Eugene Volokh's Blog, page 16

[Sarah McLaughlin] "Authoritarians in the Academy": Feeling the Chill on Canada's Campuses

The first few chapters of my book Authoritarians in the Academy: How the Internationalization of Higher Education and Borderless Censorship Threaten Free Speech are dedicated to the relationship between authoritarian governments abroad—primarily China—and U.S. campuses. But in the book's fourth chapter, I detail the ways that the Chinese government has imposed its will on campuses in free nations around the world, like Canada.

It's worrying enough to consider the reasons why students and academics on U.S. campuses may fear the consequences of offending the Chinese Communist Party, or how administrators may worry that they need to augment their operations to protect funding opportunities originating from China. But it becomes a concern of significantly greater magnitude when you look at this issue in its full scope. This is a challenge across higher education as a whole, not just in isolated countries.

What happens to the way we research, teach, discuss, and debate authoritarian nations when those same nations are seeking to remake higher education in their image on a global scale? The long term risks to the way all of us, now and in the future, understand the world we live in are severe. But so are the risks to the individuals who today bear the brunt of those repercussions, like Canada's student activists.

An excerpt:

Even in Canada, China's repression is not far away. Such has been the case for some common targets of the Chinese government—like Hong Kong democracy activists, Uyghurs, Tibetans, and Falun Gong practitioners—who are located in Canada. These individuals have faced tactics including threats, harassment, intimidation, vandalism, surveillance, and violence, often from groups and individuals loudly supportive of Beijing and likely including government agents. The intended outcome? The export of China's censorship regime to freer communities overseas.

I spoke to one of those individuals, Chemi Lhamo, about the abuse she suffered after daring to run for—and win—a student leadership position at the University of Toronto Scarborough as a Tibetan-Canadian. "My campaign wasn't even about raising awareness for Tibet, it was about protecting student interests," Lhamo told me. She had been personally involved in activism regarding Tibet as a student and was open with her identity, often wearing a chuba, a traditional Tibetan garment, on campus. But Lhamo said her 2019 campaign was intended to reach all students, including Chinese students. She focused on issues like housing and wages, rather than her activism for Tibet. For the most part, ahead of the election for student union president, nothing much happened, at least nothing to hint at the wave of harassment she would soon receive.

The night of the election, Lhamo slept in her office, awaiting the results. It became clear she would win the next day, but Lhamo's opportunity for celebration was quickly cut short. Ahead of the announcement of her victory, fellow students began circulating her photo on WeChat, thousands of signatories added their name to a petition demanding her removal, and trolls filled Lhamo's social media accounts with abuse. Lhamo sent me some of the ugly, politically and sexually charged messages she received on Instagram. A sampling included: "Tibet always belongs to China … fuck you bitch," "fuck u bitch your mother is dead," "China is your daddy," and "Your mom is a whore, you are a whore."

The comments veered into even darker territory: "Ur not going to be the president of UTSC. Even if u do, we will make sure things get done so u won't survive a day. Peace RIP," "U can say whatever u want but ur mom die," and "Degenerates like you belong on a cross." Lhamo said there were rape threats, and a comment about Chinese-made bullets waiting for her. It is difficult to imagine that all of this punishment could be meted out over an election to a campus leadership position.

Initially, she gave the university time to look into the threats levied against her. But that did not lead to any results; she thinks campus officials just wanted to "wipe their hands" of her situation and played down the threats because they had taken place online rather than in person. For a time, Lhamo actually had to close her campus office for her own safety. Aside from giving her a walkie-talkie to contact campus security and a meeting with a safety officer, university officials did little for her. Lhamo ultimately went to Toronto police to investigate the situation, but as of the time of this writing, she still does not know who was threatening and coordinating harassment against her.

The Chinese Consulate General in Toronto rejected questions about their potential involvement in coordination of the harassment against Lhamo, but certainly did not sound troubled by her experience. If anything, the office appeared to be openly pleased. "It is believed that this is an entirely spontaneous action of those Chinese students based on objective facts and patriotic enthusiasm," the Consulate General wrote in a statement shortly after Lhamo's election. "The Chinese government firmly opposes anti-China separatist activities by 'Tibet independence' activists who are plotting to split Tibet from China [and] the move of any country or organization to provide support or convenience of any kind to 'Tibet independence' activities."

Excerpted from Authoritarians in the Academy: How the Internationalization of Higher Education and Borderless Censorship Threaten Free Speech by Sarah McLaughlin. Copyright 2025. Published with permission of Johns Hopkins University Press.

In my posts this week, I've written about the degrading state of academic freedom and free expression in recent years. In my closing post tomorrow, I'll take a closer look at the much more recent history of the past few months and address what we can likely expect in this arena in the coming weeks and years.

The post "Authoritarians in the Academy": Feeling the Chill on Canada's Campuses appeared first on Reason.com.

[Eugene Volokh] Teacher Disciplined for Saying "Privilege" Training Involved "White-Bashing BS" Can Go Forward with First Amendment Claim

["[T]he only evidence of disruption pointed to by Defendants is the fact that a teacher felt uncomfortable at a session designed with the expectation that participants would feel uncomfortable."]

An excerpt from the long opinion in Grande v. Hartford Bd. of Ed., decided Tuesday by Judge Sarah Russell (D. Conn.):

This case centers around the Hartford Board of Education's investigation and reprimand of Grande for comments he made during a Zoom training held on October 28, 2020…. Grande began working as a physical education teacher for the District in 1989 and continued in that role until he retired on October 1, 2024.

As a result of the COVID-19 pandemic, the Hartford Public Schools stopped in-person instruction for a period of time beginning on March 17, 2020. In fall 2020, Grande was teaching remote physical education to his students…. Avicolli [Director of Arts and Wellness] sent a survey to teachers within her department regarding the level of student engagement during remote classes. Grande answered the survey reporting that not many students were showing up to his remote classes. This lower attendance reflected a national problem of student engagement during the pandemic. After Avicolli conducted the survey, she scheduled a professional development training for teachers in her department. …

The PowerPoint [used at the training] identifies as the "learning target" of the session the following goal: "I can explore my own identity and privilege to better understand how I relate to my students in order to increase engagement and collaboration." The agenda for the meeting shows that the session would include an "Identity and Privilege Activity" and "Break-Out Group Reflection Time" as well as "Closure in Whole Group." The PowerPoint explains that participants will "explore our privilege as related to various social identities" and says "[w]e believe it is critical for everyone to reflect on privilege in this way in order to use our individual and collective privilege(s) for equity and social justice."

