From McElrath v. MetaQuest, decided Friday by Magistrate Judge Kaymani West (D.S.C.):
Plaintiff alleges he fronted Howell drugs in exchange for a promise to pay Plaintiff within the week. Plaintiff claims he and Howell agreed that Plaintiff would be allowed to confiscate Howell's enclosed trailer if Howell failed to pay. Plaintiff says Howell failed to pay him, and he confiscated the trailer. Plaintiff states Howell filed charges against him for theft of his trailer, and he was charged with grand larceny and put in jail.
Plaintiff alleges Mark Zuckerberg, Facebook, and MetaQuest allowed [Howell and other defendants] to post Plaintiff's entire criminal record on the social media website to support slandering statements about Plaintiff. Plaintiff alleges the Howells and Wells also posted false statements about Plaintiff, together with degrading and humiliating comments, with ill intent to ruin Plaintiff's reputation and any dreams he had of becoming a man of political power. Plaintiff also claims the Howells and Wells destroyed his chance of gaining decent employment.
No federal jurisdiction over this case that's brought under state tort law, says the court. (What, you expected a decision on the substance?)
This episode of the Cyberlaw Podcast kicks off with the sudden emergence of a serious bipartisan effort to impose new national security regulations on what companies can be part of the U.S. information technology and content supply chain. Spurred by a stalled CFIUS negotiation with TikTok, Michael Ellis tells us, a dozen well-regarded Democrat and Republican Senators have joined to endorse the Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act, which authorizes the exclusion of companies based in hostile countries from the U.S. economy. The administration has also jumped on the bandwagon, making the adoption of some legislation on the topic more likely than in the past.
Jane and I unpack the controversy surrounding the Federal Trade Commission's investigation of Twitter's compliance with its most recent consent decree. On the law, Elon Musk's Twitter is on its back foot. On the political front, however, the two organizations are more evenly matched. Chances are, both parties are overestimating their own strengths, which could foretell a real donnybrook.
You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! 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.
From O'Handley v. Weber, decided Friday in an opinion by Ninth Circuit Judge Paul Watford, joined by Judge Susan Graber and Federal Circuit Judge Evan Wallach:
Rogan O'Handley contends that the social media company Twitter Inc. and California's Secretary of State, Shirley Weber, violated his constitutional rights by acting in concert to censor his speech on Twitter's platform. He alleges that the Secretary of State's office entered into a collaborative relationship with Twitter in which state officials regularly flagged tweets with false or misleading information for Twitter's review and that Twitter responded by almost invariably removing the posts in question. O'Handley further alleges that, after a state official flagged one of his tweets as false or misleading, Twitter limited other users' ability to access his tweets and then suspended his account, ostensibly for violating the company's content-moderation policy….
[We conclude] that Twitter's interactions with state officials did not transform the company's enforcement of its content-moderation policy into state action….
As alleged in his complaint, O'Handley is a licensed attorney who makes his living as a political commentator, including on social media where he operates under the handle "@DC_Draino." On November 12, 2020, just over a week after the presidential election, he posted the following tweet on his Twitter account:
Audit every California ballot
Election fraud is rampant nationwide and we all know California is one of the culprits
Do it to protect the integrity of that state's elections
Five days later, an unidentified member of the OEC allegedly sent the following message to Twitter through the Partner Support Portal:
Hi, We wanted to flag this Twitter post: https://twitter.com/DC_Draino/status/1237073866578096129 From user @DC_Draino. In this post user claims California of being a culprit of voter fraud, and ignores the fact that we do audit votes. This is a blatant disregard to how our voting process works and creates disinformation and distrust among the general public.
O'Handley does not allege that the OEC communicated with Twitter about him on any other occasion. But based on past communications between the OEC and Twitter regarding other users, he alleges that the message constituted a request that Twitter "take down" his post from its platform. O'Handley further alleges that, on or about the same day that Twitter received the OEC's message, the company (1) appended a warning label to his tweet stating that the tweet's election fraud claim was "disputed," (2) limited other users' ability to access and interact with his tweet, and (3) assessed a "strike" against his account….
