed the encamped students to leave the site voluntarily or face clear disciplinary consequences. Some left. Some stayed inside, while others chose to step just outside the camp and protest. Some chose to invite to the encampment large numbers of individuals from outside MIT, including dozens of minors, who arrived in response to social media posts.
  Late that afternoon, aided by people from outside MIT, many of the encampment students breached and forcibly knocked down the safety fencing and demolished most of it, on their way to reestablishing the camp. In that moment, the peaceful nature of the encampment shifted. Disciplinary measures were not sufficient to end it nor to deter students from quickly reestablishing it.
• Wednesday, May 8, was marked by a series of escalating provocations. In the morning, pro-Palestinian supporters physically blocked the entrance and exit to the Stata Center garage though they eventually dispersed. Later, after taking down Israeli and American flags that had been hung by counter protestors, some individuals defaced Israeli flags with red handprints, in the presence of Israeli students and faculty. Several pro-Israel supporters then entered the camp to confront and shout at the protestors. Throughout, the opposing groups grew in numbers. With so many opposing individuals in close quarters, tensions ran very high. The day ended with more suspensions – and a rally by the pro-Palestinian students.
• Thursday, May 9, pro-Palestinian students again blocked the mouth of the Stata garage, preventing community members from entering and exiting to go about their business, and requiring that Vassar Street be shut down. This time, they refused directions from the police to leave and allow passage of cars. Their action therefore resulted in nine arrests.

Sustained effort to reach a resolution through dialogue

As we all, know, the current conflict on campus stretches far beyond MIT. From the beginning, we have watched with great concern what has happened on other campuses. We have been determined to avoid violence, and I have been strongly opposed to using the threat of arrest to resolve a situation that should be mediated by discourse.

We tried every path we could to find a way out through dialogue. In various combinations, senior administrative leaders and faculty officers met with the protesters many times over almost two weeks. This sustained team effort benefited from the involvement of at least a dozen faculty members and alumni who have been supporting and advising the protestors, and, in the final stages, a professional mediator who was meeting with the students.

Reaching a solution hinged on our ability to meet the students' primary demand, which we could not do in a well-principled way that respected the academic freedom of our faculty. Yet though all of us working with the students were hopeful, the students would not yield on their original demand, and negotiation did not succeed.

Irresolvable tensions, and a tipping point

And thus we arrived at this morning's police action – our last resort.

For members of our community who may remember or even have participated in past protests, at MIT or elsewhere: This situation is fundamentally different. Why? Because this is not one group in conflict with the administration. It is two groups in conflict, in part through us, with each other.

The encampment had become a symbol for both sides. For those supporting the pro-Palestinian cause, it symbolized a moral commitment that trumped all other considerations, because of the immense suffering in Gaza. For the pro-Israel side, the encampment – at the center of the campus where they are trying to receive an education and conduct research – delivered a constant assertion, through its signs and chants, that those who believe that Israel has a right to exist are unwelcome at MIT.

As a result, the encampment became a flashpoint. MIT sits at the center of a major metropolitan area that features a large population of college-aged students. Our campus is easy to reach and wide open.

The escalation of the last few days, involving outside threats from individuals and groups from both sides, has been a tipping point. It was not heading in a direction anyone could call peaceful. And the cost and disruption for the community overall made the situation increasingly untenable. We did not believe we could responsibly allow the encampment to persist.

The actions we've taken, gradually stepped up over time, have been commensurate with the risk we are in a position to see. We did not take this step suddenly. We offered warnings. We telegraphed clearly what was coming. At each point, the students made their own choices. And finally, choosing among several bad options, we chose the path we followed this morning – where each student again had a choice. I do not expect everyone to agree with our reasoning or our decision, but I hope it helps to see how we got there.

Finally: Our actions today had nothing to do with the specific viewpoints of the students in the encampment. We acted in response to their actions. There are countless highly effective ways for all of us to express ourselves that neither disrupt the functioning of the Institute nor create a magnet for external protestors. As the ad hoc Committee on Academic Freedom and Campus Expression recently observed, "while freedom of expression protects the ability of community members to express their views about the current situation in the Middle East, it does not protect the continued use of a shared Institute resource in violation of long-established rules."

[*  *  *]

Our community includes people who lost friends and family to the brutal terror attack of October 7, and people with friends and family currently in mortal danger in Rafah. It includes individuals whose families have struggled for years under the strictures imposed on Gaza, and at least one faculty member – an alumnus who has made his home at MIT for more than 70 years – who lost his whole family to the Holocaust. And of course, MIT includes people who hold a spectrum of views beyond those expressed by the encampment and by its fiercest opponents.

We all have a stake in this community. And we all have an interest in being treated with decency and respect for our humanity. That interest comes with a responsibility to offer each other the same consideration. We must find a way to work through this situation together; I pledge to work on that with anyone who will join me.

