The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

In the Arizona Law Review, Professor Andrew Koppelman asks the provocative question Why Do (Some) Originalists Hate America?, 63 Ariz. L. Rev. 1033 (2021). Originalists who are denounced in the essay include Volokh Conspiracy contributors Randy Barnett (Georgetown), Sam Bray (Notre Dame), Stephen Sachs (Duke), Will Baude (Chicago), me (Denver), and frequent VC guest writer Rob Natelson (presently my colleague at the Independence Institute, formerly at Montana).

Koppelman presents two main arguments. First, some originalists, presumably including all of those he criticizes in the article, are radicals who "hate America."

Second, originalism as a methodology is inherently unstable because it makes the law dependent on the latest discoveries in obscure archives. The only example Koppelman cites for originalism having affected a case outcome is the Natelson-Kopel influence on Chief Justice Roberts' opinion in the Obamacare case, National Federation of Independent Business v. Sebelius. That example is weak, because the Natelson-Kopel argument simply elucidated Chief Justice Marshall's statement in McCulloch v. Maryland: the Necessary and Proper Clause is a grant of "incidental" powers, and not the grant of "a great substantive and independent power." 17 U.S. 316, 411 (1819).

This post first examines Koppelman's assertion that originalists "hate America." Next, it briefly addresses Koppelman's valid criticism of simplistic use of corpus linguistics. Koppelman points to what he considers to be the three prime examples of what he calls "Rules-Reductive Originalism": Randy Barnett on the Commerce Clause, Rob Natelson the Coinage Clause, and Natelson-Kopel on the Necessary and Proper Clause. The post examines each in turn.

Koppelman warns that originalism would create major changes in the law. That is true for the Commerce Clause. However, originalist approaches the Coinage Clause and the N&P Clause just validate the long-standing status quo. The originalist peril is not as dire as Koppelman worries.

Koppelman's claim that originalists "hate America"

Let's start with the "hate America" theory. According to Koppelman's concluding paragraph, here is what originalists like Barnett, Bray, Sachs, Baude, Kopel, and Natelson think:

The narrative is clear. The regime has been contaminated by monstrous innovations. These are vile and polluting. Something Has Gone Wrong. A wholesale reformation is necessary in order to get rid of them. It helps a lot—in fact, it may be indispensable—to feel that there is something fundamentally rotten about America as it exists today. You need to really hate it.

Koppelman does not cite anything written by the above authors that says anything remotely like the ideas he attributes to them. Rather, Koppelman's conclusion is based on his inference about what originalists must think because they criticize today's federal government for exercising powers that were not granted by the original Constitution or by amendments. He is particularly concerned about critiques of the expansion of federal power during the New Deal and thereafter. Read More

Recently, the D.C. Circuit performed a confidential workplace survey. And, somehow, that report leaked to Ann Marimow of the Washington Post.

In the survey, a copy of which was obtained by The Washington Post, and in related interviews, current and former courthouse employees who acknowledged having witnessed misconduct described their reluctance to file formal complaints against their superiors. They cited fears of retaliation and distrust that the federal judiciary's system for workplace accountability, which tasks judges with policing one another, ultimately would resolve their concerns.

Granted, a leaked appellate court workplace survey is not on the same order of magnitude as a draft Supreme Court opinion. The D.C. Circuit is, after all, an inferior court. But this episode further illustrates a dangerous trend in which confidentiality of the courts is breached.

One would hope that this public leak would create a sense of urgency at the D.C. Circuit to keep things quiet. Nope.

Today, the Washington Post reported on another leak!

D.C. Circuit Chief Judge Sri Srinivasan informed colleagues of the planned investigation after The Washington Post on Monday published a report about the survey's findings and the reluctance among courthouse employees to file workplace misconduct complaints against their superiors for fear of reprisal.

Srinivasan said Thursday that leaders of the U.S. District Court and U.S. Court of Appeals for the D.C. Circuit initiated the survey last year to "better understand our employees' workplace experiences, and employees who completed the survey did so on the understanding that their responses would be used only for that purpose and kept confidential."