NOTE: This post features some spoilers for The Last of Us.
HBO's new series The Last of Us, which aired its season finale yesterday, has rapidly won plaudits and become a hit. It is set in a world where a devastating fungal pandemic has wiped out much of humanity, turning many into zombies who spread the disease further. In this dystopian world, predatory humans are often an even greater menace than the zombies. Smuggler Joel Miller (Pedro Pascal) is tasked with escorting teenager Ellie (Bella Ramsey) across the country to a research facility where her apparent immunity to the pandemic can be use to develop a vaccine or cure. On the way, they encounter all kinds of perils, more often from humans than zombies.
The series, which is based on a popular video game of the same name (I have not played the game, and will not try to comment on the similarities and differences between it and the show), features great acting by the two leads, and solid plotting. It has also stimulated a debate over its politics, with some claiming the show promotes left-wing "wokeness," while others argue it's actually conservative.
In reality, The Last of Us cuts across standard left-right ideological lines. It doesn't easily fit either side's narrative. Claims that the show is left-wing primarily revolve around Episode 3, which featured a (very favorably portrayed) relationship between Bill and Frank - two gay men, who survive the apocalypse together, and find meaning in their love. The show also gradually reveals that Ellie is a lesbian (or at least a bisexual; the latter possibility is never ruled out). This has annoyed some hard-core social conservatives (though same-sex marriage and same-sex relationships command widespread public support, with even a majority of Republicans approving of them).
But one of the gay characters in Episode 3, is Bill, a "prepper" who has long believed in all sorts of right-wing conspiracy theories about the US government. The episode - and the show as a whole - at least partially validate his ideology, as the pandemic-era US government rapidly becomes tyrannical and oppressive. Also, Bill's seemingly paranoid stockpiling of weapons and equipment is what enables him and Frank to survive and (to some extent) even prosper.
More than strict adherence to either conservative or progressive ideology, The Last of US features extreme skepticism of government. From very early on in the pandemic, the US government rapidly descends into horrific tyranny. Within hours, the military begins to shoot innocent civilians in hopes of preventing the fungal virus from spreading (this is how Joel's daughter Sarah dies on the very first night of the outbreak). Within days, they start committing large-scale massacres.
By the time of the main action of the show (twenty years into the pandemic), what's left of the US government has become a series of "quarantine zones" ruled by FEDRA, an oppressive, quasi-totalitarian military bureaucracy. Ellie's life as an orphan being raised in a FEDRA school is thoroughly dystopian.
FEDRA can, perhaps, be seen as a kind of right-wing military dictatorship. But left-wing alternatives aren't portrayed much more favorably. When Joel and Ellie reach the ruins of Kansas City, they find that the the FEDRA government there has been overthrown by a more progressive resistance movement. But the new regime, led by resistance leader Kathleen Coghlan (who becomes a major antagonist of our main characters), is just as cruel and repressive as the old.
Another episode features a community led by a venal, near-psychopathic religious cult leader. His theocracy doesn't seem any better than secular government.
The vaguely progressive Firefly resistance movement is depicted a bit more favorably (they are the ones who sent Joel on his mission). But they too are often seen as ruthless and potentially authoritarian. With the exception of a small group in the last episode, we never see an actual Firefly-ruled community. But what we do see of them doesn't inspire confidence that they would rule much more justly than the other regimes in the series.
The one significant exception to the extremely negative portrayal of political institutions, is Episode 6, where Joel and Ellie encounter a well-functioning "communist" (the leader explicitly refers to her settlement in this way) communal society in Wyoming. Unlike every other society the lead characters encounter, this one seems happy and (relatively) prosperous.
But even the Wyoming case is more an exception to the rule than a model for others. At one point, Joel tells Ellie that such a system could not work on a large scale, and it seems like the producers mean for us to believe him. That's a major constraint if you want to be able to interact with more than just a small group of a few hundred people. Among other things, such a small community is unlikely to ever rise much above subsistence-level poverty, especially after the stock of goods left over from pre-pandemic times runs out.
