The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Washington Post has put up a symposium on Judge Brett Kavanaugh's jurisprudence in which various legal commentators discuss what they consider to be his most important opinions. The contributors include Yale Law School Prof. Akhil Amar, ACLU national legal director David Cole, and myself, among others. Here is an excerpt from my contribution, which focuses on Kavanaugh's recent dissent in PHH Corp. v. Consumer Financial Protection Bureau. Here is an excerpt:

Kavanaugh has written many insightful opinions, but the one that best exemplifies both the strengths and the weaknesses of his jurisprudence may be his recent dissent in PHH Corporation v. Consumer Financial Protection Bureau. The opinion showcases his careful reasoning, but also highlights a shortcoming of his devotion to "unitary executive" theory.

PHH… involves a challenge to the constitutionality of the Consumer Financial Protection Bureau, a powerful financial regulatory agency headed by a single director appointed by the president for a five-year term, during which he or she can only be removed "for cause." As Kavanaugh explains, the Constitution lodges all "executive" power in the hands of the president. Independent agencies such as the CFPB, he says, are "a headless fourth branch of the U.S. Government" that poses "a significant threat to individual liberty and to the constitutional system of separation of powers."

While the Supreme Court has upheld some independent agencies, the CFPB goes beyond those cases because it is headed by a single director. Kavanaugh fears that the "CFPB's concentration of enormous power in a single unaccountable, unchecked Director poses a far greater risk of .?.?. abuse of power, and a far greater threat to individual liberty, than a multimember independent agency."

But Kavanaugh does not consider the possibility that concentrating even greater power in the hands of a single person — the president — also poses grave risks. The "unitary executive" theory underlying his opinion made sense in a world where the executive branch was confined to the comparatively narrow range of powers granted by the original meaning of the Constitution. It is far more problematic today, including on originalist grounds….

Federal agencies now regulate almost every aspect of American life. If the president has near-total control over them, he or she has much greater power than originally granted — more than can safely be entrusted to any one person. So long as the executive wields authority far beyond the original meaning, Congress should be allowed to insulate some of it from total presidential control to prevent excessive concentration of power.

Interestingly, famed constitutional law scholar Akhil Amar also focuses on PHH in his contribution to the symposium. His assessment of Kavanaugh's opinion is more favorable:

I seldom assign my law students to read recently decided lower-court opinions, but last spring I made one exception: Kavanaugh's dissent in a case involving presidential control over the federal bureaucracy, PHH Corporation v. Consumer Financial Protection Bureau….

It's a careful and subtle opinion, blending fidelity to the framers' original understanding of the Constitution with respect for modern developments such as the rise of the administrative state. It reflects a persuasive vision of the Constitution's commitment to a "unitary executive." The Constitution explicitly and emphatically vests the executive power in one president and all lower executive officials ultimately answer to him, in one way or another… Unlike extreme versions of "unitary executive theory" famously associated with the conservative legal scholar John Yoo, Kavanaugh's is a modest version of the theory, respectful of modern independent agencies and noncommittal on contested issues of presidential war power.

Much of what Prof. Amar says in the passage quoted above is true. For example, Kavanaugh's reasoning does not entail any endorsement of John Yoo's very broad views of presidential war powers (which I have taken issue with in the past myself). But I am not convinced that Judge Kavanaugh's approach to the unitary executive is a "modest version of the theory" or that it is "respectful of modern independent agencies." In PHH, Kavanaugh could not rule that independent agencies are generally unconstitutional, because (as a lower court judge) he was constrained by Supreme Court precedent holding otherwise. He nonetheless makes clear that, in his view, independent agencies are "a headless fourth branch of the U.S. Government" that poses "a significant threat to individual liberty and to the constitutional system of separation of powers." That reasoning applies to all independent agencies, not just those that are headed by a single director rather than a multimember board.

In principle, a unitary executive can still be confined to a very narrow range of powers. Executive authority might be very limited, but such of it as exists can be under sole control of the president. The unitary executive theory addresses the distribution of executive power, not its scope. In practice, however, the modern executive branch has accumulated vast power, which is unlikely to be severely cut back any time soon. In that situation, judicial enforcement of the unitary executive doctrine necessarily requires a vast concentration of power in the hands of one person - far more than was given to him or her by the original meaning of the Constitution, and far more than is safe. That is why I have reservations about the broad scope of Kavanaugh's reasoning in PHH, even though I have no strong objection to his conclusion about the specific case of the CFPB.

I discussed the dangers of unitary executive theory (an issue on which I have turned against my own previous views) in greater detail here. I discuss other aspects of Kavanaugh's jurisprudence on executive power here and here.

As part of an investigation of his practices, the Texas Medical Board executed an administrative subpoena on Dr. Joseph Zadeh's medical office, accompanied by two federal Drug Enforcement Agency (DEA) officers. According to Dr. Zadeh, the Board agents exceeded the scope of their subpoena in executing their search of his offices, so he sued, seeking damages for alleged violaitons of his constitutional rights.

In reviewing De. Zadeh's claim, the U.S. Court of Appeals for the Fifth Circuit sympathized with Dr. Zadeh's claims, but nonetheless concluded the Board and its agents were entitled to qualified immunity because their conduct did not violate "clearly established" law. This is how qualified immunity doctrine works, but not all of the judges on the panel were too happy about it, Judge Don Willett in particular.

In an opinion "concurring dubitante," Judge Willett writes:

The court is right about Dr. Zadeh's rights: They were violated.

But owing to a legal deus ex machina—the "clearly established law" prong of qualified-immunity analysis—the violation eludes vindication. I write separately to register my disquiet over the kudzu-like creep of the modern immunity regime. Doctrinal reform is arduous, often-Sisyphean work. And the entrenched, judge-made doctrine of qualified immunity seems Kevlar-coated, making even tweak-level tinkering doubtful. But immunity ought not be immune from thoughtful reappraisal.

* * *

To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly. Merely proving a constitutional deprivation doesn't cut it; plaintiffs must cite functionally identical precedent that places the legal question "beyond debate" to "every" reasonable officer. Put differently, it's immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful. Today's case applies prevailing immunity precedent (as best we can divine it): Dr. Zadeh loses because no prior decision held such a search unconstitutional. But courts of appeals are divided—intractably—over precisely what degree of factual similarity must exist. How indistinguishable must existing precedent be? On the one hand, the Supreme Court reassures plaintiffs that its caselaw "does not require a case directly on point for a right to be clearly established." On the other hand, the Court admonishes that "clearly established law must be 'particularized' to the facts of the case." But like facts in like cases is unlikely. And this leaves the "clearly established" standard neither clear nor established among our Nation's lower courts.

Two other factors perpetuate perplexity over "clearly established law." First, many courts grant immunity without first determining whether the challenged behavior violates the Constitution. They avoid scrutinizing the alleged offense by skipping to the simpler second prong: no factually analogous precedent. Forgoing a knotty constitutional inquiry makes for easier sledding. But the inexorable result is "constitutional stagnation"—fewer courts establishing law at all, much less clearly doing so. Second, constitutional litigation increasingly involves cutting-edge technologies. If courts leapfrog the underlying constitutional merits in cases raising novel issues like digital privacy, then constitutional clarity—matter-of-fact guidance about what the Constitution requires—remains exasperatingly elusive. Result: blurred constitutional contours as technological innovation outpaces legal adaptation.

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there's no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose. Count me with Chief Justice Marshall: "The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." The current "yes harm, no foul" imbalance leaves victims violated but not vindicated; wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed. It is indeed curious how qualified immunity excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.

* * *

Qualified immunity aims to balance competing policy goals. And I concede it enjoys special favor at the Supreme Court, which seems untroubled by any one-sidedness. Even so, I add my voice to a growing, cross-ideological chorus of jurists and scholars urging recalibration of contemporary immunity jurisprudence and its "real world implementation."

Among the scholars Judge Willett cites is our own Will Baude.

Qualified immunity doctrine rests on well-established precedents, but it's underlying constitutional pedigree is in doubt (as Justice Thomas has noted). So don't be surprised if more "conservative" originalist justices begin to raise similar questions. Whether or not qualified immunity is a good thing as a matter of policy, it's not so clear that qualified immunity—at least as currently construed and applied—is particularly good law.

(Hat tip: Josh Blackman)

The official charge was filed last week by the Oregon Bureau of Labor & Industries against Walmart, based on a complaint by Hannah Brumbles; a full hearing is scheduled for Nov. 14; the Oregonian (Ted Sickinger) has more.

As I wrote in March, Oregon is one of the states that bans retailers from discriminating based on age against customers age 18 and above. The Oregon statute says it generally applies to any person who is "of age," which appears to mean 18, the age of majority in Oregon, at least for those products that are legal to sell to 18-to-20-year-olds (as long guns are in Oregon). Indeed, the statute specially treats alcohol and marijuana sellers, but makes no such special provision for gun sellers:

659A.403 Discrimination in place of public accommodation prohibited. (1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is of age, as described in this section, or older.

(2) Subsection (1) of this section does not prohibit:

(a) The enforcement of laws governing the consumption of alcoholic beverages by minors and the frequenting by minors of places of public accommodation where alcoholic beverages are served;

(b) The enforcement of laws governing the use of marijuana items … by persons under 21 years of age and the frequenting by persons under 21 years of age of places of public accommodation where marijuana items are sold; or

(c) The offering of special rates or services to persons 50 years of age or older.

(3) It is an unlawful practice for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation in violation of this section….

659A.406 Aiding or abetting certain discrimination prohibited. Except as otherwise authorized by ORS 659A.403, it is an unlawful practice for any person to aid or abet any place of public accommodation, as defined in ORS 659A.400, or any employee or person acting on behalf of the place of public accommodation to make any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older.

659A.409 Notice that discrimination will be made in place of public accommodation prohibited; age exceptions. Except as provided by laws governing the consumption of alcoholic beverages by minors, the use of marijuana items … by persons under 21 years of age, the frequenting by minors of places of public accommodation where alcoholic beverages are served and the frequenting by persons under 21 years of age of places of public accommodation where marijuana items are sold, and except for special rates or services offered to persons 50 years of age or older, it is an unlawful practice for any person acting on behalf of any place of public accommodation as defined in ORS 659A.400 to publish, circulate, issue or display, or cause to be published, circulated, issued or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is of age, as described in this section, or older.

