The Volokh Conspiracy

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

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Civil Procedure

Justice Gorsuch Argues that the Seventh Amendment Should Apply to the States

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From today's opinion by Justice Gorsuch respecting the denial of certiorari in Thomas v. Humboldt County:

In Minneapolis & St. Louis R. Co. v. Bombolis (1916), this Court held that the Seventh Amendment's civil jury trial right is not enforceable against the States. Petitioners ask us to reconsider that decision. But a number of "vehicle" problems make it unlikely that we could do so in this case. Accordingly, I agree with the Court's decision to deny review. At the same time, I do not doubt that Bombolis warrants a second look.

As petitioners observe, Bombolis is something of a relic. There, the Court dismissed as "strange" the notion that the Seventh Amendment—or, for that matter, any of the Bill of Rights—might be enforceable against the States. But what once might have seemed strange almost goes without saying today. In the years since Bombolis, this Court has "shed any reluctance" about the idea that the Fourteenth Amendment "incorporate[s]" against the States many of the liberties enshrined in the Bill of Rights.

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Free Speech

"Viewpoint Diversity" Requirements as a New Fairness Doctrine: Chilling Effect on Controversial Faculty Speech

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I have an article titled "Viewpoint Diversity" Requirements as a New Fairness Doctrine forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. You can see the opening sections  drawing the Fairness Doctrine / viewpoint diversity requirements analogy here; here is a section that explains how one of the problems with the Fairness Doctrine is likely to also arise with viewpoint diversity requirements.

[V.] Chilling Effect on Controversial Faculty Speech and on the Hiring of Controversial Faculty

[A.] The Fairness Doctrine

Yet just as Red Lion offers some support for ideological diversity conditions on government funding, so the critiques of the Fairness Doctrine apply to ideological diversity conditions as well.

To begin with, the Fairness Doctrine tended to deter broadcasters from featuring controversial speakers, because having such speakers would require the broadcasters to provide free time to rivals. The Red Lion Court pooh-poohed that concern:

At this point, … that possibility is at best speculative. The communications industry, and in particular the networks, have taken pains to present controversial issues in the past, and even now they do not assert that they intend to abandon their efforts in this regard….

[And] if present licensees should suddenly prove timorous, the Commission is not powerless to insist that they give adequate and fair attention to public issues….

But just five years later, in Miami Herald Publishing Co. v. Tornillo, the Supreme Court rejected a Florida statute that provided a right of reply to political candidates who were criticized in a newspaper, and it did so partly on chilling effect grounds:

Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced.

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From October 7, 2023 to October 13, 2025

Blessed are You, L-rd our G‑d, King of the Universe, who has granted us life, sustained us and enabled us to reach this occasion.

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On the evening of October 6, 2023, the Jewish holiday of Simchat Torah began. This is a joyous holiday, when it is a mitzvah (commandment) to be happy. Jews sing and dance with the Torah, and toast many L'Chaims. While many Jewish holidays can be a bit somber, Simchat Torah is a fun holiday. Hamas no doubt chose this day deliberately. In the early hours of the morning of October 7, people would be scattered, tired, and probably a bit hungover.

In 2024, Simchat Torah began on October 24. (The Jewish calendar follows the Lunar cycle, so dates shift around.) Around the world, Jews tried to be merry, but there was a sadness that those in captivity could not celebrate. We said we would "Dance for them," praying the hostages would soon be released.

On the evening of October 13, 2025, the Jewish holiday of Simchat Torah began again. Now, all of the living hostages have been returned to their families and friends. For the first time in nearly two years, we could celebrate without any restraints or reservations. Tonight's holiday was a joyous one for me, and I'm sure for Jews around the world.

In the summer of 2024, during a mission trip, I watched the surveillance footage of the atrocities of October 7. Many of those gruesome images will forever be burned in my mind. I wasn't sure there could ever be a video that could help reduce the sting.

This video of the hostages being reunited with his family will help. Try to watch this montage without tearing up.

Several of the grieving parents, upon seeing their sons, recited a very well-known Jewish prayer, the Shehecheyanu:

Blessed are You, L-rd our G‑d, King of the Universe, who has granted us life, sustained us and enabled us to reach this occasion.

