The Volokh Conspiracy Archive

From Justice Sotomayor's unanimous (and, I think, correct) opinion today in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Indus. Rev. Comm'n:

Wisconsin, like many other States, exempts certain religious organizations from paying taxes into the State's unemployment compensation system. One such exemption covers nonprofits "operated primarily for religious purposes" and controlled, supervised, or principally supported by a church. Wis. Stat. §108.02(15)(h)(2) (2023–2024). Petitioners, Catholic Charities Bureau, Inc., and four of the entities that it operates, claimed that they qualify for the exemption as religious organizations controlled by the Roman Catholic Diocese of Superior, Wisconsin. The Wisconsin Supreme Court disagreed, holding that petitioners are not "operated primarily for religious purposes" because they neither engage in proselytization nor serve only Catholics in their charitable work….

The First Amendment mandates government neutrality between religions and subjects any state-sponsored denominational preference to strict scrutiny. The Wisconsin Supreme Court's application of §108.02(15)(h)(2) imposed a denominational preference by differentiating between religions based on theological lines….

"The clearest command of the Establishment Clause" is that the government may not "officially prefe[r]" one religious denomination over another. This principle of denominational neutrality bars States from passing laws that "'aid or oppose'" particular religions, or interfere in the "competition between sects." The Establishment Clause's "prohibition of denominational preferences is inextricably connected with the continuing vitality of the Free Exercise Clause," too.

A law that differentiates between religions along theological lines is textbook denominational discrimination. Take, for instance, a law that treats "a religious service of Jehovah's Witnesses … differently than a religious service of other sects" because the former is "less ritualistic, more unorthodox, [and] less formal." Or consider an exemption that applies only to religious organizations that perform baptisms, engage in monotheistic worship, or hold services on Sunday. Such laws establish a preference for certain religions based on the content of their religious doctrine, namely, how they worship, hold services, or initiate members and whether they engage in those practices at all. Such official differentiation on theological lines is fundamentally foreign to our constitutional order, for "[t]he law knows no heresy, and is committed to the support of no dogma."

This case involves that paradigmatic form of denominational discrimination. In determining whether petitioners qualified for the tax exemption under §108.02(15)(h)(2), the Wisconsin Supreme Court acknowledged that petitioners are controlled by a church, … thereby satisfying one of the exemption's two criteria. The court's inquiry instead turned on whether petitioners are "operated primarily for religious purposes." On that criterion, the court recognized that petitioners' charitable works are religiously motivated. The court nevertheless deemed petitioners ineligible for the exemption under §108.02(15)(h)(2) because they do not "attempt to imbue program participants with the Catholic faith," "supply any religious materials to program participants or employees," or limit their charitable services to members of the Catholic Church. Put simply, petitioners could qualify for the exemption while providing their current charitable services if they engaged in proselytization or limited their services to fellow Catholics.

From Justice Kagan's unanimous (and, I think, correct) opinion today in Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos:

The Government of Mexico brought this lawsuit against seven American gun manufacturers. As required by a federal statute, Mexico seeks to show (among other things) that the defendant companies participated in the unlawful sale or marketing of firearms. See [Protection of Lawful Commerce in Arms Act,] 15 U.S.C. §7903(5)(A)(iii). More specifically, Mexico alleges that the companies aided and abetted unlawful sales routing guns to Mexican drug cartels. The question presented is whether Mexico's complaint plausibly pleads that conduct. We conclude it does not….

[T]his Court has developed several … principles [defining aiding and abetting law]. First, aiding and abetting is most commonly "a rule of secondary liability for specific wrongful acts." It is possible for someone to aid and abet a broad category of misconduct, but then his participation must be correspondingly "pervasive, systemic, and culpable."

Second, aiding and abetting usually requires misfeasance rather than nonfeasance. Absent an "independent duty to act," a person's "failure[s]," "omissions," or "inactions"—even if in some sense blameworthy—will rarely support aiding-and-abetting liability.

And third, routine and general activity that happens on occasion to assist in a crime—in essence, "incidentally"—is unlikely to count as aiding and abetting. So, for example, an "ordinary merchant[]" does not "become liable" for all criminal "misuse[s] of [his] goods," even if he knows that in some fraction of cases misuse will occur. The merchant becomes liable only if, beyond providing the good on the open market, he takes steps to "promote" the resulting crime and "make it his own."

From today's unanimous (and, I think, correct) opinion in Ames v. Ohio Dep't of Youth Services (2024), written by Justice Jackson:

The Ohio Department of Youth Services operates the State's juvenile correctional system. In 2004, the agency hired petitioner Marlean Ames, a heterosexual woman, to serve as an executive secretary. Ames was eventually promoted to program administrator and, in 2019, applied for a newly created management position in the agency's Office of Quality and Improvement. Although the agency interviewed her for the position, it ultimately hired a different candidate—a lesbian woman—to fill the role.

