Campus Free Speech

Universities May Have Duty to Block Students' Access to Sites That Carry Supposedly "Harassing" Statements About Students

A bad decision from the Fourth Circuit, aptly criticized by the Foundation for Individual Rights in Education.

|The Volokh Conspiracy |

The 2-to-1 decision is today's Feminist Majority Foundation v. Hurley (the University of Mary Washington case). I'm traveling, and thus won't have time to post a detailed analysis myself, but here's part of the analysis from Samantha Harris at FIRE:

The alarming upshot of the ruling is its suggestion that Title IX may sometimes require colleges to censor or block all students' access to certain internet sites or services based solely on anonymous statements made in an online forum that the university does not control, by people who may not be on campus, or even affiliated with the university at all.

The case … stems from a series of events that roiled UMW's campus back in 2015. At the time, members of the UMW student group Feminists United on Campus (a local affiliate of Feminist Majority Foundation) were speaking out about several issues on campus, including the student senate's decision to authorize fraternities as well as a bawdy rugby chant that several members of UMW's men's rugby team were recorded singing at an off-campus party. Following their advocacy, FUC members found themselves the targets of online hostility, particularly on a now-defunct platform called Yik Yak that allowed users within a certain geographic radius to post anonymous messages. FUC complained about this repeatedly to the UMW administration, and after they found UMW's response to their complaints to be lacking, they first filed a complaint with the U.S. Department of Education's Office for Civil Rights and then, ultimately, a federal [Title IX] lawsuit….

In a ruling that has far-reaching implications for universities' obligation to monitor and address the off-campus, online speech of its students, the [Fourth Circuit] held that because UMW had the "technical capacity to control the means by which the harassing and threatening messages were transmitted" (that is, the ability to block campus network access to Yik Yak altogether) and because they could have taken other actions (such as "mandatory assemblies" or "anti-sexual harassment training") to make clear that sexual harassment by its student body would not be tolerated, the plaintiffs had sufficiently alleged that UMW had substantial control and thus could be liable for the harassment.

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165 responses to “Universities May Have Duty to Block Students' Access to Sites That Carry Supposedly "Harassing" Statements About Students

  1. I’d make fun of that group’s acronym but it’s probably deliberate.

    1. They want you to make fun of it. Then they’ll sue.

      1. Or more likely UMW will have to block their students’ online access to the Volokh Conspiracy.

        1. +1

    2. But doesn’t the acronym create a Hostile Environment and require trigger warnings for rape survivors?

    3. It’s short for FUCKKK.

      1. a ab
        I don’t get it. ‘fuckkk’ ????

        1. I think he’s comparing FUC to the KKK?

  2. “several issues on campus, including … a bawdy rugby chant that several members of UMW’s men’s rugby team were recorded singing at an off-campus party”

    Wow, that’s some serious overreach and bad logic.

  3. Are we sure this isn’t a parody?

    1. It is absolutely parody. But it’s also a decision from a federal court of appeals.

    2. Your team has been a parody for a few decades bernard.

      1. Yet another thoughtful comment by Jesse – right in line with his history.

        Do you ever have something intelligent to say, or is anything other than random insults beyond your mental capacities, such as they are?

  4. And how do they block it without violating other students’ First Amendment right to access it? Don’t have time to read it now but I really hope it’s one where the summary partially distorts the actual holding because as described it is horrendous.

    1. They can’t block it, short of severing all of the campus networks’ Internet connections and enclosing the campus in a Faraday cage (since cell phone jamming is illegal.)

    2. The school could block access to Yik Yak on its own network, and I don’t think the students have a 1A right to access any website they want on the campus’s network. They obviously can’t block students from accessing it through different networks.

      1. “The school could block access to Yik Yak on its own network”

        Incorrect.
        The school can make it slightly more difficult to access Yik Yak on its own network.

        1. I will defer to you on the technical side, but I do think the school has the capacity to block students from accessing Yik Yak on their own network. By just turning off their network.

          1. Read the comment I wrote just above yours.

      2. This is probably incorrect based on the plurality decision in U.S. v American Library Association, 539 U.S. 194. Justice Kennedy’s concurrence said that CIPA which required libraries to use porn blocking filters was only constitutional if libraries would unblock filters for adult users without significant delay (you could also go with the Breyer concurrence in which Breyer wants flexibility to impose viewpoint discrimination to determine whether there is a First Amendment violation*).

        Blocking Yik Yak would be a content based restriction at the least and would require strict scrutiny or an exception to the first amendment on obscenity grounds. University of Mary Washington would not have wanted to be in my courtroom had they attempted to block Yik Yak on their network.

        *I hate Breyer’s approach to everything. He always wants flexibility to impose his own subjective desires in every doctrine.

  5. “the [Fourth Circuit] held that because UMW had the “technical capacity to control the means by which the harassing and threatening messages were transmitted” (that is, the ability to block campus network access to Yik Yak altogether)”

    Speaking as an IT professional, the Fourth Circuit should have conferred with an expert on the subject before making a ruling based on a “fact” that isn’t actually substantially true.

    The only way the university IT staff can “block campus network access to Yik Yak altogether” is to completely sever the campus network from the Internet. And, of course, even doing THAT doesn’t keep people from accessing Yik Yak, because so many of them carry around portable computers with Internet access, that isn’t dependent on the campus network.

    1. I’d have to say that the 4th Circuit really FUC’d up on this one.

    2. Of course, if they block internet access and other people access it using their own mobile devices, via non-campus networks…

      Well, the college has done its duty

  6. The opinion focused on what the court considered threatening remarks online, saying the university could have traced the identities of the perps and prosecuted them.

    Alternatively, of course, the feminist students could have taken their complaints to the real-world police, who could have investigated the threats and their origin, and prosecuted those it deemed to have issued true threats.

    I would think that the university shouldn’t be held liable for what ought to be a matter for the real-world police – unless they obstruct the real-world cops in their investigation, which doesn’t seem to have happened here – in fact I’m left vague about the details of complaints to the real-world cops.

    In practice, of course, this sort of decision will encourage colleges to cover their asses and censor students’ access to social media – no access, no blaming the university!

    1. Or if they can’t censor the Internet, making broad rules about “harassing” speech – especially on private colleges where First Amendment pushback would be less of a danger.

    2. “censor students’ access to social media – no access, no blaming the university!”

      That might actually be a good result. But, in practice, the university will probably only do it selectively.

      1. ” But, in practice, the university will probably only do it selectively.”

        How, exactly?

        1. # host -t a gab.ai

          1. Old,
            What does that mean? (I assume I’m not the only VC reader who is not an expert in computers/computer coding, so whatever you wrote went right over my head.)

