In 2020, the U.S. Agency for Global Media (USAGM) was sued by several of its employees. USAGM oversees U.S.-funded international broadcasting outlets, including the Voice of America (VOA). The plaintiffs, five USAGM senior managers and VOA's program director, alleged that USAGM CEO Michael Pack, who was appointed by President Trump in 2020, "[had] sought to interfere in the newsrooms of the USAGM networks, in violation of their eighty-year practice … of journalistic autonomy." Plaintiffs accused Pack of "seek[ing] to quash … coverage that is insufficiently supportive of President Trump," as well as "any coverage, unless unfavorable, of President Trump's political opponents." These actions, the plaintiffs charged, ran afoul not only of statutory commands but of the First Amendment. USAGM responded that VOA and the other networks speak on behalf of the government and lack any First Amendment rights in so doing. In taking the actions that he did, Pack was simply "exercis[ing] his [own] authority to 'direct and supervise' and to 'assess the quality, effectiveness, and professional integrity of' USAGM" reporting.
The First Amendment arguments in this case, Turner v. USAGM, reflect a broader tension in the case law concerning the government's role as "knowledge producer"—that is, its role in producing or conveying information or otherwise fostering knowledge. From the plaintiffs' perspective, the government ties itself to a mast when it purports to produce journalism. That mast is comprised of the norms of professional journalism, including a strict separation between an operation's business or political commitments and its journalistic endeavors.
This argument is consistent with several strands of Supreme Court case law. For example, the Court repeatedly has held that, although government is not required to subsidize private speech or create speech forums, once it does so, it may not impose restrictions that are based on viewpoint or that are incompatible with the very nature of the speech subsidized or forum created. The defendants, on the other hand, invoked aspects of free speech doctrine that emphasize the government's broad discretion to control the speech that it produces. This includes the Garcetti rule—stemming from the 2006 Supreme Court case of Garcetti v. Ceballos—whereby government employees generally are unprotected by the First Amendment for their work product speech, meaning speech that they produce as part of their job duties. Garcetti itself arguably is in tension with the Court's acknowledgment elsewhere to the effect that "speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment."
John Doe and Robert Roe are a gay couple who have been in a "committed, but discreet," relationship for 33 years, and who were married in California in 2013. Doe is a United States citizen and California resident who lives in Riyadh, Saudi Arabia most of the year, where he works for a company as legal counsel. Roe is a Saudi Arabian citizen who, until May 2021, was living full-time in Riyadh and working as a result estate [real estate? -EV] investor. Since 1989, Doe and Roe lived together in Saudi Arabia, but they were forced to keep their relationship and sexual orientation hidden because homosexuality has been treated as a capital offense in Saudi Arabia. "Living very carefully, they successfully kept their 33-year relationship a secret from the government, strangers, employers, friends, and family, alike."
In 2021, Doe and Roe were flying on Lufthansa from Riyadh to San Francisco. For complicated reasons related to U.S. COVID-related travel rules, Doe and Roe ended up having to disclose to a senior Lufthansa employee at Riyadh airport that they were married under U.S. law, and the employee allegedly said that publicly; they also allege that the information about the marriage was conveyed to Saudi authorities. As a result,
Roe has not returned to Saudi Arabia since the May 25, 2021 flight for fear of harsh penalties faced by Saudi citizens for being gay, "with the most lenient punishment being the revocation of his passport and inability to ever leave Saudi Arabia, and escalating to potential harassment of his family, imprisonment, or the risk of being executed because of his sexual orientation and relationship with Roe." Doe has inquired of high-ranking officials at the United States consulate as to whether it might be safe for Roe to return to Saudi Arabia, and they have "unanimously concurred" that Roe's safety cannot be assured if he were to return. Roe was forced to quickly and at great expense obtain a vista that allowed him to legally remain in the United States instead of returning home to Saudi Arabia. In January 2023, Roe received a provisional green card for permanent residency in the United States, and he hopes to become a United States citizen so that he may remain indefinitely in the United States.
