Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
In Texas, Louisiana, and Mississippi, public school employees who use unconstitutional violence against students—and those who ignore such violence—enjoy complete immunity from Section 1983 claims. That is bananas, and this week we asked the Supreme Court to put a stop to it (and also to resolve a split between nine other circuits on how such claims should be handled). Click here to learn more.
I wrote about the court decision in favor of plaintiff back in August; now I see that the parties have settled, and are asking for court approval of the following consent order:
1. Defendants are hereby permanently enjoined from censoring Schmidt's views on the sexual identity of Artemis Langford and from applying the one-year table ban on Schmidt that was initiated on December 7, 2022.
2. This injunction does not diminish Defendants' ability to sanction possible future misbehavior by Schmidt, such as continuing to engage with students who do not wish to speak with him.
3. Defendants shall pay certain attorney fees and expenses in the amount of $35,000 within 20 days of this Order….
Schmidt is an elder at the Laramie Faith Community Church…. He has reserved a table in the UW Union breezeway on a regular basis for the past 17 years. The UW Union allows campus groups and various outside organizations to utilize breezeway tables to communicate with students. The breezeway tables provide access to a high degree of student pedestrian traffic. Schmidt uses his breezeway table to display various DVDs and books. He also places on his table a Velcro-backed sign with plastic lettering to display different messages.
Whether Florida may order universities to derecognize Students for Justice in Palestine chapters would likely turn on whether there's evidence on sufficient coordination between them and the national SJP, and the national SJP and Hamas.
[UPDATE 11/1/2023, 4:12 pm: Here's an open letter on this subject sent today by the ACLU.]
FIRE wrote this letter Wednesday to various Florida public universities:
FIRE is deeply concerned by reports [link] that Florida's public universities … have been ordered by State University System of Florida Chancellor Ray Rodrigues, at the behest of Florida Governor Ron DeSantis, to derecognize campus chapters of Students for Justice in Palestine due to their affiliation with National Students for Justice in Palestine, which distributed a guide to protests to its student chapters. {The guide [link] called for "a national day of resistance from the student movement for Palestine liberation on college campuses" on October 12 and provided an RSVP link for a meeting on "'how to organize a protest,' including roles, security, media training, and more," as well providing additional ways to engage in the movement should protest not be possible, including teach-ins and writing local statement of solidarity. It also includes information about the organization's messaging and framing, hashtags for social media use, and graphic templates..}
By insupportably alleging that communications about campus protests from the national organization to its campus chapters constitutes material support for Hamas' terrorist activity overseas, this order unlawfully threatens students' clear expressive and associational rights under the First Amendment. To avoid violating clearly established law, [Florida universities] must not comply with the order.
In a letter to all State University System of Florida presidents on Monday [link], Rodrigues said that "based on National SJP's support of terrorism, in consultation with Governor DeSantis, the student [SJP] chapters must be deactivated. These … student chapters may form another organization that complies with Florida state statutes and university policies."
"Appellant wants the option to hide behind a shield of anonymity in the event he is unsuccessful in proving his claim, but he would surely identify himself if he were to prove his claims."
In yesterday's Doe v. Doe, defendant Jane Doe had filed a Title IX complaint against fellow Tulane student John Doe: Both Jane and another student (not a party to the case), Sue Roe, had "reported having consensual sex with [John], falling asleep, and waking up to him engaging in sexual activity." Tulane found John "responsible for sexual misconduct" and expelled him, but
[John] alleges that [Jane's] statement to Tulane investigators was false, defamatory, and contradicted by other evidence, and that [Jane] conspired with Sue Roe and submitted false evidence in the course of the investigation.