            1. He’s saying the university will selectively add things to their DNS setup to null route them. Which, itself, means that the addresses won’t resolve, and for the most part, people won’t be able to find the website. If they’re real assholes, they’ll publish new routes for the IP addresses themselves, meaning you won’t be able to go to the sites even if you look up the bare IP itself. Although I think many IT professionals would refuse to do such a thing on principle. Then again, the IT managers probably won’t have any such compunctions about not breaking the internet.

              Of course, if they fuck up and publish those alternate routes too widely, they might also end up getting themselves blackholed entirely. It’s one thing to be a jerk inside your own private network. It’s another thing entirely to start advertising to the world that you are someone you are not.

              1. “He’s saying the university will selectively add things to their DNS setup to null route them. Which, itself, means that the addresses won’t resolve, and for the most part, people won’t be able to find the website”

                Which would be fine, if students were somehow required to use the school’s DNS to resolve domain names. But they are not.

                “If they’re real assholes, they’ll publish new routes for the IP addresses themselves, meaning you won’t be able to go to the sites even if you look up the bare IP itself.”

                That’s not true. That wouldn’t block access.

                1. The firewall rules can just as easily block 104.20.9.233

                  1. “The firewall rules can just as easily block 104.20.9.233”

                    Sure. Which doesn’t block access to 104.20.9.233.

                    1. If you use VPN, but… you can definitely block ordinary web traffic to/from a specific host.

                    2. “you can definitely block ordinary web traffic to/from a specific host.”

                      Absolutely, unless any of your college students have ever heard of a proxy server, or Google.

            2. I think he’s saying that, in choosing what sites to block, they’d mostly pick sites on the right

              1. “I think he’s saying that, in choosing what sites to block, they’d mostly pick sites on the right”

                No, he isn’t. I mean, unless the terms “harassing” and “the right” are equivalents.

                1. As used by people on the left, they are.

            3. Others beat me to it, but networks at large organizations will have a fancy computer that connects their internal network to the internet. On that computer, there will be a piece of software called a firewall, typically one called iptables. Firewalls can be configured to block just about anything. The specific command above above would tell iptables to block all outbound traffic to gab.ai (I think; iptables is also somewhat obscure to use).

              My larger point is that universities will selectively enforce this ability against unpopular speech, just like they do with a host of other legal and technical powers. Convince me I’m wrong.

              1. “Firewalls can be configured to block just about anything.”

                You should stop pontificating about IT topics until you learn more about IT than a typical high-school sophomore.

                “The specific command above above would tell iptables to block all outbound traffic to gab.ai”

                Except that it’s not NEARLY that simple. Your “block” would hold up until approximately 5 minutes after the first student Googled how to connect to Gab.ai when it’s blocked at the firewall. Or, in other words, about 5 minutes.

                1. So, you’re saying that you really think that no one ever tries to do anything that turns out to be ineffective? That you think that the sites they chose to attempt to block wouldn’t be selectively chosen?

                  You may know something about IT, but you apparently don’t know much about bureaucracies.

                  I think the war on drugs is a pretty good analogy here. The Feds have been trying for decades, and drugs are only more available. They keep doubling down, though.

                  No, he isn’t. I mean, unless the terms “harassing” and “the right” are equivalents.

                  I dunno, shall we ask some grievance studies major for her opinion on the question?

                  1. “I dunno, shall we ask some grievance studies major for her opinion on the question?”

                    Don’t you already have a degree in that field?

                  2. “So, you’re saying that you really think that no one ever tries to do anything that turns out to be ineffective? That you think that the sites they chose to attempt to block wouldn’t be selectively chosen?”

                    You went 0 for 2 summarizing what I’m saying. What’s your conclusion based on your incorrect understanding of what I’m saying?

                    “You may know something about IT, but you apparently don’t know much about bureaucracies.”

                    And you stay a perfect .000 at the plate.

  7. According to the Chief Justice, “we do not have Obama judges or Trump judges, Bush judges or Clinton judges.” But let it be noted that the two Fourth Circuit judges in the majority were appointed by Clinton and Obama, and the dissenting judge was appointed by George W. Bush.

    1. The point is not that judges appointed by Dems don’t tend to have views that differ from Republican appointed judges, the point is that they are judges calling them as they see them, not bad-faith vessels for their appointing President.

      You know, the basic assumption needed for anyone to buy into judicial review as a legitimate part of our society.

      Though sometimes I wonder about Alito…:-P

      1. “You know, the basic assumption needed for anyone to buy into judicial review as a legitimate part of our society.”

        Like Santa and the Easter Bunny, the assumption is a pleasing myth.

        1. Sure, but you’re not one for America’s current system anyhow.

          1. Which is fine, BTW.
            America can handle it’s dissenters – indeed, they are an important part of our national fabric, and have been important ingredients pushing for national change in the past.

            And when America thought it couldn’t handle it’s dissenters, that was not a good time for us.

            I’ve got a status quo bias and a dark love for incrementalism, but I respect those who do not. At least those who don’t want to put me up against the wall.

            But have no fear, I still think you are super, duper wrong.

            1. status quo bias and a dark love for incrementalism

              Sarcastr0 revealed as a crypto-Burkean-conservative! With a dash of Mencken.

              1. Closer than you think. I’m Burkean by nature, but liberal by training.

                *This* is the mess you get when you cross the streams.

                1. Judicial review as currently practiced is killing our society.

                  Its removed power [or at least responsibility] from the political branches and creates deep distrust, the distrust alternates with the side being gored. Look at the court packing schemes being proposed by the left now. Last decade its been the right who complained.

                  The recent Texas decision reopening Obamacare 6 years later [even if it gets reversed] shows that real power rests with the judges and little gets settled.

                  A Burkean should realize the danger from an essentially limitless judiciary.

                  1. 1. The distrust you see has been partisan for a long time, with the right turning the venerable tradition of bellyaching about decisions into delegitimizing the institutions that make them. This has become a self-fulfilling prophecy as their treatment of the judiciary as a purely partisan organ has lead to using tactics that the left views as illegitimate. If you want

                    2. The judiciary, with it’s rare final certs and adherence to precedent, is already a much less intrusive force than the other two branches. Plus, it’s lifetime tenure makes it an elitist check on the populist politician branches. The founders were skeptical of both, and so set them to check one another.
                    Eliminating or curtailing judicial review will demote it from co-equal, and we will end up with no recognized final Constitutional arbiter, and with policies that lurch this way and that without philosophical continuity. Not to mention if we lose the implied buy-in of our most popular governmental institution, what would that do to civic stability?

                    3. You are not wrong about where the real power lies. But that’s not how it operates. It doesn’t take much to imagine judicial abuses far worse than whatever is happening now. And when there is dispute, it has to lie with someone. Who would you pick? Operationally, the (appellate) judiciary has a culture of radical modesty compared to the political branches.