The PowerPoint includes an "Identity Wheel" with pie slices that are labelled with categories including race, gender/sex, sexuality, nationality/citizenship, other, religion, class, and ability. Each pie slice is divided into eight sections. The instructions explain that slides for each social identity will be displayed with eight statements that describe examples of "privilege related to that category's system of oppression and privilege." Participants are instructed to shade a section of the wheel if their answer is "basically yes" to the statement….

After doing the activity, teachers participating in the training moved into smaller breakout groups with fellow teachers. The PowerPoint instructions for the breakout group discussion ask, "How did it feel to engage in this activity?" The "Norms in Breakout Groups" are listed as: "Assume positive intentions"; "You don't have to share if you don't feel comfortable doing so"; "It's OK to feel discomfort. This isn't easy!"; and "Agree to disagree respectfully." The discussion prompts listed are: "Why is it important for us to aware of privilege as an aspect of our identities/experience?"; "How did completing this activity affect my understanding of myself?"; "How did completing this activity affect my understanding of my students?"; and "How does my identity impact my relationship with my students?" Avicolli acknowledged that the breakout groups could be uncomfortable and she expected participants to be uncomfortable. She said no one was required to speak in the breakout groups.

According to Grande, he started out the discussion in his breakout group by saying to the other teachers: "I was just man-bashed and white-shamed. I'm gonna sit here quietly." He said he added: "I'm not buying into this white-bashing BS." Defendants' Local Rule 56(a)1 Statement contains slightly different phrasing of Grande's statements: "I just got man bashed and white shamed, but I'm going to sit there quietly" and "I'm not buying into that white bashing BS." Grande asserts that his comments sparked no reaction or disruption during the breakout group meeting itself.

Grande says he made his comments to address what he viewed as discriminatory content of the presentation because he did not "think teachers should have to go through this and have their race and gender and their sexual preference, you know, targeted or pointed at." Grande viewed the presentation as an attempt to indoctrinate teachers and ultimately students, which he found objectionable. Based on the prompts, Grande believed that the presentation targeted a certain class of people, including him, and was an exercise in "critical race theory," rather than one aimed at improving the education of students.

In response to a written survey asking teachers about the presentation, Grande questioned how the training related to "art, music, or PE/health" and stated he believed the training was "part of the Superintendent's agenda to advance her career." According to Avicolli, Grande was the only person who spoke out to say the presentation was objectionable….

Following a complaint (more on the details below), Grande was investigated and disciplined (formally reprimanded, told that "future misconduct could lead to disciplinary action, including termination of employment," and required "to take a 'Sensitivity Awareness' training"). He then sued, and the court allowed his First Amendment retaliation claim to go forward.

Generally speaking, the government may not discipline an employee based on the employee's speech if

the speech is not said by the employee as part of the employee's job duties, Garcetti v. Ceballos (2006), andthe speech is on a matter of public concern, Connick v. Myers (1983), andthe damage caused by the speech to the efficiency of the government agency's operation does not outweigh the value of the speech to the employee and the public, Pickering v. Bd. of Ed. (1968).

Here is how the court analyzed these elements:

[1.] The parties dispute whether Grande was required to attend the training but it is undisputed that Grande was not required by his employer to speak during the breakout session. Although Grande spoke at a professional development training session purportedly related to student engagement, Grande's comments were not directed at how to engage students in his class. Rather, Grande voiced his opinion that an exercise at the training targeted teachers in a discriminatory manner based on their race and gender. Grande's criticism of a social identity exercise as discriminatory is not "'part-and-parcel of his concerns' about his ability to 'properly execute his duties'" as a teacher ….

[2.] Defendants assert that when Grande spoke in the breakout session he was airing personal grievances to other teachers rather than speaking on a matter of public concern. Grande asserts that his comments that the training exercise was "white bashing BS" and he felt "man bashed and white shamed" were directed at what he perceived as gender and race-based discrimination in the workplace and therefore matters of public concern.

"Speech deals with matters of public concern when it can be fairly considered as relating to matters of political, social, or general interest to the community or value and concern to the public." To identify matters of public concern, courts consider "the motive of the speaker, cognizant that speech on a purely private matter does not pertain to a matter of public concern and, conversely, that an individual motivated by a personal grievance can simultaneously speak on a matter affecting the public at large." "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record. Connick.

In Connick, the Supreme Court referred to the "right to protest racial discrimination" as "a matter inherently of public concern" regardless of whether the protest is communicated in a public or private forum. The Second Circuit has noted that it has "held repeatedly that when a public employee's speech regards the existence of discrimination in the workplace, such speech is a matter of public concern." …

[3.] Other than pointing to a single teacher's complaint, Defendants provide no argument for how Grande's speech was disruptive or potentially disruptive…. The complaining teacher said that Grande's comment made her "very uncomfortable," and was "very disturbing," "deeply affects the community" served by the Hartford Public Schools, against her "moral beliefs," and "disrespectful to the work that we are trying to start in our department." There is no question that the complaining teacher disagreed with Grande's viewpoint and was upset when she heard his comments. But "[i]n order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."

Defendants rely on Grillo v. New York City Transit Authority (2d Cir. 2002), where the Second Circuit held that an employee had not engaged in protected speech when he said at a training that certain management techniques were "women's stuff," and "women who dress like that [like the women in the building where the class was being held] should expect to be grabbed and pulled on." The Second Circuit reasoned that "even if this comment raised matters of public concern, Grillo's employer was justified in restricting his speech given the mildness of the sanction (a rebuke), the comment's tenuous connection to matters of public concern, and its significant potential for disruption." The court reasoned that "[i]n addition to its obvious provocativeness, we note that this statement advocated to future NYCTA supervisors behavior that could have subjected them and their employer to liability for violating various laws." Here, in contrast, Defendants have posited no such concerns about liability regarding Grande's comments.

