Eugene Volokh's Blog, page 150

[Josh Blackman] The Audition Trap

When I write something controversial, I expect blowback. My recent posts about Justice Barrett were no exception. I received the usual smattering of criticisms, telling me that I have no business being a law professor and that I am an embarrassment. Another burner email account urged me to kill myself by swallowing cyanide. But one charge, though predictable, was especially misguided: that I write what I write as part of some "audition" for some other position.

This charge is not limited to me. For example, after Judge Ho's interview with me about birthright citizenship and invasion, there was a torrent of press about how Judge Ho was reversing his position as part of an audition for the Supreme Court. The headlines followed the same template: Judge James Ho Kicks Off The Auditions For Trump's Next Supreme Court Pick; Judge James Ho Uses Fifth Circuit Decision To Audition For Supreme Court. Again; James Ho's Post-Election Remarks Fuel Supreme Court Speculation; This Is What Happens When Judges Audition for Trump's Supreme Court; and so on.

There are several problems with the "audition" charge.

First, the "audition" claim primarily works to resolve some cognitive dissonance. I would like to think that even the most vigorous critics would acknowledge that I, and Judge Ho, have some intellectual acumen. We aren't idiots. In other words, the things that we write are not based on poor analytical reasoning or lack of legal rigor. Rather, the critics charge that we write what we write in spite of our intelligence. They can't possibly agree with what they write. In other words, because no intelligent person could possibly believe what Ho and Blackman think, they could only reach that conclusion for ulterior motives--namely, an audition. At bottom, this is a charge of bad faith: that we write what we write not because we think it is the right legal outcome, but that we are using our platforms to seek some higher office. Thus, the "audition" claim settles that cognitive dissonance. There is also Occam's Razor: the most likely explanation why we write what we write is that we actually believe what we write.

Second, the "audition" claim is irrefutable. Once a person is labelled as an auditioner, everything they do will be seen as an attempt to audition. If they act in a moderate fashion, they are doing so to avoid drawing attention, and helping their candidacy. If they act in a radical fashion, they are doing so to draw attention, and help their candidacy. Auditioners are trapped in a vicious cycle. (More on that below.)

Third, I suspect nearly everyone is guilty of auditioning at some point in their careers. Every student who develops a relationship with a professor does so knowing that professor can serve as a reference. That isn't to say students are behaving in some poor fashion by developing that relationship, but the consequences of that decision are foreseeable. Every junior associate who seeks to move up in a law firm will constantly be auditioning--either by laying low or standing out, or a combination thereof. The human condition is to rise. What makes charges against people like me or Judge Ho more salient is that we write publicly. Most of the things people do to audition are hidden to the world. But every word I write is read, scrutinized, and (invariably) twisted out of context. (One person who sent me an irate email about ACB apologized after reading what I had actually written.) The fact that everyone auditions demonstrates why this charge is so common. As a general matter, people project onto others the flaws they see in themselves. If you accuse me of auditioning, you can be pretty sure this is something that you have done in the past. Think carefully.

So how do I respond to the charge of auditioning? As I noted in Point 2 above, the claim cannot be refuted. Indeed, critics will likely see this denial of auditioning as further proof that I am auditioning. I can't win. But I'll still try.

No one tells me what to write. I do not look at social media, so I do not know what other people are writing. I write about the things that I feel may not be otherwise discussed. I write what I believe to be true. And I do not write what I do in the hopes that it may lead to future employment. I am a tenured professor, and hold an endowed chair, at a law school that I love. I treasure my colleagues, and look forward every day to working with our dedicated students. We are accomplishing some great things at the South Texas College of Law Houston, which I hope to talk about in due course.

To be sure, early in my career I thought I would be happier by transferring to a "higher ranked" school. Lots of elites told me that I would never get ahead at South Texas! I applied to more transfers than I can count, but due to a host of factors (ideological bias most prominently) none of those moves worked out. Yet, I long ago realized that the grass would not be greener, and I am blessed to be where I am. I now get feelers from other schools, which I promptly decline. The hiring chairs are shocked that I wouldn't even consider the move, or even a visit. I reply that I am quite content where I am. At some level, I think they are jealous. The truth is, I don't need the approval of some higher-ranked school to improve my value. The elites were wrong.

Beyond academia, by any objective measure, I do not think my record makes me a viable judicial candidate. I've criticized and attacked more people than I can count. And I've taken legal positions in my scholarship, and in litigation, that would put me far outside the legal "mainstream." As an amicus, I told a federal judge that Morrison v. Olson should be overruled! You just don't do those sorts of things if you want to get ahead! I've done the exact opposite of what the three Trump appointees did prior to their elevation. If one were to be auditioning, they would follow the paths of least resistance that past successful nominees traveled. Moreover, if one wants to become a judge, government service would be useful. But I haven't sought any position in the administration, in part, because I think I can do far more for the constitutional rule of law in my current station, and also I love what I do.

All of these things are true. But none of this will not assuage anyone. Critics will say this is but an elaborate ruse to increase my chance of some higher office. Like I said, I cannot win. It's the audition trap.

The post The Audition Trap appeared first on Reason.com.

[David Bernstein] Can Foreign Students' Visas be Revoked for Exercising Constitutional Rights?

[At least sometimes, yes.]

