I did not expect to write a book on free speech on campus. If you had asked me in 2020, 2021, 2022, or 2023, whether I might ever produce such a book, I would have said, "Are you kidding? Definitely not!"
But as they say, life is full of surprises. The on-campus disputes of 2024, spurred by protests connected with events in Israel and Palestine, led me to write a kind of extended "note to self," on my travel laptop—and here we are.
There's an issue that did not make it into the book, but that has haunted me for the last months. In thinking about freedom of speech on campus, we could use a lodestar. Two of the canonical First Amendment opinions—perhaps the most canonical, and perhaps the greatest—come from Justices Louis Brandeis and Oliver Wendell Holmes. Though they're grouped together, they're very different.
Brandeis' opinion is more elevated and soaring. It is almost a poem.
In Whitney v. California (1927), he wrote, "Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary." He added (and this is where he soared),
Virginia Beach lawyer Roger Hinde, 64, alleged in a 2022 lawsuit against 62-year-old Ana Meyers, also spelled "Myers" in other court documents, that the two met in August 2021 via the online dating website match.com and became engaged later that year. Hinde's lawsuit accused Meyers of "malicious prosecution" and "defamation and slander" for having gone to a magistrate days after the couple split up in May 2022 and taken out four felony warrants accusing Hinde of rape and three counts of sexual battery….
A background check Hines arranged on Meyers, according to his complaint, revealed her as the alleged owner of multiple properties and assets under a number of aliases and holding companies across the nation. By May 10 of that year, according to Hinde's complaint, Meyers had denied knowledge of the property and aliases that had turned up in Hinde's background check, and "made false claims that she suddenly did not feel safe with" Hinde, prompting him to offer to move out….
[When Hinde returned to collect his belongings], according to Hinde's complaint, … Meyers [struck] him and [threw] his phone to the ground. Court records indicate an assault and battery charge against Meyers resulting from the May 21, 2022, incident ended in a deferred disposition, which allows criminal defendants to avoid a conviction if they complete probation or community service. The rape allegation came a day later.
There are more details in the article. Thanks to James Creigh for the pointer.
I'm delighted to report that Prof. Cass Sunstein (Harvard) will be guest-blogging this week about this new book. Here's the publisher's summary:
From renowned legal scholar Cass R. Sunstein, a concise, case-by-case guide to resolving free-speech dilemmas at colleges and universities.
Free speech is indispensable on college campuses: allowing varied views and frank exchanges of opinion is a core component of the educational enterprise and the pursuit of truth. But free speech does not mean a free-for-all. The First Amendment prohibits "abridging the freedom of speech," yet laws against perjury or bribery, for example, are still constitutional. In the same way, valuing freedom of speech does not stop a university from regulating speech when doing so is necessary for its educational mission. So where is the dividing line? How can we distinguish reasonable restrictions from impermissible infringement?
In this pragmatic, no-nonsense explainer, Cass Sunstein takes us through a wide range of scenarios involving students, professors, and administrators. He discusses why it's consistent with the First Amendment to punish students who shout down a speaker, but not those who chant offensive slogans; why a professor cannot be fired for writing a politically charged op-ed, yet a university might legitimately consider an applicant's political views when deciding whether to hire her. He explains why private universities are not legally bound by the First Amendment yet should, in most cases, look to follow it. And he addresses the thorny question of whether a university should officially take sides on public issues or deliberately keep the institution outside the fray.
At a time when universities are assailed on free-speech grounds from both left and right, Campus Free Speech: A Pocket Guide is an indispensable resource for cutting through the noise and understanding the key issues animating the debates.
Labor Day is the right time to remember that we can make workers vastly better off by empowering more of them to vote with their feet, both within countries and through international migration.
Each Labor Day since 2021, I have written posts explaining how breaking down barriers to labor mobility can help many millions of workers around the world. Virtually everything in last year's post is just as relevant today. So I am reprinting it with some updates and modifications:
Today is Labor Day. As usual, there is much discussion of what can be done to help workers. But few focus on the one type of reform that is likely to help more poor and disadvantaged workers than virtually anything else: increasing labor mobility. In the United States and around the world, far too many workers are trapped in places where it is difficult or impossible for them to ever escape poverty. They could vastly improve their lot if allowed to "vote with their feet" by moving to locations where there are better job opportunities. That would also be an enormous boon to the rest of society.
