Eugene Volokh's Blog, page 17

[Josh Blackman] Today in Supreme Court History: September 10, 1949

9/10/1949: Justice Wiley Rutledge dies.

Justice Wiley Rutledge

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Stephen Halbrook] Second Amendment Roundup: 2nd Circuit Upholds Connecticut's Semiautomatic Firearm Ban

[The court substitutes an “unusually dangerous” test for Heller’s “dangerous and unusual” test.]

In National Association for Gun Rights v. Lamont, the Second Circuit decided that a Second Amendment challenge to Connecticut's ban on many semiautomatic firearms does not have a likelihood of success.  The court assumed that possession of the firearms is constitutionally protected per Bruen's textual step 1, but held that the ban is consistent with our Nation's historical tradition of firearm regulation under step 2.  That conclusion is in blatant conflict with Heller's holding that arms that are in common use are protected by the Second Amendment and may not be banned.

Connecticut defines "assault weapon" to include a semiauto centerfire rifle that accepts a detachable magazine and one "military-style" feature, a .22 rimfire rifle with two such features, a list of firearms based on make and model, and an "other" category which applies to a pistol with a stabilizing brace.  The feature of the pistol grip is supposedly for "spray[ing] … a large number of bullets … without having to aim," which would actually mean fewer hits.  If that is true, why do single-shot rifles and even airguns, including those used in the Olympics, have similar pistol grips?  Check out the precision Feinwerkbau air rifles here.

A "telescoping stock" supposedly makes a rifle "easier to conceal," even though it still meets the minimum overall length for rifles.  Flash suppressors allegedly "help shooters avoid detection," but in reality reduce blinding in low-light conditions, such as home defense at night.  Such are the usual clichés that bear no relation to reality, as I've explained in detail in America's Rifle.

Plaintiffs brought a facial challenge but provided no evidence for many of the law's provisions, and thus could not show that no set of circumstances existed under which the entire statute would be valid under the Salerno rule.  The court thus focused on the law as applied to AR-15 type rifles, a .300 Blackout "other" firearm, and magazines with a capacity of over ten rounds.  Following Supreme Court precedent, the distinction between facial and as-applied challenges "goes to the breadth of the remedy employed by the court, not what must be pleaded in a complaint." See Citizens United v. Fed. Election Comm'n (2010).

The court thus decided that it could "consider partial invalidation … when evaluating facial challenges," adding that it "accept[ed] Plaintiffs' theory that we may consider their challenge as limited to the portions of the statutes restricting possession of their desired firearms and magazines and proceed to consider the constitutionality of only those specific sections of the statutes."

The court quoted U.S. v. Miller (1939) as holding "that the sorts of weapons protected were those 'in common use at the time,'" to which D.C. v. Heller (2008) added that limitations on Second Amendment protections for certain types of arms are "fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"  The court then proceeds blatantly to reject that test.  While "assuming arguendo that the desired firearms and magazines are 'typically possessed' and 'in common use," for lawful purposes, the court states, they may nonetheless be banned if they are "unusually dangerous," a term never used by the Supreme Court.

Under Heller, once it is clear that the arms that are banned are in common use, that ends the matter – the ban is unconstitutional.  D.C. argued that handguns are used in most violent crimes, including mass shootings, and are unnecessary for self-defense.  D.C.'s amicus Violence Policy Center recounted such tragedies, noting, "In the recent Virginia Tech shooting, a single student with two handguns discharged over 170 rounds in nine minutes, killing 32 people and wounding 25 more."  Heller rejected those arguments and held that handguns are in common use for self-defense by American citizens, and they – not the government – get to decide their preferred arms.

Bruen repeated that holding and added that a ban on carrying handguns was not justified by proper historical analogues.  Bruen also reflected: "While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach."  (Emphasis added.)  Heller's common-use test applicable to arms-ban cases, and Bruen's text-history test applicable to carry-ban cases, are simple to follow and are not the "other cases" that are subject to "a more nuanced approach" based on "unprecedented societal concerns or dramatic technological changes."  Such "concerns" and "changes" have no application to the tests that Heller and Bruen have decided.  For a detailed analysis, see Mark W. Smith, What Part of "In Common Use" Don't You Understand? How Courts Have Defied Heller in Arms-Ban Cases—Again, JLPP (2023).

That leaves Connecticut's ban on firearms and magazines that are not "dangerous and unusual" (i.e., in common use) unconstitutional.  Heller, Bruen (5 times), and Rahimi consistently used the term "dangerous and unusual," as did James Wilson and other treatise writers quoted by the Court.  The term "dangerous or unusual" appears only when the Court quoted Blackstone, who wrote that "riding or going armed with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land." That described the offense of an affray, which requires riding or going armed to terrorize others, not mere possession of any type of arm.

Departing from the Supreme Court's clear statements, the court asserts that "both the conjunctive and disjunctive formulations were traditionally understood as meaning 'unusually dangerous.'"  For that it cites nothing more than the declaration of non-lawyer, history professor Saul Cornell.  Doubling down, Judge Nathan states in his concurring opinion, joined by the other two panel judges: "It would seem a serious subversion of our commitment to history to enshrine a conjunctive test based on the Heller opinion's possible misquote of Blackstone."  So Supreme Court "misquotes" must be corrected by a supposed expert witness.

"Unusually dangerous," the court continues, identifies weapons that legislators presume "are not used or intended to be used for lawful purposes," contrary to the actual use and intended use by millions of Americans.  The overwhelming actual use of AR-15 rifles is target shooting, and their intended use for countless Americans includes self-defense.

The court repeats the Fourth Circuit's characterization in Snope v. Brown of Heller's common-use test as a "trivial counting exercise" that would sanction protection for "the W54 nuclear warhead" if it became popular before the government could ban it.  As Justice Thomas wrote dissenting from denial of cert in Snope, "To fend off the fantastical threat of Americans lobbing nuclear warheads at one another, the Fourth Circuit has allowed the very real threat of the government depriving Americans of the rifle that they most favor for protecting themselves and their families."

The court finds that "assault weapons" represent "dramatic technological changes," ignoring that semiautomatic rifles that use detachable magazines have been commonly possessed since the turn of the twentieth century.  Heller characterized the argument as "bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment," which "extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."  Heller's common-use test already accounts for technological changes by ensuring that the Second Amendment's protection extends to all firearms that are in common use at the time a court conducts the "in common use" analysis.

While historically "mass murders … involved the use of multiple people and multiple weapons," the court continues, the banned firearms allow "a single gunman carrying out a mass murder in seconds."  Heller rejected such arguments in invalidating the handgun ban.  And it goes without saying that there are few limits to the depravity that may occur regardless of the type of weapon.  One arsonist murdered 87 people at the Happy Land Nightclub in the Bronx in 1990.  Mass stabbings occur in countries that ban firearms, e.g., Japan's 2016 Sagamihara massacre in which a knife wielder murdered 19 people and injured 26.