"The leak of a confidential document compiling the responses was a serious breach of that understanding and must be investigated," he said in a statement. Srinivasan did not respond to questions seeking further details about the inquiry.

The sourcing here is not clear, but it seems that Marimow has information from one of Judge Srinivasan's colleagues. I take it someone forwarded her Sri's email. Who was it? Presumably not KBJ, who is onwards and upwards.

Regrettably, there is precedent for such a leak. Marimow links to my post about the leak of then-Judge Thomas's opinion in 1991.

The D.C. Circuit's plan to investigate how the survey was leaked is unusual but not without precedent. In 1992, a D.C. Circuit judge urged his colleagues to initiate a similar probe to identify the source for a news article detailing the position that then-Supreme Court nominee Clarence Thomas had taken in a draft opinion for a controversial affirmative action case. An investigation was never conducted.

I've since learned a bit more about that episode. It is true that no investigation was ever conducted. Why? At the time, there was no clear rule that prohibited leaking confidential information. One would think this prohibition is self-evident, but investigating someone for violating a non-existent rule is problematic. In the wake of this leak, the D.C. Circuit's internal operating procedures were amended to make it a clear that revealing confidential information was prohibited. As far as I know, that IOP is still on the books. So whoever leaked the report to the press may be in violation of that rule.

Update: Aaron Nielson writes more about the D.C. Circuit leak from 1991.

From Lansing State Journal (Rachel Greco) (paywalled):

The banner on display goes beyond "derogatory" messages he's seen displayed on the property in recent years, [a neighbor] said. When free speech is threatening, it shouldn't be protected by the First Amendment, he said.

"It's (the property owners) First Amendment right to say some things but there are some things that go beyond a person's First Amendment rights," [he] said. "The First Amendment doesn't protect hate speech." …

The banner on Spalding's property makes the area feel less welcoming and unsafe, [another neighbor] said.

"The Groesbeck neighborhood is a really beautiful neighborhood and it's a great atmosphere for young families," she said. "I know that they have the right to freedom of religion but that doesn't mean they have the freedom to perpetuate a state of hate towards a vulnerable community. I wouldn't blame potential homeowners who look somewhere else."

Fortunately, government officials seem to know and follow the First Amendment law here:

Free Speech Hate Speech

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From today's Third Circuit decision in Fdrlst Media, LLC v. NLRB, by Judge Thomas Hardiman, joined by Judge Anthony Scirica:

The Employer [FDRLST] operates The Federalist, a right-leaning internet magazine that publishes commentary on cultural, political, and religious issues of current interest, including labor issues. In June 2019, the Employer found itself at the center of its own labor controversy. On June 6, media outlets reported that unionized employees of Vox Media, a left-leaning digital media company, walked off the job during union contract negotiations.

That same day, Ben Domenech, executive officer of FDRLST Media and publisher of The Federalist, posted a tweet from his personal Twitter account that read: "FYI @fdrlst first one of you tries to unionize I swear I'll send you back to the salt mine." Domenech's tweet appeared in the feeds of more than eighty thousand Twitter users who follow his account. The "@fdrlst" tag refers to The Federalist's official Twitter account. At the time, the Employer had just seven employees, six of whom were writers and editors at The Federalist. At least one employee viewed the tweet, but the record does not show that any employee expressed concern over its message.

The following day, Joel Fleming, a Massachusetts resident with no connection to FDRLST Media, filed an unfair labor practice charge with the Board's New York Region. The charge alleged that Domenech's tweet violated Section 8(a)(1) of the National Labor Relations Act of 1935 (NLRA or Act) ….

The NLRB concluded the tweet was a threat of reprisals prohibited by federal labor law, and "ordered the Company to direct Domenech to delete his tweet." But the court disagreed:

Free Speech

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Last week, Justice Thomas spoke at a conference in Dallas. I transcribed his remarks in this post. At various points, Justice Thomas waxed nostalgically about the Rehnquist Court. And he observed that the Court has changed over the past two decades.

Well, I'm just worried about keeping it at the court now. This is not the court of that era. I sat with Ruth Ginsburg for almost 30 years. And she was actually an easy colleague for me. You knew where she was and she was a nice person to deal with Sandra Day O'Connor you can say the same thing, David Souter, I can go on down the list. Nino was, he could be agitated but then he forgot he was agitated. But it was it was a the court that was together 11 years was a fabulous court. It was one you look forward to being a part of. . . .

