Eugene Volokh's Blog, page 152

[Jonathan H. Adler] SCOTUS Denies Trump Administration Application to Stay District Court Order Blocking Pause of USAID Payments; Certiorari Sure to Follow

[A pre-opinion release order divides the justices 5-4, but this may not preview the split on the merits.]

This morning, the Supreme Court denied the Trump Administration's application for a stay of a district court's temporary restraining order blocking the Administration's effort to pause the disbursement of funds from the U.S. Agency for International Development. The unsigned order in Department of State v. AIDS Vaccine Advocacy Coalition directs the district court to "clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines." This likely means that the approximately $2 billion in funds "owed for work already completed" before entry of the court's TRO must be paid out.

While the order is unsigned, it is clear that it was joined by the Chief Justice and the four female justices (Sotomayor, Kagan, Barrett and Jackson). Justice Alito dissented, joined by Justices Thomas, Gorsuch, and Kavanaugh. The dissent begins:

Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic "No," but a majority of this Court apparently thinks otherwise. I am stunned.

Justice Alito's dissent argues, among other things, that "the District Court's enforcement order should be construed as an appealable preliminary injunction, not a mere TRO." It further argues that the Trump Administration is likely to prevail on the merits on grounds of federal sovereign immunity (because the plaintiffs are seeking to force the disbursement of funds from the federal treasury). The dissenters seem unconvinced that the Administrative Procedure Act waives sovereign immunity for these purposes.  This  does not mean those who believe they are owed money by USAID have no remedy, just that they have to pursue such claims in the Court of Federal Claims instead of a federal district court.

The brief dissent concludes:

Today, the Court makes a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers. The District Court has made plain its frustration with the Government, and respondents raise serious concerns about nonpayment for completed work. But the relief ordered is, quite simply, too extreme a response. A federal court has many tools to address a party's  supposed nonfeasance. Self-aggrandizement of its jurisdiction is not one of them. I would chart a different path than the Court does today, so I must respectfully dissent.

This is far from the end of the case. Indeed, since four justices dissented here, it is abundantly clear that there will be four votes for certiorari once the Department of Justice files a petition. In other words, stay tuned.

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Eugene Volokh] D.C. U.S. Attorney Drops Probe Over Sen. Schumer's 2020 Statements About Gorsuch and Kavanaugh

[That's the correct decision, though I don't think there should even have been a question about it.]

The Washington Post (Spencer Hsu) reports:

Interim D.C. U.S. Attorney Ed Martin has dropped plans to investigate the country's most powerful elected Democrat over a statement he made about two conservative Supreme Court justices five years ago, concluding that a probe is unfounded, two people familiar with the matter said Tuesday.

The possibility had been aired by Mr. Martin in a Jan. 21 letter (and again in follow-up letters):

As United States Attorney for the District of Columbia, I receive requests for information and clarification. I take these requests seriously and act on them with letters like this one you are receiving.

At this time, I respectfully request that you clarify your comments from March 4, 2020. Your comments were at a private rally off the campus of the U.S. Capitol. You made them clearly and in a way that many found threatening. Your exact words were:

"I want to tell you Gorsuch. I want to tell you Kavanaugh. You have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions." Link here: https://www.cnn.com/videos/politics/2...

We take threats against public officials very seriously. I look forward to your cooperation with my letter of inquiry after request. Should you have further questions regarding this matter, please do not hesitate to call my office or schedule a time to meet in person.

It seems to me clear that Schumer's statement wasn't a punishable true threat of criminal attack; rather, it was a constitutionally protected threat of political retaliation:

Inside the walls of this court, the Supreme Court is hearing arguments, as you know, for the first major abortion right cases since Justice Kavanaugh and Justice Gorsuch came to the bench.

We know what's at stake. Over the last three years, women's reproductive rights have come under attack in a way we haven't seen in modern history. From Louisiana to Missouri to Texas, Republican legislatures are waging a war on women, all women, and they're taking away fundamental rights.

I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions.

The bottom line is very simple. We will stand with the American people. We will stand with American women. We will tell President Trump and Senate Republicans, who have stacked the court with right-wing ideologues, that you're going to be gone in November, and you will never be able to do what you're trying to do now ever, ever again. You hear that over there on the far right? You're gone in November.

We are here to send these folks a message, "Not on our watch." Let me ask you, my friends, are we going to let Republicans undo a woman's right to choose? No! Are we going to stay quiet as they try to turn back the clock? Are we going to give up or waver when things get tough? No. We're going to stand together in one voice and take a stand on behalf of women and families throughout the country. We're going to stand against all these attempts to restrict a woman's right to choose, and we will win.

As Vox (Ian Millhiser) noted at the time, Schumer is talking about the actions of a conservative movement: Republican legislatures are restricting abortion. Justices Gorsuch and Kavanaugh are likely to go along with that. The Democrats will kick the Republicans out in November. In context, "pay the price" means a political price: If Gorsuch and Kavanaugh uphold the abortion restrictions, their political side will lose the election, and will keep losing.

This is pretty standard political rhetoric, on both sides of the political aisle. To be sure, it is indeed possible to interpret it as a threat of violence; it's possible to interpret pretty much anything as a threat of violence. For instance, distributing a map with cross-hairs over Congressional districts could conceivably be interpreted as a threat that Sarah Palin or her PAC (the distributors of the map) would actually kill people. It just couldn't be reasonably interpreted the same way; likewise as to Schumer's speech.

Nor does it matter, I think, that some people on that side appeared willing to criminally attack the Justices (consider the planned Kavanaugh assassination). But in a nation of 330 million people, there will always be some people who are willing to act violently on a wide range of political issues, whether against government officials on the Left or on the Right. Political rhetoric that in context discusses political retaliation can't be stripped of its First Amendment protection simply because of the possibility that someone would perceive the rhetoric as threatening criminal action (or that someone else would be inspired to criminal action by the rhetoric).

Now none of this tells us what politicians and others should say or not say. I don't think Chief Justice Roberts was quite correct to say that Schumer's statement was "threatening." But at the same time, one can certainly argue that government officials, especially at "the highest levels of government," should try to diminish the temperature rather than increase it, especially when naming particular names. Schumer himself expressed regret about his choice of words.

But that should be a matter of political and ethical judgment—not of threatened criminal punishment. I'm glad that talk of trying to prosecute Schumer for this seems to have been rejected; I think federal prosecutors shouldn't even have floated the possibility.

 

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[Eugene Volokh] Punitive Damages Award in Mann v. Steyn Reduced from $1M to $5K,

[largely because the compensatory damages were just $1.]

Readers of the blog likely recall this lawsuit, brought by climate scientist Michael Mann against columnist Mark Steyn, blogger Rand Simberg, the National Review, and the Competitive Enterprise Institute (see our various posts on the subject). The National Review and CEI had been granted summary judgment in 2021, but in January 2024, the jury found Steyn and Simberg liable for defamation, to the tune of $1 compensatory damages + $1M punitives against Steyn, and $1 compensatory + $1K punitives against Simberg.

For a very quick summary of the facts, from Justice Alito's 2019 dissent from denial of certiorari:

Penn State professor Michael Mann is internationally known for his academic work and advocacy on the contentious subject of climate change. As part of this work, Mann and two colleagues produced what has been dubbed the "hockey stick" graph, which depicts a slight dip in temperatures between the years 1050 and 1900, followed by a sharp rise in temperature over the last century. Because thermometer readings for most of this period are not available, Mann attempted to ascertain temperatures for the earlier years based on other data such as growth rings of ancient trees and corals, ice cores from glaciers, and cave sediment cores. The hockey stick graph has been prominently cited as proof that human activity has led to global warming. Particularly after emails from the University of East Anglia's Climate Research Unit were made public, the quality of Mann's work was called into question in some quarters.

Columnists Rand Simberg and Mark Steyn criticized Mann, the hockey stick graph, and an investigation conducted by Penn State into allegations of wrongdoing by Mann. Simberg's and Steyn's comments, which appeared in blogs hosted by the Competitive Enterprise Institute and National Review Online, employed pungent language, accusing Mann of, among other things, "misconduct," "wrongdoing," and the "manipulation" and "tortur[e]" of data.

For more details, including more on the "pungent language" (such as Simberg's "[c]omparing 'Climategate' with the then-front-page news of the Penn State sexual abuse scandal involving Jerry Sandusky"), see Competitive Enterprise Institute v. Mann (D.C. 2016).

Today's long decision (over 14,000 words) by D.C. Superior Ct. Judge Alfred Irving in Mann v. National Review, Inc. declined to disturb the jury's findings that defendants had libeled plaintiff—including that their statements were recklessly or knowingly false—but sharply reduced the punitive damages awards (as our own Jonathan Adler predicted shortly after the verdict):

"The Due Process Clauses of the Fifth and Fourteenth Amendments prohibit a State [and the District of Columbia] from imposing a 'grossly excessive' civil punishment upon a tortfeasor." …

"The federal excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve." Here, such interest is marginal at best. While "[t]he states have long protected the important reputational interests of its citizens in following the strict liability common law of defamation[,]"neither Dr. Mann nor Mr. Steyn are citizens of the District of Columbia and the defamatory speech at issue here did not take place in the District of Columbia, but rather in the online ether, without any special connection or direction to the District of Columbia. This matter is only before this Court by occasion of co-Defendants National Review, Inc. and Competitive Enterprise Institute, neither of whom participated at trial as summary judgment was previously granted to them. Thus, the usual interests of punishment and deterrence are less pertinent here as the District of Columbia is only involved by default as the forum for Dr. Mann's suit. However, the District of Columbia does have a general interest in upholding jury verdicts of its residents, particularly a jury determination that resulted after three-and-one-half weeks of trial.