A few days after Ames interviewed for the management position, her supervisors removed her from her role as program administrator. She accepted a demotion to the secretarial role she had held when she first joined the agency—a move that resulted in a significant pay cut. The agency then hired a gay man to fill the vacant program-administrator position. Ames subsequently filed this lawsuit against the agency under Title VII, alleging that she was denied the management promotion and demoted because of her sexual orientation….

The [trial] court analyzed Ames's claims under McDonnell Douglas Corp. v. Green (1973), which establishes the traditional framework for evaluating disparate-treatment claims that rest on circumstantial evidence. At the first step of that framework, the plaintiff must make a prima facie showing that the defendant acted with a discriminatory motive. Relying on Circuit precedent, the District Court concluded that Ames had failed to make that showing because she had not presented evidence of "'background circumstances'" suggesting that the agency was the rare employer who discriminates against members of a majority group. Without that evidence, the court held, plaintiffs who are members of majority groups—including heterosexual plaintiffs, like Ames—could not discharge their evidentiary burden at the first step of the McDonnell Douglas inquiry. The Sixth Circuit affirmed….

[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong. Here is the final section.]

[S]ome of the other [First Amendment] assumptions that the new technologies will upset may lead to more trouble. Missouri Knights of the KKK v. Kansas City tells a cautionary tale. In exchange for giving a franchise to a cable company, Kansas City demanded that the company provide a public-access channel. Everything went well until the Ku Klux Klan decided to put on its own show, which offended the city government so much that it authorized the cable system to shut the entire channel down.

A court ultimately overturned the city's action on First Amendment grounds, but the story shows what can happen when the assumptions underlying certain rules are changed. The city's willingness to provide a forum for the little guy, it turned out, was based (perhaps unconsciously) on the supposition that the little guys would either provide a public service or at worst be harmless eccentrics. When the assumption proved false, the consensus behind the rule evaporated.

As the new media arrive, they may likewise cause some popular sentiment for changes in the doctrine. Today, for instance, the First Amendment rules that give broad protection to extremist speakers—Klansmen, Communists, and the like—are relatively low-cost, because these groups are politically rather insignificant. Even without government regulation, they are in large measure silenced by lack of funds and by the disapproval of the media establishment. What will happen when the KKK becomes able to conveniently send its views to hundreds of thousands of supporters throughout the country, or create its own TV show that can be ordered from any infobahn-connected household?

Likewise, the broad protection for false speech evolved in a time when the main suppliers of news and opinion were large, ostensibly nonpartisan, media organizations. Obviously these broadcasters and publishers weren't entirely reliable—they still lost some libel lawsuits even after New York Times v. Sullivan—but they were the sort of speakers that people could feel relatively comfortable with.

In yesterday's decision by the Texas Court of Criminal Appeals (written by Judge Mary Lou Keel) in Owens v. State, Owens had been found guilty of criminal harassment and sentenced "to 180 days in jail and a $500 fine"; the law outlaws "send[ing] repeated electronic communications in a manner reasonably likely to [and intended to] harass, annoy, alarm, abuse, torment, embarrass, or offend another." His conduct consisted of "sending about three dozen electronic messages to his former therapist [at her professional accounts] during a 15-week period," mostly via email but some via text and Facebook.

The court held this unconstitutionally punished Owens for his speech:

Sending messages is an act, but the messages themselves are speech, and the prosecution in this case was based on Appellant's speech, not his action. It was the content of the messages, not the manner of their sending, that drove the prosecution. Bira called the police on receipt of the first message—not after the receipt of repeated messages. She was disturbed by the content of the first and subsequent messages, not merely the manner in which they were sent. She admitted that both the "repeated forced contact" and the content of the communications were harassing.

Appellant would not have been prosecuted if his messages had expressed a different tone or message; he would have avoided prosecution if he had said "good morning" instead of accusing Bira of raping him. Bira and the judge both said so; if Appellant's first email had been worded differently, if he had reached out politely asking to speak with her, she would have obliged, and he would not have been prosecuted and punished. Instead, she contacted SAPD because of the content of the first message. She "felt abused from that very first email. Highly harassed."

As the trial judge pointed out when assessing Appellant's punishment, "Of course it's punishment for speech … if you're saying good morning in an e-mail, it's not the same thing as calling someone a name like a whore in an e-mail." The manner of the communications was immaterial; it was their content that drove the prosecution.

We acknowledge Bira's right to be free from unwelcome ideas invading her substantial privacy rights in an essentially intolerable manner…. But here section 42.07(a)(7) was used to regulate Appellant's speech, not his conduct. Appellant's First Amendment right to communicate must be delicately balanced with Bira's privacy rights, and the scale is tipped in Appellant's favor in this case for three reasons.

6/5/1916: Justice Louis Brandeis takes the oath.

In a major expansion of his assault on legal immigration, Donald Trump today announced a massive new travel ban. It goes beyond those instituted in his first term. My Cato Institute colleague Alex Nowrasteh - a leading immigration policy expert - has a helpful summary of the travel ban, and why it's utterly unjustified:

President Trump announced that he's banning almost all travel and immigration from Afghanistan, Burma, Chad, the Republic of Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen for "terrorism-related and public-safety risks." There are some exceptions for adoptions, immediate family members of US citizens, and a handful of other visas. A single terrorist from those countries murdered one person in an attack on US soil: Emanuel Kidega Samson from Sudan, who committed an attack motivated by anti-white animus in 2017. The annual chance of being murdered by a terrorist from one of the banned countries from 1975 to the end of 2024 was about 1 in 13.9 billion per year….