If there is little hope in government, perhaps the message of The Last of Us is that true salvation lies in personal relationships and the love of friends and family. This idea is implicit in the relationship between Frank and Bill, and in the growing father-daughter like attachment between the two main characters. At the start of the series, Joel has little to live for. But his life takes on new meaning as Ellie gradually takes on the role his daughter Sarah previously had.
But the series also stresses that love and familial attachment have a dark side. Several times, Joel's zeal for protecting Ellie leads him to engage in morally questionable violence, including killing defenseless prisoners. In each case, there is at least some possible justification for his actions (e.g. - the prisoners might have escaped and harmed Joel and Ellie). But the moral of the story is not that paternal love is an unalloyed good.
This issue comes to a head in the season finale, where Joel and Ellie finally arrive at the Firefly-controlled research facility in Utah. It turns out that Firefly scientists believe the only way to create a cure for the Pandemic involves extracting material from Ellie's brain, killing her in the process. The Fireflies detain Ellie so they can force her to undergo this procedure; but they are willing to let Joel go. He, however, goes on a violent rampage in which he kills nearly all the Fireflies, including several who threw down their weapons in surrender and the doctor who may be the only one who knows how to synthesize a cure for the fungal pandemic.
Whether Joel's actions in the finale are justified is an issue much-debated by fans of the show. The episode raises the classic question of whether it is justifiable to kill one innocent person in order to save the lives of many. At the very least, it seems hard to justify Joel's killing of the doctor and those Fireflies who tried to surrender. The Fireflies' actions are also questionable. They could, at least, have tried harder to find a way to synthesize the cure without killing Ellie, or (failing that) given her a choice.
In sum, The Last of Us doesn't offer a clear ideological message, whether left or right. While highly skeptical about government of almost every kind, it also suggests that personal and familial attachments should not be taken too far.
This ambiguity may disappoint viewers who want the show to offer a clear ideological message, or a compelling solution to real-world political problems. But it does have the virtue of making you think.
The Last of Us has been renewed for a second season (expected to be based on Part 2 of the video game). Perhaps its political themes will be further developed there.
It's similar to the Stanford President's and Dean Martinez's apology to Judge Duncan Saturday, but I thought it was still useful to pass along; again, for more on the underlying situation, see the reporting by David Lat (Original Jurisdiction).
Dear SLS Alumni,
I want to thank those of you who have reached out to me and others at SLS to share your reactions to the event on March 9, 2023, hosted by the student chapter of the Federalist Society and featuring Judge Kyle Duncan of the United States Court of Appeals for the Fifth Circuit. Your care for SLS is evident in your messages, and in all that you do to advance and steward our school.
Freedom of speech is a bedrock principle for our community at SLS, the university, and our democratic society. Since becoming Dean in 2019, my commitment to free speech has only deepened. I firmly believe that we can and must do better to ensure that it continues even in polarized times.
In the past few years, SLS has hosted a number of events with controversial speakers on campus without incident. We are very clear with our students that, given our commitment to free expression, if there are speakers they disagree with, they are welcome to exercise their right to protest but not to disrupt the proceedings. Our disruption policy states that students are not allowed to "prevent the effective carrying out" of a "public event" whether by heckling or other forms of interruption. Consistent with our practice, protesting students are provided alternative spaces to voice their opinions freely. While students in the room may do things such as quietly holding signs or asking pointed questions during question and answer periods, they may not do so in a way that disrupts the event or prevents the speaker from delivering their remarks.
As expected, the New York Attorney General is appealing the decision that preliminarily enjoined enforcement of the law. I'm glad to see that, because I expect the Second Circuit will affirm the District Court decision, and thus set a precedent that will be binding in the Second Circuit and likely quite influential in other circuits as well.
[* * *]
From Volokh v. James, decided [Feb. 14] by Judge Andrew L. Carter, Jr. (S.D.N.Y.):
"Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" Matal v. Tam (2017).