                    1. 1. Yes, everything is my opponents fault.

                      2. After Marbury, the power was mainly theoretical. The next exercise was Dred Scott. How did that turn out btw? But starting with The Switch in Time and accelerating with the Warren Court, the courts now routinely strike down laws or executive actions. Plus, with incorporation, they have made every state law and action a federal issue too. They are no longer “less intrusive”.

                      “our most popular governmental institution”

                      That is actually the military. Which seems appropriate because everything you say about the courts can be said about the military.

                      3. “Who would you pick?” IDK, the people maybe.

                      If the courts are going to have this power, the judges need to be elected with limited terms.

                    2. “That is actually the military”

                      Depends on when you check. How were they doing circa 1970?

                      (Hint: https://www.youtube.com/watch?v=uJ6QHfZwTSw )

                    3. “with the right turning the venerable tradition of bellyaching about decisions into delegitimizing the institutions that make them.”

                      Is it the right that tried to pack the Supreme Court, and is dissing attempting to do so again? The right that claimed that decisions like Bush v. Gore undermine the court’s legitimacy? Etc.

                    4. 1. Sure, we both have that. But I’m not without evidence – Since the Warren Court, the right has been the ones with the rhetoric of Tyrants in Black Robes, and citing Andrew Jackson and other such. The left hasn’t. You would argue that’s because the Court has been illegitimately liberal, but of course that just proves my point.
                      I don’t much see the relevance of TiP citing FDR’s failure to pack the Court – a failure that was largely his own party repudiating him. In general, his examples are individual decisions and yelling from the base, not the full-service ecosystem of judicial illegitmacy the right has been enjoying for 50 years.

                      2. McCulloch isn’t an exercise of judicial power? What about Johnson v. McIntosh? Your history seems highly selective. As is your definition of ‘routine’ which you seem to assume for narrative reasons not based on any evidence or some actual threshold.
                      And incorporation doesn’t track with the rest of your thesis in this part. The Court’s ambit versus the Court’s exercise are two different questions.

                      3. Switch institution for branch. That’s on me, and might be a revealing slip; I dunno. But I’m more interested in that second sentence. Do you see judicial review as about the same as a military junta? Because I can point to a number of pretty material differences.

                    5. 4. How do you operationalize ‘the people’ doing Constitutional review? Plebicites? Then you have three co-equal populist branches, and no elite-based branches. Which tips the balance a bit too much towards demos than res publica, no?
                      Same issue with elected judges, only here we have actual real-world examples of elected trial judges not being more beholden to the people, just more beholden to $.
                      If there ever is a branch where it is important to have experts, it is Constitutional review. I’m no Somin rational ignorance guy, but surveys are not optimistic on how that would go.

                    6. M’Intosh was just a land title case. That is what courts exist for.

                      As for McCulloch, I meant between Marbury and Dred Scott, no US law was struck down by the S/C.

                      ‘routine’

                      What else to call dozens of decisions?

                      Just this week district courts struck down Obamacare and an executive amnesty decision [ordering deported people be brought back even!].

                    7. M’Intosh is about a lot more than land – it’s about who gets property rights. Pretty serious business.

                      I can see a lot of judicial supremacy other than just striking down a law. I mean, look at Marbury itself! And then there is Worcester v. Georgia, which doesn’t get a lot of play now but sure did at the time.

                      A district court struck down the ACA, but didn’t issue an associated injunction. I think it’s wrong and a bit abusive, of course, but I can also easily imagine it to be worse.

                      If the courts are indeed so anti-Trump, they could sure be making life a lot harder for him. Positive injunctions, discovery demands, dicta specified to create a narrative of lawlessness, letting liberal states know a bit of nullification would be okay, and so might some national guard activation to further certain very legal and very cool goals. Our federal appellate court system is actually very restrained, all things considered. For now. Certainly, some on this forum wish for some pretty radical changes to that philosophy.

                      Your narrative that the status quo is mega-bad ignores that the alternatives are all worse.

                    8. “anti-Trump”

                      The problem existed before Trump and will exist after he is gone.

                      Not everything is about him.

                    9. “Not everything is about him.”

                      Not to hear him tell it.
                      But yes, our nation would be MUCH better off if the media, collectively, ignored Mr. Trump’s pleas for attention for a couple of months.

                    10. True, Bob, but that was just an example; nothing about it actually requires Trump.

                    11. “Since the Warren Court, the right has been the ones with the rhetoric of Tyrants in Black Robes, and citing Andrew Jackson and other such. The left hasn’t.”

                      Complete and utter bullshit. The left’s terminology may be slightly different, but for you to pretend that the left doesn’t attempt to deligitimitize the Court when it doesn’t get its way (just like the right does) is just laughable.

                    12. Its like Bush v. Gore and Citizens United does not exist.

                    13. The carping about those two cases is nothing compared to the right’s longstanding position on any and all judges making a decision they don’t like at whichever level happens to be in the news.

                      Liberal pundits said Citizens United was bad and should be overturned/Constitutionally dealth with. The right says decisions about gay rights are proof gay Nazis have overtaken the judiciary and are persecuting Christians.

                      Nowhere on the left will you find the kind of astatistical vitriolic BS that you find about the Ninth on the right.

                    14. “Its like Bush v. Gore and Citizens United does not exist.”

                      No, Bob. It’s like open suggestions of “second amendment solutions” to Bush v. Gore and Citizens United” do not exist.

                    15. Great argument. I particularly liked your swearing and complete lack of examples.

                    16. “Liberal pundits said Citizens United was bad and should be overturned/Constitutionally dealth with. The right says decisions about gay rights are proof gay Nazis have overtaken the judiciary and are persecuting Christians.”

                      Are you pretending that this qualifies as an example?

                      “Since the Warren Court, the right has been the ones with the rhetoric of Tyrants in Black Robes, and citing Andrew Jackson and other such. The left hasn’t.”

                      Or this?

                      Do you not know what an example is? Sadly, that wouldn’t really surprise me.

                    17. “Since the Warren Court, the right has been the ones with the rhetoric of Tyrants in Black Robes, and citing Andrew Jackson and other such. The left hasn’t.”

                      Don’t move the goal posts.

                    18. Pointing out that that is not an example is not moving the goalpost.

                    19. “McCulloch isn’t an exercise of judicial power?”

                      Not really. The stuff about judicial review was dicta. I think it is uncontroversial that Bob is correct re: the Court causing rapid social change, particularly in the last 100 years, contrary to the will of the electorate. Most of that accelerated with acceptance of the 14A’s incorporation, but not all of it. His example of Obamacare is a good one. Does your incrementalism support Obamacare? Or if the Court overturns the entire regime in 3 years, will you consider that incrementalism? Or counter incrementalism?

                      “Do you see judicial review as about the same as a military junta?”