I'm not an expert on immigration law, but it appears that US law prohibits entry for foreigners who support designated Foreign Terrorist Organizations, such as Hamas. This in turn leads to the question of whether foreign students who have already been admitted can have their visas revoked (or not renewed) for supporting Hamas while in the US, as the Trump administration has announced plans to do. This question was the subject of Eugene's very interesting post yesterday about the ACLU's letter on the matter.

One thing that occurred to me is that it's clear that visas *can* be revoked for actions that involve the exercise of constitutional rights, for which Americans could not be punished. While the Supreme Court's jurisprudence on economic rights is quite forgiving of government regulation, assumedly the Court would not permit the government to enforce a law prohibiting university students from working in any off-campus job without special authorization. And yet, the US government does enforce such a rule against foreign students, and also limits them to working on-campus twenty hours a week while school is in session. So while this in itself does not resolve the First Amendment issue regarding supporting Hamas, it does show that foreign visa holders can have their visa status revoked for engaging in activities for which Americans could not be punished.

As an aside, it's worth noting that the ACLU's letter attempts to obscure this distinction by referring to foreigners lawfully present in the US on students visas as "immigrant students." They are not, in fact, "immigrants" are not here on immigrant visas, and while many (but hardly all) foreign students find a way to stay in the US, student visas are not intended to provide a means of permanent immigration to the US.

On another point, I disagree with Eugene (rare for me) that deporting Hamas supporters is bad policy "because chilling the speech of lawful visitors to the U.S. does interfere with the marketplace of ideas for Americans." Foreign students are here as visitors to study, not to be members of the American polity. That doesn't mean that we should prohibit them from expressing their opinions, but, e.g., holding protests in favor of an enemy country during wartime, or, more controversially perhaps, prohibiting foreign students from using their status as such to try to influence American public opinion on behalf of organizations that Congress has sanctioned as enemy terrorist organizations, strikes me as perfectly reasonable.

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[Eugene Volokh] May Government Refuse to Hire Notre Dame Students, Because Notre Dame Teaches and Promotes Anti-Abortion Ideology?

[No? Then how can government refuse to hire Georgetown alumni, so long as Georgetown "teach[es] and promote[s] DEI"?]

Edward R. Martin Jr., the acting head federal prosecutor in D.C., wrote this letter to the dean of Georgetown law school Feb. 17 (though it apparently was re-sent Monday, and the Georgetown dean responded yesterday):

It has come to my attention reliably that Georgetown Law School continues to teach and promote DEI. This is unacceptable. I have begun an inquiry into this and would welcome your response to the following questions:

First, have you eliminated all DEI from your school and its curriculum?

Second, if DEI is found in your courses or teaching in any way, will you move swiftly to remove it?

At this time, you should know that no applicant for our fellows program, our summer internship, or employment in our office who is a student or affiliated with a law school or university that continues to teach and utilize DEI will be considered.

Now let's imagine, as a thought experiment that, a California high-level government official (there are plenty of deep Blue officials in the country as well as deep Red ones)—call him Drawde Nitram—wrote a similar letter to the President of Notre Dame:

It has come to my attention reliably that Notre Dame continues to teach and promote anti-abortion views. This is unacceptable. I have begun an inquiry into this and would welcome your response to the following questions:

First, have you eliminated all anti-abortion teaching from your school and its curriculum?

Second, if anti-abortion teaching is found in your courses or teaching in anyway, will you move swiftly to remove it?

At this time, you should know that no applicant for our fellows program, our summer internship, or employment in our office who is a student or affiliated with a law school or university that continues to teach and utilize anti-abortion views will be considered.

Such government action, it seems to me, would clearly violate the First Amendment, either as to the fictional Nitram or the very real Martin.

[1.] To begin with, the government's "refusing to hire" employees because of their  constitutionally protected speech generally violates the First Amendment, at least unless that speech is likely to be sufficiently disruptive to workplace functioning. See, e.g., Monteiro v. City of Yonkers (2d Cir. 2018); Juarez v. Aguilar (5th Cir. 2011); Thaddeus-X v. Blatter (6th Cir. 1999) (en banc). Line prosecutors, like other government employees, are generally protected by the First Amendment. See, e.g., Chrzanowski v. Bianchi (7th Cir. 2013). (Indeed, in Garcetti v. Ceballos (2006), the Court upheld the demotion of a prosecutor for his speech, but only because that particular speech was part of his job; if Ceballos' speech had been said in his capacity as citizen rather than as employee, it would have been protected, again unless it was sufficiently disruptive.) And of course the First Amendment protects adhering to ideological positions as well as speaking about them.

[2.] The D.C. Circuit has endorsed the view that the First Amendment employment rules also apply to volunteers. Thus, even if the fellows and interns are unpaid, they are still protected by the First Amendment against retaliation based on First-Amendment-protected activity. And Martin's/Nitram's letter of course covers "employment" and not just internships or fellowships.

[3.] Thus, to take it one step at a time,

The U.S. Attorney's office, or a California government department, can't categorically refuse to hire even people who personally adhere to "DEI" views (whatever exactly that means in Martin's letter) or to "anti-abortion views." Nor can the government refuse to hire people who have taken courses in which those views are taught, since listening to speech is protected by the First Amendment. Nor can the government refuse to hire people who have joined groups that express those views, since expressive association is protected by the First Amendment. Nor can the government refuse to hire people who are going to or have gone to universities in which those subjects are taught; such actions as a student would be protected by the right to listen and by the right to engage in expressive association.

