Eugene Volokh's Blog, page 16

[Stuart Benjamin] Friday Oct. 17 12:30pm-1:30pm Zoom event: Trump, the Media, and the First Amendment

[The Trump Administration’s threats to revoke broadcasters’ licenses and President Trump’s lawsuits against media companies implicate important, and contested, Supreme Court First Amendment doctrines. Should these actions affect how courts and scholars analyze these doctrines?]

This Friday at 12:30pm ET I will be hosting an online discussion about whether actions by President Trump and his administration should affect how courts and scholars analyze the First Amendment's application to the media.

The launching point is the Trump Administration threats to revoke broadcasters' licenses, and President Trump's lawsuits against media companies, which implicate important, and contested, First Amendment doctrines—particularly those developed in Red Lion v. FCC and FCC v. Pacifica Foundation (upholding FCC regulations of broadcasters' speech), NRA v. Vullo and Murthy v. Missouri (addressing government pressure and threats of legal sanctions), and New York Times v. Sullivan (holding that in defamation suits public officials must prove that the speaker knew a statement was false or was reckless about its falsity).

You can register here or scan the QR code below.

The post Friday Oct. 17 12:30pm-1:30pm Zoom event: Trump, the Media, and the First Amendment appeared first on Reason.com.

[Jonathan H. Adler] DCCHS Oral History of Justice Ruth Bader Ginsburg

[A set of interviews with the late justice is now available]

The D.C. Circuit Historical Society has just released the Oral History of Justice Ruth Bader Ginsburg, who served on the U.S. Court of Appeals from 1980-1993. The oral history consists of eight interviews conducted by Dr. Maeva Marcus. By agreement, the interviews were not to be released until five years after Justice Ginsburg's death (or ten years after her judicial service ended).

I have not yet had the chance to go through all of the interviews, but did notice this tidbit in the last interview, from 2014.

Dr. Marcus: Is there much place for discussion other than in conference?

Justice Ginsburg: It's up to the Justices. There can be as much or as little as they want. The conference is concise. Let me explain the difference between when we get
together and when we don't. The dissenters had no time to get together in Bush v. Gore, so there were four separate dissents, vastly confusing to the press. In the Affordable Care Act case and the Voting Rights Act case, we had time to meet together and discuss what the dissenting opinion should include. After the discussion, I asked my colleagues on the dissent side if they had anything they particularly wanted me to cover, please send me a memo. It's not often that that will happen for the majority opinion, because people agree on the main lines of the opinion at conference. But
yes. Discussion continues after the conference. When a draft opinion is circulated, the Justices are more active than court of appeals judges in suggesting changes. Whoever circulates the first opinion in October knows that her colleagues will weigh in on it, sometimes heavily. But by April, people are so busy with the opinions they're writing themselves, they have less time to comment on a colleague's opinion. The chances of having your opinion released just as you wrote it are much better in April than in October.

Dr. Marcus: If you get to assign the opinion, you can override such a thing?

Justice Ginsburg: I have never assigned a majority opinion. Now I've succeeded to Justice Stevens' job in assigning dissenting opinions. He assigned most of them to himself. The other dissenters agreed that in the healthcare case and Hobby Lobby, as the senior of the four of us, I should write the dissent.

Former FCC Chair Ajit Pai highlights several other tidbits from the interviews in this Twitter thread.

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[Eugene Volokh] "Viewpoint Diversity" Requirements as a New Fairness Doctrine

I have this article forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. Here are the opening sections:

Introduction

The Trump Administration has been trying to attach "viewpoint diversity" mandates to federal funding, especially for universities. This Essay analyzes the parallels between these new proposals and a much older one: the Fairness Doctrine.

The arguments for both are similar, though of course not identical: The claim is that, when the government is

distributing benefits—whether access to scarce spectrum, or scarce grants and other federal funds—it may attach viewpoint-neutral conditions that aim tomake the benefits promote a wide range of opinion, rather than leaving it entirely to the beneficiary to choose which opinions it promotes.

"It is the purpose of the First Amendment," the theory goes, "to preserve an uninhibited market-place of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee." Lawyers who want to argue in favor of the constitutionality of viewpoint diversity mandates may thus get some help from Red Lion Broadcasting v. FCC, which upheld the Fairness Doctrine against constitutional challenge.

But the arguments against the Fairness Doctrine—ultimately accepted by the Reagan Administration's FCC in 1987, when it rejected the Doctrine—are also powerful arguments against viewpoint diversity mandates. Both the Fairness Doctrine and viewpoint diversity mandates tend to deter the targeted institutions (whether broadcasters or universities) from allowing controversial speech, or hiring or admitting controversial speakers. And both, unlike nondiscrimination mandates, are inevitably viewpoint-discriminatory in application.

To quote the FCC's 1987 decision,

"enforcement of the [Fairness] doctrine acts to inhibit the expression of unpopular opinion";"it places the government in the intrusive role of scrutinizing program content";"it creates the opportunity for abuse for partisan political purposes"; and"it imposes unnecessary costs upon both broadcasters and the Commission."

Much the same, I will argue below, is likely to be true of government-imposed viewpoint diversity mandates. If one agrees with the 1987 FCC that the Fairness Doctrine violates the First Amendment, one should say the same of the viewpoint diversity mandates. And even if one believes that Red Lion was correct in upholding the Fairness Doctrine, but agrees with the FCC that the result undermined the marketplace of ideas more than promoting it, one should take the same view of the viewpoint diversity mandates.

In what follows, I will begin (Parts I–IV) by laying out the Fairness Doctrine and proposed university viewpoint diversity mandates, and noting the analogies between how the Doctrine and the mandates have been justified. I will then discuss in Parts V–VIII how some of the problems created by the Fairness Doctrine, which ultimately led to its repeal, are likely to similarly plague the university mandates. Finally, Parts IX–X will discuss the limits of the analogy, and note how viewpoint nondiscrimination rules as well as narrow viewpoint diversity conditions on specific funding programs may avoid some of those problems.

[I.] The Fairness Doctrine and Red Lion Broadcasting

The Fairness Doctrine was part of American broadcasting law from 1938 to 1987, when it was abolished by the FCC. In essence, the Doctrine required "that broadcasters, while permitted to editorialize, must seek a reasonably balanced presentation of all viewpoints on public issues of controversial importance." Modern law would recognize this as

a speech compulsion, since broadcasters had to carry speech they would rather not, anda content-based burden on the broadcasters' speech, since including "controversial" messages would trigger an obligation to supply speech that would "balance[]" those messages.