Grande shared his comments in a breakout room that specifically encouraged teachers to share their thoughts and agree to disagree. The exercise appears to have been designed with the expectation that participants might feel uncomfortable, as the instructions informed participants: "It's OK to feel discomfort. This isn't easy!" Indeed, the teacher who complained about Grande appears to have anticipated discomfort about the topic of the training as she thanked Avicolli for holding the session and said she was looking forward to growing in "the uncomfortable" and seeing change in the department as a result. Accordingly, the only evidence of disruption pointed to by Defendants is the fact that a teacher felt uncomfortable at a session designed with the expectation that participants would feel uncomfortable.

Grande's comments were not made to students or parents at the school. Instead, Grande spoke via Zoom to a small group of teachers who worked at different schools. ECF No. 43-1, at 115-20. Grande had never had previous contact with the teacher who complained about him. Grande Dep., ECF No. 45-2, at 33. Defendants have not provided evidence that it was anticipated that Grande would work with anyone in the breakout room in the future. Accordingly, Defendants have not established based on undisputed facts that Grande's comments could be expected to disrupt his relationships with coworkers at his school or the operation of the District. Drawing all inferences and resolving all factual disputes in Grande's favor, as is required at this stage of the case, these circumstances raise questions about the reasonableness of assessing Grande's comments as disruptive to school operations.

Moreover, there is a disputed issue of fact regarding whether Grande was reprimanded based on a determination that his comments were disruptive or based on his speech itself…. The record suggests a range of possible reasons for Grande's discipline. It appears that Avicolli may have taken issue with the comments at least in part based on the viewpoint Grande expressed. At her deposition, Avicolli said she found Grande's comments "inappropriate" and "unprofessional" because they showed "resistance in having a growth mindset or an open perspective."

After learning of the teacher's complaint, Avicolli wrote to other teachers who had participated in the breakout room that Grande had made "inappropriate and aggressive comments" that were "unacceptable," "saddened" her, and created an "unsafe and hostile environment." Defendants say that Wilson "made the decision to discipline Plaintiff because of what he said and 'how he communicated out in the breakout room, which impacted the training session.'"

At his deposition, Wilson said that he concluded Grande used "vulgarity" in the breakout room. The reprimand letter signed by Wilson said that Grande had violated a provision of the Hartford Public School Employe Handbook by making "inappropriate and unprofessional comments." The Handbook provision referenced provides that "[e]mployee behavior that does not reflect positive social values will have a negative influence on students and fellow employees and is unacceptable." The letter stated that the misconduct finding was not based on Grande's "opinions or feelings regarding the training" but solely on the way Grande "expressed these sentiments which was inappropriate, unprofessional, and made several staff members uncomfortable."

Notably, the complaining teacher did not express discomfort over Grande saying "BS" or "bullshit." Rather, the discomfort appeared to be at least in part related to the opinion that Grande expressed. ECF No. 43-1, at 117 ("That statement deeply affects the community I serve. I cannot stand for a statement that is against my moral beliefs."). {Although Defendants point to the complaint of only one teacher as showing disruption, another teacher expressed feeling upset after the meeting. This teacher also appeared to be upset at least in part based on the viewpoint Grande expressed. ECF No. 43-1, at 118 ("He was dismissing what I was saying. I was upset after the meeting. These are important developments to further understand the discrepancy amongst us to be better educators. I felt like [ ] my opinion was shut down.").} Accordingly, there are disputed factual questions as to whether Grande was reprimanded for using "vulgarity," speaking "aggressively," or expressing an opinion that others disagreed with.

In sum, there are genuine disputes of material fact bearing on whether the assessment of the disruption caused by Grande's speech was reasonable and whether Grande was reprimanded because of a disagreement with the opinion Grande expressed rather than the disruption. See Rankin v. McPherson (1987) ("Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse … simply because superiors disagree with the content of employees' speech").

Plaintiff is represented by Logan M. Hetherington and Nathan J. McGrath (The Fairness Center) and Craig C. Fishbein (Fishbein Law Firm, LLC).

[UPDATE 9/11/25 2:41 pm: I originally erroneously said "Avicolli was investigated and disciplined," but of course that was mistaken; I've corrected it to make clear that it was Grande who was investigated and disciplined. Thanks to commenter Lee Moore and to Jordan Brown for the correction.]

The post Teacher Disciplined for Saying "Privilege" Training Involved "White-Bashing BS" Can Go Forward with First Amendment Claim appeared first on Reason.com.

[Eugene Volokh] Libels, Damn Libels, and Statistics? Pediatric Surgeon's Lawsuit Against CNN Can Go Forward

From Black v. CNN, Inc., decided yesterday by Florida Court of Appeal (4th Dist.) Chief Judge Jeffrey Kuntz, joined by Judges Spencer Levine and Alan Forst:

After CNN.com published a story about "surgeries gone wrong" at St. Mary's Hospital, CNN's Anderson Cooper 360°, a television program anchored by Anderson Cooper reported on "secret deaths" at the hospital. Cooper told his audience that these secret deaths stemmed from the surgeon leading the program, Dr. Michael D. Black, failing to conduct the surgeries safely. Cooper even asked why Dr. Black was allowed to continue operating…. Dr. Black filed a defamation lawsuit against the defendants ….

We express no opinion on the merits of Dr. Black's claim. But Dr. Black presented evidence alleging CNN and its employees published a story implying Dr. Black's allegedly deficient performance caused babies to die. The evidence is such that a reasonable jury could return a verdict for Dr. Black….

The factual summary is long, and available in the opinion; but the heart of the dispute had to do with whether CNN falsely portrayed Black as a dangerous doctor based on the raw mortality rate of his operations, which wasn't controlled for their difficulty; here is one of the allegedly libelous statements:

According to the documents CNN obtained from the state, from 2011 to 2013, [St. Mary's] performed 48 open heart surgeries on children and babies. Independently, CNN determined that six infants died, and confirmed the deaths with parents of all six children. From those numbers, CNN was able to calculate the death rate for open heart surgeries as 12.5%, more than three times the national average of 3.3% cited by [STS].