With the well-intentioned goal of providing the public with clear policies and mechanisms to facilitate reporting hate speech on social media, the New York State legislature enacted N.Y. Gen. Bus. Law § 394-ccc ("the Hateful Conduct Law" or "the law"). Yet, the First Amendment protects from state regulation speech that may be deemed "hateful" and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest. The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal. In the face of our national commitment to the free expression of speech, even where that speech is offensive or repugnant, Plaintiffs' motion for preliminary injunction, prohibiting enforcement of the law, is GRANTED….
[From the editor: I'm delighted to report that Stephen Halbrook will have a new column here on the blog, Second Amendment Roundup, which will offer a technical focus on recent Second Amendment cases. Halbrook is both a prominent gun rights lawyer and a leading legal scholar: He argued Printz v. United States (the anti-commandeering case) in the Supreme Court, as well as Castillo v. United States and United States v. Thompson/Center Arms Co., and has filed briefs in a vast number of other cases, including the NRA's party brief in McDonald v. City of Chicago and many amicus briefs in the Supreme Court and in other courts. On the scholarship side, his many articles and books have been cited in over 30 cases (including Heller and McDonald) and over 500 law review articles; his most recent book is America's Rifle: The Case for the AR-15. He is part of a long tradition of lawyer-scholars outside the legal academy (as of course was Don Kates, another tremendously important exemplar in the same field), though that tradition has regrettably sharply waned in recent decades.
Halbrook is currently a Senior Fellow with the Independent Institute; he represented the National African American Gun Association as amicus curiae in Bruen, and has also recently filed briefs in Duncan v. Bonta (9th Cir.), Rupp v. Bonta (9th Cir.), State v. City of Weston (Fla. Ct. App. 2021), and many other cases. I very much look forward to his posts. -EV]
The latest salvo in America's "assault-weapon" wars is the decision of February 17 by Judge Virginia Kendall of the Norther District of Illinois in Bevis v. City of Naperville finding that plaintiffs are not likely to prevail on their challenge to the bans under the city's ordinance or under Illinois' just-passed Protect Illinois Communities Act.
Just last year in New York State Rifle & Pistol Ass'n v. Bruen, the Supreme Court said that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms," and that the term "arms" "covers modern instruments that facilitate armed self-defense" and "weapons that are unquestionably in common use today." None of those three phrases found its way into the district court's decision approving the prohibition of the AR-15, America's most popular rifle, and many other semiautomatics.
The court started out on the right track recognizing that the plaintiffs had standing and that the harm they sought to alleviate was redressable. It made the interesting point that the Second Amendment "differs from many other amendments in that it protects access to a tangible item, as opposed to an intangible right," and that makes it similar to the First Amendment, under which "individuals can sue when the government bans protected books or attempts to close a bookstore based on content censorship."
From the prominent Russian band Leningrad; the video has over 750K views, though it was just posted Wednesday. The band members, as I've mentioned before, aren't themselves particularly pro-Ukraine (see here and here)—they are more cynical and realist than ideological, it seems to me (see this song, which I blogged last year). But here, unless I'm completely missing things, the message is entirely obvious mockery of Putin; I thought it was worth passing along as an illustration of how some Russians are managing to criticize the authorities.
Here is my translation, though of course much is doubtless lost in the translation (thanks to my mother Anne for her help); for the Russian lyrics, see here:
https://www.youtube.com/watch?v=jBudkOlo-yE
The world, so to speak, is burning to the ground
But in Russia life is just getting more and more splendid
All is going according to plan, citizens, comrades
And no one will be forgotten
We will allocate billions for you, all in writing
While the budget will have all expenses entered.[1]
And in all that we were capable of hearing
He was putting a firm end to that question.
[Refrain:]
I listened, without even having time to tidy myself up.
He is better than any psychotherapist.