[i.] Reprehensibility of Mr. Steyn's Conduct

Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct." In State Farm, the Supreme Court enumerated five "aggravating factors" when considering the reprehensibility of a defendant's conduct:

[1] the harm caused was physical as opposed to economic; [2] the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; [3] the target of the conduct had financial vulnerability; [4] the conduct involved repeated actions or was an isolated incident; and [5] the harm was the result of intentional malice, trickery, or deceit, or mere accident.

The Supreme Court has explained that in determining the blameworthiness of a defendant's actions, a court should consider that "nonviolent crimes are less serious than crimes marked by violence or the threat of violence," and that "'trickery and deceit' are more reprehensible than negligence."

Here, Dr. Mann did not experience a physical injury as Mr. Steyn's conduct occurred entirely online. In addition, Dr. Mann produced no evidence of a financial vulnerability and Dr. Mann's suit involved one instance of Mr. Steyn's attack through Mr. Steyn's posting of his Football and Hockey article—all which weigh against a finding of reprehensibility. However, the jury heard testimony of Dr. Mann's emotional harm and reputational injury caused by

Mr. Steyn's defamatory statements. The Court of Appeals noted in CEI that with evidence of the "noxious comparisons" of Dr. Mann to Jerry Sandusky, "a jury could find[] [such comparisons] would demean Dr. Mann's scientific reputation and lower his standing in the community by making him appear similarly 'odious, infamous, or ridiculous.'"

The jury thus clearly determined that said injury was a result of Mr. Steyn's acting with intentional malice in his publishing the defamatory article, which weighs in favor of Mr. Steyn's conduct being deemed reprehensible.

[ii.] Disparity Between the Harm Suffered and the Punitive Damages Awarded

This BMW v. Gore factor embodies the long-held principle that an award of punitive damages bears a "reasonable relationship" to the compensatory award, endorsing the approach that there must be a "reasonable relationship between the punitive damages award and the harm likely to result from the defendant's conduct as well as the harm that actually has occurred." While the Supreme Court has repeatedly rejected the use of a bright-line ratio, it has also indicated that a "breathtaking" award, such as the 500-to-one ratio in Gore, must surely "raise a suspicious judicial eyebrow." In rejecting the "mathematical bright line between the constitutionally acceptable and … unacceptable" awards for the ratio guidepost, the Supreme Court has explained that "a general concern of reasonableness … properly enters into the constitutional calculus." Indeed, higher ratios may be justified where the "injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine." …

Several courts have adopted the principle that, "when a jury only awards nominal damages or a small amount of compensatory damages, a punitive damages award may exceed the normal single digit ratio because a smaller amount 'would utterly fail to serve the traditional purposes underlying an award of punitive damages, which are to punish and deter.'" To ensure that awards are not constitutionally excessive, these courts compare punitive damage awards to those awarded "in [similar cases] to find limits and proportions," and "assess[] whether a lesser amount would 'serve as a meaningful deterrent.'" …

[H]ere, the Gore ratio analysis cannot be the end of the inquiry. Damages in defamation cases are inherently difficult to quantify and, as in Howard University, the jury has handed down a nominal damages award. For any punitive damages award to effectuate the twin purposes of punishment and deterrence, the punitive award to Dr. Mann must exceed the single digit ratio, a relief which the Supreme Court and the Court of Appeals have not foreclosed.

However, the million-to-one ratio of the instant award necessarily raises a judicial eyebrow, as the punitive and compensatory awards vary by a staggering six digits, not to mention that the evidence at trial was mixed as to the true extent of injury Dr. Mann suffered. Accordingly, the Court turns to the final Gore factor and looks to the grant of punitive awards for similar misconduct to guide its remittitur of the punitive damages award, here.

[iii.] Looking to Punitive Damage Awards in Similar Cases

This Gore factor directs a comparison of "the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct." The District of Columbia has never had occasion to consider a statutory civil penalty for defamation and has not had occasion to consider a statutory criminal penalty since 1982. As such, the Court, however, finds instructive caselaw addressing similar misconduct….

However, the few defamation cases in the District of Columbia that discuss the reasonableness of punitive damages are not helpful in determining the size of a punitive damages award because those cases were remanded to the trial courts for further proceedings. Turning to defamation cases in other jurisdictions, the Court finds that the largest punitive damages award involving nominal or small compensatory damages appears to be around $100,000.

However, Gore instructs that an inquiry be made into "awards of similar misconduct," so analysis beyond the mere dollar amounts awarded is required. The instant matter bears most similarity to Celle v. Filipino Reporter Enterprises (2d Cir. 2000) {(awarding $5,000 in punitive damages on each of two counts, $1 in nominal damages)}, in which punitive damages were awarded for the defendant's publishing two defamatory articles in a newspaper that "impugn[ed] plaintiff's trustworthiness," insinuated plaintiff was "spreading false information," and "portray[ed] [plaintiff] to be a cheat." In determining that Mr. Steyn defamed Dr. Mann, the jury could easily have reasoned that Mr. Steyn's article impugned Dr. Mann's character through its "noxious comparisons" to a known sex offender and implied that Dr. Mann's "manipulation of data was seriously deviant for a scientist.

Unlike several of the previously cited cases, in the instant case, Dr. Mann presented no persuasive evidence suggesting that he suffered injury to his business as a result of Mr. Steyn's article. Dr. Mann presented no persuasive evidence that Mr. Steyn's conduct was motivated by an intent to harm Dr. Mann's employment….

An award of punitive damages here remains appropriate given the reprehensibility of Mr. Steyn's conduct. However, given the dollar amount of the punitive award and the lack of support of similar awards in this jurisdiction or elsewhere, a remittitur is appropriate. Upon review of awards for similar misconduct, particularly Celle, and Mr. Steyn's proposed alternative punitive damages award and his indicated acquiescence to such award, this Court finds remitting the award of punitive damages to the amount of $5,000 to be appropriate.

Note: After reading the opinion, I learned that Chris Bartolomucci of Schaerr | Jaffe—a firm at which I'm a part-part-part-time academic affiliate—represents Steyn. I have not worked on this case, nor was I asked by anyone to blog about it.

Thanks to Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

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[Eugene Volokh] Can Publicizing a Person's "Address and Physical Appearance" in Connection with True Allegations of Misconduct Be Actionable?

[A federal magistrate judge flags the issue, though doesn't purport to resolve it.]

Today's Report and Recommendation by Magistrate Judge Sean Riordan in Davis v. Harrison (E.D. Cal.) discusses a lawsuit that stems from family drama (more details below); plaintiff sued for defamation and for intentional infliction of emotional distress, and then moved for judgment on the pleadings. The report and recommendation concluded that there were factual disputes as to the defamation question (basically, who's telling the truth), and it also concluded that those would affect the IIED claim as well. But it also raised the question whether and when even accurate allegations, coupled with disclosure of personal information about the plaintiff, might constitute IIED:

The Complaint alleges that Defendant's daily efforts to defame and harass Plaintiff online are "so extreme that it exceeds all bounds of decency in a civilized community[.]" It further alleges that Defendant jeopardized Plaintiff's safety by distributing her personal information whenever she made those accusations. Finally, the Complaint asserts that the "emotional, mental, and physical distress" caused by this conduct is amplified by the fact that Plaintiff is trying to process the grief arising from Mr. Shabazz's death.

Defendant's alleged conduct would certainly qualify as outrageous if her statements about Plaintiff and her family are false. But as discussed above, judgment on the pleadings for any defamation claim is improper because the veracity of Defendant's allegations against Plaintiff is in dispute.

Whether daily posts about Plaintiff and her family are extreme and outrageous if Defendant's allegations are true is unclear. Plaintiff cites no case law indicating that prolific social media posting about another individual constitutes IIED where the contents of the posts are substantially true, even if extremely unflattering.

This ambiguity extends to the leaking of Plaintiff's personal information, including her address and physical appearance. There is surprisingly little case law on whether "doxing" an individual can constitute IIED.

One court suggested that doxing, in combination with defamatory content, would be a predicate for IIED. See Lord v. Smith (N.D. Ill. 2022) ("Lord has included a claim for intentional infliction of emotional distress, which is directly tied to the fear he experienced that someone would have both the means and motivation to carry out such threats because of these posts [about sexual misconduct with minors, which revealed Lord's identity and home address]."). [Note that Lord v. Smith said this in the context of discussing personal jurisdiction, not the merits, and the case settled without reaching the merits. -EV]

If Defendant lied about Plaintiff's actions and shared her personal information so others could harass her, as Plaintiff claims, the Court would be comfortable finding such conduct outrageous. However, in light of Defendant's claims that her statements about Plaintiff were true, the Court cannot conclude at this point that the course of Defendant's conduct was outrageous and therefore forms a basis for IIED. Adjudicating the IIED claim will have to await a fact-intensive appraisal of a fully developed record….