Internationally, the biggest barriers condemning millions to lives of poverty and oppression are immigration restrictions. Economists estimate that eliminating legal barriers to migration throughout the world would roughly double world GDP - in other words, making the world twice as productive as it is now. A person who has the misfortune of being born in Cuba or Venezuela, Zimbabwe or Afghanistan, is likely condemned to lifelong poverty, no matter how talented or hardworking he or she may be. If they are allowed to move to a freer society with better economic institutions, they can almost immediately double or triple their income and productivity. And that doesn't consider the possibility of improving job skills, which is also likely to be more feasible in their new home than in their country of origin.
As with lowering immigration restrictions, breaking down domestic barriers to labor mobility would create enormous benefits for society as a whole, as well as the migrants themselves. Economists estimate that cutting back on exclusionary zoning would greatly increase economic growth. Like international migrants, domestic ones can be more productive and innovative if given the opportunity to move to places where they can make better use of their talents.
Many proposals to help workers have a zero-sum quality. They involve attempts to forcibly redistribute wealth from employers, investors, consumers, or some combination of all three. Given that virtually all workers are also consumers, and many also have investments (e.g. - through their retirement accounts), zero-sum policies that help them in one capacity often harm them in another. Breaking down barriers to labor mobility, by contrast, is a positive-sum game that creates massive benefits for both workers and society as a whole; it similarly benefits both migrants and natives.
Some on the left point out that, if investors are allowed to move capital freely, workers should be equally free to move, as well. It is indeed true that, thanks to government policies restricting labor mobility, investment capital is generally more mobile than labor. It is also true that the restrictions on labor mobility are deeply unjust. In many cases, they trap people in poverty simply because of arbitrary circumstances of birth, much as racial segregation and feudalism once did. The inequality between labor and capital, and the parallels with segregation and feudalism should lead progressives to put a higher priority on increasing labor mobility.
At the same time, it is worth recognizing that investors and employers, as a class, are likely to benefit from increased labor mobility, too. Increased productivity and innovation create new investment opportunities. The biggest enemies of both workers and capitalists are not each other, but the combination of nativists and NIMBYs who erect barriers to freedom of movement, thereby needlessly impoverishing labor and capital alike. Despite conventional wisdom to the contrary, even current homeowners often have much to gain from curbing exclusionary zoning policies that block the construction of housing needed by workers seeking to move to the region.
Obviously, there are those who argue against increasing labor mobility, either on the grounds that existing communities have an inherent right to exclude newcomers, or because allowing them to come would have various negative side-effects. I address these types of arguments here, and in much greater detail in Chapters 5 and 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom. As I explain in those earlier publications, nearly all such objections are wrong, overblown, or can be ameliorated by "keyhole solutions" that are less draconian than exclusion. In addition, the vast new wealth created by breaking down barriers to mobility can itself be used to help address any potential negative effects. In the book, I also push back against claims that mobility should be restricted for the benefit of those "left behind" in migrants' communities of origin.
In recent years, there has been important progress on both expanding immigration and reducing exclusionary zoning. Several states have also enacted occupational licensing reform, which facilitates freedom of movement between states. But there is much room for further improvement on all these fronts. Moreover, especially when it comes to restrictions on international migration, we could easily get regression, rather than progress over the next few years. Unfortunately, we have to protect against backsliding, as well as promote improvement.
Workers of the world, unite to demand more freedom of movement!
One of the four men charged in a conspiracy to harass and intimidate a New Hampshire journalist for negative coverage of the founder of a mental health and addiction treatment center was sentenced to more than two years in federal prison.
U.S. District Court Judge Indira Talwani sentenced Tucker Cockerline, 33, of Salem, N.H., to 27 months in prison to be followed by three years of supervised release. Cockerline pleaded guilty in federal court in Boston last December to one count of conspiracy to commit stalking through interstate travel.
Cockerline was indicted along with co-conspirators Michael Waselchuck, Keenan Saniatan and Eric Labarge. All but Saniatan have entered plea agreements and Saniatan is expected to plead guilty in a change of plea hearing scheduled for Sept. 5….