They tried to spook us from the very beginning
But I listened to Putin and somehow I felt such relief
Back in the day, most local newspapers hired reporters who covered the dealings in local courts. Alas, with budget cuts, those positions have gone by the wayside. It is very rare indeed for the national media to care at all what happens in small-town courts. Of course, the single-judge divisions have recently become topics of national concern. And the judge du jour is Matthew Kacsmaryk of the Northern District of Texas. The Washington Post flew an entire team of reporters to Amarillo, and also interviewed nearly two dozen people (present company included). On balance, I thought the profile was fair, and conveyed an accurate image of Judge Kacsmaryk.
However, not everyone holds Judge Kacsmaryk in such high esteem. In Texas legal circles, it is well known that the never-ending stream of commentary about Judge Kacsmaryk has triggered a never-ending stream of death threats—and not just against the judge, but also threats against the judge's staff. Every time Ian Millhiser or Mark Joseph Stern or Ron Wyden invokes Judge Kacsmaryk's name, the switchboard lights up with threats. Perry Bacon of the Washington Post wrote that any threats of violence go with the job. I think we should not forget that someone nearly assassinated Justice Kavanaugh to prevent his vote in Dobbs.
At present, a motion for a preliminary injunction is pending before Judge Kacsmaryk. There is no requirement for a court to hold oral argument. Judges routinely decide motions on the papers. Courts can also submit interrogatories to the parties to resolve any questions. But Judge Kacsmaryk decided to schedule oral argument on the motion. He could have simply set the matter for argument on Zoom. Many judges have now moved almost entirely to Zoom oral argument. I do not think any of these judges can credibly cite COVID as a justification for Zoom arguments. The primary rationale, I suspect, is convenience. Zoom can be easier for the judge, court staff, and the parties. But not all judges favor Zoom hearings. There is much lost when everyone is reduced to a small square. So it seems that Judge Kacsmaryk thought it beneficial to hold the PI hearing in his Amarillo courthouse.
What happened next is the story of national headlines. Today the Washington Post published an article titled, "In an unusual move, judge delays public notice of abortion-pill hearing." Here is a snippet:
The Texas judge who could undo government approval of a key abortion drug has scheduled the first hearing in the case for Wednesday but took unusual steps to keep it from being publicized, according to people familiar with the plans.
The hearing will be an opportunity for lawyers for the Justice Department, the company that makes the drug and the conservative group that is challenging it to argue their positions before U.S. District Court Judge Matthew Kacsmaryk. After they do, the judge could rule at any time, potentially upending access to medication abortions across the country.
Kacsmaryk held a conference call with attorneys Friday to schedule Wednesday's hearing in Amarillo, Texas, said multiple people familiar with the call, who spoke on the condition of anonymity because they were not authorized to discuss it. Normally, such a hearing would be quickly placed on the public court docket, where anyone tracking the case online could see it. But Kacsmaryk said he would delay putting the hearing on the docket until late Tuesday to try to minimize disruptions and possible protests, and asked the lawyers on the call not to share information about it before then, the people said.
Public access to federal court proceedings is a key principle of the American judicial system, and Kacsmaryk's apparent delay in placing the hearing on the docket is highly unusual. The judge and his staff did not respond to emails requesting comment on Saturday evening. . . .
Attorneys on the planning call with Kacsmaryk on Friday included representatives from the Alliance Defending Freedom, which filed the lawsuit; the Justice Department, which represents the FDA; and the drug company that makes mifepristone. Representatives for each declined to comment or did not immediately respond to requests for comment on Saturday evening.
Kacsmaryk told the attorneys that he also wanted to delay publicizing the hearing because courthouse members have received threats in the wake of the lawsuit, according to the people familiar with the call. Several people close to Kacsmaryk say the judge and his family have faced security threats since he ascended to the federal bench in 2019, and those threats have intensified ahead of the abortion pill ruling. . . .