The Martin/Nitram policies would therefore violate the First Amendment rights of the job candidates who are discriminated against because of the candidates' association with Georgetown/Notre Dame.

[4.] And the policies would also violate the First Amendment rights of Georgetown/Notre Dame as well. Universities are themselves speakers. The Martin/Nitram letters would tend to reduce the universities' audiences, by threatening retaliation against people if they become or continue to be their students (or otherwise "affiliated" with the universities).

The most relevant recent case on this is NRA v. Vullo (2024), where NRA alleged that New York financial regulators threatened banks and insurance companies with retaliation unless they reduced or cut off their financial ties to the NRA. The Supreme Court held that, if those allegations were proved, this would mean that the New York authorities violated the NRA's rights (even though the threatened retaliation would have directly operated on the NRA's business partners, and only indirectly affected the NRA):

[The Director of the Department of Financial Services] was free to criticize the NRA …. She could not wield her power, however, to threaten enforcement actions against [Department]-regulated entities in order to punish or suppress the NRA's gun-promotion advocacy.

The same would apply when government authorities threaten to retaliate against a university's students because of the university's viewpoint. Martin/Nitram are free to criticize universities that teach DEI or anti-abortion views. They could not wield their power, however, to threaten not to hire the universities' students or other affiliates in order to punish or suppress the universities' advocacy.

[5.] To be sure, the government has a great deal of authority to punish or suppress universities' constitutionally unprotected discriminatory conduct. If the letter only asked Georgetown whether, for instance, it was violating Title VI under Students for Fair Admissions by discriminating based on race in admitting students, and threatened retaliation against the university if it continued to violate Title VI, that would have been fine.

Indeed, Title VI itself involves a threat of retaliation (withdrawal of federal funds, and authorizing of private lawsuits enforced through federal courts) for universities' illegal race discrimination. I wouldn't support a government employer punishing students for discriminatory action by their universities. But I tentatively doubt that such refusal to hire students who are going to schools that illegally discriminate would be unconstitutional.

But here it's clear that the letter is focusing not on possibly discriminatory admission decisions, but on what Georgetown "teach[es]" and "promote[s]" (presumably in the speech sense of "promote"), and what is included in "its curriculum" and "courses or teaching." That's targeting First-Amendment-protected speech, not Title-VI-prohibited conduct.

[6.] Finally, note that President Trump's Executive Order related to DEI in education doesn't go this far. That order aims at preventing "discrimination based on race, color, religion, sex, or national origin," and thus apparently at "DEI" in the sense of preferences in admission, contracting, or hiring.

It expressly targets "dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called 'diversity, equity, and inclusion' (DEI) … that can violate the civil-rights laws of this Nation." It "order[s] all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities." It orders "the Attorney General and the Secretary of Education" to "issue guidance to … all institutions of higher education that receive Federal grants or participate in the Federal student loan assistance program … regarding the measures and practices required to comply with Students for Fair Admissions, Inc." And it expressly adds,

This order does not prevent State or local governments, Federal contractors, or Federally-funded State and local educational agencies or institutions of higher education from engaging in First Amendment-protected speech.

This order does not prohibit persons teaching at a Federally funded institution of higher education as part of a larger course of academic instruction from advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order.

The Martin/Nitram letters don't target discriminatory actions; they target the teaching of certain viewpoints. It's hard to see how they could possibly be consistent with the First Amendment.

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[Eugene Volokh] Anti-American Speech and Spray-Painting "Allah, Muhammad" in Storage Locker Can Be Evidence of Motive …

[in prosecution for bomb hoax at church; but spray-painting "the stupid Jew" in the storage locker isn't relevant enough, and thus isn't admissible. (Both the painted items were in defendant's native Kurdish.)]

From U.S. v. Salah, decided Tuesday by Judge Dena Coggins (E.D. Cal.):

Defendant is charged in the superseding indictment with the following two counts: (1) violating 18 U.S.C. § 1038(a)(1)(A) - False Information and Hoax, by "knowingly affix[ing] a backpack to a toilet in the restroom of a church in Roseville, California with the intent to convey the false and misleading information that the backpack contained a bomb"; and (2) violating 18 U.S.C. 247(a)(2) – Obstruction of Persons in the Free Exercise of Religious Beliefs, by "knowingly affix[ing] a backpack to a toilet in the restroom of that church in order to convey a bomb threat and thereby obstruct the church's congregants in the enjoyment of their free exercise of religious beliefs."

Defendant is charged with the following conduct:

On November 12, 2023, the Defendant entered a Christian church in Roseville, California, during the 9:00 am Sunday service. The Defendant, wearing a black backpack, walked to the men's bathroom where he tied the backpack to a toilet and then left the church. When security staff spotted the backpack, they believed it to be a bomb and called 911. The backpack was eventually removed and opened and found to contain a pillow. Church security camera footage shows that the Defendant had entered and left the church and visited this same bathroom an additional time—without the backpack—earlier that same morning. Street camera footage further shows that the Defendant had driven to the church the morning before the incident, parked in the parking lot for roughly 17 minutes, never leaving his car, and then left.

The Government contends that Defendant committed the charged offenses as a part of a broader plan and attempt to bomb and terrorize Christian churches. [Details omitted. -EV]

Search warrant returns from the Defendant's YouTube account revealed that the Defendant had searched "infidels dying" and had watched YouTube videos about the Boston Marathon bombing, which was carried out with IEDs concealed in backpacks. The family who purchased the Defendant's Glendale, Arizona, home told investigators that the Defendant had made statements expressing animus against Christianity and the United States….