John therefore sued Jane for, among other things, libel, and sought to proceed pseudonymously, but the District Court rejected that request, and the Fourth Circuit upheld that decision. Much of the Fourth Circuit's analysis turns on the appellate standard of review, which is for "abuse of discretion," so the Fourth Circuit's holding is simply that the District Court didn't seriously err in denying pseudonymity—the Fourth Circuit did not hold that courts must deny pseudonymity in such situations. Nonetheless, the court had some general things to say that I expect will be relevant for future cases:
[1.] Many courts have allowed plaintiffs suing universities based on allegedly unfair Title IX proceedings to proceed pseudonymously (though some have disagreed) (see pp. 1441-48 of this article). But the Fourth Circuit rejected the argument that the connection to the Title IX proceeding justifies pseudonymity here:
The Onion speaks with more courage, insight and moral clarity than the leaders of every academic institution put together. I wish there were a @TheOnion university. https://t.co/R8gufC9opJ
Michael Eisen, editor-in-chief of the prominent open-access journal eLife and longtime critic of traditional journals, says he is losing that job for publicly endorsing a satirical article that criticized people dying in Gaza for not condemning the recent attacks on Israel by the Palestinian group Hamas.
"I have been informed that I am being replaced as the Editor in Chief of @eLife for retweeting a @TheOnion piece that calls out indifference to the lives of Palestinian civilians," Eisen posted on the social media platform X today. Multiple editors at eLife or advisers to the journal have already resigned to protest his dismissal.
eLife subsequently confirmed the firing in a statement, saying: "Mike has been given clear feedback from the board that his approach to leadership, communication and social media has at key times been detrimental to the cohesion of the community we are trying to build and hence to eLife's mission. It is against this background that a further incidence of this behaviour has contributed to the board's decision." …
[A day after his original post but before the firing], [Eisen] posted, "Every sane person on Earth is horrified and traumatized by what Hamas did and wants it to never happen again. All the more so as a Jew with Israeli family. But I am also horrified by the collective punishment already being meted out on Gazans, and the worse that is about to come.… The Onion is not making light of the situation. And nor am I. These articles are using satire to make a deadly serious point about this horrific tragedy."
It may well be that the removal also stems in part from friction between Eisen and others in the past (see this Nature article); but as I understand the quoted eLife statement and the credible-seeming press accounts surrounding it, his statements here were indeed the immediate cause of the dismissal. [UPDATE 10/27/23, 9:04 pm: Here's eLife's statement, which likewise says, "Mike has been given clear feedback from the board that his approach to leadership, communication and social media has at key times been detrimental to the cohesion of the community we are trying to build and hence to eLife's mission. It is against this background that a further incidence of this behaviour has contributed to the board's decision."]
I'm at a conference and can't get into this in more detail, but if the facts are as reported, it seems to me that eLife behaved in a way that scientific institutions (including journals) ought not behave. I'm with the professor quoted below:
Before Dobbs was decided, I identified the epicycles of Roe--the distortions of various areas of constitutional law that stemmed from the abortion "ad hoc nullification" machine. One such precedent was Hill v. Colorado (2000). This case upheld a ban on sidewalk counselors approaching women near abortion clinics--they had to stay eight feet away. In dissent, Justice Scalia charged, "What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the 'ad hoc nullification machine' that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice." And in Dobbs, Justice Alito referred to Hill as a "distortion" of First Amendment law. Hill is not long for this world.
Shortly after the Dobbs draft opinion was leaked, Planned Parenthood urged Westchester County (an affluent suburb of New York) to enact an eight-foot buffer zone. The County Attorney acknowledged that Hill may be on the chopping block, but it was still good law. Five days after Dobbs was decided, Westchester County enacted the exact same law at issue in Hill. Debra Vitagliano, who counseled women near abortion clinics, challenged the law. During the litigation, Planned Parenthood called the bubble law "critical" to protect abortion rights, and was "narrowly tailored." As could be expected, Westchester relied on Hill and the lower courts agreed. The Second Circuit upheld the law on June 21, 2023.
But a funny thing happened three weeks later: Planned Parenthood had a change of heart! On July 10, 2023, Planned Parenthood wrote a letter urging the County to repeal the "bubble" zone law.
