This fall I participated in the annual Frankel Lecture symposium at the University of Houston Law School. The topic was on academic freedom and diversity, and the lecture was delivered by Jeannie Suk Gersen of Harvard Law School. I provided a response, along with Khiara M. Bridges of Berkeley Law School.

The articles from the symposium have now been published online and printed in the latest issue of the Houston Law Review. The full symposium can be found here.

My article, "Academic Freedom and the Mission of the University," focuses on the relationship between the mission of the university and the commitment to and value of academic freedom to that university. A university dedicated to truth-seeking needs robust protections for academic freedom in order to properly fulfill that mission, and American universities embraced those protections as they reoriented themselves to that mission in the late nineteenth and early twentieth centuries. To the extent that universities deviate from that mission and prioritize other values and commitments, then academic freedom protections will seem less valuable and even counterproductive.

I particularly consider three competing understandings of what universities should be seeking to prioritize and show that in each case academic freedom will likely suffer. The article explores the implications of committing the university to a "patriotic" mission of promoting a rich set of substantive values seen as central to the nation, committing the university to a "neoliberal" mission of preparing students for career success, and committing the university to a "creedal" mission of promoting a rich set of substantive values seen as important to the campus community such as inclusivity or social justice.

From the conclusion:

Modern American universities have struggled to live up to their own ideals, and our current polarized environment will make living up to those ideals harder rather than easier. The educational reformers of the late nineteenth century understood that if universities were to serve their proper purpose of bringing the benefits of knowledge to society, the experts that the university had to offer would have to be broadly trusted. They could not be perceived as just another set of partisans entering into familiar political battles. That is a hard position to achieve. To the extent that society is divided into distant warring camps, it is all the more difficult to bridge that divide. Scholarly judgment might be vilified and dismissed rather than welcomed. But modern universities were launched with a goal of standing above such divides. Their best chance of doing so requires taking scrupulous care to be intellectually open and nondogmatic, standing above the fray rather than diving into it, and protecting dissident ideas rather than suppressing them.

Read the whole thing here.

Khiara Bridges' article ends on a particularly intriguing note. A critical race theorist, she worries about pressure on academic freedom currently coming from the political left and from the political right. Notably, she emphasizes to the left that universities should not be places that prioritize "student comfort," as some diversity, equity and inclusion offices are wont to do. More curious is her discussion of the threat from the political right. There she notes that conservatives responded to critical race theory arguments about free speech in the 1990s by embracing a more libertarian view of free speech principles. She seems wistful that the political right now seems to be abandoning that libertarianism and adopting a more censorious attitude that more closely mirrors CRT.

She writes:

And what is the best way to respond to pressures on academic freedom generated from the right? It seems like the right might need to remind itself of the claims that it made in the 1990s, when self-identified critical race theorists argued that the First Amendment should not be interpreted to protect racist hate speech. During that historical moment, many conservatives (and liberals) rejected these theorists' claims, arguing that the First Amendment was incompatible with protections against injurious speech. They contended that the best response to harmful speech was not to limit speech but rather to ensure that everyone could speak.

In the 1990s, conservatives wanted more speech. In the 2020s, they want less. If conservative pundits, activists, and scholars really value the First Amendment as much as they claimed just three decades ago, then they should recognize the bans on "Critical Race Theory," "divisive concepts," and the like as the wildly un‑American efforts that they are.

Is the implication here that CRT was wrong about free speech and that everyone should embrace the civil libertarian position on speech? That in hindsight it was a mistake for the left to have spent the last few decades advocating for a more restrictive understanding of the First Amendment and free speech principles? Indeed that CRT principles regarding free speech were "wildly un-American"? Or that it would be convenient for left-leaning academics if the right were to continue to adhere to liberal speech ideals while the left continues to embrace illiberal speech ideals? That the left should censor but the right should tolerate? Free speech for me but not for thee?

I'd like to think that my colleagues on the left are starting to see the light when it comes to free speech principles and realizing that they were playing with fire in urging an illiberal vision of free speech, but we are not there yet. Instead some are doubling and tripling down on theories about how to restrict speech they do not like. And meanwhile, Bridges is right that some conservatives are turning to the dark side when it comes to free speech. Things are likely to get worse before they get better, and the truth-seeking mission of the university might be curtailed, if not abandoned entirely.

From Spring v. Allegany-Limestone Central School Dist., decided Tuesday by Judge William Skretny (W.D.N.Y.):

Gregory Spring was the son of Plaintiffs Keri and Eugene Spring, and the brother of Plaintiff Julianne Spring. Defendant Diane Lowry was a teacher's aide at the Allegany-Limestone Central School District, where Gregory was a student. Lowry frequently worked in the same classroom as Gregory while he was in middle school but had no contact with him after he completed eighth grade.