And here are the factual allegations:

The Complaint alleges that Iman Shabazz, Plaintiff's older brother, became romantically involved with Defendant. At the time, Mr. Shabazz was living with Plaintiff's eldest sister, Katonya Brittingham, and trying to overcome his problems with drug abuse. Ms. Brittingham believed that Mr. Shabazz and Defendant were using drugs together.

The Complaint further alleges that Mr. Shabazz and Defendant had children together, but that by February 2018 Mr. Shabazz had ended the relationship with Defendant. He then alternated between living with his sister Lorine, friends, and on the streets, before living with his aunt and uncle in Richmond, California. Meanwhile, Defendant filed restraining orders against Mr. Shabazz based on allegations that he wanted to stalk and kill Defendant and their kids. Defendant posted this allegation on social media, where she also accused Mr. Shabazz of tampering with her car in an attempt to harm her. Defendant refused to delete this post even after Plaintiff told her that Mr. Shabazz would never do those things. Defendant then moved their children out of state without Mr. Shabazz's permission and made them fear him so they would not visit him.

In February 2021, Mr. Shabazz suffered a stroke. On April 1, 2021, Plaintiff learned Mr. Shabazz had been hit by a car on the highway and visited him in the hospital. The doctors doubted he would survive, and he was hospitalized for three months.

During this time, Plaintiff's younger brother, Ashante Deaton, was accused of molestation and sexual abuse. [This apparently refers to a criminal felony prosecution in Fresno County, filed in Sept. 2020 but still pending. -EV] Defendant recorded herself falsely telling Mr. Shabazz that Plaintiff was in a molestation ring with Mr. Deaton, and that Plaintiff's family sought to kill Mr. Shabazz. After the hospital prohibited Defendant from visiting Mr. Shabazz, Defendant prohibited Mr. Shabazz from seeing his kids until she was back on the visitors' list. She also spread details of the allegations against Mr. Deaton to Plaintiff's family, trying to blackmail Plaintiff into letting her visit Mr. Shabazz. The Complaint alleges that Defendant sought to manipulate Mr. Shabazz into giving her power of attorney, and to obtain money from him in the process.

Twice in 2021, Plaintiff and Lorine filed claims against Defendant for civil harassment and annoyance. Although the parties settled these cases, the Complaint alleges that Defendant broke any agreements reached thereunder. In February 2022, Defendant was granted temporary conservatorship of Mr. Shabazz before she married him and took him to live with her in Washington state.

The Complaint alleges that Defendant then started two petitions to have Plaintiff arrested based on false allegations that she abused Mr. Shabazz, brainwashed him, kept him from contacting his children, and was involved in a molestation ring with Mr. Deaton. Meanwhile, in Defendant's care, Mr. Shabazz's health declined far more rapidly than during his hospitalization, including through multiple sepsis infections. When Plaintiff called Adult Protective Services (APS), Defendant responded with an angry voicemail telling Plaintiff, inter alia, "you're going to jail, no matter how many times you call."

After Plaintiff blocked Defendant's number, Defendant called Plaintiff from a new one just to say "we got [Plaintiff's brother] K.K. locked up, don't ever call APS on us again." The Complaint alleges that Defendant then posted a recording of this call online in July 2023, the same month that Defendant created new social media accounts to contact Plaintiff's family to repeat her accusations against Plaintiff. Plaintiff eventually learned that on every day that month, Defendant posted screenshots of conversations between them and Plaintiff's personal photos and videos on TikTok, including videos taken of Plaintiff without her consent. These TikTok videos repeated the allegations that Plaintiff abused Mr. Shabazz and took him hostage, adding that Plaintiff would be responsible if he died.

More generally, the Complaint alleges that Defendant has encouraged her online followers to harass Plaintiff on social media. This has forced Plaintiff to limit who can see her content. The false allegations have extended to Plaintiff's husband (who Defendant accused of selling drugs as a school security officer), and Defendant has revealed Plaintiff's address and the names of Plaintiff's children, putting Plaintiff's entire family in danger.

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[Josh Blackman] There is Some Drama Brewing In San Francisco v. EPA

Today the Court decided one case, San Francisco v. EPA. As I predicted, the majority opinion was assigned to Justice Alito. (My other predictions for the other October sitting cases look to be on track.) But the breakdown was unusual. Here is the description from the syllabus:

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS and KAVANAUGH, JJ., joined, in which GORSUCH, J., joined as to all but Part II, and in which SOTOMAYOR, KAGAN, BARRETT, and JACKSON, JJ., joined as to Part II. BARRETT, J., filed an opinion dissenting in part, in which SOTOMAYOR, KAGAN, and JACKSON, JJ., joined.

The majority votes to reverse the Ninth Circuit. Justice Gorsuch does not join Part II, and does not write separately to explain why. But Justice Gorsuch does join Part III of the majority, which explains why the Court will reverse the Ninth Circuit. Justices Barrett, Sotomayor, Kagan, and Jackson only join Part II, but they do not join Part III. As I read the opinion, the Barrett quartet would affirm the Ninth Circuit. By all accounts, Barrett did not "dissent in part." She outright dissented. If anything she concurred in part, dissented in part, and dissented from the judgment.

I agree with Ed Whelan's analysis:

Justice Alito's majority opinion reverses the Ninth Circuit ruling. In what she labels an opinion "dissenting in part," Justice Barrett and the three justices (Sotomayor, Kagan, and Jackson) who sign on to her opinion "join Part II of [Alito's] opinion." But they disagree with his argument in Part III and thus would affirm the Ninth Circuit.

Perhaps I'm missing something, but it sure seems to me that Barrett's opinion is a straight dissent.

Relatedly: As I understand the traditional practice, any opinion that is a dissent in part must also be a concurrence in part. But the fact that Barrett agrees with part of Alito's reasoning does not mean that she concurs in any part of his judgment.

There is some drama brewing here. Justice Gorsuch did not explain why he did not join Part II. That failure to join would have rendered Part II as not part of the majority opinion. But the Barrett quartet came in to join Part II, making it a majority opinion. Yet, the Barrett quartet disagreed with everything else in the majority opinion, including the bottom line judgment.

There is another possibility. At this point, Justice Barrett's slide to the left is unmistakeable at this point. I wrote about this years ago, but people are slowly starting to see it. I don't think she will go full Souter, but will be, at best, a Justice O'Connor. Or maybe a Justice Frankfurter, whose only jurisprudence is one of restraint. For the time being, these sorts of locutions ("dissenting in part") mask the slide. At the end of the term, when statistics are assembled about Barrett's voting pattern, this case may be scored as a 9-0 reversal. But that scoring is only superficial. For those who care, on FantasySCOTUS, I scored this case a 5-4 reversal.

Early in her tenure, Justice Barrett urged us to "read the opinions." I've tried, truly. But she writes less than any other member of the Court. According to Empirical SCOTUS, Barrett writes the shortest opinions on average. She has only ever dissented from denial of cert once. And she is silent on the shadow docket. When Barrett does write separately, it is often unclear which parts of the majority she actually agrees with. The Trump immunity decision is a leading example.

Speaking of Barrett's writings, where is her book? The lucrative deal was announced in April 2021 before she had written a significant majority opinion. Four years later, the book is not on the shelf, and I cannot find a publication date anywhere. By contrast, Justice Gorsuch has already co-authored two books during his tenure, and Justice Jackson published her memoir within two years of her confirmation. Justice Kavanaugh's book deal was announced in June 2024, with a publication date in 2025 or 2026. I know people get upset when I talk about Barrett's publication record as a professor, but her productivity on the bench is much the same. She has not given any speeches of note in years, and had only a light-hearted conversation at the Federalist Society National Lawyers Convention in 2023.

Nominees for the Supreme Court do not change much when they join the Supreme Court. People are who they are. I say this not to criticize any current member of the Court, but so that we are all aware of what happens the next time a vacancy arises.

Update: A colleague wrote:

I don't think ACB's (and the other dissenters') move re Part II of the plurality opinion actually works. There are not five votes for that rationale among justices who also agreed with the judgment. Because Part II does not support any aspect of a judgment that a majority of the court agrees with, I still think it has the precedential effect of a plurality. It *might* be different if the judgment had changed because of Part II, but it didn't. And I don't think dissenters can make plurality opinions majority opinions just by "joining" that part of the opinion any more than they can do so by expressing their agreement with that part in dissent.

Whatever the intent was, I don't think it succeeded.

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[Eugene Volokh] "How Brazil's Justice de Moraes Weaponized Liberal Philosophy and the First Amendment Against Free Speech"

An interesting post by Jacob Mchangama (Vanderbilt) and Jeff Kosseff (US Naval Academy). A brief excerpt:

In 2019, Dias Toffoli, then-Chief Justice of Brazil's Federal Supreme Court, appointed fellow judge Alexandre de Moraes to lead an inquiry to investigate "fake news, false reports of crimes, slanderous reports, threats, and other infractions" that "affect the honor and security of the Federal Supreme Court, its members, and family." De Moraes soon dramatically expanded the scope of his powers to include "fake news" and propaganda aimed at democratic institutions more generally, with wide-ranging consequences for political speech in Brazil.

By 2022, when appointed President of the Electoral Court, de Moraes received expanded authority to police political speech during elections to prevent the "distribution and sharing of knowingly untrue or gravely decontextualized information affecting the electoral process". de Moraes' controversial methods have divided Brazilian opinion — some see him as a defender of democracy, others as the censorial Grand Inquisitor of the Brazilian public sphere.