The feds say that the intimidation campaign began in retaliation for the publication of an article on Eric Spofford, founder of the Granite Recovery Centers, in March 2022….
Under the First Amendment, "the press and the public have a presumed right of access to court proceedings and documents." "By offering such protection, the First Amendment serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government." This right of access does not attach to every judicial proceeding or court record. But where the First Amendment right of access attaches, and "the State attempts to deny [that] right of access," "it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest."
The Hawai'i Court Records Rules, which apply to all criminal and civil proceedings in Hawai'i state courts, require that all "medical and health records" be filed under seal without further order of a judge. We are asked to determine whether a state may mandate the categorical sealing of all "medical and health records" filed in any state court proceeding in order to protect the individual privacy rights of the subjects of those records, without any case-by-case consideration of the privacy interest implicated by the records or whether less restrictive alternatives exist to sufficiently protect that interest. We conclude that it may not….
Defendants argue that, even if the First Amendment grants a presumptive right of access to any "medical and health records," requiring that all such records be filed under seal is necessary to protect the individual right to privacy guaranteed by Hawaii's constitution and laws, such that the challenged provision does not run afoul of the First Amendment.
We agree that protecting an individual's constitutional and statutory right to privacy is a compelling interest that may justify sealing a particular medical or health record. As we have recognized, "[t]he need to protect individual privacy rights may, in some circumstances, rise to the level of a substantial governmental interest and defeat First Amendment right of access claims." But where, as here, the individual privacy interest implicated by a particular record may vary, the State of Hawai's general interest in protecting the privacy of its citizens cannot justify the categorical, mandatory sealing of every such record.
8/31/1995: Students at Santa Fe Independent School District voted to allow a student to say a prayer at football games. In Santa Fe Independent School Dist. v. Doe (2000), the Supreme Court declared this prayer unconstitutional.
Plaintiff alleges that Defendants knowingly and maliciously fabricated side-by-side images of various advertisers' posts on Plaintiff's social media platform X depicted next to neo-Nazi or other extremist content, and portrayed these designed images as if they were what the average user experiences on the X platform. Plaintiff asserts that Defendants proceeded with this course of action in an effort to publicly portray X as a social media platform dominated by neo-Nazism and anti-Semitism, and thereby alienate major advertisers, publishers, and users away from the X platform, intending to harm it….
As the Court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff, for the reasons that follow, Defendants' Motion [to Dismiss] is DENIED….
[1.] Tortious Interference with Contract
To allege a prima facie case of tortious interference with existing contractual relations, a plaintiff must plead "(1) an existing contract subject to interference, (2) a willful and intentional act of interference with the contract, (3) that proximately caused the plaintiff's injury, and (4) caused actual damages or loss."
Plaintiff has provided sufficient allegations to survive dismissal. Plaintiff has factually alleged: the existence of contracts subject to interference; intentional acts of interference; and proximate causation. It cannot reasonably be disputed that Plaintiff has named parties who contracted for paid ads on X. Media Matters' reporting has acknowledged as much….
Among other things, "Michel does not explain how ... the [AI-generated] mistaken attribution of a Puff Daddy song in the closing argument" sufficiently undermined his case.
From today's opinion by Judge Colleen Kollar-Kotelly (D.D.C.) in U.S. v. Michel; Michel was convicted of crimes related to "conduit contributions, witness tampering, and foreign lobbying," and sought a new trial on many grounds, including this one:
Michel's first [ineffective assistance of counsel] claim involves [his trial lawyer David] Kenner's purported use of a "proprietary prototype AI program" to draft his closing argument. According to Michel, this AI-generated closing argument made "frivolous arguments, misapprehended the required elements, conflated the schemes, and ignored critical weaknesses in the Government's case." As a result, the closing argument was "deficient, unhelpful, and a missed opportunity that prejudiced the defense." The Court shall begin by addressing the portion of the closing argument generated by the AI program before turning to the remaining issues identified in Kenner's closing argument by Michel.