The court states that "the AR-15 is more lethal … than ordinary handguns," but it is no more lethal than the semiautomatic Ruger Mini-14 which, the court concedes, Connecticut does not ban.  Both rifles are available in the .223 Remington cartridge, which the court fantastically claims "exacts serious injuries tantamount to being shot 'with a Coke can.'" Seriously?  That round is not even powerful enough for deer hunting!

The court further asserts that "the AR-15, unlike an ordinary handgun, has features that actually limit its usefulness for self-defense."  It's supposedly "more difficult to use," although many find a rifle easier to use than a handgun.  Recall that the District of Columbia and its amici argued in Heller that rifles are more suitable for self-defense than handguns.  And Heller held that the people, not the state, get to decide what to use for self-defense.

The court next moves on to the following dramatic claim about historical "comparators": "Like the weapons regulated by the challenged statutes, dirk and Bowie knives were technological advancements over ordinary defensive arms because they were designed 'expressly for fighting,' with longer blades, crossguards to protect fighters' hands, and clip points to facilitate cutting or stabbing adversaries."  Technological advancements?  Medieval daggers and other edged weapons had those features and more.  A visit to the arms and armor collection at the Museum of Art in Philadelphia brings that technology to life.

Moreover, the court ignores Bruen's contrast between medieval lances and daggers as follows: "In the medieval period, '[a]lmost everyone carried a knife or a dagger in his belt.' … While these knives were used by knights in warfare, '[c]ivilians wore them for self-protection,' among other things…. Respondents point to no evidence suggesting the Statute [of Northampton] applied to the smaller medieval weapons that strike us as most analogous to modern handguns."

As the court concedes, the antebellum states that regulated edged weapons mostly only banned concealed carry.  The court partially quotes Aymette v. State (Tenn. 1840), that "[t]he Legislature … ha[d] a right to prohibit the wearing or keeping [of] weapons dangerous to the peace and safety of the citizens…." But the court deleted the rest of the sentence adding "and which are not usual in civilized warfare, or would not contribute to the common defence." Aymette thus upheld the right to keep the very kinds of "military-style" arms that the court says can be banned.

The court also cites Cockrum v. State (Tex. 1859), which rejected a constitutional challenge to a law imposing higher penalties for murder committed with a Bowie knife or dagger.  Far from supporting a possession ban, Cockrum stated, "The right to carry a bowie-knife for lawful defense is secured."  Nor does the court's position  find support in State v. Workman (W. Va. 1891), which opined that the "arms referred to in the [second] amendment" are "the weapons of warfare to be used by the militia."

The court concludes that it joins "the First, Fourth, Seventh, Ninth, and D.C. Circuits (every Circuit to address the question) in approving restrictions on assault weapons and large capacity magazines."  That's because most states don't ban such arms and the courts in those states thus do not have occasion to opine thereon.  All the more reason for the Supreme Court to take up this issue, as Justice Kavanaugh suggested when cert was denied in Snope, stating that "this Court should and presumably will address the AR-15 issue soon, in the next Term or two."

 

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[Ilya Somin] Supreme Court Will Hear Our Case Challenging Trump's Tariffs - and Two Other Related Cases

[The cases will be considered on an accelerated schedule.]

NA

Today, the Supreme Court decided to review V.O.S. Selections, Inc. v. Trump, our case challenging President Trump's "Liberation Day" tariffs. The case was filed by the Liberty Justice Center and myself on behalf of five small businesses harmed by the tariffs. It is consolidated with a similar suit filed by twelve state governments, led by the state of Oregon. Both challenge massive tariffs Trump has imposed using his supposed authority under the International Emergency Economic Powers Act of 1977 (IEEPA), and both will now be heard on the same accelerated schedule. The Supreme Court also decided to hear Learning Resources v. Trump, a case challenging many of the same tariffs, filed by two importers in a different federal court.

We, the twelve states, and the Learning Resources plaintiffs all prevailed in the lower courts, and I hope the Supreme Court will also recognize the IEEPA tariffs are illegal for a variety of reasons. Fundamentally, these cases come down to whether the president has virtually unlimited power to impose taxes in the form of tariffs on the American people, much like an absolute monarch. The Framers of the Constitution deliberately denied the executive the kind of unbridled tax authority claimed by power-grabbing English kings, like Charles I.

The Court's order is short. For convenience, I reprint it here in full:

LEARNING RESOURCES, INC., ET AL. V. TRUMP, PRESIDENT OF U.S., ET AL. [24-1287]
TRUMP, PRESIDENT OF U.S., ET AL. V. V.O.S. SELECTIONS, INC., ET AL. [25-250]

The petition for a writ of certiorari before judgment in No. 24-1287 is granted. The motion to expedite and the petition for a writ of certiorari in No. 25-250 are granted. The cases are consolidated, and a total of one hour is allotted for oral argument. Respondents in No. 24-1287 and petitioners in No. 25-250 shall file an opening brief on the merits on or before Friday, September 19, 2025. Any amicus curiae briefs in support or in support of neither party shall be filed on or before Tuesday, September 23, 2025. Petitioners in No. 24-1287 and respondents in No. 25-250 shall file response briefs on the merits on or before Monday, October 20, 2025. Any amicus curiae briefs in support shall be filed on or before Friday, October 24, 2025. A reply brief shall be filed by Thursday, October 30, 2025. The cases will be set for argument in the first week of the November 2025 argument session.

The Liberty Justice Center has issued a statement about the order, which I reprint below. No one will be surprised that I agree with it! Here it is:

Today, the Supreme Court granted the government's expedited request for Supreme Court review (writ of certiorari) in V.O.S. Selections, Inc. v. Trump, agreeing to review whether the Trump Administration's "Liberation Day" tariffs exceed the President's legal and constitutional authority. Given the importance of the issues and the need for a prompt resolution, the Liberty Justice Center agreed to the government's request.

The Liberty Justice Center, along with legal scholar Ilya Somin, filed this case on April 14 in the U.S. Court of International Trade (CIT) on behalf of five American small businesses harmed by the tariffs. The CIT held that the International Emergency Economic Powers Act, or IEEPA, does not give the President unlimited unilateral authority to impose tariffs on the American people whenever he wants, at whatever level he wants, for whatever countries and products he wants, and for as long as he wants.

The government appealed to the U.S. Court of Appeals for the Federal Circuit, where the Liberty Justice Center was joined by leading appellate lawyers and constitutional scholars, Judge Michael W. McConnell and Neal Katyal. And on August 29, in a 7–4 decision, the Federal Circuit affirmed the CIT's decision, holding that IEEPA does not authorize the President's so-called "Liberation Day" tariffs. The Supreme Court will now decide whether to affirm those rulings.

Recognizing the urgency of the matter, the Supreme Court has now set this case on an expedited schedule, with oral argument to take place the first week of November.