The long decision (over 7500 words) dealt with the defendant's requests to block the government from introducing various kinds of evidence; here's an excerpt focused on the evidence related to Salah's ideology:

[T]he Government seeks to admit evidence of Defendant's motive, including: "(1) anti-American rhetoric the Defendant made to the couple who bought his former home, (2) pro-Muslim statements the Defendant spray painted on the wall of his storage unit, and (3) YouTube searches and videos about killing infidels and the Boston Marathon bombing (collectively referred to as the 'motive evidence')." Specifically, the Government intends to elicit testimony from the couple who bought Defendant's mother's home just a few months before the charged incident and had several interactions with Defendant in which he acted aggressively and erratically.

For example, during one interaction, the homebuyer wore a hat with an American flag on it, and Defendant asked the homebuyer if he liked the flag, to which he replied he did, and Defendant responded, "Fuck this country. I hate America. This country went to Iraq and killed a lot of people." The Government also intends to introduce a photograph of a wall inside Defendant's storage unit that has a spray-painted message in Defendant's native Kurdish language, reading: "Allah, Muhammad" and "The stupid Jew." Lastly, the government plans to introduce evidence of Defendant's YouTube search history from 2019 showing he repeatedly searched for "infidels dying" and "ISIS killing people," watched dozens of videos of terrorist attacks, watched a YouTube video titled "Does Qur'an say kill infidels wherever you encounter them?", and watched multiple YouTube videos about the Boston Marathon bombing (an attack which was carried out with IEDs placed in backpacks).

The Government argues the motive evidence—evidence of Defendant's religious extremism and anti-American animus—is admissible as direct evidence to prove Defendant's motive and intent to commit the charged crimes: making a hoax bomb threat and obstruction of persons in the free exercise of religious beliefs. In his opposition, Defendant contends the motive evidence has low probative value because: (i) many Americans are upset by the United States' invasion of Iraq, so Defendant's statements to the homebuyers do not indicate an anti-American animus; (ii) "Allah, Muhammad" is a common phrase used by Muslims; (iii) "this case has nothing to do with the Jews, synagogues, or anything regarding the Jewish faith"; and (iv) viewing YouTube videos of the Boston marathon bombing and terrorist attacks is understandable because "[b]eing aware of the things that provoke these attacks is a survival tool for Muslims in America." The court finds Defendant's contentions to be largely unavailing.

First, as to Defendant's statements to the homebuyers, evidence that Defendant aggressively shouted his hatred for America after seeing the American flag hat worn by the homebuyer is probative of Defendant's motive and intent in committing the charged conduct, even if his hatred is premised on the United States' invasion of Iraq. Moreover, as the Government emphasizes in its reply brief, "[t]hat some may find the Defendant's views toward America offensive is not a basis to exclude the evidence." (citing United States v. Allen (9th Cir. 2003) (concluding that "although prejudicial, the skinhead and other white supremacy evidence was not unfairly so and properly was admitted to prove racial animus"); United States v. Springer (11th Cir. 2018) ("The potential prejudicial value of references to Springer's pro-ISIS sympathies is not lost upon us. But that evidence retains a sufficiently countervailing probative value given its importance in demonstrating Springer's statements were 'true threats.'"). In addition, the court does not find the probative value of the evidence of anti-American animus to be substantially outweighed by a danger of unfair prejudice, as Defendant's statements to the homebuyers is not more inflammatory than the charged conduct….

Second, as to the spray-painted phrase "Allah, Muhammad," Defendant contends this phrase as "absolutely no evidentiary value." But the evidence at issue is not that Defendant used a phrase that Muslims commonly say to reference a figure like "God" or "Jesus"; rather, this phrase was spray-painted on the wall of the storage unit Defendant rented just months before the charged incident and in which Defendant possessed several items that the jury could infer are IED components. Taken in context, the probative value of this evidence to show Defendant's motive and intent is not substantially outweighed by any unfair prejudice.

Third, in contrast to the common "Allah, Muhammad" phrase, which has probative value in context and does not carry a risk of unfair prejudice, the spray-painted phrase "the stupid Jew" is not relevant to the charged conduct and carries a risk of unfair prejudice in that the jury may improperly base their decision on their dislike of Defendant's anti-Jewish views. Notably, in its reply brief, the Government does not offer any argument to rebut Defendant's assertion that this evidence is irrelevant and prejudicial. Accordingly, while the court will grant the Government's motion to admit photographs that show the spray-painted phrase "Allah, Muhammad," the Government's motion to admit photographs showing the phrase "the stupid Jew" will be denied. Thus, any such photographs of that wall in the storage unit must blur out the phrase "the stupid Jew."

Fourth and finally, as for the YouTube searches and videos, the court is persuaded by the Government's assertion that "the fact that Defendant viewed videos in which a bombing was carried out by concealing the bomb in a backpack is clearly probative to charges that the Defendant placed a hoax backpack bomb in a church bathroom." In countering Defendant's argument that Muslims in America would watch such videos to stay informed and protect themselves from retaliatory attacks on Muslims, the Government asserts that "Defendant did not simply click on a few links to keep up with the news; he searched dozens of times for videos depicting 'infidels dying' and 'ISIS killing people,' he watched graphic videos of the murder of innocent civilians, and he watched videos discussing the morality of murdering non-Muslims, including a video titled 'Does Qur'an say kill infidels whenever you encounter them?'" In light of these details, the court finds Defendant's YouTube search and viewing history of these videos to be probative of Defendant's intent and motive in committing the charged conduct and admissible on that basis. See United States v. Abu-Jihaad (2d Cir. 2010) (affirming the district court's decision to admit into evidence excerpts of videos the defendant purchased because the pro-jihadist and violent content of the videos was relevant to understanding the defendant's motive and intent).