Trump also restricted travel from Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela, albeit less severely than from the dozen countries above. Terrorists from those countries murdered five people in attacks on US soil since 1975, the last one in 1980. Cuban terrorists were the only perpetrators of attackers during that period who murdered people in their attacks.

The threat of foreign-born terrorism on US soil is above zero but also small and manageable without further government interventions. The government spends much more on anti-terrorism activities than would pass a cost-benefit test. The last person murdered in an attack committed by a foreign-born terrorist was in 2019 when Saudi-born Mohammed Saeed Alshamrani murdered three in a shooting at the Pensacola Naval Air Station. He was here on a visa training with the US military. Zero Americans were murdered in attacks on US soil committed when President Biden was in office, the first administration in my data set not to have a single American die in such an attack.

As Alex explains, immigrants from the affected countries also have lower crime rates than native-born Americans. Barring them will not improve public safety:

Trump also justified the country-level travel and immigration restrictions to prevent immigrant criminality on the assumption that travelers and immigrants from those countries are serious sources of crime. According to the US Census and American Community Survey Data, travelers and immigrants from the dozen banned countries have a nationwide incarceration rate of 370 per 100,000 in 2023 for the 18-54 aged population – 70 percent below that of native-born Americans. Their incarceration rate is about 16 percent higher than for all legal immigrants and 40 percent below all illegal immigrants. The incarceration rate for the visa-restricted countries of Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela was almost identical at 369 per 100,000.

As the American Immigration Council explains, barring nearly all migrants from these countries will significantly damage the US economy, and have negative humanitarian effects, as well. I would add that migrants from many of these countries - including Afghanistan, Cuba, Iran, and Venezuela - are fleeing horrific poverty and oppression by communist, radical Islamist, and other authoritarian regimes. If Republicans truly cared about combating communism and radical Islamism, they wouldn't shut America's doors to their victims.

Thanks in large part to the Supreme Court's badly flawed 2018 ruling upholding an earlier Trump travel ban in Trump v. Hawaii, it will be nearly impossible to challenge this new travel ban on the grounds that it is motivated by ethnic or other bigotry. But it may be possible to challenge on other grounds.

Back in 2020, I outlined how an earlier Trump travel ban could potentially be challenged under the nondelegation doctrine, which constrains the transfer of legislative power to the executive. As interpreted by the Supreme Court in Trump v. Hawaii, 8 U.S.C. Section 1182(f) - the statute underlying both the first term travel bans and this new one - seems to give the president nearly unlimited discretion to restrict any and all immigration. Today's gargantuan travel ban, based on little or no justification, reflects that understanding. That sure seems like the very sort of "unlimited" grant of authority two courts just struck down as unconstitutional in last week's rulings against Trump's tariffs (including in a case brought by the Liberty Justice Center and myself).

The immigration situation is more complicated than that of tariffs. Among other things, Article I of the Constitution specifically gives Congress power over tariffs, while the Constitution does not clearly indicate which branch of government has the power to restrict immigration (most likely because the federal government wasn't supposed to have that power at all). But in the 1889 Chinese Exclusion Case - the awful decision establishing that the federal government does have power over immigration - the Supreme Court states that the authority belongs to "the legislative department."

I will likely have more to say about possible legal challenges in future posts.

A new Morning Consult poll indicates that the recent Court of International Trade decision striking down Donald Trump's "Liberation Day" and other IEEPA tariffs in a case brought by the Liberty Justice Center and myself, enjoys broad public support. According to the poll, 55% approve of the ruling, while only 30% disapprove.

Large majorities of both Democrats and independents support the CIT decision, while Republicans are almost equally divided. This result is consistent with other survey data showing that the tariffs themselves are highly unpopular.

The People are with us! Yay!

The popularity of the CIT decision says little about its correctness. I've long been skeptical of "popular constitutionalism" and have written extensively about the dangers of political ignorance. I advocate many unpopular views, and am not one to argue that vox populi is vox dei. Far from it!

Obviously, I believe the CIT decision was right, and appellate courts should affirm it. But it isn't right merely because most of the public agrees with it.

Still, popularity can be helpful. At the margin, wavering judges may be more willing to strike down a major presidential policy initiative if they think doing so will be popular, and their ruling will enjoy strong political support. And if, as many fear, the Trump Administration is considering systematically defying court orders (as it has already to an extent done in some immigration cases), it will be less likely to do so in the case of popular rulings, and less likely to get away with it if they try.

Since last week's victory in our tariff case before the US Court of International Trade, I have done more media interviews than in any other comparable period in my life. I have spoken to print reporters, TV, radio, podcast interviewers, and more. The interviews included ones with media in seven different countries, and three different languages. I compiled links to some of these interviews and stories based on them here, here, and here. The media frenzy did not happen because I am an important person or a great media personality (I am neither). It's because Trump's trade war impacts millions of people all over the world.

