Notre Dame Professor's Lawyers Argue: Student Newspaper's Mission to Defend Notre Dame's Catholic Character Means …

that it’s probably not “‘trying to advance the public exchange of ideas’ essential to a healthy democracy.”

Prof. Tamara Kay's lawyers' response to the motion to dismiss her libel lawsuit against the Irish Rover newspaper argued that the articles about her were unprotected by the First Amendment, partly because:

[G]iven that the mission of the Irish Rover is "to articulate and defend the Catholic character of the University," it seems improbable if not impossible that in publishing the October 12 and March 22 Articles, the Irish Rover and its faculty advisors and other Notre Dame faculty were trying to advance "the public exchange of ideas" essential to a healthy democracy.

As I mentioned in an earlier post, the trial court was unimpressed, and dismissed Prof. Kay's libel claim.

Comments

[F.D. Wolf]

In order to "advance the public exchange of ideas essential to a healthy democracy", we must shut down ideas that are in opposition to ours.

Today's Orwellian left perfectly encapsulated.

Back when I was younger, one would incessantly hear that maxim attributed to Voltaire: "I may not agree with what you say, but I will defend to the death your right to say it." And, Voltaire not exactly being a conservative icon, it was always a leftist parroting it. Today, I don't think I've heard a leftist say that in at least a decade.

[Rev. Arthur L. Kirkland]

You picked the wrong blog at which to argue that the right occupies the higher plane with respect to free expression and censorship.

[Krayt]

What goes around comes around. After uncounted centuries, old school religious attitudes find themselves on the wrong side of cancellation, censorship, maybe even job discrimination, and they don't like it.

Go figure.

But it takes two to tango, and the lesson is that whoever is in power will seek to censor, as with the effort a few years back to "revisit" the Marketplace of Ideas, not to reinforce it and remind people of it, but to suggest harrassment was not a valid idea in said market, and therefore could be banned.

When all that started, I made that prediction, culminating two weeks later with a Radiolab debate where the conclusion of one side was literally that.

It wasn't conservatives who made that scurrilous attack on free speech.

[Krayt]

I wish they'd remember all this custom cake design is freedom of expression, and therefore free speech, the next time someone wants to outlaw flag burning.

[Noscitur a sociis]

A leftist literally posted it on this blog yesterday.

[Rev. Arthur L. Kirkland]

This guy seems unable to understand "superstitious bigots have rights, too."

[Bored Lawyer]

This should be on Jeopardy.

"I'll take Stupid Legal Arguments for $ 400, Alex."

[Dr. Ed 2]

The professor has no business being allowed to teach (or set foot on) a Catholic university. Not only is she double unplus good but she represents true evil as the Catholic Church defines it.

A student newspaper, itself devoutly Catholic, and in a Catholic institution, points this out. And unlike Claudine Gay, it didn't fabricate anything -- it's citations may be shoddy (or not) but it still can more or less support its allegations.

So, in addition to everything else, the professor doesn't belong there in the first place. Forget this, she should be FIRED....

[Rev. Arthur L. Kirkland]

Similarly, ostensible adults who believe fairy tales to be true and embrace silly dogma have no place on reasoning, reality-based campuses, especially with respect anything involving science.

Should a creationist be permitted to teach at a school not based on nonsense?

[Dr. Ed 2]

But the institution believes in said fairy tales, and expects (reasonably) that those accepting its pay do as well...

Don't believe in the fairy tales, don't work there...

[SimonP]

I should thank you, Mr. Ed, for providing the background to this case that Eugene neglects to mention, which is that the professor bringing this not-so-meritorious defamation claim has been subjected to a fair bit of harassment, threats, and abuse, which has had the effect of chilling free speech at ND when it comes to the topic of abortion.

I think it is interesting that Eugene and other Conspirators concerned about free speech and free inquiry in higher education spend a lot of time writing about institutional DEI efforts, diversity statements, pro-Palestinian student groups, and the like, but ignore the threat coming from the right, whether it's in the vein of official action (like legislation decreeing a particular orthodoxy in higher education) or in the nature of "inchoate" action, like wealthy donors trying to oust university presidents over their speech or mobs trying to pressure universities to fire high-profile professors who have said the wrong thing. While the First Amendment may not have much about to say about the latter, it certainly is having an alarming impact on what people feel free to say in public.

I wonder if it's always true that the people who complain the loudest about "cancel culture" are the ones most focused on making it a lived reality for their ideological opponents.

[Dr. Ed 2]

Simple Simon, if she's violating state law -- which it appears that she is -- she deserves criminal prosecution and not mere criticism.

