William "Chip" Mellor, visionary cofounder and longtime president of the Institute for Justice - a leading public interest law firm focused on economic liberty, property rights, and free speech - passed away on October 11. Here is an excerpt from the obituary posted on the IJ website, written by John Kramer:
On Friday, October 11, America lost one of the most significant civil liberties pioneers of the past 40 years: William "Chip" Mellor—the founding president and recent board chairman of the Institute for Justice, a national, public interest law firm—died at his home in Moab, Utah, after a battle with leukemia.
Mellor's philosophically and tactically consistent approach to protecting the rights of ordinary Americans—especially those of modest means—led him to cofound the Institute for Justice in 1991 with Clint Bolick. He created IJ to protect private property and free speech, to challenge arbitrary government regulations that interfere with economic liberty, and to expand educational choice for those stuck in failing public schools. In the process, he and IJ reshaped America's legal landscape and how public interest cases are litigated in the courts of law and in the court of public opinion.
"Chip demonstrated remarkable vision and a knack for public interest litigation throughout his life," said Scott Bullock, who worked with Mellor for 25 years and in 2016 succeeded him as IJ's president. "He brought together cutting-edge legal advocacy, media relations, grassroots activism, legislative work, and strategic research in a pioneering and innovative way. He made the Institute for Justice a powerhouse for the protection of constitutional rights."
Thanks to Mellor's vision and the advocates he hired and inspired, IJ has won many pathbreaking constitutional cases that have set the standard for legal change. Mellor understood that principled change takes time, so he established IJ to engage in long-term, strategic public interest litigation rather than react to current controversies or issues of the week. He fostered an entrepreneurial, happy warrior culture within IJ, where many make their careers to change the world for the better.
As a law student, I served as a law clerk at IJ during the summer of 1998, at which time I got to know Chip. His leadership was incredibly impressive. In large part thanks to his efforts, IJ litigated and won numerous precedent-setting cases. Few could match his skill at combining strategic litigation with effective campaigns in the court of public opinion.
The time I spent at IJ helped generate an abiding interest in constitutional property rights that has been a major part of my work ever since. The institution Chip played a key role in creating had a similar impact on many other future lawyers and academics.
Chip will be greatly missed. I extend my condolences to his colleagues, family, and friends.
Our draft article shows that corpus linguistics delivers where LLM AI tools fall short—in producing nuanced linguistic data instead of bare, artificial conclusions.
Modern textualism is built on at least three central pillars. Textualists credit the ordinary meaning of the language of law because such meaning: (1) can reasonably be discerned by determinate, transparent methods; (2) is fairly attributable to the public who is governed by it; and (3) is expected to constrain judges from crediting their own views on matters of legislative policy.
To fulfill these goals, textualist judges expected to show their work—to cite reliable evidence to support their conclusions on how legal words or phrases are commonly used by the public. Judicial intuition is a starting point. But judges who ask the parties and public to take their subjective word for it are not engaged in transparent textual analysis; cannot reliably be viewed as protecting public reliance interests; and may (at least subconsciously) be advancing their own views on legislative policy.
The Snell concurrence acknowledges these concerns (as do the academic pieces it relies on). But the tools it advances (AI LLMs) fall short of fulfilling these key premises. Corpus linguistic tools, by contrast, are up to the task.
We show how in our draft article. In Part III we investigate the empirical questions in Snell through the tools of corpus linguistics. We performed transparent searches aimed at assessing (a) how the term "landscaping" is commonly used in public language; and (b) whether people commonly use the term "landscaping" when they speak of the installation of in-ground trampolines. Our results are granular and nuanced. They stand in contrast to the conclusory assertions of AI chatbots—conclusions that gloss over legal questions about the meaning of "ordinary meaning" and make it impossible for a judge to lay claim to any sort of transparent, determinate inquiry into the ordinary meaning of the language of law.
The Wall Street Journal published an article titled, "Trump Loyalists Push for a Combative Slate of New Judges." The first sentence repeats the theme of loyalty: "A rising faction within the conservative legal movement is laying the groundwork for Donald Trump to appoint judges who prioritize loyalty to him and aggressively advocate for dismantling the federal government should he win a second term." The implied connection is clear: Trump loyalists in executive branch seek to install Trump loyalists in the judiciary branch. Nonsense.