On the whole, this has been a positive experience. Most of the coverage has, in my view, been fair and accurate. In many cases, I have been very impressed by the knowledge and insight of the reporters and interviewers, including some from foreign countries.

But there have been a few cases of serious misconceptions, many of them involving libertarianism, what it is, and why libertarians would challenge a policy adopted by a right-wing administration. And these misconceptions are widespread enough (both in the media and elsewhere) to be worth taking some time to set straight. To briefly summarize: libertarians are not conservatives, no one should be surprised that we support free trade, and our concern about abuses of presidential power is not limited to trade and other narrowly "economic" issues.

Perhaps the most egregious example of media misconceptions on these points was by prominent legal commentator Elie Mystal, in an article for the left-wing Nation [but see below for Mystal's acknowledgement of error]. Mystal agrees with me about Trump's tariffs, but complains that Reason and I don't care about "abducting immigrants and sending them to torture camps":

In the movement conservative publication Reason, law professor Ilya Somin writes: "From the very beginning, I have contended that the virtually limitless nature of the authority claimed by Trump is a key reason why courts must strike down the tariffs.… I am glad to see the CIT judges agreed with our argument on this point!" If only abducting immigrants and sending them to torture camps affected the 401Ks of the people at Reason, we could have even more conservatives who understand that the "virtually limitless nature of the authority claimed by Trump" is indeed a very bad thing.

Mystal evidently has no idea who he's dealing with! I'm the guy who wrote an entire book defending migration rights. Plus many academic articles, and numerous popular press pieces attacking Trump's Alien Enemies Act deportations (which, presumably, is what Mystal is referring to by "abducting immigrants and sending them to torture camps") and other unjust immigration policies. See, e.g., here, here, here, and here. Just yesterday, I filed an amicus brief opposing Trump's use of the AEA. My coauthors and I wrote it on behalf of the Brennan Center, the Cato Institute, legal scholar John Dehn, and myself. Cato, as regular readers know, is a libertarian think tank. The brief was filed after Mystal's article was published. But I have a long history of other amicus briefs defending migration rights, going back to the 2018 travel ban case. Writing in defense of migration rights is one of the two or three things I am most known for.

I am far from alone among libertarians when it comes to immigration issues, including those who write for Reason. For example, check out work of Reason's main immigration writer, Fiona Harrigan, and that of my Cato Institute colleagues, David Bier and Alex Nowrasteh. Libertarian economists (e.g. Bryan Caplan and the late Julian Simon) and political philosophers (e.g. Jason Brennan and Michael Huemer) have been among the leading defenders of migration rights in their respective fields. Not all libertarians support broad migration rights. But, on average, we are far more pro-immigration than most progressives - to say nothing of conservatives.

And if Mystal really thinks Reason is a "movement conservative" publication, he either doesn't understand Reason, doesn't understand "movement conservatism," or both. Immigration is just one of a long list of issues on which libertarians and conservatives diverge, especially in the Trump era, where the conservative movement is increasingly dominated by "national conservatives" who favor extensive government intervention on both economic and social issues. In addition to immigration and trade, examples include the War on Drugs, many civil liberties issues, free speech, and more. For more on differences between libertarians and the Trump-era right, see my article "The Case Against Nationalism" (coauthored with Alex Nowrasteh).

Similar, though less extreme, misconceptions arose in an MSNBC interview in which the interviewer was surprised that a Cato scholar was opposing Trump's tariffs, because, she said, "Cato has been a key defender of largely Republican policies."

.

As I tried to explain in response, libertarians and conservative Republicans have a long history of disagreement on many issues. Moreover, the defense of free trade has been a central libertarian priority since the origins of the movement in 18th and 19th century classical liberalism. Libertarians defending free trade is about as surprising as liberals defending Social Security or social conservatives opposing abortion. Like Mystal (though much less egregiously) the interviewer conflates libertarians and conservative Republicans.

I am grateful this other MSNBC segment highlighted my Atlantic article about the CIT tariff ruling:

But they managed to pack three errors into less than a minute of air time: 1) describing me as one of the "conservatives" opposing Trump's tariffs, 2) suggesting I work at the Atlantic (I do not; I just write for them occasionally), and 3) referring to me as a woman.

The last two errors are understandable and ultimately unimportant (many people don't realize "Ilya" is a common Russian male name). But the conflation of libertarians and conservatives matters more. In both tariff-related media coverage and elsewhere, I see it all too often. The three examples noted above are far from unique. Journalists, commentators, and others who report on law and public policy issues should learn to avoid this mistake.

UPDATE: After reading this post, Elie Mystal contacted me to apologize, and acknowledge error. He has now amended his article. I much appreciate his honesty and integrity in this matter. Mystal authorized me to reprint the apology in this update. Here it is:

Professor Somin,

I extend to you my deepest apologies for my snide remarks, mischaracterizing your views. I honestly confused you for [Ilya] Shapiro in my head while I was writing. Totally terrible job by me.