These parents must have imagined this moment, over and over again, for two years. They no doubt planned what they would say and how they would act. And in the moment, the first words that left their mouths was the prayer to the Almighty, expressing thanks for letting them reach this momentous occasion. These moments should reinforce the faith in all of us.

A few related points.

First, President Trump deserves the eternal thanks of the Jewish people. He accomplished something that I didn't think was possible. In earlier days, I was quite critical of Trump, but over time, I've come to appreciate the singular and transformative talents he possesses. The Israel deal is perhaps his greatest move yet. No other President could have pulled it off.

Second, we can finally lay to rest this slander that Trump is an anti-semitic. Watch his speech before the Knesset (the Israeli Parliament). He gave thanks to the "Almighty G-d of Abraham, Isaac, and Jacob." He referred to the Abraham Accords as the Avraham Accords, the way you would pronounce it in Hebrew. He celebrates that his daughter converted to Judaism, and married a Jewish person.  Jews throughout Israeli, even those on the political left, celebrated President Trump. I've written before how being a Democrat is part of the American Jewish culture. Fine. I don't expect to change that norm, though I think that political homogeneity is fading.

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Thoughts on Case v. Montana and the Standards for the Emergency Aid Exception

The Fourth Amendment returns.

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It's been a long, long time since the Supreme Court heard argument in a real Fourth Amendment case.  This Wednesday, the Court will finally break the spell with argument in Case v. Montana.  I thought I would offer some thoughts on it. (Full disclosure: I have consulted with the lawyers for the petitioner in the case, although the thoughts here are my own.)

Here's the context. In Brigham City v. Stuart (2006), officers entered a home to break up a fight in which one person was being badly beaten in view of the officer from outside. The Court ruled that an "objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury" allows a warrantless entry into the home. In such circumstances, the thinking runs, there is a strong and immediate government interest in saving the life and preventing further injury of the person being attacked.

On the other hand, in Caniglia v. Strom (2021), the Supreme Court held that the community caretaking exception to the warrant requirement does not allow entry into a person's home.  In Caniglia, officers had entered the home of a suicidal man and taken his guns.  Although the Court had recognized a community caretaking exception in an earlier case that allowed the entry into a car to prevent a gun from falling into the wrong hands,  Caniglia ruled that this exception did not apply to allow entry into a home.  Justice Thomas's short majority opinion in Caniglia was followed by concurrences from Justices Alito and Kavanaugh that speculated about circumstances in which entry into a home to aid might be allowed under other exceptions to the warrant requirement, such the emergency aid exception of Brigham City.

The Case case—confusing name, I know—picks up where Caniglia and Brigham City left off.  The facts here are somewhere in between those two precedents. William Case, who lived in a small town in Montana, called his ex-girlfriend and threatened suicide. The police in the small town all knew Case and his mental health problems, and they had reason to believe from past interactions that he was planning "suicide by cop"— a shoot out with the police when they checked on him. Officers eventually decided to enter his home with their guns drawn.

The question in Case is the legality of the officers' entry, and in particular, what's the specific standard for entry under the emergency aid exception. Case argues that entry under Brigham City's objectively reasonable evidence standard requires probable cause of an emergency.  The state argues that probable cause isn't needed, and that all the officers need is an objectively reasonable belief that they needed to enter to render emergency medical aid.

As I read the briefs, the dispute here is really a choice between a very general standard (was the belief about the need to enter to render emergency aid a reasonable belief) or a somewhat more rule-based approach (was there probable cause of an emergency).  Do you keep the standard more abstract, leaving it at case-by-case reasonableness, or do you provide more guidance and root that in the known standard of probable cause?

Here are the two things I will be listening for at Wednesday's argument:

(1) The role of common law history versus the role of pragmatism.

As I blogged last December, back at the cert stage, one of the things that makes Case unusual is that there's actually a lot of common law authority on the standards for emergency entry.  A key question to look out for is how much the Justices focus on that authority. As Justice Scalia emphasized in Kyllo v. United States, the Fourth Amendment must be interpreted to ensure "preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." And the common law standards of search and seizure have long provided the Fourth Amendment baseline of what is "reasonable," especially where there is "precise guidance from the founding era," as Riley put it.  Given the originalist turn at the Court in recent years, that history may matter a lot.

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Hostages and "Hostages"

There is no moral equivalence between the hostages released by Hamas and the prisoners released by Israel.

