Eugene Volokh's Blog, page 172

[Josh Blackman] Guest Post from Professor Kurt Lash: (Former) President J.D. Vance

I am happy to pass along this fascinating guest post from Professor Kurt Lash:

Vice Presidents are generally considered a kind of president in waiting. In fact, a great many vice presidents have ascended to the presidency, including John Adams, Thomas Jefferson, Calvin Coolidge, Lyndon Johnson, Joe Biden

. . . and J.D. Vance.

You may have missed it, but, in fact, J.D. Vance was, by law, our 47th President.

If only briefly. If you watched the Inauguration Ceremonies, you might have noticed an odd moment of rush and confusion between J.D. Vance saying his oath of office and Donald Trump then saying his presidential oath. During those brief moments, J.D. Vance was commander in chief of the armed forces and chief executive of the United States.

Let me explain. J.D. Vance took his oath of office just as the clock was striking 12:00pm. (you can see this on the C-Span feed)According to the Twentieth Amendment, "The terms of the President and Vice President shall end at noon on the 20th day of January." This occurred because the ceremony had gone overtime, likely due to a certain politicians deciding to give an elongated comments (for what reason, heaven only knows).

So, instead of Vance taking his oath before 12:00 and Trump taking his oath at twelve, Vance officially became Vice President at the stroke of 12:00pm-- the precise moment former President Joe Biden's term expired. There being no other person qualified to be president at that moment, J.D. Vance automatically became the President.

Again, according to the twentieth amendment:

"If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President-elect shall have failed to qualify, then the Vice President-elect shall act as President until a President shall have qualified."

Although Donald Trump had been elected by a majority of the people, prior to his taking the oath of office, he was not qualified to be president. According to the Constitution: "Before he enter on the execution of his office, [the person chosen or elected president] shall take the following oath or affirmation—"I do solemnly swear . . ."

As of 12:01, Vance's family was still receiving congratulatory applause and handshakes, while slowly moving away from the podium. The master of ceremonies announced that Chief Justice Roberts who would administer the Presidential oath, and Roberts approached the podium. President-elect Trump also approached and did his family, including Melania Trump who carried the two bibles upon which Trump would place his hand which taking the oath.

Trump was about to qualify as President, but he had not yet taken his oath. Vice President Vance had taken the oath and was qualified to be Vice President and, in the absence of a qualified president, Vance became, however briefly, the most powerful person in the world.

Watch the video of the inauguration oaths again. Vance finishes his oath with his family around him and Vance's hand on a bible. Once the V.P. oath was completed, president-elect Trump advanced to the podium, as did his family and soon-to-be-first lady Melania Trump who held the bibles upon which Trump would place his hand.

Yet, for some reason, Chief Justice John Roberts did not wait for the family to gather or bibles to be put in place. Instead, the Chief Justice immediately began to administer the oath to Donald Trump, bibles be damned. Not under his watch would erstwhile President Vance be allowed to suddenly end the ceremony and declare martial law until the end of the Ohio State-Notre Dame football game.

Chief Justice Roberts knew the constitutional rules and knew the importance of the constitutional clock. So long as the Chief Justice had any say, the term of new 47th President would be brief. Donald Trump good naturedly allowed the Justice to rush the affair, and took the required oath of office. At that point, at the strike of 12:02pm, the presidency moved from Vice President to (now) qualified President Trump.

Don't let anyone tell you otherwise. Despite President Trump's claim to contrary, we have already had our 47th President.

If only for a moment.

The post Guest Post from Professor Kurt Lash: (Former) President J.D. Vance appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: February 6, 1858

2/6/1858: Justice Mahlon Pitney's birthday.

Justice Mahlon Pittney

The post Today in Supreme Court History: February 6, 1858 appeared first on Reason.com.

[Josh Blackman] The Hughes Court Repudiated FDR In Humphrey's Executor, and the Roberts Court Will Repudiate Trump by Maintaining Humphrey's Executor

Students always have difficulty reconciling Meyers v. United States (1926) with Humphrey's Executor v. United States (1935). In Meyers, Chief Justice Taft forcefully held that the President has an absolute removal power of a postmaster. But Humphrey's Executor held that the President could not remove a member of the Federal Trade Commission without showing cause. Superficially, at least, there are ways to line up the precedents. The postmaster only exercised executive power, while the FTC member exercised "quasi-judicial" and "quasi-legislative" powers, whatever those are. But there is another explanation I usually tell students.

Humphrey's Executor was argued on May 1, 1935, and decided on May 27, 1935. Schechter Poultry v. United States was argued on May 2 and 3, 1935, and decided on May 27, 1935. Coincidence? I think not. Both of these cases were repudiations of President Roosevelt's powers. Humphrey's Executor unanimously upheld the so-called independent regulatory agencies, and Schechter Poultry unanimously halted the National Industrial Recovery Act. This was not a good day for President Roosevelt. Both cases were largely seen as repudiations of FDR's overreaching powers.