There is not a single word in the story to suggest that Trump appointees would be "loyal" to Trump. These judges have a constitutional vision that far surpasses whatever ephemeral issues matter to Trump. Judicial appointments can last up to forty years. Trump will be in office for, at most, four years. And if Trump prevails, he will not have to stand for any more elections, thus no more Trump-election-related litigation. More likely than not, anti-Trump litigation will be brought in blue circuits, where Trump-appointees are a discrete and insular minority. Does anyone think that a handful of Trump appointees on the Ninth Circuit will make a difference? Judges Katsas, Rao, and Walker will be flying solo on the D.C. Circuit for some time. And the Fourth Circuit is lost for a generation. I truly do not understand the thrust of this "loyalist" meme. It is not accurate, and even if accurate, will have no practical effect.
Instead, the true thrust of the piece comes in a quote from Mike Davis:
Future Trump judicial nominees must be "even more bold and more conservative and more fearless," than those appointed in the first administration, said Republican legal activist Mike Davis, one of the conservative lawyers pushing for a harder line in a potential second Trump administration.
As I've written "judicial courage," should be an important metric for any future judges. I think any plausible judicial nominee will profess fidelity to textualism and originalism. Or at least they will pretend to. That is a given. The better question is what a judge will do with that jurisprudence. To use an analogy, what quantum of originalist evidence is sufficient to upset the status quo. This is not merely a question about stare decisis. I've written at some length how Justice Barrett has imposed extremely onerous burdens on litigants seeking to change things. And the Barrett mode is common enough on the lower courts. Of course lower court judges cannot reverse Supreme Court precedent. And individual panels cannot reverse circuit precedent. But between those lines, there is some space for lower-court originalism.
The article goes on to say that conservatives were "surprised" by Justice Gorsuch's Bostock majority and Justice Kavanaugh's concurrences.
Some were shocked in 2020, for instance, when Gorsuch, the most libertarian of the Trump three, joined with liberal justices and Chief Justice John Roberts to extend federal civil-rights protections to LGBT employees. Others have expressed exasperation at Kavanaugh's practice of filing concurring opinions that credit the concerns of liberal dissenters even when he votes with the conservative majority—something he did in the 2022 decision eliminating women's federal right to abortion before fetal viability.
No one should have been surprised by anything the Trump appointees have done. They are behaving now exactly as they behaved below. To the extent that conservatives are frustrated with these Justices, they should reconsider the criteria for appointment.
The rest of the article tries to sketch some divide between the "old guard" and the "new guard" within the Federalist Society.
The movement's old guard, including lawyers who helped found the Federalist Society in the 1980s, is pushing back, fearful of discrediting the conservative principles they worked for decades to legitimize within a legal profession that leaned left.
Since losing the 2020 election, Trump has broken with Federalist Society leaders who had eagerly boosted his blitz of judicial appointments during his first term but later balked at his efforts to thwart President Biden's victory and didn't openly support him as he faced dozens of criminal charges.
Trump has gravitated to more-combative lawyers outside the conservative legal establishment who have said they want to hobble regulatory agencies and concentrate power in the White House. The shift has sidelined the old guard in favor of groups like America First Legal, run by former Trump adviser Stephen Miller, who isn't a lawyer but said he set up the group to fight what it called "an unholy alliance of corrupt special interests, big tech titans, the fake news media and liberal Washington politicians." . . . .
Longtime Federalist Society members said the group was designed not to advocate for specific positions but to promote conservative and libertarian thought more broadly—and provide a career network for right-leaning lawyers interested in government and the judiciary.
"I'm one of the traditionalists who believe the strength of the Federalist Society is that it doesn't take positions, it allows its members to take positions," said former Solicitor General Ted Olson, who took part in the 1982 conference at Yale Law School where the group was founded. . . .
Sarah Isgur, who was a spokeswoman for the Trump Justice Department and considers herself more of a traditional conservative, said that while the Federalist Society historically sought to associate its movement with the most prestigious law schools and professional accomplishments, the upstarts have other criteria.
The direction of FedSoc seems separate from the question about potential Trump nominees. But I do think that FedSoc is standing at something of a turning point, given the pending search for President.