De Moraes most recently made headlines with his suspension of conservative social media platform Rumble for allegedly allowing the dissemination of misinformation. We're not qualified to comment on de Moraes' application of Brazilian law, but it's worth noting that de Moraes' decision goes to great lengths in defending the blanket ban against Rumble based on principles of liberal philosophy and foreign legal standards, including First Amendment jurisprudence. But in doing so de Moraes manages to mangle John Stuart Mill and misrepresent U.S. free speech law.

The whole thing is much worth reading.

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[Eugene Volokh] Court OK's N.Y. Repeal of Religious Exemptions from Vaccination Requirement

An excerpt from the Second Circuit's long (and, I think, generally correct) decision yesterday in Miller v. McDonald (Judges José Cabranes, Richard Wesley, and Eunice Lee):

In 2019, New York repealed the religious beliefs exemption to its school immunization law. The law now applies to all students attending public, private, or parochial schools, except those who qualify for the law's medical exemption. Two parents of Amish students, three Amish "community schools," and an elected representative of all Amish schools in New York sued New York officials … claiming that the school immunization law infringes on their free exercise rights ….

New York maintained [health and religious] exemptions until 2019. During 2018 and 2019, the United States experienced the worst measles outbreak in over twenty-five years; New York was the epicenter. Most cases occurred in communities with clusters of unvaccinated individuals. Following that outbreak, the legislature repealed the religious beliefs exemption while retaining the medical exemption….

A neutral and generally applicable law's burden on religion is constitutional if the law passes the relatively low hurdle of rational basis review—that the state has chosen a means for addressing a legitimate government interest rationally related to achieving that goal. If a law is not neutral or generally applicable, however, the government must demonstrate that the law satisfies strict scrutiny, which requires the law "to further 'interests of the highest order' by means 'narrowly tailored in pursuit of those interests.'"

As the Supreme Court explained in Employment Division v. Smith (1990), requiring all laws that burden religion to satisfy the demands of strict scrutiny "would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind," including "compulsory vaccination laws." "[A]dopting such a system would be courting anarchy." … This Court has repeatedly upheld neutral and generally applicable immunization laws in the face of free exercise challenges.

Plaintiffs contend that § 2164's text and the statements of several legislators reveal a discriminatory motive…. A state "fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature." … New York Public Health Law § 2164 is neutral on its face. It does not target or affirmatively prohibit religious practices. The law simply applies New York's school immunization requirements to all schoolchildren who do not qualify for the law's medical exemption. Moreover, the act of repealing the religious exemption did not "in and of itself transmute" this otherwise neutral law into one "that targets religious beliefs."

Nor does the legislative history reveal an anti-religious bias. Plaintiffs argue that statements made by a small number of legislators, some of whom sponsored the amendments in their respective houses, evidence religious animus. But Plaintiffs have not alleged facts to suggest that those remarks infected "a sizeable portion" of legislators' votes or otherwise influenced the law's enactment. To the contrary, the legislative record is full of respectful statements in support of religious freedoms. The final vote passing the legislation—84 to 61 in the Assembly and 36 to 26 in the Senate—further reflects the "spirited floor debate among the legislators" and their thoughtful consideration of the interests at stake. These circumstances differ from where discriminatory intent can be ascribed to a small group of decision-making officials. For example, in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Supreme Court held that statements made by several of seven commissioners were hostile to religion and therefore "cast doubt on the fairness and impartiality" of the administrative enforcement proceeding, particularly given that no one disavowed the substance of the statements. The remarks were made "by an adjudicatory body deciding a particular case"—"a very different context" from "statements made by lawmakers." …

A law is not generally applicable in two circumstances: (1) when the law treats comparable secular conduct more favorably than religious activity, or (2) when "it 'invites' the government to consider the particular reasons for a person's conduct by providing 'a mechanism for individualized exemptions.'" …

Plaintiffs contend that exempting students for medical reasons treats comparable secular conduct more favorably than religious beliefs…. [But s]ecular conduct is not always "comparable" to religious conduct. It is "comparable" when the secular conduct poses risks "at least as harmful to the legitimate government interests" justifying the law as posed by the religious conduct incidentally burdened by the law.

New York's interest in passing § 2164 was in "protect[ing] the health of all New Yorkers, particularly our children," from "disease outbreaks" by "sustaining a high vaccination rate among school children." … Repealing the religious exemption decreases "to the greatest extent medically possible" the number of unvaccinated students and thus the risk of disease; maintaining the medical exemption allows "the small proportion of students" who medically "cannot be vaccinated" to avoid the health consequences that "taking a particular vaccine would inflict." Exempting religious objectors, however, detracts from that interest. Religious exemptions increase "the risk of transmission of vaccine-preventable diseases among vaccinated and unvaccinated students alike." …

A law also is not generally applicable when it extends broad discretion to government officials to grant exemptions based on their assessment of "which reasons for not complying" with the law "are worthy of solicitude." … New York's medical exemption fits neatly within the contours of other exemptions to immunization that we have held to be constitutionally permissible. The statutory exemption is "mandatory," and applies to an "objectively defined" group. In addition, the authority conferred to physicians is not discretionary; a physician's use of her professional medical judgment is limited by the statute and regulations. The same is true of the authority conferred upon school officials. Even though school officials have the authority to conclude that the documents submitted in support of a medical exemption contain sufficient (or insufficient) information, they do not have "discretion to approve or deny exemptions on a case-by-case basis" for any reason.

Practically speaking, Plaintiffs argue that school officials have "the power to press the red or green light on each medical exemption request." For example, they allege that up to 50% of students had medical exemptions in one school while zero students had a medical exemption in another school in the same community and that medical exemptions are granted inconsistently year to year. Those allegations do not change our conclusion. Without information about a student population and its medical needs, there is no way to infer a discretionary element from the school officials' acceptance of medical exemption requests. Moreover, for the reasons explained, the statute does not create a system in which school officials are given improper discretion to evaluate the reasons given for a requested medical exemption….

The Supreme Court has implied that a neutral and generally applicable law may nonetheless be subject to heightened scrutiny if a free exercise claim is brought "in conjunction with other constitutional protections." This Court has characterized that language describing so-called "hybrid rights claims" as dicta, and has declined to apply a heightened standard of review.

Plaintiffs agree with the district court that hybrid rights claims are generally not viewed as viable in this Circuit. Yet, they contend their claims should not have been dismissed because they are essentially the same as the claims in Wisconsin v. Yoder (1972). There, the Supreme Court invalidated a Wisconsin law under the Free Exercise Clause that mandated conventional school attendance until the age of sixteen. Members of the Amish faith challenged the law, seeking to educate their fourteen-and fifteen-year-olds through their "long-established program of informal vocational education." The Supreme Court held that Wisconsin failed to demonstrate an "interest of sufficient magnitude" to overcome "the interests of parenthood" when "combined with a free exercise claim of the nature revealed by this record."

We have observed that the Supreme Court in Yoder "took pains explicitly to limit its holding." The trial record demonstrated that the state law effected a "severe" and "inescapable" burden on the parents' ability to pass onto their children the Amish religion and "the fundamental mode of life mandated by the Amish religion." Compulsory high school attendance would take Amish children away "from their community, physically and emotionally, during the crucial and formative adolescent period of life." That removal would "substantially interfer[e] with the religious development of the Amish child and his integration into the way of life of the Amish faith community." One expert opined that compulsory high school attendance would "result in the destruction of the Old Order Amish church community as it exists in the United States today." Wisconsin also failed to offer any evidence to support its purported interests in mandating, at most, two additional years of high school attendance.

Plaintiffs' objection to vaccines is premised on the same "fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence." They claim that the school immunization law mandates two impossible options: inject their children with vaccines, forcing conduct against their religious beliefs, or forego educating their children in a group setting, requiring them to sacrifice a central religious practice. True, Plaintiffs have shown that § 2164 burdens their religious beliefs and practices; but those burdens are not equivalent to the existential threat the Amish faced in Yoder. Unlike in Yoder, compliance with § 2164 would not forcibly remove Amish children from their community at the expense of the Amish faith or the Amish way of life.

Moreover, Yoder's holding is limited by the state's interest in protecting public health. In fact, in Yoder, the Supreme Court specifically distinguished the facts from Prince v. Massachusetts (1944), where the Supreme Court upheld a child labor law against a parent's free exercise challenge. The Supreme Court in Prince found support from the apparently uncontroversial proposition that a parent "cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds" because the "right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death." In Yoder, the Supreme Court acknowledged that non-compliance with the school attendance law would not result in any "harm to the physical or mental health of the child or to the public safety, peace, order, or welfare." Given the State's interest here—protecting New Yorkers, particularly schoolchildren, from disease—an analogy to Yoder's facts is unconvincing….

Mark S. Grube represents the state.

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[Eugene Volokh] Nearly $2M Defamation Award (Including Attorney Fees) Upheld

From Creal v. Nasiri, decided Thursday by California Court of Appeal Justice Victor Viramontes, joined by Justices Maria Stratton and Elizabeth Grimes:

Creal is a certified public accountant (CPA). He has been a practicing CPA since 1978 and operates an accountancy firm in Torrance under the name Creal & Creal, An Accountancy Corporation. Creal's business consists primarily of preparing individual tax returns, business tax returns, and litigation support….

