5/11/1942: Gordon Hirabayashi "failed to report to the Civil Control Station within the designated area." The Supreme Court upheld the constitutionality of his conviction in Hirabayashi v. U.S. (1943).
Today in Supreme Court History: May 11, 1942
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Virginia McDonald's Bars Under-21-Year-Olds from Eating Inside. Is That Legal?
WJLA (Ida Domingo) reports that a Virginia McDonald's put up a sign that states,
Due to repeated incidents of student violence, this McDonald's location is temporarily closed for dine-in service to anyone under 21 years of age. This decision was made to protect our staff, our guests, and our community.
According to the story,
To enter, customers must ring a doorbell to be allowed entry by an employee. A spokesperson for the franchise said student violence and disrespectful behavior occur at least once a week, causing frustration among staff and customers.
"The fighting is a problem and they're pretty brazen. The management tries to step in and these kids are pretty violent," said longtime customer Robert Hancasky, who said he has frequented this McDonald's for nearly 50 years. "They're just trying to stop the violence because it's not fair to any other customer who comes in for the sandwich, a hard-working person, they got to put up with a bunch of idiots."
Despite the restrictions, customers under 21 can still use the drive-thru, order via a mobile app for curbside pickup, and dine inside if accompanied by a chaperone.
I sympathize with the management's concerns, and with the concerns of the quoted customers. But my tentative thinking is that this violates Virginia public accommodations law, which provides,
Court Orders Release of Tufts Foreign Student Detained For Her Speech
The ruling is a victory for the proposition that the First Amendment applies to immigration and visa restrictions.
Yesterday, federal District Judge William K. Sessions, III, of the District of Vermont ordered the immediate release of Tufts graduate student Rumeysa Ozturk, whom ICE had detained and slated for deportation based on her anti-Israel speech. There does not appear to be a written decision in the case. But here is a summary of the background of the case, and what the judge said orally:
Tufts University doctoral student Rümeysa Öztürk was released from a Louisiana detention center Friday, six weeks after masked federal agents took her into custody amid the Trump administration's effort to deport noncitizens who have protested against the war in Gaza.
Hours after US District Judge William K. Sessions III ordered her immediate release, a smiling Öztürk was surrounded by a group of supporters who chanted "Rümeysa! Rümeysa!" as she walked out of the detention center Friday evening….
The Department of Homeland Security claimed that Ozturk "engaged in activities in support of Hamas, a foreign terrorist organization that relishes the killing of Americans." However, the only evidence it could provide, even after prodding from Sessions, was an op-ed Ozturk helped write that called on Tufts to divest from Israel.
Ozturk filed a habeas corpus petition challenging her arrest and detention….
Her arrest came a year after Öztürk co-authored a campus newspaper op-ed that was critical of Tufts University's response to the war in Gaza, and her attorneys have said that she was targeted by the administration in an attempt to chill pro-Palestinian speech in violation of her constitutional rights. The 30-year-old, originally from Turkey and on a valid F-1 student visa, was shuttled through multiple states after her arrest and suffered through a series of asthma attacks without adequate medical care, according to her attorneys.
Öztürk, who has not been charged with any crime, was accused by the Trump administration of participating in activities in support of Hamas. Neither the administration nor attorneys for the Department of Justice presented any evidence of her alleged activities in court.
Sessions presided over the more than three-hour hearing, where four witnesses – including Öztürk – testified about her community engagement work and her asthma. Sessions said Öztürk had raised "substantial claims" of both due process and First Amendment violations.
"Continued detention potentially chills the speech of the millions and millions of individuals in this country who are not citizens. Any one of them may now avoid exercising their First Amendment rights for fear of being whisked away to a detention center," Sessions said.
Sessions noted that for multiple weeks, except for the op-ed, the government failed to produce any evidence to support Öztürk's continued detention. "That is literally the case," Sessions said. "There is no evidence here as to the motivation absent the consideration of the op-ed."
The judge ordered her release without any travel restrictions or ICE monitoring.
It is obvious that Ozturk's op ed was the kind of speech protected by the First Amendment. I have previously written on why there is no immigration exception to the First Amendment, nor does it matter that a student visa is not itself a constitutional right:
The text of the First Amendment is worded as a general limitation on government power, not a form of special protection for a particular group of people, such as US citizens or permanent residents. The Supreme Court held as much in a 1945 case, where they ruled that "Freedom of speech and of press is accorded aliens residing in this country."