Here's the court's analysis:

[T]he main issue … [in the case] relates to CNN's use of raw morality rate. Dr. Black does not contend that CNN's calculated mortality rate was, in and of itself, "false." Rather, he argues that rate is "meaningless," because a pediatric cardiac surgery program can only be assessed using risk-adjusted data. He asserts CNN and its employees therefore used "meaningless" data to portray Dr. Black as an unsafe doctor who had caused an outsized number of deaths and life-changing complications in his patients.

The value of raw mortality rates as an evaluative tool appears, at best, ambiguous. One expert witness testified in this case that using risk-adjusted data was "desirab[le]," and "[r]aw comparisons of outcomes can be misleading," but raw mortality rates were a "starting point" which could suggest a program had "a problem." Another expert testified that the raw data would not always "fairly reflect the quality of [a] program and [its] operations …." Yet another testified that raw data was not "meaningful" without also considering a surgical program's case mix. And Dr. Jacobs—who told Cohen and Bonifield that raw mortality rates were "essentially meaningless" in their earlier reporting of the Kentucky hospital—testified it was appropriate to rely on raw data in the absence of risk-adjusted data if "contextualized properly and used carefully."

CNN argues that it had asked St. Mary's for the adjusted data and St. Mary's refused to provide it. Dr. Black counters that St. Mary's did provide the requested data in the form of the program's two-star ranking from STS [Society of Thoracic Surgeons], but CNN "just ignored" it. CNN replies St. Mary's merely provided the defendants with the phrase "two-star ranking." But it is possible St. Mary's did not provide the adjusted data because Cohen and Bonifield did not specifically ask for it. In a text to Bonifield, Cohen asked, "I know we never specifically asked for risk adjusted data, but did we ever ask for anything general like for ex[ample] to see their STS report?" Bonifield answered, "No."

In any event, the circuit court held that CNN's use of raw data, rather than risk-adjusted data, was a nonactionable dispute over methodology, citing ONY, Inc. v. Cornerstone Therapeutics, Inc. (2d Cir. 2013). In ONY, the Second Circuit held that "to the extent a speaker or author draws conclusions from non-fraudulent data, based on accurate descriptions of the data and methodology underlying those conclusions, on subjects about which there is legitimate ongoing scientific disagreement, those statements are not grounds for a claim …."

ONY is distinguishable from this case. The Second Circuit's holding applied to statements "presented in publications directed to the relevant scientific community, ideally in peer-reviewed academic journals …." That way, "the validity of the authors' conclusions may be assessed on their face by other members of the relevant discipline or specialty." Reporting published on CNN.com and Anderson Cooper 360° is not directed to the scientific community of pediatric and congenital heart surgeons. And beyond that key distinction, ONY concerned false advertising claims under the Lanham Act, not defamation claims under state law.

Several cases cited by Dr. Black are more persuasive. In one case, the court held that "[a] misrepresentation of the mortality rate for a doctor can be sufficient to support a defamation claim." Topper v. Midwest Div., Inc. (Mo. Ct. App. 2010). There, the court held that the evidence of publication of an incorrect mortality rate could support a doctor's defamation claim.

In another case {Mem'l Hermann Health Sys. v. Gomez (Tex. 2022)}, the Supreme Court of Texas explained why publication of raw (instead of risk-adjusted) mortality rates might support a surgeon's defamation claim:

Patient statistics matter to surgeons and hospitals, who understand what they both do and do not show. A more skilled cardiovascular surgeon may have a higher patient mortality rate than a less skilled surgeon only because of the higher difficulty of surgeries the skilled surgeon takes on. Healthier patients may have better surgical outcomes than those with other health issues.

A flawed data sample that fails to take these and other factors into account can produce skewed results that do not accurately reflect a surgeon's quality of care. Surgeons and hospitals know this. [STS] adjusts the raw data that it compiles for seven risk-adjusted procedures so as not to compare surgical apples and oranges. Due to concerns over sample variations, STS does not create any type of surgeon-specific mortality rate. The resulting database is a highly valuable resource for hospitals that raw data cannot serve.

Based on the summary judgment record, we believe a trial on the merits is required to decide whether CNN's use of a calculated, raw mortality rate to imply babies were dying because of Dr. Black is sufficient to satisfy a defamation claim. We also agree the circuit court erred when it entered summary judgment on Dr. Black's defamation-by-implication claims. Statements that are not false can be defamatory when they create a false impression. Dr. Black's defamation-by-implication claims should proceed to a trial on the merits as well….

Judge Forst concurred; a brief excerpt:

Mark Twain publicized the statement (the source of which is disputed): "There are three kinds of lies: lies, damned lies, and statistics." That quote provides a good description of Appellant Black's case against the defendants—they allegedly published stories (online and via the Anderson Cooper 360° television program), knowingly or with reckless disregard for the truth, defaming Black and his pediatric cardiothoracic surgery program by manipulating statistics to give a misleading description of the program's performance. There is an innate danger in basing conclusory judgments on a small sample size, and genuine issues of material fact remain unresolved at this point in the litigation (notwithstanding the fact that Black's complaint was filed in 2016)….

Thomas A. Clare, Elizabeth M. Locke, Joseph R. Oliveri, and Jered T. Ede (Clare Locke LLP) represent plaintiff.

The post Libels, Damn Libels, and Statistics? Pediatric Surgeon's Lawsuit Against CNN Can Go Forward appeared first on Reason.com.

[Ilya Somin] Fourth Circuit Rules Performing Forced Labor as a Cook for a Terrorist Organization Does Not Count as "Material Support" for Terrorism that Precludes a Migrant From Getting Asylum

[The 2-1 ruling got the right result, but not entirely for the right reason.]

NA

It has been understandably obscured by other news. But, on September 2, in Ozurumba v. Bondi, the US Court of Appeals for the Fourth Circuit ruled that performing forced labor for a terrorist organization does not qualify as "material support"for terrorism barring a migrant from applying for asylum in the United States.

The 2-1 decision broke with a 2018 ruling by the Justice Department Board of Immigration Appeals, in Matter of A-C-M, which held that even "de minimis" forced labor for a terrorist organization qualifies as material support (regular federal courts are not bound by BIA precedents). A-C-M may be the worst modern judicial decision I have seen issued in over twenty years as a legal scholar. So I am glad the Fourth Circuit ruled a different way. But I fear the majority opinion by Judge Andrew Wynn didn't pick up on the best rationale for that result.