Lowry testified that, when Gregory was in eighth grade, she saw him running down the hallways with a group of boys, pushing people over. She also testified that one day she asked the group of boys, including Gregory, not to crowd her and the physically-limited student with whom she was working and Gregory responded, "you need to shut the hell up and mind your own business." Lowry left discipline for this incident to the teacher in charge. She testified that, a few days later, Gregory apologized to her for that incident. Lowry also testified that she had seen Gregory bully a student called Z.C. until he cried but she did not provide a date or context for this incident.

School disciplinary records indicate that Gregory was disciplined on November 12, 2010, and January 19, 2011, for shoving other students in the hallway. What appears to be a complete record of eight disciplinary incidents in Gregory's record does not contain a record of Gregory either bullying another student or telling Lowry to shut up.

Gregory committed suicide on June 17, 2013. In the aftermath of his suicide, an anonymous poster wrote the following on the online message board of the funeral home: "Ha ha. He died. I hope he's in hell." A Channel 4 news article covered his suicide. The online comments section for this article contains multiple posts about his suicide and about his mother Keri's allegations that Gregory committed suicide because he had been bullied and that the school district had done nothing to protect him from bullying. {It is likely that this discussion occurred within several days of Gregory's funeral. In messages to a parent in the District, Lowry asked, "what parent would contact a news station the day after your son's funeral?" This suggests that the Channel 4 coverage occurred in the days after the funeral and this discussion ensued shortly after.}

Lowry engaged in this online conversation. In her first post, she wrote,

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My colleague and friend Sherif Girgis has sent me the following thoughts on the Equal Protection Clause and the momentous abortion case on the Supreme Court's docket.

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The leaked Dobbs draft spends pages arguing that abortion is not a deeply rooted unwritten right.  That's had me thinking more about the most powerful alternative argument:  that abortion rights follow from the enumerated right to equal protection.  I want to float a thought on this family of views.

The arguments come in two varieties.  A leading proponent of one variety, from whom I've learned (and to whom I owe) a great deal, is Professor Reva Siegel, who co-filed an amicus brief in Dobbs.  She argues that we cannot explain prolife states' policies in terms of their professed concern for fetal life alone.  Those policies also reflect invidious motivations, like stereotypes about women's "proper" role as mothers before all else.  Other equal-protection arguments, including Professor Jack Balkin's, focus less on motivation than on impact.  They suggest that prolife states impose burdens on women they wouldn't tolerate on men.  Either way, the idea is that abortion bans—viewed together with prolife states' other policies—reflect or impose sexist double standards.

The draft opinion finds the equality arguments foreclosed by two cases holding that laws regulating sex-specific procedures don't trigger scrutiny absent some animus and that we needn't posit animus to explain abortion laws.  Critics respond that this answer gives the equality arguments short shrift and refuses to revisit two precedents (including Geduldig, which for some has been overruled in the court of history) in an opinion rejecting much bigger ones.

To be fair to the Dobbs majority, the equal protection arguments depart not only from two cases but from the Court's global framework for equal protection law—with its focus on disparate treatment rather than impact and on classifications as triggers for scrutiny.  But Balkin says that departing from these doctrines would take us closer to the Constitution's original meaning.  Here I'll assume that he's right.  Specifically, as needed for both the unfair-motivations and unfair-impact versions of the argument, I'll assume a doctrinal framework in which courts may reach equal-protection judgments by studying the whole body of a state's statutory (and common?) law to draw (1) inferences about the state's systematic motivations toward particular groups and (2) counterfactual judgments about how the state's laws might change if the burdens they imposed fell on different groups than they currently do.  Granting all of this, I have a concern about the equality arguments for abortion access that isn't based on current precedent.

To preview:  Despite their professed goal, the equality arguments ultimately have to assume that it is not even permissible for states to believe that fetal life is innocent human life.  That the Constitution itself somewhere mandates a position on fetal moral worth—one that discounts early fetuses.  But this was the weakest and most widely criticized premise of Roe and Casey.  So the equality arguments would be no stronger than Roe and Casey's rationale.  In which case, for the Dobbs majority's purposes, they would fail for the same reasons.  In fact, the premise they shared with Roe/Casey would be doing most of the work in the equality arguments for abortion:  there would be little left to be done by the appeal to equality itself.

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From Hermes Int'l v. Rothschild, an opinion issued today by Judge Jed Rakoff (S.D.N.Y.):

Around December 2021, defendant Mason Rothschild created digital images of faux-fur-covered versions of the luxury Birkin handbags of plaintiffs Hermes International and Hermes of Paris, Inc. (collectively, "Hermes"). Rothschild titled these images "MetaBirkins" and sold them using so-called "NFTs" (non-fungible tokens), explained further below. In response, Hermes filed a complaint, subsequently amended, claiming trademark infringement, trademark dilution, and cybersquatting….