Later, Thomas said the old Rehnquist Court was different than the current Roberts Court.

And we never had that before. We actually trusted--it was we may have been a dysfunctional family. But we were a family. And we loved it. I mean, you trusted each other. You laughed together. You went to lunch together every day. And I can only hope you can keep it. So it's what was it Ben Franklin that said, we gave you a republic if you can keep it. And I think that you have a court and you hope you can keep it.

It was abundantly clear that Thomas was not making any point about Chief Justice Roberts. Thomas was not saying that Roberts was the cause of this change in the Court. Thomas was not expressing any criticism of Roberts at all.

Joan Biskupic of CNN, however, saw the event very differently. She writes:

Last week at a Dallas conference, Thomas took a surprising, public jab at Roberts. Thomas has long touted the good relations inside the court and avoided public criticism of colleagues. He might not always have embraced his colleagues, but he avoided letting any enmity slip. . . . Thomas' blunt remarks suggest new antagonism toward Roberts and added to the uncertainty regarding the ultimate ruling in Dobbs v. Jackson Women's Health Organization, expected by the end of June.

There was no "surprising, public jab." There is no "enmity." There is no "antagonism."

Here, Biskupic pitches Roberts's appointment as the inflection point:

Thomas last week recalled the court atmosphere before 2005, when Roberts joined, and said, "We actually trusted each other. We may have been a dysfunctional family, but we were a family, and we loved it."

From 1994 through 2005, there was a long-serving natural Court. Justice Thomas was praising that natural Court. Starting in 2005, there was rapid turnover. Roberts for Rehnquist. Alito for O'Connor. A few years later, Sotomayor for Souter, and Kagan for Stevens. Then before you know it, Scalia died, and we got Gorsuch, Kavanaugh, and Barrett in rapid succession. Thomas was talking about turnover. He was not laying blame at the Chief.

Yet, Biskupic makes the charge:

But Thomas' sudden aim at Roberts' leadership is new. In the Dallas appearance, his message to the chief justice came down to: The court was better before you arrived.

No Thomas did not send that message--expressly or implicitly!

Biskupic continues:

Thomas' remarks pulled back the curtain on the tensions inside. Perhaps they revealed long simmering sentiment for a chief who has wrenched relations over the years. Or perhaps they reflected the internal recriminations over who might be responsible for disclosing the draft opinion. Or perhaps they indicate that the apparent five-justice majority to overturn Roe is not so secure.

There was a time when Biskupic could pull back curtains with leaked information. She apparently no longer has those sources, or if she does, she doesn't write about them. Instead, she relies on idle speculation. Perhaps this or perhaps that. This sort of gossip is fine for David Lat and me, but I expect more from the most trusted named in news.

I just learned about this; you can see here for the answer.

Bonus question: What are the postal codes AA, AE, AP, FM, MH, MP, and PW?

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From Grayson v. No Labels, Inc., decided today by Judge Paul Byron (M.D. Fla.):

This [libel] case arises from the August 28, 2018, Democratic Party Primary Election for a seat in the United States House of Representatives for Florida's Ninth Congressional District, in which Darren Soto defeated former Congressman Plaintiff Alan Grayson….

There are two categories of allegedly defamatory statements at issue. The Court examines these categories in turn and ultimately concludes that summary judgment in favor of Defendants is proper because there is no clear and convincing proof of actual malice….

[A.] The First Category: Plaintiff's Conduct as a Former Congressman

First, the Second Amended Complaint contests two print advertisements, or "mailers," containing the following statements: "Congressional Ethics Investigation Found Alan Grayson Abused His Office for Financial Gain"; "A Congressional Ethics Investigation found evidence that Alan Grayson Abused His Position in Congress to enrich himself"; "as a congressman, he … [h]id income on his public disclosures" and "[u]sed taxpayer resources to conduct his high-risk investor scheme"; "Alan Grayson Used His [Congressional] Office For His Own Financial Gain." The Second Amended Complaint describes the first mailer as a picture of Plaintiff lounging on the beach in the Cayman Islands with a cocktail. It describes the front of the second mailer as a picture of a figure striding towards a jet bound for the Cayman Islands, an attaché case in hand. On the back, the open attaché case reveals stacks of cash and Plaintiff's passport photograph, with dollar signs replacing his eyes.

