The Volokh Conspiracy Archive

FIRE, which represented the student (Kimberly Diei) reports:

After her First Amendment lawsuit set precedent last fall for student free speech rights, Memphis pharmacist Kimberly Diei agreed to a $250,000 settlement with the University of Tennessee. [The settlement was $180K to Diei, and $70K to her lawyers at FIRE. -EV]

Just a month into her studies in September 2019, UT's pharmacy school investigated Kim for her social media content focused on sexuality, fashion, and music. The college justified the investigation by using vague "professionalism" standards—standards it never provided to Kim—but ultimately dropped that first investigation.

In one tweet, Kim contributed to a trending discussion on Twitter about the song "WAP" by Cardi B and Megan Thee Stallion, suggesting lyrics for a possible remix. In another, she posted a selfie and referenced lyrics from a popular Beyoncé song. [Just to be clear, the lyrics were pretty sexually themed, though that rightly didn't change the First Amendment analysis. -EV]

Unfortunately, Kim's ordeal was not unique. For years, colleges around the country have wielded professionalism codes against students for their expression even when the student's speech has no bearing on their ability to succeed in a given field. Kim's posts were wholly separate from the college, as her accounts operated under a pseudonym and did not reveal her then-identity as a student.

Yet by the following year, Kim was under a second investigation, and UT administrators voted to expel her. In the midst of preparing for exams, she appealed to the dean, who reversed the decision after hearing from FIRE. Then, FIRE sued on behalf of Kim in February 2021….

In 2024, a federal appeals court agreed, ruling that her expression—which administrators called "sexual," "crude," and "vulgar"—was "clearly protected" by the First Amendment. Crucially, in a blow to the qualified immunity that often shields government actors from paying damages for violating constitutional rights, the court emphasized that previous Supreme Court precedent and prior Sixth Circuit rulings put "beyond debate" that the First Amendment protects Kim's speech.

Here's my September post on the Sixth Circuit opinion:

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. Read More

From Doe v. Maloit, decided today by Magistrate Judge Kathryn Starnella (D. Colo.):

Plaintiff and Defendant were married from 2006 to 2018. In April or May 2022, Plaintiff "began receiving phone calls and emails at her place of employment—a school—from strangers, who informed Plaintiff that there were compromising photographs of her online. Some had been taken by Defendant, others by Plaintiff of herself, all while they had been married. They were taken for her and Defendant's private use, and she never consented to their broader disclosure.

At some point between May and August 2022, Defendant admitted that he had previously posted the photographs to a website called RedClouds, where users can share pornographic content. The photographs then spread to other websites, some of which posted them alongside Plaintiff's name, employment information, and work contact information. Plaintiff had to bring the matter to her employer's attention and hired a lawyer to attempt to get the photographs removed from various websites, but only some of the websites have complied. Plaintiff alleges that Defendant disclosed her photographs online. She lodges three claims against Defendant: (1) disclosure of intimate images, in violation of 15 U.S.C. § 6851; (2) unauthorized disclosure of intimate images, in violation of Colo. Rev. Stat. § 13-21-1401 et seq.; and (3) a request for permanent injunctive relief against Defendant.

Defendant denies wrongdoing, alleging that Plaintiff participated in and consented to the posting of the photographs online. He "assisted Plaintiff, with her knowledge, with trying to take some photographs down since 2022." He assisted her in hiring an attorney to attempt to remove photos that had spread beyond RedClouds, but not all websites complied.

Defendant has also asserted counterclaims against Plaintiff. He alleges that he and Plaintiff were consumers of RedClouds content from 2006 to 2009, and that in 2009 or 2010, they "began using RedClouds as both content consumers and content creators." Plaintiff allegedly "explicitly consented" to posting various photographs to RedClouds, initially with her face blacked out but eventually with her face visible. Defendant alleges that the parties continued to engage in erotic photography content creation until 2022, when they were no longer married.

[UPDATE 1/31/2025, 5:29 pm: As it happens, just today the North Carolina Supreme Court handed down a decision interpreting the North Carolina Constitution, McKinney v. Goins, and reached the opposite result from the Maine high court's decision below.]