I have no illusions that today's action will bring an end to the conflict here, as the war continues to rage in the Middle East. But I had no choice but to remove such a high-risk flashpoint at the very center of our campus.

I can't speak to the accuracy or completeness of the facts, and one can disagree on the details; for instance, I think such encampments, which violate school rules, should be removed immediately. Still, the general analysis strikes me as quite reasonable.

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Today's U.S. v. Duarte, written by Judge Carlos Bea and joined by Judge Lawrence VanDyke, concludes that the Second Amendment protects some felons (at least after the end of their criminal sentences). The majority begins with the principle that:

[The Supreme Court's decision in] Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history. If the Second Amendment's plain text protects the person, his arm, and his proposed course of conduct, it then becomes the Government's burden to prove that the challenged law is consistent with this Nation's historical tradition of firearm regulation.

It reasons, much historical analysis later, with the view that:

A more faithful application of Bruen requires the Government to proffer Founding-era felony analogues that are "distinctly similar" to Duarte's underlying offenses and would have been punishable either with execution, with life in prison, or permanent forfeiture of the offender's estate.

And, the majority concludes, this defendant's particular past convictions—for vandalism, drug possession, evading a peace officer, and being a felon in possession of a firearm—did not qualify.

Judge Milan Smith dissents, concluding that pre-Bruen Ninth Circuit precedent categorically holds that all felons lack Second Amendment rights; the majority and the dissent disagree on whether Bruen overruled that precedent. The dissent, in particular, argues that (1) Bruen "repeatedly limited its definition of the scope of the right to 'law-abiding' citizens, using that phrase no fewer than fourteen times throughout the opinion," (2) "Nothing … in Bruen reflects a retreat from the Court's earlier statement in Heller that 'longstanding prohibitions on the possession of firearms by felons and the mentally ill' are 'presumptively lawful,'" and (3) concurrences in Bruen reaffirmed the Heller view with regard to felons.

The panel majority responds, among other things, that "we do not think that the Supreme Court, without any textual or historical analysis of the Second Amendment, intended to decide the constitutional fate of so large a population in so few words and with such little guidance…. [W]e agree with the Third Circuit that Bruen's scattered references to 'law-abiding' and 'responsible' citizens did not implicitly decide the issue in this case." It also takes the view that, "'Simply repeat[ing] Heller's language' about the 'presumptive[] lawful[ness]' of felon firearm bans will no longer do after Bruen," given Bruen's call for a historical analysis, and given that "the historical pedigree of felon firearm bans was never an issue the Heller Court purported to resolve."

The government will very likely petition for rehearing and for en banc review in this case. That review will probably be influenced by the Supreme Court's Rahimi case, which deals with whether people subject to domestic violence restraining orders lose their Second Amendment rights, and which is due to come down from the Court by June 30. The question in Rahimi and the question in this case aren't identical, but they share considerable similarities.

Note also that the government has already asked the Supreme Court to consider the Third Circuit's Range case, which reached a similar result. That the petition is being held, pending Rahimi. It seems likely that the Court will instruct the Third Circuit to reconsider the question in light of the Rahimi holding, just as the Ninth Circuit panel (and perhaps the en banc court) will be doing the same.

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Just circulated:

Our community is in deep pain. We are reeling from days of violence and division. And we hope with all our hearts that we can return to a place where our students, faculty and staff feel safe and, one day, connected again.

Our approach to the encampment that was established on Royce Quad last week has been guided by several equally important principles: the need to support the safety and wellbeing of Bruins, the need to support the free expression rights of our community, and the need to minimize disruption to our teaching and learning mission.

The events of the past several days, and especially the terrifying attack on our students, faculty and staff on Tuesday night, have challenged our efforts to live up to these principles and taken an immense toll on our community.

We approached the encampment with the goal of maximizing our community members' ability to make their voices heard on an urgent global issue. We had allowed it to remain in place so long as it did not jeopardize Bruins' safety or harm our ability to carry out our mission.

But while many of the protesters at the encampment remained peaceful, ultimately, the site became a focal point for serious violence as well as a huge disruption to our campus.

Several days of violent clashes between demonstrators and counter-demonstrators put too many Bruins in harm's way and created an environment that was completely unsafe for learning. Demonstrators directly interfered with instruction by blocking students' pathways to classrooms. Indirectly, violence related to the encampment led to the closure of academic buildings and the cancellation of classes. And frankly, hostilities were only continuing to escalate.

In the end, the encampment on Royce Quad was both unlawful and a breach of policy. It led to unsafe conditions on our campus and it damaged our ability to carry out our mission. It needed to come to an end.

Over the past several days, we communicated with and made a formal request to meet with demonstration leaders to discuss options for a peaceful and voluntary disbanding of the encampment. Unfortunately, that meeting did not lead to an agreement.

