The Volokh Conspiracy

A group of U.C. Hastings faculty, including Professor Rory Little, sent the following letter to students:

 Dear Concerned Students, 

We write in our individual capacity and not on behalf of the institution to explain where the Administration's community email, The College is Committed to Academic Freedom and Free Speech, does not represent our priorities or articulate our commitments to providing you an equitable learning environment. 

First and foremost, we condemn the recent comments from Ilya Shapiro regarding President Biden's commitment to nominate an African American woman to the Supreme Court. We find Shapiro's tweet unequivocally racist and misogynistic. We refuse to remain silent in the face of white supremacy. We wish you did not have to live in a society where vile, hateful, and ignorant speech directed towards communities of color is a regular occurrence. 

While the Administration's statement mentions in passing the pain experienced by communities of color the past two years, it does not discuss the law school's role in perpetuating the marginalization of our current students. We are aware from conversations with our students of color over the years, and particularly our African American students, that they do not experience UC Hastings as a welcoming learning environment. As professors, we are committed to combating the implicit and explicit messaging UC Hastings students of color too often receive that they are being tolerated instead of embraced and valued. We recognize that these unwelcoming messages are expressed in the doctrines we teach, the context we may fail to provide when teaching them, in the comments made by some community members, and in an environment where so few of UC Hastings faculty and administrators share the life experiences of so many of our students or meaningfully engage in understanding them. 

We write to affirm your right to an educational environment where you are nurtured as students and where you can thrive as future lawyers. We strongly believe in the essential value of free speech in an academic setting. We also recognize that context matters because speech does not exist in a vacuum; it happens within the context of unequal power and structural inequalities. Moreover, we understand that statements of commitment to diversity and inclusion ring hollow when salient issues of racial equity are ignored or discounted in the service of prioritizing the ideal of free speech. 

UC Hastings has much work to do before a speaker such as Ilya Shapiro could represent just an abhorrent point of view, instead of appearing to be yet another painful reminder to students of color that the institution—through its actions and inactions—fails to convey that students of color belong here as full-fledged members of our community. We sincerely hope that the Administration will continue to work to gather a deeper understanding of the experiences of students of color and provide student leaders with the appropriate guidance and resources for engaging in productive dialogue meant to edify the diverse community that we are so lucky to have at this university. 

In solidarity, 

Mark Aaronson 

Alice Armitage 

Alina Ball 

Richard Boswell 

Betsy Candler 

Veena Dubal 

Nira Geevargis 

Brittany Glidden 

Miye Goishi 

James Higa 

Juan Carlos Ibarra 

Rory Little 

Shauna Marshall 

Stefano Moscato 

Karen Musalo 

Christine Natoli 

Ascanio Piomelli 

Gail Silverstein 

Linh Spencer 

According to the metadata, the document was created by Professor Ascanio Piomelli.

I came across this passage from the New York Times (Andrew Kramer):

Asked if he was afraid of dying in the war, [Volodymyr Zelensky] said everybody has such fears…. "[I]f a person is not afraid of losing his life, or the lives of his children, there is something unwell about that person." He added, though, that as president, "I simply do not have the right" to be afraid.

(The Times of London had also reported that Zelensky had been the target of three recent assassination attempts.) And this reminded me, as other things have in the past, of two different but related passages from Rebecca West's Epilogue to Black Lamb and Grey Falcon pp. 1125, 1130 (1941), writing of the English right after the fall of France:

It was good to take up one's courage again, which had been laid aside so long, and feel how comfortably it fitted into the hand….

Let nobody belittle them by pretending they were fearless. Not being as the ox and the ass, they were horribly afraid. But their pale lips did not part to say the words that would have given them security and dishonour.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Attention D.C.-area folks! The Short Circuit podcast is heading to the National Press Club on Wednesday, April 6 at 6:30 p.m. to record a live show with Paul Clement, Lisa Blatt, and Kelsi Brown Corkran. RSVP today!