"We are confident that the Supreme Court, like the CIT and the Federal Circuit, will recognize that the President does not have unilateral tariff power under IEEPA," said Jeffrey Schwab, Senior Counsel and Director of Litigation at the Liberty Justice Center. "Congress, not the President alone, has the constitutional power to impose tariffs."

The issues in the case are covered in much greater detail in our various legal filings (see the Liberty Justice Center site for a compilation), and in my earlier writings about this litigation.

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[Eugene Volokh] Ninth Circuit Blocks Default Restrictions on "Like Counts" for Minors' Social Media Accounts, Upholds Default of "Private Mode"

From today's panel opinion in Netchoice, LLC v. Bonta, by Ninth Circuit Judge Ryan D. Nelson, joined by Judges Michael Daly Hawkins and William A. Fletcher:

Addressing the growing concern that our youth are becoming addicted to social media, California passed a law regulating how internet platforms allow minors to access personalized recommendation algorithms. NetChoice sued, arguing that the law violates the First Amendment. The district court preliminarily enjoined some provisions but largely left the law in place. NetChoice appeals the district court's denial of injunctive relief. With one exception, we affirm the district court.

There's a lot going on there, and some of the analysis turns on procedural or remedial features of the case, but here's a substantive First Amendment analysis as to one facet of the law:

NetChoice also raises an as-applied challenge to the Act's requirement that minors' accounts operate with certain default settings, which can be turned off by a parent. Two such default settings are at issue: (1) that covered platforms cannot show minors the number of likes or other feedback on a post; and (2) that minors' accounts must be on "private mode" ….

We disagree that the whole Act is content based, but agree that the like-count provision itself is….

First, the district court correctly concluded the Act's exception from coverage of websites "limited to commercial transactions or to consumer reviews," is not content based. While a close question, we agree. In City of Austin, the Supreme Court rejected "the view that any examination of speech or expression inherently triggers heightened First Amendment concern." City of Austin instead recognized an implication of this rule that governs here: Statutes that classify and single out solicitation "require some evaluation of the speech and nonetheless remain content neutral."

The Court's definition of "solicitation" is instructive. It is "speech 'requesting or seeking to obtain something' or '[a]n attempt or effort to gain business.'" And "the Court has reasoned that restrictions on solicitation are not content based." Sitting en banc, we reiterated and elaborated on this solicitation carveout earlier this year..

Although the Act does not define "commercial transactions" or "consumer reviews," the ordinary meaning of those terms suggests that they amount to commercial solicitation as City of Austin and Project Veritas discussed the term. This exception's description of "[a]n internet website, online service, online application, or mobile application for which interactions between users are limited to commercial transactions or to consumer reviews of products" simply describes websites "requesting or seeking to obtain something" or "attempt[ing] … to gain business" online. Thus, the exception categorizes websites along lines that have been affirmed as content neutral…. Thus, the Act "applies evenhandedly to all who wish to distribute and sell" online.

NetChoice also argues that the Act's focus on social media makes the entire act content based. We disagree.

The Act applies to any internet website "including, but not limited to, a 'social media platform'" that personalizes feeds based on information provided by the user. A "social media platform" is a service whose "substantial function" is to facilitate social interaction…. California's use of "social media" platform as statutory shorthand does not render the Act content based, since it applies to websites whether they facilitate social interaction or other forms of content. So neither the commercial-transactions exception nor the Act's focus on "social media" platforms makes the Act as a whole content based….

That said, the regulation of like counts in particular is independently content based. Like counts are "speech with a particular content." The Act prohibits platforms from describing posts based on "the idea or message expressed" by the description. Reed v. Town of Gilbert. A platform may show a post to a minor. And it may presumably tell that minor that other users have interacted with it. But it cannot tell the minor the number of likes or feedback that the post has received. Thus, whether the Act restricts a website's description of a post turns on what message the description will communicate. That is content discrimination.

As a result, strict scrutiny applies to this provision. And the like-count default setting is not the least restrictive way to advance California's interest in protecting minors' mental health [as we held just last year] … in NetChoice v. Bonta (9th Cir. 2024). Here, as in that case, California could encourage websites "to offer voluntary content filters" related to like counts or educate children and parents on such filters. We see no basis to distinguish that recent case. So we conclude that NetChoice is likely to prevail on the merits of its challenge to the like-count provision as applied to its members….

We next address the as-applied challenge to the private-mode default setting. In private mode, only users connected to a minor's account (being "friends," for example) can view or interact with that minor's posts….

This restriction may be speaker based. But not all speaker-based laws are subject to strict scrutiny. A speaker preference is problematic only if it "reflects a content preference." After all, speaker-based distinctions are suspect only because they "are all too often simply a means to control content." …

The private-mode provision does not "reflect[ ] a content preference." … The private-mode default is agnostic as to content and therefore need only survive intermediate scrutiny.

It does so. While not perfectly tailored, this restriction is narrowly tailored. It is not underinclusive enough to raise "doubts about whether the government is in fact pursuing" the asserted interest. In private mode, minors cannot conform their social media habits to maximize interaction and approval of a worldwide audience. This logically serves the end of protecting minors' mental health by reducing screentime and habit-forming platform usage. The provision may allow minors "to communicate with unconnected users on other types of services." But contrary to NetChoice's contention, that does not mean that the Act is so "riddled with exceptions" that it raises doubts about whether California is trying to mitigate the addictive nature of platforms that provide personalized feeds.

Neither is the provision so overinclusive to make it "substantially broader than necessary" to achieve California's interest. True, the requirement "applies to all covered websites and minor users, regardless of why they are using a particular service." But California's interests are wide-ranging. And California took a relatively nuanced approach. So the district court did not err by declining to enjoin the private-mode default setting provision….

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[Eugene Volokh] Sixth Circuit Judges on Restrictions on Parents' School Board Meeting Comments

From today's concurrence by Sixth Circuit Judge Amul Thapar and Eric Murphy in Moms for Liberty v. Wilson County Bd. of Ed. You can read the panel opinion by Judge Jane Stranch, which is also joined by the other two judges, here. But there's a lot of procedural detail in the panel opinion, so I thought I'd focus on the simpler concurrence, which represents the view of a majority of the panel members, and lays out the constitutional issues (and briefly explains the procedural ones at the end):

For parents, few things matter more than their children's education. But when a group of moms began voicing concerns to their local Tennessee school board, they discovered that their input wasn't welcome. They now challenge the set of policies that restricted the tone, content, and format of their remarks. While I agree with the majority that the moms are not entitled to a preliminary injunction, I write separately to emphasize the troubling nature of the Board's rules.