To preserve campus safety and the continuity of our mission, early this morning, we made the decision to direct UCPD and outside law enforcement officers to enter and clear the encampment. Officers followed a plan that had been carefully developed to protect the safety of protesters at the site. Those who remained encamped last night were given several warnings and were offered the opportunity to leave peacefully with their belongings before officers entered the area. Ultimately, about 300 protesters voluntarily left, while more than 200 resisted orders to disperse and were arrested.

UCLA facilities teams are now in the process of taking down structures and cleaning up the quad, and we ask that students, staff and faculty continue to avoid the area.

I want to be clear that we fully support the right of our community members to protest peacefully, and there are longstanding and robust processes in place that allow students, faculty and staff to gather and demonstrate in ways that do not violate the law or our policies. I urge Bruins to take advantage of these many opportunities, which were designed to support advocacy that does not jeopardize community safety or disrupt the functioning of the university.

I also want to recognize the significance of the issues behind the demonstrators' advocacy. The loss of life in Gaza has been truly devastating, and my administration has and will continue to connect with student and faculty leaders advocating for Palestinian rights to engage in discussions that are grounded in listening, learning and mutual respect. Similarly, we will continue to support our Jewish students and employees who are reeling from the trauma of the brutal Oct. 7 attacks and a painful spike in antisemitism worldwide.

We will also continue to investigate the violent incidents of the past several days, especially Tuesday night's horrific attack by a mob of instigators. When physical violence broke out that night, leadership immediately directed our UCPD police chief to call for the support of outside law enforcement, medical teams and the fire department to help us quell the violence. We are carefully examining our security processes that night and I am grateful to President Drake for also calling for an investigation.

The past week has been among the most painful periods our UCLA community has ever experienced. It has fractured our sense of togetherness and frayed our bonds of trust, and will surely leave a scar on the campus. While Counseling & Psychological Services and Staff & Faculty Counseling Center are available to lend support to those in need, I also hope we can support one another through this difficult moment and reaffirm the ties that unite us as a community of learning.

I've been off campus since two weeks ago (the law school, unlike undergrad, is on the semester system, so the last day of my Business Torts class was on the 18th); I've also been out of town the last few days. My knowledge of what's happening at UCLA is thus  sketchy and second-hand. It appears clear that some of the pro-Israel demonstrators tried to (unlawfully) tear down the (unlawfully placed) barricades surrounding the encampment, and people then started physically fighting each other. Some accounts I've seen suggest that the fights were mostly directly initiated by the pro-Israel demonstrators (and not just in the sense that the taking down of the barricades led to foreseeable reactions); others describe basically mutual melees. I'm happy to wait further to see if the picture is made any clearer.

Many sources also report that it took the police hours to intercede to break up the fights, and some suggest that the problem was that the university authorities did not properly instruct the police to intercede more promptly. If that's right, then that strikes me as hard to defend.

Law enforcement, in both sense of the word (the people and the activity), should be present in such situations, proactively and not just in a slow reaction—especially as to violence, but also as to vandalism, illegal taking over of public space (space where all UCLA students should be free to go), and the like. Students should be free to express themselves, on both sides of the conflict, but only consistently with the law and with university rules. To close with a quote from Jesse Singal's Singal-Minded newsletter (and I recommend people read the whole item):

What if widespread disorder is … bad? And should be prevented?

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Various district courts have put out such orders; here's the most recent I've seen, a Standing Order on Requests for Hearings and Oral Arguments from Magistrate Judge David Horan (N.D. Tex.):

With regard to possible oral argument or an evidentiary hearing, the Court notes a trend today in which fewer cases go to trial and in which there are fewer speaking or "stand-up" opportunities in court, particularly for junior lawyers (that is, lawyers practicing for less than seven years). The Court encourages litigants to be mindful of opportunities for junior lawyers to conduct hearings or oral argument before the Court, particularly hearings or oral arguments as to which the junior lawyer drafted or contributed to the underlying motion or response.

In those instances in which the Court is inclined to rule on the papers, a representation that the oral argument would be handled by a junior lawyer – or by a lawyer who has more than seven years in practice but who has had less than five speaking appearances in any federal court – will weigh in favor of holding oral argument. The Court understands that there may be circumstances in which having a junior lawyer handle a hearing or oral argument might not be appropriate – such as where no junior lawyers were involved in drafting the motion or response or where the motion might be dispositive in a "bet-the-company" type case.

Even so, the Court believes it is crucial to provide substantive speaking opportunities to junior or other less experienced lawyers and that the benefits of doing so will accrue to junior lawyers, to clients, and to the profession generally. The Court encourages all lawyers practicing before the Court to keep this goal in mind.

This relates to a potentially complicated matter in many professions, I think.