A standard response to this view is the idea that, even if non-citizens have a right to free speech, they don't have a constitutional right to stay in the US. Thus, deporting them for their speech doesn't violate the Constitution. But, in virtually every other context, it is clear that depriving people of a right as punishment for their speech violates the First Amendment, even if the right they lose does not itself have constitutional status. For example, there is no constitutional right to get Social Security benefits. But a law that barred critics of the President from getting those benefits would obviously violate the First Amendment. The same logic applies in the immigration context.
The Cato Institute/FIRE amicus brief in Ozturk's case elaborates on the reasons why the First Amendment applies in much greater detail.
In earlier posts on this topic, I have urged universities to file lawsuits challenging Trump's speech-based deportation policy, rather than letting students like Ozturk fend for themselves. I was happy to see that many schools (including my undergraduate alma mater Amherst College) filed an amicus brief supporting a lawsuit brought against the policy by the American Association of University Professors (the court recently issued a preliminary ruling in favor of AAUP, allowing the case to go forward). But universities should do more to protect their students.
As I have previously noted, I have little sympathy for recent anti-Israel campus protests, and for the views of many of the foreign students targeted for deportation. But freedom of speech applies regardless of the merits of the opinions targeted by censors. And the sorts of vague standards used to justify deporting Ozturk can easily be turned against adherents of a wide range of other views, including those espoused by people on the political right, as well as the left.
The litigation over speech-based deportations will continue in this and other cases, and this ruling may well be appealed. But it's a good sign, nonetheless.
Can the EPA Rescind the Endangerment Finding? Should It Even Try?
A recent Federalist Society webinar on one of the Trump EPA"s top agenda items.
Environmental Protection Agency Administrator Lee Zeldin has announced that the agency will reconsider the so-called endangerment finding, which triggers the regulation of greenhouse gases under various provisions of the Clean Air Act. For reasons I explained in this post, I believe this is a fool's errand, no matter what one thinks about the threat posed by climate change or the utility of federal regulation.
On Friday, I participated in a webinar discussing the legal and practical issues concerning an attempted rescission of the endangerment finding with regulatory analyst Richard Belzer and attorney Michael Buschbacher of Boyden Gray. The program was moderated by Laura Stanley of Gibson Dunn. The webinar was sponsored by the Regulatory Transparency Project of the Federalist Society and is viewable below.
Remembering Justice Souter
The justices reflect on their former colleague.
As has become traditional, the sitting and retired justices of the Supreme Court have issued statements regarding the death of Justice David Souter. All of the justices participated, including those who did not serve with him on the Court. The statements may be found here.
For those interested in Justice Souter's jurisprudence, beyond what is found in his opinions, here is the commencement speech he delivered at Harvard in 2010.
"This Case Has Ended Up in a Rather Confusing Procedural Neverland," "in a Peter Pan-esque State of Immaturity,"
"preventing any court from adjudicating on the merits." (Lawyers' true superpower: The power to turn every question into a question about procedure.)
From Westenbroek v. Kappa Kappa Gamma Fraternity, decided by Judge Alan Johnson (D. Wyo.):
The matter before us concerns a lawsuit that was filed in March of 2023 by six women against their sorority and against Artemis Langford, a member of that sorority who had been admitted through normal procedures the previous fall. {… KKG considers itself a "fraternity" in its governing documents. However, emulating Plaintiffs and our national discourse, the Court refers to KKG as a "sorority."}
Plaintiffs, upset by the fact that Ms. Langford is transgender, asked this Court to void her admission, find that the President of Kappa Kappa Gamma (KKG) violated her fiduciary obligations to the sorority, and prevent other transgender women from joining the sorority nationwide. We dismissed the complaint without prejudice in August of 2023, holding, inter alia, that KKG's freedom of expressive association allows it to interpret the word "woman" in its bylaws however it wishes.
In June of 2024, Plaintiffs' appeal to the Tenth Circuit was also dismissed, on the grounds that our dismissal without prejudice was not a final judgment because we implicitly gave Plaintiffs leave to amend.
The Tenth Circuit clarified:
Today in Supreme Court History: May 10, 1886
5/10/1886: Yick Wo v. Hopkins decided.
Only Congress May Suspend the Writ of Habeas Corpus
Lessons from Hamdi v. Rumsfeld
As my co-blogger Ilya Somin notes below, White House aide Stephen Miller commented today that the Trump Administration is "actively looking at" whether it would be possible to suspend the writ of habeas corpus on the grounds that the country is suffering an "invasion" by illegal immigrants.