                      I think it’s inescapable. It’s pretty shocking that the Supreme Court survived Dred Scott, don’t you agree?

                    20. I’m an incrementalist by nature, not by zealous faith. There are times for sweeping change.

                      But the ACA was honestly pretty incremental – left insurance companies in the mix, kept things tied to employers. The right freaked out like this was just the worst, but just about every other plan was going to be a bigger change than that. Despite the right’s market-based deckchair shifting, Once you buy in that the status quo was bad, the ACA is like the minimum you could do.

                      Doesn’t make me like it, though. I like medicare for all. Though something that phases in would make me happy.

                      It’d be pretty radical if the Court strikes down Obamacare, given how it’s not an easily reversible policy.

                      Bob isn’t saying the Court is causing comparatively rapid change that the populous wouldn’t otherwise buy into. Both those claims (a comparative one and a descriptive one) are not the normative argument Bob is making – he’s saying the Court is illegitimate because it has too much power.
                      I’m not saying the Court is not more powerful now than it has been, I’m saying the Court continues to be vastly less powerful than it could be, and that Bob offers no viable alternatives, just grumpiness and a bare invocation of ‘the people.’

                    21. And just because my instinct is towards incrementalism doesn’t mean I don’t sometimes see legit reasons to ignore that impulse.

                      What in the world are you getting at that the judiciary is like a military junta? What kind of philosophical lack of perspective are you playing at? Our courts outcomes are largely predictable, death is not a very common enforcement mechanism, and it’s powers are used with restraint.

                      Dredd Scott wasn’t an issue with the Court as an institution, it was a problem with our nation.

                    22. “What in the world are you getting at that the judiciary is like a military junta?”

                      We don’t need to overstate the point, but the Supreme Court was a contributing cause to Civil War. The Missouri Compromise was an utterly critical part of the normal political process that brought most countries away from slavery, and SCOTUS just said nuh uh. The biggest culture war issues of the last two generations have been busing/integration and abortion, both political issues that were purportedly settled by the Supreme Court. (In the case of the former, resulting in federal troops in an altercation with a state government.)

                      Do I think Alito and RBG are military totalitarians? No. But I also think SCOTUS wields more power today than (1) what was constitutionally intended or (2) what is healthy for a democracy.

                    23. It is an interesting question whether the narrative of unavoidable conflict that’s become attached to the Civil War is legit, or whether the older Blundering Generation narrative is closer to the facts.

                      I still don’t get the junta bit.

                      With respect to your final paragraph,
                      1) the 14th Amendment reformed the country in many ways, including incorporation’s pushing a lot of state questions to the federal judiciary. So whatever the Founders contemplated about Article III powers isn’t operable.
                      2) What’s your alternative? We see lots of democracies these days, and just about all of them good or bad have pretty robust judicial review infrastructures.

                    24. “1) the 14th Amendment reformed the country in many ways, including incorporation’s pushing a lot of state questions to the federal judiciary. So whatever the Founders contemplated about Article III powers isn’t operable.”

                      The 14A didn’t push any state questions to the federal judiciary. The federal judiciary isn’t mentioned at all. It does discuss one branch of government enforcing its provisions, but it wasn’t the judiciary. If anything, the purpose of the 14A was to make it impossible for SCOTUS to weigh in on the constitutionality of the Civil Rights Acts. We shouldn’t interpret an amendment limiting the judiciary’s power as one granting power.

                      “2) What’s your alternative? We see lots of democracies these days, and just about all of them good or bad have pretty robust judicial review infrastructures.”

                      Like I said, UK and Netherlands. The country survived just fine without meaningful judicial review until Dred Scott.

                    25. “I’m not saying the Court is not more powerful now than it has been,”

                      I will. The Court is utterly dependent on the political arms of the government to do anything. Literally all they can do is throw pieces of paper at the President if, say, he decides that following the Constitution is optional if the President wants something else.

                      The court’s power is that it is incredibly persuasive… they don’t MAKE the President or Congress or the states do things… they just say they have to, and then those other entities do it because… they choose to follow what the Court says. But… if they choose not to… the Court has no actual power to enforce it. When the Southern states decided that Brown v. Board of Education didn’t actually apply to THEM, it was Eisenhower who sent the 101st to take children to school in Little Rock, not the Court.

                    26. “I will. The Court is utterly dependent on the political arms…”

                      Was that different in the 19th century? Did Taney enforce his own decisions?

                      “The court’s power is that it is incredibly persuasive…”

                      It’s not persuasive at all. President Obama didn’t follow Citizens United because he thought it was correctly decided. He followed it because he believed in the political norm that we can disagree and not be persuaded by SCOTUS but still be obligated to follow it. They’re not final because they’re infallible.

                    27. “”I will. The Court is utterly dependent on the political arms…”

                      Was that different in the 19th century? Did Taney enforce his own decisions?”

                      No, and no. What does either have to do with the claim I actually made, that the Court today is not more powerful than it was?

                      “It’s not persuasive at all. President Obama didn’t follow Citizens United because he thought it was correctly decided. He followed it because he believed in the political norm that we can disagree and not be persuaded by SCOTUS but still be obligated to follow it.”

                      If someone says “you should do what I say, because I said it”, and then you do it, they’re incredibly persuasive. Especially if you disagree about what they’re telling you to do.

                    28. “What does either have to do with the claim I actually made, that the Court today is not more powerful than it was?”

                      It should have hinted to you that the Court’s power–over time–has nothing to do with enforcement since that has stayed consistent. In case you can’t tell, the thing we’re discussing is not the Court’s changing enforcement power from the time of Taney to Roberts. If you think the Court’s historical power is tied to its enforcement power, we’re not even talking about the same thing.

                      “If someone says “you should do what I say, because I said it”, and then you do it, they’re incredibly persuasive.”

                      With this understanding of what you meant by “persuasive”, your claim makes all the sense in the world. It’s stupid as shit and pointless, but you get to own your words.

                    29. “I like medicare for all.”

                      Not after its implemented and 1/3 of doctors retire. And the best and the brighest don’t go to med school any more.

                      Medicare reimbursements are well below regular insurance. Right now, since its limited to older people, most practices will accept it because the low payments are offset. But geriatic specialists are in short supply already.

                      Once medicare is all there is, income for doctors is going to drop pretty significantly. This will lead to an exodus and dramatic drop in access for millions of Americans, including you.

                      Now you can argue doctors are overpaid. You may be right but they are not going to take a big cut to prove a social experiment.

                      You seem a lot younger than me. Good luck with one year wait lists.

                    30. ” I like medicare for all. Though something that phases in would make me happy.”

                      Suggestion: make the VA work. I mean *really* work. Work so well you have non-vet cops saying ‘hey, what about us? We have tough jobs too. Why do the soldiers get that awesome health care and not us?”. Then the firefighters want in, then nurses, then teachers. Then everyone else.