There are plausible arguments to be made about whether laws banning discrimination in public accommodations are generally a good idea; whether laws banning discrimination in retail sales are generally a good idea (federal law, for instance, doesn't apply to most retail stores); whether laws banning discrimination in retail sales based on age are generally a good idea (most states don't ban such discrimination); whether there ought to be exemptions to such laws for 18-to-20-year-olds; whether there ought to be exemptions to such laws for 18-to-20-year-olds who want to buy guns; and more.

But the Oregon Legislature seems to have resolved those arguments in favor of banning such discrimination. Given that, I don't see any legal basis for Walmart's refusal to sell a rifle to Hannah Brumbles because she was 18 (which is what the BOLI complaint alleges).

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

In a colorful decision that managed to invoke the Boston Tea Party, Lady Macbeth and Jesus of Nazareth, the Eleventh Circuit ruled that Fort Lauderdale, Florida's permit requirement to share food with homeless people in public parks may run afoul of the First Amendment. Over at Forbes.com, IJ's Nick Sibilla has more.

Shirley, Mass. prison officials receive information that prisoner is a gang member threatening violence, so they place him in solitary confinement, where is held for a total of 611 days without being able to challenge or appeal the determination. A due process violation? First Circuit: Inmates do not have a right to avoid restrictive confinement conditions unless those conditions impose "atypical and significant hardship" compared to ordinary prison life. And because it's not clearly established what kind of hardship meets that standard, qualified immunity all around.
Plaintiffs say defendants' medical eye-droppers dripped drops that were too big, which caused the plaintiffs to drop more money to cover the extra dripping. Maybe so, says the First Circuit, but their state-law claims are preempted by FDA regulation of medical drop-dripping.
When is an intercept not an intercept? When it's only "functionally" contemporaneous, as opposed to, you know, contemporaneous, says the First Circuit in this opinion on the Electronic Communications Privacy Act.
Luxury-goods broker has "100 percent risk-free" plan to poison a target with ricin (a deadly toxin that has no known antidote and is undetectable in an autopsy), which he purchases on the Dark Net for $300 in Bitcoin and has delivered to Manhattan post office box. Surprise! The seller is actually an FBI agent (and ricin is not actually delivered). Broker: the Biological Weapons Act can't possibly prohibit a single, local murder; federalism and the Commerce Clause say so. Second Circuit: Conviction affirmed.
New York liquor distributor files a RICO lawsuit against Maryland liquor distributors, alleging that they illegally smuggled liquor from Maryland to New York, allowing retailers to avoid New York's high liquor taxes. Second Circuit: Even if that's true, you haven't shown that the smuggling directly caused your lost sales.
Participants in Philly ticket fixing scheme argue that they could not have defrauded the government out of fines and costs associated with traffic tickets because there must be a guilty plea or conviction before fines and costs are owed, and none of the folks whose tickets they fixed pled guilty or were convicted. Third Circuit: There's a fine line between clever and stupid; you're on the wrong side.
Imprisoned for nine years for a crime that may not have even happened, mentally handicapped man sued for damages. Third Circuit: Unfortunately, "with the performance of his various counsel marred by inexcusable delays and dilatory discovery efforts…most avenues of relief are now closed to him."
Appellant: Our logo does not infringe the plaintiff's trademark because their logo is a stylized eagle with 43 feathers while our logo is a stylized hawk with 43 feathers. Fifth Circuit: These birds are the same birds.
Former OSU football star James Stillwagon probably thought that his day had gotten as bad as it could when a driver with road rage tried to run him over six times, forcing him to use a handgun to defend himself. That was before he got arrested, roughed up, and charged with felonious assault. Sixth Circuit: And the cops who roughed him up and lied to get an indictment are not entitled to qualified immunity.
The Fair Housing Act prohibits "making, printing, or publishing" any "notice, statement, or advertisement" with respect to "the sale or rental of a dwelling" that indicates any racial preference or discrimination. Does this mean that Ohio county recorders violate the law when they maintain property records that contain unenforceable, decades-old racially restrictive covenants? Sixth Circuit: No need to answer that question, because the plaintiff doesn't have standing.
Freed after two years in jail for a shooting that he did not commit, man sues Detroit police officers whose withholding of evidence and repeated lies led to his conviction. Sixth Circuit: Unfortunately for him—no, just kidding this time. No qualified immunity. Any cop would have known this was wrong.
The City of Chicago requires sex offenders to register with the police department. But if you're homeless, they won't register you; homeless sex offenders have to show up once a week or risk arrest. A due process violation? Seventh Circuit: Not at all! The Due Process Clause protects against state action that deprives homeless sex offenders of liberty, and Chicago's policy merely jeopardizes their liberty.
Driver is scared to pull over for police, because the last time this happened she was tased while handcuffed, leading to an excessive force lawsuit. So guess what happens when she instead drives home slowly before exiting her van: A straight-arm takedown by the same taser-happy officer. Should the jury in her new excessive-force case have been allowed to know about the earlier incident? Seventh Circuit: A reasonable officer would have at least considered whether the driver was slow to pull over because she was scared of being subject to excessive force again; the trial court shouldn't have dismissed the earlier incident so lightly.
Mom calls police on teenage son for acting violently. As Minneapolis's finest take the kid down, officer feels a pain in his leg and accuses 5′ 4″, disabled mom, who'd backed up to give clearance, of kicking him. She denies it, and an eyewitness confirms her account. Officer arrests her anyway, and she's jailed three days before charges are dropped. Qualified immunity? Ummm, no, says the Eighth Circuit. (Oh, and that pain in the leg? A sprained or ruptured calf muscle.)
Anonymous caller to Bryan County, Okla. officials voices concern for a six-year-old boy's safety on account of his father's use of drugs and previous arrest record. Two days later, police pick the boy up at school and drive him to a safe-house where they interview him. While the interview doesn't result in evidence of abuse, it does result in stress and trauma for the boy as well as messes up his relationship with his father. Tenth Circuit: No qualified immunity for seizing the boy, as officials had no reasonable suspicion he was in imminent danger. But immunity for the allegation that they interfered with the boy's and father's relationship, as the right wasn't clearly established.
Inmate placed in solitary confinement due to allegations he was trafficking drugs, where he remains for 20 years. Each month, officials review the determination; reviews last one to two minutes, provide no guidance as to how to get out of solitary, and repeat the same reason to keep him in solitary. Tenth Circuit (unpublished, non-precedential 2013 decision): qualified immunity. Tenth Circuit (2018): qualified immunity; the previous case says so, and neither the law nor the facts have changed much since then. Concurrence: The previous decision was wrong but binds us here. Twenty years in solitary based on only marginal justification violates due process.

The government is not allowed to pick winners and losers in the marketplace. That choice belongs to customers. But when local restaurant owners asked the Town of Carolina Beach to ban competition from "outsiders," that's exactly what it did. In April, the government decreed that food trucks could only be owned by local restaurant owners—and were banned for everyone else. Last Tuesday, some of those "outsider" food-truck owners teamed up with IJ to file a lawsuit challenging this blatantly protectionist restriction. One week later, the town responded by repealing the ban. In the mayor's words following the repeal: "Food trucks are welcome!" Click here to read more.

From yesterday's Tennessee Court of Appeals opinion in Luker v. Luker:

In November 2017, Petitioner and Respondent were in the midst of divorce proceedings. The two continued to reside together in the marital residence, albeit in different rooms. Following the signing of the marital dissolution agreement, the divorcing couple had consensual sexual relations some number of times.

The event giving rise to this appeal occurred on November 14, 2017, when Petitioner alleges she was raped by Respondent. The two parties put forward contrasting accounts of what happened. Respondent's theory of the case throughout has been that there was no rape and that Petitioner and her sister conspired to set him up. In Respondent's account, he and Petitioner had consensual sex and afterward, when Respondent denied Petitioner's request for money, she flew into a rage and accused him of rape. According to Petitioner, she did not want to have sex with Respondent on this occasion and expressed this to him, but he proceeded to rape her.

The trial court issued a temporary protection order, and scheduled a full hearing for a month later, based in part on the husband's request for a delay so that his lawyer could conduct discovery (otherwise the full hearing would have happened two weeks after the temporary order). At the full hearing, the court found in the wife's favor, finding that the husband had raped the wife; but the court of appeals reversed and sent the case down for further hearing.

In the process, the court of appeals rejected the view that ordinary discovery was generally unavailable in protection order cases:

Nothing in our research supports the [wife's] proposition that discovery under the Tennessee Rules of Civil Procedure is prohibited in order of protection cases. The Trial Court had the discretion to manage discovery but did not exercise its discretion. Rather, the Trial Court concluded summarily that Respondent had no right to conduct discovery pursuant to the Tennessee Rules of Civil Procedure, which we hold was error…. While not a criminal matter, an order of protection exposes a respondent to an array of restrictions, including severe limitations on his or her Second Amendment rights. A respondent deserves a meaningful due process opportunity to present his or her case.

And the court particularly faulted the court's scheduled decisions that created "a rushed hearing" and barred the husband's lawyer from reviewing the evidence that he had obtained:

Perhaps the most illustrative problem with this case is that Respondent's counsel had two hours before the hearing to review a one and a half hour recording [(consisting of the parties speaking after the incident], along with call logs produced pursuant to the subpoena duces tecum. We believe it impractical to expect a lawyer to review call logs and listen to a one and a half hour recording two hours before a hearing and be adequately prepared for that hearing. What if the recording or call logs opens additional lines of inquiry? What if there is a problem with the audio, requiring multiple attempts to hear? This simply was not meaningful discovery….

Seems correct to me.

Volokh Conspiracy

Arizona Supreme Court Rejects Proposed Lawyer Speech Code (Rule 8.4(g))

The rule would have banned, among other things, "harmful verbal ... conduct that manifests bias or prejudice towards others" "on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law," including "in bar association, business or social activities in connection with the practice of law."