Start with the Board's policy of cutting off "abusive" comments. The Board offers no guidance to distinguish "abusive" comments from critical or insulting ones. That distinction matters because the First Amendment prevents the government from discriminating against a speaker based on her viewpoint—regardless of whether that view is offensive or polite. When the Board bars offensive remarks but not flattering ones, it necessarily picks and chooses between opposing perspectives. This act of selection arguably makes the abusive-speech restriction an "egregious form of content discrimination" that is "presumed to be unconstitutional."

Put another way, the Board can't implement the equivalent of a "happy-talk" requirement that forces speakers to make their remarks "grammatically palatable to the most squeamish among us." In a free society, after all, the listener—not the government—decides whether remarks are worthwhile. And the price of that freedom is often unkind, offensive, or insulting speech.

Restrictions on this freedom aren't just unwise—they're usually unconstitutional. Our court has repeatedly held that "happy-talk" requirements like the Board's abusive-speech restriction cross the constitutional line. For instance, we have found a city council's policy barring "attacks on people or institutions … could be construed as viewpoint discrimination." Elsewhere, we invalidated a prohibition on advertisements likely to invite "scorn or ridicule," reasoning that the restriction necessarily discriminated "between two opposed sets of ideas." And most recently, we struck down a school board's policy barring "antagonistic," "abusive," and "personally directed" comments because it discriminated against speech that "opposes, or offends, the Board or members of the public." Our rule is simple: "the government may not censor speech merely because it is 'offensive to some.'" But the Board's abusive-speech restriction appears to do just that.

The Board's requirement that speakers announce their home addresses at the beginning of their remarks is little better. Policies that fall short of a direct prohibition on First Amendment expression may nevertheless amount to a constitutional violation when they "deter[ ]" or "chill[ ]" speech…. Forcing commenters to disclose their home addresses before speaking on controversial or hot-button issues seems particularly likely to silence a would-be speaker. And the Board seemed aware of this chilling effect: After permitting some commenters to proceed without disclosing their addresses, it appears to have enforced the requirement midway through a controversial comment, precisely because it was likely to deter the speaker.

The Board's policy that unplanned speeches must be "in the public interest" presents additional constitutional infirmities. In a limited public forum, the government "must be able to articulate some sensible basis for distinguishing what [speech] may come in from what must stay out." But the Board's requirement that speech be "in the public interest" doesn't meet this standard. Who, after all, is the relevant "public," and what's in their "interest?" Without answers to these basic questions, the policy invites "a virtually open-ended interpretation" and lacks "objective, workable standards" to guide its application. While the Board could certainly limit speech to school-related matters, the public-interest rule seems like a textbook "opportunity for abuse."

If Plaintiffs can establish standing to challenge the public-interest provision, their arguments may carry weight. In similar cases, our sister circuits have struck down rules barring speech that is "off-topic," concerns "public issues," or implicates "matters of public debate." These courts uniformly found the standards at issue "not … capable of reasoned application" because their interpretation and application depended on the government's say-so. Indeed, Moms for Liberty has elsewhere prevailed on a challenge to a school board's policies barring comments that were "personally directed" on this exact theory. It is difficult to see daylight between those unconstitutional policies and the Board's.

At bottom, there's a difference between a limited public forum and an unduly restrictive one. At a time when many parents are disengaging from public education, those parents who put in the effort to advocate for the wellbeing of their children—and their neighbors' children—should be celebrated, not silenced. The Board should have sought out the exact kind of content it censored: critical comments that flag problems and suggest improvements.

It was never required to force commenters to announce their home addresses, restrict the tenor or topic of their remarks, or curtail impromptu speeches on any subject. These efforts to limit parents' input into their children's education reflect the Board's judgment about the type of feedback that it values. And that choice speaks volumes. After all, what's the point of the meeting if only positive comments are welcome? The First Amendment protects the critic and the champion equally for a reason.

Plaintiffs fall short of the demanding standard for interim relief because the Board has not applied its suspect rules in over two years and has promised to keep it that way during litigation. But if the Board reinstated its policies or indicated that it would, Plaintiffs would be well-positioned to seek a temporary restraining order for prompt relief. And if Plaintiffs can establish standing, their allegations that the Board's remaining policies impermissibly chill protected speech deserve close consideration.

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[Eugene Volokh] Excluding Religious School That "Forfeited a Girls' Playoff Basketball Game to Avoid Playing a Team with a Transgender Athlete" Violated Free Exercise Clause

[So the Second Circuit held today, concluding that the facts surrounding this particular exclusion showed hostility to religion, and not just the neutral application of generally applicable rules.]

From today's decision by Second Circuit Judge Michael Park, joined by Judges Richard Wesley and Richard Sullivan, in Mid Vermont Christian School v. Saunders:

Mid Vermont Christian School forfeited a girls' playoff basketball game to avoid playing a team with a transgender athlete. The school believes that forcing girls to compete against biological males would affirm that those males are females, in violation of its religious beliefs. In response to the forfeit, the Vermont Principals' Association ("VPA") expelled the school from all state-sponsored extracurricular activities….

We conclude that Plaintiffs are likely to succeed in showing that the VPA's expulsion of Mid Vermont was not neutral because it displayed hostility toward the school's religious beliefs; Plaintiffs are therefore likely to prevail on their Free Exercise claim….

"At its heart, the Free Exercise Clause of the First Amendment protects the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through the performance of religious acts." It "guarantees to all Americans the right to believe and profess whatever religious doctrine they desire, even doctrines out of favor with a majority of fellow citizens."

Of course, the protections afforded under the First Amendment are not limitless. The Supreme Court has recognized that the Free Exercise Clause "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability." Nonetheless, even under a neutral law of general applicability, the government still "fails to act neutrally when it proceeds in a manner intolerant of religious beliefs." The First Amendment, in other words, guarantees not only that our laws be neutrally drafted, but that they subsequently "be applied in a manner that is neutral toward religion." … A plaintiff may therefore "prove a free exercise violation by showing that 'official expressions of hostility' to religion accompany" actions taken by the government to enforce its laws, and in such cases courts may set aside the adverse results of tainted enforcement proceedings "without further inquiry." …

First, [VPA Executive Director] Nichols's public statements evinced hostility toward Mid Vermont's religious beliefs…. Nichols testified before Vermont's House Education Committee just two days after Mid Vermont's forfeit—but three weeks before the VPA announced the expulsion. Advocating for a bill that would block private, religious schools from receiving public funding, Nichols urged the House Education Committee to "do the right thing" and pass "legislation that doesn't continue to allow misuses of taxpayer dollars to effectively discriminate against many of our children." In so doing, Nichols offered "official expressions of hostility to religion" that were "inconsistent with what the Free Exercise Clause requires."