Free Speech Libel

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From Mangum v. Oxygen Media, LLC, decided Tuesday by James Dever III (E.D.N.C.):

On August 23, 2021, Crystal Gail Mangum ("Mangum" or "plaintiff") filed a pro se "libel and defamation" action against Oxygen Media, LLC and Jennifer Geisser ….

On April 3, 2011, Mangum stabbed her boyfriend Reginald Daye …. "Daye died a few days later due to complications from the stab wound." On November 22, 2013, a jury in Durham County Superior Court convicted Mangum of second-degree murder in connection with Daye's death…..

Mangum alleges that Oxygen Media defamed her on October 7, 2018, when it published on its online site "Murders A–Z" an article titled "Former Exotic Dancer Who Accused Duke Lacrosse Players of Sexual Assault Fatally Stabs Boyfriend." According to Mangum, the word "fatally" is inaccurate and defamatory. Mangum continues to deny that Daye died because she stabbed him.

The judge rejected the claim on statute of limitations ground, but also rejected a request that he recuse himself:

[Sidney Harr, who is attempting to represent Mangum,] suggests my connections to Duke Law School warrant my recusal. Harr specifically cites that I graduated from Duke Law School in 1987, was editor-in-chief of the Duke Law Journal as a student, currently teach courses there, and am on the law school's board of visitors.

Harr also cites Mangum's "acrimonious" relationship with Duke University after Mangum falsely accused several Duke lacrosse players of raping her. Moreover, Harr and Mangum believe that Daye died because of malpractice by Duke University Hospital medical personnel, not because Mangum stabbed Daye. Harr suggests that my connections to Duke Law School require recusal given Mangum's relationship to Duke University and his and Mangum's allegations concerning Duke University Hospital medical personnel who treated Daye….

Law & Government

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5/20/1996: Romer v. Evans is decided.

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In March 2021, Congress enacted the American Rescue Plan Act, providing almost $200 billion to the states in pandemic relief funding. As is usual, the money came with strings attached. One ARPA provision prohibits states from using the funds "directly or indirectly" to offset lost revenues from tax cuts. Multiple state objected to this condition, arguing it is both coercive and ambiguous, though they still accepted the money.

A half-dozen suits were filed by states challenging the ARPA provision. The federal government responded by arguing, among other things, that the states lacked standing to challenge this provision. Some district courts accepted this argument. Some others, including one here in Ohio, did not.

Earlier today, the U.S. Court of Appeals for the Ninth Circuit concluded that Arizona has Article III standing to challenge the ARPA provision. Judge Gould wrote the opinion for the court, joined by Judge Bennett. Judge Nelson concurred. This decision in Arizona v. Yellen is the first federal appellate court decision to resolve this question.

Here is how Judge Gould summarizes his opinion:

It is well established that Congress has the power pursuant to the Spending Clause to pass legislation authorizing federal grants to the States that come with strings attached. For the most part, cases challenging Spending Clause legislation come to us arising from a specific dispute between the federal government and the recipient of federal funds. Usually, the federal government will claim that the recipient violated a condition that Congress placed on the federal grant and demand repayment. The recipient, in turn, will claim that the condition on the funds violates the limits of the Spending Clause, as enumerated in South Dakota v. Dole, 483 U.S. 203 (1987).

This appeal, however, requires us to decide whether a State has standing to challenge the constitutionality of Spending Clause legislation before a specific and concrete dispute arises between grantor and grantee. We hold that Arizona has standing to challenge the American Rescue Plan Act, 42 U.S.C. § 802(c)(2)(A), ("ARPA" or "the Act"), both because there is a realistic danger of ARPA's enforcement, and because there is a justiciable challenge to the sovereignty of the State, which alleges infringement on its authority to set tax policy and its interest in being free from coercion impacting its tax policy.