As for whether the evidence should nevertheless be excluded under Rule 403 [which provides that even relevant evidence should be excluded if its relevance is substantially outweighed by reasons to exclude it -EV], it is worth noting that Defendant does not advance any arguments regarding risk of prejudice from admission of these YouTube searches and videos. Instead, Defendant argues that admission of the YouTube videos would unduly consume time and resources because Defendant would seek to admit hundreds or thousands of videos to show "the full extent of [his] viewing habits, so that the jury can properly understand what his media consumption looked like." This argument is not well-taken. As the Government explained at the February 14, 2025 hearing, the Government will not be arguing or suggesting that Defendant searched for and viewed only pro-ISIS terrorist videos or even that Defendant primarily or predominately searched for such videos. Thus, the court is not persuaded that the video evidence should be excluded on the ground that its probative value is substantially outweighed by a danger of wasting time….

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Eugene Volokh] Doxing, 1770

From the Providence Gazette, May 5, 1770; recall that back then an article published in one newspaper would often be reprinted verbatim in others as well. For those having trouble reading the newspaper image, here's the text (paragraph breaks added):

To the PRINTERS.

Please to give the following a Place in your Paper, which will oblige a Friend to Liberty.

As informers against Printers for publishing papers friendly to liberty, are justly to be considered as enemies to freedom; it is thought a particular description of the vile miscreant that lodged an information against Mr. Parker, Printer of the New-York Gazette, for printing the paper signed a Son of Liberty (for which Mr. M'Dougall is now unjustly confined in the common goal [likely means "gaol," or today "jail" -EV] of this city) will not be unacceptable to all the Friends of Liberty, and especially to the patriotic Printers on this content; as thereby they will know his person, and be premonished [i.e., warned -EV] against his detestable perfidy. The sordid harpy, whose thirst for the filthy lucre of a reward disposes him, if he had power equal to the malignity of his heart, to enslave this dear country, should be treated by the friends of it as a common enemy. Such is M-Ch--l C-mm-ns, native of Cork, in the kingdom of Ireland (who gave the above information).

He is about twenty years of age, five feet high, pretty square shouldered, has light brown hair, smooth faced, knock kneed, speaks with the Irish brogue accent; shines away with the reward of his wickedness in claret and white coloured cloaths; and as that won't support him long in his present state of idleness, he will doubtless soon decamp to some of the neighbouring colonies for employment.

It is therefore hoped that Printers who are friends to liberty, will treat him, on application to them, as he deserves; and that they will re-print this description of him, for the information of the public.

New-York, April 8, 1770.          S. P.

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[Jonathan H. Adler] Dellinger v. Bessent Disappears Allowing Wilcox v. Trump to Train Sights on Humphrey's Executor

[The Supreme Court will not have to weigh in on removal limitations at the Office of Special Counsel, but it could still have to consider those for the National Labor Relations Board.]

Fewer than twenty-four hours after the U.S. Court of Appeals for the D.C. Circuit granted the Trump Administrations request for a stay in Dellinger v. Bessent, Special Counsel Hampton Dellinger has dropped his suit challenging President Trump's removal of him from his office. But this is hardly the end of lawsuits seeking to clarify the scope of the President's removal power. Indeed, as Dellinger disappears, a clear challenge to Humphrey's Executor is coming into focus.

Earlier today, Judge Beryl Howell ruled against the Trump Administration in Wilcox v. Trump, holding that the President cannot remove Gwynne Wilcox from her position as Chair of the National Labor Relations Board without cause. Relying squarely on Humphrey's Executor, Judge Howell concluded that the removal limitations contained in the National Labor Relations Act are constitutional and that she must be reinstated. An appeal is sure to follow.

Swapping Dellinger for Wilcox paints a clearer target on the Humphrey's Executor precedent. In Dellinger, the Supreme Court could have ruled for or against the president without directly challenging Humphrey's. The Court could have sustained the removal on the grounds that the OSC, like the CFPB, is a single-headed agency within the executive branch. Alternatively it could have ruled against Trump on the grounds that the Special Counsel is an inferior officer under cases such as Morrison v. Olson and United States v. Perkins.

Unlike Dellinger, Wilcox places the focus directly on Humphrey's Executor. This is because it is difficult to distinguish the NLRB from the Federal Trade Commission. Both are multi-member agencies with the authority to promulgate regulations and adjudicate. While there is an argument that neither is much like the circa-1935 FTC the Court considered in Humphrey's, it is hard to see how the Court could sustain removal of Wilcox without implicating other purportedly independent regulatory agencies, and this would take Humphrey's along with it unelss the Court were to try and limit that case to its facts.

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[Eugene Volokh] ACLU on Campus Free Speech

From ACLU's Mar. 4 Open Letter to U.S. College and University Presidents:

This letter is prompted by two Executive Orders—Executive Order 14161, titled "Protecting the United States from Foreign Terrorists and other National Security and Public Safety Threats," signed on January 20, 2025, and Executive Order 14188, titled "Additional Measures to Combat Anti-Semitism," signed on January 29, 20252—and related communications from the White House.

