Here's the text of today's letter (see here for the full letter, including footnotes):
FIRE is deeply concerned by New York University School of Law's recent suggestion to The New York Times that it may be investigating student Ryna Workman for their protected political speech amid intense public and campuswide criticism for expressing views about the Israeli-Palestinian conflict.
"For legal reasons," NYU Law told The Times Wednesday, "we cannot comment on the specifics of any current student who may be under investigation. Speaking generally, all complaints of bias and/or discriminatory behavior are investigated thoroughly and in accordance with federal, state, and local guidelines, and the appropriate disciplinary action follows the outcome of that process."
This raises concerns because, where a bias or harassment complaint seems to allege no more than protected expression, the correct approach, under NYU's clear free expression promises, is to have administrators conduct a cursory, internal review. If that review confirms the submitter complains of solely protected expression, NYU can promptly close the case without ever notifying the accused student, while at the same time offering support to the aggrieved complainant. To be sure, NYU may face certain important obligations to investigate discrimination, harassment, threats, or other misconduct on campus—but it should not publicly launch investigations where allegations are comprised of nothing more than pure political expression.
That is because even investigations that ultimately resolve in favor of the accused can deeply chill campus speech. The inquiry in such a case is not whether formal punishment is ultimately imposed, but whether the university's actions "chill a person of ordinary firmness" from engaging in future protected activity. Consequently, NYU's public reference to Workman's speech as potential misconduct sends a chilling message not only to Workman, but to all students and faculty that they may face disciplinary action for engaging in core political expression. Notably, there is no suggestion in any of the public reporting that Workman engaged in any misconduct whatsoever.
After spending more than two decades in the Department of Politics at Princeton University, I'm pleased to announce that I will joining the faculty of Yale Law School in the fall of 2024. At YLS, I also expect to be the faculty director of a new center focused on academic freedom and free speech issues.
I've been extremely fortunate to have been at Princeton, and I leave with nothing but good feelings and best wishes for my students and colleagues there. It is time to take on some new challenges, however, and I very much look forward to joining a new set of students and colleagues at Yale.
Yale Law School has an unparalleled role in shaping the legal academia and influencing policymakers, and I'm looking forward to finding my own niche there.
I'm not unmindful of the significance of this move at the present moment. YLS has, of course, had its own recent controversies regarding free speech and ideological diversity. Yale has notoriously been lacking in right-of-center public law faculty for decades. Co-blogger Josh Blackman says YLS is a failed academic institution. I hope not! But the lack of political diversity on elite law school faculties is unhealthy, and I'm glad to be able to do my small part to mix things up. Law students and law schools need to be able to understand and engage productively with a conservative federal judiciary. With the very meaning of the conservatism in the United States up for grabs, I look forward to lending what perspective and expertise I can to public debates.
I'm grateful to Yale Law School Dean Heather Gerken for her efforts in making this happen, and to the faculty at YLS for their welcome. The next couple of decades should be interesting. More to come in due course.
The debate over section 702 of FISA is heating up as the end-of-year deadline for reauthorization draws near. The debate is reflected in a report from the Privacy and Civil Liberties Oversight Board. That report was not unanimous.
In the interest of helping listeners understand the report and its recommendations, the Cyberlaw Podcast has produced a bonus episode 476, featuring two board members who represent the board's divergent views—Beth Williams, a Republican-appointed member, and Travis LeBlanc, a Democrat-appointed member.
It's a great introduction to the 702 program, touching first on the very substantial points of agreement about it and then on the concerns and recommendations for addressing those concerns.
Best of all, the conversation ends with a surprise consensus on the importance of using the program to vet travelers to the United States and holders of security clearances.
The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.