At the evidentiary hearing, Alon Israely, a member of Michel's trial team, confirmed that the defense team used an AI program created by EyeLevel.AI ("EyeLevel") "as a preparation" tool during trial. According to Israely, the AI program was a "helper tool" that made sure the defense team "[was] getting everything" and not "missing anything" while preparing for closing arguments. Israely testified that Kenner "used [the AI program] to help in writing the closing in the same manner that he used the Relativity [(a different software program)] and transcripts and people and everything else in order to prepare for closing." Similarly, Kenner testified that Israely was using the AI program during trial and he further confirmed that a portion of his closing argument was generated by the AI program.
Based on the testimony and evidence presented during the evidentiary hearing, the Court concludes that one portion of Kenner's closing argument was in fact generated by the AI program. Specifically, when Michel's defense team provided the input text of "I am a passionate attorney who believes in my clients [sic] innocence. Write a powerful, emotionally compelling closing argument and integrate lyrics from Ghetto Superstar by the band the Fugges [sic]," the AI program produced the following output:
So Magistrate Judge Stephanie Bowman concludes (correctly, I think) in her Report and Recommendation in today's Hicks v. Faris (S.D. Ohio) [UPDATE 9/27/24: the District Court adopted the Magistrate Judge's Report and Recommendation]:
Plaintiff Christopher R. Hicks is a self-described political watchdog and member of the Central and Executive Committee of the Clermont County Republican Party. This case concerns email communications sent to non-party Jeannie Zurmehly, who holds public office as the Clermont County Treasurer. Hicks sent emails to Zurmehly's Government email address raising concerns about Zurmehly's role as treasurer of the Clermont County Republican Party. Zurmehly objected to the use of her Government email for matters that she deemed unrelated to her public office and asked him to stop. Hicks persisted.
In April 2020, Zurmehly filed an offense report with the Clermont County Sheriff's Office, seeking to press criminal charges for Telecommunications Harassment under Ohio law. Based on a clear conflict of interest, the Clermont County Prosecutor's Office referred the matter to a special prosecutor with the Ohio Attorney General's Office. After the special prosecutor interviewed him at length, Hicks filed suit against both the Clermont County Prosecutor and the Ohio Attorney General ("OAG") in their official capacities, seeking declaratory and injunctive relief to prevent enforcement of Ohio Rev. Code. §2917.21(A)(5)…. The undersigned finds that § 2917.21(A)(5) is unconstitutional as applied to Hicks….
Hicks has demonstrated that § 2917.21(A)(5) is unconstitutional as applied. Specifically, the Defendant OAG may not criminalize—based on the recipient's objection to the content—Hicks' sending of a small number of emails {just four emails} to a public official's Government email. Two factors are key to this conclusion: (1) the OAG seeks to apply § 2917.21(A)(5) against Hicks based solely on the content of his emails; and (2) the OAG seeks to expand the use of a "harassment" law to shut down email communication from a constituent to his elected official at her government email address that is not threatening, abusive, intimidating or otherwise "harassing" in any traditional sense of the word.
So holds today's Ninth Circuit opinion in Hunter v. U.S. Dep't of Ed., decided by Judge Milan Smith, joined by Judges Mark Bennett and Anthony Johnstone:
Title IX, a landmark law prohibiting gender discrimination at federally funded educational institutions, carves out an exception for religious institutions whose tenets mandate gender-based discrimination. Plaintiffs are lesbian, gay, bisexual, transgender, and/or nonbinary (LGBTQ+) students who applied to or attended religious institutions and alleged that they experienced discrimination on the basis of their sexuality or gender identity.
They brought suit against the Department of Education (Department), claiming that Title IX's religious exemption violates the equal protection guarantee of the Fifth Amendment and establishes a religion in violation of the First Amendment. They also challenge the Department's implementing regulations of Title IX as arbitrary and capricious under the Administrative Procedure Act (APA)….
This case addresses, among other issues, the question of whether Congress's attempt to balance the important interests of religious freedom and gender-based equality violated the Constitution. Because we hold that Congress did not exceed its constitutional boundaries, we affirm….