Creal maintained a website for his firm for 20 years but did not generally advertise as most of his new clients were referrals from existing clients. While Creal's firm had a webpage on Yelp, Creal did not create the page but merely confirmed with Yelp that the firm was his. He could not delete the Yelp page or modify any of the Yelp reviews. Creal believed newly referred clients would check Yelp for reviews….

In June 2015, Creal was retained as an expert by Nasiri's ex-husband, Mohamadali Abolahrar, in the dissolution case between Abolahrar and Nasiri. Although originally retained as an expert, Creal also filed an amended tax return for Abolahrar after learning there was an Internal Revenue Service (IRS) tax credit for $65,000 for 2013. To claim the tax credit, Creal filed a married-filing-separately return for Abolahrar in March 2017, claiming half the credit for Abolahrar, believing the tax credit was a community property interest. Despite only claiming half the credit, the IRS refunded the entire amount to Abolahrar.

On October 26, 2017, Abolahrar's family law attorney asked Creal to pick up Abolahrar's laptop from Nasiri's family law attorney, Nadine Jett. Creal went to Jett's office and informed the receptionist that he was there for the laptop. While he waited in the reception area, Nasiri walked in and spoke to the receptionist. Creal did not interact with Nasiri in the office, and left once he received the laptop.

After Creal left Jett's office, he noticed a Porsche parked in the parking area and believed it belonged to Nasiri. Believing the Porsche was a community property asset, Creal photographed the vehicle. As Creal was taking the photos, Nasiri came outside and told him, "'You cannot do that.'" Creal replied, "'Yes, I can. It's in a public place.'" Creal noticed Nasiri had her cell phone camera pointed at him, so he took a picture of Nasiri.

On October 26, 2017, Nasiri posted a one-star review on Creal's Yelp page.

The posting read: "I would give him zero if I could. My tax return was Manipulated and $69000 was refunded from IRS without my consent to my convicted felon ex husband who is out on bail. Which I heard Mr. Creal took 20% of that since he was the accountant. That's fraud. He also has been the accountant for 2 businesses that I have interest in. He has been helping in creating unreported income for the two businesses and has been making a mess as a professional. This man followed me today to my attorney[']s office and I think he was damaging and touching my car. I stepped out and told him that he does not have a right to do so. Please see attached pictures. I also have full video. Later I found out he also was actually covering the cameras in order to hurt me. I made a police report and I will file a complaint. Just stay away from this man. And you will stay away from IRS investigations."

Creal learned of the review …. He contacted Yelp to take down the review but Yelp refused because it appeared Nasiri had "consumer experience." Creal knew he could reply to the review, but was concerned Nasiri would respond to his reply, exacerbating matters.

In the subsequent months, Nasiri made similar posts about Creal on the internet. In five of these posts, she included a redacted federal criminal judgment along with captions that read "Convicted felons for conspiracy and fraud." In another post that included a photo of Creal on the day he had the interaction with Nasiri at Jett's office, Nasiri claimed, "Creal is trying to [d]amage and touch my car." Nasiri also posted comments about Creal on the website RipOff Report, stating Creal committed fraud, theft, and harassed Nasiri….

In December 2017, Creal retained an attorney to contact Nasiri and request that she remove the Yelp review. Creal wrote to Jett, demanding Nasiri remove the Yelp review. On January 10, 2018, Nasiri posted a redacted version of the letter on Yelp with a caption that read: "Hilarious, bullying me to hide the truth." She posted again on January 22, 2018, claiming Creal hired "an attorney to harass" her. Creal did not respond to these posts, and directed his attorney to file a complaint.

In discovery obtained from Yelp, Creal learned that another negative review on his Yelp page posted by someone identified as "Pablo A" was connected to an e-mail address associated with a person who had worked for Nasiri. The post read: "I had a consultation with this firm. My friend referred me to Kenneth Creal. After two months he wanted 50% of the cash for the service to make everything 'his way.' I don't really know why he has 4 people who gave him 5 stars they're probably people who are related to him. I could just say he has a shady business and he's very unethical."

Creal was shocked when he saw Nasiri's posts on Yelp because they were false and implied criminal conduct. Creal was particularly concerned about the posts that alleged criminal conduct, stating: "If people believe that, I've been in this community for 40 years. I was born in Hawthorne with the family businesses that we've had. I'm known in my church affiliations. I'm known by thousands of people. Anybody reading this wouldn't touch me with a 10-foot pole. They wouldn't come to me professionally. And understanding how the Internet works, this would be up on the Internet for the rest of my life." Creal described the posts as "humiliating." …

Nasiri admitted she wrote the October 26, 2017 Yelp review, as well as other posts on Yelp and Ripoff Report. She also admitted that she posted the pictures associated with those reviews. Nasiri admitted she never contracted with or personally hired Creal. While Nasiri maintained that Creal "manipulated" her tax return, she never produced the tax return that Creal allegedly manipulated. Nasiri claimed she heard Creal took a 20 percent fee but did not know one way or the other if he actually did or not. She also admitted that she did not investigate this claim before posting it. Nasiri never saw Creal damage her car, and gave conflicting testimony during discovery and at trial with respect to whether Creal touched or scratched her car. Nasiri never saw Creal at her home or work. Nasiri admitted the redacted federal criminal judgment she posted had nothing to do with Creal….

Nasiri's appeal mostly related to the damages and fees awards, as well as some evidentiary sanctions based on the trial court's findings of litigation misconduct; but the appellate court held in Creal's favor.

David M. De Castro and Arthur D. Morrow (De Castro & Morrow) represent Creal.

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[Sasha Volokh] Expressive Discrimination: Universities' First Amendment Right to Affirmative Action — Part 3

[Continuing my serial blogging on whether private universities can use a Boy Scouts expressive association theory to have race-based affirmative action.]

Last week, I started blogging (and yesterday, I continued blogging) about my new article Expressive Discrimination: Universities' First Amendment Right to Affirmative Action, just published by the Florida Law Review. In these days of federal attacks on private DEI, maybe some private universities might find this useful as a strategy for fighting back against the Trump Administration!

Yesterday's post gave the main thesis, laying out under what conditions a Boy Scouts expressive association right might be viable under current caselaw. Today's post lays out some complications of the theory, answering four questions: (1) Does the race context make anything different? (No.) (2) Does the market context make anything different? (No.) (3) Does the Title VI conditional-spending context make anything different? (Yes, some.) and (4) Can public universities use this theory? (No.)

If you want to see the PDF with all the juicy footnotes, read the whole thing.

II. Some Complications

A. Is Race Different?

One might resist this whole argument by arguing that race discrimination is different from the sexual-orientation discrimination in Boy Scouts and 303 Creative.

But the racial angle shouldn't make any difference. The doctrine doesn't distinguish between race and other bases of discrimination. When one challenges governmental discrimination, Equal Protection doctrine draws strong distinctions—embodied in the applicable tiers of scrutiny—depending on whether the discrimination was based on race, sex, or something else. But that's not implicated here, because there's no state action in private universities' affirmative action programs. Here, the issue is compelled association, which (as discussed above) is like compelled speech.

Doctrinally, a person's liberty interest in saying something racist is the same as their interest in saying something anti-gay: the question is merely whether they're being made to say something they don't want to say. There's no doctrinal reason why 303 Creative would (or should) have come out differently if Lorie Smith had refused to make websites for interracial marriages.

And for associational freedom, an antidiscrimination law can burden a group's expression just as much when the group is being racially discriminatory as when it's being discriminatory against LGBT people. There's no doctrinal reason why Boy Scouts would (or should) have come out differently if it were a "Hitler Youth" organization that wanted to have white scoutmasters to teach white supremacy. (Or, in a more mainstream context, compare the racial theater and TV casting decisions discussed above with the gender-related decisions of someone making straight rom-coms or cisgender female beauty pageants.)

The cases cite each other without regard to the type of discrimination involved. Claybrooks v. ABC, recognizing a right to be racially discriminatory in TV show casting, relied heavily on Hurley—a case about an LGBT Irish-American group's participation in a parade—without considering whether race issues are different from LGBT issues. Similarly, Donaldson v. Farrakhan, finding a right to address a men-only audience, relied on Boy Scouts without discussing whether anti-LGBT discrimination is similar to sex discrimination (or even a type of sex discrimination, as later suggested by Bostock v. Clayton County).

Perhaps the difference isn't in the level of the burden on the speaker or association, but on whether the government would prevail under the relevant level of scrutiny. Can the government prevail more easily in a race case?

Recall that the appropriate level of scrutiny is somewhat unclear. If strict scrutiny is required, that raises two possibilities: (1) Would the government's interest in ending race discrimination be compelling, while the interest in ending sex or sexual-orientation discrimination isn't? (2) Does the race, sex, or sexual-orientation context affect whether narrow tailoring is present?

As to the first option, the Court has held that eradicating racial discrimination is compelling in cases such as Bob Jones University v. United States. But other interests have been held to be compelling too: Roberts talked about "Minnesota's compelling interest in eradicating discrimination against its female citizens." And the Roberts Court referred to discrimination more generally: A state's "commitment to eliminating discrimination and assuring its citizens equal access to publicly available goods and services . . . plainly serves compelling state interests of the highest order." In fact, "acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent."