Roe and Doe live with the uncertainty of whether Roe will be permitted to remain in the United States or if he will be required to leave and live elsewhere. Since leaving Saudi Arabia, Roe has not seen his family, who all live in Saudi Arabia. Doe, as a U.S. citizen, has been and will be able to return for work in Saudi Arabia with less risk of severe government retribution. Nevertheless, "Doe still fears that his sexual orientation and marital status will cost him his job, result in public shaming, and potential permanent deportation from Saudi Arabia." …
The court concluded, however, that it lacked personal jurisdiction over Lufthansa; though Lufthansa does business in California, the court concluded that "plaintiffs have failed to show that their claims arise out of or relate to defendants' activities in California:
What is the story of religious pluralism in America? Over time, and not without occasionally serious conflict, the wider American society comes to accept minority religious groups it initially finds quite threatening: Quakers, Catholics, Mormons, and others. These groups insist on their legal rights and, eventually, America lives up to its commitments to religious freedom and civic equality. A more tolerant, peaceful society results, a real achievement in a world in which brutal religious persecution still exists.
That is the conventional story, and it is told very well in a new documentary, "Free Exercise: America's Story of Religious Liberty," which I review at the Law & Liberty site. But, to my mind, there is another explanation as well. Religious peace has resulted from moderation on both sides. The wider society becomes more accepting of religious difference, but minority religions themselves often transform in ways that make them more like everybody else.
Take Catholics, for example. Catholics were once deeply threatening to mainstream America, not least because the Catholic Church opposed America's liberal commitments, including religious freedom, as dangerous heresies. But the Church's position on "Americanism" changed over time, and largely as a result of American influence. As I write in my review:
The nineteenth-century Church was the Church of the Syllabus of Errors (1864), a papal document that condemned freedom of conscience and the separation of church and state as dangerous heresies. America's Protestant majority saw this document and the values it espoused as hostile to fundamental American commitments. In the 1928 campaign, The Atlantic published an open letter questioning whether a Catholic like Smith could serve as president, citing the Syllabus and other papal pronouncements on church and state.
A hundred years later, though, and largely through the efforts of American Catholics like Fr. John Courtney Murray, the Second Vatican Council adopted Dignitatis Humanae, a document that specifically endorses religious liberty as a civil right. Catholic scholars have argued that Dignitatis Humanae and the Syllabus of Errors can be interpreted consistently with one another and that, from a theological perspective, there was no change. However theologians understand the situation, though, after Dignitatis Humanae, something had indeed changed as a practical matter. A major point of tension between the Catholic Church and American culture had disappeared, largely because of American influence.
The LDS Church offers another example. Mormons were deeply threatening to 19th century America, mostly because of polygamy. But, again, that changed:
In 1890, however, the LDS Church officially ended the practice—making it possible for Utah to be admitted as a state six years later. Practically speaking, Mormonism changed in a way that made it much less threatening to the wider American public. Mormons conformed to social convention, and relations between the LDS Church and other Americans have been better ever since.
In short, in America, minority religions have tended to move to the mean over time and become, in important ways, more or less like everyone else. (There are exceptions, of course, like the neo-traditionalists in many religious communities who self-consciously set themselves apart from the wider society). What explains this dynamic? It's hard to say. Perhaps the Lockean commitments that underpin our First Amendment lead over time to religious moderation. Perhaps the explanation lies in Americans' tendency to conform to social expectations, an under-appreciated fact about us that Tocqueville noticed 200 years ago. Whatever the explanation, the pattern seems very clear. Minority religions change America, but America changes minority religions, too.
From U.S. v. Osadzinski, decided yesterday by the Seventh Circuit (Judge Michael Scudder, joined by Judges Diane Wood and Amy St. Eve):
Thomas Osadzinski appeals his conviction for providing material support to a terrorist organization. In 2019 he created a computer program that allowed ISIS (the Islamic State in Iraq and Syria) and its followers to rapidly duplicate terrorist propaganda videos online and thereby to stay a step ahead of efforts by the United States and other western governments to thwart the organization's media campaign. Osadzinski shared his computer program with people he believed were ISIS supporters, taught them how to use it, and deployed it to compile and disseminate a large trove of ISIS media.