My own view is that the White House can look at this question all it wants, but it is ultimately up to Congress whether the writ should be suspended (at least during times of peace). This is clear form the Constitution's text and structure. The suspension clause is in Article I, section 9, as among several enumerated constraints on legislative power. It is an interesting question whether Courts can review a legislative suspension of the writ, but I think it is relatively clear that the Executive cannot do so unilaterally.
I also think that the Supreme Court has fairly consistently operated under this assumption. Consider Hamdi v. Rumsfeld. In that case there was unanimous agreement that Congress had not suspended the writ, and so the question was whether the federal government could detain Hamdi (an American citizen alleged to be an enemy combatant captured in Afghanistan) in the United States without putting him on trial.
Justice Scalia, joined by Justice Stevens, concluded that the answer was "no," absent suspension of the writ of habeas corpus by Congress.
Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, § 9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge.
In other words, the Constitution's full procedural protections apply unless and until Congress suspends the writ.
While other justices did not agree with Justice Scalia on the merits, a majority of the justices indicated that they too believe it is for Congress to determine whether the writ should be suspended.
Justice O'Connor's plurality opinion, for example, noted that the write exists as a check on executive power unless and until Congress suspends it. Consider these two passages:
Though they reach radically different conclusions on the process that ought to attend the present proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. U.S. Const., Art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it"). Only in the rarest of circumstances has Congress seen fit to suspend the writ. See, e.g., Act of Mar. 3, 1863, ch. 81, § 1, 12 Stat. 755; Act of Apr. 20, 1871, ch. 22, § 4, 17 Stat. 14. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law.
Unless Congress suspends the writ, it remains a check on the Executive. This is a claim that would be nonsensical if the Executive could suspend the writ unilaterally. As she wrote later in her opinion:
Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions. See St. Cyr, 533 U.S., at 301, 121 S.Ct. 2271 ("At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest"). Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his Government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.
Even Justice Thomas, who embraced an incredibly expansive view of the Executive Branch's authority to detain enemy combatants in an armed conflict, wrote as if it is solely up to Congress whether the writ should be suspended. Indeed, this formed part of the basis for his disagreement with Justice Scalia, as if suspension of the writ was necessary to detain Hamdi, Justice Thomas wrote, Congress would have to violate the Constitution (by suspending the writ absent the required predicate) to achieve the desired result.
Justice SCALIA apparently does not disagree that the Federal Government has all power necessary to protect the Nation. If criminal processes do not suffice, however, Justice SCALIA would require Congress to suspend the writ. See ante, at 2673. But the fact that the writ may not be suspended "unless when in Cases of Rebellion or Invasion the public Safety may require it," Art. I, § 9, cl. 2, poses two related problems. First, this condition might not obtain here or during many other emergencies during which this detention authority might be necessary. Congress would then have to choose between acting unconstitutionally4 and depriving the President of the tools he needs to protect the Nation. Second, I do not see how suspension would make constitutional otherwise unconstitutional detentions ordered by the President. It simply removes a remedy.
So even if the White house is convinced that the United States is currently subject to an "invasion" (a view I reject), I believe there is broad (if not universal) agreement that it would be solely up to Congress to suspend the writ.
UPDATE: On the original meaning of the suspension clause, see John Harrison, "The Original Meaning of the Habeas Corpus Suspension Clause, the Right of Natural Liberty, and Executive Discretion."
Homer Nodded in the U.S. Reports
How the phrase ended up in an opinion after it had been omitted.
The phrase "Homer nodded" appears four times in the U.S. Reports. The first time was in Justice Douglas' concurrence in Brandenburg v. Ohio (1969) (quoting Judge Learned Hand as it happens).
The phrase would not appear in another Supreme Court decision until 1992's Lee v. Weisman, when Justice Souter included it in a footnote. Yet as Mark Tushnet recounts on Balkinization, while the phrase had been included in the original slip opinion, it was omitted by the Reporter's office--apparently because no one there recognized the phrase and they thought it was an error. As a consequence, it did not appear in the official bound volume for several years. Indeed, it was only after Tushnet contacted Souter about the omission that Souter realized what had occurred, and the language was restored by a subsequent erratum.
Tushnet writes:
"Homer nodded" comes to us from the Roman poet Horace via two English poets from the turn of the seventeenth and eighteenth centuries, John Dryden and Alexander Pope. It's been widely observed that Justice Souter seems to have been more comfortable in some earlier century, though the seventeenth seems to me a bit too far back. Justice Souter's writing style was more ornate, more nineteenth century, than the pared down (Hemingway-influenced?) contemporary opinion style.