For sexual-orientation discrimination, one could either rely on the broad Roberts formulation or think of sexual-orientation discrimination as a species of sex discrimination. The Tenth Circuit, in 303 Creative, stated (citing Roberts) that "Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace."

The case law thus resists any distinction between eradicating different forms of discrimination in terms of the strength of the governmental interest. Any antidiscriminatory governmental purpose is likely to be held compelling.

And as to narrow tailoring, it seems that the degree of tailoring of any antidiscrimination law depends on how broadly or narrowly it sweeps, not on the basis of the discrimination that it prohibits. One could conclude that, given that eradicating the dignitary harms of discrimination is a compelling interest, the most narrowly tailored means of achieving that goal is a complete prohibition. Or one could conclude (as did the Tenth Circuit) that the governmental goal is ensuring access to services. If that's the case, it depends on how unique someone's services are; as long as one can get the same product elsewhere, one can afford to make exceptions, but as to unique products, a complete prohibition is the most narrowly tailored way of achieving the goal. These theories may be plausible, but they don't distinguish race from sexual orientation.

Or perhaps—sticking with the "equal access" goal—the degree of tailoring has something to do with the scope of the statute's exceptions. A complete prohibition might be minimally tailored, a prohibition with some targeted exceptions more tailored, and so on. Here, one might ask to what extent the availability of exceptions prevents the government from achieving its goal. The background societal level of discrimination against a particular group might thus be relevant in assessing whether an antidiscrimination law is really the government's least restrictive alternative; so would the degree of competitiveness or "monopoly power" in a particular industry.

Perhaps—one might argue, under this view—a racial-discrimination prohibition must be super-strict, because only an absolute law can succeed in combating racial discrimination. Perhaps a prohibition against sexual-orientation discrimination can afford to not be so absolute, because anti-LGBT discrimination isn't as widespread and thus LGBT people are more likely to find someone willing to deal with them. (Even if one custom website designer won't deal with them, another custom website designer will; the uniqueness of that particular website designer's product wouldn't be relevant.)

But one problem with that theory is that the cases don't ask that question. Another problem is that even if the relative degrees of animosity toward different groups were relevant, it's not clear which way that cuts in today's society. What's more widespread today, anti-LGBT animus or racial animus? Surely interracial couples can more easily find a wedding-website designer than can same-sex couples. And if that's the case, a principle that allows for anti-LGBT expressive exceptions should apply at least as strongly in the racial case.

B. The Market Context and the Level of Scrutiny

1. Maybe This Doesn't Apply in the Market Context?

Last year, one could have objected that Boy Scouts has never been extended to the commercial context. The Boy Scouts is a nonprofit, volunteer organization. Hurley is about a parade—likewise a nonprofit, volunteer organization. Avoiding compelled speech is all well and good, and so is expressive association, but should antidiscrimination law give way even when commercial relations are involved?

Perhaps one could have argued that universities are still covered by Boy Scouts because they're generally nonprofits. But perhaps not: there's nothing magical about nonprofits (the Jaycees was also a nonprofit), there's no sharp distinction between how nonprofit and for-profit firms act, and there's no strong difference between how nonprofits and for-profits are treated in fields such as antitrust. Thus, despite universities' expressive nature, one might think the commercial, rather than volunteer, aspect is primary. Student admissions and faculty hiring are about commercial relations—for faculty, this is about one's very livelihood, and for students, it's about a multi-year contract, perhaps hundreds of thousands of dollars of debt, and preparation for a career.

In arguing that commercial relations are different, one could have looked to various sources, though they wouldn't all have had the same implications for universities.

First, one could have looked at Runyon v. McCrary, which denied a private school's right to discriminate against black students. Some might find this the closest case on point to university affirmative action, since it involved a school (though, admittedly, a for-profit school) trying to choose its students based on racial criteria. But, as noted above, Runyon didn't squarely present the issue.

Second, one could have looked at Justice Powell's concurrence in Runyon. Justice Powell thought that (as a statutory matter) § 1981 applied because the school there was "operated strictly on a commercial basis" and was "part of a commercial relationship offered generally or widely." He distinguished that school from "[a] small kindergarten or music class, operated on the basis of personal invitations extended to a limited number of preidentified students." Universities would certainly fall on the commercial side of Justice Powell's line, though Justice Powell wasn't making any constitutional point.

Third, one could have looked at Justice O'Connor's concurrence in Roberts. Justice O'Connor argued that expressive-association rights should belong to expressive associations, not commercial ones. Expressive associations, she wrote, should get to define their membership. "[T]he formation of an expressive association is the creation of a voice, and the selection of members is the definition of that voice"—and "state regulation of its membership will necessarily affect, change, dilute, or silence one collective voice that would otherwise be heard." But freedom of commercial association, she wrote, is only minimally protected.

Justice O'Connor's view would probably cut in favor of the university's First Amendment claims: universities are predominantly engaged in expression, and—especially if they have a strong race-related mission statement and choose their members to inculcate their values—state regulation of their membership could dilute their message. Though, it's hard to say for sure, because a lot of money is changing hands and the relations are contractual. Green v. Miss USA illustrates the range of possible disagreement here: is a for-profit beauty pageant an expressive association that promotes certain ideals of beauty and "female role models," or is it a glorified "multi-level marketing business"?

Fourth, one could have looked at the expressive-boycott case law. The basic rule is that boycotting activity isn't protected by the First Amendment, whereas the expression surrounding boycotts is. But for a while, some language in FTC v. Superior Court Trial Lawyers Ass'n provided some support for an economic/noneconomic distinction. There, the Court ruled against striking court-appointed defense attorneys for indigent defendants, and it distinguished its holding from its pro-boycotters holding in NAACP v. Claiborne Hardware Co. In the Court's view, what made the NAACP boycott different was that it was for "[e]quality and freedom"; the lawyers' strike/boycott, by contrast, was an economic boycott whose "immediate objective was to increase the price that [the strikers] would be paid for their services," no matter their "altruistic . . . motives." Regulation of such "economic boycotts" was well within "the government's 'power to regulate . . . economic activity.'"

Perhaps "the better reading" of these cases "is that many but not all elements of political boycotts are expressive" and that the economic/noneconomic distinction doesn't really play a role. Still, even if it's a misguided dictum, the Superior Court Trial Lawyers language is there; what do we do with it? Universities fit uneasily into this dichotomy because their pursuit of affirmative action is grounded in ideas of equality and freedom, even though that plays out through economic activity. (In any event, Rumsfeld v. FAIR ultimately made clear that boycotting activity is unprotected—not because of any economic/noneconomic distinction but because boycotting simply isn't expressive activity.)

2. The Possible Irrelevance of Markets

So if we look at the older materials, we're left with some uncertainty about whether the Boy Scouts theory applies in a market context at all and, if it doesn't, what that means for universities' hiring and admissions decisions. But today, after 303 Creative, any economic/noneconomic distinction is harder to maintain.

First, as a matter of first principles, compelled-speech and expressive-association claims are no less relevant in economic contexts than in noneconomic ones. If the NAACP wanted to be run by a black person, the American Nazi Party by a white person, or the National Association of Women by a woman, it's an equal burden on those groups' expression, whether those directors were paid or volunteer. If—as a writer or director—I want to have race-conscious casting in Othello or Hamilton, it seems like an equal imposition on my artistic vision whether or not the actors are employees. This is so even though we're talking about someone's livelihood.

Second, various cases applying this framework over the years have come out in favor of the First Amendment claimant even though economic transactions were involved. In Claybrooks, the district court upheld the right of The Bachelor and The Bachelorette to discriminate based on race in casting, even though participants were paid a stipend. In Miss USA, the Ninth Circuit upheld the right of a beauty pageant to limit itself to cisgender women, even though winners received valuable prizes. Hurley, too, noted that protections against compelled speech apply generally—they're not just for the press but are also "enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers."

Third, there's now a decades-old tradition of cases upholding First Amendment rights even in the economic/commercial/corporate context—for instance, in campaign finance, in commercial speech, in other deregulatory contexts, and in the general tendency to treat corporations as rightsholders. This civil rights expansion, recognizing that people don't check their free-speech rights at the door when they do business or use the corporate form, has progressed unabated—even in the face of persistent complaints about First Amendment Lochnerism and "weaponizing" the First Amendment. The Court has written that "[i]t is too late to suggest 'that the dependence of a communication on the expenditure of money itself operates to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment'"—and that "too late" was over forty-five years ago.

Finally, we now have 303 Creative, where Lorie Smith operated through a for-profit corporation. What difference did this make? None at all:

Of course, as the State emphasizes, Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is "the sole member-owner." But none of that makes a difference. Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return? Or that a visual artist who accepts commissions from the public does the same? Many of the world's great works of literature and art were created with an expectation of compensation. Nor, this Court has held, do speakers shed their First Amendment protections by employing the corporate form to disseminate their speech. This fact underlies our cases involving everything from movie producers to book publishers to newspapers.