Eugene Volokh | 8.31.2018 2:01 PM

Yesterday, the Arizona Supreme Court announced that it was rejecting the proposal; for more on why I think that's right, see this post. So far, it appears (based on data gathered by the Christian Legal Society), that

Arizona, Illinois, Minnesota, Montana, Nevada, South Carolina, and Tennessee have rejected the proposal.
The Louisiana, South Carolina, Tennessee, and Texas Attorneys General have issued opinions concluding that the rule is likely unconstitutional.
The Montana legislature adopted a joint resolution taking the same view.
Vermont is the only state that has adopted the proposal.

In a recent Twitter thread, well-known originalist legal scholar Larry Solum addresses claims that originalists largely endorse the theory primarily because they like its political outcomes. Although Solum himself is more on the left, he recognizes that it is not an accident that originalists are disproportionately libertarian or conservative. Similar charges, of course, are often made against living constitutionalists, who have long been accused of just coming up with ways to constitutionalize their (mostly liberal) political views.

In my view, constitutional theory is unavoidably normative, and no interpretive approach can be justified completely independent of its outcomes. For reasons I outlined here and here, I am skeptical of nonconsequentialist justifications for originalism and my qualified support for the theory is based on instrumental considerations. I also think there is no way to justify living constitutionalism without at least some consideration of consequences. At the same time, I do not believe that judges should simply try to reach the best policy outcome in any given case, or that even the best possible methodology can come close to achieving that result indirectly. And my support for originalism is combined with severe reservations about the effects of following that approach with respect to some parts of the Constitution.

Solum also points out that the impression of congruence between legal theorists' views of the Constitution and their political views is artificially heightened by the fact that most scholars spend far more time writing about areas where they think there is such congruence than areas where they believe the two are at odds. That is true of much of my work, as well. Given limited time and energy, it makes sense to devote more of it to issues where stronger enforcement of the Constitution will make the world a better place than those where it is likely to make things worse. That said, however, here's a list of several areas where I think the Constitution gets important issues badly wrong. By that I mean that we get bad outcomes if we follow what I think is the correct interpretation of the document. I have a much longer list of cases where bad outcomes occur because the courts (and other branches of government) have deviated from the correct interpretation in some way.

1. Nearly Unconstrained Power to Restrict International Trade.

Article I of the Constitution gives Congress nearly unlimited power to impose tariffs and otherwise restrict international trade. Economists across the political spectrum agree that trade barriers are bad for the economy. They are also severe restrictions on liberty. Moreover, we often cannot count on the political system to police itself in this area. International trade is one of the areas where research shows that voter ignorance and "antiforeign bias" are particularly severe, thereby incentivizing politicians to promote protectionism. The protectionism peddled by Donald Trump and Bernie Sanders is just the latest iteration of this longstanding problem. Moreover, public ignorance also helps the government and special-interest groups hide the true extent of the negative impact of protectionism. A well-designed Constitution would at the very least make it far more difficult to enact trade barriers than ours does.

2. Too Much Use of Juries.

Thanks in large part to the Bill of Rights, the US uses juries for a much wider range of cases than virtually any other nation. If the Supreme Court were to fully enforce the original meaning, I think they would have to "incorporate" the Seventh Amendment (which requires the use of juries in most civil cases) against state governments, thereby mandating even more widespread use of juries.

For reasons I summarized in this article, I think such extensive reliance on juries is problematic, at least in cases involving large-scale policy issues and complex scientific evidence. Ignorance and bias on the part of lay jurors can lead to serious errors in such situations.

But my biggest reservation about the jury system arises from the fact that jury service is mandatory, and thereby has become a system of forced labor. I am less convinced than I used to be that the Constitution requires jury service to be mandatory, as opposed to merely permitting it to be so. But even in the latter scenario, the fact that a large-scale system of forced labor is even permitted, still qualifies as a serious injustice. The benefits of jury service, such as they are, can be realized even in a voluntary system.

Another reason to get rid of mandatory jury service is that it is often used to justify other forms of forced labor, such as mandatory voting (an analogy I criticized here) and the restoration of a military draft.

Longtime readers may wonder whether my criticism of the jury system can be reconciled with my qualified support for jury nullification. The answer is that I think juries should be used for a narrower range of cases than at present, and service on them should be voluntary. But in the types of cases where the use of (voluntary) juries is desirable (which includes a wide range of criminal law cases, among others), they should have the power to nullify, at least so long as the scope of criminal law is as egregiously large as is true today.

3. It is too Hard to Remove a Malevolent or Incompetent President.

The Constitution only allows removal of a president before his term is over through the cumbersome impeachment process. That requires a majority vote of the House of Representatives to impeach, and two-thirds of senators to convict. Even then, removal is only permissible if the president has committed a "high crime or misdemeanor" (though many scholars argue that does not necessarily require a violation of criminal law). Given the vast power of the modern presidency and the enormous harm that a malicious or even merely incompetent president can do, I think removal should be easier. The risk of leaving a malign president in office too long is, at least at the margin, greater than that of improperly removing a "good" one. That judgment is reinforced by the reality that few politicians are actually all that good, or all that worthy of being entrusted with vast power. I would not want to allow Congress to remove the president by a simple majority vote, like a parliamentary prime minister. But we would do well to reduce the size of the necessary supermajority in the Senate, and to eliminate the requirement that the president can only be removed for a "high crime or misdemeanor."

Admittedly, this issue would be a less serious problem if the power of the executive branch were cut back to its original, far more limited scope. But that does not appear likely to happen anytime soon.

4. Breaking Up States Should be Easier to Do.

Breaking up big states such as California and Texas could help facilitate beneficial competition and open up new opportunities for people to "vote with their feet." Currently, states can only be divided with the consent of both the state government (which has an obvious incentive to avoid diminution of its own power) and Congress. I am not sure about what the optimal approach is, since it would be a mistake to give the federal government unconstrained power to break up states at will. But dividing up states should be easier than it is now.

5. The Presidency Should not be Reserved to "Natural Born" Citizens.

I explained the reasons for my opposition to this form of discrimination against immigrants here. This provision causes far less tangible harm than the other items on this list. It is nonetheless an egregious example of indefensible discrimination, and its elimination would have considerable moral and symbolic value.

6. The Constitution is too Hard to Amend.

Article V makes our Constitution one of the most difficult to amend in the whole world, possibly even the most difficult. While there are, technically, three different methods of amendment, only one of them has ever been effectively used, and it requires the approval of two-thirds of both houses of Congress, and three-fourths of state legislatures. Since all but one state legislature is bicameral, the three-fourths requirement (which also applies to the other two amendment methods) is even more onerous than it looks. The difficulty of the amendment process exacerbates all the other flaws of the Constitution, by making them almost impossible to remove by legal means. It also incentivizes the political parties to pursue constitutional change by surreptitious methods, such as appointing sympathetic judges. It would be a mistake to make the Constitution too easy to amend, as in the case of some state constitutions that can be amended by a simple majority vote in a referendum. But the federal Constitution errs in the opposite direction.

The above is not an exhaustive list of flaws in the Constitution. It just includes what I think are currently particularly egregious shortcomings. There are others which are comparatively minor, and also some that could potentially cause more trouble in the future than they have so far. For example, the Founders made a mistake in failing to fix the number of Supreme Court justices, thereby opening the door to court-packing. Fortunately, political norms have prevented the parties from exploiting this flaw over the last 150 years. But those norms may well break down in the near future.

There are also some issues that may well be serious problems, but on which I am uncertain in my own mind. For example, I am uncertain about whether we would be better off with a proportional representation system of voting, than the status quo. Finally, I have omitted harmful parts of the Constitution that have been eliminated or superseded by later amendments, such as the Fugitive Slave Clause.

The flaws described here are, I believe, ultimately outweighed by the many virtues of the Constitution (correctly interpreted). But they are significant, nonetheless.

Yesterday, Ilya wrote that democracy is not the central value of the Constitution, and I think that's right. Then a Facebook commenter responded,

Correct. Individual liberty is.

But that comment (which I should stress was the commenter's view, not necessarily Ilya's) is not correct, I think.

We can see that from the Preamble, which reads,

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

That suggests that the Constitution has many purposes: justice, domestic peace, defense against foreign enemies, general welfare, and liberty alike. To be sure, some of them may be seen as aspects of "liberty" in a large sense, such as liberty from foreign oppressors, or even from domestic criminals. But they are not limited to liberty, or even focused primarily on liberty.

Likewise, if we look at the constitutional text (including of course the Amendments, which Article V treats as parts of the Constitution), we see them serving many goals. Some expressly protect individual liberty. Some empower a federal government that is expected to in some measure restrict individual liberty. Some set forth the relationship between state and federal governments, with the state governments also able to restrict individual liberty. Many are instrumental tools for serving some of the values set forth in the Preamble, but they may themselves be seen as important values: democracy, federalism, the rule of law, and the like.

Indeed, some parts of the Constitution necessarily contemplate restrictions on liberty, at least when the phrases are understood within the Anglo-American legal tradition. The jury rights (secured by Article III and the Fifth, Sixth, and Seventh Amendments) involve the government commanding people to serve on juries. The Compulsory Process Clause of the Sixth Amendment protects justice, and indeed the liberty of individual defendants, by limiting the liberty of witnesses not to testify. The militia, referred to in various parts of the Constitution, was understood at the Framing as involving compulsory military service.

But of course many of the provisions can also be seen as reinforcing liberty: Democratic decisionmaking was understood as a means of helping elaborate the meaning of liberty (a term that someone has to give meaning to, after all). As I mentioned, establishing justice and providing for the common defense helps protect liberty. Conversely, liberty can often help advance the general welfare or domestic tranqulity, and even the common defense. That further suggests that we're dealing here with a set of interrelated values, not one central one coupled with some merely peripheral ones.

The Constitution strikes me as a complex document written by complex people for a complex world. Certainly it wasn't written by some monolithic band of libertarians. It is thus, unsurprusingly, a document that embodies many values, none of which is "the central" one. True, some of us might believe that some value should be central to any government; but why should we conclude that the Constitution agrees with us on this?