The internet is the latest in a long line of communications technologies to have enabled greater freedom of speech. From the printing press to the radio to the television and the cell phone, technological advances have made it possible for more people to express themselves, share news, and spread ideas. At every stage, speech has been further democratized, empowering people who could not previously make themselves heard and challenging the influence of the traditional gatekeepers of public information—including the state, the church, politicians, and the media. These advances have often been met first with excitement and enthusiasm, followed by a public backlash fueled by a mix of legitimate concerns about the impact of technology on society and moral panic stoked by the vested interests whose power has been challenged. In time, these pendulum swings have come to a resting point through a combination of the normalization of the technologies in society, the development of commonly understood norms and standards, and the imposition of guardrails through regulation.
The internet has enabled the most radical democratization of speech yet, making it possible for anyone with an internet connection and a phone or computer to express themselves, connect with people regardless of geographical barriers, organize around shared interests, and share their experiences across the world in an instant. Over the last two decades, social media and instant messaging apps have turbocharged internet-enabled direct communication—and have exploded in popularity. More than one-third of the world's population uses Facebook every day. More than one hundred forty billion messages are sent every day on Meta's messaging apps, including Messenger, WhatsApp, and Instagram.
These technologies have made it possible for grassroots movements to grow rapidly and challenge established authority and orthodoxy, and in doing so, change the world—from the Arab Spring to the Black Lives Matter movement and #MeToo. A decade ago, sociologist Larry Diamond called social media a "liberation technology." Without the ability of ordinary people to share text, images, and video in close-to-real time, and to have it amplified via networks of people connected through social media apps like Facebook, Instagram, and Twitter, the groundswell of public support for these causes and others would never have been possible. Social media also made it possible for millions of spontaneous grassroots community-based initiatives to start and flourish during the emergency stages of the COVID-19 pandemic to help the vulnerable or celebrate frontline workers, and for millions of small businesses to stay afloat and reach customers during lockdowns.
It would be naive to assume that connection inevitably leads to progress or harmony. The free and open internet is not a panacea. With hindsight, the techno-utopianism of the Arab Spring phase of social media was never going to last. But the pendulum has now swung far the other way, as it has done in the aftermath of previous technological advances, to a phase of techno-pessimism, with many critics decrying social media as the source of many of today's societal ills. This backlash has led us to a pivotal moment for the internet. Politicians around the world are now responding to the clamor with a new wave of laws and regulations that will shape the internet for generations to come.
Thursday, FCC Chair Jessica Rozenworcel denounced Trump's calls for the FCC to strip CBS of its license (and to investigate ABC) for alleged bias against him. Seven years ago, then-Chair Ajit Pai likewise rejected then-President Trump's calls for the FCC to strip NBC of its license for supposed "fake news."
The FCC had also been asked to deny renewal to a FOX Philadelphia affiliate on the grounds that it "aired 'false information about election fraud' about the 2020 presidential election and arguing it sowed discord and contributed 'to harmful and dangerous acts on January 6' at the U.S. Capitol." That matter is pending, though a month ago FCC Commissioner Nathan Simington urged the FCC to close it.
Back in 2014, the FCC rejected the claim that broadcasters that referred to the Washington Redskins (the team name at the time) should lose their licenses. Marilyn Mosby, then the Baltimore State's Attorney (since convicted of perjury and mortgage fraud), asked the FCC to investigate a local TV station on the theory that its coverage of her was "blatantly slanted, dishonest, misleading, racist, and extremely dangerous"; Commissioner Brendan Carr put out a statement condemning the complaint, and I haven't seen any indication that the FCC has taken any action on it.
The law in this area is, regrettably, complicated. The Supreme Court has broadly protected the right of newspapers, magazines, book authors, filmmakers, cable companies, Internet companies, and others to speak, without the fear that a government agency will strip them of the right to speak based on the content of their speech. But the rule for broadcast television and radio has been different. Since the 1920s, the government has required a license to broadcast; part of the rationale was to prevent stations from interfering with each other using the same frequency, but once the licenses were given, the government has used that as a means to impose "public interest" requirements on licensees. Here is an excerpt on this from Justice White's opinion in Red Lion Broadcasting Co. v. FCC (1969):
Our peer-reviewed Journal of Free Speech Law, which is now nearly four years old, has published 65 articles, including by Robert Post (Yale), Jack Balkin (Yale), Keith Whittington (Yale), Mark Lemley (Stanford), Geoffrey Stone (Chicago), Vince Blasi (Columbia), Jeremy Waldron (NYU), Cynthia Estlund (NYU), Christopher Yoo (Penn), Danielle Citron (Virginia), and many others—both prominent figures in the field and emerging young scholars (including ones who didn't have a tenure-track academic appointment). The articles have been cited so far in eight court cases, over 235 articles, and over 90 briefs. And note that all the articles have only had three years or less to attract these citations.