In his testimony, Nichols listed examples of how religious schools "don't follow the same rules as public schools, at least on the most important issues." He mentioned that "[t]wo religious schools have refused … to sign an assurance that they would follow State Board rules regarding non-discrimination," noting that "[i]t doesn't take a rocket scientist to see that these schools and their far right supporters are gearing up for another lawsuit." He highlighted that "one religious high school that we are now sending public tax dollars to[ ]" requires "four credits of religion and theology" and "witness[ing] Christian values." And he criticized Mid Vermont's forfeit against Long Trail:

[A] Christian school forfeits so they won't have to play against this team that has a transgender student …. Thank goodness the student in question didn't attend that religious school … but what if they did? Would we be okay with that blatant discrimination under the guise of religious freedom?

Such testimony supports the inference that the VPA's punishment was "informed by hostility toward certain religious beliefs." As Executive Director, Nichols wielded the power to "enforc[e] VPA policies." On this record, Plaintiffs are likely to succeed in showing that he failed to serve as a "neutral decisionmaker who [gave] full and fair consideration to [Mid Vermont's] religious objection."

Second, the record reflects that the VPA itself challenged the school's religious beliefs. Rejecting Mid Vermont's appeal, the Committee explained that the substance of the religious claim was "wrong":

Participating in an athletic contest does not signify a common belief with the opponent. Brigham Young University athletes do not compromise their Mormon faith—or endorse Catholicism—when they play Notre Dame. The act of playing together on a basketball court does not imply any approval of the values or beliefs of the opponent.

This case has nothing to do with beliefs. It has everything to do with actions and their impact on transgender students.

That statement did not just question Mid Vermont's religious sincerity. It also attacked the validity of Mid Vermont's objection. But "[a]n individual claiming violation of free exercise rights need only demonstrate that the beliefs professed are sincerely held and in the individual's own scheme of things, religious." That is because "courts should not inquire into the centrality of a litigant's religious beliefs."

What is binding on courts is equally binding on the VPA. "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in … religion." Put simply, the VPA may not impose discipline based on its view that Mid Vermont's religious objection was "wrong." On this record, Plaintiffs are likely to succeed in establishing that the VPA did exactly that.

Third, the expulsion violated the VPA's own norms. Nichols conceded that, to his recollection, the VPA had never before banned a school from all sporting events. That concession actually understated the severity of the decision, which extended to any interschool activity, from spelling bees to math competitions….

Making matters worse, the VPA ignored the detailed procedural requirements governing its disciplinary process. Those procedures called for a formal investigation, a preliminary report, written notice of a probable violation, a recommended penalty, and an opportunity to be heard at a hearing involving counsel and evidence. But in its rush to impose an "immediate" expulsion, the VPA flouted its own rules.

In sum, Plaintiffs are likely to succeed in establishing that Defendants acted with hostility toward Mid Vermont's religious beliefs. The VPA's Executive Director publicly castigated Mid Vermont—and religious schools generally—while the VPA rushed to judgment on whether and how to discipline the school. In upholding the expulsion, the VPA doubled down on that hostility by challenging the legitimacy of the school's religious beliefs. And as noted above, the punishment imposed was unprecedented, overbroad, and procedurally irregular. Those facts strongly support the inference that Mid Vermont's religious objection "was not considered with the neutrality that the Free Exercise Clause requires."

Where a state actor's "hostility was inconsistent with the First Amendment's guarantee that our laws be applied in a manner that is neutral toward religion," our job is clear. We thus conclude, without engaging in strict scrutiny, that Plaintiffs have made a strong showing that the VPA violated "the minimum requirement of neutrality" to religion. See Stephanie H. Barclay, Replacing Smith, 133 Yale L.J. F. 436, 442 (2023) ("When the government is hostile, it does not get an opportunity to present a justification for its exercise-burdening action. Instead, the action is per se invalid.").

David A. Cortman, John J. Bursch, James A. Campbell, Christopher P. Schandevel, Jacob Reed, and Ryan J. Tucker (Alliance Defending Freedom) represent plaintiffs.

The post Excluding Religious School That "Forfeited a Girls' Playoff Basketball Game to Avoid Playing a Team with a Transgender Athlete" Violated Free Exercise Clause appeared first on Reason.com.

[Eugene Volokh] Oklahoma AG on the First Amendment and Drag Shows

[Such drag shows are protected unless they fit within the (fairly narrow) category of obscenity, which is limited to certain material that depicts sexual conduct (not just cross-dressing).]

From Opinion No. 2025-13, released Aug. 29:

Is a performance by an individual dressed in drag included in the definitions of "obscene material" in title 21, section 1024.1? Is a performance by an individual dressed in drag included in the definitions of "adult performance" in title 21, section 1024.6(A)(1) (Supp.2025)? Does a performance by an individual dressed in drag, in view of a minor in a public place, violate the provisions of title 21, section 1024.6(B)(1) (Supp.2025)? Is a performance by an individual dressed in drag protected speech under the First Amendment? If so, under what circumstances can said speech be regulated by the state or other political subdivisions? …

The answer to all four questions depends upon whether the drag performance contains "obscene material" …. The definition of "adult performance" … requires the performance to contain "obscene material." For a performance to be prohibited by section 1024.6(B)(1), it likewise must also contain "obscene material." Finally, the performance is not protected by the First Amendment to the extent it contains "obscene material." Miller v. California (1973). As a result, a drag performance violates Oklahoma law only if it contains "obscene material." …

Under Oklahoma law, "obscene material" includes any representation, performance, depiction, or description of sexual conduct that meets three criteria: (a) it is patently offensive as judged by the average person applying contemporary community standards; (b) it appeals to prurient interest in sex as its dominant theme; and (c) it lacks serious literary, artistic, educational, political, or scientific value when taken as a whole.

Importantly, the definition of "obscene material" as established by the Miller test and adopted in Oklahoma first requires the performance to contain "sexual conduct." Oklahoma's statutory definition of "sexual conduct" comprises the following acts: sexual intercourse, oral or anal sodomy, masturbation, sadomasochistic abuse, excretion in a sexual context, and exhibiting genitals or pubic areas {[and, e]ffective November 1, 2025, "acts of sexual activity with an animal" and "exhibiting genitalia, breast, or pubic area for the purpose of the sexual stimulation of the viewer"}.

Thus, for a drag performance to meet the definition of obscene material, it must first contain one of these enumerated acts of sexual conduct. If it contains such an act, then a drag performance must be reviewed to determine whether it predominantly appeals to a prurient interest in sex, is patently offensive according to contemporary community standards, and lacks serious literary, artistic, educational, political, or scientific value. {Prurient Interest means "[a] morbid, unhealthy fixation with sex, nudity, or obscene or pornographic materials."} …

{One U.S. District Court has previously held that drag shows are not expressive conduct protected by the First Amendment. But this opinion is no longer good law because a divided Fifth Circuit panel recently reversed it finding the proposed drag show "communicated a message" of "support for the LGBT+ community," which was "enough to implicate the First Amendment." Spectrum WT v. Wendler (5th Cir. 2025). Existing Oklahoma law, however, punishes all types of adult performances in front of minors or in a public place that contain obscene material, regardless of whether drag is involved. Therefore, as it relates to existing Oklahoma law, the relevant inquiry is whether the drag performance contains obscene material.}

{Failing to follow the Miller test has caused other states and cities to run afoul of the First Amendment as it relates to drag performances. For example, Texas's ban on "sexually oriented performances" violated the First Amendment because, among other things, Texas law failed to include all the criteria identified in the Miller test for obscenity. Woodlands Pride, Inc. v. Paxton (S.D. Tex. 2023). Similarly, a Utah city's refusal to issue a permit for a drag show in a public park violated the First Amendment because there was "no evidence that the Allies Drag Show was anticipated to be anywhere close to satisfying even one prong of the Miller standard establishing whether a work is legally obscene." S. Utah Drag Stars v. City of St. George (D. Utah 2023).