                      Making the VA work would prove that the government knows how to run a health care system. Having the VA be an ongoing joke of how bureaucracies fail … kinda supports the opposite view.

                    31. I know many a Vet, and have read many a government report, that say the VA system is absolutely terrible. The facilities are dirty and understaffed. The waiting lists are long and the medical professional you usually finally have a appointment with after waiting hours is usually incapable of providing the for your medical need.

                    32. “say the VA system is absolutely terrible”

                      The VA in Cleveland is located on East 105th Street. Go south a mile or so on East 105 you run into University Hospitals, a very good regional hospital, and the Cleveland Clinic, a top five/ten hospital in the world. Both are not for profits so no complication there.

                      So why have a separate VA? In cities without such other facilities, sure, but the inferior VA hospital in Cleveland is not needed. The VA/DOD can just pay for the vet care at the Clinic or UH and the vet has many more choices of doctors etc.

                    33. ” Having the VA be an ongoing joke of how bureaucracies fail … kinda supports the opposite view.”

                      The thing that people don’t like about the VA isn’t the medical care they receive… it’s the endless paperwork involved in establishing that they should get VA medical care.
                      Take that part out of it… by saying everyone gets medical care… and the VA can move on to other problems.

                    34. “The thing that people don’t like about the VA isn’t the medical care they receive… ”

                      Ummm… we know very different people, I guess 🙂

                      You might google, say, ‘substandard va care’ and see if any results turn up. Here are some snippets from the first page of results I got:

                      “Veterans Reportedly “Routinely Receiving Substandard Care” in VA Nursing Home by Lebowitz & Mzhen”

                      “Maine veterans given substandard care are told it’s too late to sue.”

                      “There’s much more to the story, especially about the personal dimensions of how the VA’s substandard care …”

                      “Veterans who wait weeks or months for appointments at Atlanta’s VA Medical Center can expect care that, in many ways, falls far short of standards set by the Department of Veterans Affairs itself.”

                      ” Substandard care at a southern Illinois Veterans Affairs hospital may have contributed to 19 deaths over the past two years,”

                      and on and on.

                      That may not be your personal reality, but it is reality for lots of veterans.

                    35. I agree with you that if the Court strikes down the ACA, that will not be an example of incrementalism. I guess my point is that a future decision overturning ACA is like other non-incrementalist decisions, like Brown, Dred Scott, Roe, Obergfell (or Windsor), etc.

                      “…he’s saying the Court is illegitimate because it has too much power.”

                      I think you’re giving Bob too much credit. The claim to illegitimacy is just the normative claim, restated. Bob isn’t making citizen arrests of people who are gay marrying. Whatever he says on a message board, he’s internalized that the Supreme Court is the law.

                      “…Bob offers no viable alternatives…”

                      I’ll offer a few. Every other country that doesn’t have judicial review. Like the Netherlands and the UK. Our own Constitution contemplates an alternative; one in which Congress has the power to limit SCOTUS’s power over constitutional review. It’s never exercised that power, but it’s there.

                    36. …The UK doesn’t have judicial review? I’m pretty sure it does, just not with a written Constitution.

                      I didn’t know that about the Netherlands. Neat.

                      But generally, I don’t much like leaving everything up to the political/populist branches. A balanced government has a place for elitism as well as populism, and judicial review fulfills that balancing purpose.

                    37. “I’m pretty sure it does, just not with a written Constitution.”

                      They don’t have judicial review of primary legislation.

                      “A balanced government has a place for elitism as well as populism, and judicial review fulfills that balancing purpose.”

                      You have two claims here and they both look dubious. For the first claim, I don’t know what you mean by “balanced government” and don’t understand the competing benefits of elitism or populism. More importantly, the Supreme Court as constituted is not the Court of Elitism versus Populism. It decides legal questions on the basis of the Constitution; if the Constitution is pro-Elitism, there’s no balancing issue for the Court to resolve.

                      Second, assuming the Court existed to resolve populism versus elitism, why would people with law school educations be better at resolving those issues than legislatures? I mean: Why do we think SCOTUS is better at setting the right balance than anybody else? Why are they more qualified to answer that fundamentally policy question?

                    38. “Is it the right that tried to pack the Supreme Court”

                      Nobody actually tried to pack the Supreme Court.

                  2. “Judicial review as currently practiced is killing our society.
                    Its removed power [or at least responsibility] from the political branches and creates deep distrust,”

                    Pfffft.
                    The political branches are geared for “right now. Now, now, now!” and the judicial branch is geared for the long-term.
                    It’s not at all unusual for the two to occasionally come into conflict. The weakest judicial decisions come about from not looking at the long-term, big-picture outlook.

                    “Judicial temperament” is just a different way of saying “capable of playing the long game”, or, more tersely, “patient”.

                    1. “The political branches are geared for “right now. Now, now, now!” and the judicial branch is geared for the long-term.”

                      Was Roe v. Wade long-term or short-term? What about Brown v. Board? Or Obergefell? Would those policy decisions have occurred as quickly if left to the elected branches? Why do people celebrate those decisions, if they aren’t celebrating social changes brought on by the Supreme Court?

                      Are you willing to say those are failures to take “long-term, big-picture outlook”? And if so, could you help us understand your position by citation to the strongest judicial decisions, in your view?

                    2. “Was Roe v. Wade long-term or short-term? What about Brown v. Board? Or Obergefell?”

                      Yes, yes, and yes.

                      Brown v. Board of Education is STILL being implemented today. That’s long-term.

                      ” if they aren’t celebrating social changes brought on by the Supreme Court?”

                      They AREN’T social changes brought on by the Supreme Court. They’re social changes recognized by the Supreme Court.

                      Brown v. Board wasn’t the trendsetter… they were following the lead of President Truman, who integrated the military. There’s a reason that Plessy and Brown had different outcomes, and that difference isn’t the different fact situations of the plaintiffs. It was a couple of generations of social change.

                      Same-sex marriage is the only one of the three that has a strictly legal basis for being… it came about because of the decision of the Mormons to overturn the Californian Supreme Court via citizen petition, but you wouldn’t have had the California Supreme Court finding that the California Constitution authorized SSM if the society hadn’t changed sufficiently to accept it (Yes, the Mormons successfully got voters to overturn it, but having it turned back, there’s been a lot of complaining on the Internet but not a lot of action indicating that society can’t handle it.

                      The Supreme Court is far more likely to be LATE recognizing change as they are to be leading the change.

                    3. “They AREN’T social changes brought on by the Supreme Court. They’re social changes recognized by the Supreme Court.”