Since the passage of the Reproductive Health Care Facilities Access Act last year, we have not seen how the 8-foot bubble zone has been beneficial to patients and guests entering and leaving our health centers. The bubble zone provision of the legislation is unenforceable, and therefore disrupts the integrity of the legislation's overall ability to achieve its goal of protecting patients of reproductive health care facilities. Repealing the bubble zone provision will, in fact, strengthen the Reproductive Health Care Facilities Act by making the protections of the law more concrete and clearer for all people to understand.
A law that was "critical" and "narrowly" tailed was suddenly no longer "beneficial." That same day, the National Institute for Reproductive Health also wrote a letter to the County to urge them to repeal the law. What a coincidence!
Westchester has now filed its Brief in Opposition to certiorari. Unsurprisingly, the government contends that the case is moot since the bubble law was repealed. They also argue that the voluntary cessation doctrine should not apply, in part, because even Planned Parenthood opposes re-enacting the law!
Here, the County has repealed the bubble zone provision of Chapter 425; it has not modified it or otherwise kept it alive in some fashion. Further, there is no evidence that the County is considering or otherwise intends to reinstitute the bubble zone provision, and we have been informed that there is no intention of doing so. Indeed, with the benefit of a one-year lookback, it was clear to the County that the bubble zone was not necessary—it had never been enforced, and it would be difficult to do so, leading to confusion over what was or was not permissible under Chapter 425. The repeal was further supported by, inter alia, organizations directly impacted by Chapter 425 (Planned Parenthood) and reproductive-rights advocacy organizations (Choice Matters and the National Institute for Reproductive Health) who confirmed the difficulties with enforcement. [FN7]
FN7: 7 See letters in support from Planned Parenthood, Choice Matters, and the National Institute for Reproductive Health, available at http://tiny.cc/BubbleZoneRepeal.
Let me break this down. Planned Parenthood urged Westchester to repeal the law to avoid Supreme Court review. And now Westchester is citing Planned Parenthood's lobbying as evidence that the Supreme Court should deny review. Some chutzpah.
Here, I think we are seeing a redux of Acheson Hotels, LLC v. Laufer, which I wrote about in July. During oral argument in Acheson, Chief Justice Roberts highlighted the risk of maneuvering to avoid Supreme Court review. Roberts asked of counsel for Petitioner:
CHIEF JUSTICE ROBERTS: Maybe people will think that's easy or maybe not. The mootness question of whether or not a plaintiff can moot a case to manipulate the jurisdiction of this Court, I mean, the mootness papers weren't filed until after the Petitioner's opening brief. And we certainly have the authority under our precedent to decide, if you have two jurisdictional issues, which one to do first. And in terms of, you know, I think it's a difficult question as to whether or not somebody, particularly when you have a program of litigation like this around the country by people who may or may not have standing, can manipulate the Court's jurisdiction by, after the Court's granted cert, mooting out the case.
And the Chief posed a similar question for the United States as amicus curiae:
You're confident that the mootness question is easy. Is the government at all concerned about the manipulation of this Court's jurisdiction when you have -- because Ms. -- Ms. Laufer, I gather, is not the only person doing this, bringing hundreds of cases around the country, and then, when the Court gets interested in her case, it's all gone. It's moot. It doesn't stop any of the other dozens of people, however many there are, who are doing the same thing. So we may have to come up with another case as soon as this -- this one, if it's -- if it's not addressed, and then they will -- that one will be mooted. And, you know, we can't sort of keep granting cert and having it constantly being mooted with never a determination of whether there's standing in those variety of cases. I mean, you may think that that's not necessarily easier or harder than the standing question, but it's certainly not one that we can just, you know, toss off with the back of our hand, is it?
Roberts is right. Every county that has a "bubble" law will vigorously enforce it until a cert petition is filed, then repeal it. In case after case, abortion advocates will try to manipulate the Court's jurisdiction. The Court should not allow these shenanigans in Acheson, and should not allow them in Vitagliano.