From Opinion 18-03, released in June, but just posted on Westlaw in the last day or so:

ISSUES

An Arizona court has established a working group to explore the extent to which the needs and concerns of lesbian, gay, bisexual, transgender, and questioning (LGBTQ) youth are being addressed in the child welfare and juvenile justice systems. The working group believes that one barrier to LGBTQ youth seeking services is their reticence to trust those involved in the systems, including attorneys, judges, guardians ad litem, court-appointed special advocates, and probation officers. The working group suggests that trust may be gained by reassuring LGBTQ youth that they are in a safe place and dealing with safe people, which may be facilitated by displaying certain symbols or messages.

A judge inquires whether judicial officers in the juvenile court may wear small rainbow-flag pins (or similar symbols) on their robes and post "safe place" placards on courtroom doors that convey acceptance to LGBTQ youth. In addressing these specific inquiries, the Judicial Ethics Advisory Committee deems it appropriate to discuss more broadly the recurring issue of adornments on judicial robes.

ANSWERS

Judicial robes should be free of adornments.

Courts may display signs stating that harassment, bias, or prejudice on the basis of race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or affiliation is strictly prohibited. Courts and judicial officers should not, however, single out any particular category of citizens in offering such assurances.

DISCUSSION

I. Applicable Code Provisions

Several provisions of the Arizona Code of Judicial Conduct ("Code") are relevant to the committee's analysis, including:

"Rule 1.2. Promoting Confidence in the Judiciary

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

"Rule 1.3. Avoiding Abuse of the Prestige of Judicial Office

"A judge shall not abuse the prestige of judicial office to advance the personal or economic interest of the judge or others, or allow others to do so.

"Rule 2.3. Bias, Prejudice, and Harassment

"(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

"(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge's direction and control to do so.

"(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

"(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

"Rule 2.4. External Influences on Judicial Conduct

"(A) A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.

"(B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge's judicial conduct or judgment.

"(C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge."

II. Analysis

"An independent, fair and impartial judiciary is indispensable to our system of justice." Code, Preamble. Judicial officers must "act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary," and they must avoid both impropriety and the appearance of impropriety. Rule 1.2.

A. Judicial Robes

The judicial robe powerfully and unmistakably invokes the prestige of judicial office. Using that prestige to express support for any particular message, organization, cause, or category of citizens necessarily excludes a large universe of equally worthy messages, organizations, causes, and citizens who might feel reassured upon encountering a judge displaying symbols meaningful to them. See Rule 2.4, cmt ("An independent judiciary requires that judges decide cases according to the law and facts, without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge's friends or family.").

In its criminal justice standards, the American Bar Association discusses the symbolism behind the judicial robe, stating:

"The black garb reminds all who look at the judge — and it reminds the judge, too — that justice is the prime concern of the court. It also adds dignity to the courtroom. Indeed, the robe emphasizes the democratic ideal of impartial and equal treatment of all persons who come before the court by reminding the judge and those who view the judge in the courtroom that the judge serves as an agent of justice."

ABA Standards for Criminal Justice 6-1.4 (3rd ed. 2000).

Another commentator has observed that, by donning unadorned black robes, judges "make a visual promise that they're leaving personal idiosyncrasies, prejudices and desires outside the courtroom." Robin Givhan, Trial by Attire: Supreme Court Look Should Go with Everything We Believe In, Washington Post, October 9, 2010.

"The bland robes serve as a visual reminder of the high-minded philosophy underpinning our judicial system: Under the law, everyone is equal. Gender, religion, race and economic class don't matter ….

"It sends a singularly powerful message: I am here to uphold the law, without prejudice. That message should stand alone. It does not need to be accessorized."

Research discloses only one published judicial ethics opinion of relevance. See Michigan Judicial Ethics Opinion JI-68. That opinion addressed the propriety of a judge wearing an "AIDS awareness ribbon." It concluded that judicial officers should not wear symbols on judicial robes that suggest support for or opposition to any political, social, charitable, or civic cause.

Additionally, one state has a rule that specifically requires judges to wear black robes "with no embellishment." See Florida Rule of Judicial Administration 2.340. In promulgating that rule, the Florida Supreme Court explained that uniformity in judicial attire enhances public trust and confidence and observed that citizens "should not have to question whether equal justice is being dispensed" based on the appearance of a judge's robe.

Although Arizona has no comparable court rule, the committee reaches the same conclusion under the Code. Promoting confidence in the independence, integrity, and impartiality of the judiciary requires that judicial robes be free of symbols, pins, or messages, instead conveying the singular and uniform message that a judge's fidelity is to the law and to equal justice for all who come before the court. No matter how worthy the cause suggested by items such as a rainbow pin, domestic violence awareness ribbon, cross, or military veteran's insignia, the judicial robe should not serve as a platform for conveying messages or for communicating a judge's personal beliefs or extrajudicial activities.

B. Signs or Symbols in Courthouses

Concerns regarding impartiality and avoiding the appearance of bias likewise control the question about displaying "safe place" signs or symbols in court facilities. Courthouses should be safe venues for everyone, and they should also be perceived in that fashion.

Rule 2.3 prohibits bias, prejudice, and harassment on the basis of race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation. Rule 2.3's mandate extends to judges, court staff, lawyers, and "others subject to the judge's direction and control."

Judges may communicate the judiciary's commitment to prohibiting bias, prejudice, and harassment by posting signs or placards in courthouses that communicate Rule 2.3's message. But for the reasons outlined above, signs or placards should not single out a subset of the groups enumerated in Rule 2.3 when offering such assurances.

A few days ago Lisa Littman, a Brown University assistant professor who wrote about "rapid-onset gender dysphoria," found herself and her work getting more attention than she bargained for.

In her study, she asked questions of the parents of teens and young adults who suddenly, after no previous history, identified as transgender. About 21% of those parents reported that their children had one or more friends who came out as transgender at around the same time; 20% reported an increase in their child's social media use; and 45% reported both. In addition, 62% reported their child had been diagnosed with one or more psychiatric disorders or neurodevelopmental disabilities before the transgender issue suddenly arose.

Note that Littman's finding applies only to "rapid-onset gender dysphoria" and not to all cases of gender dysphoria. Her study also had various limitations that stem from the difficulty of finding a large sample of parents whose children had experienced rapid-onset gender dysphoria. But the problems were not out of the ordinary for this kind of research, and she acknowledged them, calling for more research on the topic.

Transgender activists were apparently irate at the suggestion that maybe not all transgender people are just "born that way" (as the slogan goes). They cranked up the outrage machine. Brown University, which had published a new note highlighting the study, caved in to pressure to withdraw the news note and issued what was essentially an apology.

This reminded me of when I drew the ire of transgender activists two years ago. You can read about that whole ridiculous incident here. I got all sorts of nasty emails for about a day and a half. One charmer, who claimed to be in San Diego, wrote, "Your days are numbered and we're coming after you! UCSD will soon be free of your ignorant bigot ass!" (Of course, I don't work for UCSD; I teach at USD, but whatever.) Another wrote, "Can't wait for the shaming to begin, Gail. You will never be off the hook, you will always be shamed for being a racist ignorant bigot. Kill yourself now because these next years will be brutal. You will be fired professor [c-word]." And there were plenty more. (And this fuss was for testimony that was generally supportive of the idea that one's unwillingness to conform to conventional notions of masculinity or femininity is no business of the government's. My main point relating to transgenderism was simply that Title IX's prohibition on sex discrimination does not require schools to assign transgender students to any particular locker room or bathroom. But mobs tend not to have read the things that they claim set them off.)

One difference between my case and Littman's is that, despite numerous calls for my firing, USD never did anything other than quietly support my academic freedom. But here's something that probably won't be different for Littman: By the second day, supportive messages from around the country started rolling in for me. My law school even got a lovely contribution from an alumnus. Pretty quickly those supportive messages vastly outnumbered the critical ones. I suspect they will for Littman too. Brown, on the other hand, needs to learn that not everyone thinks it covered itself in glory.

If you've a mind to you can register your support for free inquiry (or your lack of support for a university that caves to howling mobs) by signing this petition. There is also contact information there if you would like to send your own message.

Tracy Zona has been blogging about her ex-husband Richard Zona and his business associate, Howard Miller Appel. Some of the posts focused on what appears to be Appel's criminal past—he has "two prior securities-fraud related convictions," and has just been charged again by the Justice Department (and sued by the SEC). Some claimed that Appel mistreated his family members and was trying to kill her (though Zona has since claimed this last accusation was hyperbole).

But instead of suing Zona for libel, Appel went to court and got a civil harassment restraining order that categorically forbade Zona from posting anything about him, his family, and his lawyers, as well as required her to remove all her past posts about him:

11. Other Orders:

Remove forthwith all references to petitioner the family and legal representatives and make no further posting in re of any kind.

(The "in re" presumably means "regarding the above.") Nothing in this order is limited to defamatory speech, much less speech found defamatory after a full trial (the sort of speech that the California Supreme Court has said can indeed be enjoined). Zona can no longer post true statements about Appel's criminal past, or about the new charges against him; nor can she post any opinions about him.

And the court is quite serious about this; when Zona failed to take down the posts, she was held in contempt, and avoided jail only because she finally complied:

A. Respondent [Zona] has been found to be in contempt of the Court's [earlier order]. Accordingly, Respondent is remanded to custody for five (5) days in Riverside County Jail and filed $5,000.00. However, these penalties shall be stayed provided that Respondent fully and completely comply with the [earlier restraining order] as amended for the duration of the Order. Respondent is cautioned that the Court will not hesitate to impose these penalties in response to any violation of any kind of the [order] as amended.

B. By no later than 2:30 pm [the following day], Respondent must permanently remove all social media or "blog" posts of any kind or nature which directly or indirectly name, refer to or relate to any Protected Persons [Appel, his lawyers, and their families], including but not limited to:

(i.) postings on the website www.girlonfireCA.com ,

(ii.) postings on any other websites or social media accounts owned, controlled or accessed by Respondent now or in the future, and

(iii.) the specific postings listed on the attached 9-page list of websites.