It wasn't intentional. As soon as I found out (which was when Google alerted me to your follow up post on Reason), I had my editor strike the line from my article, and update it with a correction.

I very deeply apologize.

The phenomenon of #IlyaConfusion is common enough to have its own Twitter hashtag, and I once wrote a post attempting to dispel it. The "other" Ilya - Ilya Shapiro of the Manhattan Institute -is obviously not where I am on immigration, and we have many differences on the subject. But he's not completely indifferent to injustices created by migration restrictions. For example, we once did an amicus brief together challenging Title 42 "public health" expulsions.

From today's decision by Ninth Circuit Judge Holly Thomas, joined by Chief Judge Mary Murguia and Judge Gabriel Sanchez, in Hubbard v. City of San Diego:

The City of San Diego prohibits teaching yoga to four or more persons at any of the City's shoreline parks or beaches…. [But t]eaching yoga is protected speech. The City's prohibition on teaching yoga in shoreline parks is content based and fails strict scrutiny….

[T]he First Amendment protects teaching yoga. "An individual's right to speak is implicated when information he or she possesses is subjected to 'restraints on the way in which the information' [is] disseminated." And the First Amendment's protections for speech encompass situations where a teacher's "speech to [students] imparts a 'specific skill' or communicates advice derived from 'specialized knowledge.'" Pac. Coast Horseshoeing Sch., Inc. v. Kirchmeyer (9th Cir. 2020) (quoting Holder v. Humanitarian L. Project (2010)) (discussing vocational training).

Because the Ordinance targets teaching yoga, it plainly implicates Hubbard and Baack's First Amendment right to speak. The practice and philosophy of yoga "date back thousands of years," deriving "from ancient Hindu scriptures." The practice of yoga "teaches students to attain spiritual fulfillment through control of the mind and body." A person who teaches yoga is communicating and disseminating information about this philosophy and practice through speech and expressive movements. Like vocational training classes, Hubbard's and Baack's classes aim to impart a specific skill and communicate advice derived from specialized knowledge. {Indeed, the act of teaching is protected speech even if the subject matter lacks philosophical value. "Most of what we say to one another lacks 'religious, political, scientific, educational, journalistic, historical, or artistic value' (let alone serious value), but it is still sheltered from government regulation."} …

President Donald Trump signs two executive orders on April 2 instituting tariffs — President Donald Trump signed two executive orders on April 2 instituting tariffs on a wide range of countries. ( Andrew Leyden/ZUMAPRESS/Newscom)

Stanford law professor, leading conservative constitutional law scholar, and former federal judge Michael McConnell has an excellent New York Times op ed on the cases challenging Trump's tariffs, and their significance. An excerpt:

Are President Trump's "Liberation Day" tariffs on, or are they off? And, more important, will legal challenges to these levies put the brakes on the seizure by presidents of both parties of ever-increasing unilateral power?

Two federal courts recently ruled that Mr. Trump lacks authority to impose them, but a specialized federal court with authority over tariff cases, the Court of Appeals for the Federal Circuit, paused the enforcement of those decisions, ordering lawyers to submit legal briefs before a hearing on Monday. One or both cases are likely to land at the Supreme Court in short order.

Understandably, most of the commentary has focused on the practical ramifications for the president's trade negotiations and the American economy. But the cases may be even more important for the future of a fundamental component of the Constitution's architecture: the separation of powers, intended by the founders to prevent any of the government's three branches from becoming all powerful.

The tariff litigation is shaping up as the biggest separation-of-powers controversy since the steel seizure case in 1952. There, President Harry Truman assumed control over the nation's steel mills to ensure the continued supply of armaments needed for the Korean War. The Supreme Court rebuffed Truman, establishing the principle that, even in an emergency, the president cannot take upon himself powers that are granted neither by the Constitution nor by congressional statute….

It is clear that the president has no inherent constitutional authority to set or change tariffs or any other taxes. That authority is expressly given to Congress in the first clause of Article I, Section 8, of the Constitution. And it is also clear that Congress has not expressly delegated any power to the president to impose tariffs on his own say-so.

The question is whether vague language in a 50-year-old statute, the International Economic Emergency Powers Act of 1977, gives the president the tariff-setting power…

The statute makes no mention of tariffs or other taxes, and before Mr. Trump, no president ever interpreted it to include such a power.

But the statute does empower the president to regulate the import of "any property in which any foreign country or a national thereof has any interest by any person." This is the language the Trump administration points to in support of his "Liberation Day" tariffs.

Is that right?

The answer to this question will reverberate far beyond the issue of tariffs, because the federal statute books abound with vaguely worded laws that, if broadly interpreted, could empower Mr. Trump and future presidents to take upon themselves extensive powers never intentionally delegated by Congress. If the courts uphold the Trump tariffs, it will be a major step toward a presidency that does whatever the president wishes to do.

I made similar and related points in my recent Atlantic article about the Court of International Trade ruling in the case against the Liberation Day tariffs filed by the Liberty Justice Center and myself on behalf of five small businesses harmed by the tariffs.