Or, I have an ever better idea. The Planned Parenthood national organization should urge every jurisdiction to repeal any Hill-style laws because they are not "beneficial." That option would avoid a lot of unnecessary litigation to say nothing of chilled speech. But of course Planned Parenthood won't do that. They want these laws to remain in effect unless and until a certiorari petition is filed--which is precisely why the Court should grant review, and sweep Hill into the dustbin of repudiated constitutional principles.
Historically, dating has been deeply entwined with going out for a drink. But what happens if one of the two dating parties has opted for a life of sobriety? And what are the pros and cons of replacing substance use with romance, or what is the effect of infatuation on the brain?
We discuss with Felicia how to handle recovery from substance use in the dating context, and how partners can show their support. Felicia talks science, introspection, and empathy on this important episode. For more of her insights, her podcast "Sobriety Checkpoint" is available here.
"While instructors enjoy considerable freedom and all individuals, when acting as private citizens, enjoy free speech rights, University policy does impose limits on using the classroom or one's course for purposes of political advocacy."
Newsweek (Matthew Impelli) reported today on this incident, which involved "a graduate student" instructor "at UC Berkeley's Department of Ethnic Studies." (The story may have been first broken by Israelly Cool [David Lange].) Fortunately, UC Berkeley promptly rejected this; when I e-mailed the media relations office, I was informed that:
As soon as the administration was made aware of the assignment it moved quickly to ensure that it would be changed. The situation has been remedied, the assignment has been changed and there are now a number of options for extra credit, not just one. Students can now attend any local event they wish—such as a book talk or a panel discussion----related to the course's subject, including the protest…or they can watch any documentary they wish about the Middle East.
The Berkeley provost's office has also just sent out this follow-up, apparently to "all faculty, staff, and students":
I write to remind people of University policy as pertains to academic freedom and political advocacy in the classroom. While instructors enjoy considerable freedom and all individuals, when acting as private citizens, enjoy free speech rights, University policy does impose limits on using the classroom or one's course for purposes of political advocacy.
I wanted to flag an article today in The Verge that discusses the long-time online harassment of my colleague Prof. Alex Sinha and his wife Prof. Janani Umamaheswar, among other targets of anti-Asian American attacks. The piece raises important questions about what is the role of law enforcement in such cases and why we see so little intervention even with persistent abuse.
From Potts v. Lewis, decided today by the Florida Court of Appeal (Judge Kelly, joined by Judges Rothstein-Youakim and Atkinson:
[Fla. Stat.] Section 784.048(2) provides that the offense of stalking is committed when a person "willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person." Relevant here, section 784.048(1)(a) defines the term "harass" as "to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." Because the record does not demonstrate a basis for [the trial court's] finding that Potts' actions amounted to harassment as defined by the statute, we reverse….
"[S]ubstantial emotional distress 'is greater than ordinary distress,' and … 'a reasonable person does not suffer substantial emotional distress easily.'" Annoyance, frustration, or embarrassment will not suffice….
[W]e conclude that Lewis's evidence was not legally sufficient to establish that Potts' alleged course of conduct would have caused substantial emotional distress in a reasonable person. Potts is a licensed plumber who knew Lewis from church. Prior to the events leading to the injunction, they were friendly and socialized along with other church members.
Today, the Georgetown Federalist Society Chapter hosted a debate on Section 3 and insurrection. Professor Mark Graber (Maryland) and I discussed whether Trump is disqualified.
Defendant alleges that, due to PTSD and related anxiety and panic attacks, he cannot personally appear for any hearings or trials, nor can he participate in hearings or conferences by video or telephone. He also claims that he needs extra time to respond to motions, and requests a blanket, 50% extension to all of his deadlines. The ADA applies to "public entities," 42 U.S.C. § 12132, but the federal judiciary is not a "public entity" within the meaning of the ADA. 42 U.S.C. § 12131(1).
Nonetheless, the Court strives to provide reasonable accommodations—but the accommodations Defendant seeks are not reasonable. First, the Court cannot decree that there will never be a hearing, trial, or other proceeding requiring Defendant's participation. {The Court expresses no view on whether Defendant has substantiated the need for such an accommodation.} Given the nature of the Court's operations and how lawsuits are conducted, such a commitment is impossible.