Justice Sotomayor, in her dissent, argued that public accommodations laws reflect a "simple, but powerful, social contract" where one agrees to serve the public at large by choosing to sell to the public at large. She characterized the Hurley and Boy Scouts regime as applying "to private, nonprofit expressive associations" and not to "clearly commercial entities" such as 303 Creative LLC, and she argued that "any burden on the company's expression is incidental to the State's content-neutral regulation of commercial conduct." The significance of 303 Creative lies in how clearly and forthrightly the majority rejected the relevance of the public accommodations context and the commercial/noncommercial distinction championed by Justice Sotomayor.

303 Creative strongly undermines any contrary hints that one might glean from Runyon or Roberts. It's true that "the First Amendment does not generally protect liberty of contract." But when we have a regulation that would violate the First Amendment when applied to speech done for free, 303 Creative strongly supports the argument that the regulation also violates the First Amendment when applied to speech done for money.

3. Strict Scrutiny Analysis

There still remains the possibility that a ban on discrimination in an economic context would satisfy the relevant level of scrutiny, while a ban on discrimination in a volunteer context wouldn't. As above, note that there's some uncertainty about what the level of scrutiny truly is. Perhaps it's strict scrutiny, perhaps it's more; but the best evidence as to how that scrutiny would come out is 303 Creative itself, which treated the commercial context as irrelevant. This makes it unlikely that eradicating discrimination in the economic context would be any more likely to survive than eradicating discrimination in the volunteer context.

C. Title VI and Conditional Federal Spending

Educational contracting—for faculty or students—is governed by regulatory statutes such as § 1981 or Title VII. Suppose the Boy Scouts theory overcomes these statutes because forcing universities to accept members they don't want would interfere with their message. Universities would still have to contend with non-regulatory statutes like Title VI, under which they could lose their federal funding. (Harvard was, in fact, sued under Title VI, which has, like § 1981, been interpreted to be coextensive with Equal Protection.)

Under current law, universities will not be entitled to an exemption from Title VI, even if the courts accept the Boy Scouts theory—because the government isn't forcing you to do anything when it induces behavior by offering conditional funding. This will be a significant issue for most universities, since most universities receive federal funding, even if just in the form of federal financial assistance for their students.

Originally, the threat of losing funding was relatively mild. As a statutory matter, the Supreme Court held in Grove City College v. Bell that sex discrimination would only put a limited amount of university funding at risk under Title IX of the Education Amendments of 1972—the "program or activity" implicated by student financial aid would be only the student financial aid office. But Congress overruled this interpretation in the Civil Rights Restoration Act of 1987 (CRRA)—not only with respect to Title IX but also with respect to a number of other antidiscrimination laws, including Title VI—by specifying that "program or activity" means "all the operations" of a university. So now all of a university's funding is jeopardized by any discrimination in any unit. And few universities would agree to adopt affirmative action at the cost of losing all their funding.

The good news for universities, though, is that while the government does have some leeway to induce behavior through funding, the unconstitutional conditions doctrine prevents the government from withdrawing a university's entire funding based on discrimination by just one unit. Thus, universities should have the ability to make an informed choice to adopt affirmative action—and thus lose federal funding—in certain units; perhaps, for instance, a university might choose to adopt affirmative action in a particular unit that doesn't receive a lot of federal funding and can therefore afford to lose it.

1. The Unconstitutional Conditions Doctrine

People constantly waive their rights as a condition of receiving government benefits. For instance, we all have a First Amendment right not to talk about constitutional law, but constitutional law professors waive that right if they want to make money as constitutional law professors at public universities—and the same is broadly true for one's on-the-job speech whenever one accepts a government job.

The case law is clear that there's nothing inherently invalid about such inducements, even when what's being induced is something the government couldn't mandate directly. "[A] legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right." After all, one is always "free to decline the federal funds." In the case of expressive association, "That the Constitution may compel toleration of private discrimination in some circumstances does not mean that it requires state support for such discrimination." "Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept." Thus, in various post–Boy Scouts cases, courts have allowed governments to refuse to subsidize the Boy Scouts unless it stopped discriminating.

The same is true throughout constitutional law. Indeed, there's a certain logic behind one's ability to bargain away one's rights. If constitutional rights represent areas of personal autonomy, the right whether to exercise a right and the right not to exercise a right are as fundamental as the right itself—and if one can choose not to exercise one's right, it makes sense that one should be able to agree not to exercise that right for whatever reason one likes, including in exchange for something of value.

And yet, constitutional law imposes limits on the government's ability to make such deals. Despite Justice Oliver Wendell Holmes Jr.'s quip that a policeman "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman," modern constitutional law doesn't adopt the extreme laissez-faire attitude that the government can offer whatever deals it pleases. And perhaps for good reason: the government has such overwhelming control over access to important discretionary benefits that it could induce whatever behavior it likes if given the chance—achieving indirectly what it couldn't achieve directly through regulation.

Thus, various cases have asserted that "a government may not require an individual to relinquish rights guaranteed him by the First Amendment as a condition of public employment," and that "the government may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that benefit." Of course, the idea that "the government has no duty to subsidize" and the idea that "the government can't require you to give up any rights as conditions of benefits," in their strong forms, are irreconcilable, so these statements shouldn't necessarily be taken at face value; the point here is just to show that there are some constitutional restrictions on the government's ability to condition funds.

This "unconstitutional conditions doctrine" is context-dependent, and in fact there's no single coherent doctrine that applies throughout all areas of constitutional law. But one persistent theme is that the conditions imposed need to be related, or germane, to the purpose of the government program. For government employees, the content of one's on-the-job speech is usually maximally relevant to the government's purpose, while off-duty speech is usually much less so. When public-school students are involved, we weigh the student's interest in speaking against the school's interest in suppressing the speech—but if the speech would have no effect on school operations, presumably that balancing would always cut in favor of the student because restricting the student's speech would be unlikely to be germane to any valid school interest.

2. The Significant Independent Grants Principle

Germaneness isn't a problem here, since there's a connection between federal educational funding and Title VI compliance: if you're going to take federal money to educate people, the federal government can demand that the money be spent evenhandedly, without racial discrimination. (The same goes for Title IX and other conditional-funding statutes.)

But the unconstitutional conditions doctrine is subject to an important constraint: the "significant independent grants" principle. This principle has been important in federalism cases involving the Spending Power, where the Court has stated that while Congress can withdraw program funds if the states don't agree to administer its program, it can't put "significant independent grants" at risk. A similar principle applies in First Amendment cases.

Grove City College and Rumsfeld v. FAIR noted that conditions need to be "reasonable," but they didn't go into further detail. Other cases have been more specific, though. Eugene Volokh summarizes the doctrine: "While the government may generally place conditions on the use of benefits that it provides, it generally may not control the use of the recipient's other assets as a condition of providing the benefit. We might call this the No Governmental Restrictions on Use of Private Funds Principle." For instance:

In Regan v. Taxation with Representation, the Court held that the government could deny § 501(c)(3) tax deductions to organizations that engaged in lobbying. Nothing prevented those groups from creating a separate lobbying affiliate under § 501(c)(4). In FCC v. League of Women Voters of California, the Court struck down a prohibition on editorializing by stations that received federal funds. The problem here was that stations weren't even allowed to editorialize with their own funds; that problem would be fixed if the stations could establish separate affiliate organizations. In Rust v. Sullivan, the Court upheld the prohibition on granting federal funds under Title X of the Public Health Service Act to "programs where abortion is a method of family " The organizations that received funding were allowed to advocate abortion in separate activities that maintained "objective integrity and independence" from Title X projects. In Agency for International Development v. Alliance for Open Society International, the Court struck down a funding condition providing that anti-HIV funding couldn't go to organizations unless they had "a policy explicitly opposing prostitution and sex trafficking." It wasn't just that organizations couldn't use those funds "to promote or advocate the legalization or practice of prostitution or sex trafficking"—the statute even controlled what recipient organizations did with their own money, separate from that funding program. The Court noted that a condition can't "seek to leverage funding to regulate speech outside the contours of the program itself," endorsing the "dual structure" theory of Taxation with Representation and the segregated project theory of Rust v. Sullivan.

This distinction doesn't help an organization if it wants to choose its top-level administrators in a discriminatory way, because that choice of leaders necessarily affects the entire institution. So if a university wants to keep federal funding, it should choose its high-level decisionmakers nondiscriminatorily—here, that means the president, provost, and all other university-wide officials.

But under this distinction, a university would be able to set up separate departments or units—for instance, a law school—keeping the units where it intends to keep federal funding tightly segregated from the ones where it has no federal funding (or where it's ready to give up funding). The university should set up appropriate firewalls. If the funding is received in the form of aid to particular students, that might mean those students shouldn't be allowed to enroll in the discriminating departments. Within individual units, the university should be able to discriminate under the Boy Scouts theory. If the federal government insists on regulating the discriminating law school just because the nondiscriminating medical school gets federal funding, then it will be violating the No Governmental Restrictions on Use of Private Funds Principle from League of Women Voters and Alliance for Open Society.

D. Can Public Universities Use This Theory?

Students for Fair Admissions treated public and private universities the same, as far as their ability to discriminate based on race is concerned. However, the First Amendment expressive-discrimination workaround described here is available only to private universities. The reason is simple: because of the state-action doctrine, private universities have virtually no constitutional constraints. Therefore, the only constraints that prevent private universities from having affirmative action programs are statutory—in the federal context, Title VI and § 1981. And the Boy Scouts theory relies on the idea that a constitutional right such as the expressive-association right trumps any mere statutory right.