The clients may well consistently want the more experienced lawyer (even when they need to pay more), even for minor procedural motions; but there won't be experienced lawyers if inexperienced lawyers can't get experience. Is that reason for the system to give special opportunities to less experienced lawyers? Or is that unfair to the clients? Or, independent of fairness, is it an improper intrusion into the clients' ability to get the experienced lawyer that they prefer (even when the special opportunity for less experienced lawyers is a nudge, as with this order, rather than a command)?

My sense is that similar concerns arise in medicine, with teaching hospitals. Quite how judges / lawyers / doctors / etc. should deal with this is an open question, but I thought I'd pass along one answer.

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Released Monday by OSU President Ted Carter; I'm not up on the factual details, but I agree that such encampments can and should be forbidden under content-neutral time, place, and manner rules, and those rules should be enforced:

Listening to the feedback from our community over the last several days, I want to set the record straight regarding the events that took place on the South Oval on April 25.

I value and welcome free speech. I have spoken to this since the day I arrived here at Ohio State. As many of you know, I wore the cloth of our nation for 38 years to support and defend these rights. What occurred on our campus on April 25 was not about limiting free speech. It was an intentional violation of university space rules that exist so that teaching, learning, research, service and patient care can occur on our campuses without interruption.

As a public university, demonstrations, protests and disagreement regularly occur on our campus — so much so that we have trained staff and public safety professionals on-site for student demonstrations for safety and to support everyone's right to engage in these activities. Sadly, in recent days, I have watched significant safety issues be created by encampments on other campuses across our nation. These situations have caused in-person learning and commencement ceremonies to be canceled. Ohio State's campus will not be overtaken in this manner.

We have been abundantly clear in a multitude of communications that Ohio State has and will enforce the law and university policy, which is what we did on April 25. I most recently stated this in a campus message on April 22. Dr. Shivers again reinforced this and the rules that apply to Finals Week in a message to all students on April 23.

The university's long-standing space rules are content neutral and are enforced uniformly. Thursday's actions were taken because those involved in creating the encampment on the South Oval were in violation of these rules and had been notified of this beginning at 4:30 a.m. when the first encampment was attempted, and continuing repeatedly throughout the day. During and after the attempted encampment on Thursday morning, students asked our demonstration staff pointed questions about the space rules and received answers, confirming they were aware of the rules.

Despite these warnings and clear information about the rules, student organizations and outside entities promoted both the morning and the 5 p.m. activities as "encampments," and the university consistently informed the groups that this is prohibited and would not be permitted. At approximately 5:30 p.m., a group of more than 300, many of whom were not students, faculty or staff at Ohio State, crossed College Road to the South Oval and set up an encampment. Over the next five hours, the group proceeded to establish and build upon the encampment, while being repeatedly warned that this was prohibited. The Ohio State University Police Division was the lead agency, and after numerous warnings, the university made the decision to begin arrests. At approximately 10 p.m., law enforcement began the process of arresting and charging individuals with criminal trespass for knowingly violating university policy and police orders.

Encampments are not allowed on campus regardless of the reason for them. They create the need for around-the-clock safety and security resources, which takes these resources away from the rest of our community. They also create undue pressure on proximate buildings, in this case the Ohio Union, for restrooms and personal hygiene. During Finals Week, the Ohio Union is not only a study space for students, but it is also an exam location, including for students with disabilities. In this case, with the intent of creating an ongoing, 24/7 activity, the encampment also created a disturbance to our residential community in Baker Hall.

I acknowledge that even with additional facts about the incident and the timeline of events, some will continue to disagree with the actions taken. I accept that criticism and will always listen to others' concerns. In short, I take my responsibilities very seriously and am accountable for outcomes. Arrests are not an action that I or any member of the administration take lightly. I have stated since the first day I was announced as president that safety will not be compromised.

Additional details surrounding the facts of what occurred on April 25 are available on the university's Key Issues webpage and I encourage you to read them. But I wanted you to hear directly from me that Thursday's actions were not about the content of anyone's speech. They do not mean we are limiting individuals' right to gather and demonstrate. They do mean that Ohio State will continue to uniformly enforce our space rules as well as take the actions that support the safety and security of our community as a whole.

I also want to recognize and thank the many members of our community who have been committed to teaching, learning, listening to and supporting one another as well as peacefully exercising their First Amendment rights on our campus over these past months. This is what I know our Buckeye community is capable of, even — and especially — when it is most difficult.

The post Ohio State University President's Statement on Clearing of Protest Encampments appeared first on Reason.com.

Sent out yesterday:

This post provides an update from Stanford University about the encampment recently set up on Stanford's White Plaza. It follows the message sent to students by the president and provost last Friday, April 26. Additional updates will be posted to this page as needed.

Stanford welcomes and encourages the peaceful expression of free speech by members of our Stanford community. Students have been pursuing many opportunities to do so over the course of this year, in a variety of ways. Among other options, student groups are welcome to engage in advocacy on White Plaza in a manner consistent with campus policies. There is a process for registering to do so, in order to allow for equitable access to this space by members of our community.