The court held that the conviction was consistent with the First Amendment, as applied in Holder v. Humanitarian Law Project (2010):
By its terms, 18 U.S.C. § 2339B makes it a crime to "knowingly provid[e] material support or resources to a foreign terrorist organization." Congress defined "material support or resources" as "any property, tangible or intangible, or service." "Services" include any "expert advice or assistance" that is "derived from scientific, technical or other specialized knowledge." … [T]he Supreme Court in HLP explained that § 2339B did not prevent a person from freely speaking about, or even independently advocating for, a terrorist organization. Rather, the Court made clear that the material-support statute prohibited "only a narrow category of speech" that falls outside the protection of the First Amendment—speech "to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations." …
For the sake of resolving this appeal, we accept Osadzinski's contention that all of his offense conduct qualifies as "speech" within the meaning of the First Amendment. That includes several activities that have been recognized as expression, such as writing an article and instruction manual, forwarding multimedia links, and sending pro-ISIS messages over social media. It also includes Osadzinski's creation, execution, and distribution of source code, which other circuits have found to constitute "speech" under the First Amendment.
There are many parallels between this case and the one the Supreme Court decided in Biden v. Nebraska, invalidating Biden's previous large-scale loan forgiveness plan.
Yesterday, a coalition of eleven red states led by the state of Kansas filed a lawsuit challenging the legality of President Biden's new loan forgiveness plan, which would forgive at least $156 billion in federal student loan debt. I suspect I am not the only observer who had a strong sense of de ja vu, when they saw this filing. Kansas v. Biden has many obvious similarities to Biden v. Nebraska, the case in which the Supreme Court invalidated the administration's previous massive student loan forgiveness plan (which would have discharged some $430 billion in student debt). Both involve efforts to forgive large amounts of student debt by exploiting vaguely worded statutes. Both plans are vulnerable under the "major questions doctrine," which requires Congress to "speak clearly" when authorizing an executive branch agency to make "decisions of vast economic and political significance." And both cases involve similar procedural "standing" questions.
Because I believe the Supreme Court was right to rule against the administration in Biden v. Nebraska, I think courts should also rule against it here, too. There may be ways to distinguish the two cases. But, so far, it looks like it's going to be an uphill battle for the administration.
The biggest potential difference between the cases is that Biden v. Nebraska involved an effort to forgive debt under the 2003 HEROES Act, while the current plan relies on the Higher Education Act of 1965 (HEA), as amended. When the previous case was being litigated, some suggested the Administration should rely on Section 432a of the HEA instead of or in addition to the HEROES Act. Section 432a gives the Secretary of Education the power to "enforce, pay, compromise, waive, or release any right, title, claim, lien, or demand" related to federally backed student loans. I critiqued this theory here.
In the aftermath of the Supreme Court's decision last June, the Biden administration announced they were indeed going to try to put together a new loan forgiveness plan using the HEA. But instead of relying on Section 432a, the administration adopted a rule that relies on Section 455 (codified as 20 U.S.C. Section 1087e), which gives the Department of Education the power to establish "Income contingent repayment schedules" that "shall require payments that vary in relation to the appropriate portion of the annual income of the borrower (and the borrower's spouse, if applicable) as determined by the Secretary [of Education]." The administration claims this provision gives it the power to adopt repayment plans that essentially forgive at least $156 million in student debt. As the plaintiff states' complaint summarizes it, the rule "(1) defines "discretionary income" to be income above 225% of the applicable Federal poverty guideline, (2) sets the monthly payment amount at $0 if the borrower's income falls below that threshold, (3) caps the monthly payment amount at 5% of the borrower's income that goes above that threshold for undergraduate loans, and (4) cancels all loans where the original principal balance was $12,000 or less after the borrower has made 120 monthly payments or the equivalent."
The administration claims all this comes within the power to create "income contingent repayment schedules." But this power is not broad enough to permit massive loan forgiveness, as opposed to merely offering some flexibility in the timing of repayment, based on income. As the states rightly point out, the administration's theory of Section 455 would allow it to use this power to forgive virtually all federally backed student debt: "there is nothing in the Secretary's interpretation of the HEA that would prevent him from limiting debt repayment on income-driven repayment plans to 1% of income over $1,000,000 for 1 year only, with all remaining debt—typically 100%—cancelled by the federal government."
At the very least, it is far from clear that Section 455 gives the Department of Education such vast authority. And if it is not clear whether Congress has delegated such a sweeping power, then the agency's claim to authority must be rejected under the major questions doctrine, as it was in Biden v. Nebraska. In that case, the Court ruled that forgiving $430 billion in student debt qualifies as an issue of "vast" economic and political significance. The same is true of the current plan.