Second, the note from three years ago indicating Plaintiff needs "time and a half for education purposes" does not necessarily suggest all deadlines—including deadlines outside of an educational setting—need to be extended. Regardless, the request for a blanket extension of all deadlines is unreasonable. Some deadlines, particularly for routine matters, likely need not be extended—but doing so will unnecessarily. prolong the case. As is the case for all litigants, Defendant is free to request a reasonable extension of time to respond in those specific instances in which he needs more time.
An interesting new article in The Hill by my occasional coauthor T. Markus Funk, based on his upcoming Oxford University Comparative Law Forum piece on the subject; an excerpt:
[I]t would be a mistake to accept the invitation to follow the examples of countries like Germany, Switzerland, Mexico, the Netherlands and Austria, which do not outlaw nonviolent prisoner escapes ….
German law exemplifies the logic used to justify this lenient approach. The "urge to be free" is said to be deeply ingrained in human nature, rendering the prisoner acting on the "instinct to escape" insufficiently morally blameworthy to justify additional charges. The number of prior escape attempts, like the inmate's criminal history, do not factor in….
Letting those who want to do so leave and flee abroad is both a moral imperative, and a way to help Israel defeat Hamas faster, and with less harm to innocent people.
As Israel justifiably seeks to crush Hamas in the aftermath of the terrorist group's horrific attack on October 7, Palestinian civilians in the Gaza Strip are caught in the crossfire. Most of the blame for this rests with Hamas itself, as their fighters use the civilian population as human shields, and do not wear identifying uniforms (the latter is one of Hamas's many violations of the laws and customs of war). But, regardless of whose fault it is, innocent civilians will continue to suffer and die as the conflict intensifies.
If given the opportunity, many Gaza civilians would likely flee abroad to escape the fighting, as have numerous civilians caught up in other recent wars, such as those in Syria, Ukraine, and elsewhere. Letting them do so is both a moral imperative, and a way to help Israel defeat Hamas.
But the Egyptian government and other Arab states are blocking refugees from fleeing Gaza. Even as they shed crocodile tears for the plight of Palestinians, they refuse to let them leave a dangerous war zone. And to the extent they - and Western backers of the Palestinian cause - really believe the oft-heard claim that Gaza is an "open air prison," there is a strong moral imperative to let the unjustly confined "prisoners" leave, if they want to. Even aside from the current war, many might prefer not to live in poverty and oppression under Hamas's brutal medieval theocracy.
There is an obvious moral case for doing so. Many innocent civilians are threatened with death or injury, and in addition are ruled by a deeply oppressive regime. Letting those who want to escape is a way to help them escape injustice. Blocking them from doing so by force (as Egypt has been doing) is a grave wrong.
The most obvious response to the moral case for opening the door to Gaza Palestinian refugees is the idea that they don't deserve refuge because they bear responsibility for Hamas and its depredations. If they didn't support Hamas, there would be no terrorism, and no war.
It is true that Hamas won a plurality in a legislative election in 2006. But it then seized executive power by force, and has not held any even remotely free elections since. A large majority of current Gaza Palestinians never had a meaningful chance to influence Hamas's policies, much less remove it from power. Almost half of Gaza's population consists of children under the age of 18; many others were too young to participate in the 2006 election. You don't have to be a political theorist to recognize that children are not morally responsible for the evil policies of the government that rules over them.
It is true that some significant percentage of adult Gazans do support Hamas, its awful ideology, and its terrorism. But many others do not. A July 2023 poll conducted by the Washington Institute for Near East Policy found that 62% of Gaza Palestinians wanted to maintain a ceasefire with Israel, and 50% agreed that "Hamas should stop calling for Israel's destruction, and instead accept a permanent two-state solution based on the 1967 borders." A large majority also said they preferred Palestinian Authority rule to Hamas.