But in Red Lion, the Court upheld this mandate. The Court stressed that broadcasters were able to broadcast because they enjoyed a tremendous advantage—a government-supplied license, which the overwhelming majority of would-be speakers lacked. Broadcasters had "no constitutional right" to such a license in the first place: They got the license because the government chose to provide it.

And when the government provided this benefit, it could require that the beneficiary "share [the benefit] with others":

There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.

This might reduce the speech opportunities of broadcasters, but it would serve public discussion more broadly:

[T]he Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium…. It is the purpose of the First Amendment to preserve an uninhibited market-place of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee…. It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.

And such government-imposed requirements, the argument went, would properly prevent "station owners and a few networks" from having "unfettered power … to communicate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agreed":

There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. "Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests."

Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airways anything but their own views of fundamental questions.

[II.] Calls for Viewpoint Diversity in Universities

Now let us consider the Trump Administration's April 2025 demand to Harvard, sought as a condition of Harvard continuing to get federal funds:

By August 2025, the University shall commission an external party, which shall satisfy the federal government as to its competence and good faith, to audit the student body, faculty, staff, and leadership for viewpoint diversity, such that each department, field, or teaching unit must be individually viewpoint diverse….

Harvard must abolish all criteria, preferences, and practices, whether mandatory or optional, throughout its admissions and hiring practices, that function as ideological litmus tests. Every department or field found to lack viewpoint diversity must be reformed by hiring a critical mass of new faculty within that department or field who will provide viewpoint diversity; every teaching unit found to lack viewpoint diversity must be reformed by admitting a critical mass of students who will provide viewpoint diversity.

The Administration's October 2025 proposed "Compact for Academic Excellence in Higher Education" also calls for universities to promote a "broad spectrum of ideological viewpoints." The Compact states, in relevant part, that funding recipients must "commit themselves" to "fostering a vibrant marketplace of ideas on campus," to engaging in a "rigorous, good faith, empirical assessment of a broad spectrum of viewpoints among faculty, students, and staff at all levels," to "sharing the results of such assessments with the public," and to "seek[ing] such a broad spectrum of viewpoints not just in the university as a whole, but within every field, department, school, and teaching unit." It also states that "A vibrant marketplace of ideas requires an intellectually open campus environment, with a broad spectrum of ideological viewpoints present and no single ideology dominant, both along political and other relevant lines."

It remains to be seen whether the Compact proposal demands enforceable viewpoint diversity mandates, or whether it sets forth viewpoint diversity as an aspirational goal, the way one might set "excellence," "openmindedness," "fairness," and the like as aspirational goals. But the April 2025 letter suggests that the Administration may insist that the viewpoint diversity mandate would be seen as enforceable and not just aspirational.

To be sure, conditions on government funding must generally be viewpoint-neutral, at least where—as with the bulk of federal money that indirectly goes to universities—they are aimed at promoting a diversity of private views (rather than a programmatic governmental message). Even when it comes to government funding,

Viewpoint discrimination is … an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.

Although acknowledging that the Government is not required to subsidize the exercise of fundamental rights, … we [have] reaffirmed the requirement of viewpoint neutrality in the Government's provision of financial benefits.

This requirement of governmental viewpoint neutrality is especially strong when it comes to universities: Viewpoint-based rules involve governmental examination and classification of ideas, which would lead to a "corollary" "danger … to speech from the chilling of individual thought and expression," a "danger [that] is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition." But presumably the argument in favor of viewpoint diversity requirements would be that they do not prefer particular viewpoints.

[III.] The Common Links

So far, we can see close analogies between the arguments in favor of the Fairness Doctrine and proposed viewpoint diversity mandates attached to government funding for universities (or other institutions):

The government is providing a tremendously valuable underlying benefit, whether a broadcast license or massive funding.This benefit gives the beneficiary much greater power to speak: It allows broadcasters to speak via the airwaves or promotes universities' speech via their faculty members (in classrooms and outside them).The government argues that it wants to ensure that "views and voices which are representative of [the] community" would not "be barred" from the airwaves or the university.The government promotes this diversity to increase opportunities to speak, and not just to prevent situations where some voices are completely barred altogether from all opportunities to speak: The Fairness Doctrine required each broadcast station to provide balanced coverage, regardless of whether other stations in the same market offer a rival voice. The Doctrine also aimed to provide such balance as "to all discussions of issues of importance to the public" and not just on a few. University viewpoint diversity views would likewise apply to each department and presumably would require diversity on many issues.The government argues that it is acting "to preserve an uninhibited market-place of ideas" and to prevent "monopolization of that market," including by "private" recipients of government benefits, and more broadly to avoid "unlimited private censorship operating in a medium not open to all."

To be sure, Red Lion discussed "the scarcity of radio frequencies." That scarcity created the need for licensing, so as to prevent "the chaos which ensued from permitting anyone to use any frequency at whatever power level he wished." Broadcast licensees also received not just billions of dollars in grants, but rather the legal right to broadcast—a right that nonlicensees entirely lacked. One might thus distinguish Red Lion as applying only in situations where the government is indeed creating a legal "monopolization" of at least particular frequencies, and thus making the medium "not [be] open to all."

Indeed, the Court has largely cabined Red Lion to the specific context of over-the-air radio and television broadcasting, and some Justices have cast doubt on it even there. Red Lion thus wouldn't be an entirely solid precedent for supporters of ideological diversity conditions to rely on.

This having been said, it's probably the strongest such precedent, and the similarities are more significant than the differences. First, in both situations, the government gives institutions massive benefits, which give the beneficiaries vastly greater access to listeners, viewers, faculty, and students. Someone who lacks a broadcast license can still try to reach an audience through, say, leafletting or organizing public speeches, but those options will be much less effective at reaching a mass audience. Likewise, a university that doesn't receive federal funds can still try to attract faculty and students, but that will be much harder to do.

Second, in both situations, the government's goal is to make sure that those benefits don't unduly skew the "market-place of ideas" in favor of the views favored by the beneficiary's operators. Indeed, scarcity of spectrum slots is a close cousin of the limited availability of federal grants, which are often distributed on a highly competitive basis, and which disproportionately go to elite institutions. Just as "100 persons [may] want broadcast licenses [when] there are only 10 frequencies to allocate, so 100 universities may want federal grants when there is only funding for 10 grants to go around.