As the Fourth Circuit recounts in detail, Izuchukwu Ozurumba, a Nigerian migrant seeking asylum, had - some years earlier -  taken a job as a seemingly innocuous cook. When he discovered that the job actually involved preparing meals for leaders of a Nigerian terrorist insurgent group - the Unknown Gunmen - he tried to quit. But members of the terrorist group forced him to stay, on pain of death. He worked without pay for several more months until he was able to escape.

Judge Wynn's majority opinion argues at length that Ozurumba's cooking wasn't significant enough or closely enough connected to acts of terrorism to qualify as "material support." In dissent, Judge Julius Richardson argues that cooking is indeed material support, because the terrorists need to be fed in order to carry out their heinous acts; he quotes the famous adage that "an army marches on its stomach."  I think Judge Wynn, overall, has the better of this debate, and he is certainly right to reject the de minimis standard adopted by the BIA in A-C-W. But both sides in this exchange have some reasonable points.

What both mostly neglect is that there is a much easier and more compelling basis for resolving this case: forced labor cannot qualify as "material support," no matter how valuable it was to the terrorists, because "material support" must be a voluntary act. As I explained in a 2021 article about the A-C-W case:

In the asylum context, providing "material support" to terrorists should be an at least somewhat voluntary activity. Slave labor surely does not qualify.

A slave laborer forced to work for terrorists is not a threat to American security, nor can she said to be a true supporter of the terrorist organization. Read in context, the word "support" should be interpreted as something akin to "willingly aid," not accidentally and surely not by performing forced labor.

The majority cited an earlier 2016 BIA decision holding that the "material support" statute does not include an exception for "duress." That ruling, too, is egregiously wrong (though less so, since it involved a far less extreme degree of coercion), and should have been overruled (as the Board had the power to do). Moreover, slavery backed by the threat of death, goes well beyond mere ordinary duress. If nothing else, equating slave labor with material support for terrorism is precluded by the longstanding canon against absurdity in legal interpretation, a rule that even most strictly textualist judges, such as the late Justice Antonin Scalia, adhere to.

The point of the "material support" rule is to keep out potentially dangerous terrorists. Slave laborers are not such terrorists; they are their victims. If anything, they are less likely to sympathize with the terrorists than people who have never had any contact with terrorist groups at all.

As noted in my 2021 article, this is an important issue affecting a substantial number of people. Tragically, a good many terrorist groups use forced labor. ISIS was a particularly notorious example. Categorically excluding all of these victims of terrorism from eligibility for asylum is perverse.

The Fourth Circuit majority avoided the duress issue, because it is not clear whether an earlier 2012 Fourth Circuit decision holding there is no "duress" exception to the relevant statute is still binding after the end of Chevron deference to executive branch agency interpretations of law (the previous ruling was based on such deference). Judge Richardson in his dissent indicates he agrees with the view that there is no duress exception at all.

The 2012 ruling involved a less severe form of duress than actual slave labor; the migrant in that case was allowed to leave, if he wanted to, though he would have had to give up his home to the terrorists if he refused to help them. Thus, the current panel should have distinguished it. In any event, the idea that there is no duress exception at all to this law is so egregiously ridiculous that the agency view did not deserve any deference even under Chevron (which required such deference only if the agency's view was "reasonable").

Some legal issues are genuinely difficult. This one just simply isn't. The idea that performing slave labor for a terrorist organization on pain of death qualifies as "material support" for terrorism is simultaneously cruel and absurd.  It's distressing that some jurists keep getting it wrong.

UPDATE: It's worth nothing that, if people performing forced labor for terrorist organizations qualify as providing "support" for terrorism, then by the same logic, many Holocaust survivors must be considered as providing "support" for the Nazis. After all, many of them were forced to work as slave laborers!

The post Fourth Circuit Rules Performing Forced Labor as a Cook for a Terrorist Organization Does Not Count as "Material Support" for Terrorism that Precludes a Migrant From Getting Asylum appeared first on Reason.com.

[Jonathan H. Adler] A Note on Toleration -- Religious and Political

[A brief reflection in light of yesterday's assassination and the political moment.]

At times like this it is worth considering and reflecting upon the history and principles of religious toleration. We often lost sight of just how demanding and challenging calls for religious toleration were in prior times.

Religious toleration was not about being nice to people with different customs or holidays, let alone approving or affirming them, but something far more profound. At heart, religious toleration was about sharing civic space with those who disagreed profoundly about the most fundamental questions of human nature and morality, who rejected divinity and truth, who spread heresy and threatened the eternal damnation of immortal souls. For a religious people, the stakes could not have been higher, and yet toleration was called for.

It may be hard to fully comprehend what principles of religious toleration demanded, but it matters. If a religious adherent could be asked to tolerate those of another faith--those who are, by definition, profoundly wrong--we should be able to tolerate those who disagree about mere matters of politics or policy.  Indeed, even if--or especially if--politics has supplanted religion for many people, toleration is essential for a free, diverse, and democratic republic to survive.

The post A Note on Toleration -- Religious and Political appeared first on Reason.com.

[Jonathan H. Adler] Ezra Klein on Charlie Kirk

["Charlie Kirk Was Practicing Politics the Right Way"]

From Ezra Klein's column in today's New York Times:

The foundation of a free society is the ability to participate in politics without fear of violence. To lose that is to risk losing everything. Charlie Kirk — and his family — just lost everything. As a country, we came a step closer to losing everything, too. . . .

You can dislike much of what Kirk believed and the following statement is still true: Kirk was practicing politics in exactly the right way. He was showing up to campuses and talking with anyone who would talk to him. He was one of the era's most effective practitioners of persuasion. When the left thought its hold on the hearts and minds of college students was nearly absolute, Kirk showed up again and again to break it. Slowly, then all at once, he did. College-age voters shifted sharply right in the 2024 election.

That was not all Kirk's doing, but he was central in laying the groundwork for it. I did not know Kirk and I am not the right person to eulogize him. But I envied what he built. A taste for disagreement is a virtue in a democracy. Liberalism could use more of his moxie and fearlessness. In the inaugural episode of his podcast, Gov. Gavin Newsom of California hosted Kirk, admitting that his son was a huge fan. What a testament to Kirk's project. . . .