Prof. McConnell is coauthor of an important amicus brief filed in our case, on behalf of a bipartisan group of prominent legal scholars and former government officials. We are very grateful for his support, and that of the others who joined the brief.

One response David L. Bernstein and I have received to our article on campus antisemitism and free speech is that we conflate antizionism with antisemitism. I think that is a misreading of our article; we discuss where University should do with regard to complaints about antisemitism without adjudicating whether the complaints are valid. We think that speech should be protected regardless of whether it is antisemitic, and disruptive, violent, harassing, and other illicit forms of protest should be punished regardless of whether it is antisemitic. So in most of the controversies that have arisen, the question of whether the speech or conduct is "really" antisemitic is not terribly relevant to our thesis.

However, the issue does arise when a student or professor is accused of illegal discrimination against Zionists. "Zionist" is an ideological position, and while university rules may prohibit ideological discrimination, and in some cases ideological discrimination at state universities may violate the First Amendment, Title VI does not prohibit discrimination against Zionists, as such.

Title VI does prohibit discrimination against Jews, and the question then arises as to whether discrimination that is claimed to be discrimination against Zionists can or should be deemed to be discrimination against Jews.

"Zionist" can sometimes serve as a proxy for "Jew." For example, when someone talks about the "Zionist-controlled media," or refers to Jewish students on campus as "Zios," or speaks of "Zionists" exaggerating the Holocaust, invoking classic antisemitism, the fact that they substitute "Zionists" for Jews does not make the statements any less antisemitic. A student who tells his friend, "I feel like punching a Zionist today" and then punches the first student he sees wearing a kippah can't get around a charge of antisemitic violence because he used the word Zionist instead of Jew.

A more complicated issue is whether Zionism is so closely connected to perceptions of Jewishness that for the purposes of antidiscrimination law discrimination against Zionists should be deemed to be discrimination against Jews.

If it were a matter of first impression, I would be inclined to say no. Banning discrimination against Jews does not ban discrimination against things that are associated with Jews.
That is not, however, how courts have treated the issue of sexual orientation discrimination. Several state courts and agencies have been confronted with the question of whether discriminating against people seeking services for same-sex weddings amounts to discrimination based on sexual orientation. To my knowledge, every court or agency that has addressed the issue has found that it does.

In other words, imagine the father of one of the two brides in an upcoming same-sex wedding tries to hire a photographer for the wedding. The father is not gay, and the photographer does not have a policy of discriminating against gay customers, and indeed did a photoshoot for the daughter a few months earlier, knowing that she was gay.

Even though the customer is not gay, and even though the photographer only objects to working on same-sex weddings for ideological reasons, courts and agencies have held that the photographer is guilty of discrimination based on sexual orientation. To the extent they have discussed the issue, the relevant judges have explained that same-sex marriage is so closely tied to gay identity that discriminating against those associated with same-sex marriage is sexual orientation discrimination. And that is true even though not all gay people desire marriage, and some are ideologically opposed to it.

Analogously, imagine a student group on campus that has a "no Zionist" policy. The group claims not to discriminate against Jews, and even has a few anti-Zionist Jewish members. Given the apparent consensus regarding same-sex marriage, it would seem that discrimination against Zionists amounts to discrimination against Jews because Zionism is so closely associated with Jews. And that would be true even though some Jews are ideologically opposed to Israel, and even though the group is admits other could prove that it admits other Jews.

It also seems inevitable that a student group that bans Zionists will discriminate against Jews in being much more likely to ask potential Jewish members if they are Zionists than to ask others. Students at encampments such as UCLA's not surprisingly singled out visible Jews, such as Jews wearing yarmulkes, to grill about their views regarding Israel before allowing them to traverse campus.

Imagine a campus group that says that they don't discriminate against gays, but only against those who favor same-sex marriage. Or a campus group in the south of the early 1970s that announced that it does not discriminate against black members, but does ban those who favor racial integration. Campus officials would have good reason to suspect that these policies would result in discrimination against gay or or black students, respectively.

So while it may seem a simple matter to separate discrimination based on ethnicity (being Jewish) from discrimination based on an ideological position ("Zionist") that the overwhelmingly majority of the group hold and that is closely associated with that group, in practice it's not nearly so clear-cut.

From today's decision in State v. Bliss (N.C. Ct. App.), written by Judge Jeffery Carpenter and joined by Judges Julee Flood and Michael Stading:

Defendants were journalists for The Asheville Blade, a newspaper. The Asheville Blade is known for criticizing the Asheville Police Department's methods of clearing homeless encampments and corresponding protests. On 19 December 2021, a multi-day protest began in Aston Park …, a public park owned and operated by the City of Asheville …. Section 12-41 of the City Code (the "Park Curfew") provides that … "All public parks … shall be closed to the general public between the hours of 10:00 p.m. and 6:00 a.m." …. The purpose of the protest was to demand that the city allow "sanctuary camping" in the Park for the local homeless population….