Defenders of the viewpoint diversity requirements can argue that when the government is distributing taxpayer funds this way, it is entitled to try to make sure that the funds end up promoting a "widest possible dissemination of information from diverse and antagonistic sources." "[T]he First Amendment," Red Lion reasoned, "confers no right on licensees … to an unconditional monopoly of a scarce resource which the Government has denied others the right to use." "It does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern."

Likewise, the argument would go, the First Amendment confers no right on universities to channel scarce government-provided funds—which the Government denies to many other grant applicants—into promoting a narrow range of university-preferred views. And "[i]t does not violate the First Amendment to treat [universities] given the privilege of using scarce [federal grants] as proxies for the entire community, obligated to [promote a diversity of views on] matters of great public concern."

Finally, the government may also assert a non-scarcity-related rationale for a viewpoint diversity mandate as well: Because the government is spending funds, it can attach conditions that aim to ensure that the funds are spent productively. And it seems at least plausible that a university department that has more viewpoint diversity would, all else being equal, produce better research and teaching, by reducing the dangers of echo chambers and other forms of groupthink.

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[Eugene Volokh] What Alleged Behavior Was Constitutionally Protected Against Harassment Liability in CUNY Hunter College Case

As I noted earlier this morning, Friday's Report and Recommendation in Garrett v. City Univ. of N.Y. (S.D.N.Y.) (written by Magistrate Judge Robert Lehrburger) discusses the limits the First Amendment imposes on "hostile work environment harassment" law (as well as the similar rules as to education, public accommodation, and housing). The report concludes that the First Amendment generally protects material on matters of public concern that isn't directly targeted to particular offended people based on their religion, race, sex, etc., but that other speech and conduct that is severe or pervasive enough to create a hostile work environment based on those attributes may be actionable.

The opinion is long, so I've divided it into parts. Another post discusses the items that the court concluded weren't protected by the First Amendment, at least assuming plaintiff's allegations were correct; the court allowed the case to go forward based on them. This post discusses the items that the court concluded were protected by the First Amendment and couldn't themselves form part of the harassment case (though they might bear indirectly as evidence of other factors, such as CUNY's motive); I've marked some especially noteworthy passages in bold:

A good deal of what Garrett complains about is speech that involves matters of public concern and falls outside the scope of Title VII. In making this determination, the Court need not circumscribe the heavily contested boundary between sincere political debate on the Israel-Palestine conflict and expressions of religious or ethnic hatred. That question is better left for others. The First Amendment's sweep is broad, and the application of Title VII can be resolved without opining on these issues.

{The Court's analysis should not be understood as discrediting any emotional distress that Garrett has experienced as a Jewish person at CUNY. Political speech can be ugly and painful but remain protected under the First Amendment and outside the scope of Title VII. See Snyder v. Phelps (the First Amendment sometimes immunizes "hurtful speech on public issues [from liability] to … [avoid stifling] public debate").} …

[1.] Campus Protests

The Complaint alleges "constant harassing [and antisemitic] protests" on Hunter's campus following October 7, 2023. In general, "exposure to" peaceful protests on matters of public concern—regardless of their offensive content, disruptive nature, or technical "violat[ion of] … campus rules"—"without more, does not amount to harassment." Landau (observing "one goal of public protests is to stir strong feelings on the part of passersby"); Gartenberg I (finding not actionable a "walkout" and protest where demonstrators, many with their faces covered, chanted controversial anti-Israel slogans). This includes the "anti-Israel protest[s]" in the Faculty Senate and unspecified protests in other unauthorized campus locales. The Faculty Senate protests, for example, were reasonably directed toward public debate, especially considering the Faculty Senate is CUNY's principal governance body and, thus, an "obvious center for protest."

As the court in Gartenberg observed, however, even once-peaceful protests may deteriorate into actionable harassment when, for example, protestors begin targeting individuals with "threatening or humiliating conduct." The Court will now consider [which] of the CUNY protests did so….

Garrett's effort to liken CUNY's "Day of Rage" protest to the Gartenberg library incident … is unavailing. Though the protest's title and CUNY's response (suspending campus activity) demonstrate the protest's "inflammatory and potentially dangerous nature," the Complaint is devoid of allegations regarding what, if any, actionable discriminatory conduct ensued at the protest. Contrary to Garrett's suggestion, Title VII cannot be interpreted as requiring CUNY to preemptively "shut[] down" a lawful protest based on its professed viewpoint. See R.A.V. v. City of St. Paul (1992) ("The First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed"); Street v. New York (1969) ("It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers"); University of Maryland Students for Justice in Palestine v. Board of Regents of the University System of Maryland (D. Md. 2024) (public university's viewpoint-based decision to revoke pro-Palestinian group's permission to hold a peaceful demonstration on October 7, 2024, was likely unconstitutional "even if [the university] … did anticipate on-campus turbulence")….

[T]he Complaint [also] describes protestors wielding signs with threatening and violent imagery, including "blood dripping from the Star of David and other Jewish symbols." The signs—like almost any message distilled to the size of a protest placard—may have several meanings, intended or not. The Star of David with blood dripping, for example, may express the notion that Israel, whose flag includes the symbol, has proverbial "blood on its hands." Alternatively, blood dripping from a Star of David could be "construed as a genuine threat targeting" Jews, including Garrett, who identify with the symbol.

At the same time, the mere display of signs at a public protest is a "generally accepted method of communication," suggesting it cannot constitute harassment. Gartenberg I; see also R.A.V. (distinguishing between "cross burning … directed … to a single African-American family trapped in their home …, a crude form of physical intimidation" and "[b]urning a cross at a political rally [which] would almost certainly be protected expression") (Stevens, J., concurring). In her opposition, Garrett notes that Gartenberg found actionable certain "[s]igns denigrating Jews in Israel." The actionable signs in Gartenberg, however, "defac[ed] the windows of a main [Cooper Union] building" and were thus an example of the "extremely serious" graffiti and vandalism which covered the school's campus. When demonstrators "displayed some of the same signs" at a peaceful protest "on the sidewalk outside the [same Cooper Union building]," the Gartenberg court held that the protest was not actionable harassment. Gartenberg II. The same principle applies here.