Executive Order 14161 states that it is the United States' policy to "protect its citizens" from noncitizens who "espouse hateful ideology," and to ensure that noncitizens "do not bear hostile attitudes toward [America's] citizens, culture, government, institutions, or founding principles, and do not advocate for, aid, or support designated foreign terrorists and other threats to our national security." The Order directs the Secretary of State to "[r]ecommend any actions necessary to protect the American people from" noncitizens who, among other things, "preach or call for … the overthrow or replacement of the culture on which our constitutional Republic stands."

Executive Order 14188 requests from the Attorney General "an inventory and analysis of all court cases … involving institutions of higher education alleging civil-rights violations related to or arising from post-October 7, 2023 campus anti-Semitism" and directs the Secretaries of State, Education, and Homeland Security to recommend ways to "familiariz[e] institutions of higher education with the grounds for inadmissibility under 8 U.S.C. 1182(a)(3) so that such institutions may monitor for and report activities" by noncitizen students and staff and ensure that such reports lead "to investigations and, if warranted, actions to remove such aliens." In a fact sheet explaining Executive Order 14188, the White House described the Order as "forceful and unprecedented," made clear its purpose of targeting "leftist, anti-American colleges and universities," and described it as a "promise" to "quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before." …

In combination, these orders, the accompanying fact sheet, and other communications from the Trump Administration are intended to enlist university officials in censoring and punishing non-citizen scholars and students for their speech and scholarship. As you well know, this would intrude on academic freedom and equal access to education….

Institutions of higher learning play a key role in our democratic society. As spaces committed to academic freedom and open discourse—and which are often home to a diverse group of people with a range of different backgrounds, bringing together scholars and students from throughout the United States and all over the world—college and university campuses have been central to political expression and the development of ideas throughout the history of the United States. American campuses also enable non-citizen students and faculty to more freely express themselves—including by expressing views that might be subject to heightened repression and censorship in their countries of origin—through political demonstrations, academic debate, or research and writing.

Ideologically-motivated efforts to police speech on campus—including speech critical of America's "citizens, culture, government, institutions, or founding principles," or of the acts of the U.S. government or foreign governments—undermine the foundation on which academic communities are built, regardless of the nationality or immigration status of speakers who are censored. Though the precise implementation of the Executive Orders remains to be seen, Executive Order 14161 articulates the Administration's desire to target individuals who "advocate for, aid, or support designated foreign terrorists and other threats to our national security," those who hold "hateful" views, and those who "bear hostile attitudes toward [America's] citizens, culture, government, institutions, or founding principles." In the fact sheet on Executive Order 14188, the White House makes clear that it believes many institutions of higher education are "leftist" and "anti-American," and are home to "Hamas sympathizers" and "radical[s]."

The message is clear, regardless of whether the force of law will ultimately follow: immigrant students, faculty, and staff on college and university campuses should think twice before they criticize the United States or this Administration, express support for Palestinians, or condemn Israeli government policies—or indeed anything else President Trump and other federal officials might possibly find objectionable—and colleges and universities that allow such speech, debate, and protest should think twice, too.

These executive orders are at odds with the foundations of academic freedom. For public universities and colleges, the orders could require campus officials to violate the First Amendment, which obligates government entities to respect free speech rights, including those of its students, faculty, and staff who are not U.S. citizens. Schools are also obligated under federal law to protect students from discrimination, harassment, threats, and violence. But protected political speech and association alone—no matter how offensive to members of the campus community—cannot be the basis for discipline, nor should it lead to immigration consequences. Private universities, though not bound directly by the First Amendment, are also guided by similar commitments to academic freedom and free inquiry. In addition, the First Amendment safeguards against government efforts to pressure private universities to stifle their community members' disfavored speech. Cf. NRA v. Vullo (2024) (holding that the government may not pressure third parties into censoring speech that it could not censor directly).

Viewpoint neutrality is essential in this endeavor. Particular viewpoints—whether reprehensible or popular in the eyes of the majority of the community, or whether singled out in the Executive Orders and related communications—must not be targeted for censorship, discipline, or disproportionate punishment. Harassment directed at individuals because of their race, ethnicity, or religion is, of course, impermissible. But protected political speech cannot be the basis for punishment. As suggested by its executive orders, the Trump Administration would like to censor and punish, among other things, expressions of "from the river to the sea," or advocacy to "replace[

] the culture on which our Constitutional Republic stands," or a course on the history of white supremacy in America. Such censorship, even of speech that is offensive to many listeners, is anathema to the First Amendment and principles of academic freedom.

To the contrary, the ability to criticize governments, their policies, and even their foundational philosophies is a critical component of our democracy. Political speech is "at the core of what the First Amendment is designed to protect." It enables the "unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Our country has a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open[.]"And that commitment extends to college and university campuses, where the First Amendment safeguards free speech and free association. In Healy v. James (1972), for example, the Supreme Court affirmed that the First Amendment protects the right of student groups to associate and speak out on matters of public concern, free from censorship by public university officials, even where the student groups may be aligned with political viewpoints considered radical and unpopular.

Outside the classroom, including on social media, students and professors must be free to peaceably express even the most controversial political opinions without fear of discipline or censure. Inside the classroom, speech can be and always has been subject to more restrictive rules to ensure civil dialogue and a robust learning environment. But such rules have no place in a public forum like a campus green—and in any event, it is not the proper role of the White House to set those rules. Preserving physical safety on campuses is paramount; but "safety" from ideas or views that one finds offensive is anathema to the very enterprise of the university….