To be sure, $156 billion is a smaller amount than $430 billion. But as the states point out, the former figure almost certainly underestimates the true cost of the new plan, because it was calculated under the assumption that the Administration's HEROES Act plan would be upheld by the courts and implemented, thereby forgiving a large part of the debt that might otherwise be covered by the new HEA plan. Since the Administration lost Biden v. Nebraska, the HEROES Act plan was not implemented, and therefore the new HEA plan would likely cover a lot more debt than is included in the figure of $156 billion.
The boundary between major and minor issues under the major questions doctrine is admittedly a fuzzy one. But hundreds of billions of dollars in loan cancellation strikes me as major by any plausible standard. The scope of this plan is at least in the same general ballpark as that of the one struck down in Biden v. Nebraska.
A big issue in Biden v. Nebraska was whether anyone had standing to sue to challenge the plan. Most observers thought standing was the administration's best chance of winning the case, because it could be none of the plaintiffs challenging the plan had suffered the requisite "injury" required to get standing. Ultimately, the coalition of state governments challenging the plan got standing because one of them (Missouri) had a state agency (MOHELA) that services federally backed student loans, and the agency's income would be reduced if some of those loans were forgiven.
The plaintiff states in the present case have a similar standing argument. One of them (Louisiana) also has a state agency that services federal student loans and provides student loans of its own. The plaintiffs claim that it - like MOHELA - would lose income if some of those loans (or parts of them) were forgiven.
I have not studied the Louisiana agency (which though the complaint does not name it, is probably the Louisiana Office of Student Financial Assistance) in detail. Perhaps there are differences between it and MOHELA that I have overlooked (e.g. - may be they don't service as many federal loans, and instead mainly focus on providing their own loans; the latter could still be a path to standing if demand for state student loans goes down as a result of federal student loan forgiveness). But if LOSFA and MOHELA are relevantly similar, Louisiana can get standing in this case much the same way that Missouri got it in the other one.
As this case goes on, we will like learn more about LOSFA, how it works, and its connections to federal student loans. For now, I welcome correction on the subject by people who know more about Louisiana's student loan system than I do.
The plaintiff states in this case (like the ones in Biden v. Nebraska) also have several other standing theories. I think some of them deserve to prevail, as well. But all are at least somewhat more questionable than the MOHELA/LOSFA theory, an approach already validated by the Supreme Court.
While it is not directly relevant to the merits of the case, I should note that the new suit is being spearheaded by Kansas Attorney General Kris Kobach. He is a highly dubious figure that has been sanctioned by federal courts for various types of misconduct, on multiple occasions. I certainly understand if some people view any lawsuit led by Kobach with a healthy measure of suspicion. I am no fan of Kobach myself.
But bad people sometimes bring meritorious lawsuits. This appears to be just such a case.
We are awash in lies. Misinformation has always been with us, but the endemicity of social media and the depth of political polarization in the United States and elsewhere has enabled falsehoods to be amplified, monetized, microtargeted, and spread around the world at unprecedented speed and scale. The consequences for democracy, public health, and social harmony are emergent and grave.
Misinformation presents one of the most vexing challenges for content moderation on social media (and off it, such as on cable news) for myriad reasons. Because misinformation can be difficult or controversial to define, policing it risks chilling core political speech, and because misinformation often resists automated enforcement, it cannot be removed or countered nearly as quickly or as cleanly as it spreads. Government regulation of misinformation raises special concerns, both because public officials may be particularly susceptible to political bias and because even outright lies enjoy a measure of constitutional protection.
The orthodox U.S. constitutional response to harmful speech, including false speech, is counterspeech. As Justice Brandeis wrote in his canonical concurring opinion in Whitney v. California, "[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." The view that corrective speech is preferable to censorship resonates with Justice Holmes' famous intimation that "the best test of truth is the power of the thought to get itself accepted in the competition of the market." The digital age has revealed Holmes' aphorism to be as absurd as ever, but he was prescient in saying "[t]hat at any rate is the theory of our Constitution." So it has become.