The rules on this vary from state to state: In some states, this sort of pressure might not be actionable—if the employer is free to fire someone, and you are free to stop doing business with the employer, you're free to threaten the employer with loss of business if it doesn't fire the person. But in other states, it may be tortious "interference with prospective economic advantage." Here's an Illinois decision handed down Friday, in Grako v. Bill Walsh Chevrolet-Cadillac, Inc.(written by Justice Adrienne Albrecht and joined by Justices Lance Peterson and Linda Davenport; see also Drake v. Dickey (Ind. Ct. App. 2013) for a similar holding):
Plaintiff alleged that [defendant] Walsh [the owner of the defendant car dealership] leveraged his status as a client of her former employer [Ramza Insurance Group] to secure her termination….
Based on the pleadings and depositions within the record, Grako filed for bankruptcy protection pursuant to federal law under Chapter 13 in November 2017. In June 2018, Grako returned a vehicle purchased from Bill Walsh Chevrolet-Cadillac, Inc., and discharged the associated debt.
The record reveals that Walsh had several personal insurance policies with Ramza Insurance. It also indicates that Bill Walsh-Chevrolet-Cadillac, Inc., bore the financial brunt of Grako's bankruptcy discharge of her vehicle. Walsh, an agent of Bill Walsh-Chevrolet-Cadillac, Inc., learned of the discharge in early November 2018. To Walsh's displeasure, the process of repossessing Grako's vehicle was at his expense. On November 7, he texted Grako, "R u kidding me after all I've done for you?" After exchanging texts the following day on the financial burden to retrieve the vehicle, Walsh concluded his conversation with Grako by stating: "We are pulling all of our business from ramza tomorrow."
Around this time, Walsh communicated his discontentment with Grako to his friend Schultz. Schultz [who had a business relationship with Ramza] chronicled their conversation in a string of text messages …, serving as an intermediary messenger between the displeased Ramza Insurance client and Ramza Insurance employees. According to Schultz, Walsh asked whether Grako worked at Ramza Insurance. Schultz's message also included the following:
I'd like our posts to be available on BlueSky as well as on Twitter and Mastodon. Is there a good service that will automatically post from an RSS feed (or a Twitter or Mastodon account) to BlueSky? Thanks!
In this post, I'll give you Part I, "Erotic-Expression Taxes vs. Nudity Taxes", which canvasses the different kinds of taxes in different states. (The article obviously has a lot of footnotes — go to the article itself if you want to see those.)
* * *
I. Erotic-Expression Taxes vs. Nudity Taxes
A. Erotic-Expression Taxes
Several states have adopted taxes targeting adult entertainment businesses. In Georgia, for instance, the Safe Harbor/Rachel's Law Act imposes a tax, equal to $5000 or 1% of gross revenue, whichever is greater, on every "adult entertainment establishment." The covered entities include, among other categories:
any place of business or commercial establishment where alcoholic beverages of any kind are sold, possessed, or consumed wherein . . . [t]he entertainment or activity therein consists of nude or substantially nude persons dancing with or without music or engaged in movements of a sexual nature or movements simulating sexual intercourse, oral copulation, sodomy, or masturbation.
The money collected goes into the Safe Harbor for Sexually Exploited Children Fund, the purpose of which is to provide (among other things) "care, rehabilitative services, residential housing, health services, and social services, including establishing safe houses, to sexually exploited children."
Note a few features of this statute, which are found in some other states' statutes as well. The set of covered businesses is defined in some way that includes nudity (or substantial nudity). The set of covered businesses is further limited to those that serve or allow the consumption of alcohol. And the money collected is to be used to fund (among other things) programs related to sex crimes.
What should the legal system think about attempts to publicly identify people whom one accuses of shameful behavior? What should social norms be on this?
The issue just came up a few days ago as to the lists of names and photos of Harvard students who were allegedly linked to pro-Hamas-attack statements. But the question has come up many times in recent years. Some people label such behavior "doxxing," including when the only information released is the person's name and perhaps photograph (as opposed to, say, bank account numbers, social security numbers, home addresses, home phone numbers, etc.). Many are understandably concerned that such behavior can lead not just to ostracism and condemnation, but also to violent attacks or at least threats.