"Homer nodded" was part of Justice Souter's store of cultural knowledge—but not, apparently, part of the store of such knowledge in the Reporter's office. Justice Souter could write "Homer nodded" as easily as Justice Scalia could refer without citation to Broadway lyrics or Justice Kagan (with citation!) to Dr. Seuss. When I retired from classroom teaching I had just about played out my string on cultural allusions that my students could understand ("The Princess Bride" was hanging in there by a thread), and my guess is that that experience is near-universal (we age, the students we deal with in the classroom remain young).
If there's a larger point here, and maybe there isn't, it is something like this: We all carry cultural knowledge with us but what that knowledge is changes—not for any individual, but for the population composing our institutions—and analysis may go at least a bit off the rails if "we" (the older among us) use our cultural knowledge as the predicate for our evaluation of the performance of today's institutions. Or, I suppose, for our evaluation of the performance of yesterday's.
For what it is worth, "Homer nodded" has appeared in two more Supreme Court opinions: McCreary County, Kentucky v. American Civil Liberties Union (2005) (citing Lee v. Wiesman) and Justice Gorsuch's concurrence in Kisor v. Wilkie (2019).
White House May Try to Suspend the Writ of Habeas Corpus in Order to Facilitate Deportation of Migrants
I have long warned of this dangerous implication of the argument that illegal migration qualifies as "invasion."
White House Deputy Chief of Staff Stephen Miller recently said the Trump Administration is "actively looking" into suspending the writ of habeas corpus in order to prevent immigrants from challenging their deportation in court:
White House deputy chief of staff Stephen Miller said Friday that President Trump and his team are "actively looking at" suspending habeas corpus as part of the administration's immigration crackdown.
"Well, the Constitution is clear — and that of course is the supreme law of the land — that the privilege of the writ of habeas corpus can be suspended in a time of invasion," Miller told reporters at the White House.
A writ of habeas corpus compels authorities to produce an individual they are holding and to justify their confinement.
It's been a key avenue migrants have used to challenge pending deportations under the Alien Enemies Act, a rarely-used 18th-century power Trump cited to deport Venezuelan nationals he's accused of being gang members to a notorious megaprison in El Salvador.
If the writ of habeas corpus is suspended, the consequences would not be limited to supposedly illegal migrants. Legal immigrants and US citizens could be detained without due process, as well.
I have been warning about this implication of the argument that illegal migration is "invasion" for a long time. See, e.g., here and here.
If illegal migration and cross-border drug smuggling are "invasion," that means we are in a state of invasion at virtually all times, since these activities have been ubiquitous for so long as we have had the War on Drugs and significant migration restrictions. That is both dangerous, and an additional reason to conclude that this broad interpretation of "invasion" is at odds with the original meaning of the Constitution. Given the importance that the Founders assigned to the writ of habeas corpus (British violations of the writ were among the major grievances that led to the American Revolution), they would not have created a system where the federal government could suspend it at any time.
Fortunately, courts (including both liberal and conservative judges) have so far uniformly rejected the administration's claims about the meaning of "invasion" in ongoing litigation over the Alien Enemies Act. Multiple earlier court decisions have reached the same conclusion with respect to the meaning of "invasion" in the Constitution. Those rulings were in cases involving state governments, and their claims to be able to "engage in war" in response to "invasion," as Article I, Section 10, Clause 3, of the Constitution authorizes them to do.
Hopefully, that judicial trend will continue. And if the administration tries to suspend the writ based on bogus claims of "invasion," courts should reject it.
In addition, there is longstanding disagreement over the issue of whether the President can suspend the writ of habeas corpus on his own, or whether only Congress can do so. Most legal scholars hold the latter view, since the Suspension Clause is listed in Article I among the powers of Congress, not Article II (which outlines those of the executive branch). But even if the president can suspend the writ without congressional authorization, the Suspension Clause says he can only do so "when in Cases of Rebellion or Invasion the public Safety may require it." There is no such "Rebellion or Invasion" going on, and therefore suspension would be illegal.
UPDATE: Steve Vladeck has additional (I think well-taken) criticisms of Miller's statements here.
Friday Open Thread
What's on your mind?