Of course, if Roosevelt lost the battle on May 27, 1935, he would win the war in 1937. Even though there was no actual "Switch in Time that Saved Nine," West Coast Hotel v. Parrish (1937) signaled that the Supreme Court would no longer stand in Roosevelt's way. And, over time, Roosevelt would make nine appointments to the Supreme Court. The rest is history. In a fairly short period, Roosevelt radically altered the Constitution, the Supreme Court, and our republic.

Over the decades, Humphrey's Executor became a conservative bête noire.  But when the opportunity arose in Morrison v. Olson to scale back Humphrey's Executor, Chief Justice Rehnquist more-or-less reaffirmed the precedent. Only Justice Scalia, in dissent, was willing to highlight the problems with Humphrey's Executor. Over the ensuing decades, Scalia's Morrison dissent became gospel, and Rehnquist's Morrison majority aged quite poorly.

Fast forward to the Roberts Court. In a series of cases, stretching from Free Enterprise Fund (2010) to Seila Law v. CFPB (2020), the Court chipped away at Humphrey's Executor, but did not overrule the precedent. In the wake of Seila Law, the Court has not ventured further, finding various ways to avoid the issue. But that avoidance is no longer possible.

President Trump fired a member of the National Labor Relations Board without showing cause. Trump argued that the removal protections in the National Labor Relations Act are "inconsistent with the vesting of the executive Power in the President." The fired member, Gwynne Wilcox, has challenged her removal. This case allows Trump to directly challenge Humphrey's Executor. The District Court (Judge Howell) and the inevitable D.C. Circuit panel will be bound by that precedent, so there will be no surprises below.

What happens at First Street? The Supreme Court could simply deny review, given that there is a binding, on-point precedent. I am reasonably confident that Justices Thomas, Alito, and Gorsuch will vote to grant cert. For reasons I'll explain below, Chief Justice Roberts and Justice Barrett will want nothing to do with this case. Who will be the fourth vote for cert? Justice Kavanaugh.

This vote would be the most consequential cert vote Justice Kavanaugh will ever cast. Way back in 2008, then-Judge Kavanaugh wrote in Free Enterprise Fund v. PCAOB (2008) that the D.C. Circuit should "hold the line and not allow encroachments on the President's removal power beyond what Humphrey's Executor and Morrison already permit." He repeated that same line in PHH Corporation v. CFPB (2018).

I have to imagine that overruling Humphrey's Executor is something Justice Kavanaugh has thought about for some time. In 2018, the WSJ wrote, "Judge Brett Kavanaugh, now President Trump's nominee to the Supreme Court, has signaled he would like to overturn the precedent set in the case, Humphrey's Executor v. U.S." By contrast, Chris Walker thought Kavanaugh would not overrule the precedent. Then again, Walker suggested that Kavanaugh would be solicitous to Chevron, and we all know how that turned out in Loper Bright. Kavanaugh's chance to overrule Humphrey's Executor will come soon enough.

But Justice Kavanaugh only gets us to four votes. What about Chief Justice Roberts and Justice Barrett? Let's start with the Chief.

Roberts, like Kavanaugh, came of age after Morrison v. Olson. Humphrey's Executor, much like Roe v. Wade, was the sort of precedent that Reagan wunderkinds dreamed about overruling. Roberts did not need to overrule Humphrey's Executor in Seila Law, so he didn't. But what happened with Dobbs? Roberts blinked. He made up this bizarre fifteen-week test that made a hash out of precedent. It was such a weak opinion that we won't even bother including it in the next edition of the casebook. Roberts thought he was avoiding controversy, but in the process put out a totally forgettable concurrence. Certainly not a ruling for the ages.

I suspect Roberts would do much the same in Wilcox v. Trump. When presented with the opportunity to catch his white whale, he won't. If there was any other Republican president, Roberts would not hesitate to overrule Humphrey's Executor. While overruling Roe created something of a backlash, most Americans don't know the NLRB from the YMCA. Gutting the for-cause protections would make no appreciable difference in people's lives. It would be a freebie! But not with Trump. Roberts will not be seen as surrendering to Donald Trump's hostile takeover of the federal government. The Chief Justice will not save DOGE as a tax. My prediction is that Roberts will vote to reaffirm Humphrey's Executor, and in the process say some meaningless things about the separation of powers.

What about Justice Barrett? I think she will see the stare decisis value of Humphrey's Executor as too strong. She will say that as a matter of first impression, she might decide the case differently (with a cf. footnote citing all of the anti-removal scholarship), but given nine decades of precedent, the reliance interests are too weighty. And by a 5-4 vote, the Roberts Court will save independent agencies.