This strikes me as a difficult question as a matter of social norms, precisely because the problem is so common. Any news story that reveals someone's alleged crimes or misconduct could lead many people to shun the person, some people to send nasty messages to the person, and a few to actually make illegal threats or even engage in physical attacks, especially if the alleged misconduct is seen as especially bad. (Consider, for instance, the identification of the dentist who killed Cecil the lion, which apparently led to threats against the dentist.) Any viral video that shows someone supposedly saying or doing something racist or sexist or otherwise sharply condemned by many people could have the same effect.
As a legal matter, it turns out that the Supreme Court has considered the question, and held that the risk of criminal misconduct by a few readers doesn't justify blocking such speech from all other readers.
Over the last few years, conservatives and some libertarians have made a point of complaining about "cancel culture," while many on the left have defended cancellations, or at least minimized their significance. But the shoe has been on the other foot in recent days, as there have been "cancellations" of student leaders and others who expressed sympathy for the horrific Hamas terrorist attacks against Israel. For example, when the president of the NYU law school student bar association issued such a statement, a law firm rescinded its offer to her, and the SBA itself moved to dismiss her from its presidency. People on the right have tended to support the cancellation of Hamas apologists, even if they opposed earlier left-wing cancellations.
Libertarian-leaning Washington Post columnist Megan McArdle (who opposed left-wing cancellations) decries the Hamas cancellations, as well. She argues that "free speech is the cornerstone of our democracy, and free speech by definition requires protecting unpopular ideas. Since bad ideas are often unpopular, this will include protecting some bad ones — fighting them with good ideas, rather than threats."
I respect her consistency. But I disagree. And that disagreement is not of recent vintage, born of the Hamas cases. Back in 2014 (long before "cancel culture" was a widely known phrase), I refused to sign a statement suggesting that we should never fire people because of their views. Sometimes such firings are justified:
[A]t one point the statement asserts that "the consequence of holding a wrong opinion should not be the loss of a job." I think this is true in the vast majority of cases, but not always. For example, few would object if [the person in question] had been fired for donating money to the KKK or a neo-Nazi organization… Despite some deplorable PC excesses, overall the effort to stigmatize racism and Nazism has produced some beneficial results. Elsewhere, I have suggested that there should be greater stigma attached to advocacy of communism than there is at present among Western intellectuals. Advocates of such ideologies should not be persecuted by the government or barred from all employment (even by private action). But it makes sense to impose some social stigma on them and exclude them from positions of great influence and prestige. Indeed, there has never been a society, no matter how liberal, that did not regard at least some ideas as "beyond the pale…."
In an ideal world where everyone carefully weighs opposing arguments strictly on the basis of logic and evidence, stigmatization would be both ineffective and unnecessary. In the real world, unfortunately, it can be a necessary evil, albeit only in extreme cases….
How do we identify cases where cancellation is justified? I summarized some possible criteria:
Opposition to same-sex marriage is distinguishable from Nazism, racism, and communism based on a combination of 1) the magnitude of the evil involved, 2) the extent to which the evidence against the view in question is overwhelming, and 3) the likely effects of trying to stigmatize [it]…., which in the case of [opposition] same-sex marriage is likely to be counterproductive.
The case at hand was the forced resignation of a Mozilla executive who opposed same-sex marriage (I myself was and am a longtime supporter of same-sex marriage, but did not think opposition was worthy of cancellation).
I still hold much the same view today. But I would add some additional considerations.
First, much depends on the nature of the job we are talking about. Some positions - most notably those involving academic inquiry and research - require very broad freedom of thought, in order to ensure free-wheeling inquiry. In these types of situations, we must often tolerate abhorrent views, in order to avoid stifling research and debate. For that reason, I defended the academic freedom of University of Pennsylvania law professor Amy Wax, despite the fact she made awful comments advocating discrimination against Asian immigrants (which I condemned).
Wide-ranging free inquiry is not a primary purpose of most jobs, however. In those cases, there is much less social cost to employers' exercising their right to dissociate themselves from people whose views they find abhorrent. This point pretty clearly applies to the law firm that rescinded the offer to the Hamas apologist, and to the NYU SBA, as well.