By waiting to publicize the time of the hearing, Kacsmaryk and his staff could make it difficult for the public, the media and others to travel to the courthouse in Amarillo, Tex. The rural, deeply conservative city has few direct flights except from Dallas or San Antonio and is at least a four-hour drive from any of the state's major, heavily-Democratic cities. Still, over 150 abortion rights advocates gathered there on a Saturday in mid-February to voice their support for abortion pills.
I think there are three distinct issues to consider here. First, was it appropriate for Judge Kacsmaryk to delay public notice about the hearing? Second, was it appropriate for someone to reveal that information to the Washington Post? Third, if Judge Kacsmaryk's decision was appropriate, but the revealing of the information was not appropriate, what are the potential repercussions?
1
Our system of laws has long disfavored secret hearings. The experiences from the clandestine Star Chamber inspired the Sixth Amendment, which guarantees a right to a "speedy and public trial." The courts have long held that the public has a presumptive right to attend criminal hearings. And there is similar caselaw concerning civil proceedings. None of those precedents are directly implicated here. Judge Kacsmaryk fully intended to hold his hearing in public. And he planned to provide notice for the hearing the night before.
Watching Judge Kyle Duncan's experience at Stanford Law School brought me back to my protest at the CUNY Law School. The CUNY students refused to let me speak. They interrupted me with crass comments and invective. And after they finished protesting, they stormed out of the room--none were actually interested in what I had to say. But there was one big difference between 2018 and 2023. At CUNY, an associate Dean intervened and warned the students not to interrupt me. The Dean did not go on a lengthy rant about how awful my views were. Now, granted, after the Dean left the room, she did nothing to actually stop the disruptions. But at least at CUNY, circa 2018, the administration could still be distinguished from the hecklers. Not so at Stanford Law School. If you haven't already, read David Lat's excellent summary of the event. (I am deeply grateful that David exhumed himself from the now-moribund Above The Law; subscribe to his Subtack and support his vital work.)
Here, I'd like to focus on the remarks of Tirien Steinbach, the SLS Associate Dean for DEI. A common theme she repeated was whether Judge Duncan's visit justified the harm he was causing to the community. Steinbach asked, Is the juice worth the squeeze?
Steinbach: I'm also uncomfortable because it is my job to say: You are invited into this space. You are absolutely welcome in this space. In this space where people learn and, again, live. I really do, wholeheartedly welcome you. Because me and many people in this administration do absolutely believe in free speech. We believe that it is necessary. We believe that the way to address speech that feels abhorrent, that feels harmful, that literally denies the humanity of people, that one way to do that is with more speech and not less. And not to shut you down or censor you or censor the student group that invited you here. That is hard. That is uncomfortable. And that is a policy and a principle that I think is worthy of defending, even in this time. Even in this time. And again I still ask: Is the juice worth the squeeze?
Duncan: What does that mean? I don't understand…
Judge Duncan's confusion is warranted. He was there to talk about actual decisions of his court, and how those cases affected Supreme Court jurisprudence. Students attend an elite institution like Stanford to learn firsthand from luminaries like sitting federal judges. How could those comments possibly not be worth Duncan's presence on campus? If students did not think Duncan's remarks were worthwhile, they could have done anything else. Like wait on line at a Silicon Valley Bank branch. But Steinbach's remarks should make sense to anyone who has witnessed the explosion of DEI in recent years.
On Saturday evening, the Stanford President Marc Tessier-Lavigne and Law School Dean Jenny Martinez issued a joint apology. Why was the letter signed jointly? Ed Whelan speculates that the President "was disappointed with [Martinez's] excuse-mongering for Steinbach and didn't trust her to issue a proper apology."
The letter promptly threw Steinbach under the bus:
In addition, staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university's commitment to free speech.
Good for the President and the Dean! (Update: I now realize that referring to Steinbach as "staff" rather than a "Dean" is quite disparaging--one might even say, "dehumanizing.") But Stanford cannot absolve itself of this problem by sacrificing Steinbach as a scapegoat. (To be clear, I suspect Steinbach will be quietly reassigned in six months after things quiet down with a nice settlement offer.) Rather, Stanford created this problem by establishing, reinforcing, and growing the DEI bureaucracy.