• Beginning in 1971, The New York Times published excerpts of the Pentagon Papers that laid bare the U.S.'s Vietnam efforts, including JFK's role in South Vietnamese President Ngo Dinh Diem's assassination and LBJ's "we seek no wider war" lies. Nixon investigates how the documents were obtained and disseminated, and a grand jury subpoenas a Harvard political scientist who refuses to testify, is held in contempt, and spends eight days in jail. Seems like a riveting read! But a Harvard historian finds herself unable to obtain the grand jury records, as they are under indefinite seal. First Circuit (adding to a circuit split): Under seal the records shall remain.
• In 2018, a Massachusetts state judge and her courtroom deputy allegedly snuck an illegal immigrant out the back of a courthouse while an ICE agent waited for him in the front. A clever ruse! But also a federal crime? First Circuit: You'll have to find out at trial. Neither the doctrine of judicial immunity nor the Tenth Amendment, which bars the feds from commandeering state officials to carry out federal policy, give us jurisdiction to throw out the indictments beforehand. Though maybe this prosecution could have been a meeting instead.
• Investment analyst learns through work that a private-equity company wants to buy the home-security company ADT. Based on this inside information, he buys $25,000 worth of ADT call options, which skyrocket in value by 6,000% the day the acquisition is announced. After he's convicted of insider trading, his employer seeks restitution under the Mandatory Victims Restitution Act for legal fees incurred while cooperating with the feds. Second Circuit: And they can get them for their participation in the criminal investigation and trial, but not for the related SEC civil investigation.
• Allegations: Prison guard knowingly mislabels prisoner a sex offender (the prison had a special "Sex Offender" T-shirt), putting the man in fear of being brutalized by his fellow inmates. Prisoner sues officer, claiming Eighth Amendment violation. Third Circuit: We could, perhaps, kick the entire case on Bivens grounds (new context, etc. etc.). But we'll do the prisoner (and the development of the law) the courtesy of addressing at least part of his Eighth Amendment claim directly. He loses: There's no Eighth Amendment right not to be forced to wear a sex-offender T-shirt in prison. Also, while the prisoner plausibly alleged that the guard unconstitutionally failed to protect him from attacks, he can't get damages for the guard's failure to protect him from attacks that never happened.
• Navy SEALs and other servicemembers challenge COVID-19 vaccination requirement, asserting that it violates their sincerely held religious beliefs. Turns out that the Navy has a 50-step process for adjudicating such accommodation requests that invariably results in their denial. District Court: Which sure sounds like a violation of the Religious Freedom Restoration Act. Fifth Circuit: Agreed. The Navy's request for a stay of the preliminary injunction pending appeal is denied.
• Motivational speakers pump you up. They egg you on. They sue your high school after the softball team's Twitter account posts a short passage from their book. Fifth Circuit: Yeah, they shouldn't do that last thing.
• After a Coldspring, Tex. high school janitor is brutally murdered, the sheriff set his sights on a local family, two teens and their father, relying on dog-scent lineups to weave a tale that they killed the janitor for money they thought he'd hidden in his house. The father was sentenced to 75 years in prison, the daughter to life, while the son was acquitted after the jury deliberated for less than an hour. Texas high court: Both the father's and daughter's convictions gotta go. Much litigation ensues about the gov't officials' behavior. Fifth Circuit (2012): The son's claims can go forward. Fifth Circuit (2018): The son's claims can go to trial. Fifth Circuit (2019): The daughter's claims can go to trial. Jury trial (2020, finally): The sheriff left out important stuff from the arrest-warrant application, and it seems to have been on purpose or at least reckless. $1 mil for the siblings. Fifth Circuit (2022): Indeed.
• It is your constitutional right to record police, but can they arrest you (with some oomph) if you get too close? Fifth Circuit: They sure can. Qualified immunity for the Austin, Tex. officers who arrested (and took to the ground) "cop watcher" after he obstructed their view and ability to perform their duties.