An interesting (though very long) majority and dissent handed down Tuesday, in Dupuis v. Roman Catholic Bishop [UPDATE: link added]. The opinions well illustrate how many state courts interpret their state constitutions. Some very brief excerpts from the majority

Legislation reviving claims that have expired under the statutes of limitations applicable at the time of the operative events was not deemed by the framers to be a "law" within the power of the Legislature to enact…. This constitutional hostility to legislative efforts to retroactively impair rights, privileges, and/or property, viewing such efforts as beyond the Legislature's function, is reflected in the earliest of our case law [citing a case from 1823, three years after Maine became a state]….

Contemporaneous common law principles can inform the meaning of constitutional provisions because many constitutional concepts originated in the common law. Post-enactment common law and statutes can also illuminate timeless social understandings and values embedded in the Constitution. Long before the adoption of the Maine Constitution, the common law condemned the concept of retroactive liability….

In terms of sheer numbers, at the time of the adoption of our Constitution and for a lengthy period thereafter, the great majority of jurisdictions precluded the revival of claims after their statutes of limitations had expired. After the Supreme Court's decision in Campbell v. Holt (1885), in which the majority held that revival was permitted, some courts deviated from this position. If one includes jurisdictions with
constitutions that contain express anti-retroactivity provisions … then, despite the Supreme Court's view, the majority of state courts of last resort continue to adhere to the view that revival is precluded.

From Tuesday's Nevada Supreme Court decision in Schuman Henschel v. Carter (for more on an earlier decision in Ruth v. Carter, see here):

This appeal arises out of a defamation countersuit brought by respondent Nickolas Carter against appellants Melissa and Jerome Schuman (collectively, the Schumans). Over the span of several years, the Schumans made statements about Carter's alleged sexual assault of Melissa and other women. One of the other women, Shannon Ruth, sued Carter for sexual battery, and Carter countersued for defamation and related torts and joined the Schumans as counter-defendants. The Schumans filed an anti-SLAPP special motion to dismiss Carter's claims against them….

[Under the Nevada anti-SLAPP statute, once a court determines that] "… the claim is based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern[,]" … [the person making the claim must] show "with prima facie evidence a probability of prevailing on the claim." …

"To prevail on a defamation claim, [a public figure] must show (1) a false and defamatory statement; (2) unprivileged publication to a third person; (3) fault; (4) damages, presumed or actual; and … (5) actual malice." Actual malice is demonstrated when a statement "is published with knowledge that it was false or with reckless disregard for its veracity." … "[T]o demonstrate by prima facie evidence a probability of success on the merits of a public figure defamation claim, the [non-moving party's] evidence must be sufficient for a jury, by clear and convincing evidence, to reasonably infer that the publication was made with actual malice." …

An excerpt from the long opinion in Kay v. Irish Rover Inc., decided yesterday by Indiana Court of Appeals Judge Paul Mathias, joined by Judges Elaine Brown and Dana Kenworthy:

Dr. Tamara Kay appeals the St. Joseph Superior Court's order granting The Irish Rover, Inc.'s, motion to dismiss her defamation claim…. On the dates the alleged defamation occurred, Dr. Kay was a tenured professor in the Keough School of Global Affairs and the Sociology Department at the University of Notre Dame. Her "academic research and teaching is focused on trade, labor, social movements, globalization, organizations, and global health which includes reproductive health and rights." Many of Dr. Kay's extensive writings in journals, newspapers, and on Twitter focus on advocating for abortion legalization.

The Irish Rover is an independent, student newspaper at the University. {[O]ne of its missions is to articulate and defend the Catholic character of the University.} …

After the United States Supreme Court decided Dobbs v. Jackson Woman's Health Organization on June 24, 2022, Dr. Kay "became more outspoken on the issue of abortion access," including more frequent posts on Twitter. On September 15, 2022, the Indiana General Assembly's legislation limiting abortion in Indiana took effect, although it was enjoined shortly thereafter….