And as to cancel culture, you will not find me defending a professor loudly shouting "kill the (RAK's favorite racial slur)" -- I'd agree that said professor should be fired. Absent extenuating circumstances that I can't conceive of right now, I wouldn't have a problem with such a professor being "cancelled."

Professors should not violate the state laws of the state in which they reside. Is that not content neutral?

[ReaderY]

I have to say the section of the response brief claiming The Irish Rover has no First Amendment rights is one of the most bizarre I’ve seen, at least for briefs written by a lawyer, and I would think the paper would be entitled to ordinary frivolous-litigation sanctions for filing it in addition to SLAPP sanctions for the litigation as a whole.

It seems to make two arguments. First, it argues that the seminal Supreme Court cases finding that student newspapers have First Amendment rights all involved student newspapers at public schools and universities, and then concludes this establishes that student newspapers at private universities do not. Second, and even more incredibly bizarre, it seems to argue that First Amendment rights only pertain to speech about the First Amendment (i.e. speech about “the public exchange of ideas” itself), and not to speech that advances a particular viewpoint. This is the argument containing the passage Professor Volokh quoted.

What I find astonishing about this argument is that it is so off the wall that a judge who reads it would probably be inclined not to take the rest of the case seriously. It practically throws the case.

How could a licensed attorney make such an argument?

It seems to me that Professor Kay had a plausible non-frivolous position, although I think ultimately a losing one. I think her best argument was to claim that The Irish Rover falsely accused her of engaging in criminal acts, i.e. soliciting people and offering assistence in obtaining illegal abortions., and that because her general offer to “help” students never actually included an explicit offer to help anyone obtain an illegal abortion, the article was libel per se. I think this argument would ultimately fail because, for the reasons the trial judge said, The Irish Rover’s statements were reasonable, or at least not completely unreasonable, inferences from what she did say. But I see it as a non-frivolous argument.

Yet her lawyer never made this argument. Her lawyer wasted her case on spurious and frivolous arguments like the claim that student newspapers have no First Amendment protection against libel claims and the First Amendment doesnmt protect people whose speech advances a political agenda. Yet she completely failed to make what I think would likely have been Dr. Kay’s best argument.

[ReaderY]

Jesskis, Brinkerhoff and Joseph describe themselves as labor law and commercial dispute attorneys. Perhaps Dr. Kay might have been better off finding an attorney who focused on libel law. Then again, perhaps the ones she found turned her down.

[Ridgeway]

Barry Zuckerkorn was the attorney on this case. He's very good.

[ReaderY]

With an argument like this one? I suppose it lets the client vent. But the client can equally well do that proceeding pro se. Similar results for less money. And less likelihood of SLAPP and frivolous-lawsuit sanctions.

[Bored Lawyer]

"First, it argues that the seminal Supreme Court cases finding that student newspapers have First Amendment rights all involved student newspapers at public schools and universities, and then concludes this establishes that student newspapers at private universities do not."

There is a kernel of truth in their argument. Private universities are not bound by the First Amendment, and could censor student newspapers any way they like.

But that has nothing to do with the First Amendment's impact on defamation law. The whole point of NY Times v. Sullivan is that the First Amendment limits defamation law, even between private parties. (As both Sullivan and the NY Times were.) Defamation law is common law which derives its authority from the states. And implemented by state and federal courts. So that's the state-actor involved.

[ReaderY]

I would partially disagree here. A private university could directly control the content of its student newspaper only if the newspaper was set up as an alter ego or division of the university rather than a legally separate entity. A student newspaper could easily be set up as a legally independent entity.

Prople can’t sue themselves for defamation. So if a university could directly control its student newspaper’s content, that means it couldn’t sue the student newspaper for libel. Libel claims can only exist between legally separate persons that can’t directly control each other.

[Bored Lawyer]

I wasn't talking about a libel suit. I meant, the university as a private entity could censor student newspapers, if it wanted to.

[Dr. Ed 2]

To the extent that its contractual relationship with the students permitted, and that would include everything about free speech it had put into the college catalogue, etc.

This is the point that FIRE keeps raising -- private universities don't have to grant free speech rights to students, but once they do, they are bound by them.

And if ND says that "we are a Catholic institution", with Catholic having a very clear definition, then perhaps that is relevant too...

[DaveM]

"We must kill free speech in order to save it. But not all free speech. Just yours."

[Rev. Arthur L. Kirkland]

This appears to have been a weak case advanced poorly. Prof. Volokh wrings this flimsy cloth thrice, motivated not merely by shabby partisanship but also by intense desire to try to avoid the day’s far more prominent and important issues.

Carry on, clingers.