{At oral argument, counsel for Garrett suggested the signs may amount to incitement and thus "fall outside the First Amendment rubric altogether." Not only is this argument—being "raised for the first time at oral argument"—waived, but it also has no merit. The First Amendment incitement doctrine is narrow, encompassing only speech which "is directed to inciting or producing imminent lawless action and is likely to" do so. Brandenburg v. Ohio (1969) (distinguishing incitement from "mere advocacy" of illegal conduct, including violence against racial minorities); see Million Youth March, Inc. v. Safir (S.D.N.Y. 1999) ("messages of hate and [calls for violence] conveyed by several of the speakers at last year's rally" unlikely to amount to incitement, regardless if the rally did, hours later, descend into disorder). The Complaint, which fails to elaborate on the context in which the signs were displayed, includes no suggestion that the signs meet the Brandenburg standard. See Hess v. Indiana (1973) ("since there was no evidence or rational inference from the import of the [challenged] language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished" as incitement).}

Both CUNY, and the Government in its Statement of Interest, observe that CUNY could, consistent with the First Amendment, prohibit substantially disruptive speech on campus, possibly by enforcing CUNY's public order policies [citing Tinker v. Des Moines Independent Community School District (1969)]. That observation, even if correct {See Radwan v. Manuel (2d Cir. 2022) (noting Tinker may have limited application in higher education); Students for Justice in Palestine v. Abbott (W.D. Tex. 2024) (recognizing Tinker may permit universities to curtail speech which would create a "substantial disruption in a university environment," but noting the speech restrictions cannot be unnecessarily viewpoint-based)}, is beside the point; there is a distinction "between what … [an] employer can do to [to suppress certain speech] and what the government can force the employer to do." Volokh at 1817 (emphasis added); see also Gartenberg II ("the fact that schools have ways of addressing harassment … does not mean that such expression is unlawful harassment in the first place").

Certainly, there are instances where a university—acting as an employer under Title VII—may have a responsibility to enforce its policies and act on disruptive speech because of its hostile or abusive nature; that does not mean, however, that the speech is harassing or shorn of First Amendment protection merely because it is disruptive or violates a university policy. {University policies—such as time, place, or manner restrictions on protest—may be probative of whether a means of communication is "generally accepted," and thus what a reasonable person would understand as harassment. An employer's policy alone, however, does not define the boundaries of Title VII. Here, with the exception of the demonstrations addressed above (see, e.g., Compl. ¶¶ 64 (alleging protestors violated Faculty Senate rules), 88 (alleging Hillel protest at campus entrance violated school's Public Order Policy), Garrett's description of protests at Hunter that violated campus policy regarding demonstrations are conclusory and undifferentiated. (See e.g., Compl. ¶ 8 ("Regularly, Plaintiff faced an onslaught of antisemitic protests conducted in blatant defiance of CUNY Hunter's policies governing demonstrations").) The Court cannot extrapolate or reasonably infer from these generalized allegations that every, or any specific, demonstration among the "constant harassing protests" was conducted in a non-generally accepted manner and constituted harassment. See Gartenberg I (declining to find actionable harassment where general allegations included "no factual support for its assertion that any of [the protest] messages were intended to target particular Jewish students, as opposed to efforts to communicate a political message to the Cooper Union community at large").}

[2.] Israelism And The History Club

The screening of a film and a student group's decision to read "works of known antisemitic writers" are not actionable. These episodes involve the expression of viewpoints through conventional forms of academic and political discourse. See Gartenberg I (requiring students to attend a speech criticizing Israel's "weaponization of language" is "unquestionably a protected exercise of [the university's] academic freedom")….

[A] rabbi was invited to campus as a "pro-Israel speaker … [to] participate in [the film's] post-screening discussion." In other words, the rabbi was invited to participate in a debate on a matter of public concern. A professor's demand that the rabbi answer a question that he professed he could not answer, and the crowd's disagreement, even if rudely expressed, are reasonably understood as contributing to that debate. See Rodriguez v. Maricopa County Community College District (9th Cir. 2010) ("doubt[ing] … college professor's expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment and justify the judicial intervention"). Disagreement on an issue of public concern in an academic setting—even if emphatically expressed—is not actionable harassment. See id.; Landau ("Even if offensive and received by some as antisemitic, the lecture was community at large").

[3.] Flyers, Open Letters, Mass Emails, And Social Media Posts

The dissemination of flyers, open letters, mass emails, and social media posts on matters of public concern that were not targeted at any particular individual qualify as core political speech outside the scope of Title VII. Rodriguez (finding "racially-charged emails" sent to college distribution list were non-actionable speech and "the effective equivalent of standing on a soap box in a campus quadrangle and speaking to all within earshot; not conduct targeted by harassment laws"); Landau ("Peaceful distribution of political materials [on a college campus] is a standard method of political expression directed at the public"); see also Kopmar ("Resolution [criticizing Israel with intense and provocative rhetoric] constitutes pure political speech" outside the scope of Title VII).

The following thus do not constitute actionable harassment even though the content may be antisemitic and hateful: social media posts by student organizations which, inter alia, purported to "debunk[] mass rape by Hamas on October 7th" and called on followers to "escalate by any means necessary"; an open letter "praising the … Hamas terror attack"; unspecified "antisemitic stickers" found on campus; and, flyers which supported the Boycott, Divestment and Sanctions movement and claimed "Israel is a state built to put Jews over all others." See Gartenberg (allegations about protest slogans, flyers, and other expressions related to the ongoing Israeli-Palestinian conflict were not actionable because the complaint "offers no factual support for its assertion that any of these messages were intended to target particular Jewish students, as opposed to efforts to communicate a political message to the [university] community at large"); Landau (finding not actionable communications calling for the "dismantling of the apartheid settler colonial state of Israel, by all means necessary")….

[T]he photographs of Garrett published by the student group on social media [also cannot form part of the basis for liability.] The Complaint fails to describe the nature of or context surrounding the photographs. (See Compl. ¶ 98 (alleging only that "[t]he group also published photographs of Plaintiff on social media").) Were the photographs posted in connection with commentary? If so, what was the content of that commentary? How was Garrett depicted in the photographs? Were the photographs altered in any way? Without that context, the Court lacks a basis to reasonably infer the social media post or posts were targeted harassment, an expression on matter of public concern, or something else altogether. Such vague pleading does not suffice….