[U]niversities can, and indeed must, protect students from discriminatory harassment, including on the basis of "shared ancestry or ethnic characteristics," or "citizenship or residency in a country with a dominant religion or distinct religious identity." While offensive and even racist or xenophobic speech is constitutionally protected, shouting an epithet at a particular student or pinning an offensive sign to their dorm room door can constitute impermissible harassment. Antisemitic, anti-Palestinian, or anti-immigrant speech targeted at individuals because of their ethnicity or national origin constitutes invidious discrimination, and cannot be tolerated. Physically intimidating students by blocking their movements or pursuing them aggressively is unprotected conduct, not protected speech. It should go without saying that violence is never an acceptable protest tactic.

Speech that is not targeted at an individual or individuals because of their ethnicity or national origin but merely expresses impassioned views about Israel, Palestine, immigration policy, or any other subject the White House may find objectionable is not discrimination and should be protected. The only exception for such untargeted speech is where it is so severe or pervasive that it denies students equal access to an education — an extremely demanding standard that is rarely, if ever, met by pure speech. Federal government officials cannot coerce university officials into taking actions inconsistent with this settled First Amendment law….

I think this analysis is generally quite sound as a matter of free speech principle. As I noted last month, it's not clear whether the First Amendment would prevent the federal government from deporting noncitizens for their speech "endors[ing] or espous[ing] terrorist activity"; but, as I also noted then, I think that such deportation is bad policy, because chilling the speech of lawful visitors to the U.S. does interfere with the marketplace of ideas for Americans. Indeed, even pro-Hamas speech on American university campuses has, I think, taught many Americans a valuable lesson about various speakers, groups, and ideologies. That would be true of speech by foreign students or by lawful permanent residents as well as by American citizens.

Note also that NRA v. Vullo, the 2024 Supreme Court precedent that the ACLU's letter cites, was argued by David Cole of the ACLU (representing the NRA); the petition was filed by the Brewer Law Firm and by me. I think the visible ACLU-NRA / left-right alliance helped the NRA prevail, but also, as this case illustrates, helped ACLU in its broader agenda. The underlying principle—that the First Amendment limits the government's power to deter speech by threatening intermediaries (banks or insurance companies in NRA v. Vullo, private colleges)—protects all speech (at least by citizens), whether pro-gun-rights speech, anti-Israel speech, or even pro-terrorist speech.

The letter also argues that universities shouldn't generally assist federal officials in immigration law enforcement, makes various arguments about the Family Educational Rights and Privacy Act, and makes various Fourteenth Amendment and Title VI arguments as well; I'm more uncertain on those matters. I'd also quibble a bit with the precise articulation of what may be punishable harassment. But the ACLU's general analysis about free speech strikes me as quite right.

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[Ilya Somin] Updated Stanford Encyclopedia of Philosophy Overview of "The Ethics and Rationality of Voting"

[Written by Georgetown Prof. Jason Brennan.]

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The Stanford Encyclopedia of Philosophy has published an updated and expanded version of its entry on "The Ethics and Rationality of Voting." It is authored by Georgetown Prof. Jason Brennan, a leading expert on democratic theory. Here is his summary of the issues covered:

This entry focuses on six major questions concerning the rationality and morality of voting:

Is it rational for an individual citizen to vote? Is there a moral duty to vote? Are there moral obligations regarding how citizens vote? Is it justifiable for governments to compel citizens to vote? Is it permissible to buy, trade, and sell votes? Who ought to have the right to vote, and should every citizen have an equal vote?

The article is a great summary of debates over these issues, and review of relevant literature. To me, it is striking how much of the debate over all six issues turns at least in part on the problem of voter ignorance. For example, whether and to what extent people have a duty to vote depends in significant part on whether they can do so in an informed manner. Similarly, many current and proposed limitations on voting rights are justified by political knowledge considerations (e.g. - this is the standard rationale for barring children, and for requiring immigrants to pass a test of political knowledge to become citizens - one most native-born citizens would fail if they had to take it without studying.

I have long argued that voter ignorance is a major challenge for democracy and democratic theory, and recent events indicate the problem is even more severe than I previously thought. There is no easy and quick solution. But I I assess a range of possible options in a recent book chapter on "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance," and in my book Democracy and Political Ignorance.

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[Eugene Volokh] FIRE Files Challenge to Texas A&M Drag Show Ban

From the motion for a TRO and preliminary injunction in Texas A&M Queer Empowerment Council v. Mahomes, just filed yesterday by the Foundation for Individual Rights and Expression (JT Morris, Adam Steinbaugh & Jeffrey Zeman):

For years, Plaintiff Queer Empowerment Council has exercised its unquestionable First Amendment right to organize, fund, and host an annual drag show, Draggieland, in venues open for student performances at Texas A&M University–College Station. The recognized student group has been preparing to host Draggieland again at the Rudder Theatre on Texas A&M's campus on the evening of March 27, 2025. Campus staff readily approved the group's reservation months ago.