The Hughes Court repudiated FDR in Humphrey's Executor, and the Roberts Court will repudiate Trump by maintaining Humphrey's Executor. This case will not be based on the separation of powers, but an attempt to separate the Court from politics.

FDR did not have a good day in 1935, but he prevailed in 1937. Every action has a equal and opposite reaction. Let's see what happens in 2027.

The post The Hughes Court Repudiated FDR In Humphrey's Executor, and the Roberts Court Will Repudiate Trump by Maintaining Humphrey's Executor appeared first on Reason.com.

[Eugene Volokh] "These Events Took Place in 2023—Not 1943": Title VI Anti-Semitic Harassment Claim Against Cooper Union May Proceed

Judge John Cronan's opinion today in Gartenberg v. Cooper Union (S.D.N.Y.) considers Jewish students' claim that Cooper Union, a N.Y. private college, was deliberately indifferent to protesters' creating a hostile environment for Jewish students following the Oct. 7 attack. As I noted earlier, Judge Cronan concluded (generally correctly, I think), that the First Amendment bars Title VI liability based on "speech on matters of public concern." But the court allowed plaintiffs' case to go forward based on their allegations of other, constitutionally unprotected, conduct; an excerpt from the long opinion:

While Cooper Union is correct that the First Amendment imposes significant limits on the ways in which the Court can rely on many of the alleged acts of harassment detailed in Gartenberg's Complaint, Gartenberg nevertheless alleges sufficient facts to establish an actionably hostile educational environment based on instances of harassment that are not constitutionally protected in this context….

Although the October 25 demonstration began as a peaceful, public protest concerning the Israeli-Palestinian conflict, Gartenberg alleges that after a couple hours a mob of protestors forced their way past campus security guards and into the Foundation Building. Once inside, the protestors obstructed the hallway and disrupted classes while apparently attempting to locate President Sparks. Unable to find her, the protesters then "descended on the hallway surrounding the library" while continuing to chant their slogans.

It is plausible that this incident was physically threatening or humiliating to the Jewish students huddled inside the library. The demonstrators "attempted to enter the library, banging on and rattling the locked library doors and shouting 'let us in!'" They then spread out along the floor-to-ceiling windows separating the library from the hallway and banged loudly on the glass while waiving a Palestinian flag, holding up signs critical of Israel, and continuing their chants, this time plausibly directed at the visibly Jewish students inside the library.

This ordeal, which lasted approximately twenty minutes, was sufficiently threatening that a Cooper Union administrator locked the library doors as the mob approached, and the Jewish students left inside, some of whom were crying, contacted their loved ones and attempted to call the NYPD for help. Indeed, two school employees suggested that those Jewish students, and those students alone, should "hid[e] in the windowless upstairs portion of the library out of the demonstrators' sight" or attempt to "escap[e] the library through the back exit." And as noted, President Sparks herself was sufficiently frightened that she locked her office door to keep the demonstrators out before escaping the building through a back exit, and then "had a security guard stationed in front of her office for the remainder of the fall semester." Finally, when the Jewish students were at last able to leave, some of them were escorted out by campus security. These facts provide compelling support for Gartenberg's allegation that this incident was threatening or humiliating.

{Cooper Union vigorously disputes Gartenberg's characterization of the library incident and its response thereto, relying in part on statements made by the NYPD during a press conference regarding the incident. At the pleading stage, however, the Court must accept the allegations in Gartenberg's Complaint as true and view those facts in the light most favorable to her.}

Pushing back, Cooper Union faults the Jewish students for "gather[ing] in a prominent place in the library where they could be seen by the demonstrators," and for refusing the suggestion to "hid[e] in the windowless upstairs portion of the library out of the demonstrators' sight or escap[e] the library through the back exit." The school also notes that as the mob of protestors approached the Foundation Building's library, an administrator locked the library doors to keep the demonstrators out.

The Court is dismayed by Cooper Union's suggestion that the Jewish students should have hidden upstairs or left the building, or that locking the library doors was enough to discharge its obligations under Title VI. These events took place in 2023—not 1943—and Title VI places responsibility on colleges and universities to protect their Jewish students from harassment, not on those students to hide themselves away in a proverbial attic or attempt to escape from a place they have a right to be. In sum, the physically threatening or humiliating conduct that the Complaint alleges Jewish students in the library experienced "is entirely outside the ambit of the free speech clause," and was objectively severe.

Gartenberg also alleges that Jewish students were harassed both before and after the library incident through repeated instances of antisemitic vandalism and graffiti that violated Cooper Union's disciplinary policies. Jewish students who hung up posters with the names and photographs of people who had been abducted by Hamas during the October 7 attacks found those posters vandalized and torn down, "leaving just scraps of paper behind." Jewish students also found a bathroom stall vandalized with the phrase "from the river to the sea" written in a font commonly associated with Mein Kampf, "Hitler's famous work justifying the murder of six million Jews." And on October 23, 2023, the colonnade windows of the Foundation Building were defaced with signs that denigrated Jews in Israel as "settlers," justified Hamas's October 7 terror attacks as a mere "reaction" to that "settler colonization," and suggested that there should be no "blame … for the counterattack."