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From a post circulating yesterday:

Hamas will release Elkana Buchbut, a 32 yo party producer and musician, married and father of a 4 yo boy.

Israel will release Baher Badar, who in 2004 was responsible for a suicide terror attack which killed 11 Israelis.

Hamas will release Bar Kuperstein, a 23 yo security guard of the Nova festival, and the manager of his father's falafel restaurant.

Israel will release Faras Ganam, who was responsible for at least 5 terror attacks, and at least 4 dead Israelis.

Hamas will release Maxim Herkin, a 36 yo who got to Israel from Ukraine with his family, including his 4 yo daughter.

Israel will release Jihad Rom, who kidanpped 17 yo Yuri Goshchin in Jerusalem to Ramallah, abused him, murdered him and abused his corpse.

Hamas will release Segev Halfon, a 27 yo from Dimona who suffers from PTSD and worked in his family's bakery.

Israel will release Maher al-Hashlamun, who stabbed 3 people, killing one of them - Dalia Lemkus, who was a survivor of another terror attack 8 years prior to her murder.

Hamas will release Eitan Mor, a 25 yo who lived in Jerusalem and worked at a coffee shop.

Israel will release Hussein Sharrif Jauadra, who was 16 yo when stabbing 19 yo Eden Atias to death on a bus.

Hamas will release Alon Ahel, a 24 yo talented pianist and musician.

Israel will release Nabil Abu Hadir, who murdered his own sister for suspecting she was an Israeli agent.

Hamas will release Yosef Chaim Ohana, a 24 yo bartender, who helped others to escape from the party until he was kidnapped himself.

Israel will release Eiad Abu-Al-Rub, the head of The Islamic Jihad in Jenin, who's personally responsible for terror attacks, among them a suicide terror attack in Hedera, where 6 were murdered.

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Judiciary

Forum Shopping in the First Circuit

An interesting Reuters report on the new locus of lawsuits challenging the Trump Administration.

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Those seeking to file legal challenges against the Trump Administration's avalanche of executive actions have largely sought friendly fora in which to bring their claims. Increasingly, this appears to mean filing suit in New England, in district courts within the U.S. Court of Appeals for the First Circuit, the only federal appellate court in the nation without a single Republican appointee in active service (though there is one nominee pending).

Nate Raymond of Reuters has an interesting and informative exploration of how the First Circuit has become a forum of choice for anti-Trump Administration litigation, and includes some interesting data on how often such suits are now filed within the circuit.

A Reuters analysis found that at least 72 lawsuits challenging Trump's policies have been filed in federal courts in those four states by plaintiffs, including Democratic state attorneys general, advocacy groups and institutions targeted by the administration. Trial court judges have made at least an initial decision in 51 of those cases, ruling against Trump in 46 of them, the analysis showed.

These have included challenges to Trump's policies to restrict birthright citizenship, gut the U.S. Department of Education, revoke the legal status of thousands of migrants and fast-track deportations of migrants to countries other than their own - so-called "third countries" - including politically unstable South Sudan. . . .

The 1st Circuit, in handling Justice Department appeals of rulings by these trial judges against the president's policies, has issued 15 decisions, granting the administration's request to set aside judicial orders only three times.

The report goes on to explain why the First Circuit would be a popular circuit in which to file these suits.

While nationwide the U.S. judiciary is closely divided among judges appointed by Democratic and Republican presidents, in these four states 17 of the 20 active federal trial judges are Democratic appointees. These states fall under the umbrella of the Boston-based 1st U.S. Circuit Court of Appeals, whose five active judges all were appointed by Democratic presidents while a Trump nominee awaits Senate confirmation. . . .

The regional federal appellate court that has jurisdiction over the most challenges this year to Trump's policies is the one that covers Washington, D.C., as might be expected considering it is the seat of the U.S. government. But the courts under the 1st Circuit have attracted the second-most such lawsuits, according to data from Just Security, an online publication based at New York University School of Law.

The article also provides a useful explanation of forum shopping, why litigants engage in it, and how it's not new. Too often this sort of context is missing from news reports and analyses of litigation against the Trump Administration. Among other things, the report notes that the First Circuit is, in many respects, replacing the Ninth Circuit as the preferred circuit of anti-Trump litigants. As the story notes, President Trump made ten appointments to the Ninth Circuit during his first term, "reducing the likelihood that Democratic appointees would dominate its judicial panels that decide appeals."