Alongside its support for the peaceful expression of free speech, the university has viewpoint-neutral time, place, and manner policies. Among these are policies regarding the use of White Plaza, prohibiting overnight camping, and prohibiting the disruption of classes and university events.

With respect to the encampment on White Plaza, the university is continuing to submit names of students who are violating campus policies to the Office of Community Standards (OCS) for disciplinary proceedings. This is being done in a viewpoint-neutral manner and based on evidence of students' conduct in violation of university policy. Students who are involved will have the opportunity to provide a defense to OCS.

Stanford also is concerned about the involvement of non-student outsiders in these activities on our campus. We continue to remind visitors that their participation in activities that violate university policy may subject them to criminal and/or civil liability.

We have received many expressions of concern about a photo circulating on social media of an individual on White Plaza who appeared to be wearing a green headband similar to those worn by members of Hamas. We find this deeply disturbing, as Hamas is designated a terrorist organization by the United States government. We have not been able to identify the individual but have forwarded the photo to the FBI.

As it has throughout the last months, Stanford is working to manage these issues in a deliberate manner that supports the safety of our students and of our campus community. As our students work toward the completion of their studies this spring quarter, and many look forward to graduation in June, we intend to continue working to support peaceful expression, to support the rules that govern our campus, and to support a safe environment for all.

Friday's message also links to the policies that "prohibit disruptions of classes and university events" and "prohibit[] overnight camping," and adds:

These policies are important to supporting the academic and scholarly activities on campus and to supporting the safety of our community. As we have previously explained, tents and overnight camping pose multiple safety challenges, including the need for 24-hour security since the physical layout of our campus makes it easily accessible to outsiders, some of whom may come with bad intentions. The tents themselves can also pose safety hazards, as was discussed in winter quarter. Students were reminded of these policies in a message earlier this week. We encourage the daytime use of White Plaza for free expression as long as the conduct is consistent with university policies, which require reservations for groups and only allow tables and not overnight tents or other materials.

Private universities in California, such as Stanford, are governed by the Leonard Law, a California statute that provides, in relevant part,

No private postsecondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment ….

But content-neutral time, place, and manner speech restrictions—including prohibitions on overnight camping in public parks and restrictions on speech that disrupts educational institutions—are permissible "outside the campus," and thus would be allowed on campus as well; and the statute itself (in a part that doesn't appear in the California Education Code, but remains part of the law) expressly acknowledges this:

The Legislature finds and declares the following: … Free speech rights, both on and off campus, are subject to reasonable time, place, and manner regulations.

(To be permissible, the policies likely have to be not just "viewpoint-neutral," but content-neutral, so that content-based distinctions based on subject matter, use of profanity, and the like are generally unconstitutional even if they are viewpoint-neutral. But it sounds like the relevant Stanford policies are indeed content-neutral.)

Note that wearing a green headband as a sign of support for Hamas would remain constitutionally protected speech (as would wearing a swastika or the like); punishing a student for doing so would be based on content and indeed on viewpoint, and would thus generally not be allowed under the Leonard Law. Of course, being an actual member of Hamas is a federal crime, since Hamas is indeed a designated foreign terrorist organization, and joining such an organization constitutes criminal provision of material support to the organization.

I'm skeptical that simply wearing the headband is much of a basis for the FBI to investigate, but I don't think there's a First Amendment (or state law) problem with such an investigation; the government can (at least under the First Amendment) investigate someone based on constitutionally protected speech, even if the person can't be prosecuted based just on that speech.

The post Stanford Message to Students About Protests appeared first on Reason.com.

From Doe v. U.S., decided yesterday by Judge Mary Kay Vyskocil (S.D.N.Y.):

Plaintiffs allege that for over two decades, the Federal Bureau of Investigation … allowed [Jeffrey] Epstein and others to sex traffic and sexually abuse children and young women by failing to investigate the reports, tips, and evidence it had of "rampant sexual abuse and sex trafficking by Epstein."

Plaintiffs sought leave to proceed under pseudonyms, but the court said no (note that at this stage there is no discussion yet of whether plaintiffs can sue FBI on this sort of failure-to-investigate theory):

Plaintiffs here allege that due to the FBI's failure to take appropriate action to investigate Epstein, they continued to be "sexually abused, raped, assaulted, tormented, violated, harassed, [and] intimidated," among other trauma. The Court agrees that Plaintiffs' allegations of sexual assault are "highly sensitive and of a personal nature," and, thus, the first factor of Sealed Plaintiff weighs in favor of anonymity. However, this factor is not dispositive. Courts in this district have explained that "allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym." Indeed, courts have denied motions to proceed under a pseudonym in similar circumstances….