On the other hand, Tennessee's Adult Entertainment Act that "(1) incorporate[d] the Supreme Court's three-part obscenity test from Miller v. California and (2) modifie[[d] it to apply to minors" was found to be consistent with the First Amendment. Friends of George's, Inc. v. Mulroy (6th Cir. 2024). Oklahoma's new statute, title 21, section 1024.6, simply incorporates Oklahoma's prior definition of obscene material that adopts the Miller test. Therefore, Oklahoma's obscenity laws, including section 1024.6, are consistent with the Miller test and the First Amendment.

The post Oklahoma AG on the First Amendment and Drag Shows appeared first on Reason.com.

[John Elwood] The Troubling Case of Dowd v. United States

I haven't posted on the Volokh Conspiracy in over a decade, because SCOTUSBlog is a better vehicle for my usual posts about Supreme Court minutiae.  But one of my cases involves one of the more egregious miscarriages of justice I recall seeing in more than thirty years of practice. Yes, it involves a client of mine, but I try to take a detached view of the strengths and weaknesses of my cases.  I've handled a lot of clients over the years, and this is the first case of mine that I'm blogging about.

The case against Andrew Dowd

At the center is Dr. Andrew Dowd, a 69-year-old orthopedic surgeon with no criminal history (beyond traffic tickets).  He ran a hugely successful practice medical practice, with 10 offices that treated hundreds of patients annually.  He was convicted of conspiring to operate on patients who claimed to have slipped and injured themselves at various properties, thereby inflating insurance settlements.  The defense maintained that a pre-existing conspiracy—led by a disgraced former chiropractor, another doctor, and lawyers—funneled Dowd patients precisely because his high-volume practice made him unlikely to spot their fraud, and they knew Dowd was likely to operate on the patients based on their medical records and complaints.

The evidence that Dowd knew the patients were fraudulent was thin. The trial witnesses all arrived with MRI reports showing soft-tissue damage, and since the conspirators preferred recruiting people with genuine injuries (just not from where they claimed!), four of the five patients who testified actually had knee damage—and Dowd accurately noted after surgery that the fifth lacked the injury her MRI suggested. The other conspirators chatted openly about the scheme in emails and texts, but none looped in Dowd. When an insurer launched an investigation, the group discussed it, but no one alerted Dowd—implying even they didn't think he was "in on it." Dowd was convicted on a "conscious avoidance" theory: that he deliberately turned a blind eye to signs of fraud.

Dowd recently began serving an 8 ½-year sentence and was ordered to forfeit $8.1 million. While numerous aspects of his case strike me as unjust, three stand out as especially outrageous.

When a judge becomes an advocate: a call for recusal

In an earlier trial, the scheme's mastermind and one of his "runners" (who recruited patients) testified against fellow runners. Dowd was repeatedly named as one of two doctors the group used. The presiding judge didn't just observe; he actively prodded prosecutors to broaden their probe, declaring, "I would urge the government to continue their investigation here, because, based on this testimony, the lawyers and the doctors were heavily involved," and voiced his "hope" that the feds were "pursuing … the corrupt doctors who were involved in this scheme."

Fast-forward: The government indicted Dowd and others, and the case landed randomly with a different judge. But prosecutors filed a "related case" letter, and it got reassigned to the very judge who'd pushed for the expansion. Dowd moved for recusal under 28 U.S.C. § 455(a), arguing that a judge who takes the rare step of lobbying the U.S. Attorney's Office for the Southern District of New York—not exactly a timid outfit—can't reasonably appear impartial when presiding over the resulting trial. While the judge may "not likely have all the zeal of a prosecutor" after calling for the prosecution, "it can certainly not be said that he would have none of that zeal." In re Murchison, 349 U.S. 133, 137 (1955).

Botched "harmless error" review

No direct evidence showed Dowd knew about the fraud—just circumstantial bits supporting the "conscious avoidance" claim. To shore it up, prosecutors called Tara Arce, a professional insurance-fraud investigator, as a "lay" (non-expert) witness. Ms. Arce had no first-hand knowledge of the alleged conspiracy.  Everything she knew about the case came from reviewing insurance files.  Based on those files (much of which were undisputedly hearsay), she opined that there were "red flags" of obvious fraud in the claim files.  But only four files involved Dowd, and the "red flags" that Arce identified involved non-medical details a treating physician wouldn't have known about, like the fact that accidents had no witnesses. The trial judge admitted the testimony anyway, even though lay witnesses can only describe what they observed, not draw expert conclusions.

The Second Circuit assumed error—credit where due—but dismissed the error as "harmless" in a superficial review that fixated on the government's "significant proof" elsewhere, without assessing the error's effect over the jury. (Pet. at 24-27.) That flouts Kotteakos v. United States, 328 U.S. 750 (1946), which requires evaluating whether the mistake had a "substantial and injurious effect" on the verdict, not just gauging the prosecution's overall strength. In this razor-thin, inference-heavy case, Arce's improper testimony painted Dowd as ignoring blatant fraud signals—fueling the government's core theory. Worse, the Second Circuit rested its decision on objective record errors, claiming the government "never mentioned [Arce's] testimony in its closing argument." In reality, prosecutors invoked it repeatedly in closing and rebuttal. We flagged that inaccuracy in a rehearing petition, but the court didn't even correct the opinion.

$8 million in restitution without a hearing

In the first trial, the judge set an explicit briefing schedule for restitution. For Dowd, though, the government started the process by emailing the judge in chambers demanding $8.1 million—more than double what earlier defendants paid for the harm caused by the same scheme. No docket filing, no response deadline, no hearing. We didn't even know the email's official status—after all, it wasn't on the public docket, so how could we respond? Local rules grant 14 days to oppose docketed motions. But the judge imposed the full $8.1 million on day 10, without waiting for our filing.