                      Come on, that’s utter bullshit, at least as regards to Obergefell. The judiciary got caught up in a fad, and just steamrollered over every democratic attempt to oppose them. One state after another tried to stop the judiciary, through statute and ballot initiative, and just got judicially curb stomped with the 14th amendment taking the place of hob nailed boots.

                      That wasn’t what the judiciary recognizing a social change looks like.

                      I mean, seriously? “but you wouldn’t have had the California Supreme Court finding that the California Constitution authorized SSM if the society hadn’t changed sufficiently to accept it (Yes, the Mormons successfully got voters to overturn it,

                      You cite the proof that society didn’t accept it yourself. All that happened is that after the judiciary crushed the attempt to stop them, resignation set in.

                    4. While his characterization of the support for gay marriage in this country is provably, hilariously, wrong, in general thesis I’m with Brett on this one – the Court takes the role pretty rarely, but can be a social leader when the momentum is already heading in that direction.

                      It is hard to separate that from merely reflecting popular opinion, but I think it’s hard to argue that the acceptance of school integration, gay rights, and the separation between church and state were all strongly influenced by Supreme Court decisions that lent their legitimacy to the debate.

                    5. “…but I think it’s hard to argue that the acceptance of school integration, gay rights, and the separation between church and state were all strongly influenced by Supreme Court decisions that lent their legitimacy to the debate.”

                      Most schools in the United States were not racially segregated in 1954. Most urban schools are racially separated in 2018. White America’s reaction to Brown and Swann was simply to move to different school districts, where SCOTUS had said it had no power to enforce busing (see Miliken). And why would we have needed SCOTUS to effect that change, given Section V of the 14A?

                      SCOTUS will be on the right side of history with gay marriage and the separation of church and state. But if they were right it was incumbent on the political branches to win that fight popularly. The problem is you can’t guarantee that SCOTUS will be right. On major public policy issues, they will sometimes be wrong. And their “rightest” decisions (Brown, Obergefell, Roe according to some, etc.) don’t make any fucking sense as a matter of legal doctrine. If I wanted to have answers from the High Court of Rightness, I wouldn’t ask for the opinions of Kavanaugh or Scalia or Alito, of all fucking people.

                    6. Massive resistance was a thing. And if you don’t think Brown was important to the Civil Rights movements, both in morale and in their external argument, you’ve read different books than I did.

                      Rights-based jurisprudence shouldn’t always be leading the populous, but sometimes justice cries out before the people do. It is important for our social narrative to have institutional in place that recognize that fact, even if they only act on it judiciously, lest it lose it’s power.

                    7. “…if you don’t think Brown was important to the Civil Rights…”

                      Of course that’s not what I’m saying. Brown was important to civil rights. Roe was important to right to choose. McDonald was important to gun rights. Dred Scott was important to the rights of slave owners. But I don’t agree that every one of these monumental changes was correct either as a matter of policy, or as a matter of law. And if the only thing against which we’re judging SCOTUS is the correctness of their social policies, why would I think the process of judicial review is more likely to lead to correct social policies than coin flips or the democratic process?

                      “…but sometimes justice cries out before the people do.”

                      But SCOTUS isn’t a court of “justice”! If we wanted a court of justice, we have to create that. And no country, so far as I can tell, has ever created that.

                    8. EDIT: Besides Iran.

                    9. “Most schools in the United States were not racially segregated in 1954”

                      My high school class of 1984 had a total of one black student in a class of about 450 students. The school district never had legally segregated schools… but they were de facto segregated, because nearly all the students in the district were white. The second-biggest category was Vietnamese, because the federal government allowed a bunch of Vietnamese “boat people” to settle in the region. Today the district is much more diverse… largely because the largest employer in the district recruits worldwide, drawing engineers of Indian and Chinese descent (among many others) to settle in the region.

                    10. “You cite the proof that society didn’t accept it yourself”

                      No, Brett. I cited proof that the Mormon church didn’t accept it. See how those are two different things?

                    11. “Yes, yes, and yes.”

                      Yes they were long-term or yes they were short-term?

                      “Brown v. Board of Education is STILL being implemented today. That’s long-term.”

                      This is a strange definition of long-term. So is the Sherman Act. So would Arkansas’s segregation laws, if they hadn’t been overturned. If long-term just means the ruling lasts in perpetuity, all SCOTUS decisions (and not-reversed legislative decisions) are long-term.

                      “They’re social changes recognized by the Supreme Court.”

                      I don’t know what word game we are playing, but if SCOTUS overturns DOMA, the social change is the SCOTUS decision.

                    12. “This is a strange definition of long-term”

                      I think you’re arguing uphill if a change that takes generations to complete doesn’t fit your definition of “long-term”. I mean, it’s just you and the geologists on that one.

                    13. “The Supreme Court is far more likely to be LATE recognizing change as they are to be leading the change.”

                      Are you sure? Interracial marriage was opposed by most Americans even years after Loving v. Virginia. The public opposed busing at the time of Swann, and still oppose busing, generally.

                    14. ” Interracial marriage was opposed by most Americans even years after Loving v. Virginia. The public opposed busing at the time of Swann, and still oppose busing, generally.”

                      I question these assumptions. I think either issue can be made to come out either way depending on how the questions are phrased when asking people about them.

      2. “The point is not that judges appointed by Dems don’t tend to have views that differ from Republican appointed judges, the point is that they are judges calling them as they see them, not bad-faith vessels for their appointing President.”

        That’s right. Enough judge bashing. Judges are good-faith vessels for their appointing president, who truly believe that the law and constitution enact their party’s platform.

        1. I can’t tell if this is sarcastic, but that’s my default rebuttable presumption.

          Of course, you can be good faith crazy as well.

          Say what you will about the crazy, but they call no man master.

        2. Judges appointed by Dems are Obama Judges and don’t know what “rule of law” means.

          1. So you’re just trying to make Obama mean liberal? Weird branding choice, chief.

      3. No, liberal judges don’t call it like they see it. They call it like they want it to be.

        1. Says the guy, calling it like he wants it to be.

    2. We’d have a much better country if every judge ever appointed by Karter, Obongo, or Klinton were rounded up and put into concentration camps.

      1. Ah, yes. A self-appointed right-winger pining for the days of the concentration camps. Wouldn’t be the Internet without at least one.

        1. They’re not a prima facie bad thing. You just have to make sure you put the right people into them.

          1. And you’d be saved them because you’re such a popular guy with widely accepted views?

            1. Do you think the average liberal pansy is going to be running the show if the time comes? They’re going to be too busy eating vegan cuisine, running marathons, playing tennis, and having gay sex.

              1. And appointing judges, right?

              2. Would you be captain of the Incel Brigade?

              3. Methinks ARWP would be AMAZED at how many average liberal pansies would happily shoot him in the forehead and laugh while he whined about it. “But…but…but… you guys are supposed to be AFRAID of guns!”