Plaintiffs [also] argue that these factors weigh in favor of anonymity because "identification poses a further risk of mental harm." They assert that their experiences are "deeply traumatic" and "[p]laying out those experiences in a public forum would retraumatize them." Specifically, they argue that "certain Plaintiffs have sought out mental health treatment in connection with the abuse described in the complaint and would certainly experience additional significant harm if [they are] forced to reveal [their] identity to the public."

However, Plaintiffs' allegations of potential harm are too speculative and insufficient to outweigh the presumption in favor of openness in judicial proceedings. "The risk of psychological injury stemming from identification is a cognizable harm that can serve as a legitimate basis for proceeding anonymously." However, the potential injury alleged must be more than "mere embarrassment" or "social stigmatization." For example, a court in this Circuit allowed a plaintiff to proceed anonymously when she "provided specific evidence from medical professionals predicting that revelation of her identity would likely 'cause psychological and emotional pain so intense that it would threaten her stability, her safety, and even her life.'"

The Court acknowledges Plaintiffs' allegation, in the Complaint, that as a result of Defendant's purported negligence, they suffered, inter alia, "post-traumatic stress disorder, insomnia, anxiety, shock, fear, nightmares, shame, embarrassment, loss of enjoyment of life, flashbacks, [and] need for future medical and psychiatric expenses." These have, apparently, already occurred. However, nothing in the Complaint nor Plaintiffs' motion reference "[t]he risk of psychological injury stemming from identification."

Moreover, Plaintiffs "must base their allegations" of mental harm "on more than just 'mere speculation.'" Indeed, a court in this District explained that, although a plaintiff specifically alleged that she suffered from post-traumatic stress disorder and that her condition would be exacerbated by disclosure of her identity, the plaintiff did not provide "any medical corroboration," and the court could not "speculate" about the nature and severity of any mental injury from disclosure.

Plaintiffs broadly argue that if their identities were publicly disclosed, they "would certainly experience additional significant harm" and "retraumatize them." Without corroboration from medical professionals, however, their general allegations of potential trauma are "mere speculation" about a potential and conclusory risk of psychological injury that cannot support their motion to proceed anonymously. Likewise, the declaration of Plaintiffs' counsel which states, "I represent to the court that certain Plaintiffs have sought mental health treatment in connection with the abuse described in Plaintiffs' complaint," falls short of the "medical corroboration" necessary to support a motion to proceed anonymously.

Plaintiffs also briefly allude to a concern of retaliatory harm because the co-conspirators who participated Epstein's trafficking operation had, and continue to possess, "tremendous wealth and power and have demonstrated a clear ability to cause them all serious harm." However, Plaintiffs' unsupported theory that unspecified and unknown alleged "co-conspirators" may cause them "serious harm" is too speculative to support their motion. Moreover, this action is not brought against Epstein's estate or any other alleged co-conspirator. This action is brought against the United States of America. While the Court hardly thinks such a warning is necessary, the Court admonishes counsel for the United States, to refrain from any action that would substantiate this allegation. As in any action, any effort to tamper with any party or witness in this case will be met with severe consequences.

Additionally, the Court notes that even when a defendant's "notoriety will likely cause [a] case to attract significant media attention," plaintiffs' concerns about "public humiliation and embarrassment" generally are "not sufficient grounds for allowing [them] to proceed anonymously." Instead, as the Court explains below, the public's interest in allegations against Epstein (a widely-known figure) including the identities of his accusers, weigh against granting Plaintiffs' motion….

Plaintiffs do not allege that they are currently minors, nor do they provide any allegation with respect to their age more generally in their Complaint. While the Complaint very broadly states that "[a]ll causes of action arose from 1996 and continued until 2019," the Complaint provides no insight into how old the Plaintiffs were when the alleged abuse occurred. As such, Plaintiffs have not identified any reason for the Court to treat them as more vulnerable than the great run of adult plaintiffs who bring allegations of sexual assault in their own names, subject to public scrutiny….

Plaintiffs [also] argue that the United States would not be prejudiced if Plaintiffs litigate their claim anonymously because "[t]his is not a case in which the Defendant will not know the Plaintiffs' identity." Specifically[,] Plaintiffs state that counsel "will confidentially disclose Plaintiffs' name[s] to counsel for the Defendants." They argue that, as a result, "Plaintiffs' anonymous status will not impact any aspect of Defendant's ability to take discovery."

The Court does not accept Plaintiffs'"mere speculation," that proceeding under pseudonyms "will not impact any aspect of Defendant's ability to take discovery." For example, the United States may need to disclose Plaintiffs' names to at least some third parties if the United States intends to take non-party depositions. Moreover, "this unorthodox arrangement still runs against the public's traditional right of access to judicial proceedings." …

[C]ourts are open forums to which the public has a right of access. Plaintiffs cannot expect to litigate their claim in court without the underlying facts of the case, including their identities, being accessible to the public…. "[L]awsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among those facts is the identity of the parties." There is great public interest in not only the allegations against Epstein, but also in the identities of his accusers, and the government's investigation into his sex trafficking operation. In other words, this is not a case that involves "abstract challenges to public policies, but rather … particular actions and incidents."