Judge Nelson disagreed on the former argument, but agreed on the latter.

Here is more from Judge Gould's opinion, discussing the injury to Arizona's sovereign interests:

Arizona seizes upon several of these limitations to bring a facial challenge—or so we interpret—to ARPA's Offset Provision. To Arizona, the inherent limitations on Congress's power to "lay and collect Taxes" and "provide for the . . . general Welfare of the United States," U.S. Const. art. I, § 8, cl. 1, create constitutionally-imposed and enforceable criteria that "contractual" funding offers from the federal government must meet. When Congress does not meet one of these criteria, and say, extends a federal grant with ambiguous or coercive terms to the States, Arizona contends that this offer offends state sovereignty and gives rise to a cognizable injury in fact. We agree. . . .

Arizona has alleged sufficiently concrete and particularized harms to its ability to exercise its sovereign prerogatives, intangible as those prerogatives may be. Just as a contract can be challenged under state law for containing ambiguous terms or being a product of duress, so too do we think that the quasicontractual funding offer at issue here can be challenged by Arizona at the outset for offering conditions that are
unconstitutionally ambiguous or coercive. . . .

An appeal of the aforementioned Ohio decision is also pending in the U.S. Court of Appeals for the Sixth Circuit. We'll see if the Sixth Circuit agrees with the Ninth.

Increased concentrations of carbon dioxide and greenhouse gases in the atmosphere are expected to lead to increased tropical cyclone rainfall and hurricane intensity. What is less well understood is how more traditional types of air pollution, such as aerosols, may affect hurricane activity.

A new study published in Science Advances, "Substantial global influence of anthropogenic aerosols on tropical cyclones over the past 40 years," finds that reductions in air pollution in the United States and Europe have reduced tropical cyclone activity in the Southern Hemisphere, but may have actually increased such activity in the North Atlantic.

Here is the abstract:

Over the past 40 years, anthropogenic aerosols have been substantially decreasing over Europe and the United States owing to pollution control measures, whereas they have increased in South and East Asia because of the economic and industrial growth in these regions. However, it is not yet clear how the changes in anthropogenic aerosols have altered global tropical cyclone (TC) activity. In this study, we reveal that the decreases in aerosols over Europe and the United States have contributed to significant decreases in TCs over the Southern Hemisphere as well as increases in TCs over the North Atlantic, whereas the increases in aerosols in South and East Asia have exerted substantial decreases in TCs over the western North Pacific. These results suggest that how society controls future emissions of anthropogenic aerosols will exert a substantial impact on the world's TC activity.

For whatever reason, this study reminded of prior research finding that air pollution levels (and their timing and distribution) has an effect on weekday vs. weekend weather.

From Aristocrat Plastic Surgery, P.C. v. Silva, decided today by a New York intermediate appellate court, in an opinion by Justice Julio Rodriguez III:

The primary issue on this appeal is the scope of "public interest" as defined in the 2020 amendments to New York State's anti-strategic lawsuit against public participation (anti-SLAPP) statute. We hold that defendant's reviews on internet recommendation platforms of plaintiff physician's treatment were communications made "in connection with an issue of public interest" …. Accordingly, defendant is entitled to seek attorneys' fees and damages ….

Free Speech Libel

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From Khoraki v. Longoria, decided Friday by Judge Robert Payne (E.D. Va.):

The matter arises from an alleged unlawful arrest and criminal prosecution of Dr. Jad Khoraki, a 30-year-old physician, by Defendants Derrick Longoria, a police officer employed by the City of Richmond Police Department, and Jaime Blackmon, a Deputy Commonwealth's Attorney for the City of Richmond. Khoraki was arrested on January 26, 2020 and February 6, 2020 for charges based on allegedly false reports made by [Josephine] Wallace….

The Amended Complaint recites that, after meeting on a dating application ("app"), Khoraki and Wallace engaged in a brief relationship beginning in March 2019 and ending in December 2019. Shortly thereafter, Wallace made a series of reports to the Richmond Police Department, alleging various instances of stalking and assault by Khoraki. On January 21, 2020, Wallace told Longoria that she had been assaulted by Khoraki on January 20, 2020. Then, Wallace informed Longoria that Khoraki had stalked her between January 23 and 25, 2020. Based solely on Wallace's statements, arrest warrants were issued by a magistrate. Khoraki was arrested on January 26, 2020. Khoraki was released on bond following the January 26th arrest.