                1. Like this liberal?

                  Link

                  1. Yeah. THAT guy’s typical.

  8. Sue a school if it permits students to have telephones. Schools can indeed block access to telephones harassment by prohibiting the use of telephones entirely. Same with connections to the internet.

    1. How, exactly, does a school have authority to do this? (Never mind the difficulty in implementation… prisoners in prisons have phones they’re not supposed to have.)

  9. So….if people harass me, online, I can have the university shut down all university-provided access to the offending website?

    Interesting…

    In other news, anyone want to get in with me on short selling Facebook?

    1. The legal answer, and the one adopted by our constitutional justice system and individual rights, is that is someone legally harasses you, liables you, slanders you, or subjects you to a true threat then you take legal action against that individual or party either through criminal complaint or civil action. You don’t go complaining to the government censors to take down the whole platform.

      1. If the landlord permits someone to hang harassing messages around the common areas, maybe first complain to the landlord before running down to the courthouse or the police station.

  10. So…..were I to file complaints about CNN, NPR and a thousand other sites they’d be obliged to block them?

  11. Thank God for FIRE

  12. From the local news coverage of this:

    “The Feminists Majority Foundation, which funded the original complaint, called the ruling, “a groundbreaking decision with national implications.””

    Funny, I was never aware that it was a court’s responsibility to “break ground.”

    1. I don’t have any idea why you would think from reading that that it was.

  13. Another significant error, well covered in the dissent, the majority assumes that all the messages were posted by persons affiliated with UMW. But the service described the geographic constraint as a 1.5 MILE radius around the campus. That’s a 3 MILE diameter circle, covering the most densely populated area of downtown Fredericksburg, Virginia. This covers thousands of people who have zero affiliation with the University.

    1. Geometry is a sadly neglected field in the modern liberal arts, as is spatial reasoning.

      1. You’re pointing out that a radius of 1.5, projected onto a plane gives a circle of diameter = 3, but a radius of 1.5 projected onto the surface of a sphere gives a circle of diameter < 3, of course.

        1. I have been to this campus and it is generally accessible to the public and indeed houses some resources that are routinely accessed by the public including its library. So, as the majority does, to simply assume all traffic on Yik Yak were that of students is simply false. Also at least according to Google Maps within the diameter defined I could be sitting at one of many establishments off campus and still have access to Yik Yak.

          Assuming the university could convince Yik Yak and it did have the capability to just “turn it off” for that geographic area (nothing the record suggests that Yik Yak acknowledged it had the technical capability to do so) all this would do is “white wash” the situation. “Hey look we DID SOMETHING!!!!” type mentality and political escape. The reality is the internet is full of anonymous forums. Popularity would have probably just sent the traffic somewhere else.

        2. “You’re pointing out that a radius of 1.5, projected onto a plane gives a circle of diameter = 3, but a radius of 1.5 projected onto the surface of a sphere gives a circle of diameter < 3, of course."And surely, you realize that the natural variance in topography in any particular location, especially the particular 3 miles around the UMW campus - which contains not only a river basin, but the rather famous "Marye's Heights", completely destroys any meaningful comparison between a plane circle and the surface of a sphere that is nearly 8,000 miles in diameter.But I bet you are a hoot at parties!

  14. This ruling simply reversed dismissal of some of the claims by district court so it’s not _quite_ as absurd as it seems. Therefore, the case can go to trial and hopefully the defendant wins on the merits and does so on appeal as well. Then, perhaps, the next time a case like this comes up there will be solid precedent to justify dismissal of the contested claims (at least in the Fourth Circuit).

    It is unfortunate however that the defendants how have to waste time and money defending such a ridiculous lawsuit.

    1. “Therefore, the case can go to trial and hopefully the defendant wins on the merits and does so on appeal as well. Then, perhaps, the next time a case like this comes up there will be solid precedent to justify dismissal of the contested claims (at least in the Fourth Circuit).”

      That’s not how this works. Jury verdicts have no precedential effect. If the defendants win at trial, on the facts, there will be no additional basis for legal dismissal in future proceedings.

    2. I didn’t take the time to read the entire opinion, but it appears that case was dismissed on a Rule 12(b)(6) motion, which most often would indicate that the parties did not engage in any discovery. Following the close of discovery, the defedants (or the plaintiffs) could move for summary judgment and still avoid trial. As a general matter, however, the defendants should not be put to the cost of discovery if the plaintiffs have not stated a viable claim.

  15. Headline should have read, “A court may rule that”.

  16. The next step is obvious. The Library of Congress contains Mein Kampf, which contains statements harassing Jews. So Jews should sue universities which fail to block access to it.

    Similar for law schools that fail to block access to repositories containing Dred Scott.

    1. I think Aristotle is a better target for a test case, aside from being completely offensive it is widely known to all educated persons that he is always wrong. After that I suggest the epistles, which are a clear and present danger to all. Just make sure to stay away from Plato. His principals and ethics utterly guide our modern philosopher kings.

  17. If this is about true threats, how does blocking anything do anything? It puts blinders on those who are imperiled.

  18. So if somebody posted insults against the college’s coed’s on Twitter or Facebook or something like them, the college would be obligated to block those websites as well? What am I missing here?

    1. I fail to see how the First Amendment in any way allows a government entity to block my access to information because someone else is hurt by it.

      The government itself should not be speaking such things itself, but to block third party general access? “You are not permitted to read this because it bothers a classmate.”

      1. You’re free to use YOUR resources to access any Internet site you want (Some restrictions apply).

        When you’re using someone else’s resources, they get a say in what you do with them.
        Including when you use someone else’s Internet connection. Even government entities.

  19. Obviously nobody ever needs to use the internet for research at that University.

    The snowflake aspect isn’t even the most ridiculous thing about the decision, it’s that the judges are willing to kneecap the university’s core mission in order to protect some sensibilities.

    1. We had universities before there was Internet, and we’ll have universities after. I don’t think we’ll ever have universities where nobody ever says anything mean about anyone else, though.

    2. I think the idea is that they would block access to some websites, not the entire internet. (The University doesn’t have the power to block access to the Internet, anyway. Even China struggles with that.)

      1. It is not technically possible to block access to “some websites” unless you completely sever all connections to the Internet.

        1. Yes the majority has apparently not heard of something called a VPN either which a student could use on any device to keep most of their traffic private and although it is possible to block some VPN traffic on a firewall assuming the university has one it maintains for purposes of its official operations blocking third party ones entirely going to be almost impossible.

      2. Yeah, I know the filter they use at my work to block objectionable sites never blocks other sites unintentionally.

        /snark

        But, even objectionable sites could be needed for useful research. For instance say someone is doing research on the dynamics of group bullying on social media, they would need access to sites like yik yak.