Thus, "open proceedings … benefit the public as well as the parties and also serve the judicial interest in accurate fact-finding and fair adjudication." Indeed, it is the kind of case that "further the public's interest in enforcing legal and social norms." Plaintiffs argue that the public "has a [] greater interest in knowing who is accused of sexual abuse and where the abuse is alleged to have occurred than any interest in knowing the specific identity of a victim." Plaintiffs go on to urge that "the sensitive and personal nature of Plaintiff's [sic] allegations of sexual assault and the likelihood of further psychological injury overcomes any presumption of openness." "It may be, as plaintiff[s] suggest[], that victims of sexual assault will be deterred from seeking relief through civil suits if they are not permitted to proceed under a pseudonym. That would be an unfortunate result. For the reasons discussed above, however, plaintiff[s] and others like [them] must seek vindication of their rights publicly." …

Some federal courts have been more open than others to allowing alleged sex assault victims to sue pseudonymously (see pp. 1430-37 of The Law of Pseudonymous Litigation), but courts in the Southern District of New York have been especially hesitant to allow this.

The post No Pseudonymity for Alleged Jeffrey Epstein Victims Suing FBI Over Failure to Properly Investigate Epstein appeared first on Reason.com.

From Pryor v. School Dist. No. 1, decided yesterday by the Tenth Circuit, in an opinion by Judge Joel Carson, joined by Judges Timothy Tymkovich and Scott Matheson:

The First Amendment protects those who petition the government for redress of grievances, even though such speech may offend government officials or damage their public reputation. Plaintiff Brandon Pryor passionately—and at times profanely—criticized actors within Defendant Denver School District No. 1 ("District") when he advocated for change within the District. In response, Defendants stripped him of his volunteer position and restricted his access to District facilities. Because the District likely acted in retaliation against Plaintiff's First Amendment rights, we exercise jurisdiction under 28 U.S.C. § 1292 and affirm the district court's preliminary injunction….

Plaintiff Brandon Pryor advocates for quality educational opportunities in Far Northeast Denver ("FNE Denver"). His advocacy takes many forms: he texts privately with District administration, speaks with officials in person, appears on local podcasts and news media, posts on social media, attends board meetings and work groups, and participates in public comment sessions. He has also served as a volunteer football coach in FNE Denver for many years. In 2019 he co-founded a school in FNE Denver: the Robert W. Smith STEAM Academy ("STEAM Academy").

In October 2022, the District served on Plaintiff a letter from Aaron Thompson, the District's general counsel ("Thompson Letter"). The Thompson Letter alleged that Plaintiff had displayed "abusive, bullying, threatening, and intimidating conduct directed at [District] staff." As support for its allegations, the Thompson Letter described interactions between Plaintiff and District staff throughout the previous two years. The Thompson Letter also quoted Plaintiff's text messages, personal Facebook posts, and statements from phone calls and a local podcast.

The Thompson Letter explained that Neisa Lynch, newly hired principal of Montbello High School in FNE Denver, had complained to the District that Plaintiff subjected her to harassment, defamation, and slander and that he had intimidated and threatened her and her husband. In her complaint, Lynch cited many of Plaintiff's Facebook posts—including a post that specifically called for Lynch's resignation or termination; a post in which Plaintiff stated that she (and others) "are a disgrace to the entire community"; and a post that included Lynch's husband's LinkedIn profile and stated: "What are the chances that Neisa Lynch and her husband Mike Lynch worked together to steal our kids [sic] game? … I'm sure they've talked about it all …" Lynch also complained that Plaintiff told community members not to enroll children at her school; called her derogatory names such as "plantation builder"; and—according to the Thompson Letter—"suggest[ed] her colleagues have endured hate speech, harassment, defamation, and slander by [Plaintiff] as well."

{Lynch was not the first District employee to complain about Plaintiff. Other District employees had complained that Plaintiff had become angry with them and had yelled and cursed in personal interactions. In response to these complaints, the District investigated and found that Plaintiff acted unprofessionally but did not violate District policies on harassment. The District ultimately did not enforce restrictions on Plaintiff based on these prior complaints.}

Each conversation, post, or interaction that the Thompson Letter listed related in some manner to Plaintiff objecting to or calling for changes in District operations. In many posts, Plaintiff called for the resignation or termination of District officials; in others, he criticized District officials for operational missteps or decisions with which he disagreed. The text messages between Plaintiff and District staff included specific demands, sometimes coupled with derogatory statements directed at the staff. Some of Plaintiff's statements, as quoted in the Thompson Letter, were cryptic, such as "Warning! Don't poke a resting bear!" And a few statements contained expletives—such as the following: "Watch out for the Black folks trying to Whitesplain this bullshit" (in a Facebook comment related to a post criticizing Lynch for hiring decisions); and "Stay the fuck away from me" (in a phone conversation with the District's Regional Instructional Superintendent after Plaintiff learned she had canceled a planning meeting for the school he founded).