• IRS: This new notice we published isn't a substantive regulation requiring notice and comment. Sixth Circuit: You just fined these taxpayers five figures for failing to do a thing they wouldn't have had to do before you published your notice. That looks like substance, guys.
• Geneva, Ohio officer responds to a family dispute that resulted in a broken TV remote, knowing the family's adult son was experiencing mental health issues. "Throughout the entire encounter, [the son] never said anything to [the officer], he never reached out towards [the officer], and he . . . did not raise his fists or make any threatening gestures." But he also did not respond to the officer's commands and kept walking towards the officer. So, the officer tased the son three times and shot him nine times. District Court: QI granted. Sixth Circuit (over dissent): Reversed.
• Allegations: Creepy college instructor does lots of creepy things to student, and it takes the school quite a long time to finally fire the instructor. Student sues school under Title IX for deliberate indifference to her first report of sexual harassment. District court: She hasn't alleged the elements for deliberate indifference that have been developed in cases of student-student harassment. Case dismissed. Sixth Circuit: But the deliberate-indifference standard is different (and less stringent) for teacher-student harassment. Case un-dismissed.
• Following the arrest and conviction Larry Nassar, who sexually assaulted hundreds of victims during his 18 years as the team doctor for USA Gymnastics, the team declares bankruptcy in the face of a slew of civil lawsuits. Did Liberty Insurance—the team's insurer—have a duty to defend those lawsuits and pay expenses incurred in investigation? Or were those expenses excluded under the policy's "wrongful conduct exclusion"? Seventh Circuit: Most of them were covered, but possibly to a limit of $250,000, to be considered on remand. Dissent: The policy excludes claims "in any way related to" an insured's wrongful conduct, which these claims surely are.
• After Twitter banned former President Donald Trump from its platform, Texas Attorney General Ken Paxton served the company with a Civil Investigative Demand (CID), asking the company to produce documents relating to its content moderation decisions. Twitter sues, alleging that the demand is government retaliation for the company's First-Amendment-protected content moderation decisions. Ninth Circuit: Come back when the AG tries to enforce the CID. Until then, even though the CID may chill your speech and the case is constitutionally ripe, the case is not "prudentially" ripe because you have the option of ignoring the CID.
• After district attorneys from three California counties are denied intervention in a challenge to California's death-penalty procedure (which they seek to defend), a member of the Ninth Circuit sua sponte calls for rehearing en banc. But there aren't enough votes for rehearing, and several members of the Ninth Circuit take issue with that.
• Allegation: Federal corrections officer in Atwater, Calif. publicly labeled prisoner as a "snitch" and offered a bounty for physical assaults against him. Predictably, the prisoner was soon beaten. This is a new Bivens context, so the case must be dismissed, right? Ninth Circuit (over dissent): Nope. Nothing counsels against a "very modest expansion of the Bivens remedy to this context." The case may continue.
• Casper, Wyo. officers shoot and kill a man with schizoaffective disorder wielding a sword in public (later revealed to be a prop sword). Tenth Circuit: Which was constitutionally reasonable. Concurrence: Eh, which was maybe not constitutionally reasonable under the circumstances—we really should be looking harder at whether police needlessly escalate in situations like this. But in any case there was definitely no violation of clearly established law.
• New Mexico political gadfly posts unflattering comments on an Otero County Commissioner's personal Facebook page, leading the commissioner to block him. The aggrieved gadfly sues, alleging unconstitutional retaliation for his exercise of First Amendment rights. Tenth Circuit (unpublished): But the defendants are all entitled to qualified immunity. Previous cases involving official government Facebook pages are not on point, and the one potentially on-point out-of-circuit case isn't enough to clearly establish the law.
• Here's an Eleventh Circuit case about standing in a marsh, in at least two different senses of that phrase.