As alleged, these incidents of vandalism were extremely serious. The act of tearing down posters drawing attention to the abduction of Israelis, just days or weeks after a horrific antisemitic terror attack, sent an unmistakable message of national-origin-based hostility to Cooper Union's Jewish students. And if the message had not been clear enough, defacing the windows of the Foundation Building with express statements justifying the October 7 attacks as a "counterattack" or "reaction" to Jews to being "settlers" drove it home. Finally, though a touch more subtle than displaying a symbol like a swastika, the use of distinctive lettering associated with Hitler's manifesto, especially when used in conjunction with a phrase than can plausibly be understood as calling for the destruction of the State of Israel and the Jewish people, was also readily "capable of arousing fear and intimidation" among Cooper Union's Jewish students.

These further episodes of harassment are just as severe or pervasive, if not more so, than the kinds of verbal taunting that courts in this District have deemed sufficient to state a plausible claim for a hostile environment, especially in conjunction with the physically threatening library incident. And unlike the first category of alleged harassment that Gartenberg relies on discussed above, these acts of vandalism—tearing down hostage posters, scrawling plausibly antisemitic graffiti where Jewish students could not reasonably avoid it, and defacing the windows of a main campus building that Jewish students must enter and walk past—were not reasonably calculated to contribute to public discourse and violated Cooper Union's time, place, and manner regulations.

These acts of vandalism therefore lacked the degree of legitimate expressive "purpose that might merit the kind of First Amendment protection that has long been recognized in the academic arena." … "[I]t is an untenable position that conduct such as vandalism is protected by the First Amendment merely because those engaged in such conduct intend thereby to express an idea." … Taking these incidents into consideration for purposes of the hostile environment analysis appropriately "balance[s] the government's interest in regulating for the public welfare with the societal value of maintaining a free marketplace of ideas," and is unlikely to pose a genuine threat to the freedom of expression on college campuses.

Although it may ultimately turn out that the protestors' conduct on October 25 and otherwise was not in any part motivated by animus towards Jews or was less severe and pervasive than the Complaint makes it seem, "the interpretation of any ambiguous conduct is properly 'an issue for the jury.'" Accordingly, Gartenberg plausibly alleges that Jewish students at Cooper Union were subject to antisemitic abuse that was both severe and pervasive based on facts properly considered under Title VI and the First Amendment.

The post "These Events Took Place in 2023—Not 1943": Title VI Anti-Semitic Harassment Claim Against Cooper Union May Proceed appeared first on Reason.com.

[Eugene Volokh] "Title VI Must Be Applied Consistent with First Amendment Principles"

An excerpt from Judge John Cronan's long decision today in Gartenberg v. Cooper Union (S.D.N.Y.) (I expect to blog more later about other facets of the case [UPDATE: see this post]); note that the court's logic applies to Title VII liability in workplaces as well, especially since it cites precedents and articles that focus on Title VII:

Title VI makes it unlawful for institutions that receive federal funding to discriminate against participants in their programs on account of race, color, or national origin. In the educational context, actionable discrimination includes an institution's "deliberate indifference" to known instances of student-on-student harassment that are "'severe, pervasive, and objectively offensive' and discriminatory in effect." …

Title VI Must Be Applied Consistent with First Amendment Principles, Even When the Defendant is a Private Institution.

At the outset, Cooper Union maintains that Gartenberg's hostile environment claims are based largely on protected political speech by pro-Palestinian members of its community, and are therefore foreclosed by the First Amendment. Indeed, Gartenberg's Complaint—which alleges liability predicated, in part, on a demonstration on a public sidewalk concerning the Israeli-Palestinian conflict, the distribution of fliers supporting the Palestinian cause, a controversial "art display" advocating violent resistance to "colonialism," and a speech given by Dr. Bartov about the Holocaust—is "rife … with [F]irst [A]mendment overtones." DeAngelis v. El Paso Mun. Police Officers Ass'n (5th Cir. 1995).

Gartenberg responds that the First Amendment has no relevance to her hostile environment claims. Gartenberg contends that Cooper Union is a private institution and that "[i]n contrast to students at public or state institutions, students at private colleges do not enjoy First Amendment protections." Going on, Gartenberg argues that regardless of whether Cooper Union is itself bound by the First Amendment, it would "still have the authority under the U.S. Constitution, and a responsibility under Title VI, to punish students who harass their Jewish peers on campus and thereby interfere with the victims' ability to participate in school activities."

Gartenberg's argument is unpersuasive.