On 25 December 2021, Defendants were at the Park….. Shortly after 10:00 p.m., officers began dismantling protestors' tents and artwork. Officers also instructed everyone in the Park, including Defendants, to vacate the Park. Officers told Defendants they could continue reporting from outside the Park. Defendants, however, did not leave the Park and around 10:30 p.m., following additional requests by officers to vacate the Park, officers arrested Defendants for second-degree trespass….

Defendants were found guilty, and sentenced to "a $100 fine plus court costs." They appealed, but the appellate court rejected their First Amendment claims:

[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong.]

[I]f the discussion in Parts I and II is correct, the new technologies will change the speech market much more dramatically than we've seen so far. Today's First Amendment law evolved in a media world that had particular characteristics. A relatively few established outlets carried most of the speech that mattered. Extremist speakers had fairly little access to the public. The main news sources—TV programs and newspapers—provided a mix of ostensibly nonpartisan information about a variety of topics. The limited set of sources gave people a more or less common base of information from which to argue. These underlying characteristics are, in my view, more significant than the ones discussed in the last few paragraphs. If they change, what consequences will this have for First Amendment law?

Let me begin my answer with the good news.

Existing First Amendment doctrine is founded on some rather idealized premises. "[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market." "[T]he fitting remedy for evil counsels is good ones." People who are offended by speech may "effectively avoid further bombardment of their sensibilities simply by averting their eyes."

These premises may often be true, but sometimes they simply aren't. Sometimes the supporters of a thought have millions of dollars, while opponents are too poor to compete effectively. Some markets are monopolized by one speaker, for instance a single cable system. Good counsels from poor speakers may often not be an adequate remedy for evil ones from richer, louder speakers. And Justice Stevens had a point: "To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow." Unless offense is simply constitutionally irrelevant (in which case the possibility of averting one's eyes or ears shouldn't matter), once the words are heard the injury is complete.

In Bresler v. Muster, decided Thursday by the Massachusetts high court (in an opinion by Justice Serge Georges), a Massachusetts Appeals Court staff attorney (Bresler) who had been fired sued three managers—the deputy chief staff attorney (Muster), the chief staff attorney (Bowe), and the court administrator (DeRossi)—claiming the firing stemmed from their personal hostility to Bresler. The legal theory was tortious interference with advantageous relations, which under Massachusetts law requires a showing that

(1) [the plaintiff] had an advantageous relationship with a third party …; (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant's interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions.

The "improper … motive" portion of the third element has been understood as requiring "actual malice" in the sense of "a spiteful, malignant purpose, unrelated to the legitimate corporate interest." (This is not the way "actual malice" is used in libel law, where it refers to knowing or reckless falsehood.)

The court allowed Bresler's case to go forward against Muster and Bowe:

[I]t is reasonably inferable that Muster acted with a spiteful, malignant purpose unrelated to any legitimate interest of the Appeals Court—namely, to alienate Bresler from his superiors and peers out of resentment for his professional success. This improper motive is sufficiently supported by allegations that (i) other staff attorneys believed Muster was jealous of Bresler; (ii) Muster accused Bresler of attempting to "take over"; (iii) she solicited criticism of Bresler from judges and encouraged them to report those criticisms to Bowe; (iv) she ridiculed Bresler and belittled his writing to judges Bowe, DeRossi, and other staff attorneys; (v) she discouraged attendance at Bresler's seminars and failed to publicize them; (vi) a union steward reported that Muster was "brutal" in her review of Bresler's editing and subjected him to unfair scrutiny; (vii) Bresler's performance evaluations declined sharply after Muster became deputy chief staff attorney and began attending his performance meetings, supporting an inference that Muster contributed to that decline; and (viii) Muster provided at least some of the false or trivial allegations used by DeRossi as grounds for Bresler's termination. {Taken as true, Muster's alleged conduct plausibly … supports an inference of an "unjustified personal vendetta or ill will exceeding personal dislike."}

On Saturday, the Texas legislature gave final approval to Senate Bill 12, an expansion of Texas' anti-DEI policy for public and charter schools that supporters have hailed as a "Bill of Parental Rights."

Among many controversial provisions, the bill contains an especially legally dubious one that categorically bans certain student clubs that legislators disapprove. After noting that a public or charter school may in general "authorize or sponsor" student groups, S.B. 12 carves out a solitary exception: "A school district or open-enrollment charter school may not authorize or sponsor a student club based on sexual orientation or gender identity." Sec. 33.0815(b).

The bill's chief sponsor initially likened these LGBT student groups to "sex clubs," but later apologized for that characterization. Both supporters and critics of the bill interpret the provision to prohibit student clubs that focus on the subject matter of sexual orientation or gender identity (SOGI), rather than as barring clubs whose membership is confined to students of a certain sexual orientation or gender identity. By state law, as applied, only those student groups focusing on SOGI issues could never be "authorized." Presumably, they would be prohibited from meeting on school premises, as approved student groups may do.

If this interpretation is correct, S.B. 12 likely infringes the constitutional free speech rights of students and violates federal law if applied to exclude students groups devoted the subject of SOGI.. Let's consider each of these in turn.