Kirk and I were on different sides of most political arguments. We were on the same side on the continued possibility of American politics. It is supposed to be an argument, not a war; it is supposed to be won with words, not ended through bullets. I wanted Kirk to be safe for his sake, but I also wanted him to be safe for mine, and for the sake of our larger shared project. The same is true for Shapiro, for Hoffman, for Hortman, for Thompson, for Trump, for Pelosi, for Whitmer. We are all safe, or none of us are.

As they say, read the whole thing.

The post Ezra Klein on Charlie Kirk appeared first on Reason.com.

[Eugene Volokh] "Are You a Jew? … Are You a Zionist?"

[Federal judge allows "pattern or practice" claim of discrimination against Jews by coffee shop to go forward.]

From yesterday's decision by Judge Susan Illston in U.S. v. Harara:

For purposes of this motion to dismiss, the Court treats as true the factual allegations as stated in plaintiff's complaint and draws all reasonable inferences in plaintiff's favor….

The Jerusalem Coffee House [which Harara owns] is a business establishment open to the general public. The coffee house is located on the premises of the East Bay Community Space, "which regularly hosts events that are open to the general public for exhibition or entertainment …."

According to the complaint, on June 10, 2024, Michael Radice—who is Jewish—went to the East Bay Community Space "for the purpose of viewing the establishment for a fundraising event for his organization." Radice was wearing a dark blue baseball cap with a light blue Star of David and white Hebrew lettering. As he approached the community space from the side where the coffee house is located, a man sitting at a table in front of the coffee house asked, "Are you a Jew?" Radice answered in the affirmative. The man then asked, "Are you a Zionist?" Radice declined to respond.

The complaint alleges that "[t]he man then began shouting numerous accusations at Mr. Radice, including that he was complicit in Israel's military actions in the Gaza Strip following the October 7, 2023 Hamas attacks and guilty of 'killing children.'" As Radice began to walk away, the man stood up and asked, "Where are you going?" The complaint alleges, "Mr. Radice saw another man, whom he later learned was Harara, walk out of the coffee house and speak to the man, and the two went inside."

On August 3, 2024, Radice returned to the East Bay Community Space to attend the fundraiser for his organization. Before doing so, "he entered the coffee shop to purchase a cookie, which he hoped would be seen as a sign of goodwill." He was not wearing the baseball cap he had worn previously. Behind the counter were Harara, the man Radice had previously encountered, and a third employee. Before Radice could place his order, the man from the prior encounter stated, "You're the guy with the hat. You're the Jew. You're the Zionist. We don't want you in our coffee shop. Get out."

Harara asked Radice if he intended to purchase anything and Radice responded that he was only there to make a purchase. According to the complaint, "[o]ne of the employees responded by telling Mr. Radice to 'get out' and gestured to the front door. Mr. Radice immediately left the coffee house." "Harara and the two other employees followed Mr. Radice outside, yelling 'Jew' and 'Zionist' at him. Mr. Radice retreated north on Telegraph Avenue towards 55th Street. When he saw that Harara and the employees were continuing to pursue him, Mr. Radice stepped into the middle of 55th Street and behind a parked car to escape the men." The complaint alleges that "Harara and his employees continued to yell insults and epithets at Mr. Radice, which did not end until Mr. Radice and the board member entered EBCS."

On October 26, 2024, Jonathan Hirsch—who is Jewish—took his five-year-old son to lunch at a hot dog stand located across the street from the coffee house in Oakland. Hirsch was wearing a blue baseball cap with a white Star of David on it. Hirsch's son needed to use the bathroom, and as the hot dog stand does not have bathrooms, staff directed Hirsch to the coffee house. Hirsch was not aware of the previous incidents involving Radice. Hirsch and his son entered the coffee house, Hirsch ordered a coffee, and they then went to the back of the coffee house to use the bathroom. The employee who served Hirsch was not Harara.

According to the complaint, "After using the bathroom, Mr. Hirsch and his son sat down at a table with a chess board in the back of the coffee house and began playing chess." Within minutes, Harara "confronted" Hirsch, demanded to know whether Hirsch was a "Zionist" and whether he was wearing a "Jewish star," and then demanded that Hirsch and his son leave the premises. "At no time while in the coffee house did Mr. Hirsch say anything that would indicate his political beliefs or positions on any issue, including Israel."

Hirsch asked Harara whether he worked there, and Harara then "falsely accused Mr. Hirsch of 'causing a disruption' and 'trespassing'" and threatened to call the police. "While in the coffee house, Harara told Mr. Hirsch, 'You need to leave,' or variations on this demand, at least fifteen times." Hirsch said that he would wait for the police to arrive, and Harara then walked to the East Bay Community Space and approached an employee there (Ms. Don) to ask her help in removing Hirsch. Ms. Don went to the coffee house and "initially told Mr. Hirsch that he should accede to Harara's demand, noting that he had entered a 'Palestinian business.'" Hirsch stated that he believed Harara was discriminating against him because he was Jewish.

Two Oakland police officers arrived and Harara demanded they remove Hirsch and arrest him for trespassing. The officers did not arrest Mr. Hirsch and "[t]he police report for this incident states that 'no crime occurred' and 'this is being documented as a hate incident.'" The complaint states that "Ms. Don later told the Oakland police that Mr. Hirsch 'wasn't trying to start a conflict' and 'was being discriminated against because of his hat.'"

The officers requested to speak with Hirsch outside. According to the complaint, "As they left the coffee house, Harara said, 'Bye bye! Are you a Zionist? Bye bye!' Later, he added, 'I love Jewish people. I love them. I love them. Fuck Israel. Fuck Zionists. Fuck Zionists.'" Harara "continued to spew insults and epithets at both Mr. Hirsch and his young son" including "repeatedly calling Mr. Hirsch a 'bitch,' a 'dog,' and a 'piece of shit.'" "When Mr. Hirsch asked Harara whether he asks every customer whether he or she is a 'Zionist,' Harara responded, 'Yeah, I do.'" The complaint alleges that "Harara does not, in fact, ask all customers if they are 'Zionists.'" Hirsch did not receive the coffee he ordered and paid for.