A statute that burdens protected speech must comport with the First Amendment regardless of whether it does so directly, such as by prohibiting certain speech outright, or indirectly, such as by requiring a court adjudicating a "civil lawsuit between private parties" to apply a rule of law that has the effect of "impos[ing] invalid restrictions on [the defendant's] constitutional freedom[] of speech." N.Y. Times Co. v. Sullivan (1964); see also Kingsley R. Browne, Title VII as Censorship: Hostile-Environment Harassment and the First Amendment, 52 Ohio St. L.J. 481, 510-11 (1991) ("Although the primary method of enforcement of the harassment prohibition is through civil actions between private parties, imposition of liability by the courts under federal and state statutes easily falls within the definition of 'state action.'"). And as relevant here, requiring schools to censor or punish political speech to avoid liability for a hostile environment would burden not only their students' freedom of expression, but the academic freedom of the institution itself to create an educational environment centered around the free exchange of ideas. See Dube v. State Univ. of N.Y. (2d Cir. 1990) ("[F]or decades it has been clearly established that the First Amendment tolerates neither laws nor other means of coercion, persuasion or intimidation 'that cast a pall of orthodoxy' over the free exchange of ideas in the classroom.").

That a private institution like Cooper Union is generally free to regulate its students' speech without regard for the First Amendment, therefore, is irrelevant to the question of whether Congress may compel it to do so via the threat of civil liability under Title VI. See Yelling v. St. Vincent's Health Sys. (11th Cir. 2023) (Brasher, J., concurring) ("Although a private [institution] can adopt a speech code if it wants, the government usually cannot force people to speak in a particular way."); Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 U.C.L.A. L. Rev. 1791, 1817 (1992) ("The government cannot escape First Amendment scrutiny for its speech restriction by forcing someone else, on pain of liability, to implement that restriction.").

In addition, if a given interpretation of a statute "would raise a multitude of constitutional problems" when applied in one context, a court must consider those issues regardless of "whether or not those constitutional problems pertain to the particular litigant before the Court." Title VI, contrary to Gartenberg's suggestion, is not "a chameleon, its meaning subject to change depending on" whether the defendant is private or public institution. The Court therefore cannot ignore the constitutional problems that would inevitably arise in the context of public universities—which, unlike Cooper Union, must respect their students' First Amendment rights—if Title VI required the suppression of core political speech.

Accordingly, the Court must confront the merits of Cooper Union's First Amendment defense. Imposing civil liability on institutions based on their failure to censor or punish offensive speech raises significant constitutional concerns. The First Amendment embodies "the fundamental principle that governments have 'no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" Yet "a disparaging comment directed at an individual's sex, race, or some other personal characteristic has the potential to create an 'hostile environment'—and thus come within the ambit of anti-discrimination laws—precisely because of its sensitive subject matter and because of the odious viewpoint it expresses." Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001) (Alito, J.); see also DeAngelis (explaining that when a hostile environment claim is "founded solely on verbal insults, pictorial or literary matter, the statute imposes content-based, viewpoint-discriminatory restrictions on speech"). Thus, the federal anti-discrimination laws arguably "impose special prohibitions on those speakers who express views on disfavored subjects" by effectively requiring institutions to censor and punish at least some offensive speech concerning matters of race, sex, and other personal characteristics. R.A.V. v. City of St. Paul (1992); see, e.g., Volokh, supra, at 1854-55 ("One person in the lunch room may speak eloquently and loudly about how women are equal to men, and harassment law will not stop him. But when another tries to respond that women are inferior—belong in the home, are unreliable during their menstrual periods, or should not be allowed on the police force—harassment law steps in.").

In part because harassment claims are rarely based on pure political speech, however, few courts have had occasion to address what limits, if any, the First Amendment places on federal anti-discrimination law. But under the Supreme Court's usual First Amendment jurisprudence, a statute that "favors one viewpoint about [a topic] over the other … must satisfy strict scrutiny," meaning that Congress must adopt "the least restrictive means of achieving a compelling state interest." Plus, speech on matters of "public concern"—expression that "can 'be fairly considered as relating to any matter of political, social, or other concern to the community'"—is "entitled to 'special protection' under the First Amendment" and generally "cannot be restricted simply because it is upsetting or arouses contempt." Snyder v. Phelps (2011).

It is also far from clear that most offensive speech that is regularly swept up in harassment cases would fit within the narrow sphere of traditionally recognized categories of unprotected expression, such as the exceptions for incitement, fighting words, true threats, and obscenity. Indeed, "courts have never embraced a categorical 'harassment exception' from First Amendment protection for speech that is within the ambit of federal anti-discrimination laws." Saxe; see also Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist. (9th Cir. 2010) ("Harassment law generally targets conduct, and it sweeps in speech as harassment only when consistent with the First Amendment."). For these reasons, one leading treatise on the First Amendment teaches that "in the rare case in which the particular speech at issue does qualify [as expression on a matter of public concern], the [institution] should be exempted from liability" for a hostile environment. Rodney A. Smolla & Melville B. Nimmer, Smolla & Nimmer on Freedom of Speech § 13:17 (2024).