In some situations, moreover, the nature of the job is such that an employee with at least some types of abhorrent views is likely to prove a menace to the organization's mission. If Wax were up for a position as a university president or high-ranking administrator, it would be entirely proper to reject her based on her awful views. Research and debate are not primary duties of administrators. And people in such positions have a lot of discretionary power over students and staff that a person with Wax's views could readily abuse.
Moreover, top-level leaders are supposed to embody an institution's values to a greater extent than rank and file employees. If a college president or corporate CEO is an open racist or terrorism apologist, it's far more difficult for the institution to dissociate itself from his positions, than in the case of people in lower-level posts. Barring people with abhorrent values from such high-ranking positions is far more defensible than denying them other types of jobs.
There are, of course, many jobs where even the most abhorrent possible views are of little moment. Rarely, if ever, should anyone care about the political views of a construction worker or an accountant. Those views are highly unlikely to affect their work, and letting people with abhorrent views hold such positions is unlikely to give those opinions undeserved prestige or social status.
Finally, as noted in my 2014 post, cancellation is unlikely to work when it comes to awful views that are widely held. For example, we could not effectively cancel racists in 1950s Alabama. In such cases, it might still be justified to avoid appointing advocates of terrible views to positions of great power that they are likely to abuse (e.g. - even then, perhaps especially then, it's better that a university president not be a racist). But it makes no sense to bar them merely for the purpose of stigmatization.
In sum, whether cancellation is justified depends on some combination of the awfulness of the views in question, the nature of the job, and whether stigmatization is likely to be effective. This makes for a complicated calculus, and people will surely make mistakes in applying it. But the alternative of never terminating employment based on abhorrent views is even worse. In that scenario, we would be unable to remove Nazis, Communists, and the like from positions where they are likely to cause serious harm.
Perhaps we should nonetheless abjure cancellation across the board, if the only alternative is the destruction of free inquiry and discourse. But I think we are nowhere near that point. In a society with strict limits on state-imposed censorship (a different beast from private cancellation), any widely held view is unlikely to be systematically suppressed, because there are likely to be institutions that back it. If left-wing institutions cancel conservatives for stupid reasons, right-wing institutions are likely to give them a platform - and vice versa. Indeed, this is exactly what has happened with many victims of dubious cancellation attempts (and even some whose cancellations were better justified).
Many of the things that supposedly can't be said in the intellectual world (opposition to affirmative action, support for police crackdowns on crime, critiques of cancel culture itself, and much else) are in fact said all the time, usually with few or no negative consequences. Don't believe me? Look around the internet and find numerous examples of people saying them! I've said a number of them in prominent venues myself, and haven't even come close to cancellation.
Moreover, people of good faith can and do make reasonable distinctions between different types of views and different types of institutions. And if you think few or no people have good faith, then attacking cancel culture is unlikely to help, as the bad-faith types aren't going to heed your exhortations anyway.
We can't avoid all mistakes, and there will continue to be some egregious cancel culture excesses. We should condemn them and work to reduce their incidence. But we should not go to the opposite extreme of rejecting cancellation across the board.
I often need to print an entire tab to a PDF (though I'm fine printing to a JPG or some such file instead) exactly as it appears. Ctrl-P will often print it with a very different appearance; PrintScreen will save the current screen contents to the clipboard, but I'd have to repeat that several time when a tab contains multiple screens' worth. I tried Ctrl-Shift-PrintScreen, which I've seen recommended for this, but it just printed the current screen, rather than the whole tab.
I just learned, several months after it happened, that our automatic feeding to Mastodon stopped earlier this year, because the auto-feed service (moa.party) shut down. I'm now trying MastoFeed.org, and this is my test post.