Unless otherwise indicated, the following factual allegations are taken from the amended complaint. Hermes is a luxury fashion business known for, among other products, its unique Birkin handbag, which sells for anywhere from thousands of dollars to over one hundred thousand dollars. Hermes owns trademark rights in the Hermes and Birkin marks as well as trade dress rights in the Birkin handbag design.

NFTs, or "non-fungible tokens," are units of data stored on a blockchain that are created to transfer ownership of either physical things or digital media. When NFTs are created, or "minted," they are listed on an NFT marketplace where NFTs can be sold, traded, etc., in accordance with "smart contracts" that govern the transfers. Because NFTs can be easily sold and resold with a transaction history securely stored on the blockchain, NFTs can function as investments that can store value and increase value over time.

When an NFT is linked to digital media, the NFT and corresponding smart contract are stored on the blockchain and are linked to digital media files … to create a uniquely identifiable digital media file. {This means that an NFT could link to a digital media file that is just an image of a handbag or could link to a different kind of digital media file that is a virtual handbag that can be worn in a virtual world. Fashion companies are just starting to branch out into offering virtual fashion items that can be worn in virtual worlds online (most commonly, for now, in the context of videogames, but with potential to expand into other virtual worlds and platforms as those develop), and NFTs can be used to create and sell such virtual fashion items. However, while Hermes calls what Rothschild sells "digital handbags," they do not dispute that what Rothschild sells are digital images of (faux fur, not leather) Birkin bags, and not virtually wearable Birkin bags.} The NFTs and smart contracts are stored on the blockchain (so that they can be traced), but the digital media files to which the NFTs point are stored separately, usually on either a single central server or a decentralized network.

Fashion brands are beginning to create and offer digital replicas of their real-life products to put in digital fashion shows or otherwise use in the metaverse. NFTs can link to any kind of digital media, including virtual fashion items that can be worn in virtual worlds online. Brands sometimes partner with collaborators in offering co-branded virtual fashion products.

Defendant Mason Rothschild is a "marketing strategist" and "Entrepreneur" who "come[s] from the fashion industry." In or around May 2021, Rothschild created a digital image entitled "Baby Birkin," which depicted a 40-week-old fetus gestating inside of a transparent Birkin handbag. Rothschild sold the NFT linked to the "Baby Birkin" digital image for $23,500; it later resold for $47,000.

In or around December 2021, Rothschild created a collection of digital images titled "MetaBirkins," each of which depicted an image of a blurry faux-fur-covered Birkin handbag. Rothschild used NFTs to sell these "MetaBirkins" digital images. Each NFT in the "MetaBirkins" collection is titled with a number from 0 to 99 and not the "MetaBirkins" name. The NFTs have sold for prices comparable to real-world Birkin handbags.

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In Jarkesy v. Securities and Exchange Commission, a divided three-judge panel of the Fifth Circuit put a shot across the bow of the administrative state. In an opinion written by Judge Jennifer Walker Elrod, the court ruled against the SEC in a securities fraud enforcement case on several constitutional claims. The full opinion can be found here.

Petitioners raise several constitutional challenges to the SEC enforcement proceedings.1 We agree with Petitioners that the proceedings suffered from three independent constitutional defects: (1) Petitioners were deprived of their constitutional right to a jury trial; (2) Congress unconstitutionally delegated legislative power to the SEC by failing to provide it with an intelligible principle by which to exercise the delegated power; and (3) statutory removal restrictions on SEC ALJs violate Article II.

A nondelegation ruling against the SEC is a big deal, but the actual argument is somewhat more modest.  The claim is that Congress did not articulate an intelligible principle to guide the SEC on whether to bring enforcement actions in Article III courts or through administrative decision-making. Significant, but pretty fixable.

The third constitutional claim is potentially wide-ranging, though also fixable. The court concludes that administrative law judges are officers exercising substantial policy discretion, and thus cannot be regarded as mere inferior officers doubly insulated from presidential removal.

Judge W. Eugene Davis dissented from all three constitutional conclusions.

My review of Adrian Vermeule's new book Common Good Constitutionalism in the Claremont Review of Books is now posted. You can download it here. There was more in the book with which I agreed than I expected. But ultimately, I think it fails as either a critique of originalism or as a presentation of a viable alternative to it. Here is the abstract:

In this review, I explain how "Common Good Constitutionalism" taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law "as it is" at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his own conception of the common good, preferring instead merely to assert it without considering other serious alternatives.