This sort of gag order is a pretty clear First Amendment violation, much like in the McCauley v. Phillips anti-vaccination activist case I blogged about. (That appeal ended up being dismissed, unfortunately, because the defendant was found to have filed the notice of appeal too late.) As readers of my blog may recall, I've been seeing a lot of these, and litigating some of them; I argued a case involving a similar order in Ohio in July, and expect to argue another in Michigan in two weeks (I just had a moot court for it here at the law school today). And some appellate courts (see Part I.B of this brief) have indeed recognized the First Amendment problems with such orders; it's unfortunate that the trial court here did not.

I'm glad at least that this order has gotten some local press coverage; here's an excerpt from the article by the Palm Desert Sun (Amy DiPierro), which gives something of a backstory:

Over the past four years, as Zona wrote [her blog], she began to question parts of her former life that had never made sense.

She had never really understood, for example, what her ex-husband did for a living. He appeared to be a serial entrepreneur -– she remembered a flower shop and a water company venture -– and it seemed like he was always starting some new business. Sometimes, she remembered him being involved in lawsuits after the businesses closed.

And if a business didn't pan out, she remembered Appel would be there to bail her ex-husband out. He had been the best man at the couple's wedding, and business records suggest he was in business with her ex, too. Incorporation records in Florida show Appel and Zona's ex-husband listed as contacts for the company Something's Bloomin, Inc., and a 1998 securities filing shows companies associated with Zona and Appel selling the same stock to the same buyer on the same day.

Around 2017, Zona plugged Appel's name into Google. What she learned startled her.

Zona saw that Appel had served prison time as a result of a securities fraud charge beginning in 2008. He had been convicted of what is colloquially called a "pump-and-dump" scheme, in which stock brokers obtain large blocks of stocks cheaply, then sell them at artificially inflated prices….

Thanks again to the Lumen Database, an invaluable research tool.

There is a long history of efforts to show that the promotion of democracy is the main purpose of the Constitution, and should be the primary focus of constitutional interpretation today. On the right, the late Judge Robert Bork, among others, defended originalism in large part on the grounds that it supposedly conducive to democracy, or at least more democratic than living constitutionalism. On the left, the great constitutional theorist John Hart Ely argued that most, if not all, the major provisions of the Constitution, are there to promote effective democratic representation, and should be interpreted with that purpose in mind. More recently, Supreme Court Justice Stephen Breyer has argued that "making our democracy work" should be the main focus of judicial review (though his own jurisprudence is not always consistent with that theory).

In an insightful recent post, Northwestern law Professor John McGinnis takes issue with such claims:

The original Constitution, including the Bill of Rights, puts some very important rights beyond the reach of a representative federal government. The Fourteenth Amendment adds other important rights and puts them beyond the reach of state governments as well. Thus, it is hard to say as a general matter that the Constitution should be interpreted to advance representative government or to advance specified rights.

Some have argued, most famously John Hart Ely, that most of the rights provisions in the Constitution are democracy reinforcing, thus suggesting that democracy is the key concept for interpreting the Constitution. I do not believe this claim is right as matter of original understanding. Free speech is surely conducive to representative government. However, that does not mean it was meant to be instrument of it, rather than a protection of an individual right, as I have argued elsewhere. Free speech also appears in an amendment with the right of free exercise of religion, which is not democracy reinforcing but individually empowering. And other rights in the Constitution, like those guaranteed by the Contract Clause in the original Constitution and the Privileges or Immunities Clause in the 14th Amendment, protect rights that cannot be understood as designed to reinforce rather than to restrict democracy.

The danger of using democracy as a structural principle is that it will become a weapon to limit constitutional rights. Both right and left fall into this trap. Robert Bork used the democratic principle to limit the reach of the First Amendment to political speech. Liberal Supreme Courts justices today claim that considerations of democracy now can be used even to limit political speech. For similar reasons, the contentious question of judicial deference versus engagement cannot be resolved by appeals to democracy, even if it can settled in other ways, as I have discussed here.

In the same post, John also includes a helpful explanation of why the Constitution's guarantee of a "republican" form of government to the states should not be interpreted as a commitment to broad-ranging majoritarian democracy.

John's list of constitutional rights that constrain democracy at least as much as they reinforce it can easily be extended: the property rights protected by the Takings Clause, the Eighth Amendment's ban on "cruel and unusual punishment," various procedural rights for criminal defendants, Second Amendment protections for the right to bear arms, and a variety of restrictions on racial, ethnic, and religious discrimination that may be (and historically often have been) supported by democratic majorities. In addition to individual rights, a number of structural elements of the Constitution restrict majoritarian democracy, as well. The unequal apportionment of the Senate is an obvious example. Federalism may be another, in so far as it restricts the power of national majorities (though it also in many instances helps empower state-level majorities).

Conservative originalists who seek to defend originalism by reference to democracy are barking up the wrong tree, in so far as much of the original meaning actually restricts democracy, and in many cases was intended to do so by the Founders. This contradiction was a central flaw in Robert Bork's constitutional theory.

Living constitutionalists face fewer unavoidable contradictions in advocating a democracy-centric approach to constitutional law. But those who are political liberals must reckon with the fact that many of the court decisions, legal doctrines, and political institutions advocated by liberals are themselves at odds with such an approach. It's hard to argue that democracy is the central value of constitutional law, and simultaneously support decisions like Roe v. Wade, Obergefell v. Hodges, or even Brown v. Board of Education. All of these rulings—and many others like them—struck down legislation favored by democratic majorities for the (often-justified) reason that they violated individual rights that had, at most, only a very limited connection to democratic participation. While there is a non-trivial "democracy-reinforcement" justification of Brown based on the fact that African-Americans were not allowed to vote in most of the states that practiced school segregation, several key aspects of the decision are best understood as constraints on democratic majorities, not vindications of their power.

While the Constitution does empower democratic majorities in some areas, it also puts many constraints on them in order to protect individual rights, and mitigate the dangers of widespread voter ignorance and prejudice (a problem that was a major concern of many of the Founders). Countering these threats is, if anything, even more pressing in an era of resurgent demagogues exploiting political ignorance beyond previous limits, and growing partisan bias.

To adapt Nancy MacLean's now-infamous formulation, one of the purposes of the Constitution is to weigh down democracy with some chains. But despite MacLean's badly flawed attempt to paint this idea as some kind of pernicious aberration spread by radical libertarians supposedly committed to plutocracy, this is in fact a longstanding core element of liberal constitutionalism. As Thomas Jefferson put it, writing in protest of the democratically enacted Alien and Sedition Acts, "[i]n questions of power,… let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." Jefferson didn't always live up to his own principles in that regard. But he was right nonetheless.

Admittedly, the term "democratic" is sometimes used as just a kind of synonym for "good" or "just," rather than in the more narrow sense of referring to governance by majoritarian political institutions. By that standard, such policies as school segregation, cruel punishments, and laws banning same-sex marriage are inherently "undemocratic," no matter how much political support they enjoy. Whatever the linguistic merits of this usage, it is not analytically helpful. If anything good is by definition also democratic and anything democratic is by definition also good, then democracy ceases to be a useful concept for constitutional theory, or any other type of intellectually serious analysis. Instead of saying that the Constitution is focused on promoting democracy, we could simply say that the purpose of the Constitution is to promote good and minimize evil. That may be true, in a sense, but it provides little if any useful guidance on any specific constitutional issues.

NPR (Anya Kamenetz) reports:

This spring the U.S. Education Department reported that in the 2015-2016 school year, "nearly 240 schools … reported at least 1 incident involving a school-related shooting." The number is far higher than most other estimates.

But NPR reached out to every one of those schools repeatedly over the course of three months and found that more than two-thirds of these reported incidents never happened….

We were able to confirm just 11 reported incidents, either directly with schools or through media reports.

In 161 cases, schools or districts attested that no incident took place or couldn't confirm one. In at least four cases, we found, something did happen, but it didn't meet the government's parameters for a shooting. About a quarter of schools didn't respond to our inquiries.

The Education Department report is based on surveys returned by schools, apparently without any real checking, and some of the source data seems to have been badly wrong:

[The survey] reports 26 shootings within the Ventura Unified School District in Southern California.

"I think someone pushed the wrong button," said Jeff Davis, an assistant superintendent there. The outgoing superintendent, Joe Richards, "has been here for almost 30 years and he doesn't remember any shooting," Davis added. "We are in this weird vortex of what's on this screen and what reality is."

Likewise, 37 incidents were listed for the Cleveland school district, but apparently "37 schools reported 'possession of a knife or a firearm,' which is the previous question on the form." "The number 37, then, was apparently entered on the wrong line." A reminder of how cautious we should be in evaluating data, even data reported by seemingly authoritative federal agencies.

Here is Professor Paul J. Zwier's account of how the N-word came up in class:

It was getting towards the end of a Torts class on topic of offensive battery. As you may remember from your first year Torts class, offensive battery allows for extending the definition of contact beyond the person, to things immediately connected to the person. We were discussing the case, Fisher v. Carrousel Motor Hotel, Inc., which involved (P), Fisher, a black man. The court describes Fisher as a mathematician and NASA employee. I'd wondered aloud with the class whether the court was showing its implicit racism to highlight Fisher's profession and employer as if to say he was entitled to respect, while others blacks may not be. The incident occurred in the mid 1960s in Houston at a luncheon, to which Fisher had been invited. Fisher had confirmed his attendance so the sponsors knew he would be there. The lunch took place in the hotel. The white manager of the hotel (D) approached Fisher. The case says, "As Fisher was about to be served, he was approached by Flynn, who snatched the plate from Fisher's hand and shouted that he, a Negro, could not be served in the club." Flynn died before trial. Fisher was never cross-examined, so I have often wondered whether he said something stronger. The question is which "N word" was used, not that an "N word" was not used. Perhaps this was in my mind as I continued my dialogue with the student.