As the Supreme Court's docket is shrinking, it is considering an increasing number U.S. Court of Appeals for the Fifth Circuit, and the Fifth Circuit's decisions do not appear to be faring well. This invites comparisons to the Ninth Circuit, which was notorious for issuing decisions out of step with the current Court. The difference, of course, is that the Ninth Circuit was to the Left of the Supreme Court, whereas the Fifth Circuit appears to be to the Court's Right. (I have also bloggedextensively on whether the Sixth Circuit became the "new Ninth," at least for a time.)
There are several things that are true about the Fifth Circuit. This includes the six cases from the Fifth Circuit that are already granted for argument before the Supreme Court this term, the most from any circuit so far. It also includes the six judges that former President Trump appointed to the Circuit. Then there is the speculative. Some argue that the Fifth Circuit is the most conservative circuit in the United States. Others see it as a stabilizing jurisprudential force. What has led to this shifting and increasingly important caseload that the Supreme Court has taken a greater interest in? Much likely has to do with a combination of the judges on the circuit and the cases argued there.
Even with critiques about the number of judges Trump appointed to the Fifth Circuit, the circuit's decisions have not fared as well as some have speculated they would when reviewed by the Supreme Court in recent terms. In fact, between the 2019 and 2022 terms, decisions from the Fifth Circuit have been reversed more than twice as frequently as they have been affirmed (15 to seven on cases with clear outcomes). The number of cases and the percentage of the Court's docket taken from the Fifth Circuit has clearly risen in recent terms though.
The post also looks at the large number of cases the Court has taken from the Fifth Circuit for this term (and do not forget, others may be coming).
As opposed to previous Supreme Court terms where the justices have taken up few decisions from the Fifth Circuit for review and have often overturned them, the Court has granted more cases from the Fifth Circuit so this term than from any other circuit and will very possibly affirm a majority of those decisions.
The Fifth Circuit decisions in four of the six cases are in a clearly conservative direction which accords with the Supreme Court's apparent preference for conservative constitutional jurisprudence. The number of Republican appointed judges deciding these opinions below also correlates with the plausibility of a higher percentage of affirmed Fifth Circuit decisions than in the past.
These factors are not likely to be limited to this term. As long as the Fifth Circuit is made up of judges who share many of the preferences held by the Supreme Court Justices and decides cases with salient topics as perceived by the Supreme Court, we may see a similar pattern for years to come.
From the Oct. 10 letter by Secretary Suella Braverman (see also Reuters on the French bans on "pro-Palestinian protests"):
You will be aware of, and no doubt share my disgust at, the barbaric terrorist attacks we've seen committed against Israel in recent days. Sadly, experience indicates that whenever Israel is attacked, Islamists and other racists, seek to use legitimate Israeli defensive measures as a pretext to stir up hatred against British Jews and increase fear within the Jewish community. In the past, this has included vandalism of Jewish businesses, desecration of memorials and religious sites, physical and verbal abuse of Jews on the streets, convoys driving through Jewish neighbourhoods hurling antisemitic abuse, and proliferation of antisemitism online. There is an obvious risk that this pattern will be repeated during the current conflict….
As you know, Hamas is a proscribed terrorist organisation in the UK in its entirety. It is therefore a criminal offence for a person in the UK to:
belong to Hamas
invite support for Hamas
express support for Hamas whilst being reckless as to whether the expression will encourage support of it
arrange a meeting in support of Hamas
wear clothing or carry articles in public which arouse reasonable suspicion that an individual is a member or supporter of Hamas or
publish an image of an article such as a flag or logo in the same circumstances …
Of course, it is not just explicit pro-Hamas symbols and chants that are cause for concern. I would encourage police to consider whether chants such as "From the river to the sea, Palestine will be free" should be understood as an expression of a violent desire to see Israel erased from the world, and whether its use in certain contexts may amount to a racially aggravated section 5 public order offence.
The court had earlier issued a temporary restraining order against the law, to maintain the status quo; but now that it has gotten more full briefing, it declined to block the law (but also declined to dismiss the challenge to the law).