Astonishingly, the Second Circuit ruled no due process violation, claiming Dowd had notice and an opportunity to respond. How? The judge's offhand remark at sentencing that the government had "90 days on restitution" to gather materials. But that vague statement didn't tell the defense they'd lose even the standard 14 days to file a responsive pleading—and besides, the judge actually ruled on day 86 post-sentencing, not day 90. (He'd taken between 96 and 131 days to impose restitution on the other defendants after giving the government the same 90-day period.) We were eager to challenge the prosecution's restitution calculation, given insurer documents stating that some patients weren't "part of [the] pattern."

What's next?

We quickly filed our cert petition seeking review of these three issues, supported by a strong amicus brief filed by the Cato Institute.  But the government waived its right to respond after waiting long enough to ensure that would be considered at the Court's end-of-summer "Long Conference," where the odds of grants are statistically lowest.

The Court hasn't granted cert in decades without first calling for a response. So unless a Justice demands one, our petition is headed for the "dead list"—the pile of automatic denials.

Over the years, numerous Justices have forced the government to defend judgments in troubling criminal cases by requiring briefs in opposition. Indeed, it was happening so much that in 2023, the Justice Department had to hire more Assistants to the Solicitor General just to write them all.

It would be interesting to see a government response in Dowd's case—particularly on the sufficiency of due process before imposing an $8.1 million judgment on a person without even allowing him the ordinary 14 days to file a response, but also on whether it satisfied the appearance of justice to have a judge who openly "urged" a prosecution to preside over it. The Solicitor General likely would be able to come up with a justification for denying cert, but visible unease with certain rulings could cause him to propose some other resolution (such as a remand to permit Dowd the opportunity to contest restitution).

For now, we wait.

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[Eugene Volokh] Third Circuit Holds Fired "Alt Right" Prof. Jason Jorjani's Speech Was Constitutionally Protected,

[though it remands for a decision on whether he would have been fired in any event based on other misconduct.]

[1.] From Jorjani v. N.J. Inst. of Tech., decided yesterday by Judge Paul Matey, joined by Judges Cheryl Krause and Peter Phipps:

New Jersey Institute of Technology declined to renew a lecturer's contract based on his private comments about race, politics, and immigration. But NJIT's regulation of speech outside the classroom and off the campus is subject to the restraints of the First Amendment, and the school documented no disruption to its educational mission….

NJIT hired Jason Jorjani in 2015 to teach philosophy, and twice renewed his contract in 2016 and 2017. During this time, Jorjani "formed the Alt Right Corporation," to "widen the message of his philosophy, which he describes as an affirmation of the Indo-European Tradition" and "the idea that European cultures are intimately related to those of Greater Iran and the Persianate World, Hindu India and the Buddhist East and are the sources the [sic] world's greatest scientific, artistic and spiritual developments." He spoke at conferences and published an essay titled "Against Perennial Philosophy" on "AltRight.com," a website he helped found. In the essay, he argued that "human racial equality" is a "left-wing myth" and that a great "Promethean" "mentality" rests on a "genetic basis" which "Asians, Arabs, Africans, and other non-Aryan peoples" lack.

The essay also argued that, through "genetic engineering" and eugenic "embryo selection," Iran could produce great philosophers by "restor[ing] the pre-Arab and pre-Mongol genetic character of the majority of the Iranian population within only one or two generations." Jorjani did not discuss these outside associations with his students or colleagues, nor did he disclose them as required by NJIT policy.

Then, in 2017, a person posing as a graduate student contacted Jorjani to discuss "how the Left persecutes and silences Right wing thought in academia." But he was working with a group called "Hope Not Hate," whose goal is to "deconstruct[ ]" individuals it deems "fascist" or "extremist." The two met at a pub where the undercover operative recorded their conversations, at first with Jorjani's consent. But later, apparently assuming the recording had stopped, Jorjani commented on matters concerning race, immigration, and politics.

The meeting became a piece published by the New York Times featuring a video excerpt from Jorjani's remarks at a conference characterizing "liberalism, democracy, and universal human rights" as "ill-conceived and bankrupt sociopolitical ideologies," before cutting to the secretly recorded portion of Jorjani's conversation where he predicts "[w]e will have a Europe, in 2050, where the banknotes have Adolf Hitler, Napoleon Bonaparte, Alexander the Great. And Hitler will be seen like that: like Napoleon, like Alexander, not like some weird monster, who is unique in his own category."

The day after the Times piece was published, NJIT's President emailed all faculty and staff, denouncing Jorjani's statements as "antithetical" to NJIT's "core values." NJIT's Dean of the College of Science and Liberal Arts sent a separate email echoing those sentiments. In the following days, NJIT received some unverified number of calls and, at most, fifty emails expressing concern about Jorjani's recorded comments and his membership on the faculty. Faculty chimed in too, highlighting the content of Jorjani's "Against Perennial Philosophy" essay.

Six days after the New York Times posted the article, NJIT sent a letter to Jorjani placing him on paid leave, explaining the article 1) "caused significant disruption at the university" that NJIT believed would "continue to expand," and 2) revealed "association with organizations" that Jorjani did not disclose on his outside activity form, despite prior direction to fully update the form the preceding Spring. The letter advised Jorjani that NJIT planned to investigate whether he had violated university policies or State ethics requirements.

Fallout continued with NJIT's Department of Biology penning a statement published in the student newspaper asserting "Jorjani's beliefs, as revealed by his remarks, cannot help but produce a discriminatory and intimidating educational environment for [NJIT's] diverse student body." The Faculty Senate followed suit, releasing an "Official Faculty Senate Statement," explaining that "NJIT is a university that embraces diversity and sees that diversity as a source of strength. The NJIT Faculty Senate finds racist pronouncements made by University Lecturer Jason Reza Jorjani to be morally repugnant. Hate and bigotry have no place on the NJIT campus." The Department of History also joined the fray, demanding Jorjani's termination and asserting his "published beliefs create a hostile learning environment for students of color in particular." …

Jorjani was eventually fired, and the District Court "conclude[d] that Jorjani's speech was not protected by the First Amendment because 'Defendants' interest in mitigating the disruption caused by Plaintiff's speech … outweighs Plaintiff's interest in its expression.' Seeing error in that conclusion, we will vacate and remand."

[2.] The Court of Appeals articulated the legal standard for when the government may discipline or fire employees based on their speech (even if it couldn't imprison or fine ordinary citizens for their speech).

"[T]o state a First Amendment retaliation claim, a public employee plaintiff must allege that his activity is protected by the First Amendment, and that the protected activity was a substantial factor in the alleged retaliatory action." If those two requirements are satisfied, the burden shifts and the employer must show "the same action would have been taken even if the speech had not occurred."

A public employee's speech is protected if 1) "the employee spoke as a citizen," 2) his "statement involved a matter of public concern," and 3) "the government employer did not have 'an adequate justification for treating the employee differently from any other member of the general public' as a result of the statement he made." In assessing the third prong, we "balance … the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Bd. of Ed. (1968). So "the more substantially an employee's speech involves matters of public concern, the higher the state's burden will then be to justify taking action, and vice versa." …

[3.] This standard leaves considerable room for a version of the "heckler's veto," under which someone's speech may be punished because it causes a hostile reaction by offended listeners.