Kay sued over two articles published by the Irish Rover that concerned Dr. Kay's speech. To oversimplify matters somewhat, under Indiana libel law, a libel claim based on speech on matters of public concern can only prevail based on a showing of knowing or reckless falsehood—mere negligence isn't enough, even if plaintiff is a private figure. (In this respect, Indiana libel law is more speaker-protective than the constitutional minimum set forth by First Amendment law.) And here, the court concluded that the Rover's statements were either true or at least reasonable interpretations of the facts that the Rover had, and certainly weren't knowingly or recklessly false:

1/31/2006: Justice Samuel Alito takes oath.

Map of statutory private employee speech protections throughout the country.

My cohost Jane Bambauer and I discuss state laws that protect speech against private universities and private schools, private commercial property owners, private landlords, and—especially—private employers. You can also watch our past episodes:

Justice Jackson gave an interview to the Associated Press at the Supreme Court. The biggest reveal is that she takes boxing lessons to get out her frustrations from the conservative justices. Lovely.

Buried deep in the story is a brief discussion about her attire at the inauguration.

Jackson, along with the other eight justices, also was part of the pomp and circumstance at President Donald Trump's inauguration, attracting attention for the white cowrie-shell necklace she wore over her judicial robe.

"It happened to coincide with Martin Luther King Day, and I thought I should wear something of cultural significance for that circumstance as well, to honor my heritage on this important day and this important occasion," she said.

The large necklace and earrings had special resonance because the shells have long been associated with African American culture and African heritage.

Um, the lede is buried. These shells didn't simply have resonance with African heritage. They are talismans to ward off evil. Jackson didn't quite deny that fact.

Carry on.

From Tuesday's decision in Fraternal Order of Police v. Township of Springfield, decided by Judge Paul Matey, joined by Judge Anthony Scirica, concluding that the policy was unconstitutional:

The "Thin Blue Line American Flag" ("the Flag") is "a black and white American flag." "All of the horizontal stripes are black and white with the exception of one horizontal stripe that is blue." For Plaintiffs it "represents a show of support for [and] a solidarity with member[s] of law enforcement, which includes, police officers." In March 2020, the PBA {Springfield Township Police Benevolent Association} incorporated the Flag into its logo, which it uses at fundraisers, some of which occur on Township property. Individual Plaintiffs wish to continue to display the Flag on both personal and Township property. And the PBA wants to continue hosting events on Township property, displaying its logo and the Flag.

In 2021, Township Commissioners met with the PBA and asked them to remove the Flag from their logo. The PBA declined, and in response, the Township passed Resolution No. 1592 "prohibit[ing] the publicly visible display or use of any image which depicts the Thin Blue Line American Flag symbol by any Township employee, agent or consultant." The Resolution contains three specific prohibitions:

1/30/1939: Justice Felix Frankfurter takes oath.

Friday, President Trump reinstated his 2017 reinstatement of the 2001 President G.W. Bush reinstatement of President Reagan's "Mexico City Policy" (also called by some the "Global Gag Rule") which provides, in relevant part:

The Mexico City Policy announced by President Reagan in 1984 required foreign nongovernmental organizations to agree as a condition of their receipt of Federal funds for family planning activities that such organizations would neither perform nor actively promote abortion as a method of family planning in other nations. This policy was in effect until it was rescinded on January 22, 1993.

It is my conviction that taxpayer funds appropriated pursuant to the Foreign Assistance Act should not be given to foreign nongovernmental organizations that perform abortions or actively promote abortion as a method of family planning in other nations….

The policy restricts the foreign grantees' speech (actively promoting abortion, which includes public advocacy and lobbying of foreign governments) as well as their conduct. Does this violate the First Amendment?

No, the Second Circuit federal court of appeals held in 1990; and it then followed that decision in 2002, in an opinion by then-Judge Sonia Sotomayor:

From today's decision by Judge Angel Kelley (D. Mass.) in Affleck v. Harvard Crimson Inc.:

Plaintiff Jonathan Affleck [who has also at times litigated as Joachim Martillo -EV] brings this action against Defendant The Harvard Crimson, Inc…. According to the Complaint, the Crimson … deleted Affleck's comments on three articles on the Crimson's website and then suspended Affleck's ability to post. Affleck claims that the Crimson's actions violated the First Amendment …, [the Massachusetts Constitution's free expression provision], and finally, federal and state laws related to common carriage discrimination and public accommodation discrimination….