On June 9, 2025, the United States filed the complaint, alleging that "[d]efendants' actions … constitute a pattern or practice of resistance to the full and equal enjoyment by Jewish individuals of rights secured by Title II of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a et seq…."

Defendants moved to dismiss, but the court allowed the case to go forward:

In deciding whether to grant a motion to dismiss, the Court must assume the plaintiff's allegations are true and must draw all reasonable inferences in his favor….

Title II of the Civil Rights Act of 1964 provides that "[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, … without discrimination or segregation on the ground of race, color, religion, or national origin." The Act further provides that, "[w]henever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint … setting forth facts pertaining to such pattern or practice …."

The parties agree that … the government bears the burden of proving "more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts" and must "establish by a preponderance of the evidence that [the] discrimination was the company's standard operating procedure[:] the regular rather than the usual practice." The question here, then, is whether the complaint sufficiently alleges a "pattern or practice" of discrimination against Jewish customers or whether the incidents described in the complaint are too isolated or sporadic to constitute a Title II violation. In their reply brief, defendants clarify that, "[r]ather than arguing that the number of incidents is insufficient, Defendants argue that the alleged incidents are isolated, bizarre, and dissimilar."

Defendants have cited no analogous cases in support of their position that the incidents here are too "isolated" to constitute a pattern or practice of discrimination. The case law indicates that even just a few incidents can suffice to sustain a pattern or practice claim, particularly where the facts support a conscious or purposeful bias against a particular group.

An Eighth Circuit case examining a claim of racial discrimination in housing is instructive. In United States v. Big D Enterprises, Inc. (8th Cir. 1999), the appeals court affirmed judgment entered against an apartment complex owner and his management company following a jury trial. Following an investigation by the Department of Housing and Urban Development, the United States sued under the Fair Housing Act [which is analogous in relevant part to Title VII], alleging that the defendants engaged in a pattern or practice of discriminating against minority housing applicants. At trial, several apartment managers testified that the complex owner "personally instructed them not to rent to black applicants," that he referred to black applicants by a racial epithet, and that he told the managers to tell black apartment seekers that no vacancies existed. There was also evidence at trial regarding three individuals in particular whose housing applications were denied on the basis of their race or the race of their children. The appeals court found that "the government has more than satisfied its burden of proof."

Here, the government has alleged two instances involving explicit discrimination and denial of service to two seemingly unrelated individuals who wore baseball caps bearing a Star of David…. Defendants argue that the allegations here cannot establish a pattern or practice because the complaint alleges only "two isolated, somewhat bizarre incidents[.]" However, defendants also agree that two incidents can constitute a pattern or practice of discrimination and clarify that they do not argue the number of incidents here is insufficient.

Moreover, accepting defendants' characterization of the incidents as isolated and not representative of a broader pattern would require reading facts into the complaint that the United States does not allege. For instance, defendants argue that the Hirsch incident was unlike the Radice incident because Hirsch was told to leave "because he was causing a disruption and trespassing after he had been served, used the bathroom, and played chess." Nowhere does the complaint allege that Hirsch was causing a disruption. Rather, the complaint alleges that defendant Harara "falsely accused Mr. Hirsch of 'causing a disruption' and 'trespassing.'"

Given the small number of incidents involved, this case presents a close call. But at the motion to dismiss stage, the Court must assume that the plaintiff's allegations are true and must construe them in the light most favorable to the plaintiff. Doing so, the Court concludes that the government has sufficiently alleged a pattern or practice of discriminatory conduct at this stage of the case. Whether or not the government will ultimately be able to prove its case is a question for a later day.

Charlotte Lanvers and Max Patrick Lapertosa of the Justice Department Civil Rights Division represent the government.

The post "Are You a Jew? … Are You a Zionist?" appeared first on Reason.com.

[Josh Blackman] On Charlie Kirk's Assassination

[Every time a controversial speaker steps foot on a college campus, there is a risk.]

In 2018, I was protested at the CUNY Law School. Thankfully, the students did not engage in any acts of physical violence, but I was well aware that things could have turned south quickly. Immediately after the event, I went home to see my parents in Staten Island. My mom and dad were mortified at what happened to me. They were concerned for my physical safety. They implored me to never speak at another law school again.

You can gather I did not heed their advice. I decided, for better or worse, that the messages I bring to other schools are very important, and there would be a significant loss were I to stand down. Still, every time I step foot on a campus,  I realize there is a risk. I fully recognize that most law schools lack sufficient resources to protect me as a speaker. Some schools require visitors to check in at a reception desk. Others do not. Virtually no schools have any sort of security checks at the door. I am not (yet) at the level where I need to bring my own security detail. I am truly at the mercy of whatever students decide to do.

This realization flashed before my eyes as I learned the tragic news of Charlie Kirk's assassination. Kirk became one of the most influential conservatives in America. To his credit, he traveled across the country, and was willing to engage and debate on some of the most contentious issues in society. And by all accounts, it seems that Kirk's controversial views led to his assassination.

One response to his craven killing would be to cower, and stop speaking on controversial issues. That surely is the path of least resistance, and I would not begrudge someone who takes that path. Another response is to resolve to speak more boldly about that which matters the most.

It is easy enough for people who are not on the speaking circuit to opine on how to proceed. (Much like people who have never written anything longer than anonymous comments feel qualified to attack regular bloggers.) But these people aren't the ones who have to wake up at the crack of dawn, board a crowded flight, rent a car in some foreign city, show up at an event where you are vulnerable and exposed, and then try to get some sleep at a generic hotel. The lifestyle of a public speaker may seem glamorous, but it is not. And now, with Kirk's assassination, the cost of public speaking becomes even greater.

I think FedSoc speakers, and other fellow travelers, will need to give more thought to security and safety.

I already have a host of events scheduled this semester, which I don't plan to cancel. Long-time readers may have observed that I no longer post my travel schedule in advance. I stopped doing so after the CUNY protest, so I would not make it easier for protesters to plan.

The post On Charlie Kirk's Assassination appeared first on Reason.com.

[Josh Blackman] Noem v. Perdomo Is Grants Pass Redux

[Can the government criminalize the state of being?]