The student who I called on for the case is a black female student with the last name [A name]. I started the class calling on students with last names starting with the letter C. I had then decided to go to the front of the alphabet for the next group of students to call on. In asking Ms. [A name] about more facts in the case some students reported to me later that I asked whether Flynn called Fisher a n….. when he slapped the plate from his hand. To the best of my recollection she answered yes. She may have been too startled by the question to have been answering consciously. I'm not sure whether I used the "N word" because I don't remember consciously choosing to use the word. I do remember that there was a reaction from at least one black student to my question, so I may have misspoken. I wondered to myself after class when it was brought to my attention, whether I had mispronounced negro, or said something else. My intent was to eventually raise the racist slur as a possibility to set up the case we would read in the next week, where the "N word" was used again. I admit that had I used the "N word" this was a mistake on my part and I have no doubt hurt and offended students who heard it or later learned that I had used the word itself. I apologized the next morning. BLSA representatives were present in the classroom.

I do know that the "N word" was used in a following case that we would have discussed on Tuesday. In Caldor Inc., v. Bowden, (1993)(p. 64 in the casebook) a young black man is detained for hours by white security guards intent on getting him to confess that he stole from his employer. During the course of that detention (P) (Bowden) says that the security guard says, [as appears in the text] " You people—you n_____ boys make me sick, but you're going to burn for this, you sucker." (p. 66). In other words, it might be that this case was on my mind from the last time I taught it, and it is the source of my having thought that the word was also used in Fisher. In any event, the use of the word was not gratuitous. Nor was I trying to surprise the class or make it more provocative. The "N word" is an important part of the discussion of offensive battery and intentional infliction of emotional distress.

I think it's fair to say that assuming Professor Zwier did indeed use the word, he messed up. One can legitimately debate whether it's appropriate to use such harsh language for pedagolical purposes. The "for" case is that if you ask students, say, whether a particular insult should be considered tortious (i.e., creates civil legal liability), the visceral reaction students have to a nasty epithet helps make the point of why some may think that such hate speech should be tortious. The counter-argument is that the word should simply be taboo, because all the baggage it carries with it means that it risks offending and distracting students sufficiently to interfere with the educational process. Regardless of how one comes out on that debate, one can understand why students would be especially upset when a professor suddenly uses the word when discussing a case when the word was never used in the case, and when questioning a African-American student to boot.

The question then is what to do about it. What Emory at the university level did about it was to quickly condemn Zwier's use of word and initiate an investigation by the Office of Equity and Inclusion. At the law school level, Interim Law School Dean James B. Hughes Jr. re-assigned Zwier's classes to another instructor pending the investigation results.

To my mind, a sincere apology from Prof. Zwier should suffice (whether the specific apology in his link to his explanation above is sufficient I leave to the reader), and Emory's actions are an overreaction, and a counter-productive one at that. I think the reaction would be justified if Zwier had directed a racial epithet at a student. But in this case, he only asked about the use of the epithet in the underlying facts of a case, not to insult or harass anyone.

Law school teaching being what it is, with lots of back and forth and unscripted moments, and the professor's oft-felt need to play a Socratic Devil's Advocate when no student is willing to argue one side of a case, over the course of one's career it's likely that most professors, particularly those who teach controversial subject matter involving race, sex, gay rights, etc., will say something deemed offensive, reasonably or otherwise, by students. So the question is what to do about such situations institutionally when students complain. In this case, the professor's class was at least temporarily taken away from him, and he is now being investigated by the equity office. In such cases, the investigation tends to be its own punishment regardless of the ultimate result.

The reason this is problematic, putting aside the issue of whether Zwier's contractual academic freedom rights have been violated, is that the natural reaction by professors to cases like this is to avoid assigning materials and discussing in class issues of race, sex, sexuality, etc. Why risk saying something stupid over the course of decades and having your reputation pilloried, your job at risk, etc? Already, I know many Evidence professors avoid discussing the rules regarding prior sexual conduct for just that reason. Judging by my Facebook feed, Emory's reaction in this case is causing a lot of professors to question whether they should modify their law and history classes to reduce their exposure to student claims of offense.

If one cares about improving how society treats issues of race, sex, etc., one certainly wants such issues to be discussed in law school classes and other academic venues. The administrators' reactions in case like the Emory one will simply incentivize everyone to avoid these issues.

And let's be clear: the Emory situation does not appear to be one in which the professor was targeting any student or students, intending to insult any class or group, nor in which the professor is a known repeat offender of engaging in needlessly provocative or inflammatory language. My reaction to such circumstances would be different. In this case, while I understand that Emory wants to send a signal that it takes equity issues very seriously, I think Emory is engaging in a counter-productive overreaction, one that will result in a measurable decline in the willingness of professors, especially at Emory, to wade into important but controversial topics.

NOTE: I think an incomplete version of this post was published by accident. This is the correct, final version.

UPDATE: It's only fair to point out that (in part thanks to the work of our own Sasha Volokh), Emory gets a green light for free speech from FIRE, so the university's general recent record is good.

President Trump Tweeted this morning:

Google search results for "Trump News" shows only the viewing/reporting of Fake News Media. In other words, they have it RIGGED, for me & others, so that almost all stories & news is BAD. Fake CNN is prominent. Republican/Conservative & Fair Media is shut out. Illegal? 96% of….

….results on "Trump News" are from National Left-Wing Media, very dangerous. Google & others are suppressing voices of Conservatives and hiding information and news that is good. They are controlling what we can & cannot see. This is a very serious situation-will be addressed!

Rebecca Morin (Politico) adds:

[White House economic adviser Larry Kudlow] was asked Tuesday during a brief exchange with reporters whether the Trump administration feels that "there needs to be some form of regulation for Google."

"We'll let you know. We're taking a look at it," Kudlow replied as he walked back into the White House after a TV interview with Fox News.

In 2012, Google commissioned me to co-write a White Paper arguing for First Amendment protection for search engine results; naturally, I spoke there as a lawyer for Google and not as an impartial academic, but I hope our readers would find its arguments interesting in any event. Here is the Introduction, though of course it isn't intended to be persuasive on its own — the supporting arguments are in the rest of the paper:

Once, the leading sources to which people turned for useful information were newspapers, guidebooks, and encyclopedias. Today, these sources also include search engine results, which people use (along with other sources) to learn about news, local institutions, products, services, and many other matters. Then and now, the First Amendment has protected all these forms of speech from government attempts to regulate what they present or how they present it. And this First Amendment protection has applied even when the regulations were motivated by a concern about what some people see as "fairness."

Google, Microsoft's Bing, Yahoo! Search, and other search engines are speakers. First, they sometimes convey information that the search engine company has itself prepared or compiled (such as information about places appearing in Google Places). Second, they direct users to material created by others, by referencing the titles of Web pages that the search engines judge to be most responsive to the query, coupled with short excerpts from each page. Such reporting about others' speech is itself constitutionally protected speech.

Third, and most valuably, search engines select and sort the results in a way that is aimed at giving users what the search engine companies see as the most helpful and useful information. (That is how each search engine company tries to keep users coming back to it rather than to its competitors.) This selection and sorting is a mix of science and art: It uses sophisticated computerized algorithms, but those algorithms themselves inherently incorporate the search engine company engineers' judgments about what material users are most likely to find responsive to their queries.

In this respect, each search engine's editorial judgment is much like many other familiar editorial judgments:

newspapers' daily judgments about which wire service stories to run, and whether they are to go "above the fold";
newspapers' periodic judgments about which op-ed columnists, lifestyle columnists, business columnists, or consumer product columnists are worth carrying regularly, and where their columns are to be placed;
guidebooks' judgments about which local attractions, museums, stores, and restaurants to mention, and how prominently to mention them;
the judgment of sites such as DrudgeReport.com about which stories to link to, and in what order to list them.

All these speakers must decide: Out of the thousands of possible items that could be included, which to include, and how to arrange those that are included? Such editorial judgments may differ in certain ways: For example, a newspaper also includes the materials that its editors have selected and arranged, while the speech of DrudgeReport.com or a search engine consists almost entirely of the selected and arranged links to others' material. But the judgments are all, at their core, editorial judgments about what users are likely to find interesting and valuable. And all these exercises of editorial judgment are fully protected by the First Amendment.

That is so even when a newspaper simply makes the judgment to cover some particular subject matter: For instance, when many newspapers published TV listings, they were free to choose to do so without regard to whether this choice undermined the market for TV Guide. Likewise, search engines are free to include and highlight their own listings of (for example) local review pages even though Yelp might prefer that the search engines instead rank Yelp's information higher. And this First Amendment protection is even more clearly present when a speaker, such as Google, makes not just the one include-or-not editorial judgment, but rather many judgments about how to design the algorithms that produce and rank search results that — in Google's opinion — are likely to be most useful to users.

Of course, search engines produce and deliver their speech through a different technology than that traditionally used for newspapers and books. The information has become much easier for readers to access, much more customized to the user's interests, and much easier for readers to act on. The speech is thus now even more valuable to customers than it was before. But the freedom to distribute, select, and arrange such speech remains the same.

We will discuss this in detail below, both as to the First Amendment generally (Part III) and as to the intersection of First Amendment law and antitrust law (Part IV). We focus in this submission on Google search results for which no payment has been made to Google, because they have been the subject of recent debates; we do not discuss, for instance, the ads that Google often displays at the top or on the right-hand side of the search results page.

You can also have a look at Zhang v. Baudi.com, a 2014 federal district court case that offers a similar analysis, and that, I'm pleased to say, cites our paper.

Free Speech

Senator Ron Wyden (Co-Author of § 230) Trying to Pressure Internet Companies to Restrict "Indecent" Ideas?

That's how I read his item last week in TechCrunch, which warns Internet companies that this might happen if they "fail to understand one simple principle: that an individual endorsing (or denying) the extermination of millions of people, or attacking the victims of horrific crimes or the parents of murdered children, is far more indecent than an individual posting pornography."

Eugene Volokh | 8.28.2018 10:36 AM

Here's Wyden's post (emphasis added):

I wrote the law that allows sites to be unfettered free speech marketplaces. I wrote that same law, Section 230 of the Communications Decency Act, to provide vital protections to sites that didn't want to host the most unsavory forms of expression. The goal was to protect the unique ability of the internet to be the proverbial marketplace of ideas while ensuring that mainstream sites could reflect the ethics of society as a whole.