Polls conducted in areas ruled by repressive regimes should be viewed with caution. But, if anything, this one may underestimate the true extent of opposition to Hamas policies. Some respondents might have been afraid to express views inimical to Gaza's rulers, for fear the latter would find out about it and punish them. Even if the pollster was completely independent (as this one was) and would keep answers confidential, wary respondents might not believe such assurances or at least not be willing to take the risk they might be false.
Even some of those who do not support Hamas may hold abhorrent views on other issues, including anti-Semitic sentiments of a kind all too common in the Arab world. But people should not be forcibly condemned to tyranny and death in war merely because they may have some awful views - especially if they have them in large part because of ubiquitous, difficult-to-avoid indoctrination. And, even more obviously, such things should not be held against the large part of the population that consists of children.
Arab rulers who refuse to take Gaza refugees claim they do so because it would undermine the cause of Palestinian statehood, and the Israelis might not allow them to return to Gaza. In reality, Israel has little interest in annexing Gaza or settling Israel Jews there. Whatever can be said of the West Bank, even most Israeli right-wingers do not want to keep Gaza. For that reason, Israel also has little reason to keep refugees from returning. This line of argument also ignores the fact that the Palestinian leadership could have long since had a state including all of Gaza and nearly all of the West Bank if they had accepted the offers extended to them by Israel and the US in 2000, 2001, and 2008.
In addition, it is wrong to forcibly compel people - including large numbers of children - to endure war and repression merely to support a nationalistic project. If this is what the Palestinian "cause" requires, it's a strong indication that cause is at odds with the rights and interests of actual Palestinians. Those who would prefer to seek a better life elsewhere should be allowed to do so.
In other contexts, hardly anyone says that refugees should be barred from fleeing war and oppression in order to bolster the cause of their nation. While Vladimir Putin's efforts to conquer Ukraine and annex large parts of it are illegal and unjust, virtually no one argues that Ukrainian refugees must therefore be blocked from fleeing in order to oppose Russia's claims. It would be absurd to contend that helping Ukrainians flee Russian invasion and oppression is somehow anti-Ukrainian by making it easier for Putin to hold on to the regions he claims, and few if any observers advance such arguments. Indeed, it would be a grave wrong to prevent Ukrainians from fleeing, which is one of the reasons why the US, Canada, and European nations have opened their doors to Ukrainian refugees.
Western nations would also do well to open their doors to Gaza refugees, in addition to pressuring Arab states on this point. Refugees willing to go there would surely have greater freedom and opportunity in the West than in poor and authoritarian Arab states.
The standard argument against this - deployed by GOP politicians in the US - is that Palestinian refugees pose a security threat. But any such danger is overblown. Cato Institute immigration policy expert Alex Nowrasteh has compiled a database of terrorism incidents involving immigrants to the US from 1975 to 2022. During that entire period, Palestinian migrants killed a total of three people in terrorist attacks on US soil. While it's difficult to make precisely accurate rate calculations with such a small number, that amounts to a per-migrant risk not much greater than that posed by native-born Americans. Another way of looking at this issue is that the average American faces a vastly greater annual risk of being killed by a lightning strike than by a Palestinian immigrant terrorist (about 28 Americans are killed by lighting annually). And that would still be true even if the danger from the latter were several times greater than it is now. And, of course, the period in question includes many confrontations between Israelis and Palestinians that one might expect to incite violence by would-be terrorists.
Moreover, Hamas has instructed Palestinians to stay put. Those who defy Hamas' orders are likely to be disproportionately those least supportive of its awful ideology, and least likely to engage in acts of terrorism inspired by it.
In addition to the moral imperative, there is also a strategic rationale for letting Palestinians who wish to flee Gaza do so. Reducing the number of civilians present during the fighting will also reduce Hamas's opportunities to use them as human shields. That factor is likely one of the reasons why Hamas wants them to stay, and has installed roadblocks to impede flight (they also generally don't want to reduce the number of people under their control).
Letting refugees flee would save innocent lives, protect human rights, and help Israel defeat Hamas faster. It's a win-win for anyone who support human rights and wants to see Hamas defeated.
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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.