I continue to mull over . This case is different from recent emergency docket orders, which typically involve questions about administrative law and presidential power. Noem considers a more traditional constitutional dispute about the Fourth Amendment. In recent years, the Court has granted very few Fourth Amendment petitions. There is one case this year about the emergency-aid exception. So perhaps it is unusual for the Supreme Court to jump back into the CrimPro fray on the emergency docket.

But taking a step back, Noem may just represent where the current Court is on matters of criminal procedure. We have seen the Justices pivot to the right on a number of issues. But so far, the Fourth Amendment has not been affected. The last big Fourth Amendment case, Carpenter, was decided in 2018, while Justice Kennedy was still on the Court!

Where is the Roberts Court now on these issues? I think the most useful analogue to understand Noem may actually be City of Grants Pass v. Johnson. That case involved the Eighth Amendment, but the issues are related: can the state prohibit the "status" of being homeless? To be sure, the majority, per Justice Gorsuch, narrowly ruled that it was the conduct of camping that was bring criminalized. But I think Justice Sotomayor's dissent made the compelling point that people without homes have to sleep somewhere, and the state's law makes it a crime to simply be. As I put it, No homeless in the park.

The analogy between Grants Pass and Noem is apt. Under federal law, the mere status of being in the country illegally is an offense--not criminal, but the distinction doesn't matter here. There is no respite from this offense, which exists wherever an alien might be found--including while working. Justice Kavanaugh writes:

The interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law. That is not an especially weighty legal interest.

I think what Justice Kavanaugh is saying here, is that the Fourth Amendment "reasonableness" inquiry must be different when the federal government is enforcing immigration laws. The fact that simply being illegal is itself an evasion of the law grants the government greater leeway in detaining suspected illegal aliens to check their immigration status. Two of the factors being considered are the person's apparent race or ethnicity, and whether they spoke Spanish with an accent. The government can consider these factors in the immigration context, even if they could not be considered in more routine law enforcement stops.

Mike Dorf wrote a post titled, "Working While Brown is the New Driving While Black." The title is provocative, to be sure, but I think it masks how the analysis here differs. A highway patrol officer should not consider a person's race, ethnicity, or language, when looking for traffic offenses, because none of those characteristics are themselves indicia of breaking traffic laws law. By contrast, factors like race, ethnicity, and language, combined with other factors, could be indicia of the person being in the United States in violation of immigration laws.

I do not think the Court is prepared to challenge longstanding precedents about racial profiling in traditional law enforcement contexts. To return to Dorf's post, a black person has every right to drive without being unlawfully detained based on their race. By contrast, according to Justice Kavanaugh, an illegal alien--or at least a person very likely to be an illegal alien--has no such right to not be detained. As Justice Kavanaugh explains, their interest in not being stopped is not "weighty."

Like in Grants Pass, Justice Sotomayor is in dissent pointing out the difficulties for people who lack the right to simply exist in their community--whether the homeless or illegal aliens. I think she effectively makes the policy argument, but the majority sees it differently.

Big picture, Justice Kavanaugh is signaling that the Court will allow the executive branch leeway to enforce federal immigration laws, even if past administrations failed to take these steps.

I highlighted this passage in my post yesterday:

To be sure, I recognize and fully appreciate that many (not all, but many) illegal immigrants come to the UnitedStates to escape poverty and the lack of freedom and opportunities in their home countries, and to make better lives for themselves and their families. And I understand that they may feel somewhat misled by the varying U. S.approaches to immigration enforcement over the last few decades. But the fact remains that, under the laws passedby Congress and the President, they are acting illegally by remaining in the United States—at least unless Congress and the President choose some other legislative approach tolegalize some or all of those individuals now illegally present in the country. And by illegally immigrating into and remaining in the country, they are not only violating the immigration laws, but also jumping in front of those noncitizens who follow the rules and wait in line to immigrate into the United States through the legal immigration process.

I think this passage, in a nutshell, summarizes how the Court will approach immigration cases. Justice Kavanaugh is at his best when he is explaining novel concepts that the Court hasn't yet gotten around to. Stay tuned till a case like this reaches the merits docket.

The post Noem v. Perdomo Is Grants Pass Redux appeared first on Reason.com.

[David Bernstein] The Racial Identity of Sephardic and Mizrahi Jews

An interesting new report was published about non-Ashkenazi Jewish communities in the US, focusing on Persian Jews in the Los Angeles area, Syrian Jews in Brooklyn, Bukharan Jews in Queens, and Sephardic Jews in South Florida. Naturally, I was especially interested in the section about how these Jews interact with American racial classifications:

Sephardic Jews themselves have varied perspectives on US racial and ethnic categories. When asked, some Sephardic Jews identify as white, others as Asian, Black, Hispanic, and Middle Eastern, but many reject US racial and ethnic categories altogether because these classifications do not reflect their experiences in their countries of origin nor represent their self-understanding.

The overwhelming majority of our interviewees—Syrian, Bukharian, Hispanic, Persian, and other Jews from the MENA (Middle East and North Africa) region—told us they do not identify with the category of Jews of color.

In my own experience talking to Jews from Israel from non-Ashkenazi backgrounds who immigrate to the US, they are bewildered when they arrive by the classification boxes they are expected to check. Their personal identities are some combination of Israeli, Jewish, country of recent origin (Iraqi, Yemenite, Bulgaria, etc), and Mizrahi. An sometimes they have very strong sub-identities with those categories (e.g., eighth generation Israeli, national-religious Jewish, Kurdish Iraqi). But when they come to the US, they are expected to choose an identity ("Hispanic," "White," "Asian,") that does not even overlap with their personal identities.

It will be interesting to see how the Biden administration's promulgation of a new MENA (Middle East and North African) classification affects American Jewish identity. My short editorial comment is that a classification that includes Israeli Jews, Egyptian Copts, Lebanese Shi'ites, Turkish Sunnis, Iraqi Chaldeans, and much more isn't a very coherent category. To a significant extent it's meant to be a proxy for Arab Americans or Muslim Americans, but a very large percentage of the cohort is either not Arab, not Muslim, or neither.

The post The Racial Identity of Sephardic and Mizrahi Jews appeared first on Reason.com.