In general, this has been a success — with one glaring exception. I never expected that internet CEOs would fail to understand one simple principle: that an individual endorsing (or denying) the extermination of millions of people, or attacking the victims of horrific crimes or the parents of murdered children, is far more indecent than an individual posting pornography.

If you want to be the CEO of an internet titan where schools communicate with students, artists with their fans or elected officials with their constituents, you need to limit content like pornography — and they all do. But for some reason, these CEOs think it's entirely appropriate to allow these other forms of indecency to live on their platforms. Their ineptitude is threatening the very legal foundation of social media.

Social media cannot exist without the legal protections of Section 230. That protection is not constitutional, it's statutory. Failure by the companies to properly understand the premise of the law is the beginning of the end of the protections it provides. I say this because their failures are making it increasingly difficult for me to protect Section 230 in Congress. Members across the spectrum, including far-right House and Senate leaders, are agitating for government regulation of internet platforms. Even if government doesn't take the dangerous step of regulating speech, just eliminating the 230 protections is enough to have a dramatic, chilling effect on expression across the internet.

Were Twitter to lose the protections I wrote into law, within 24 hours its potential liabilities would be many multiples of its assets and its stock would be worthless. The same for Facebook and any other social media site. Boards of directors should have taken action long before now against CEOs who refuse to recognize this threat to their business.

It's telling that Reddit, of all the social media sites, has been on the forefront of striking a balance — telling because they're the only site owned by a traditional pre-internet corporation. This balance is not the one I would have chosen — and certainly there have been missteps and failures — but an average user of Reddit won't encounter the extremes of obscenity and indecency that it allows in darker corners of the site. And even they have defined certain speech as too indecent to be permitted on their platform.

There are real consequences to social media hosting radically indecent speech, and those consequences are looming. They are threatening to undo more than 20 years of internet law and jurisprudence that has protected speech and expression as never before. The forces of government regulation and control never sleep. Unfortunately, the internet CEOs have been asleep at the wheel.

One common argument in support of indecency regulations is that they merely restrict certain modes of expression, and leave people entirely free to express whatever ideas they like; as Justice Stevens put it, defending the indecency restriction in FCC v. Pacifica, "Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas." One common response is that indecency bans do restrict ideas (as Justice Brennan argued in the Pacifica dissent) or can easily morph into restrictions on ideas, especially given the vagueness of the term "indecency." Senator Wyden's broad definition of "indecency"—which labels entire categories of ideas and arguments as "indecent," and of course contemplates not just privately chosen action, but action taken for fear of greater governmental regulation—seems to support that critique of indecency restrictions.

For readers who may be interested, here is a list of my upcoming speaking engagements from September through November. Unless otherwise noted, they are free and open to the public. I may add to this list, if new events come up.

August 31, American Political Science Association Annual Meeting, Boston, MA, 2-3:30 PM: "Reflections on Democracy and Political Ignorance," Panel on "Democracy and Libertarianism: Friends or Foes?" Other panelists include Jacob Levy (McGill University), John Samples (Cato Institute), and Philip Wallach (R Street Institute). This panel is likely to be open only to APSA conference participants, and accredited media.

September 2, American Political Science Association Annual Meeting, Boston, MA, 8-9:30 AM: "Federalism Under Trump," panel on "Trump: Is He Good or Bad for America's Federal System?" Other participants include John Dinan (Wake Forest/Editor of Publius: the Journal of Federalism), Daphne Kenyon (Lincoln Institute of Land Policy), John Kincaid (Lafayette College), Troy Smith (BYU Hawaii), and Carol Weissert (Florida State University). This panel is likely to be open only to APSA conference participants, and accredited media.

September 17, Constitution Day Conference, Utah Valley University, Orem, UT, 10:45-12:15 AM: "Foot Voting and the Evolution of American Federalism," Panel on "The Evolution of American Federalism." Other participants include Rodney Smith (University of Sydney, Australia) and Lance Sorenson (Fellow, Stanford Law School).

September 27, Univ. of California, Berkeley, School of Law, Berkeley, CA, 12-1 PM: "Democracy and Political Ignorance: Why Smaller Government is Smarter." Sponsored by the Berkeley Federalist Society.

September 28, Univ. of California, Berkeley, 12-3 PM: "Foot Voting vs. Ballot Box Voting: Why Voting With Your Feet is Crucial to Political Freedom," Berkeley Kadish Center Workshop in Law, Philosophy, and Political Theory. This presentation is primarily intended for participants in the workshop, and Berkeley faculty and students.

October 5, Georgia State University, College of Law, Conference on Justice Anthony Kennedy and his legacy, Atlanta, GA, 8:45-10:45 AM: "Kennedy on Federalism and Separation of Powers," Panel on Federalism and Separation of Powers. Other participants include Steve Griffin (Tulane) and Neil Kinkopf (Case Western). Participants in other panels at the conference include Mark Tushnet (Harvard), Jamal Greene (Columbia), Adam Liptak (New York Times), Pamela Karlan (Stanford), and VC bloggers Jonathan Adler, Eugene Volokh, and Sasha Volokh, among others.

October 13, Michigan State University, Lansing, MI, 9-10:45 AM: "Rethinking the Constitutional Scope of Federal Power Over Immigration," conference on "A 21st Century Immigration Policy for the West."

October 31, Wisconsin Judicial Conference, Lake Geneva, WI, 1:15-2:30: "The Continuing Relevance of the Federalists' View of Federalism" (tentative title), panel on "Who Cares What the Federalist Papers Say?" The other panelists are Alison LaCroix (University of Chicago) and Sanford Levinson (University of Texas). This panel is, I believe, restricted to judges and other participants in the Wisconsin Judicial Conference.

November 7, Villanova Law University, Charles Widger School of Law, Philadelphia, PA. "Why the Supreme Court got the Travel Ban Decision Wrong," 12-1 PM. Sponsored by the Villanova Federalist Society.

Free Speech

Rutgers Says: Professors' Facebook Opinions Can Be Punished for Disrupting "the University's Core Function of Educating a Diverse Student Body"

Prof. James Livingston (white himself) said he "hate[s] white people" -- but Rutgers' reasoning would equally punish professors who express a wide range of views that offend people with a particular religion, sexual orientation, gender identity, and the like.

Eugene Volokh | 8.27.2018 5:58 PM

James Livingston, a professor at Rutgers (the state university of New Jersey), put up a Facebook comment:

OK, officially, I now hate white people. I am a white people, for God's sake, but can we keep them–us–us out of my neighborhood? I just went to Harlem Shake on 124 and Lenox for a Classic burger to go, that would my dinner, and the place is overrun with little Caucasian assholes who know their parents will approve of anything they do. Slide around the floor, you little shithead, sing loudly, you unlikely moron. Do what you want, nobody here is gonna restrict your right to be white.

I hereby resign from my race. Fuck these people. Yea, I know, it's about access to my dinner. Fuck you, too.

After Facebook removed the post for violating its Community Standards, he followed up with:

I don't get the FB threat thing against me because as far as I can tell, my page is intact, including my earnest, angry, and ridiculous resignation from the white race. As if I could! Calling Noel Ignatiev. Who am I kidding? The FB algortihm conjoins the words "race" and "hate" and designates the origin, which would be me, as a problem. OK, God knows I am. But not in this regard. I just don't want little Caucasians overrunning my life, as they did last night. Please God, remand them to the suburbs, where they and their parents can colonize every restaurant, all the while pretending that the idiotic indulgence of their privilege signifies cosmpololitan–you know, as in sophisticated "European"–commitments.

Rutgers received many complaints about this, and earlier this month affirmed the decision (by the Director of the Office of Employment Equity, Lisa Grosskreutz) that this speech violated the University's Policy Prohibiting Discrimination and Harassment, and was unprotected by the First Amendment. Livingston now faces possible disciplinary action.

As our readers may gather, I find nothing redeeming in Livingston's racist, vulgar rant, or in his fashionable but ridiculous attempt (which Rutgers rightly rejected) to redefine "racism" to exclude contempt and hatred for whites, or at least for whites that don't behave the way he thinks whites should behave. Many people I know and admire take the view—which I don't share, but which many decent people do adopt—that race-based affirmative action is a permissible, non-racist form of "benign" race preference. But there's nothing remotely "benign" about Livingston's racial hostility.

But Rutgers' justification for punishing Livingston's speech would of course not be at all limited to such racist diatribes. Rather, the decision rests on the theory that:

"Rutgers has a core commitment to diversity, promising 'everyone joining us as a student, professor, or member of staff [that] [w]e at Rutgers will accept you for who you are. That promise of inclusiveness is the foundation of our strength as an academic institution. We believe that bringing diverse groups together into an inclusive community empowers individuals and gives rise to fresh, innovative ideas.'"
"It is reasonable to predict that the university's core function of educating a diverse student body may be disrupted by Professor Livingston's public statements."
Public reports of Livingston's speech "have inflicted reputational damage on the university" and on Livingston's department.
"Given Professor Livingston's insistence on making disparaging racial comments, a reasonable student may have concerns that he or she would be stigmatized in his classes because of his or her race."

Yet nothing in this reasoning is limited to rants, to vulgarisms, to literal expressions of hatred, or even to race. The Rutgers policy equally applies to "religion, … national origin, ancestry, age, sex, sexual orientation, pregnancy, gender identity and expression, disability, genetic information, atypical hereditary cellular or blood trait, marital status, civil union status, domestic partnership status, military service, veteran status, and any other category protected by law."

Think how much speech can be said by the university to potentially "disrupt[]" the university's "educating a diverse student body," or "inflict[] reputational damage," or make some students feel "stigmatized"; just to offer a few examples,

Speech that sharply criticizes particular denominations of Islam—or Scientology or Catholicism.
Speech that argues that homosexuality is immoral or against God's plan.
Speech that argues that transgender identity is a form of mental illness that should be treated through means other than accommodating it.
Speech that argues that military service is complicity in murder.
Speech that sharply condemns Israelis or Palestinians.
Speech that argues that women tend to be biologically worse than men at various tasks (or vice versa).
Speech that argues that particular genetic traits lead to violence or low intelligence or what have you.
Likely speech that sharply condemns liberal Democrats or conservative Republicans or Socialists or Libertarians; because Rutgers is a public university, and public universities are generally barred by the First Amendment from discriminating based on political belief, the "any other category protected by law" likely includes political belief as well as religious belief; see, e.g., this Rutgers Sociology Department statement.