According to the Complaint, from February 7 to February 10, 2024, Affleck commented, under two different names, 38 times across three articles on the Crimson's website. The three articles focused on Palestine and the Palestinian people…. [In an earlier case, Affleck] "… represent[ed] that each defendant disabled or suspended his account on their respective platforms because he posted content that each defendant deemed to be anti-Zionist."

The court concluded that 47 U.S.C. § 230 precludes all of Affleck's claims:

The judgment was just entered today, and it provides, in relevant part:

All four Defendants—Caleb Freestone, Amber Marie Smith-Stewart, Annarella Rivera, and Gabriella Victoria Oropesa—are ENJOINED for a period of ten years from coming within 100 feet of the facilities that Plaintiff alleges were victimized in this case: South Broward Pregnancy Help Center in Hollywood, Florida; the Life Choice Pregnancy Center in Winter Haven, Florida; and any of the five facilities owned by Plaintiff. The parties agree to mutual general releases of any claims they may have against any opposing party arising from the same transaction or occurrence as the claims in the operative complaint. Each party shall bear their respective fees and costs.

The clerk must enter a JUDGMENT for the plaintiff and against Defendant Gabriella Victoria Oropesa for $13,000. Defendant Oropesa will pay $1,000 to each of the three facilities (South Broward Pregnancy Help Center, Life Choice Pregnancy Center, and Plaintiff) for a total of $3,000. Defendant Oropesa will pay a $10,000 civil penalty directly to the State of Florida. Defendant Oropesa's $13,000 payment of the civil judgment in the related civil action, No. 8:23-cv-701-SDM-AAS (Related Civil Action), satisfies the judgment in this action. Defendant Oropesa will also, within 30 days of sentencing in her related criminal case, No. 8:23-cr-25-VMC-AEP (Related Criminal Action), send a letter of apology to each facility similar to the apology the other three Defendants made at their sentencing hearing.

Yesterday, I wrote about the Trump Administration Office of Management and Budget memo ordering a "temporary" freeze of a wide range of federal grants, and how it was a major attempt to usurp Congress' power of the purse. Today, after widespread criticism, and a federal court ruling temporarily blocking the order, the White House has rescinded the OMB memo.

At least for the moment, this move averts a major constitutional confrontation over the spending power. It is also an indication that Trump can be forced to back down if he meets sufficiently strong resistance.

But, as noted in my previous post, this order was not the only way in which Trump is trying to infringe on congressional control over spending, even though it was the broadest and most sweeping. So the struggle over the spending power is likely to continue. The exact details of how and when remain to be seen.

President Trump's decision to fire over a dozen agency inspectors general may be legal, but he has made other moves that are almost certainly unlawful under existing Supreme Court precedent, Humphrey's Executor in particular.

On Monday, Trump purported to fire two Democratic members of the Equal Employment Opportunity Commission and the Chair and General Counsel of the National Labor Relations Board. Any one of these dismissals could result in litigation, and one in particular could set up a direct challenge to the Humphrey's Executor precedent.

Under Humphrey's Executor, decided in 1935, Congress may prevent the President from removing members of multi-member independent agencies (such as the Federal Trade Commission) without cause. A more recent decision, Seila Law (which I unpacked here) held that this does not apply to agencies exercising substantial authority headed by a single individual (such as the Consumer Financial Protection Bureau). While Seila Law did not purport to modify Humphrey's Executor, the two decisions are clearly in tension.

That brings us to President Trump's latest moves. The firing of NLRB general counsel Jennifer Abruzzo would seem to be the most easily legally defensible action under existing law. President Biden fired the Trump-appointed NLRB GC at the start of his term, and that action was upheld by the U.S. Courts of Appeals for the Ninth and Fifth Circuits. The rationale is that the GC may have a set term of office, but no express removal protections, so the President's removal power is unconstrained. That holding is technically consistent with Humphrey's.

A similar argument may insulate President Trump's decision to fire two EEOC commissioners. While I am not aware of clear precedent for this move, the relevant statutory provisions do not appear to have express removal protections, so a court could reject any challenge to the firings on grounds similar to that considered in the NLRB GC cases, again without confronting Humphrey's Executor.