But on February 28, the Texas A&M System Board of Regents took aim at Draggieland, passing a resolution banning drag shows from campus venues ("Drag Ban"). The Regents left no doubt about their motives, insisting that drag performance "promote[s] gender ideology" and "demeans women." …

Texas A&M University opens performance and event venues in its Rudder Theatre Complex for use by recognized student organizations. These include the Rudder Theatre, one of the venues inside the Rudder Theatre Complex. These venues supplement the classrooms on campus, providing students with spaces to present their own artistic, cultural, and political events—where students can "gain exposure to diverse political thoughts and viewpoints different from their own." Tracking its "Expressive Activity on Campus" policy, the University provides content-neutral regulations for using the Rudder Theatre, And it places no limit on content or subject matter. In fact, the University holds Rudder Theatre out as suitable for "events such as Broadway productions, concerts, variety shows, movies, lectures, conferences, commencement ceremonies, and recitals."

Past and upcoming events in the Rudder Theatre Complex venues include performances of the Broadway musicals Chicago and Hadestown, each employing "mature themes," and The Cher Show, featuring women in risqué costumes. Students also use the Rudder Theatre to hold an annual "Miss Black & Gold" women's pageant. Students and community members seeking entertainment can attend concerts (whether by a jazz ensemble, South Korean pop group, or Brazilian pianist), musical theatre (including student productions of Swan Lake and Oklahoma!), or comedy shows. And student organizations use it to host religious and political meetings, like an appearance by commentator Ben Shapiro, who denounced "transgressivism" by the LGBTQ+ community during his speech.

I think FIRE is generally quite right here. Once the university has broadly opened the theater for student expression, it can't then exclude presentations—whether drag performances or Ben Shapiro speeches—because of their viewpoint. And I agree that banning drag because it "promote[s] gender ideology" and supposedly "demeans women" is a viewpoint-based exclusion. (Theatrical performances have long been recognized as a form of expression that's as protected by the First Amendment as is a speech.)

The ban also can't be justified through any First Amendment exception, including for obscenity:

The Drag Ban does not hint at obscenity. Nor could it. According to the Board of Regents, "Drag Show Events" involve "biological males" choosing what "women's clothing" to put on and perform in. They do not involve nudity, let alone the type of depiction satisfying the constitutional test for obscenity. See Miller v. California (1973) (unprotected obscenity must "appeal to the prurient interest in sex," "portray sexual conduct in a patently offensive way," and "not have serious literary, artistic, political, or scientific value").

And the ban can't survive strict scrutiny:

Public university officials never have a compelling interest in banishing a category of protected expression from campus as the Board of Regents has done here. Disagreement with a perceived message is never a legitimate governmental interest, let alone a compelling one….

[T]he Board of Regents' hand-wringing over "mockery or objectification of women" is not a compelling interest. Drag shows present no tangible harm to women—and Defendants cannot show otherwise.

Likewise, the Board of Regents' concerns about a "hostile environment" and harassment under Title IX are unavailing. As then-Judge Alito observed in striking down a harassment policy challenged by religious students, there "is no categorical 'harassment exception' to the First Amendment's free speech clause." Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001) (Alito, J.). To prevent federal anti-discrimination law from morphing into an all-purpose campus speech code, courts have carefully defined hostile-environment harassment, requiring that the conduct be so "severe, pervasive, and objectively offensive" that it effectively denies a student access to educational opportunities. Draggieland comes nowhere close to satisfying this standard.

To start, Draggieland is an annual event—that's not "pervasive." Nor is it "objectively offensive" to attendees voluntarily entering a ticketed event in an enclosed theatre. Those attendees are not denied access to an event; they are trying to access it. And a theatrical event is not "severe" conduct that would prevent any student from attending classes or participating in campus activities. A public university campus is not a "safe space" from ideas, and Draggieland in no way creates a hostile environment for any student as that phrase is defined in law. Defendants cannot justify the Drag Ban on a paternalistic desire to shield students from speech the Regents find offensive.

The Board of Regents' asserted interest in following the Executive Order banning the "promotion of gender ideology" fares no better as a compelling interest. For one thing, the Executive Order is directed at federal agencies, not state public universities. And even if it applies, the Executive Order merely states that "Federal funds shall not be used to promote gender ideology." Draggieland, conversely, is entirely funded through the Council's own funds that it raises. It receives no funding from Texas A&M. And the University has an unyielding obligation to uphold its students' First Amendment rights, not trot out an irrelevant Executive Order as pretext for censoring protected expression its officials dislike….

A compelling interest demands more than what the Board of Regents offers, for good reason. Permitting public university officials to quash speech on flimsy concerns about harassment or federal funds would imperil protected campus expression from political speech to pure entertainment. DeJohn v. Temple Univ. (3d Cir. 2008) (harassment policy would reach "'core' political and religious speech, such as gender politics")….

Exiling protected expression from a university campus just to shield some from certain viewpoints is neither narrowly tailored nor a least restrictive means. Instead, those who find a drag show "demeaning" or "lewd" can choose not to attend and "effectively avoid further bombardment of their sensibilities simply by averting their eyes." Cohen v. California (1971). As the Supreme Court observed, the First Amendment "leaves matters of taste and style so largely to the individual," because government officials "cannot make principled distinctions" between what is "palatable" or "distasteful." The Board of Regents is no different.

See also this amicus brief from our own Dale Carpenter (SMU), Dean Erwin Chemerinsky (Berkeley), the Stanton Foundation First Amendment Clinic at Vanderbilt Law School, and me, making similar arguments in another Texas case, Woodlands Pride, Inc. v. Paxton, (which is now pending in the Fifth Circuit).

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