The Volokh Conspiracy

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Free Speech

"Snowflakes All Around"?

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From the Eleventh Circuit panel decision allowing a First Amendment claim based on Univ. of Central Florida's "bias-related incidents policy" to proceed:

There is, we observe, a certain irony in the facts (1) that UCF created the JKRT [Just Knights Response Team] to address situations in which students felt intimidated or marginalized and (2) that now, Speech First's members claim to have been intimidated and marginalized by the JKRT—"kind of like … snowflakes all around." Oral Arg. at 10:10–10:51. We asked Speech First's lawyer at oral argument why everyone shouldn't just "put on their big boy and big girl pants" and deal with some adversity.

His answer, we think, captures a valid distinction: "The state is a really big boy." The University—i.e., the state—can far more easily intimidate, and thereby objectively chill, college students than can those students' peers. And objective chill is the standard.

NEXT: Challenge to Univ. of Central Florida's "Bias-Related Incidents" Policy Can Go Forward

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  1. 10 internet cookies to that lawyer. If there wasn't an actual court record he'd actually had that come back ready to go, that's the kind of perfect timing that would normally be a dead give away for "shit that didn't happen".

    1. Time to stop talking about woke, a masking ideology for the criticism of our country by the Chinese Commie Party. Time to act about woke. Revoke the tax exemptions, the government subsidies, grants, and accreditation of these woke treason indoctrination camps. Then, because they promised to deliver education and delivered indoctrination, prosecute them for tax fraud. Seize their assets in civil forfeiture. To deter.

    2. My thought too. Maybe the expression "big girl pants" appeared somewhere in the briefs or the record and the lawyer was ready to answer it.

      Flashback to the Bush-Dukakis debate and Bush asking if it was time to bring out our one-liners (which his team had prepared him with just in case).

  2. Four posts on this one? It must have been quite important in the clingerverse.

    1. Artie. Resign and interview your woke replacement who must be diverse, you hypocrite, old, male, white supremacist. You are a white elitist and supremacist who needs to STFU.

    2. "Four posts on this one?"

      I actually think these could've been consolidated better...but indeed, there is nothing more important than free speech these days (and that's something being increasingly recognized among centrists and even some lefties as well).

      1. I'm so old I can remember when leftists were excited about court decisions vindicating the free-expression rights of students at public educational institutions.

        1. Ah, the good old days. I'm amused by the desire on the left to censor opinions they agree with.

          Up through about fourth grade my family lived about a mile from Cal Berkeley and my family was openly conservative (bumper stickers and all). Needless to say, those views were not popular in that area at that time.

          Even then, as our car was spat on, I (perhaps 8 years old) recognized the irony of the actions of some of those protesting for "Free Speech".

          1. " I'm amused by the desire on the left to censor opinions they agree with. "

            What do you think of Republicans' book-banning spree, or a prominent right-wing law professor's remarkable change of heart with respect to government censorship (when Twitter and Facebook displease him and other conservatives by objecting to lies and bigotry)?

      2. " there is nothing more important than free speech these days "

        Around here, some free speech is more important than other free speech.

        This blog ignores plenty of free speech developments, for example, for partisan reasons; this particular development is being revisited repeatedly because the proprietor senses it may benefit and lather right-wingers.

  3. Federal law prohibits discrimination at schools, and the college made an attempt to tailor this policy to match the case-law definition of discrimination. But apparently free speech is now more important then anti-discrimination. We are seeing a disturbing trend of civil rights of the community being trampled by the rights of individuals. Same thing with SCOTUS now saying the government must fund LGBT discrimination and must fund religious schools.

    1. The Civil Rights Act had hideous, unintended consequences. The Rent Seeking lawyer seeking cases and enrichment is in denial. Prior to that lawless Act, racial disparities in social pathologies were miniscule. After it and after the War on Poverty causing the soaring in the bastardy rate, all disparities exploded.

    2. “apparently free speech is now more important th[a]n anti-discrimination.”

      I’m glad you have recognized that fact. Actionable discrimination claims almost always require more than just speech, although speech can often be used as evidence of unlawful discrimination.

    3. Communities don't have civil rights. Individuals do.

      1. "[T]he smallest minority on earth is the individual. Those who deny individual rights, cannot claim to be defenders of minorities." (Ayn Rand)

    4. But apparently free speech is now more important then anti-discrimination.

      The People decided free speech was more important than laws which may burden it. Without it, all is lost as the kleptocratic thugs you raise your eyes glowingly to will restrict it more and more, to secure their power.

      'member the good old days of the epithet, "You're a card carrying member of the ACLU!"

      Burning flags to outrage people. Legal porn sales to outrage the religious. Marching Nazis to piss off Mr. And Mrs. Middle America.

      None of it had any meaning beyond utilitarian poop-stirring of "the other side"? Sad.