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Thank again to Eugene Volokh for inviting me to blog this week about my book, The Trials of Rasmea Odeh. Part One is here; Part Two is here; Part Three is here; Part Four is here.

Rasmea Odeh's answers on her naturalization application were so obviously false that her first lawyer—William Swor of Detroit—proceeded straight to plea bargaining without filing pretrial motions. Swor was no pushover, having received awards from the Arab American Chamber of Commerce, the ACLU, the National Lawyers Guild, and the Defense Attorneys of Michigan.

Swor negotiated an extremely favorable deal, with no prison time, but Odeh rejected it. After consulting with Deutsch and Fennerty, she opted to raise a political defense—condemning Israel for torture and conspiring with the U.S. government—under the guidance of the leftist lawyers, who entered appearances in the case.

But even a politicized defense had to deal with the falsehoods on the naturalization form.

Fortunately for Odeh, one of the world's foremost authorities on treating torture victims lived in Chicago. Dr. Mary Fabri, had been director of Torture Treatment Services and International Training at the Kovler Center, and had consulted on torture care in Kurdistan, Rwanda, Guatemala, Sri Lanka, and Haiti. She met with Odeh for 18 hours over six sessions, confirming that she suffered from PTSD.

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In 2018, I was shouted down at the CUNY Law School in New York. I've written at some length about the experience, including a law review article in the First Amendment Law Review. Still, nearly four years later, the experience remains surreal. It is difficult to convey what it feels like when dozens of students are screaming and shouting at you in the most vicious way. In modern discourse, we often speak of the "harm" and "violence" cause by tweets and the like. But I experienced, first hand, personal attacks. Perhaps the one redeeming aspect of the CUNY incident was that I was able to defuse the protest, engage the students in conversation, and ultimately begin a reasoned discussion--albeit not on the topic I intended to speak about.

My good friend and colleague Ilya Shapiro was not so fortunate. On Tuesday, he was slated to speak at the U.C. Hastings Law School about the Supreme Court confirmation process. Ilya has given this talk umpteen times across the country. But this lecture would be different, in light of his ongoing situation at Georgetown. Ilya was shouted down for nearly an hour straight. The students livestreamed the protest on Instagram.

Every time Ilya opened his mouth, dozens students screamed at him and banged the table. He could not get a word out. There was also an element of physicality. Students stood inches away from Ilya, and got in his face. Throughout the process, Ilya stood stoically.

https://twitter.com/njhochman/status/1499079537526775817

pic.twitter.com/nbLOS4l6YJ

— Lawrence T. Hony (@lawthony) March 2, 2022

Morris Ratner, the academic dean, warned the students that their disruption violated the code of conduct. But he then took no steps to actually enforce the code, and ensure that Ilya could speak. And students yelled at him with profanity.

https://twitter.com/njhochman/status/1499171175393546246

Professor Rory Little, who was invited to comment on Ilya's talk, said on camera that he supported the protest. And, when the camera panned to Little around 44:00, he was banging the table along with a chant.

https://twitter.com/njhochman/status/1499087041417695238

The protestors also hurled bizarrely personal attacks at Ilya. One student said, "When did you start balding? Are you sad that you're balding." I hate to break it to the student, but we all go bald.

Around the 22:00 minute mark, a student shouted out, "Freedom of speech, baby." The context was not clear, but my sense was that she thought the student protest was itself an exercise of the freedom of speech. No. The classroom is not a public forum. Student organizations are permitted to reserve that space for their preferred speakers, who have priority. (Eugene Volokh and Howard Wasserman explain the doctrine). And this disruption was not brief. It lasted the entire duration of Ilya's slotted time. (At my CUNY protest, the now-self-cancelled Dean insisted that my speech was protected because the protest only lasted eight minutes).

Will anything happen to the students? Probably not. The administrators and professors are either deathly afraid of the students, or alternatively, sympathetic to the students. What I do know is that the FedSoc chapter on campus will find it difficult to hold future debates. Throughout the event, the the protestors repeatedly asked the two FedSoc officers to justify their decision to invite Shapiro. The officers were booed and ridiculed. Around the 51:00 mark, a student said "don't let it happen again, because it will be shut down too."

Perhaps the one silver lining of this event is that we can revisit CLS v. Martinez, which arose at U.C. Hastings. So much for an "all-comers" policy. It is clear now that student organizations on campus will be protested and shut down if they invite unpopular speakers. It would be a good test case if a conservative member tried to join the various affinity groups. I strongly that dispute would come out differently with the current Court. And for that victory, we have the students at Hastings to thank.