When a university empowers DEI to deem speech "harmful," DEI will deem speech "harmful." When a university empowers DEI to designate spaces as "safe," DEI will deem spaces as "safe." When a university allows DEI to treat some people as "oppressors," DEI will treat those people as "oppressors." When a university teaches students that "harmful" speech has no place on a campus, the students will take steps to prevent "harmful" speech on their campus. This protest was a direct byproduct of what students have learned for years.
Every word in Steinbach's speech reinforces these core planks of DEI. And her speech was obviously prepared in advance. She was so confident in her beliefs that she delivered those remarks, knowing she would be recorded. Steinbach no doubt thought she was on the right side of the university. Did Dean Martinez approve this conduct in advance? Or did Steinbach thinks she did not need to run her tirade by the Dean first? In either case, we have witnessed the endgame of DEI. These officials are empowered to extend their tendrils into every facet of an academic institution, with or without the backing of the Dean. Their mission is not to promote learning or academic inquiry, but instead to advance a specific ideology, which I refer to as DEIdeology. These beliefs are not trying to achieve a goal of neutrality. Rather, consistent with anti-racist teachings, they seek to use their newly-acquired power to elevate preferred messages and to deplatform "harmful" speech.
I firmly believe that many people support DEI efforts in good faith as a means to improve conditions on campus. And these offices can do important work. But the debacle at Stanford Law School is the logical conclusion of DEIdeology. At the bottom of that slippery slope is Tirien Steinbach.
So let me ask the same question that Steinbach posed? Is the DEI juice worth the squeeze? I'll assume for the sake of argument that these departments provide some benefit to academic institutions. I only assume, because there is some evidence these programs do not actually provide any tangible benefits. Moreover, many of those purported benefits with regard to admissions and hiring will likely soon be declared illegal by the Supreme Court. But let's assume there are benefits.
Still, what are the costs of DEI? The core purpose of an academic institution is to promote the pursuit of knowledge. I quote from the venerated Kalven Committee report:
The mission of the university is the discovery, improvement, and dissemination of knowledge. Its domain of inquiry and scrutiny includes all aspects and all values of society. A university faithful to its mission will provide enduring challenges to social values, policies, practices, and institutions. By design and by effect, it is the institution which creates discontent with the existing social arrangements and proposes new ones. In brief, a good university, like Socrates, will be upsetting. . . .
The neutrality of the university as an institution arises then not from a lack of courage nor out of indifference and insensitivity. It arises out of respect for free inquiry and the obligation to cherish a diversity of viewpoints. And this neutrality as an institution has its complement in the fullest freedom for its faculty and students as individuals to participate in political action and social protest. It finds its complement, too, in the obligation of the university to provide a forum for the most searching and candid discussion of public issues
Any activity that thwarts this mission is immediately suspect. Apparently, students at Stanford are taught to abandon that pursuit of knowledge, and instead ask a federal circuit judge, "Why can't you find the clit?" I'm sure the student who asked this question thought he was doing exactly what he had learned, and there would be no repercussions for his action. If that is what DEI taught him, and the others who disrupted Judge Duncan's speech, then the DEI juice at Stanford is not worth the squeeze.
Let me close with a plan of action. Every university should survey their DEI office, with a single question: do you agree with the Stanford President that Steinbach acted "inappropriately"? If the answer is anything other that yes, then the scope of the DEI office's authority and budget should immediately be revisited. Forget squeezing juice. To paraphrase Justice Scalia, the budgetary pencil should be driven through that bitter rind.
Update: Judge Duncan gave an interview with Rod Dreher, and addressed the "juice" metaphor:
Many people are talking about the weird metaphor she used: "Was the juice worth the squeeze?" I had no idea what she was talking about, but at some point I realized that she meant, "Yes, you were invited to campus, and we 'welcome' you. But your presence here is causing such hurt and division. So, was what you were going to talk about really worth all this pain you're causing by coming here?" In other words, it's just a folksy way of giving these students a heckler's veto. If they hate you enough, then surely it wasn't worth your coming to campus. Apply that twisted idea to the civil rights movement, and see where you end up. It isn't on the side of the people marching across the Selma bridge.