The decision to remove NLRB Chair Gwynne Wilcox, on the other hand, would seem to put Humphrey's Executor in the crosshairs. The relevant statutory provisions provide that members of the NLRB are appointed for set terms and (as is particularly relevant here) can be removed "upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause." Thus a President cannot remove a member merely because of anticipated policy differences or because the President wants the ability to make his own appointment.

There may be a clever way to try and distinguish the removal of an NLRB member from the removal of a Federal Trade Commission member (which is what was at issue in Humphrey's), but no serious argument for such an outcome comes to mind. This would suggest that if Wilcox contests her removal, the Administration will argue that Humphrey's Executor should be overruled, and courts will be forced to confront the question. Chief Justice Roberts may be a pro at manipulating statutory text to prevent disruptive outcomes, but this would seem to be beyond even his expertise.

The one exit ramp would be to deny certiorari if a lower court rejects the removal on precedential grounds (which most lower courts are likely to do), but that path would only be viable if there are six justices willing to leave Humphrey's be.

[Note: As initially posted, I mixed up the names of the EEOC and NLRB general counsels. The post has been fixed.]

At the tail end of last week, President Trump fired seventeen inspectors general across a number of agencies (including some IGs that he himself had appointed during his first term). Of note, Trump did not provide Congress with the thirty-days notice that is required by federal law.

Some, such as the Washington Post's Ruth Marcus, believe this act was "blatantly illegal." Others, such as Harvard Law's Jack Goldsmith, are not so sure. Goldsmith offered a nuanced analysis for the Lawfare Blog that begins:

On Friday night, President Trump removed at least 17 inspectors general, the executive branch watchdogs who conduct audits and investigations of executive branch actions. The removals are probably lawful even though Trump defied a 2022 law that required congressional notice of the terminations, which Trump did not give. Trump probably acted lawfully, I think, because the notice requirement is probably unconstitutional.

The real bite in the 2022 law, however, comes in the limitations it places on Trump's power to replace the terminated IGs—limitations that I believe are constitutional. This aspect of the law will make it hard, but not impossible, for Trump to put loyalists atop the dozens of vacant IG offices around the executive branch. The ultimate fate of IG independence during Trump 2.0, however, depends less on legal protections than on whether Congress, which traditionally protects IGs, stands up for them now. Don't hold your breath.

That sounds about right to me. Here, as in many areas, the real question is whether Congress will defend its own prerogatives and power as a coordinate branch--and there is ample reason to doubt whether (m)any congressional Republicans have such fortitude.

In any event, Goldsmith's entire analysis is worth a read for those interested in the subject.

The Volokh Conspiracy

U Tenn Pharmacy School Pays $250K Settlement for Trying to Expel Student for Sexually Themed Tweets

No One-Sided Pseudonymity in Case Against Political Candidate Alleging Revenge Porn

Maine Constitution Forbids Revival of Civil Claims for Which Statute of Limitations Had Already Lapsed

Another Nevada S. Ct. Decision as to #TheyLied Sexual Assault Defamation Claim Brought by Nickolas Carter (Backstreet Boys)

Notre Dame Pro-Abortion-Rights Professor Loses Libel Lawsuit Against Student Newspaper

Today in Supreme Court History: January 31, 2006

Free Speech Unmuted: Free Speech, Private Power, and Private Employees

AP Asked Justice Jackson About Her Inauguration Attire

Ban on Town Employees' Displaying Thin Blue Line American Flag Imagery on Town Property Violates First Amendment

Today in Supreme Court History: January 30, 1939

Wednesday Open Thread

Trump "Global Gag Rule" as to Abortion Likely Doesn't Violate the First Amendment

Harvard Crimson Was Entitled to Ban Commenter for What He Claims Were "Anti-Zionist" Comments

Settlement in Heartbeat of Miami v. Jane's Revenge Pro-Life Pregnancy Center Vandalism Lawsuit

White House Rescinds Memo Freezing Federal Grants

Is Humphrey's Executor in the Crosshairs?

Was It Legal for Trump to Fire Seventeen Inspectors General Without Notice?

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