{Although the Court finds some of the incidents and conduct, as alleged by Garrett, do not qualify as actionable harassment or, as discussed below, imputable to CUNY, that does not mean they disappear from the case. First, those events, particularly depending on CUNY's response or lack of response to them, may still be probative of discriminatory intent. See Gartenberg I; see generally Wisconsin v. Mitchell (1993) ("The First Amendment … does not prohibit the evidentiary use of speech … to prove motive or intent"). Second, discovery or amended pleading may provide information that would transform a non-actionable or non-imputable event into one that is actionable and imputable.} …

The post What Alleged Behavior Was Constitutionally Protected Against Harassment Liability in CUNY Hunter College Case appeared first on Reason.com.

[Eugene Volokh] What Alleged Behavior Could Lead to Liability for Anti-Semitic Harassment in CUNY Hunter College Case

As I noted earlier this morning, Friday's Report and Recommendation in Garrett v. City Univ. of N.Y. (S.D.N.Y.) (written by Magistrate Judge Robert Lehrburger) discusses the limits the First Amendment imposes on "hostile work environment harassment" law (as well as the similar rules as to education, public accommodation, and housing). It concludes that the First Amendment generally protects material on matters of public concern that isn't directly targeted to particular offended people based on their religion, race, sex, etc., but that other speech and conduct that is severe or pervasive enough to create a hostile work environment based on those attributes may be actionable.

The opinion is long, so I've divided it into several parts. Another post discusses the alleged behavior that the court concluded were protected by the First Amendment, while this post discusses the alleged incidents that are "actionable in the sense that they are within the reach of Title VII and not merely political speech protected by the First Amendment":

[1.] Accepting all allegations as pled and drawing all reasonable inferences in Garrett's favor, the anti-Hillel protest plausibly crossed the line into targeted harassment. President Kirschner described the protest as "reach[ing] a new level of aggression by targeting Hillel" and "personal[ly] targeting Jewish students." Many students—as well as Garrett—felt "compelled" to leave campus.   While protestors are free to criticize Hillel, or any campus organization for that matter, with strong and even offensive language, antidiscrimination law does not permit an employer to stand idly by when, as here, protestors "isolated or targeted individual[s]" in the protected class. Landau.

To be sure, discovery may show the protest did not involve threatening or humiliating targeted conduct. But given President Kirschner's own description of the event as "personal[l]y targeting" Jewish students and reaching a "new level of aggression" that compelled students and Garrett to leave campus, the Court concludes that Garrett has, at this early stage, plausibly pled actionable harassment from the Hillel protest.

{Generally, a plaintiff cannot transform political speech into actionable harassment by alleging, in a conclusory fashion, that the protected expression was targeted or otherwise actionable. See Gartenberg ("conclusory suggestion that [certain] speech included [actionable] 'threats of violence' … does not plausibly allege that any of this expressive conduct constituted" harassment). Here, however, the Complaint relies on Hunter President Kirschner's own account of the event.}

[2.] Garrett alleges a student was "physically assaulted, as his pro-Israel sign was forcibly taken from him" at one protest.  This allegation is actionable because the "First Amendment does not protect violence." NAACP v. Claiborne Hardware Co. (1982).

[3.] [T]he Complaint … alleges that a student grabbed a microphone from the rabbi's hand [at the Israelism screening, to which the rabbi had been invited as a debater], and that the rabbi was "led away … for his safety with security by his side" as the "crowd … hurl[ed] abuse at him" following the panel. (Compl. ¶¶ 74-75 (describing the incident as a "mob attack"); see also Opp. at 1 (describing the rabbi being "accosted" by students).) Making all reasonable inferences in Garrett's favor, the rabbi's treatment at CUNY went beyond political disagreement. The use of physical force by a student to take the microphone from the rabbi and the need for security to escort the rabbi from the auditorium for his safety is suggestive of actionable harassment. Cf. Gartenberg I (finding "mob" attack on library actionable where there was "compelling support for [plaintiffs'] allegation that this incident was threatening or humiliating," including that some Jewish students were escorted away from the scene by security).

[4.] The Complaint plausibly alleges three episodes in which individual Jewish professors, including Garrett, and students at CUNY were subject to targeted antisemitic commentary: the Lecturer's in-class question singling out a Jewish student about how she felt "about 'the genocide in Gaza'"; Professor Soyer's remark questioning Garrett's faith and mentioning "rich Jews" to two colleagues; and a student's email to a Jewish professor comparing Jews to "Satan worshipers."  {A professor's discussion and questioning of students about controversial subjects, including asking what they think about genocide and what they may consider genocide, may well be perfectly appropriate and protected academic fodder. Here, however, the Complaint insinuates that the Lecturer singled out a Jewish student in an accusatory manner.} Each of these incidents falls within the zone of targeted speech that may be deemed harassment rather than protected political speech. See, e.g., Novio v. New York Academy of Art (S.D.N.Y. 2017) (offensive "comments in class directed at [student]").

The student group's email making a "false and defamatory" claim that Garrett "potentially disseminated decontextualized clips of students … to deliberately portray [them] as antisemites" is similarly actionable.  CUNY correctly points out that the email was directed to the community at large through a generally accepted method of communication and was not physically threatening. However, other aspects of the communication suggest targeted harassment. First, the email specifically mentions Garrett and, given the wide distribution, could well be humiliating. That alone, however, would likely be insufficient: the First Amendment provides speakers with latitude to criticize others, particularly authority figures, in the context of a genuine public debate. See Hustler Magazine, Inc. v. Falwell (1988) ("political debate encouraged by the First Amendment is bound to produce speech that is critical of … public figures").

Garrett's allegations, however, go one critical step further. Although couched in terms of what "potentially" happened, the student group's statement about Garrett was allegedly "false and defamatory," thus diminishing the constitutional protection it might otherwise receive and exacerbating its humiliating effect. See Landau ("outlandish claim that [student-plaintiff's statement] … was a contributing factor to the tragic shooting of a Palestinian Haverford student" made in widely-circulated document was actionable under Title VI); Jew v. University of Iowa (S.D. Iowa 1990) ("Free speech and academic freedom considerations might preclude Title VII liability if the … rumors [that a professor was having a sexual affair with her department head] were true") [what a name for a relevant case, though it appears the plaintiff there was likely not actually Jewish -EV]]; see generally Hustler ("False statements of fact are particularly valueless" to public debate and may, in certain circumstance, give rise to civil liability). Put another way, circulating false accusations about an employee that implicate a protected characteristic can be actionable harassment.