I expect that many authors are planning to submit articles on free speech to the usual law reviews when the submission cycle restarts in February. But if you submit exclusively to us before that, we will give you an answer within 14 days (our guarantee, which we have so far never broken); and then if you'd like to have it published quickly, we can publish it in within several weeks, if it's sufficiently clean and cite-checked by your research assistant. (If you don't have a research assistant, we can have it cite-checked for you by one of our student staffers, but that takes a bit longer.) This means your article can be published by us, if it's accepted, almost a year (or more) before it would be published by the law journals.
Of course, also please pass this along to friends or colleagues who you think might be interested. Note that the submissions don't compete for a limited number of slots in an issue or volume; we'll publish articles that satisfy our quality standards whenever we get them.
As we show in a draft article, corpus linguistic tools have been shown to do what LLM AIs cannot—produce transparent, replicable evidence of how a word or phrase is ordinarily used by the public.
More and more, judges are seeing the assessment of ordinary meaning as an empirical matter—an inquiry into the way legal words or phrases are commonly used by the public. This inquiry is viewed as furthering some core tenets of textualism. It views the assessment of the ordinary meaning of words as transparent, determinate, and constraining—much more so than a free-wheeling inquiry into the intent of the legislative body.
For many years and for many interpretive questions, dictionaries were viewed as the gold standard. To resolve an interpretive question, all the judge had to do was declare that the ordinary meaning of the text controls, note that dictionaries are reliable evidence of such meaning, and cite a dictionary definition as the decisive basis for decision.
Over time, both scholars and judges have come to question the viability of that approach—especially in cases where competing dictionary definitions provide support for both sides of a case. In that event, a judge's intuitive preference for one definition over another isn't transparent. And it isn't any more constraining than a subjective assessment of legislative intent.
That does not mean that the ordinary meaning inquiry is lost. It just means that we need more sophisticated tools to answer it.
Increasingly, scholars and judges are acknowledging that the empirical dimensions of the ordinary meaning inquiry call for data. And they are turning to tools aimed at producing transparent, replicable evidence of how the language of law is commonly or typically used by the public. A key set of those tools come from the field of corpus linguistics—a field that studies language use by examining large databases (corpora) of naturally occurring language.
Cartoon depicting congressional debate over the Alien and Sedition Acts.
Donald Trump recently announced his intention to use the Alien Enemies Act of 1798 as a tool for mass deportation of immigrants. The Alien Enemies Act is a component of the notorious Alien And Sedition Acts. It's the only part of that legislation that remains on the books today. Unlike the more sweeping Alien Friends Act, which gave the president broad power to deport and bar any "aliens as he shall judge dangerous to the peace and safety of the United States," and was therefore rightly denounced as unconstitutional by James Madison, Thomas Jefferson, and others, the Alien Enemies Act allows detention and removal only when there "is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." In that event, the president is given the power to detain or remove "all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized."
Katherine Yon Ebright of the Brennan Center has an excellent explanation of why the Alien Enemies Act cannot legally be used against migrants from countries with which the US is not at war. Here's her summary of her analysis:
As the Supreme Court and past presidents have acknowledged, the Alien Enemies Act is a wartime authority enacted and implemented under the war power. When the Fifth Congress passed the law and the Wilson administration defended it in court during World War I, they did so on the understanding that noncitizens with connections to a foreign belligerent could be "treated as prisoners of war" under the "rules of war under the law of nations." In the Constitution and other late-1700s statutes, the term invasion is used literally, typically to refer to large-scale attacks. The term predatory incursion is also used literally in writings of that period to refer to slightly smaller attacks like the 1781 Raid on Richmond led by American defector Benedict Arnold.
Today, some anti-immigration politicians and groups urge a non-literal reading of invasion and predatory incursion so that the Alien Enemies Act can be invoked in response to unlawful migration and cross-border narcotics trafficking. These politicians and groups view the Alien Enemies Act as a turbocharged deportation authority. But their proposed reading of the law is at odds with centuries of legislative, presidential, and judicial practice, all of which confirm that the Alien Enemies Act is a wartime authority. Invoking it in peacetime to bypass conventional immigration law would be a staggering abuse.