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Non-citizen soldiers, habeas runarounds, and all federal law.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
State courts often follow bad federal precedent in interpreting their own state constitutions. How best to litigate against this? Over at the Brennan Center's State Court Report, IJ's Anthony Sanders suggests that lawyers should make originalist arguments using their own states' history. Even if they're not originalists themselves.
New on the Short Circuit podcast: Jury trial rights and a very general search.
- In 2017, the Trump administration put the brakes on the expedited path to citizenship that's been available to non-citizen soldiers since World War I. After the district court strikes down some of the changes, the Biden administration rescinds the policy (while continuing to litigate the case and formulating a new policy that never materializes). Trump II administration: We're bringing the policy back, and we want to appeal the district court's opinion. D.C. Circuit: No can do. The case is moot, and also, since the recission was not an attempt to evade judicial review, the district court's opinion is vacated.
- If you want to pilot commercial vessels on the St. Lawrence Seaway, you need a license from the Coast Guard. The Coast Guard, however, has fully turned over its licensing authority to a private, for-profit business. When one captain—who has completed a lengthy apprenticeship but not yet received his license—raises concerns that the business is mismanaging its financial affairs, he's blackballed on a variety of pretexts. He sues the Coast Guard, arguing, among other things, that delegating its regulatory authority to a private business is unconstitutional. D.C. Circuit: And we won't get to the merits of any of it because we're not sure he completed the training, even though he did the exact same training as everyone else who received licenses. (This is an IJ case.)
- Over a dissent from Justice Breyer, the First Circuit says a federal prisoner in New Hampshire who complains of intolerable knee pain cannot sue prison officials for deliberate indifference to his medical needs. Because knee pain is an entirely different context than untreated asthma. Read More
Hate Crime Hoax Could Be Constitutionally Unprotected True Threat
From today's decision by Judge Regina M. Rodriguez (D. Colo.) in U.S. v. Bernard:
Colorado Springs, Colorado, held an election for mayor …. CANDIDATE 1 [Yemi Mobolade -EV] is black and CANDIDATE 2 [Wayne W. Williams -EV] is white…. Defendants supported CANDIDATE 1. The Indictment alleges that the Defendants devised a plan to help CANDIDATE 1 win the runoff election. In the early morning hours [three weeks before the election], the Defendants defaced a political sign with CANDIDATE 1's name on it by using red spray paint to write the N-word on it. The Defendants then staged a burning cross in front of the sign and videotaped it.
Later that same day, the Defendants created a fake email account, posing as a concerned citizen, and sent the video, along with an email referring to hate crimes, to media outlets and CANDIDATE 1's campaign. {The email described what was depicted in the video—"To my surprise and disgust it was a cross on fire in front of running candidate's sign for Mayor. Looking past the flames I see it's Yemi Mobalade's sign with the word sprayed painted across in red 'NIGGER'!" The email also included language regarding hate-crime tactics used to harass and intimidate candidates and voters in elections.} According to Defendant Bernard, Defendants' actions were "specifically designed to generate voter outrage and support for a candidate" they actively backed….
Defendants were charged with conspiracy and with "using instrumentalities of interstate commerce to maliciously convey false information to intimidate someone by means of fire," and the court rejected defendants' motion to dismiss the charge:
Free Speech Unmuted: Can AI Companies Be Sued For What AI Says?
A mother sues Character.AI, claiming that a conversation between her teenage son and a Character.AI chatbot led him to commit suicide. A conservative activist sues Meta, claiming that its AI generated false accusations about him. Jane and I analyze these cases, and more broadly, discuss lawsuits against AI companies, and possible First Amendment defenses to those lawsuits.
See also our past episodes:
Justice Souter's Papers Will Be Available In The Year 2075
The Justice was "emphatic" that his papers would be available only fifty years after his death.
Today the Supreme Court announced that Justice David H. Souter passed away at his home in New Hampshire. I expect there will be many remembrances of the Justice. But today does mark something of a countdown.
In 2015, Justice Souter told my colleague Gerard Magliocca that his papers would become available fifty years after his death:
"I have given such papers as I've retained to the New Hampshire Historical Society, to be opened for inspection after the 50th anniversary of my death. By that time, they will be of interest only to the historians taking the long view."
Tony Mauro offered more details at the defunct Blog of the Legal Times:
Bill Veillette, the historical society's executive director in 2009, also confirmed on Wednesday that Souter's wish all along was for release of his papers 50 years after his death, not his retirement.