{The Complaint fails to specify exactly how the student group's caveated accusation was "false and defamatory."  For instance, did Garrett not disseminate clips of students? Did she disseminate clips without the necessary context? Or, perhaps discovery will show that the statement was not false at all. Still, for purposes of the instant motion, the Court must accept the allegations contained in the Complaint as true and make all reasonable inferences in Garrett's favor.}

[5.] CUNY does not contest that the swastikas graffitied on posters commemorating Jewish hostages in Gaza are actionable under Title VII. Similarly, CUNY does not contest the actionability of its refusal to provide security at Garrett's events or to permit the school's Jewish community to light menorahs on campus.

The Magistrate Judge also recommended that the court find that CUNY was potentially liable for some of the incidents:

Employers are presumptively liable for the [harassing] actions of a supervisor. Where the harasser is not a supervisor but rather a co-worker or non-employee, a negligence standard applies. That is, the non-supervisor's conduct may be imputed to the employer where "the employer's own negligence permits or facilitates [the] discrimination."

You can read the full opinion for more detail on where the report concluded such supervisor actions, or CUNY negligence, was present.

The Magistrate Judge also concluded that "the remaining allegations plausibly establish a severe or pervasive hostile work environment" (the threshold that must be met to show actionable harassment); again, details on that can be found in the opinion. And the judge concluded that Garrett had adequately alleged that the environment was hostile to her because she was Jewish:

CUNY asserts that the alleged conduct—actionable or otherwise—was not "prompted by plaintiff's religion" and "instead rooted in the conflict between Israel and Hamas." … [But t]he Complaint clearly, repeatedly, and plausibly alleges that the challenged conduct was hostile and discriminatory to Garrett (and other Jews) because of her religion, and "reflected … attack[s] on [Garrett] as a [Jew]." See also Gartenberg I (finding similar alleged conduct was, at least plausibly, "particularly offensive to Jews and intended to provoke their reaction as Jews").

For example, CUNY's refusal to permit a menorah lighting on campus, "a cherished Jewish tradition," while permitting a Ramadan event, as well as its failure to provide security for Garrett's events on Jewish culture, would be uniquely offensive and plausibly discriminatory to Garrett and other Jews at CUNY who hoped to celebrate their religion and heritage. And, obviously, antisemitic remarks directed at or regarding Garrett and other Jewish faculty members, and swastikas graffitied across campus created an environment that was hostile "because of" Garrett's protected characteristic….

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[Jonathan H. Adler] How Viewpoint Diversity Can Help Protect Academics from Themselves (and Perhaps Help Heal Our Civic Culture Too)

[The lack of intellectual pluralism undermines the truth-seeking function of the university.]

Ohio State Professor Michael Clune, who caused a bit of a stir in academia with hhis December 2024 essay "We Asked for It," has a new essay in the Chronicle of Higher Education responding to a recent critique of the push for heterodoxy and intellectual pluralism on campus. The essay, "Professors Can Be Ignorant. That's Why We Need Viewpoint Diversity," begins:

It's hard to succeed as an educator when you don't know what you're talking about. And yet many professors of the humanities and social sciences — teaching and writing on topics such as capitalism, police reform, and sexuality — fail a simple, classic test. To understand your own position, you must be aware of, and be able to respond to, objections to that position. We need greater diversity of political and social views in academe not because diversity is a higher value than truth, but because academics' intellectual isolation has compromised their capacity to pursue truth.

In an academic environment in which objections to the reigning political, social, and cultural assumptions are castigated as beyond the pale of academic discussion, professors find themselves dangerously isolated, ignorant of how their students and fellow citizens view their behavior. Discussing faculty posts on social media about the assassination of Charlie Kirk, a student at the University of Texas at Austin writes: "I've learned that there are people on my college campus who would cheer if someone like me, a young person who openly expresses my traditional Christian beliefs and right-wing political views, were murdered."

This is not the lesson most faculty members intend to teach, but many professors simply don't know how they appear to nonacademics and don't know how to respond appropriately to ideas that differ from their own. Professors in many fields tend to think that disagreement with their disciplines' consensus (on, say, police reform, capitalism, or gender) is equivalent to Holocaust denial, or, as Lisa Siraganian puts it in a recent essay in Academe attacking viewpoint diversity, denying the double-helix model of DNA.

As Clune discusses (and those of us with heterodox views in academia often experience) the lack of intellectual diversity in many departments and disciplines produces an epistemological failure and undermines academic inquiry, and this is particularly problematic in the humanities and social sciences.

the best case for intellectual diversity is a pragmatic one. While the sciences have hardly been immune to ideological distortions, not all fields suffer equally from a lack of different political perspectives. Some fields may not suffer any epistemological consequences at all. The goal of the university is the pursuit of truth; the pursuit of intellectual diversity is best seen as a means to that end. Physics or civil engineering may not be seriously compromised by ideological conformity; whether a biochemist is conservative or liberal may well have no effect at all on her teaching and research.

But I have come to believe that the questions asked by historians, literary scholars, and political scientists — which necessarily touch on matters of intense political controversy — cannot be adequately posed or answered in an atmosphere of ideological closure. . . .

The social sciences may well survive widespread epistemological failure and ideological closure, but the humanities may not be so lucky.

I fear that colleges' response to the political distortions of humanities disciplines will be to further marginalize and defund these disciplines. But the very feature of the humanities that renders them vulnerable to distortion by ideological conformity is also the source of their immense value to the educational enterprise. We are, ultimately, after human truths — the meaning of happiness, the nature of revolutions, the right way to organize a government, the best way to interpret a text or to judge a work of art. Our work engages passions and values that animate everyone's lives.

To see beyond our passions, to step outside our prejudices, to suspend our most powerful commitments — this is a discipline, and a difficult one. It is the humanities' proper discipline, and at this moment it requires welcoming new perspectives and voices into our classrooms and lecture halls. The creation of spaces in which the humanistic pursuit of truth can truly flourish may also be what this violent and divided nation most needs from higher education.

One way to address these concerns may to take Professor John McGinnis' advice and focus more on teaching students to disagree productively. This will help universities combat epistemic closure, and perhaps help heal our civic culture as well. In theory, law schools already do this, but the lack of meaningful ideological diversity hampers such efforts from being more effective.