Nor would this be limited to speech that overtly expresses hatred. After all, people can feel "stigmatized" for messages that characterize them as foolish (e.g., "Scientologists are either dupes or frauds") or immoral (e.g., "Conservative Islam/Judaism/Christianity is sexist") or mentally ill (as with some arguments about transgender identity) or inferior in certain ways (as with some arguments about alleged biological sex or race differences), and not just those that start with "I hate …."

The report argues that government employee speech can be punished, despite the First Amendment, when it seems likely to cause sufficient disruption. But, first, even if the First Amendment allows university professors to be disciplined (or even fired) on these grounds, that doesn't mean it's a good idea for universities to adopt such a rule. Perhaps a professor's sharp criticism of certain religious ideologies, for instance, might alienate some students, or might cause loss of donations. But supressing speech on that basis would itself sharply disrupt the universities as places where people have to be free to discuss controversial, even offensive, ideas—and, as I said, the universities' rationale would apply to serious discussion of ideas and not just insults such as Livingston's.

Second, federal courts have recognized that the First Amendment protects even racially offensive speech by university professors, precisely because universities are supposed to be places where controversial views are allowed. Indeed, in Levin v. Harleston (2d Cir. 1992), a federal appeals court upheld a professor's First Amendment rights to express "denigrating comments concerning the intelligence and social characteristics of blacks" (there, in a book review, a letter to an academic journal, and a letter to the New York Times). What's more, the court held that even the modest reaction by the university there—"creat[ing] an "alternative" section of [the course that Prof. Levin taught] for those of Levin's students who might want to transfer out of his class"—was unconstitutional. Again, Levin's speech was more substantive than Livingston's, and not vulgar; but it certainly expressed views that many blacks would understandably find offensive. Yet it was still found to be constitutionally protected. See also Rodriguez v. Maricopa County Community College Dist. (9th Cir. 2010) (reaffirming that "[t]he desire to maintain a sedate academic environment … [does not] justify limitations on a teacher's freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms," even in a case involving racist speech by a faculty member, such as that "[t]he only immigration reform imperative is preservation of White majority").

The Rutgers decision cited a different appellate opinion, Jeffries v. Harleston (2d Cir. 1995), but that case involved the decision whether an administrator—a department chair—could be removed from his administrative position because of his anti-Semitic speech, while still keeping his faculty position without any disciplinary repercussions. The court said yes, precisely because this only had to do with the administrative role:

Finally, we note that an amicus curiae argues that we should not apply Waters at all because Jeffries, as a faculty member in a public university, deserves greater protection from state interference with his speech than did the nurse in Waters who complained about the obstetrics division of the hospital. We recognize that academic freedom is an important First Amendment concern. See, e.g., Keyishian v. Board of Regents (1967) ("The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."). Jeffries' academic freedom, however, has not been infringed here. As we held in the earlier Jeffries, and as Jeffries himself has argued, the position of department chair at CUNY is ministerial, and provides no greater public contact than an ordinary professorship. Jeffries is still a tenured professor at CUNY, and the defendants have not sought to silence him, or otherwise limit his access to the "marketplace of ideas" in the classroom.

And this makes sense: Administrators are appointed to their jobs not to themselves advance knowledge through their own research and public commentary, but rather to make the institution run more smoothly. If they make the institution run less smoothy, they can be moved back out of the administrative position for a variety of reasons—including that their administrative phiolosophy is inconsistent with that of their superiors, that their colleagues just don't like them and don't want to deal with them, and that their public statements (whether having to do with race, religion, politics, educational philosophy, or anything else) alienate prospective faculty members, donors, students, and the like. Yet it doesn't follow that faculty members should be fired or demoted because of such disapproval.

Finally, Rutgers' President had issued an express statement reaffirming faculty members' free speech rights (emphasis added):

Our University policy on speech is clear. All members of our community enjoy the rights of free expression guaranteed by the First Amendment. Faculty members, as private citizens, enjoy the same freedoms of speech and expression as any private citizen and shall be free from institutional discipline in the exercise of these rights. In addition, they also enjoy academic freedom of expression when functioning in their roles as faculty members. In all cases, however, the conduct of a faculty member must be in accordance with standards dictated by law.

This means that the university indeed has renounced any possible right to suppress faculty speech (at least outside-class speech, said in their capacity "as private citizens") on the theory that its content runs against the university's mission. Just as the "freedom[] of speech" of "any private citizen" allows him to post items saying that he hates whites (or disapproves of conservative Islam, or thinks homosexuality is immoral), so a "[f]aculty member[]" has "the same freedom[]" "and shall be free from institutional discipline in the exercise of [this] right[]." That, the President said, was "clear."

Rutgers' decision in the Livingston case directly contradicts this clear policy. After quoting the "same freedom[] of speech" passage, the decision argues,

The university does, however, demand that the conduct of a faculty member "be in accordance with standards dictated by law." Moreover, the First Amendment generally affords a public employer substantial latitude to discipline employees for speech, including speech via social media platforms. Indeed, constitutional protection only applies to statements that satisfy a three-prong test, discussed below [under which the employee's interest in free expression must outweigh the government's interest in efficient and effective provision of services].

But this is saying that faculty members do not enjoy the same freedoms of speech as any private citizen, and are not free from institutional discipline in the exercise of these rights—instead, faculty members are to be judged under the special First Amendment rule that gives the government more power over its employees than over private citizens. That is not consistent with the President's statement. (Properly read, the President's reference to "standards dictated by law" must refer to standards set forth equally for all people, private citizens as well as faculty members, such as bans on speech that constitutes a true threat of violence, or on speech that knowingly or recklessly libels people.)

[* * *]

It's often tempting in such cases to focus just on the particular speech involved in that case. But decisions, whether by courts or by university administrators, don't just resolve a particular case—they also endorse principles that, in a system built on precedent and analogy, will be used in future cases. And, even more importantly, such decisions prevent cases from happening, by sending people a message that they had best avoid certain kinds of behavior.

Here, we have a tenured faculty member being threatened with punishment; the message will be heard loud and clear by other faculty members, but especially by juniors who aren't yet tenured. It will be heard by postdocs and graduate students who are even lower in the university hierarchy. It will also be heard by students in their capacity as students; formally, there might be more protection for students against administrative discipline than for employees, including faculty, but practically how likely is that?

And what they'll hear is not just "don't express overt hatred" or "don't call people shitheads because of their race"; rather, they'll grasp that the logic extends to any speech that the university sees as potentially "disrupt[ive]" or "stigmatiz[ing]" because it interferes with the university's "core commitment to diversity." A dangerous message, which Rutgers is quite deliberately sending.

The Volokh Conspiracy

Washington Post Symposium on Brett Kavanaugh's Jurisprudence

The Post has a symposium in which a a variety of legal commentators (myself included) discuss what they consider to be Judge Kavanaugh's most important opinions.

Judge Willett Questions Qualified Immunity

In a concurring opinion, Fifth Circuit Judge Don Willett expresses concern about the " kudzu-like creep of the modern immunity regime."

Walmart Illegally Discriminated Against 18-to-20-Year-Old Gun Buyer, Oregon Antidiscrimination Agency Alleges

Oregon is one of a handful states that bans age discrimination against 18-to-20-year-olds by places of public accommodation.

Short Circuit: A Roundup of Recent Federal Court Decisions

Drop drippers, solitary confinement, and hawks v. eagles.

Protective Orders, Due Process, and the Second Amendment

"While not a criminal matter, an order of protection exposes a respondent to an array of restrictions, including severe limitations on his or her Second Amendment rights. A respondent deserves a meaningful due process opportunity to present his or her case."

Arizona Supreme Court Rejects Proposed Lawyer Speech Code (Rule 8.4(g))

Things I Hate About the Constitution

Legal scholars are often accused of claiming that the Constitution fits their political views. Here are several important issues where it doesn't fit mine.

Liberty Is Not the Central Value of the Constitution, Either

The Constitution embodies many values; I'm skeptical that any one of them is "the central" one.

"Adornments on Judicial Robes and 'Safe Place' Signs at Courthouses"

An interesting Arizona Supreme Court Judicial Ethics Advisory Committee opinion.

Are All Transgender People Born that Way?

One Brown University researcher thinks "maybe not" and got thrown under the bus for it by the university.

Another "Stop Talking About Him" Court Order, This One Obtained by Convicted Securities Fraudster

Tracy Zona was ordered to "remove forthwith, all references to petitioner the family and legal representatives and make no further posting in re of any kind"; she was then ordered to spend five days in jail unless she removed the posts (which she did).

Democracy Is Not the Central Value of the Constitution

Efforts on both right and left to make the democracy-promotion the key focus of constitutional law should be rejected.

Did the Education Department Badly Err in Its Count of Shootings at Schools?

An illustration, it seems, of how badly statistics can go wrong (and of the principle "Garbage In, Garbage Out").

Emory University and Law School React Badly When a Law Professor Says the "N-Word" in Class

President Trump Says "Google Search Results" are "RIGGED," "a Very Serious Situation" That "Will Be Addressed"

But would the First Amendment allow Congress to regulate search results?

Senator Ron Wyden (Co-Author of § 230) Trying to Pressure Internet Companies to Restrict "Indecent" Ideas?

My Upcoming Speaking Engagements

My upcoming speaking engagements through November of this year. Most are free and open to the public.

Rutgers Says: Professors' Facebook Opinions Can Be Punished for Disrupting "the University's Core Function of Educating a Diverse Student Body"

Prof. James Livingston (white himself) said he "hate[s] white people" -- but Rutgers' reasoning would equally punish professors who express a wide range of views that offend people with a particular religion, sexual orientation, gender identity, and the like.

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