Thereafter, on January 29, 2020, Wallace met with Longoria claiming additional, more serious allegations. In particular, Wallace accused Khoraki of assaulting, strangling, and threatening her with a firearm on September 15, 2019. Relying solely on Wallace's allegations, on January 31, 2020, Longoria obtained warrants. Wallace also petitioned the Richmond General District Court for a protective order against Khoraki.

Based on these new allegations, Khoraki was arrested again on February 6, 2020 and held without bond in the Richmond City Justice Center. Thereafter, Khoraki's counsel learned from Chesterfield County Assistant Commonwealth's Attorney Erin Barr and Chesterfield Police Detective Christopher King that Wallace had a history of making false allegations against men, including accusations against another man resulting in a false rape charge that was dismissed and expunged. {In general, Wallace states that she lacks sufficient information to admit or deny any of these allegations. However, Wallace denies that she made any fabricated reports related to Khoraki.}

Criminal Justice Torts

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From today's decision by Judge Joseph Goodwin (S.D. W. Va.) in Doe v. Evident ID Inc.:

Plaintiff brings suit pursuant to the Fair Credit Reporting Act (FCRA) against Defendants Evident ID Inc. and MRI Software LLC, two consumer reporting agencies (CRAs), alleging violations of the FCRA's requirement that CRAs "follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates." While Plaintiff has no outstanding convictions on his record, in early 2022 Defendants provided Plaintiff's prospective employers with background reports that inaccurately showed that Plaintiff was convicted of felonies. In fact, although Plaintiff was charged with felonies in the past, those charges were dismissed in 2019. According to Plaintiff, he has never been adjudicated guilty of any felonies, and the background reports reflect additional inaccurate charges. Plaintiff states that Defendants' inaccurate background reports directly caused him to lose multiple employment opportunities.

Plaintiff sued under the pseudonym "John Doe" to avoid risking further harm to his employment prospects. He argues that while his criminal charges will eventually be removed from his report per the FCRA, to remedy the current inaccuracies and protect his rights, he "must commence [this] lawsuit that has the effect of etching his criminal charges into the public record." Revealing his identity in this lawsuit, he argues, would expose him to social stigma and a significant impairment of his employment possibilities. He seeks an order protecting his anonymity, or in the alternative, a protective order which would require any reference to his true identity or identifying information to be filed under seal.

The Federal Rules of Civil Procedure require that the identities of the parties to a case be disclosed. See Fed. R. Civ. P. 10(a) ("The title of the complaint must name all the parties …."). When a party seeks to litigate under a pseudonym, the court "has an independent obligation to ensure that extraordinary circumstances support such a request by balancing the party's stated interest in anonymity against the public's interest in openness and any prejudice that anonymity would pose to the opposing party." … [A]llowing a party to proceed using a pseudonym is a "rare dispensation" because pseudonymous litigation undermines the openness of judicial proceedings and the public's right of access to proceedings.

I do not find that there are extraordinary circumstances here that justify allowing the Plaintiff to proceed pseudonymously.

Right of Access Free Speech

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This fall I participated in the annual Frankel Lecture symposium at the University of Houston Law School. The topic was on academic freedom and diversity, and the lecture was delivered by Jeannie Suk Gersen of Harvard Law School. I provided a response, along with Khiara M. Bridges of Berkeley Law School.

The articles from the symposium have now been published online and printed in the latest issue of the Houston Law Review. The full symposium can be found here.

My article, "Academic Freedom and the Mission of the University," focuses on the relationship between the mission of the university and the commitment to and value of academic freedom to that university. A university dedicated to truth-seeking needs robust protections for academic freedom in order to properly fulfill that mission, and American universities embraced those protections as they reoriented themselves to that mission in the late nineteenth and early twentieth centuries. To the extent that universities deviate from that mission and prioritize other values and commitments, then academic freedom protections will seem less valuable and even counterproductive.