An educational system should aspire to make citizens pass an "ideological Turing test," demonstrating the ability to present the strongest case for views they reject so persuasively that an examiner cannot infer their own. A person who can do so earns rapport across the aisle by grasping the full force of the arguments that motivate opponents.

Sadly, education at all stages today hinders the ability to pass this kind of test. . . .

Universities can still bend the civic arc if they return to their first vocation: truth-seeking through contestation. A democracy only functions well if its elites model respectful disagreement. That kind of respect is the first step to creating a political atmosphere free from fear and threat. This atmosphere is itself conducive to the willingness to compromise on which pluralist democracy depends.

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[Josh Blackman] Today in Supreme Court History: October 12, 1977

10/12/1977: Regents of the University of California v. Bakke argued.

The Burger Court (1975-1981)

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[Eugene Volokh] Sunday Open Thread

[What's on your mind?]

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[Josh Blackman] Even With A Skewed Sample Size, The New York Times Survey Of Federal Judges Reveals A Brewing Judicial Crisis

[And once again, you know who is to blame.]

The New York Times surveyed nearly four-hundred federal judges, asking them about their views of the Supreme Court's emergency docket. I agree with co-blogger Jon Adler that the sample size was skewed, and the small number of negative responses likely came from those judges who are "most unhappy with or critical of the Supreme Court." The biggest takeaway is that most judges ignored the survey, as they should have.

Still, I think the limited results reflects a brewing judicial crisis. After a years-long effort to delegitimize the Supreme Court, members of the Judiciary are now voicing these same concerns in off-the-record interviews, and from the bench.

Some of these judges may have simply lost their way, such as Judge Young in Boston. But other judges such as Judge Burroughs are speaking on these issues publicly.

The Times offered this smattering of quotes:

In interviews, federal judges called the Supreme Court's emergency orders "mystical," "overly blunt," "incredibly demoralizing and troubling" and "a slap in the face to the district courts." One judge compared their district's current relationship with the Supreme Court to "a war zone." Another said the courts were in the midst of a "judicial crisis."

I am almost certain the "war zone" is referring to the District of Massachusetts, which has gotten reversed many times.

Let's take a step back. The federal judiciary has a fairly well-defined hierarchy. Each federal district court has a Chief Judge, and each federal circuit court has a Chief Judge. If a member of the judiciary has a grievance with the Supreme Court, he can share that message with his Chief Judge. And, presumably, the Chief Judge can raise the message up the flagpole to the Judicial Conference. And who presides over the Judicial Conference? The Chief Justice of the United States.

We know from a leak that Chief Judge Boasberg raised concerns from other judges to Chief Justice Roberts. And what was Roberts's response? He downplayed the concerns, and said that Trump thanked him at the State of the Union for administering the oath.

If Chief Justice Roberts has adequately addressed the concerns of lower-court judges, I doubt those judges would feel compelled to talk to the press. I doubt the Chief is doing enough privately to assuage concerns. I have also heard from many judges over the years that the Chief runs the Judicial Conference with an iron fist. There is a discussion list, and any item not on the list cannot be discussed. There is no open-ended discussion. Indeed, the ill-fated judicial reassignment policy was not subject to any debate. We saw a glimpse of this parliamentary stranglehold in a piece about Roberts as chancellor of the Smithsonian. Perhaps in normal times, these Roberts Rules of Order make for an efficient process. But in times of crisis, the Judicial Conference must be a deliberative body that reflects the views of the entire judiciary, and not the agenda of the Chief Justice.

The above speaks to what the Chief has done in private. But I can say with a high degree of confidence that the Chief is not doing enough publicly to assuage concerns. Roberts maintains the same playbook of issuing short, summary orders that fail to adequately explain the Court's reasoning. Perhaps Roberts has the same view as Justice Barrett, and is afraid of "locking in" the Court on the merits.

Frankly, at this stage, we need to stop talking about "locking in." The emergency docket ruling is the whole ballgame. If the Court allows the administration to block funding, no one cares if the money is ultimately paid out in three years. NGOs and other non-profits will go out of business while waiting for the litigation to percolate. If the Court allows the administration to deport certain aliens, those individuals will be sent to countries that have no connection with. No one cares if the Court ultimately rules those people can be readmitted in a few years. If thousands of civil servants are laid off, they cannot sit idly for years waiting for claims to proceed. They will need to find other employment. And so on. This concern about "locking in" is so myopic at the present moment that Justice Barrett really should stop repeating the mantra. No one finds it persuasive.

Still, to Barrett's credit, she at least says something. Then again, she has a book to sell. Roberts says nothing at all. He just wants to pretend it is still 2006 and he has the opportunity to unite the Court with fewer 5-4 decisions. That ship sailed around the time he transmogrified a tax into a penalty.

The federal judiciary has needed new leadership for sometime, but the defection in the ranks is making this need more palpable.

Let me use a sports example. I went to Penn State, and have long been a Nittany Lions fan. At the start of this season, Penn State was ranked as high as #2 in the nation. Expectations were high for a national championship. But after three shaky victories, Penn State lost three games in a row, including two defeats to very weak teams. Penn State has lots of talent, but is badly underperforming. Fans are now chanting that James Franklin, the longtime coach, should be fired. How did Franklin respond? He took blame: "It's 100% on me." Of course, Franklin is not playing offense or defense, but the buck stops with him. Thankfully, Franklin does not have life tenure, and he can be removed.

The buck stops with the Chief Justice. He can only cast one vote as a Justice, but as the swing vote, he will usually decide the fate of the Court. He is in the majority more than 95% of the time. And in an administrative capacity, Roberts has near-complete power over the structure of the judicial apparatus. If Roberts is unable to adequately address the concerns of the judiciary in private conference or through his public decisions, he should admit the problem is of his own making. These lower court judges are not blaming Trump or Stephen Miller or Pam Bondi. They are looking right at the Supreme Court. As a leader, Roberts should hold a summit with every judge who has been summarily reversed on the emergency docket to hear their concerns. There will be on discussion list. But I doubt he would brook that breach of decorum.

I have written that Justice Kavanaugh may be the right person for the moment. To his credit, he is trying to explain why the Court is doing what it is doing on the emergency docket. And he favors granting cert before judgment, followed by expedited oral argument. I am sure there are and will be things that I disagree with Justice Kavanaugh on. But unless the federal judiciary can resume regular order, the path forward is bleak.