President Trump has yet to make a single appointment to the First Circuit (which is also the smallest circuit court, with only six seats). As one might expect given its composition, anti-Trump suits have fared well within the First Circuit.

The 1st Circuit, in handling Justice Department appeals of rulings by these trial judges against the president's policies, has issued 15 decisions, granting the administration's request to set aside judicial orders only three times.

The Trump Administration has often sought Supreme Court review of the First Circuit's failure to stay or reverse district court orders entered against it.

The Supreme Court already this year on seven occasions fully or partially put on hold judicial orders against Trump policies arising out of the 1st Circuit's jurisdiction in cases concerning the Department of Education, legal status of migrants and third-country deportations.

But, the story also notes, the Trump Administration has not always been quick to appeal adverse judgments from the First Circuit. Rather, as I have highlighted in prior posts, the Administration has been selective, only seeking Supreme Court review of cases in which its complaints about district court overreach are particularly strong.

While the Supreme Court has backed the administration in some important cases this year arising from the 1st Circuit, the Justice Department has not yet asked the justices to review some other adverse rulings from judges in the region.

That means, for example, that decisions by judges in Boston and Providence, Rhode Island, remain in place blocking the administration's efforts to make changes in federal elections including limits on counting mail-in ballots, cap federal research funding to universities and disfavor arts organizations seeking grant funding because they support "gender ideology."

Just as anti-Trump litigants are being selective in deciding where to bring which cases, the Trump Administration is being selective about which cases to bring to One First Street. The result is both that a disproportionate share of suits brought against the Trump Administration are successful, and a disproportionate share of Supreme Court orders vindicate the Trump Administration's position. But if you've been following my posts on this subject, you already knew that.

Free Speech

"Viewpoint Diversity" Requirements as a New Fairness Doctrine: Regulators' Motivations

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I have an article titled "Viewpoint Diversity" Requirements as a New Fairness Doctrine forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. You can see the opening sections  drawing the Fairness Doctrine / viewpoint diversity requirements analogy here; here is a brief section that dismisses one argument against viewpoint diversity requirements:

[IV.] Regulators' Motivations

[It does not matter for purposes of my analysis] that modern viewpoint diversity mandates come out of a desire to promote certain viewpoints (today, conservative ones) that their backers think are unfairly discriminated against.

Many regulations stem from perceived problems caused by particular groups that express particular views. The 36-foot bubble zone around abortion clinics in McCullen v. Coakley, for instance, was enacted in response to speech that expressed anti-abortion views. The bubble zone disproportionately affected anti-abortion speech. The legislators who voted for it were likely abortion rights supporters. But the Court treated the restriction as viewpoint-neutral and even content-neutral because the government's stated purposes were sufficiently neutral: protecting safety and preventing obstruction of passageways.

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First Amendment

Friday Oct. 17 12:30pm-1:30pm Zoom event: Trump, the Media, and the First Amendment

The Trump Administration’s threats to revoke broadcasters’ licenses and President Trump’s lawsuits against media companies implicate important, and contested, Supreme Court First Amendment doctrines. Should these actions affect how courts and scholars analyze these doctrines?

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This Friday at 12:30pm ET I will be hosting an online discussion about whether actions by President Trump and his administration should affect how courts and scholars analyze the First Amendment's application to the media.

The launching point is the Trump Administration threats to revoke broadcasters' licenses, and President Trump's lawsuits against media companies, which implicate important, and contested, First Amendment doctrines—particularly those developed in Red Lion v. FCC and FCC v. Pacifica Foundation (upholding FCC regulations of broadcasters' speech), NRA v. Vullo and Murthy v. Missouri (addressing government pressure and threats of legal sanctions), and New York Times v. Sullivan (holding that in defamation suits public officials must prove that the speaker knew a statement was false or was reckless about its falsity).

You can register here or scan the QR code below.

Supreme Court

DCCHS Oral History of Justice Ruth Bader Ginsburg

A set of interviews with the late justice is now available

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The D.C. Circuit Historical Society has just released the Oral History of Justice Ruth Bader Ginsburg, who served on the U.S. Court of Appeals from 1980-1993. The oral history consists of eight interviews conducted by Dr. Maeva Marcus. By agreement, the interviews were not to be released until five years after Justice Ginsburg's death (or ten years after her judicial service ended).