New on the Short Circuit podcast: A dive into IJ's research report Unaccountable, which examines how qualified immunity really works in the federal circuit courts of appeals. The interview with its authors includes a special look at the methodology used by the team to comb through over 7,000 opinions issued over 11 years. Read More
The Washington Post (Danielle Douglas-Gabriel) covers the story, in an article titled "Student loan servicer MOHELA tells advocacy group to stop 'misleading claims.'" The article links to MOHELA's demand letter, which closes with,
This letter provides the SBPC [the Student Borrower Protection Center] with notice of the falsity of the above-described statements and insinuations. Consequently, if the SBPC continues to make and publish any of these false and misleading statements, MOHELA will treat that continuation as done with knowledge of the statements' falsity or with reckless disregard of their truth or falsity, which can lead to punitive damages under libel laws and other related laws. MOHELA is hopeful that you understand that MOHELA will take all appropriate action necessary to stop this conduct if you persist. MOHELA greatly values and aggressively protects its rights and reputation and intends to vigorously enforce its rights.
But MOHELA is a government entity, and government entities cannot sue for libel, regardless of whether they can show knowing or reckless falsehood.
Cassava Sciences, Inc. ("Cassava") is a biotechnology company that is conducting clinical trials for an Alzheimer's drug called simufilam. Following the second phase of the simufilam clinical trials, multiple short sellers, most of them scientists, published concerns about the integrity of the clinical trials and other studies related to simufilam. They sent letters to the Food and Drug Administration (the "FDA") that painstakingly analyzed published results, data, and methodology, published presentations aimed at investors that summarized the letters and analyzed Cassava's public representations, and posted hundreds of tweets, which were, by their nature, much less rigorous.
Cassava vigorously disagreed with the concerns expressed by the short sellers. Members of the scientific community in Cassava's position have a variety of options. They can publish a thorough, factually supported rebuttal. They can facilitate replication of their results by a neutral, unaffiliated lab. They can invite the scientists expressing concerns to review their unpublished underlying data. Here, Cassava is pursuing another approach: a lawsuit against the people who have critiqued its scientific findings….
Because the Court finds that the majority of the defendants' statements were protected under the First Amendment as statements of opinion or scientific debate, and that the fraction of statements that were adequately alleged to be defamatory were not published with actual malice, it dismisses Plaintiff's claims against all of the defendants.
Several months ago, I published several posts here on the VC arguing that the Court should have dismissed Lorie Smith's challenge to Colorado's anti-discrimination law for lack of Article III standing. [see here and here]. In response, Prof. Richard Re (UVA) took the opposite position [see here and here]; he wrote:
According to many commentators [e.g., me], the Court decided what was really a "fake" or "made up" case brought by someone who asserted standing merely because "she worries." As a doctrinal matter, these criticisms are unfounded [and] the premise underlying this popular criticism is plainly incorrect. … The Court spent several pages approvingly recounting the standing analysis issued by the court of appeals. And that discussion applied a "credible threat" standard, consistent with settled case law. . . . This is a case where the existing rules were followed. Leading cases in the area are unanimous …
This past week I gave the inaugural lecture at Catholic University Law School's "Sexuality and Gender Discussion Forum" on the question of standing in this case. This presented an opportunity to take a somewhat deeper dive into the issue, and I came away more convinced than ever that the Court's decision was deeply ill-advised, inconsistent with prior precedent, a substantial expansion of existing standing rules, and likely to wreak considerable havoc in the days ahead. Let me try to explain why.
First, the facts, as summarized in the Supreme Court's majority opinion (emphases added):
"Through her business, 303 Creative LLC, Lorie Smith offers website and graphic design, marketing advice, and social media management services. Recently, she decided to expand her offerings to include services for couples seeking websites for their weddings. As she envisions it, her websites will provide couples with text, graphic arts, and videos to "celebrate" and "convey" the "details" of their "unique love story." … The websites will discuss how the couple met, explain their backgrounds, families, and future plans, and provide information about their upcoming wedding. All of the text and graphics on these websites will be"original," "customized," and "tailored" creations. The websites will be "expressive in nature,"designed "to communicate a particular message." Viewers will know, too, "that the websites are [Ms. Smith's] original artwork," for the name of the company she owns and operates by herself will be displayed on every one. …
[Alert readers may notice that some of these so-called "facts" - that her text and graphics will be "original," and "expressive in nature," and "communicative" - look a lot more like legal conclusions than facts. See below.]