      1. There can be no "balancing" of free speech against anything as hopelessly subjective as "discrimination" -- but only (reasonably) clear bright lines like defamation, threats, etc.

    5. "Federal law prohibits discrimination at schools, and the college made an attempt to tailor this policy to match the case-law definition of discrimination."

      Noting in this decision requires schools to discriminate. It just prevents them from adopting an over-broad policy that is likely to chill free speech.

      1. The policy also went far beyond what case law says constitutes discrimination based on speech.

        1. There can be no "balancing" of free speech against anything as hopelessly subjective as "discrimination" -- but only (reasonably) clear bright lines like defamation, threats, etc.

    6. Molly,
      If we eliminated all government funding of education, we'd solve all your problems:
      - the government would no longer be "engaging in discrimination at schools" by letting people say what they like on government-school premises
      - the government would no longer be "funding LGBT discrimination" by funding religious schools
      Now, when it comes to private schools, I'd let them engage in as much "discrimination" as they like. I imagine you wouldn't.

    7. "Same thing with SCOTUS now saying the government must fund LGBT discrimination"

      If you're referring to Fulton, that was 9-0 because it was about a prohibition on government discriminating AGAINST a religion (in that case, traditional Catholicism).

      Can't replace one form of bigotry/discrimination with another...

      1. " Can't replace one form of bigotry/discrimination with another... "

        Centuries of American history and the recent conduct of right-wingers vividly disprove that one.

    8. This wasn't insightful the first three times you posted it.

      Yes, free speech is indeed more important than anti-discrimination, though I'm not sure why you say "Now." Hurley v. Irish American is a 27 year old case, for instance.

    9. What in the world are you talking about?!?

      There is no "exception" to free speech for objectionable speech. People have a constitutional right to so offensive things, even to minorities. Equal protection under the law is not necessarily the same thing as anti-discrimination. If that were otherwise, affirmative action would be 100% unconstitutional.

  4. The University—i.e., the state . . .

    There would be more useful thinking about public/private legal distinctions if the nation learned to stop pretending that folks like university administrators are state policy makers. Just learn to recognize purposeful institutions, and grant those who run them like powers to do so, whether the institutions are public or private.

    Even the biggest private corporation is not a, "business policy maker," in the sense that its decision makers have power to dictate to everyone in business. Likewise, public university policy makers do not typically have power to dictate policy at other public educational institutions, let alone throughout society.

    There are state policy makers who do have that kind of power. Those granted scope to rule everyone are the ones who need the constraints which keep state power within bounds. Otherwise, the rule ought to be that what a private university dean can do, so can a public university dean.

    Generalize that to purposeful institutions of all kinds. Let the rules which best serve private organizations be taken up alike to serve public organizations, so long as such rules do not reach beyond organizational boundaries.

    1. If a "university" wishes to enforce a sectarian viewpoint, whether it be Catholicism, Islam, or Wokism, then let it drop the misleading label "university" and relabel itself a "seminary."

      1. Beyond language accuracy, they made a promise to provide education, not doctrinaire indoctrination. In return they received exemptions and subsidies. That misrepresentation is a crime, tax fraud.

      2. I guess the University of Paris (an outgrowth of the cathedral school of Notre Dame) had no right to call itself a university at the time it was founded.

    2. A government is not just another voluntary organization. It is foolish to treat it as one. A police department is also a "purposeful organization", yet I hope you see why your argument fails in that case.

    3. If universities wish to stop being constrained as state actors, there's a pretty simple solution - stop being state actors. Take the school private.

      There are lots of private schools out there. The business model works. That's a whole lot simpler solution than the distortion of the Constitution that would be necessary to erase the legal distinctions between private and public actors.

      1. ....but what about college football, Rossami!!!???!!!

        How can I root for STATE U against the terrible, horrible, nogoodnik U STATE???????

        🙂

      2. Why do opponents of public education hate America?

        Do anti-government extremists genuinely expect to persuade Americans -- especially educated, reasoning, accomplished, modern Americans -- to oppose public education?

    4. There would be more useful thinking about public/private legal distinctions if the nation learned to stop pretending that folks like university administrators are state policy makers.

      Look, another attempt by Lathrop to come out against free speech!

      You know how you always claim that publishing is a right and that the government has no power to redefine the word in such a way as to limit that right? Same here: you have no power to redefine government in such a way that government employees are not government employees.

      1. Nieporent, I do not suggest government employees are not government employees. I do insist that only a minority of government employees are state policy makers, and that university deans doing their normal jobs are not among them.

        1. Even if that were true, what does that have to do with the price of tea in China? The constitution doesn't merely prohibit the government from enacting policies that infringe on individual rights; it prohibits the government from infringing on individual rights.

          And § 1983, which implements that prohibition, applies to "any person" acting under color of law, not "state policy makers."

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