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[Jonathan H. Adler] Do Federal Judges Believe We Are in the Midst of a "Judicial Crisis"?

[Thoughts on the New York Times' Selective Survey of District Court Judges]

Today's New York Times reports that some federal judges are unhappy with the Supreme Court's repeated grant of interim relief to the Trump Administration in cases challenging Administration actions.

More than three dozen federal judges have told The New York Times that the Supreme Court's flurry of brief, opaque emergency orders in cases related to the Trump administration have left them confused about how to proceed in those matters and are hurting the judiciary's image with the public. . . .

The striking and highly unusual critique of the nation's highest court from lower court judges reveals the degree to which litigation over Mr. Trump's agenda has created strains in the federal judicial system.

The story is based upon the Times' selective survey of federal judges. Here's how the Times summarizes its results.

Sixty-five judges responded to a Times questionnaire sent to hundreds of federal judges across the country. Of those, 47 said the Supreme Court had been mishandling its emergency docket since Mr. Trump returned to office. . . .

In interviews, federal judges called the Supreme Court's emergency orders "mystical," "overly blunt," "incredibly demoralizing and troubling" and "a slap in the face to the district courts." One judge compared their district's current relationship with the Supreme Court to "a war zone." Another said the courts were in the midst of a "judicial crisis." . . .

Forty-two judges went so far as to say that the Supreme Court's emergency orders had caused "some" or "major" harm to the public's perception of the judiciary. Among those who responded to the question, nearly half of the Republican-nominated judges said they believed the orders had harmed the judiciary's standing in the public eye.

Twelve judges who responded to the questionnaire said they believed the Supreme Court had handled its emergency docket appropriately. But only two said public perception of judges had improved as a result of how the Supreme Court had handled its recent work.

The Times presents its analysis as "the most comprehensive picture to date about the extraordinary tensions within the judiciary." But is it really all that comprehensive? According to the story, the Times "reached out to more than 400 judges, including every judge in districts that have handled at least one legal challenge to a major piece of Mr. Trump's agenda" (emphasis added). In other words, the Times did not seek out a random or representative sample of federal judges, but instead solicited a sample weighted toward those judges most likely to disagree with the Supreme Court. [Update: Would the Times story hit quite the same way if it had reported "Fewer than fifteen percent of surveyed federal judges expressed concern about the Supreme Court's handling of the shadow docket"? Of course not, but it would be a true statement of what the Times found, even with the unrepresentative sample.]

As I have noted in prior posts (and this essay for The Dispatch), suits challenging Trump Administration initiatives are not randomly distributed among the nation's judicial districts. Rather they heave been concentrated in those districts plaintiffs expect to be most sympathetic to their claims. So by ensuring that every judge in such districts is included in its survey, the Times over-sampled those judges most likely to disagree with the Court's handling of the Trump Administration's requests for interim relief. After all, judges tend to think that their decisions were correct.

Even with the over-sampling, the Times only obtained sixty-five responses, and we have little information about the extent to which those judges are representative of those surveyed, let alone of the federal judiciary as a whole (especially if, as the story suggests at one point, that some of those surveyed are senior judges). The Times provides a breakdown of the number of responding judges appointed by Democratic and Republican presidents (and President Trump in particular).

Of the judges who responded, 28 were nominated by Republican presidents, including 10 by Mr. Trump; 37 were nominated by Democrats. While those nominated by Democrats were more critical of the Supreme Court, judges nominated by presidents of both parties expressed concerns.

This is interesting, but it only tells us so much.

Given the norms that have long prevailed with district court appointments (including the observance of blue slips), the party of the appointing president tells us far less about a district court judge than it does about appellate judges. Such norms may be breaking down, but until recently it was rare for a district court judge to get appointed without the support (or at least the acquiescence) of home state senators, and political deals were common. As a result, the political affiliation of a state's Senate delegation has long been a better indicator of a district court judge's likely judicial ideology than the party of the appointing president.

While the story quotes a handful of judges that were willing to provide comments to the Times reporters, the allegedly "comprehensive" picture comes from the responses to the Times' brief survey--survey responses that might be improper under the canons of judicial ethics. As the Times notes:

The judges responded to the questionnaire and spoke in interviews on the condition of anonymity so they could share their views candidly, as lower court judges are governed by a complex set of rules that include limitations on their public statements. . . .

The code of conduct for federal judges requires them to act in ways that promote "public confidence in the integrity and impartiality of the judiciary." They seldom comment on public controversies and almost never share their views of Supreme Court jurisprudence, outside of the carefully chosen words of their written opinions.

Given the potential ethical concerns with speaking to the press about these questions, it may also be the case that those judges most likely to respond to the survey are also those most unhappy with or critical of the Supreme Court. If so, this would be another reason to doubt whether the sentiments the Times reports are remotely representative.

Finally, one may wonder whether the Times survey was designed to elicit particularly substantive or nuanced information. I have a copy of what the Times emailed at least some of the respondents. [Screenshot below.] Here are the questions asked:

The Supreme Court has made appropriate use of the emergency docket since President Trump returned to office.
[Strongly Agree / Agree / Neutral / Disagree / Strongly Disagree] Lower-court judges have sufficient guidance from the Supreme Court about how to apply emergency docket orders.
[Strongly Agree / Agree / Neutral / Disagree / Strongly Disagree] What effect, if any, has the Supreme Court's use of the emergency docket, since President Trump returned to office, had on the public's perception of the judiciary?
[Major improvement / Some improvement / Little or No Effect / Some Harm / Major Harm]

The Times story ends with comments that appear to be from an interview with J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit.

A few judges were more equivocal about emergency orders, views that were echoed by Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit, a widely respected jurist and Reagan nominee who wrote a robust defense of the role that district courts play in the constitutional scheme. In an interview, Judge Wilkinson noted that the Supreme Court was largely at the mercy of circumstances beyond its control: a high volume of emergency challenges to a presidency that "would put its foot on the pedal, because it has an agenda, and it's sensitive to the fact that electoral mandates are perishable."

While noting that the emergency docket had its advantages in terms of quickly and uniformly managing a mushrooming caseload from the executive branch, Judge Wilkinson said there were good arguments for the Supreme Court to be careful about using it too much.

"You don't want too many snap judgments and emergency orders creating a public impression of either secretiveness or arbitrariness," he said.

Screenshot of NYT inquiry to a federal judge:

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