The Court continued:
"[S]he has yet to carry out her plans. She worries that, if she does so, Colorado will force her to express views with which she disagrees. Ms. Smith provides her website and graphic services to customers regardless of their race, creed, sex, or sexual orientation. But she has never created expressions that contradict her own views for anyone—whether that means generating works that encourage violence, demean another person, or defy her religious beliefs by, say, promoting atheism. Ms. Smith does not wish to do otherwise now, but she worries Colorado has different plans. Specifically, she worries that, if she enters the wedding website business, the State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman.
Although Colorado had not yet attempted to enforce its anti-discrimination statute against Smith's wedding website business - how could it, given that she didn't have a wedding website business? - the Court held that she had standing to assert a "pre-enforcement challenge" because there was a "credible threat" that Colorado would make such an attempt in the event that she followed through with her plans.
And this was, in Professor Re's view, "entirely consistent with settled case law" on which the "leading cases" are "unanimous."
That is, I continue to believe, incorrect. Read More
As articulated by Justice Brandeis in Whitney v. California (1927), a foundational assumption of First Amendment jurisprudence is that the best remedy for potentially harmful speech, including false and misleading speech, is "more speech, not enforced silence." This extended Oliver Wendell Holmes' "free trade in ideas" model of speech in which the ultimate good is reached when people are free to exchange ideas in a marketplace without fear of government punishment (Nunziato 2018). However, the idea that an unregulated marketplace of ideas leads to the greatest public good has been increasingly challenged as our politics has become more contentious, polarized, and burdened with conspiracy theories that could potentially spread unimpeded through online networks (e.g., Sunstein 2021).
The January 6 Capitol riot provides the most striking example of this current state of affairs: Supporters of the sitting president, believing conspiracy theories about a stolen election (many of which were transmitted through social media), attacked the Capitol to disrupt the certification of the 2020 election. Of course, this is not an isolated incident—believers of conspiracy theories have been linked to numerous instances of societal harm. Supporters of the conspiracy theory-laden QAnon movement have engaged in harassment, kidnappings, domestic terrorism, and killings (Bump 2019). Those exhibiting beliefs in COVID-19 conspiracy theories—of which there are many—refuse social distancing, masking, and vaccination (Romer and Jamieson 2020), allowing the virus to spread unhindered. If conspiracy theories are causing people to engage in violent or otherwise harmful actions, doesn't the government have the responsibility to prevent those harms by limiting the reach of conspiracy theories?
It is clear that conspiracy theories (and other similarly dubious ideas) are subject to existing jurisprudential doctrine regarding defamation, imminent lawless action, threats, and false statements (Han 2017, 178). Indeed, one could argue with relative ease that at least some conspiracy theories serve no purpose in contributing to the marketplace of ideas, promoting healthy democracy, or aiding in the search for the truth, and that any personal or societal harm stemming from such conspiracy theories outweighs the merits of protecting them. But as with all other forms of speech, circumstances matter, and under current legal frameworks, only particular conspiracy theories—those that fall into one of the categories of low-value speech listed above—will be denied constitutional protection. The result is that most conspiracy theories, even those that are intentional lies, will constitute protected speech.
I've seen plenty before, but this one is from Texas Gov. Greg Abbott, and the particular target is "antisemitic speech." An excerpt from Wednesday's Executive Order:
WHEREAS, Section 51.9315(f) of the Texas Education Code requires all higher
education institutions to adopt policies detailing students' responsibilities regarding free expression on campus; and
WHEREAS, Section 51.9315(c)(2) of the Texas Education Code provides that students
should not participate in, and higher education institutions should not allow, expression that is unlawful or disrupts the operations of the institution; and
WHEREAS, antisemitism and the harassment of Jewish students have no place on Texas university campuses and will not be tolerated by my administration;
NOW, THEREFORE, I … hereby direct all Texas higher education institutions to do the following:
1. Review and update free speech policies to address the sharp rise in antisemitic speech and acts on university campuses and establish appropriate punishments, including expulsion from the institution.
2. Ensure that these policies are being enforced on campuses and that groups such as the Palestine Solidarity Committee and Students for Justice in Palestine are disciplined for violating these policies.
3. Include the definition of antisemitism, adopted by the State of Texas in Section 448.001 of the Texas Government Code, in university free speech policies to guide university personnel and students on what constitutes antisemitic speech.