She makes several other good points, as well. If you're interested in this issue, read the whole thing!
I would add that the "invasion" or "predatory incursion" in question must be perpetrated by a "foreign nation or government." That excludes illegal migration or drug smuggling perpetrated by private individuals, which is what we see at the southern border today. One can argue that use of the word "nation" in addition to "government" means the former has a different meaning from the latter. Perhaps so. But "nation" still doesn't include private individuals. Rather, it could apply to state-like entities that are not recognized governments. For instance, the Hamas terrorist organization that brutally attacked Israel on Oct. 7, 2023 is not a recognized government, but did - at least until recently - have state-like control over Gaza. The same could be said for some Founding-era Indian nations (which the US and European states didn't recognize as full-fledged governments) and groups like the Barbary pirates, who were agents of Arab north African states.
Elsewhere, I have explained why Founding-era understandings of "invasion" are limited to large-scale armed attacks, and do not cover things like illegal migration or drug smuggling (for more detail, see my amicus brief in United States v. Abbott).
Despite the strong legal arguments against it, there is a chance Trump could succeed in using the Alien Enemies Act as a tool for detention and deportation. As Ebright notes, courts might rule that the definitions of "invasion" and "predatory incursion" are "political questions" that courts aren't allowed to address. Several previous court decisions have held that the definition of "invasion" in the Constitution is a political question (thereby preventing state governments from invoking broad definitions of invasion under the Invasion Clause of Article IV in order to be able to "engage in war" in war without federal authorization), though many have simultaneously held that an illegal migration does not qualify as "invasion" because an invasion requires a large-scale armed attack (see pp. 20-22 of my amicus brief).
Ebright argues (correctly, I think) that even if the definition of "invasion" is usually a political question, the use of the Alien Enemies Act as a tool for mass detention and deportation of migrants from countries with which the US is not at war should fall within the exception for "an obvious mistake" or "manifestly unauthorized exercise of power" (Baker v. Carr (1962)). I would add that the entire political question doctrine is an incoherent mess, and courts should not extend it further.
It's also worth noting that the Alien Enemies Act applies to any migrants from the relevant countries who have not been "naturalized," which includes legal migrants even permanent resident green card holders. If Trump is able to use it at all, it could be deployed against legal immigrants no less than illegal ones. And he and his allies have repeatedly made clear they want to slash legal migration no less than the illegal kind.
If Trump returns to power, it is possible this particular plan will be stopped by the courts. But that is far from certain. Ebright also recommends Congress simply repeal the Alien Enemies Act (there are plenty of other tools to deal with actual threats to national security); I agree, but it's unlikely to happen anytime soon. Thus, the only surefire way to block this dangerous abuse of power is to defeat Trump in the election.
UPDATE: Prof. Michael Ramsey commented on this post here. I responded in a follow-up post.
I'm delighted to report that Prof. Thomas R. Lee (BYU Law, and former Justice on the Utah Supreme Court) and Prof. Jesse Egbert (Northern Arizona University Applied Linguistics) will be guest-blogging this coming week on their new draft article, Artificial Meaning? The article is about artificial intelligence and corpus linguistics; Prof. Lee has been a pioneer in applying corpus linguistics to law. Here is the abstract:
The textualist turn is increasingly an empirical one—an inquiry into ordinary meaning in the sense of what is commonly or typically ascribed to a given word or phrase. Such an inquiry is inherently empirical. And empirical questions call for replicable evidence produced by transparent methods-not bare human intuition or arbitrary preference for one dictionary definition over another.
Both scholars and judges have begun to make this turn. They have started to adopt the tools used in the field of corpus linguistics—a field that studies language usage by examining large databases (corpora) of naturally occurring language.
This turn is now being challenged by a proposal to use a simpler, now-familiar large language model (LLM)—AI-driven LLMs like ChatGPT. The proposal began with two recent law review articles. And it caught fire—and a load of media attention—with a concurring opinion by Eleventh Circuit Judge Kevin Newsom in a case called Snell v. United Specialty Insurance Co. The Snell concurrence proposed to use ChatGPT and other LLM AIs to generate empirical evidence of relevance to the question whether the installation of in-ground trampolines falls under the ordinary meaning of "landscaping" as used in an insurance policy. It developed a case for relying on such evidence—and for rejecting the methodology of corpus linguistics—based in part on recent legal scholarship. And it presented a series of AI queries and responses that it presented as "datapoints" to be considered "alongside" dictionaries and other evidence of ordinary meaning.