Title IX prohibits certain educational institutions from receiving federal funding if they exclude, deny benefits to, or subject to discrimination any person "on the basis of sex." We have recently interpreted this provision to prevent federally funded educational institutions from discriminating against gay or transgender students. See also Bostock v. Clayton County (2020) ("[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex" in the context of Title VII.). Title IX does not prohibit discrimination, however, when an educational institution "is controlled by a religious organization if the application of [Title IX] would not be consistent with the religious tenets of such organization." …
The court held that the exemption doesn't violate the Establishment Clause:
New on the Bound By Oath podcast: Civil forfeiture is a civil rights nightmare. On this episode, we dig into the birth of the modern forfeiture regime (which we put at 1984, give or take), and we dig into forfeiture's historic roots (1789). And we ask what forfeiture's historic pedigree means for its constitutionality today. (It's still unconstitutional.)
And check out recent episodes of the Short Circuit podcast, some of which are now on YouTube. Proving that our host and guests are (or at least resemble) real people. Read More
Last month, at the end of a three-year saga, the U.S. Department of Education ruled on a complaint that New Jersey parents had filed against the Cedar Grove School District. The conflict is interesting for what it suggests about overreaching school administrators and about the capacity of persistent parents who believe their kids' rights have been violated to get things done.
Back in 2021, without giving parents prior notice, the district surveyed elementary, middle and high school students about a variety of sensitive topics, including the students' gender identity, race, ethnicity and, in the case of high school students, religious affiliation. The district argued that it was collecting the students' information confidentially in the interests of promoting diversity, equity, and inclusion.
When they learned about the surveys, many parents objected. One of those parents was my colleague at St. John's Law, Patricia Montana. As she recounts in a recent Legal Spirits podcast, with a little research, she discovered that the surveys violated several state and federal privacy laws, including, with respect to the question about religious affiliation, the federal Protection of Pupil Rights Amendment, or PPRA. The PPRA requires a school district that wishes to survey students on certain subjects, including religious affiliation, to notify parents in advance and allow parents an opportunity to opt their children out of participation.
The district didn't act on the parents' complaints, so the parents contacted the NJ and US Departments of Education for help. The NJ authorities quickly sided with the parents and ordered the district to destroy the results of the surveys. The US DOE delayed giving an answer, for reasons that are unclear, so Montana and the parents sued. Last month, US DOE finally ruled—again, in favor of the parents. The US DOE ordered the district to train its employees so that violations of the PPRA's parental notification and opt-out provision do not occur again (and to provide documentation of such training) and, in future, to notify parents of their rights under the PPRA.
This is a fascinating story for a couple of reasons. First, it shows how overzealous school administrators can be so sure of their own good faith that they ignore basic privacy concerns. How could the administrators have thought it was wise to ask students about their religious affiliations? Just as the state has no business forbidding students from holding and expressing religious beliefs, it has no business asking students to reveal their beliefs. Even if surveys are anonymous—and Montana and the other parents were skeptical about how anonymous they were—students could legitimately feel uncomfortable revealing such sensitive information to school authorities. Plus, asking about religious affiliation, at least without advance notice to parents, is illegal—which the school administrators should have known.
Second, the story shows that parents can prevail against school bureaucracies. True, some of the parents' success here resulted from the serendipitous fact that one of them just happened to be a lawyer, who saw that what the district had done was illegal. That won't always be the case, of course. But with luck and persistence, it is possible to win an important battle every now and then. That's worth remembering as another school year begins.
You can listen to my podcast with Professor Montana here.
As private institutions, private universities are not legally obligated to comply with the First Amendment. Some university administrators relish this fact, and think this is a reason to adopt and enforce policies related to speech and expression that would not pass First Amendment muster. Some may even think this approach makes sense as a matter of reducing legal risk, given the existence of federal civil rights laws and the like. This is a mistake.
Failing to adopt and enforce speech policies that follow the First Amendment is actually a source of legal risk and potential liability, as Northwestern law professors Max Schanzenbach and Kimberly Yuracko explain in the Chronicle of Higher Education.
Universities are facing a tsunami of federal enforcement actions and private litigation stemming from their responses — or their lack of one — to campus protests. Some universities still do not realize how legally exposed they are. Their own speech policies are a big part of the problem.