Making a similar argument for public universities would be trickier. First, as governmental organizations, public universities are often thought of as lacking First Amendment rights, which are generally thought to apply only to private parties (whether individuals or collective entities such as corporations). Second, even if public universities have First Amendment rights, they're still state actors, so they're also bound to respect the Equal Protection rights of the people it deals with. We would then have to resolve the conflict between two competing constitutional rights—which would be trickier.

This Section explores potential ways for public universities to get around the problem. First, perhaps public universities (and other government bodies) have First Amendment rights of their own. Second, perhaps universities—public or private—are "First Amendment organizations" that deserve particular deference in their academic decisionmaking. Third, perhaps public universities, because of their noncoercive nature, either shouldn't be considered state actors at all or should be subject to a reduced version of constitutional constraints.

But all these theories have little to no support in current doctrine. So this Section is more of a thought experiment.

1. Governments as First Amendment Rightsholders

Whether governments have free-speech rights is an unresolved question of First Amendment law. Most courts—usually in dicta—have "reflexively rejected the notion, relying on the assumption that the First Amendment can only restrict, not protect, state actors." As Justice Potter Stewart wrote in his concurrence in CBS v. Democratic National Committee, "The First Amendment protects the press from governmental interference; it confers no analogous protection on the Government." For the contrary view, one could point to some California cases; the Bakke/Grutter suggestion of deference to university judgment; and Justice Stevens's dissent in United States v. American Library Ass'n, where he argued that federal conditions on municipal library funding violate the unconstitutional conditions doctrine. The Supreme Court has noted but not decided the question. So far, we don't have anything authoritative at the level of federal law.

Paul Secunda suggests that assuming that the law school members of the Forum for Academic & Institutional Rights—including the public law schools—are expressive associations may have inadvertently opened the door to public-university employment-discrimination rights. But the Rumsfeld v. FAIR analysis is hardly a holding that public universities are expressive associations, and Secunda himself believes that the Supreme Court would reject this suggestion if push came to shove.

Most recently, in Walker v. Texas Division, Sons of Confederate Veterans, Inc., the specialty-license-plates case, the Court tantalizingly suggested the existence of state-government First Amendment rights: "[J]ust as Texas cannot require [Sons of Confederate Veterans (SCV)] to convey the State's ideological message, SCV cannot force Texas to include a Confederate battle flag on its specialty license plates." But, again, this was just dictum.

That public universities may have First Amendment rights is an intriguing theory, and beyond the scope of this Article. But even if we granted public universities First Amendment rights, we would still have to resolve more issues.

First, a state university with First Amendment rights would be able to assert the expressive-association theory against federal antidiscrimination laws such as Title VI or § 1981. But the state university might not be able to assert its rights against state law—presumably the state can control its own organizations. (It might be different if the state constitution grants the university system some independence from the rest of state government.) Nor could a federal university (such as West Point or the University of the District of Columbia) assert its rights against federal law.

Second, public universities, as state actors, are bound by Equal Protection, including the holding in Students for Fair Admissions. So, any expressive-association right would have to be balanced against the Equal Protection rights of whoever is harmed by an affirmative action policy. That would be tougher than in the private case, where a constitutional right is up against a mere statute.

And in a matchup between the public university's expressive-association right and the people's Equal Protection rights, the former might not do very well. Recall that Grutter, though it didn't explicitly examine the university's First Amendment right, did (following Justice Powell's Bakke concurrence) connect universities' interests with "the expansive freedoms of speech and thought associated with the university environment." Despite that, Grutter still insisted on strict scrutiny. (And the same was true in some post-Grutter cases, even though they deferred to universities' judgment.)

Who knows, maybe it would have been different if the Court had entertained the idea of universities' First Amendment rights rather than mere First Amendment–inspired interests. But based on hints from Grutter, if public universities had any First Amendment–inspired scope of action with respect to affirmative action, it was limited.

Justice Anthony Kennedy, in his dissent, similarly broadly endorsed Justice Powell's First Amendment rationale, but insisted on "rigorous judicial review" and "strict review"—which, in his view, prohibited the affirmative action program. Justice Clarence Thomas's separate opinion denied that "the Law School's assessment of the benefits of racial discrimination and devotion to the admissions status quo [were] entitled to any sort of deference, grounded in the First Amendment or anywhere else." In his view, there was "no basis for a right of public universities to do what would otherwise violate the Equal Protection Clause."

The combined views of Justices Kennedy and Thomas now seem to have carried the day: the only place the First Amendment shows up in Students for Fair Admissions is in Justice Sotomayor's dissent.

2. Universities as "First Amendment Institutions"

Perhaps it's not enough to vaguely gesture, Justice Powell–style, to the importance of universities in free expression. Perhaps one should take seriously that "[e]ducation is different" and build on the tradition of judicial deference to universities' decisions in the First Amendment context (e.g., in Grutter) and elsewhere.

Paul Horwitz argues that one should explicitly recognize universities as part of a unique set of institutions (including "the press, religious associations, libraries, and others") that "play a fundamental role in our system of free speech"; in his view, they are "First Amendment institutions" and should be treated differently as a doctrinal matter. Such institutions should be "granted significant presumptive authority to act, and courts [should] defer substantially to actions taken by those institutions within [their] sphere of autonomy."

Universities are well-suited for such treatment because they're easy to recognize, are environments for pursuing truth and finding meaning, operate within highly structured "disciplines," comply with "scholarly standards," and are characterized by "myriad bureaucratic rules" and other "structural mechanisms." (This recognition needn't be pro-free-speech: Horwitz argues that courts should even uphold a university's speech restrictions if they're grounded in the university's values related to "the nature of desirable speech on campus" or the university's "academic mission.") In the strongest form of "First Amendment institution" university deference (which Horwitz doesn't favor and which certainly isn't the law), universities could be given "near-absolute discretion" in areas including "the composition of the student body based explicitly on considerations of race or gender."

This "universities as First Amendment institutions" view would be a departure from current doctrine; the current view is what Horwitz calls the acontextual or "institutionally agnostic" view, which embodies, at most, what he calls "weak-form treatment of universities as First Amendment institutions." Moreover, if a university significantly abandons academic-freedom and free-speech norms to fit in the Boy Scouts theory, the "First Amendment institutions" theory might not even apply on its own terms.

3. Noncoercive Competitors as Not State Actors

Finally, one might question whether public universities should be considered state actors at all.

Usually, private parties aren't considered state actors and don't need to observe constitutional rights. For instance, private schools aren't state actors—even if their money largely comes from public contracts. But private parties can be considered governmental if they have clear indicia of publicness, such as fulfilling a traditionally exclusive public function or somehow being entwined with the public sector. Thus, private prisons are always state actors—at least with respect to their prisoners—because they perform a coercive function that's unavailable to ordinary private people.

On the public-sector side, though, the rule is much more automatic: public employees and formally public entities (i.e., ones that are part of the traditional apparatus of state government) are virtually always considered state actors. One exception to this principle is public defenders, because their relationship to their clients is similar to any other lawyer–client relationship, because they need to be independent, and because they're in a role that's adverse to the government. But that's a narrow exception: otherwise, public employees are classified as state actors with no further analysis.

Do we need to do this? If we can follow a functional analysis, whereby nominally private parties can sometimes be considered state actors if they act in a way that's somehow governmental, why not follow the same analysis in reverse and sometimes (beyond the narrow context of public defenders) consider nominally public actors as though they were private? Perhaps "the automatic treatment of all actions of the government as 'state action'—or at least as all equally state action—should be qualified in favor of a more thoroughgoing functionalism."

If we did this, a good candidate for non-state-actor status would be public universities. They're non-coercive (nobody attends or works at a university unless they want to), their relationship with students or faculty is regulated by contract, and public universities compete with (and can sometimes be hard to distinguish from) private universities. Moreover—perhaps like public defenders—academic-freedom and free-speech norms suggest that professors and students are expected to be independent from (and sometimes adverse to) the government. And people at universities often have their own ethical norms, from generalized academic-freedom norms to field-specific codes such as legal or medical ethics. So perhaps public universities should be considered just like private universities—and thus have First Amendment rights, including expressive-association rights.

This slightly resembles Richard Epstein's argument in favor of a "flexible standard that measures the constitutionality" of public-university affirmative action, when done on those universities' own initiative, "by comparing it with the practices done by private, competitive institutions on a voluntary basis." Public universities' "resemblances to private universities are far greater than those to public police forces"; public universities should therefore "be able to imitate the set of practices undertaken by private universities."

Epstein isn't denying that universities are state actors, though; under his view, public universities would merely be subject to a sort of reasonableness review where the standard is the prevailing practice in comparable private-sector institutions: "[W]e take as the measure of the reasonableness of the state action the question of whether it follows the voluntary patterns and choices made by the private institutions with which it competes."

Epstein's argument—a sort of "constitutional variation of the business judgment rule"—is one way to allow public-university affirmative action; the no-state-action rule is another. Both are premised on the idea that public universities are essentially voluntary organizations that compete with and resemble private universities. However, neither of these positions has much support in current doctrine. I'm sympathetic to the no-state-action position (and thus the expressive-association rights of public universities)—and, more generally, I would welcome a functionalist rethinking of state action. But that rethinking would be a fundamental change in state-action doctrine.

[Note: this serial-blogging will continue in later posts.]

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