State-sponsored disinformation (SSD) aimed at other nations' populations is a tactic that has been used for millennia. But SSD powered by internet social media is a far more powerful tool than the U.S. government had, until recently, assumed. Such disinformation can erode trust in government, set societal groups—sometimes violently—against each other, prevent national unity, amplify deep political and social divisions, and lead people to take disruptive action in the real world.
In part because of a realization of the power of SSD, legislators, government officials, corporate officials, media figures, and academics have begun debating what measures might be appropriate to reduce the destructive effects of internet disinformation. Most of the proposed solutions have technical or practical difficulties, but more important, they may erode the First Amendment's guarantee of free speech and expression. Foreign powers, however, do not have First Amendment rights. Therefore, in keeping with the Constitution, the U.S. government can act to counter SSD if it can establish clearly that the information is being disseminated by a state actor. If the government can act constitutionally against SSD, can it do so effectively? Or are new legal authorities required?
The federal government already has numerous legal tools to restrict activity in the United States by hostile nations. Some of those tools have recently been used to address hostile powers' malign "influence operations," including internet-powered disinformation. Nonetheless, SSD from several nations continues. Russia in particular runs a sophisticated campaign aimed at America's fissures that has the potential to greatly amplify divisions in this country, negatively affect public policy, and perhaps stimulate violence.
A health sports instructor at the University of Kansas is out of a job after a video clip of his in-class behavior went viral. The university's statements do not inspire confidence, even though the professor might well have been out of bounds.
Libs of Tiktok posted a short clip of an instructor in a classroom at the University of Kansas. In the clip, he seems to say in the middle of a class session, "There are going to be some males in our society that will refuse to vote for a potential female president because they don't think females are smart enough to be president. We could line all those guys up and shoot them. They clearly don't understand the way the world works." Suddenly remembering that he is being recorded, he then adds, "Did I say that? Scratch that from the recording. I don't want the deans hearing that I said that."
There is, of course, no context to the 32 second clip, though surrounding reporting suggests that the statement was made in the midst of a health sports class at some point this semester. The university announced yesterday that the instructor was under investigation, saying "His intent was to emphasize his advocacy for women's rights and equality, and he recognizes he did a very poor job of doing so." Today, the university announced that the professor had "left the university."
"The free expression of ideas is essential to the functioning of our university, and we fully support the academic freedom of our teachers as they engage in classroom instruction. Academic freedom, however, is not a license for suggestions of violence like we saw in the video," [Provost Barbara] Bichelmeyer said. "While we embrace our university's role as a place for all kinds of dialogue, violent rhetoric is never acceptable."
The Foundation for Individual Rights and Expression (FIRE) immediately issued a statement defending the professor. "The viral video shows an instructor making an off-handed joke—not communicating a serious intent to commit unlawful violence," [Graham] Piro said in a statement. "That's protected speech, and people advocating that the instructor be punished for his expression are advocating for the erosion of the First Amendment." Today, FIRE pointed out that the classroom statement could not credibly be viewed as a "true threat." As a consequence, FIRE asserts it is protected by the First Amendment and the instructor should be immune from adverse employment consequences for his actions. [The Academic Freedom Alliance has not made any statement on this matter, and I speak for myself alone here.]
I think the situation is more complicated that FIRE has so far made out, but that Kansas is focusing on the wrong issue. The core problem is not one of "violent rhetoric" and whether or not this speech is an example of a true threat. The core problem is one of unprofessional classroom behavior.
As it happens, I discuss such a scenario in You Can't Teach That! I argue there that traditional academic freedom principles and government employee speech doctrine as it applies to university professors should be understood to protect controversial classroom speech that is both germane to the class and professionally competent. Faculty speech in the classroom that is neither germane nor competent, however, is unprotected, and professors can be properly disciplined for such speech. For example, a chemistry professor who spends part of her class time stumping for Kamala Harris or an astronomy professor who instructs her students that the moon is made of green cheese is operating outside the bounds of academic freedom or First Amendment protections and can properly be disciplined. An African-American history professor who spends class time propounding critical race theory, on the other hand, should be understood to be operating within those protections.