"He was very emphatic about it," Veillette recalled. "He told me, 'I've got an incinerator outside my house, and either you agree to 50 years after my death, or they go into the incinerator.'" Since many papers are donated by families decades or centuries after a notable person's death, Veillette said Souter's 50-year delay seemed relatively brief. Veillette is now the executive director of the Northeast Document Conservation Center in Massachusetts.
(I miss BLT.)
Start the clock. Souter's papers will be available at the earliest in the year 2075--just in time for the Tricentennial. If I am still on planet earth then, I would be about 90 years old. I am skeptical anyone in the year 2075 will have much interest in those papers, as all of Souter's other colleagues will have likely released their papers by then.
Transcendental Remediation: $2.6M Settlement in Lawsuit Over Chicago Public School Transcendental Meditation Program
The ABA Journal (Debra Cassens Weiss) reports on the settlement (in which "defendants did not admit liability"):
The lead plaintiff in the [class action] suit, Kaya Hudgins, was a practicing Muslim at the time of the "Quiet Time Program," according to prior coverage by Patch and Religion News Service and an April 2024 press release. Transcendental meditation was represented as nonreligious, but the mantras that students were taught to silently repeat were in fact words that honored or referenced specific Hindu deities, the suit had alleged.
The suit also alleged that students were required to complete a "Puja" initiation ceremony that included chants recognizing powers of Hindu deities.
Here's an excerpt from Judge Matthew Kennelly's decision in Williams v. Bd. of Ed. (N.D. Ill. 2021), which had allowed a related lawsuit to go forward:
Williams attended Bogan Computer Technical High School (Bogan) in Chicago from fall 2017 until he graduated on June 18, 2019. While Williams was a student, Bogan implemented the Quiet Time program during the 2017–18 and 2018–19 school years….
According to Williams, his first experience with Transcendental Meditation as a part of the Quiet Time program occurred during the 2018–19 school year, when he was eighteen years old. He stated that he did not receive any letters about the program to give to his parents, but in October 2018 he and other students were given a document titled "Quiet Time Program Student Application for Transcendental Meditation Instruction Bogan High School." He also stated that he had been informed that Transcendental Meditation was "a really effective way to meditate and find yourself" and that he signed the form when it was first presented to him because he "was interested learning [meditation] properly."
Although the document included language stating that "learning the TM technique is an optional activity," Williams maintained it was "not optional" and "mandated" for students to sign the document. He explained that this was because students who initially chose not to learn Transcendental Meditation "eventually had to sign up," though "off the top of [his] head at the [moment]" he was unable to name any student who did not sign the document at first and later "was forced to do [Transcendental Meditation]." As for meditating during the fifteen-minute Quiet Time periods, Williams did not dispute that "if [he] didn't want to do [Transcendental Meditation], [he] didn't have to."
In contrast, Principal Aziz-Sims testified during her deposition that students could choose not to learn Transcendental Meditation. She stated that although students who were disrupting others during Quiet Time may have been reprimanded by a teacher, an administrator, or the principal herself, she was not aware of any Bogan student being disciplined for choosing not to learn Transcendental Meditation. She also testified that she approved giving students at least two letters explaining Quiet Time to their parents and allowing their parents to opt out of the program, in accordance with the school's policy regarding student involvement in other school activities.
Should Streisand Warnings Join Miranda Warnings?
Apropos Tuesday's post "Are Employment Lawyers Disclosing the Reputational Risks of Litigation to Their Clients?," Krista Lee Baughman (Dhillon Law) writes about a similar question related to libel law. (Baughman is a prominent libel lawyer, see, e.g., Starbuck v. Meta Platforms, the new Large Libel Models lawsuit.)
[A]s a defamation lawyer, one of the (many) things I flag for clients in the very first consultation is the risk of the "Streisand Effect" if they make their complaints public, along with the fact that their names will forever be tied to their case when they are subject to a background search and potentially also a Google search if the matter gets press. I also flag the possibility that, in cases where the defendant has postured themselves publicly as a "social justice warrior," then even the demand letter we send might be made public by the defendant, e.g. via a social media post claiming that the defendant "spoke up and now is being pressured to abandon their free speech rights," etc.
I think these are essential points to raise in early calls with would-be defamation clients, even if you end up talking yourself out of a job, and I'd counsel employment lawyers to raise the possibility with their clients as well.
I hope other lawyers do the same.
Today in Supreme Court History: May 9, 1974
5/9/1974: Resolution to impeach President Nixon introduced in the House of Representatives. On 7/24/1974, the Supreme Court would decide U.S. v. Nixon.