On the other hand, there is no question that the elimination of discriminatory harassment in employment and in programs receiving federal funding is a compelling government interest. Saxe. And as decades of judicial experience have made all too clear, abusive speech, no less than abusive conduct, can readily slam shut the doors to the workplace or seal the schoolhouse gates. So just as federal anti-discrimination law must provide some breathing space for contentious political expression if First Amendment rights are to survive, the Constitution must tolerate the regulation of at least some offensive speech if the Civil Rights Act is to achieve its promise of unlocking the benefits of employment and education for all Americans. See Richard H. Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn't Bark, 1994 Sup. Ct. Rev. 1, 48 (1994) ("[P]olitical democracy requires a broad space for unrestricted public discourse, but that space need not be boundless." (internal quotation marks omitted)). And there may yet be a doctrinal basis for regulating offensive speech more closely in those contexts. See Wisconsin v. Mitchell (1993) (citing Title VII "as an example of a permissible content- neutral regulation of conduct"); Avis Rent A Car Sys., Inc. v. Aguilar (2000) (Thomas, J., dissenting from denial of certiorari) (discussing the public-employee-speech and captive-audience doctrines).

Finally, the Court notes that the First Amendment concerns described above cannot be brushed aside in the Title VI context merely because Congress enacted the statute pursuant to its power under the Spending Clause. Because compliance with Title VI (unlike compliance with Title VII and other "mandatory" anti-discrimination statutes) is only required for institutions that voluntarily accept federal funding, one might take the position that to the extent a college or university objects to the First Amendment implications of the statute, its recourse is simply to stop accepting federal education funds. Congress, however, "may not deny a benefit to a person on a basis that infringes his constitutionally protected … freedom of speech even if he has no entitlement to that benefit." Under that principle, known as the "unconstitutional conditions doctrine," a condition imposed in connection with a grant of federal funding would be unconstitutional if Congress could not impose that condition through direct legislation. Accordingly, the fact that an institution could escape Title VI's requirements by declining federal funds does not, by itself, obviate the First Amendment implications of construing Title VI to require censorship of political speech.

The Court Does Not Construe Title VI as Reaching Pure Speech on Matters of Public Concern.

In light of the competing interests described above, courts have emphasized the need to "exercise special caution when applying [anti-discrimination law] to matters involving traditionally protected areas of speech." Honeyfund.com Inc. v. Governor (11th Cir. 2024); see also DeAngelis ("Where pure expression is involved, [anti-discrimination law] steers into the territory of the First Amendment."). And the responsibility of courts to tread lightly when political speech is in the legal crosshairs is particularly important in the context of higher education.

Following that careful approach, the Court concludes that because interpreting Title VI to impose liability for a hostile environment created in part by pure speech on matters of public concern would cast significant doubt on the statute's constitutionality, the Court must adopt a permissible construction of Title VI that avoids placing its application in First Amendment jeopardy…. As relevant to the elements of Gartenberg's Title VI claim that are at issue in this case, three guiding principles emerge that avoid a collision between the First Amendment and anti-discrimination law while still allowing the statute to function effectively.

First, speech "on a matter of public concern, directed to the college community," will generally fail to "constitute unlawful harassment." Rodriguez. This approach is consistent with the objective standard that courts use to assess the hostility element of federal harassment claims: a reasonable person should understand that speech on matters of public concern, directed to the community at large through generally accepted methods of communication, is very different than targeted, personal harassment aimed at a particular person. See Yelling (Brasher, J., concurring) (explaining that "speech on public matters is inherently less likely to create a hostile [] environment than speech on private matters"); DeAngelis (declining to find a hostile work environment based on a series of satirical columns published in a police union's newsletter that "derogatorily referred to policewomen"). The principle underlying this approach is that a reasonable person should distinguish between the abstract expression of offensive "values, politics, and attitudes" on the one hand, and "remarks that genuinely target and harass" individuals on the other. Smolla & Nimmer, supra § 13:17; see also Volokh, supra, at 1871 (distinguishing between offensive speech directed at particular individuals in a targeted manner and speech that is not so directed). This is especially true in the context of higher education, where the reasonable student expects (if not hopes) to encounter "rigorous debate and discussion, and the unfettered exchange of ideas" concerning a wide range of controversial topics. Azhar Majeed, The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights, 35 J.C. & U.L. 385, 386 (2009).