I have not yet had the chance to go through all of the interviews, but did notice this tidbit in the last interview, from 2014.

Dr. Marcus: Is there much place for discussion other than in conference?

Justice Ginsburg: It's up to the Justices. There can be as much or as little as they want. The conference is concise. Let me explain the difference between when we get
together and when we don't. The dissenters had no time to get together in Bush v. Gore, so there were four separate dissents, vastly confusing to the press. In the Affordable Care Act case and the Voting Rights Act case, we had time to meet together and discuss what the dissenting opinion should include. After the discussion, I asked my colleagues on the dissent side if they had anything they particularly wanted me to cover, please send me a memo. It's not often that that will happen for the majority opinion, because people agree on the main lines of the opinion at conference. But
yes. Discussion continues after the conference. When a draft opinion is circulated, the Justices are more active than court of appeals judges in suggesting changes. Whoever circulates the first opinion in October knows that her colleagues will weigh in on it, sometimes heavily. But by April, people are so busy with the opinions they're writing themselves, they have less time to comment on a colleague's opinion. The chances of having your opinion released just as you wrote it are much better in April than in October.

Dr. Marcus: If you get to assign the opinion, you can override such a thing?

Justice Ginsburg: I have never assigned a majority opinion. Now I've succeeded to Justice Stevens' job in assigning dissenting opinions. He assigned most of them to himself. The other dissenters agreed that in the healthcare case and Hobby Lobby, as the senior of the four of us, I should write the dissent.

Former FCC Chair Ajit Pai highlights several other tidbits from the interviews in this Twitter thread.

Free Speech

"Viewpoint Diversity" Requirements as a New Fairness Doctrine

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I have this article forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. Here are the opening sections:

Introduction

The Trump Administration has been trying to attach "viewpoint diversity" mandates to federal funding, especially for universities. This Essay analyzes the parallels between these new proposals and a much older one: the Fairness Doctrine.

The arguments for both are similar, though of course not identical: The claim is that, when the government is

  1. distributing benefits—whether access to scarce spectrum, or scarce grants and other federal funds—
  2. it may attach viewpoint-neutral conditions that aim to
  3. make the benefits promote a wide range of opinion, rather than leaving it entirely to the beneficiary to choose which opinions it promotes.

"It is the purpose of the First Amendment," the theory goes, "to preserve an uninhibited market-place of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee." Lawyers who want to argue in favor of the constitutionality of viewpoint diversity mandates may thus get some help from Red Lion Broadcasting v. FCC, which upheld the Fairness Doctrine against constitutional challenge.

But the arguments against the Fairness Doctrine—ultimately accepted by the Reagan Administration's FCC in 1987, when it rejected the Doctrine—are also powerful arguments against viewpoint diversity mandates. Both the Fairness Doctrine and viewpoint diversity mandates tend to deter the targeted institutions (whether broadcasters or universities) from allowing controversial speech, or hiring or admitting controversial speakers. And both, unlike nondiscrimination mandates, are inevitably viewpoint-discriminatory in application.

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Free Speech

What Alleged Behavior Could Lead to Liability for Anti-Semitic Harassment in CUNY Hunter College Case

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As I noted earlier this morning, Friday's Report and Recommendation in Garrett v. City Univ. of N.Y. (S.D.N.Y.) (written by Magistrate Judge Robert Lehrburger) discusses the limits the First Amendment imposes on "hostile work environment harassment" law (as well as the similar rules as to education, public accommodation, and housing). It concludes that the First Amendment generally protects material on matters of public concern that isn't directly targeted to particular offended people based on their religion, race, sex, etc., but that other speech and conduct that is severe or pervasive enough to create a hostile work environment based on those attributes may be actionable.

The opinion is long, so I've divided it into several parts. Another post discusses the alleged behavior that the court concluded were protected by the First Amendment, while this post discusses the alleged incidents that are "actionable in the sense that they are within the reach of Title VII and not merely political speech protected by the First Amendment":

[1.] Accepting all allegations as pled and drawing all reasonable inferences in Garrett's favor, the anti-Hillel protest plausibly crossed the line into targeted harassment. President Kirschner described the protest as "reach[ing] a new level of aggression by targeting Hillel" and "personal[ly] targeting Jewish students." Many students—as well as Garrett—felt "compelled" to leave campus.   While protestors are free to criticize Hillel, or any campus organization for that matter, with strong and even offensive language, antidiscrimination law does not permit an employer to stand idly by when, as here, protestors "isolated or targeted individual[s]" in the protected class. Landau.