When the government is administering the criminal law or civil liability, such a "heckler's veto" is generally not allowed: The government generally can't shut down a speaker, for instance, because his listeners are getting offended or even threatening violence because they're offended. But in the employment context, the Pickering balance often allows government to fire employees because their speech sufficiently offend coworkers or members of the public. Perhaps this stems from the judgment that employees are hired to do a particular job cost-effectively for the government, and if their speech so offends others (especially clients or coworkers) that keeping the employees on means more cost for the government than benefit, the government needn't continue to pay them for what has proved to be a bad bargain.

Still, when it comes to public university professors, especially as to their off-the-job speech, courts have often applied the Pickering balance in a way that deliberately offers more speech protection (though perhaps not the same speech protection as ordinary citizens enjoy when it comes to the criminal law). That is what the court did here; to illustrate it, I underline the passages supporting such extra protection, and italicize the passages that seem to leave open room for some sort of heckler's veto:

NJIT's actions do not pass the ordinary Pickering analysis on this record. The parties agree that Jorjani spoke as a private citizen on a matter of public concern. So we consider only whether the distractions NJIT identified as flowing from Jorjani's speech outweigh interest in his discussion. They do not….

Begin with interest in Jorjani's speech, which cannot "be considered in a vacuum" as "the manner, time, and place of the employee's expression are relevant." Jorjani's speech occurred entirely outside NJIT's academic environs. His theories, even if lacking in classical rigor, remain of public import. It matters not that his opinions do not enjoy majoritarian support, since "the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" Matal v. Tam (2017)….

Against that interest, we weigh NJIT's need "as an employer" to promote "the efficiency of the public services it performs." NJIT points only to the "disruption" that followed the publication of Jorjani's remarks consisting of certain students' disapproval of Jorjani's speech, disagreement among faculty, and administrators fielding complaints. We "typically consider whether the speech impairs discipline or employee harmony, has a detrimental impact on close working relationships requiring personal loyalty and confidence, impedes the performance of the speaker's duties, or interferes with the enterprise's regular operations." And we focus mostly on what happened, not what might have been, because although NJIT can act to prevent future harms, and need not "allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest," it must ground predictions in reason, not speculation. The minimal evidence of disruption that NJIT cites differs little from the ordinary operation of a public university and therefore cannot outweigh interest in Jorjani's speech.

First, there is no support for NJIT's contention that student disapproval of Jorjani's speech disrupted the administration of the university. Some students and alumni disagreed with Jorjani's views. But NJIT never identified the exact number of calls or complaints made in person or writing, nor any details about the students' concerns. And although Jorjani said that he perceived a "huge change in attitude toward [him] on the part of [his] students," NJIT points to no objective evidence that students questioned Jorjani's ability to teach, grade, or supervise his classes evenly, beyond one administrator recalling a student dropped Jorjani's class. Entirely absent is any evidence of specific student protests, upheaval, or unwillingness to abide by university policies. But "in the context of the college classroom," students have an "interest in hearing even contrarian views." Meriwether v. Hartop (6th Cir. 2021); see also Blum v. Schlegel (2d Cir. 1994) (explaining that "the efficient provision of services" by a university "actually depends, to a degree, on the dissemination in public fora of controversial speech"). NJIT's theory that student dissent rose to the level of disruption is simply speculative.

Second, the cited disputes among Jorjani and his colleagues are not disruption. NJIT cites the pointed letters denouncing Jorjani published by faculty in the pages of the student newspaper, but that is precisely the sort of reasoned debate that distinguishes speech from distraction. And there is no allegation these editorials, or Jorjani's belief they were defamatory and warranted suit, interfered with the ability of other faculty to fulfill their responsibilities in research, teaching, or shared governance, or otherwise thwarted the university's efforts to educate its students. So although challenges to "employee harmony" might pose disruption when disagreements disturb "close working relationships," that concern is irrelevant inside the university where professors serve the needs of their students, not fellow academics. {Bauer v. Sampson (9th Cir. 2001) ("[G]iven the nature of academic life, especially at the college level, it was not necessary that Bauer and the administration enjoy a close working relationship requiring trust and respect—indeed anyone who has spent time on college campuses knows that the vigorous exchange of ideas and resulting tension between an administration and its faculty is as much a part of college life as homecoming and final exams.").}

That leaves only NJIT's ordinary obligation to field calls and emails, routine administrative tasks that, conceivably, might become so overwhelming in number or nature as to disrupt. But not here. The record reveals that throughout this occurrence there were "[p]ossibly" fifty emails received about Jorjani. Calls were so few that NJIT's witness was "not sure what the number is," and only knew "by reading some emails that so-and-so called the mother, and so-and-so called, former student called, things of that nature." All a most minor uptick in communications, if at all, and one that required no additional staffing to support the single administrator who handled these inquiries.

While NJIT raises an "interest in providing a non-denigrating environment," and appeals to the notion that Jorjani's views could, theoretically, undermine the pedagogical relationship between a teacher and student, it has not pointed to anything in the record that indicates its determination was based on competence or qualifications. In essence, NJIT posits that because Jorjani offered views it disliked, the First Amendment should not apply, and it is entitled to summary judgment. We cannot agree, lest we permit "universities to discipline professors, students, and staff any time their speech might cause offense." {And this case does not implicate a university's "discretionary academic determinations" that entail the "review of [ ] intellectual work product" or "the qualifications of faculty members for promotion and tenure."}

[4.] There's also a factual twist in the case, but the court concludes that this needs to be resolved back in trial court on remand:

As [the controversy about Jorjani took place], NJIT retained a law firm to investigate whether Jorjani had disclosed his outside activities, or engaged in practices "that resulted in a conflict of interest with his responsibilities toward NJIT." The firm's report concluded he did, finding Jorjani: 1) "violated the New Jersey ethics code by failing to disclose that he was a founder, director, and shareholder of the AltRight Corporation"; 2) "violated NJIT faculty policy by cancelling 13 classes in the Spring of 2017," some of which "were not due to illness as he suggested" and resulted in negative student evaluations; 3) erroneously claimed the "video excerpts in the NYT Op-Ed were misleadingly edited to paint [him] in a false light"; and 4) "exhibited a clear pattern of non-responsiveness from the time he started working at NJIT" by neglecting his email inbox….

{The District Court did not … consider whether the speech was a substantial or motivating factor in the alleged retaliation, [or] the same action would have occurred absent Jorjani's speech …. We leave those matters for remand.} …

Frederick C. Kelly, III represents Jorjani.

The post Third Circuit Holds Fired "Alt Right" Prof. Jason Jorjani's Speech Was Constitutionally Protected, appeared first on Reason.com.