I particularly consider three competing understandings of what universities should be seeking to prioritize and show that in each case academic freedom will likely suffer. The article explores the implications of committing the university to a "patriotic" mission of promoting a rich set of substantive values seen as central to the nation, committing the university to a "neoliberal" mission of preparing students for career success, and committing the university to a "creedal" mission of promoting a rich set of substantive values seen as important to the campus community such as inclusivity or social justice.

From the conclusion:

Modern American universities have struggled to live up to their own ideals, and our current polarized environment will make living up to those ideals harder rather than easier. The educational reformers of the late nineteenth century understood that if universities were to serve their proper purpose of bringing the benefits of knowledge to society, the experts that the university had to offer would have to be broadly trusted. They could not be perceived as just another set of partisans entering into familiar political battles. That is a hard position to achieve. To the extent that society is divided into distant warring camps, it is all the more difficult to bridge that divide. Scholarly judgment might be vilified and dismissed rather than welcomed. But modern universities were launched with a goal of standing above such divides. Their best chance of doing so requires taking scrupulous care to be intellectually open and nondogmatic, standing above the fray rather than diving into it, and protecting dissident ideas rather than suppressing them.

Read the whole thing here.

Khiara Bridges' article ends on a particularly intriguing note. A critical race theorist, she worries about pressure on academic freedom currently coming from the political left and from the political right. Notably, she emphasizes to the left that universities should not be places that prioritize "student comfort," as some diversity, equity and inclusion offices are wont to do. More curious is her discussion of the threat from the political right. There she notes that conservatives responded to critical race theory arguments about free speech in the 1990s by embracing a more libertarian view of free speech principles. She seems wistful that the political right now seems to be abandoning that libertarianism and adopting a more censorious attitude that more closely mirrors CRT.

She writes:

And what is the best way to respond to pressures on academic freedom generated from the right? It seems like the right might need to remind itself of the claims that it made in the 1990s, when self-identified critical race theorists argued that the First Amendment should not be interpreted to protect racist hate speech. During that historical moment, many conservatives (and liberals) rejected these theorists' claims, arguing that the First Amendment was incompatible with protections against injurious speech. They contended that the best response to harmful speech was not to limit speech but rather to ensure that everyone could speak.

In the 1990s, conservatives wanted more speech. In the 2020s, they want less. If conservative pundits, activists, and scholars really value the First Amendment as much as they claimed just three decades ago, then they should recognize the bans on "Critical Race Theory," "divisive concepts," and the like as the wildly un‑American efforts that they are.

Is the implication here that CRT was wrong about free speech and that everyone should embrace the civil libertarian position on speech? That in hindsight it was a mistake for the left to have spent the last few decades advocating for a more restrictive understanding of the First Amendment and free speech principles? Indeed that CRT principles regarding free speech were "wildly un-American"? Or that it would be convenient for left-leaning academics if the right were to continue to adhere to liberal speech ideals while the left continues to embrace illiberal speech ideals? That the left should censor but the right should tolerate? Free speech for me but not for thee?

I'd like to think that my colleagues on the left are starting to see the light when it comes to free speech principles and realizing that they were playing with fire in urging an illiberal vision of free speech, but we are not there yet. Instead some are doubling and tripling down on theories about how to restrict speech they do not like. And meanwhile, Bridges is right that some conservatives are turning to the dark side when it comes to free speech. Things are likely to get worse before they get better, and the truth-seeking mission of the university might be curtailed, if not abandoned entirely.

From Spring v. Allegany-Limestone Central School Dist., decided Tuesday by Judge William Skretny (W.D.N.Y.):

Gregory Spring was the son of Plaintiffs Keri and Eugene Spring, and the brother of Plaintiff Julianne Spring. Defendant Diane Lowry was a teacher's aide at the Allegany-Limestone Central School District, where Gregory was a student. Lowry frequently worked in the same classroom as Gregory while he was in middle school but had no contact with him after he completed eighth grade.