To be sure, discovery may show the protest did not involve threatening or humiliating targeted conduct. But given President Kirschner's own description of the event as "personal[l]y targeting" Jewish students and reaching a "new level of aggression" that compelled students and Garrett to leave campus, the Court concludes that Garrett has, at this early stage, plausibly pled actionable harassment from the Hillel protest.

{Generally, a plaintiff cannot transform political speech into actionable harassment by alleging, in a conclusory fashion, that the protected expression was targeted or otherwise actionable. See Gartenberg ("conclusory suggestion that [certain] speech included [actionable] 'threats of violence' … does not plausibly allege that any of this expressive conduct constituted" harassment). Here, however, the Complaint relies on Hunter President Kirschner's own account of the event.}

[2.] Garrett alleges a student was "physically assaulted, as his pro-Israel sign was forcibly taken from him" at one protest.  This allegation is actionable because the "First Amendment does not protect violence." NAACP v. Claiborne Hardware Co. (1982).

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Free Speech

First Amendment Limits on Workplace Harassment Liability, in Claim of Anti-Semitic Harassment at CUNY Hunter College Following October 7 Attacks

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I've long been interested in what limits the First Amendment imposes on "hostile work environment harassment" law (as well as the similar rules as to education, public accommodation, and housing); I wrote my 1992 law student article on the subject, and have monitored it since. Friday's Report and Recommendation in Garrett v. City Univ. of N.Y. (S.D.N.Y.) (written by Magistrate Judge Robert Lehrburger) offers an interesting analysis, and one that I think is generally sound (even if I would quibble with a few details). The opinion is long, so I've divided it into several parts; this part sets forth the general legal framework, and later parts will talk more about the details of the specific CUNY case.

In the wake of the October 7, 2023 terrorist attack in Israel, political unrest embroiled City University of New York's ("CUNY") Hunter College ("Hunter") campus. Dr. Leah Garrett, a Jewish professor who chairs the Jewish Studies department at Hunter, asserts that events during that period perpetuated antisemitism on campus and created a hostile work environment in violation of Title VII ….

Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Proscribed conduct includes subjecting employees to "harassment that, while not affecting economic benefits, creates a hostile or offensive working environment."

To state a hostile work environment claim under Title VII in this circuit, "a plaintiff must plead facts that would tend to show that the complained of conduct: (1) is objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's [protected characteristic]." …

Anti-discrimination laws, including Title VII, do not operate in a vacuum. As courts and commentators have recognized, these laws may run up against the First Amendment and its protection of free expression. See, e.g., Saxe v. State College Area School District (3d Cir. 2001) ("anti-discrimination laws are [not necessarily] categorically immune from First Amendment challenge"); DeAngelis v. El Paso Municipal Police Officers Association (5th Cir. 1995) ("Where pure expression is involved, Title VII steers into the territory of the First Amendment"); Richard Fallon, Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn't Bark, 1994 Sup. Ct. Rev. 1, 17-19 (1994) (discussing "First Amendment Boundaries" on Title VII hostile environment claims); Rodney A. Smolla and Melville B. Nimmer, Smolla & Nimmer on Freedom of Speech § 13:17 (while Title VII and the First Amendment "are not on an apocalyptic collision course," there will be "difficult cases" requiring distinguishing between protected and unprotected speech).

Speech that is discriminatory, offensive, or hateful often falls within the protective ambit of the First Amendment. Matal v. Tam (2017) ("Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate'"); Volokh v. James (2d Cir. 2025) ("the Supreme Court has consistently held that expression motivated by bias, hatred, or bigotry falls within the First Amendment's protection"). Conversely, pure political speech—for which the First Amendment provides the most fulsome protection—may well be considered harassing. Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791, 1804 (1992) ("core protected speech can indeed constitute harassment"); see Snyder v. Phelps (2011) (political speech can "inflict great pain" on the targeted listener).

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Academia

How Viewpoint Diversity Can Help Protect Academics from Themselves (and Perhaps Help Heal Our Civic Culture Too)

The lack of intellectual pluralism undermines the truth-seeking function of the university.