To make his case against originalism, Vermeule adopts the approach of Ronald Dworkin, which Dworkin formulated before the development of modern originalist theory. This leads Vermeule to seriously mischaracterize modern originalism, which enables him to dismiss a straw man version of it. And yet, in defending himself from the charge that his is just a version of living constitutionalism, Vermeule adopts the fundamental tenets of modern originalism: fixation and constraint. Like living constitutionalists who are "arm chair originalists," however, Vermeule then asserts without showing that the fixed original meaning of the text of the Constitution is so abstract and thin that it permits the direct pursuit of the common good by the government actors unconstrained by the text of the Constitution.

Surprisingly, the government actors Vermeule thinks are most well suited to pursue the common good and implement the natural law are those who work in the federal administrative state. To these bureaucrats he would have the judiciary largely defer--oddly except for environmental regulations where he would allow "public interest" lawsuits to protect the environment. Vermeule provides absolutely no reason to believe that his version of the public good--assuming it is correct--will actually be adopted and served by the administrative state.

Throughout Common Good Constitutionalism, Vermeule fails to confront the strongest versions of the positions he opposes, especially when it comes to originalism. But this book is not really a scholarly project. In my review, I situate it in the current political context to show how Common Good Constitutionalism is largely a work of constitutional polemics, which some social conservatives are finding appealing. But there is very little that is conservative--socially or otherwise--about Adrian Vermeule's commitment to the unfettered regulation of Americans by the deep state.

On March 24, 2022, I delivered the inaugural Edwin Meese III Originalism Lecture at the Heritage Foundation. The primary topic of my remarks was "Originalism and Stare Decisis in the Lower Courts."

The Heritage Foundation has now published my remarks. Here is a summary:

Lower-court judges can expand their use of constitutional originalism, and judges who adopt this framework will influence the bench and the bar to become more familiar with originalism. Law firms that want to persuade originalist judges will rationally incorporate originalist arguments into their briefs—whether voluntarily or in response to a court order. Public defenders in particular would be well-served to think in terms of originalism: Conservative jurists may be personally opposed to the plight of the accused but still favor the rights of the accused as originally understood. As the bench and bar are acculturated to originalism, it will become far more normal for the Supreme Court to base its decisions on originalism.

I am honored to have been selected for this distinguished award.

The question came before the Court in Bd. of Ed. v. Pico, and four Justices (led by Justice Brennan) took the view that "local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books." Four other Justices (led by Chief Justice Burger) expressly rejected this view (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans). And the swing vote, Justice White, expressly refused to opine on this issue:

The plurality … issue[s] a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point….

[This case] poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here.

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From today's Montana Supreme Court opinion in Meyer v. Jacobson, written by Justice Beth Baker and joined by Justices Mike McGrath, James Jeremiah Shea, Dirk Sandefur, and Jim Rice:

John Meyer sought to run as an Independent candidate for Montana Attorney General in the 2020 general election, but the Gallatin County Election Administrator (Administrator) denied his petition for nomination forms because they contained only electronic signatures….

That rejection was correct under Montana election law, the majority held:

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The result may be loosely labeled "pro-trans," but the reasoning may also support a First Amendment right of businesses or some others to decline to use pronouns that they don't wish to endorse.

The opinion is by Judge Aleta Trauger (M.D. Tenn.), in Bongo Productions, LLC v. Lawrence:

[C]ompelled speech is [not] always unconstitutional. Rather, courts have closely looked at the various situations in which compelled speech issues arise—from product labeling to compulsory displays of patriotism—and have concluded that some types of compelled speech are more constitutionally suspect than others. Although a complex range of factors may come into play, the type of forced-speech policy most likely to run afoul of the First Amendment is, generally speaking, one in which "individuals are coerced into betraying their convictions" by "involuntar[ily] affirm[ing]" the government's position on a "controversial" topic. That is particularly true when the controversial speech being compelled is not "purely factual" in nature.

The Supreme Court has expressly recognized that "sexual orientation and gender identity" are among the "controversial subjects" capable of raising such constitutional concerns. In 2021, however, the Tennessee General Assembly passed a law mandating that private parties voice a specific message on precisely that issue. The newly-enacted law requires any qualifying business with what the court will, for efficiency's sake, refer to as a "trans-inclusive" restroom policy—that is, a formal or informal policy of allowing transgender and nonbinary patrons to use the restrooms that they earnestly believe to be appropriate for them—to post a garish warning sign announcing that policy in specific language of the government's, not their, choice…. Because that kind of forced affirmance of a contestable message violates the Constitution, the plaintiffs argue, the enforcement of the Act should be enjoined….

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