In other words, what the dean was preaching is the exact opposite of the law of free speech. We protect the speaker from the mob, not the mob from the speaker. And here was a dean of one of the best law schools in the world using the exact opposite of that basic principle to silence a sitting federal judge. I just read back through what I wrote, and I find it hard to believe what I'm describing. And yet it happened. You can watch the video.
We write to apologize for the disruption of your recent speech at Stanford Law School. As has already been communicated to our community, what happened was inconsistent with our policies on free speech, and we are very sorry about the experience you had while visiting our campus.
We are very clear with our students that, given our commitment to free expression, if there are speakers they disagree with, they are welcome to exercise their right to protest but not to disrupt the proceedings. Our disruption policy states that students are not allowed to "prevent the effective carrying out" of a "public event" whether by heckling or other forms of interruption.
In addition, staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university's commitment to free speech.
We are taking steps to ensure that something like this does not happen again. Freedom of speech is a bedrock principle for the law school, the university, and a democratic society, and we can and must do better to ensure that it continues even in polarized times.
David Lat's Original Jurisdiction newsletter has, as usual, excellent and detailed coverage. I started quoting but then realized that I couldn't excerpt it and still do the matter justice; and quoting the whole thing would be unfair to Lat as an author. I therefore very much encourage you to read the whole thing there; here are the opening paragraphs:
As I first learned via this detailed Twitter thread and subsequent Bench Memos post by Ed Whelan, yesterday Judge Kyle Duncan of the Fifth Circuit was the subject of a highly disruptive protest when he spoke at Stanford Law School. I have received extensive information about the event from multiple sources at or affiliated with SLS, as well as Judge Duncan himself, whom I interviewed by phone, and I'll share it with you now. I also reached out to Stanford Law, but have not yet heard back; I will update this story (or write a new one) if and when I do.
On Thursday, March 9, Judge Kyle Duncan (5th Cir.) was invited to speak at Stanford Law by the Stanford Federalist Society. The title of his talk, scheduled to run from 12:45 to 2:00 p.m., was The Fifth Circuit in Conversation with the Supreme Court: Covid, Guns, and Twitter. Whether or not you agree with the rulings of the very conservative Fifth Circuit—and, for the record, I disagree with many of them—the opportunity to hear from a sitting federal appellate judge about his court's jurisprudence is why students go to places like SLS….
The Foundation for Individual Rights and Expression also had a letter to Stanford about this, and posted the Stanford administrator's remarks at the event (a separate document from the e-mail the administrator had distributed before the event).
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
This week on the Short Circuit podcast: Live at Georgetown Law, an all-star panel, including UCLA Law Professor Joanna Schwartz, discusses police accountability and Schwartz's new book, Shielded: How the Police Became Untouchable.
Last week on the Short Circuit podcast: Live at SMU Law, an all-star panel talks gun rights after Bruen, baby powder bankruptcy, and vaping regulations Read More
Today the U.S. Court of Appeals for the D.C. Circuit decided Maldonado v. District of Columbia for the third time. As on the prior two occasions, the D.C. Circuit concluded that the district court improperly dismissed the case.
Here's Judge Tatel's quick summary:
More than a decade ago, Medicaid recipients filed this suit alleging that in violation of the Due Process Clause, the District of Columbia is failing to provide them notice and an opportunity to be heard when denying them prescription coverage. The case is now before us for the third time. In the first two appeals, we reversed the district court's dismissals for lack of standing and for failure to state a claim, respectively. On remand, the district court once more dismissed the case, this time for mootness. For the reasons set forth below, we again reverse and remand with instructions to proceed expeditiously with discovery and allow plaintiffs to make their case.
Perhaps the third time will be the charm and the plaintiffs will finally have the opportunity to have their claims heard.