And by the same token, a reasonable person should perceive offensive political speech communicated through generally accepted means (say, during a debate in the breakroom or in a flier pinned to a bulletin board) differently to offensive messages conveyed in a manner that does not conform to reasonable social expectations (for instance, by vandalizing a hallway). The former is much more likely to be received as good-faith discourse; the latter as an effort to harass, intimidate, or discriminate. Cf. Fallon, supra, at 47 (explaining that the First Amendment should protect "speech or expressive conduct that is reasonably designed or intended to contribute to reasoned debate on issues of public concern" (internal quotation marks omitted)). And on the other side of the equation, restricting the former is far more likely to burden legitimate expressive activity than restricting the latter.

Limiting anti-discrimination statutes like Title VI in this manner does not, however, mean that courts must "fall for the glib assertion that because matters of race and gender are, at the broadest level of abstraction, clearly issues of public concern, all racist and sexist remarks automatically qualify" for First Amendment protection. Applying federal anti-discrimination law consistent with First Amendment principles does not, in other words, require courts to shield all "derogatory epithets" of marginal value or to protect speech "even about political matters, that is so persistent or patently harassing that it could not be reasonably designed to contribute to reasoned debate." Fallon, supra, at 47. To be sure, political speech need not match the caliber of expression associated "with Marcus Cicero or Henry Clay" to receive constitutional protection, Yelling (Brasher, J., concurring), but neither does the First Amendment demand that low-value speech of the sort "that can give an abusive character even to political discussion" be protected in all contexts. And as noted, the way in which a message is communicated can matter just as much to its harassing character as what is said.

At the end of the day, what is important is that the law provide sufficient "breathing space for First Amendment freedoms." Accordingly, the Court does not construe Title VI as allowing for liability based on speech that is reasonably designed or intended to contribute to debate on matters of public concern, and that is expressed through generally accepted methods of communication.

Second, the need to avoid a collision between Title VI and the First Amendment counsels in favor of an even more limited application of the already strict deliberate indifference standard. Under that standard, an institution may only be held liable when its response (or lack thereof) to known instances of student-on-student harassment was "clearly unreasonable in light of the known circumstances." It is "axiomatic," however, that "the government may not silence speech because the ideas it promotes are thought to be offensive." Rodriguez. Nor may it conscript private institutions to act as censors by dangling the threat of civil liability for a hostile environment. That is nowhere truer than in the educational context, where "the Supreme Court's academic-freedom jurisprudence principally protects the 'marketplace of ideas' in the university and prevents government intrusion."

The First Amendment therefore "demands substantial deference to [a] college's decision not to take action against" students who engage in expressive activity on matters of public concern and instead requires courts to "defer to colleges' decisions to err on the side of academic freedom." For these reasons, it will usually be difficult—if not impossible—to show that a college or university acted in a clearly unreasonable manner under Title VI where its acts of alleged deliberate indifference consist of its refusal to punish political speech directed at the college community through reasonable means.

Finally, construing Title VI not to reach instances of pure speech on matters of public concern, or an institution's failure to censor or punish the same, does not mean that such expression is irrelevant to determining whether actionable harassment occurred. To make out a hostile environment claim, a plaintiff must plead (and then prove) not only that they suffered objectively severe or pervasive harassment, but that the harassment was motivated, at least in part, by a protected characteristic. And courts have long recognized that there is "no constitutional problem with using … offensive speech as evidence of motive or intent." Saxe; Mitchell (explaining that the First Amendment does not preclude evidence of discriminatory motive under the federal anti-discrimination statutes).

So for example, evidence that a white student attended a Ku Klux Klan rally, though protected expression or association in and of itself, may properly be considered in determining whether unprotected harassing conduct directed at his African-American classmates was motivated by race. See Dawson v. Delaware (1992) ("[T]he Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations … simply because those beliefs and associations are protected by the First Amendment."). Accordingly, when a hostile environment claim is based on both protected speech and unprotected conduct, a court must still consider the entire record in determining whether the harassment was discriminatory in nature.

This strikes me as generally a sound and important analysis, and one that's likely to be highly influential. I don't entirely agree with it on all points, but I think that on balance it's a major step forward in this area of the law.

UPDATE: Here's how the court applies the reasoning above to particular allegations by the plaintiffs:

As foreshadowed above, many of the alleged instances of harassment detailed in Gartenberg's Complaint are examples of pure speech on matters of public concern. For instance, Gartenberg alleges that on October 25, 2023, pro-Palestinian students demonstrated on the sidewalk adjacent to the Foundation Building and chanted slogans concerning the Israeli-Palestinian conflict. Gartenberg also points to fliers that were distributed around the Cooper Union campus inviting students to "[c]elebrate the 36th anniversary of the First Intifada" and to a vigil hosted by Cooper Union's SJP chapter to "grieve and honor all those killed by decades of Israeli occupation and imperial violence."