The public Cortland Housing Authority (near Syracuse) required its tenants not to possess "firearms … or other weapons as defined by the laws and courts of the State of New York" on its property. In Hunter v. Cortland Housing Authority, decided Jan. 30, 2024 (though I somehow missed it), Judge Glenn Suddaby (N.D.N.Y.) held that this likely violates the Second Amendment,
First, as a threshold matter, the Court has trouble accepting defense counsel's argument that "[p]ublic housing … was assuredly not something that our Founding Fathers could have contemplated at the time of the drafting of the Constitution or the time of the drafting of the Second Amendment, [because] it just did not exist. Publicly-funded housing for low-income families was not … on their radar …. [A]s Justice Thomas said, it's a new circumstance in our modern society." To the contrary, in numerous states, past generations appear to have provided publicly funded housing for low-income families and individuals—albeit likely for less-definite terms of duration than in modern public housing—in the form of places such as publicly supported "almshouses," poor-houses, and poor-farms. Even if such historical analogues could be fairly characterized as "historical twin[s]" or "dead ringers," other relevant similarities would appear to exist to any historical regulation of firearms in boarding houses or the residences of indentured servants.
Granted, the Court does not demand that Defendants show that firearms were traditionally banned in these analogous places. The Court is dutifully mindful of the Second Circuit's criticism of reasoning from "historical silence." For example, lawmakers may not have been moved to forbid the possession of firearms by people who could not afford to own them, or the possession of firearms at locations where the firearms owner resided at the whim of a cautious or peace-keeping property owner. However, one would imagine that a thorough analysis of the Firearms Ban in question would at least start with an acknowledgment that any historical regulations of firearms in the above-referenced almshouses, poor-houses, and poor-farms would be relevantly similar to the Firearms Ban: after all, both the historical and modern regulations would impose a comparable burden (i.e., denying one the ability to defend oneself in one's—potentially congested—publicly funded residence through the use of a firearm), and both the historical and modern regulations would carry a comparable justification (i.e., preventing the unwarranted danger to others in close proximity to oneself due to the non-defensive use of a firearm).
Following the Supreme Court's remand to the Tenth Circuit, which in turn led to the remand to district court, Chief Judge Philip Brimmer (D. Colo.) rendered the following order Tuesday:
It is ORDERED that plaintiffs are the prevailing parties in this action under 42 U.S.C. § 1988(b). Plaintiffs and their counsel are entitled to recover their reasonable attorney's fees, costs, and expenses for work related to litigation before the district court. It is further
ORDERED that the First Amendment's Free Speech Clause prohibits Colorado from enforcing the Accommodation Clause of Colorado's Anti-Discrimination Act ("CADA"), Colo. Rev. Stat. § 24-34-601(2)(a)), to compel plaintiffs to create custom websites celebrating or depicting same-sex weddings or otherwise create or depict original, expressive, graphic or website designs inconsistent with her beliefs regarding same-sex marriage. It is further
ORDERED that the First Amendment's Free Speech Clause prohibits Colorado from enforcing CADA's Communication Clause to prevent plaintiffs from posting the following statement on her website or from making materially similar statements on her website and directly to prospective clients:
I firmly believe that God is calling me to this work. Why? I am personally convicted that He wants me – during these uncertain times for those who believe in biblical marriage – to shine His light and not stay silent. He is calling me to stand up for my faith, to explain His true story about marriage, and to use the talents and business He gave me to publicly proclaim and celebrate His design for marriage as a life-long union between one man and one woman.
These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God's true story of marriage – the very story He is calling me to promote.
I just learned it from Third Circuit Judge Cheryl Krause's dissent from denial of rehearing en banc in Lara v. Commissioner. Black's Law Dictionary (Bryan Garner's 11th ed.) tells us that "c.a.v." stands for "curia advisari vult," which in turn literally means "The court will be advised; the court will consider," and "signal[s] a court's decision to delay judgment pending further consideration."
"In England, the phrase is still used in all Court of Appeal decisions when the judgment is reserved; that is, not delivered after the hearing." In America, for better or worse, it seems extremely rare; but in the Third Circuit, it's a thing, with the phrase generally being something like "hold the case c.a.v."
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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.