(1) S.B. 12 and the First Amendment

By allowing schools generally to authorize and sponsor student clubs, the legislature is allowing schools to create what's known as a limited public forum. Under that First Amendment doctrine, if a school allows student groups, it cannot discriminate on the basis of the content of the group's speech unless the restriction is narrowly tailored to serve a compelling state interest. That's true even if that content is opposed on moral or religious grounds by administrators, other students, some parents, the local community, or legislators.

As applied, S.B. 12 would discriminate on the basis of subject matter--the subjects of sexual orientation and gender identity--addressed by student groups. It singles them out for disfavored treatment. Texas has not identified a compelling interest in forbidding student discussion of homosexuality or transgender issues. Legislator opposition to discussion of SOGI or student advocacy of equal rights is not a compelling interest. Nor is legislators' desire to keep students in the dark about SOGI, or to keep gay and transgender students in the closet. Even if these interests were compelling, Texas would have a difficult time showing how a total ban on LGBT student groups narrowly serves them.

Elsewhere, in a section of the bill prohibiting "instruction, guidance, activities, or programming" regarding sexual orientation and gender identity, the bill cautions that the section "may not be construed to limit a student's ability to engage in speech or expressive conduct protected by the First Amendment to the United States Constitution or by Section 8, Article I, Texas Constitution," provided the speech "does not result in material disruption to school activities." Sec. 28.0043(b)(1).

But this constitutional avoidance provision does not save the constitutionality of the ban on LGBT student clubs. First, it applies only to the section prohibiting SOGI instruction, not to the one banning student clubs. Second, as applied, the student club ban would prohibit what the Constitution requires in a limited public forum: equal treatment based on the content of the group's speech. There's no saving construction plausibly available here.

(2) S.B. 12 and the Equal Access Act

Beyond the First Amendment, S.B. 12 appears to violate the Equal Access Act of 1984. That federal law provides:

It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.

20 U.S,. Code Sec. 4071. Under the law, the school creates a limited open forum "whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time." If even one noncurricular student group is permitted to meet, all such student groups must be treated equally.

Congress passed the Equal Access Act at the urging of conservatives who quite rightly wanted religious student groups to be able to meet on public school grounds just as other groups could. But the law was quickly and successfully used by student gay-straight alliances to challenge bans on gay student groups. In Texas, despite deep hostility, these groups have flourished in middle schools and high schools for decades.

S.B. 12 mandates the very unequal treatment this hostility could not achieve. It would deny access based on the "religious, political, philosophical, or other content of the speech" by LGBT student groups.

(3) Alternatives for state regulation of student activities

States may, of course, address disruptive student behavior and even some problematic student speech on campus through means that violate neither the Constitution nor federal law.

States may prohibit student conduct (sexual or otherwise) on campus that is illegal or inappropriate. But that is not what S.B. 12 does. As applied to exclude LGBT student groups, it targets their speech.

States may also prohibit student speech (a) that is constitutionally unprotected (like obscenity or threats) or (b) that is reasonably forecast to cause material disruption to the school's educational mission. Student discussion of homosexuality and gender dysphoria, and advocacy of equality for gay and transgender people, are fully protected by the First Amendment. Yet S.B. 12 makes no effort to tie its categorical discrimination against student clubs discussing SOGI to any acknowledged limitation on student speech.

Schools may also impose reasonable time, place, and manner restrictions on student speech that are content neutral and don't discriminate among student clubs. A school could require that student groups meet only at certain noninstructional hours of the school day or in certain classrooms on campus, for example. But again, S.B. 12 is not such a restriction. LGBT student groups, and they alone, are forbidden at all times and all places within the school.

For more than 50 years now, courts have repeatedly affirmed the right of LGBT student clubs to meet on campus and to be treated equally with other student led groups. By giving its approval to S.B. 12, the Texas legislature failed its legal and constitutional obligation to uphold their rights.

As a VC commenter points out, universities in the past have often been tolerant of illicit behavior by student protestors, at least so long as they were protesting for lefty causes like Black Lives Matter or action on climate change. So why should David L. Bernstein and I insist that anti-encampment and anti-disruption rules be strictly enforced for anti-Israel demonstrators?

The answer is that universities have not been ideologically neutral in what behaviors they allow. Universities back in the day allowed anti-apartheid encampments to persist, despite the encampments violating school rules. Is there any reasonable possibility they would have similarly permitted pro-apartheid encampments? Universities have been loathe to even permit satirical affirmative action bake sales, even when the organizers did not violate any university rules and were engaged in First Amendment-protected activity.

So here's what David L. and I conclude: The basic question university officials should ask themselves is this: if a group of student white supremacists was engaging in this behavior, are there existing rules that could be enforced and therefore would be enforced to stop them? If the answer is yes, then the exact same level of enforcement should be brought to bear against anti-Israel (or any other) protestors. This is not because such protestors are necessarily akin to white supremacists, but because a university should not be enforcing (or not enforcing) its rules based on the ideological proclivities of the students breaking the rules.

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