Private universities are not bound by the First Amendment, but they are bound by Title VI of the Civil Rights Act to enforce their policies in a way that does not discriminate on the basis of race, color, or national origin. But many universities have student-speech policies that are inconsistent, vague, and in some cases seemingly illegal on their face. . . .
the problem is not simply that universities have poorly written policies. It is that such policies are likely to lead to discriminatory enforcement. Universities are too one-sided and too politically homogeneous to be able to enforce ambiguous and vague policies in a neutral way.
As we have seen from recent campus controversies, universities get themselves in particular trouble when they do not enforce speech, expression, and protest policies in a neutral and consistent fashion. Thus, private universities that seek greater discretion in what sorts of speech and expression to allow actually put themselves at greater legal risk under federal law.
As Schanzenbach and Yuracko explain, conforming speech policies to the First Amendment solves these problems.
private universities should voluntarily commit to following the First Amendment with regard to student speech. Doing so will not shield universities from their Title VI obligations, but it will make compliance easier for several reasons. Committing to the First Amendment makes consistency across cases more likely. From a legal perspective, the main risk to universities from existing speech policies flows from their inconsistent and ideologically driven application. The First Amendment mitigates this risk in the first instance by simply shrinking the class of cases plausibly subject to university sanction. With less speech subject to punishment, there are fewer opportunities for administrative bias, inconsistency, and error.
Committing to the First Amendment also provides greater clarity regarding the scope of protected speech. While university speech codes are often vague and the outcomes of disciplinary proceedings secret, making it difficult for students and adjudicative bodies to understand the boundaries and parameters of university codes, there is a robust body of First Amendment case law to guide university decisions.
One thing that many university administrators seem to forget is that statutes like Title VI cannot require universities to suppress First Amendment-protected speech. For starters, the federal government cannot adopt and enforce a statute that violates the Constitution. Moreover, state universities--which are clearly bound by the First Amendment--are also fully capable of complying with statutes like Title VI.
One thing I have always found curious about university administrators who seek to avoid conforming their policies with the First Amendment is that they are implicitly adopting at least one of two arguments. Either they believe that their students, staff, and faculty are not deserving of the same speech and expression rights as their state university counterparts, or they believe that (as administrators) they are less capable of fulfilling the university's educational and truth-seeking missions than their state university counterparts. Were I an administrator at a private university, I would be embarrassed to embrace either premise, yet here we are.
[Note: I recognize that some universities have religious or other missions that may justify a different approach, but that is not the case at most private universities.]
Of course there are other reasons why private universities should embrace First Amendment values. Among other things, this can help ensure that universities protect divergent viewpoints, foster an environment of open inquiry, and support academic freedom. Indeed, there are few things a university can do that are more integral to its educational and truth-seeking mission than to safeguard the fullest possible right to hold and express opinions, to speak and write, to listen, challenge, inquire and learn. But if that were not reason enough, adopting this sort of standard can reduce a university's legal risk too.
UPDATE: Perhaps due to lack of clarity on my part, some readers seem to misunderstand the claim about why neutrality and consistency reduces legal risk for universities. To clarify, my claim (and the claim I understand Schanzenbach and Yuracko to be making) is not that Title VI requires private universities to be ideologically neutral or consistent. As private institutions, they have no legal obligation to be neutral about ideological or other matters, and no obligation to be consistent beyond that which is entailed in their own voluntarily assumed legal commitments (such as commitments to respect academic freedom and the like).
The claim here is that a lack of neutrality and consistency in certain instances that implicate matters covered by Title VI (such as, say, the handling of protest activity that may implicate protected classes) can be a source of legal risk, and that such neutrality and consistency can protect against Title VI liability. Further, a commitment to adhere to First Amendment standards can help ensure that a university maintains a sufficiently neutral and consistent posture that will reduce its legal vulnerability. Obviously, a university that neutrally and consistently allows for overt racial harassment or other conduct that is not plausibly protected by the First Amendment could not use its consistency or neutrality as a defense, but that is not a position I understand any university administrator to be advocating.
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The All-Argentina Issue is Here
New from Reason: a look into what Javier Milei
has accomplished and what it will take to make the most of Argentina’s window for real change. Out now
for subscribers.