But what about the Kansas sports health professor. The question is less about the violence of the political rhetoric than the fact of the political rhetoric. From the book:
Some academic disciplines have relatively well-defined boundaries regarding their subject matter, but others might be much more capacious such that it is less clear what topics might not be germane to a given class discussion. A lecture on early nineteenth century American literature might be expected to roam further afield than a lecture on thermodynamics. Allowances must likewise be made for speech that is non-germane from a subject matter perspective but that is apposite from a pedagogical perspective. Professors who tell jokes to help build community and sustain interest might be engaging in speech that is non-germane when taken in isolation but that makes sense in context. Professors pushing such boundaries no doubt owe the students an obligation not to be unnecessarily controversial. Jokes, asides, illustrations, and analogies should not themselves become a source of tension. A professor who "livens up" his lectures with a running series of acerbic political comments is not off the hook for introducing unnecessarily controversial material into the class simply because he finds his own remarks witty, just as courts have not been impressed with professors who aver that their sexually lewd remarks or crude language in class are just part of their teaching technique. Education is a social endeavor and professors cannot be expected to robotically stick to a script, but frequent digressions into tangential topics of conversation risk crossing the boundaries of academic freedom, especially when those digressions are contentious.
The question at hand is whether an instructor in a health sports class should be trying to "emphasize his advocacy for women's rights and equality" and encourage his students to vote for Kamala Harris. The answer to that question is probably "no," and it really does not matter whether he did a good job in his advocacy or a poor job or used violent rhetoric or some other form of rhetoric. A state university has both the authority and the responsibility to make sure that professors in its classroom engage in professionally appropriate speech and do not abuse their captive audiences by engaging in professional misconduct. Professional misconduct can get a professor disciplined, and even fired. A professor has no right to commandeer his health sports class in order to engage in political advocacy.
The Kansas instructor was at best dancing on the line, even if this single episode might not justify harsh discipline. But university officials should at least be asking the right questions about what is at issue in the case.
A myth of epic proportion has gained traction: that any effort to moderate online speech is a zero-sum game, with free expression as the loser. When social media companies remove destructive posts that violate terms of service, people cry, "Censorship!" Alex Jones, founder of the far-right conspiracy news site Infowars, accused YouTube of "killing the First Amendment" after the company blocked videos that revealed maps of the homes of Sandy Hook families. This isn't just an extremist view: the Pew Research Center has found that a majority of people believe that companies are engaged in "political censorship" when they moderate content. Some legislators have made this view a cornerstone of their political philosophy. At a House Oversight and Accountability Committee hearing in February 2023, Representative Lauren Boebert denounced Twitter as a "speech overlord." To the company's former head of Trust and Safety, Yoel Roth, she angrily admonished, "How dare you" shadow-ban my posts (even though no evidence supported the claim and former Twitter executives denied it). Representative Marjorie Taylor Greene stated that Big Tech was silencing Americans. The censorship narrative has gained traction in state legislatures as well. Underlying this view is the assumption that content moderation has no upside for free expression.
The outcry is similarly strident at the suggestion that law should curtail online abuse. Online assaults that include doxing, intimate privacy violations, and threats are dismissed as weak attempts to "blow off steam." Any effort to address them is viewed as a threat to free speech. The ACLU, for instance, has adamantly opposed the passage of laws penalizing the nonconsensual disclosure of intimate images. These laws risk chilling legitimate expression, the ACLU has argued, even though the laws made clear that they would not cover matters of legitimate public interest. Under law's blighting stare, free expression is impossible.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Granted! Vacated! Remanded! This week, SCOTUS revived IJ client Mason Murphy's retaliatory arrest claim against an officer who arrested him for walking on the wrong side of a rural road in Missouri—an offense that never results in arrest in that jurisdiction. On remand to the Eighth Circuit, Mason will now have another shot at showing that he should be able to proceed with his First Amendment retaliation claim. The GVR also means that both of the two lower court decisions to exclude allegations like Mason's (that no one else has been arrested for the same conduct) are no longer good law. (The other case of course being IJ's monumental win in Gonzalez v. Trevinoin June.) Click here to learn more.
New on the Unpublished Opinions podcast: Short Circuit's sister podcast has its own feed and logo and everything! The latest episode dives into, inter alia, reading the cases you cite, SCOTUS special masters, riparian rights in space, and judicial namedropping.
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The All-Argentina Issue is Here
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