From Chief Judge David Nye's decision yesterday in Roe v. Critchfield (D. Idaho):
On March 22, 2023, the Idaho Legislature adopted Idaho Senate Bill 1100 …. On July 1, 2023, S.B. 1100 went into effect. S.B. 1100 requires, among other things, that students in Idaho public schools use the bathroom or locker room that corresponds with their biological sex. Similar regulations apply to overnight accommodations….
This is a difficult case. The Court previously prevented S.B. 1100 from taking effect [via a temporary restraining order] based upon the concept that maintaining the status quo—of no formal regulation—would allow the parties more time to fully address the difficult issues involved in this case. And while its decision today is still not a full adjudication on the merits, the Court finds that Plaintiffs have not shown they are likely to succeed on the merits of their claims.
The Court is not implying Plaintiffs' arguments are meritless—after all, some courts have upheld similar arguments to those Plaintiffs offer now. On the other hand, other courts have upheld the arguments Defendants proffer. Indeed, this area of law (and societal policy) is evolving.
Plaintiff purports to be the individual who leaked the now-famous trove of offshore financial records known as the "Panama Papers." Using the pseudonym "John Doe" and proceeding pro se, Plaintiff filed this breach of contract action under the Foreign Sovereign Immunities Act against the Federal Republic of Germany … and the Bundeskriminalamt of Germany … on July 24, 2023. Plaintiff claims that Defendants have failed to pay amounts due under a contract pursuant to which Defendants purchased access to the Panama Papers for use in identifying tax fraud and other financial crimes….
In a declaration supporting his motion for leave to proceed anonymously, Plaintiff states that to protect his safety, he has exclusively used the pseudonym "John Doe" in connection with the Panama Papers. He asserts his belief that "should my identity become known, my life would be in immediate peril" and "I would likely be killed." Plaintiff points to a docudrama video shown in Russia in 2017 that he interprets as "an explicit and credible death threat against me by the government of the Russian Federation," and claims he faces similar threats from the governments of China and Saudi Arabia, international drug trafficking organizations, and ultra-high net worth individuals whose activities were exposed by the Panama Papers. Plaintiff's motion argues that under the multi-factor test set forth in Sealed Plaintiff v. Sealed Defendant (2d Cir. 2008), for evaluating requests to proceed under a pseudonym, these serious threats to the physical safety of Plaintiff as well as his family, friends, colleagues, and other individuals weigh in favor of granting him the requested relief….
Plaintiff's showing was sufficiently compelling to persuade Chief Judge Boasberg, applying the D.C. Circuit's similar test, to allow Plaintiff to proceed under a pseudonym in the D.D.C. Action [a nearly identical case the court filed in D.C. and then dismissed -EV], on condition that he disclose his identity under seal to the court [see here for that opinion -EV]. Without indicating any disagreement with Judge Boasberg's thoughtful analysis or conclusion, this Court finds that it would be inappropriate to decide Plaintiff's motion in this action at this time, for several reasons.
From the Foundation for Individual Rights and Expression (Joe Cohn):
Earlier this week, Stanford University suspended an instructor while the institution investigates allegations Jewish and Israeli students were targeted for discriminatory treatment in a required, first-year "Civic, Liberal and Global Education" course. Discriminating against students based on a protected characteristic such as race, gender, or national origin, violates federal law.
Academic freedom protects an exceptionally wide range of pedagogically relevant classroom speech by faculty. But the alleged conduct in this case, taken together, appears to cross the line. According to severalnewsreports, in impromptu discussions of the Israeli war with Hamas during two classes, the instructor allegedly:
asked Jewish and Israeli students to raise their hands;
separated the Jewish and Israeli students from their peers, who he said represented the "colonized," by ordering the Jewish and Israeli students to stand in the corner;
labeled the Jewish and Israeli students "colonizers;" and
argued that Israel is a colonizer that has killed more people than were killed during the Holocaust.
There are also conflictingreports about how the instructor may have taken, or otherwise separated, one or more students from their belongings before they were sent to the corner.