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Ohio State Professor Michael Clune, who caused a bit of a stir in academia with his December 2024 essay "We Asked for It," has a new essay in the Chronicle of Higher Education responding to a recent critique of the push for heterodoxy and intellectual pluralism on campus. The essay, "Professors Can Be Ignorant. That's Why We Need Viewpoint Diversity," begins:

It's hard to succeed as an educator when you don't know what you're talking about. And yet many professors of the humanities and social sciences — teaching and writing on topics such as capitalism, police reform, and sexuality — fail a simple, classic test. To understand your own position, you must be aware of, and be able to respond to, objections to that position. We need greater diversity of political and social views in academe not because diversity is a higher value than truth, but because academics' intellectual isolation has compromised their capacity to pursue truth.

In an academic environment in which objections to the reigning political, social, and cultural assumptions are castigated as beyond the pale of academic discussion, professors find themselves dangerously isolated, ignorant of how their students and fellow citizens view their behavior. Discussing faculty posts on social media about the assassination of Charlie Kirk, a student at the University of Texas at Austin writes: "I've learned that there are people on my college campus who would cheer if someone like me, a young person who openly expresses my traditional Christian beliefs and right-wing political views, were murdered."

This is not the lesson most faculty members intend to teach, but many professors simply don't know how they appear to nonacademics and don't know how to respond appropriately to ideas that differ from their own. Professors in many fields tend to think that disagreement with their disciplines' consensus (on, say, police reform, capitalism, or gender) is equivalent to Holocaust denial, or, as Lisa Siraganian puts it in a recent essay in Academe attacking viewpoint diversity, denying the double-helix model of DNA.

As Clune discusses (and those of us with heterodox views in academia often experience) the lack of intellectual diversity in many departments and disciplines produces an epistemological failure and undermines academic inquiry, and this is particularly problematic in the humanities and social sciences.

the best case for intellectual diversity is a pragmatic one. While the sciences have hardly been immune to ideological distortions, not all fields suffer equally from a lack of different political perspectives. Some fields may not suffer any epistemological consequences at all. The goal of the university is the pursuit of truth; the pursuit of intellectual diversity is best seen as a means to that end. Physics or civil engineering may not be seriously compromised by ideological conformity; whether a biochemist is conservative or liberal may well have no effect at all on her teaching and research.

But I have come to believe that the questions asked by historians, literary scholars, and political scientists — which necessarily touch on matters of intense political controversy — cannot be adequately posed or answered in an atmosphere of ideological closure. . . .

The social sciences may well survive widespread epistemological failure and ideological closure, but the humanities may not be so lucky.

I fear that colleges' response to the political distortions of humanities disciplines will be to further marginalize and defund these disciplines. But the very feature of the humanities that renders them vulnerable to distortion by ideological conformity is also the source of their immense value to the educational enterprise. We are, ultimately, after human truths — the meaning of happiness, the nature of revolutions, the right way to organize a government, the best way to interpret a text or to judge a work of art. Our work engages passions and values that animate everyone's lives.

To see beyond our passions, to step outside our prejudices, to suspend our most powerful commitments — this is a discipline, and a difficult one. It is the humanities' proper discipline, and at this moment it requires welcoming new perspectives and voices into our classrooms and lecture halls. The creation of spaces in which the humanistic pursuit of truth can truly flourish may also be what this violent and divided nation most needs from higher education.

One way to address these concerns may to take Professor John McGinnis' advice and focus more on teaching students to disagree productively. This will help universities combat epistemic closure, and perhaps help heal our civic culture as well. In theory, law schools already do this, but the lack of meaningful ideological diversity hampers such efforts from being more effective.

An educational system should aspire to make citizens pass an "ideological Turing test," demonstrating the ability to present the strongest case for views they reject so persuasively that an examiner cannot infer their own. A person who can do so earns rapport across the aisle by grasping the full force of the arguments that motivate opponents.

Sadly, education at all stages today hinders the ability to pass this kind of test. . . .

Universities can still bend the civic arc if they return to their first vocation: truth-seeking through contestation. A democracy only functions well if its elites model respectful disagreement. That kind of respect is the first step to creating a political atmosphere free from fear and threat. This atmosphere is itself conducive to the willingness to compromise on which pluralist democracy depends.

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