The Thompson Letter stated that Plaintiff violated various District policies and restricted Plaintiff's access to District facilities and relationship with the District. Plaintiff appealed these restrictions. The District eventually removed some restrictions, allowing Plaintiff to attend District Board meetings and participate in public comment sessions in person. But the District maintained two categorical restrictions ("Restrictions"): (1) the District removed Plaintiff from his position as volunteer football coach; and (2) the District revoked Plaintiff's privileged access to District facilities, including STEAM Academy, that he had previously enjoyed based on his status as a school founder.

The Tenth Circuit upheld a preliminary injunction that barred the District from "enforcing the Thompson Letter restrictions and from taking any other retaliatory action against Plaintiff, his family, or STEAM Academy for pursuing the lawsuit." The court concluded that, even if plaintiff, as a volunteer, was to be treated as an employee for First Amendment purposes, the school district's actions were likely unconstitutional:

In each interaction or conversation in question, Plaintiff expressed that he intended to expose wrongdoing in the local school board and school administration. Plaintiff revealed specific information about local schools and officials, presented his grievances to the board and members of the administration, and made specific requests for change that would affect the entire community. This content, form, and context fits speech intended to petition the government for redress of grievances. Plaintiff's personal passion on these issues does not lessen the community's interest in potential malfeasance by local government officials. Thus, Plaintiff spoke on matters of public concern….

The First Amendment protects an employee's dissenting speech [on matters of public concern] "unless the employer shows that some restriction is necessary to prevent the disruption of official functions or to insure effective performance by the employee." Expected public reaction that impacts external relationships does not constitute a detrimental impact and does not weigh in the District's favor. A governmental employer must justify the restrictions on an employee's speech by showing that, based on the employer's interest, its need for the restrictions outweighs the employee's right to speak.

We give great weight to an employee's First Amendment rights when he speaks out to expose government corruption—especially when the employee has first complained directly to the governmental entity's administration. In such cases, the governmental entity must carry an even higher burden of showing a stronger interest than we would otherwise require. This is because a governmental entity's interest in efficient operations should not only encompass a desire for a harmonious employee environment but should also extend to extinguishing corruption and misconduct.

Defendants argue that Plaintiff's speech threatened their safety. But the district court found that Plaintiff's speech did not endanger the District employees' safety or security—only their jobs. The record includes testimony by Defendants themselves that Plaintiff threatened the District staff's jobs, reputation, careers, and legal liability—not their physical safety. Defendants contend Plaintiff wanted a physical fight and rely on Plaintiff's text messages to Nicky Yollick, a community member, in which Plaintiff stated, "When I see you you are going to have a problem," and, "Send address and I can come now" ("Yollick Messages"). But Plaintiff testified that his intent in the Yollick Messages was to meet for a conversation and that Plaintiff and Yollick had a shared history in advocacy related to District operations. Thus the district court did not clearly err in its finding.

Meanwhile, Plaintiff spoke on matters of serious concern to the taxpaying public—school funding, cronyism, educational choice, and discrimination. And he repeatedly engaged directly with District officials in his attempts to effect change. So, Plaintiff's interest in speaking is strong. The impoliteness, passion, or profanity of his speech do not overcome his free speech interests. And the offensive, vulgar manner of Plaintiff's speech does not deprive him of constitutional protections—especially in the context of petitioning the government for redress for grievances.

Defendants fail to show that their interest in enforcing the Restrictions outweighs Plaintiff's interest in speaking. Moreover, Defendants' failure to enforce restrictions after prior complaints, engage in conflict resolution or mediation, or make any other effort to protect its employees contradicts any assertion that they have a significant interest in enforcing the Restrictions. Defendants' testimony that Plaintiff threatens their reputations suggests that Defendants' interest lies in curbing an expected public reaction. This does not weigh in their favor because the District lacks a valid interest in avoiding embarrassment or irritation at the expense of community members' free speech rights. Thus, Defendants do not carry their burden of justifying the Restrictions and the third factor weighs in Plaintiff's favor….

Andrew McNulty and Mari Newman of Killmer, Lane & Newman, LLP represent plaintiff.

The post "Plaintiff Threatened the District Staff's Jobs, Reputation, Careers, and Legal Liability—<i>Not</i> Their Physical Safety" appeared first on Reason.com.

Volokh, apparently from the place name Wallachia (Romania), is a klezmer (East European Jewish) musical composition, or perhaps a kind of such composition.

The post For Those Who Want a More Musical Volokh appeared first on Reason.com.