Lowry testified that, when Gregory was in eighth grade, she saw him running down the hallways with a group of boys, pushing people over. She also testified that one day she asked the group of boys, including Gregory, not to crowd her and the physically-limited student with whom she was working and Gregory responded, "you need to shut the hell up and mind your own business." Lowry left discipline for this incident to the teacher in charge. She testified that, a few days later, Gregory apologized to her for that incident. Lowry also testified that she had seen Gregory bully a student called Z.C. until he cried but she did not provide a date or context for this incident.

School disciplinary records indicate that Gregory was disciplined on November 12, 2010, and January 19, 2011, for shoving other students in the hallway. What appears to be a complete record of eight disciplinary incidents in Gregory's record does not contain a record of Gregory either bullying another student or telling Lowry to shut up.

Gregory committed suicide on June 17, 2013. In the aftermath of his suicide, an anonymous poster wrote the following on the online message board of the funeral home: "Ha ha. He died. I hope he's in hell." A Channel 4 news article covered his suicide. The online comments section for this article contains multiple posts about his suicide and about his mother Keri's allegations that Gregory committed suicide because he had been bullied and that the school district had done nothing to protect him from bullying. {It is likely that this discussion occurred within several days of Gregory's funeral. In messages to a parent in the District, Lowry asked, "what parent would contact a news station the day after your son's funeral?" This suggests that the Channel 4 coverage occurred in the days after the funeral and this discussion ensued shortly after.}

Lowry engaged in this online conversation. In her first post, she wrote,

Free Speech

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My colleague and friend Sherif Girgis has sent me the following thoughts on the Equal Protection Clause and the momentous abortion case on the Supreme Court's docket.

The leaked Dobbs draft spends pages arguing that abortion is not a deeply rooted unwritten right. That's had me thinking more about the most powerful alternative argument: that abortion rights follow from the enumerated right to equal protection. I want to float a thought on this family of views.

The arguments come in two varieties. A leading proponent of one variety, from whom I've learned (and to whom I owe) a great deal, is Professor Reva Siegel, who co-filed an amicus brief in Dobbs. She argues that we cannot explain prolife states' policies in terms of their professed concern for fetal life alone. Those policies also reflect invidious motivations, like stereotypes about women's "proper" role as mothers before all else. Other equal-protection arguments, including Professor Jack Balkin's, focus less on motivation than on impact. They suggest that prolife states impose burdens on women they wouldn't tolerate on men. Either way, the idea is that abortion bans—viewed together with prolife states' other policies—reflect or impose sexist double standards.

The draft opinion finds the equality arguments foreclosed by two cases holding that laws regulating sex-specific procedures don't trigger scrutiny absent some animus and that we needn't posit animus to explain abortion laws. Critics respond that this answer gives the equality arguments short shrift and refuses to revisit two precedents (including Geduldig, which for some has been overruled in the court of history) in an opinion rejecting much bigger ones.

To be fair to the Dobbs majority, the equal protection arguments depart not only from two cases but from the Court's global framework for equal protection law—with its focus on disparate treatment rather than impact and on classifications as triggers for scrutiny. But Balkin says that departing from these doctrines would take us closer to the Constitution's original meaning. Here I'll assume that he's right. Specifically, as needed for both the unfair-motivations and unfair-impact versions of the argument, I'll assume a doctrinal framework in which courts may reach equal-protection judgments by studying the whole body of a state's statutory (and common?) law to draw (1) inferences about the state's systematic motivations toward particular groups and (2) counterfactual judgments about how the state's laws might change if the burdens they imposed fell on different groups than they currently do. Granting all of this, I have a concern about the equality arguments for abortion access that isn't based on current precedent.

To preview: Despite their professed goal, the equality arguments ultimately have to assume that it is not even permissible for states to believe that fetal life is innocent human life. That the Constitution itself somewhere mandates a position on fetal moral worth—one that discounts early fetuses. But this was the weakest and most widely criticized premise of Roe and Casey. So the equality arguments would be no stronger than Roe and Casey's rationale. In which case, for the Dobbs majority's purposes, they would fail for the same reasons. In fact, the premise they shared with Roe/Casey would be doing most of the work in the equality arguments for abortion: there would be little left to be done by the appeal to equality itself.

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