        1. So? There are LOTS of areas of useful research that require resources that aren’t available on campus.

  20. “…UMW had the “technical capacity to control the means by which the harassing and threatening messages were transmitted” (that is, the ability to block campus network access to Yik Yak altogether)…”

    The University’s ability to block Yik Yak is no better than the student’s ability to do the same… by not reading Yik Yak. This is a very bad decision.

    1. On the contrary, the students’ ability to do the same vastly eclipses the university’s capacities in that area.

      But the students making the complaint don’t want to avoid being exposed to Yik Yak themselves. They want the University to keep other students from having access to it. A classic demand to sensor others.

    2. Apparently the majority has not heard of 3G or LTE data. They just assume these messages must have gone through the university’s network and that students accessing the site might have not just flipped off wifi when making comments as not to create a log that could be traced back to their device. (Which if a student participating in Yik Yak did for the very good reason it appears that the court thinks that the university had a duty to comb through its logs to identify Yik Yak users and the content of their posts).

  21. Here is a basic summary of a excruciating ruling that I don’t think will survive en banc review:

    1. Loud, annoying, probably ugly feminists state hysterical objections to male only fraternities on campus making false claims it will make the entire campus tantamount to a massive rape zone.

    2. A rugby team used a moral enhancing chant which is common among sporting teams, that although politically incorrect was done in private, and not in the presence of any of the annoying complaining feminists.

    3. Feminists start taking heat for their ongoing male hating hijinks from students who disagree with their politics, advocacy, and conclusions. None of the accusations involve violence and the so called “threats” are vague. (To a feminist merely disagreeing with them is a “threat”).

    4. Feminists demand people who use an online platform to complain about their positions and advocacy should be deemed “harassers”, hunted down, and disciplined (even though this would probably violate the 1st Amendment).

    5. School refuses to take such illegal actions, but tries to mitigate the climate (created solely by the feminists) in various ways.

    6. Not good enough says the circuit court because the campus probably could have attempted to at least ban one online forum that was not being supportive of the feminist cause and probably could have at least doxxed (perhaps disciplined a few students legally) by engaging in a witch hunt of mostly protected speech.

    1. This opinion is also beyond scary. I like FIRE but sometimes they like to water it down as to make them look more open and non-partisan. But here the majority actually calls for the government to engage in active discrimination based upon the viewpoint and content of speech. Not only that but the majority seems fine with the university engaging in a witch hunt level of investigation to track down anyone how might have posted something which the feminists found objectionable (I looked for it, might have missed it, but no mention of an objective/reasonable test). Just feminists found it offensive so therefore the poster must at least be tracked down, which in one way or another, probably through illegal leaking but perhaps not, they will be doxxed.

      The majority also makes a vague statement about “what if it was a bomb threat”? Well that is completely different then vague critical statements directed at an unspecific group. First it is illegal to make a bomb threat and that is not protected speech as it is a true threat. Second a bomb threat is usually followed up with specific information such as a time, location, and/or target. Taking action on that kind of information is time sensitive. Patting a complaining feminist who created her own situation in the first place who was confronted over hateful statements they had made about men in public is another thing.

      1. This is an example of how FIRE like to water down its public responses to simply outrageous rulings like this one:

        “It is important to understand that this ruling came in an early stage of the case ? a threshold stage at which a court is bound to accept the allegations in the plaintiffs’ complaint as true and decide whether, if everything the plaintiffs say is true, they have a viable legal claim.”

        Sure this is “technically” correct. But rhetorically they are using it here to essentially say “we might have lost the battle but not the war”. Guess what when you have dicta like this coming out a politically balanced circuit like the 4th YOU ARE LOSING THE WAR and better start acting like it. They do go on to state an appeal to the Supreme Court is possible (oddly no mention of en banc especially considering there was a dissent on the panel), but the Supremes don’t like to review cases in preliminary stages and I don’t think this is so beyond the pale that they will grant cert or even reverse per curium. The best chance of reversal is en banc and frankly I would give that an even shot.

        1. And if you think a ruling on the legal merits (if backed by the facts at trial) is nothing then you really should stress to the reader exactly what that means. Now there will be full blown discovery, lots of fishing expeditions by the feminists, trying to turn every morsel of evidence they can into a “smoking gun”, and will spur other similar lawsuits in sister circuits. Even if the jury comes back and finds for the university that is hardy going to look like a victory in the eyes of the public. It is going to look like Mr. Slick University President dodged one and that is how the feminists will treat it in the sphere of public relations. This is hardly a “wait and see” decision. It is precedent now in the eyes of the courts and will provoke similar legal action both on the advocacy front and legal side.

          FIRE better well get some of that fire they used to have back in their belly. Lately its been doing more of a white wash job when it comes to this kind of stuff.

  22. Given the procedural posture of the case, the Court presumed many of the plaintiffs’ factual assertions to be true, which generally would be correct under Rule 12(b)(6). (Legal conclusions are not entitled to the same presumption.) But it seems that many of the factual assertions re the technology could not be within the plaintiffs’ perssonal knowledge and would require expert testimony. Not sure how the courts have treated that issue under the Supreme Court’s Twombly/Iqbal cases, and a quick Google search didn’t come up with any cases.

    1. The real problem is that the Court made some factual assumptions of its own without consulting experts.

      1. Agreed. The Clinton/Obama majority (sorry, Mr. Chief Justice) mostly avoided the Supreme Court’s rulings on the Rule 8 pleadings standard, but, even then, it seems to me, the majority could have written a narrower decision finding a Rule 12(b)(6) dismissal simply wasn’t warranted without appearing to makes findings of its own..

        1. We all know there are Obama Judges and we all know what they do – serve as another political policy making arm for liberals. The only reason why the Left vehemently objects to calling a spade a spade is that they need the courts to look at least somewhat legitimate when rulings like Roe v. Wade come out.

          But you put a case before three Obama Judges and you get an Obama result – each and every time.

  23. The colleges should allow students access to my best rates on up to $500,000 in student loans. All it takes is a phone call and an e-signature. Because when you have a PhD, it’s yours. And no one can take that away from you. And if anyone attempts to fail you in any class, you’re rights have been violated. Ipso facto, baby. I have access to almost 2300 attorneys who want to help you. And when your court settlement comes in you can make at least 40 years of payments, thereby eliminating almost all of the unfair burden of student debt. If you have a heartbeat, I personally guarantee your PhD is in the bank, no studying required. I know. Because I work with those banks, and I approved this message. Fight the oppression. Don’t let the haters win. You’re pre-approved, so contact me today. Call the number you see on the side of the bus. Don’t let Trump destroy your future.

  24. What happens when a student steps off campus and uses a free wifi or other wireless technology (3G-4G-5G)? Who will protect the snowflakes then?

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