Similarly, she points to articles in Cooper Union's student-run newspaper by the MSA and the BSU disputing Jewish students' account of the library incident and criticizing "the conflation of Zionism and Judaism" as "manipulative, exploitive, and racist"; an alumni letter that "attempted to justify the sickening Hamas attack of October 7"; an "art display" that included the words "RESIST COLONIALISM FROM THE BRONX TO PALESTINE 'BY ANY MEANS NECESSARY'"; and Cooper Union "requiring all students, including Jewish students, taking a core Humanities and Social Sciences class to attend a speech titled 'The Never Again Syndrome: Uses and Misuses of Holocaust Memory and the Weaponization of Language' by anti-Israel activist, Omer Bartov."

Regardless of whether this expression is better characterized as righteous protest in support of a noble cause, as the vulgar celebration of terrorism and antisemitism, or as something in-between, it is not a proper basis on which to impose civil liability on Cooper Union. The content of the protest slogans, fliers, and other expressions described above related to the ongoing Israeli-Palestinian conflict and touched upon topics like Zionism, colonialism, and racism.

Gartenberg's 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 Cooper Union community at large. And apart from a conclusory suggestion that this speech included "threats of violence," the Complaint does not plausibly allege that any of this expressive conduct constituted true threats, incitement, fighting words, obscenity, or any other category of traditionally unprotected speech under the Supreme Court's First Amendment jurisprudence.

To the contrary, as described in the Complaint, this expression qualifies as pure speech on matters of public concern because "it can be fairly considered as relating to [a] matter of political, social, or other concern to the community" and was communicated in a manner reasonably calculated to contribute to an ongoing public debate of considerable political significance. Accordingly, while some of this speech may properly be considered for purposes of Title VI's discriminatory-intent element, it cannot itself support a claim for an objectively hostile educational environment under this Court's interpretation of the statute.

The post "Title VI Must Be Applied Consistent with First Amendment Principles" appeared first on Reason.com.

[Eugene Volokh] Second Amendment Protects Marijuana Users Unless There's Concrete Showing They're Dangerous

From U.S. v. Cooper, decided today by Eighth Circuit Judge David Stras, joined by Judges Steven Grasz and Jonathan Kobes:

In United States v. Veasley (8th Cir. 2024), we concluded that keeping firearms out of the hands of drug users does not "always violate[] the Second Amendment." Now the question is whether it sometimes can. The answer is yes, so we remand for the district court to determine whether it does for LaVance Cooper….

Cooper consented to a bench trial on stipulated facts. One was that he smoked marijuana three to four times a week. Another was that he had done it two days before officers found a Glock 20 pistol in his car during a traffic stop. Based on those facts and a few others, the district court found Cooper guilty of being a drug user in possession of a firearm, see 18 U.S.C. § 922(g)(3), and sentenced him to 37 months in prison….

In every Second Amendment case, the overarching question is whether a limitation on the right to keep and bear arms is "consistent with this Nation's historical tradition of firearm regulation." N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen (2022). Key to answering that question is identifying "analogue[s]": Founding-era regulations that "impose[d] a comparable burden on the right of armed self-defense" with a "comparabl[e] justifi[cation]." See also United States v. Rahimi (2024) (explaining that the modern regulation "need not be a 'dead ringer' or a 'historical twin'"). If no comparable analogues exist because "disarmament is a [purely] modern solution to a centuries-old problem," or strays too far from the "how and why" of "historical regulations," then the Second Amendment kicks in….

In Veasley, we identified two Founding-era analogues that "make [the drug-user-in-possession statute] constitutional in [certain] applications": "confinement of the mentally ill" and the "criminal prohibition on taking up arms to terrify the people."

Early in this country's history, the "mentally ill and dangerous" ended up in jails, makeshift asylums, and mental hospitals "with straitjackets and chains." Confinement came with a "loss of liberties," including disarmament, "to preserve the peace of the community." "Those who posed no danger," by contrast, "stayed at home with their families," with "their civil liberties … intact."

The question is whether § 922(g)(3) is "relevantly similar" to this Founding- era analogue. It is, but not for everyone. The "behavioral effects" of mental illness and drug use can "overlap," but only the subset of the mentally ill who were dangerous faced confinement and the loss of arms. It follows that, for disarmament of drug users and addicts to be comparably "justifi[ed]," it must be limited to those "who pose a danger to others." The analogy is complete, in other words, for someone whose "regular use[] of … PCP … induce[s] violence," but not for a "frail and elderly grandmother" who "uses marijuana for a chronic medical condition." The latter would regulate "arms-bearing … to an extent beyond what was done at the [F]ounding."

Much the same goes for Veasley's other analogue, Terror of the People. Initially a common-law crime and later codified in some states, these going-armed laws required more than "mere possession" of a weapon. As "a mechanism for punishing those who had menaced others with firearms," an essential element was "terrorizing behavior … accompany[ing] the possession." Punishment included imprisonment and "forfeiture of the arms" used in the crime. Sometimes,  when  aggression  was  foreseeable,  magistrates  ordered individuals to post surety bonds to "prevent[] violence before it occurred," but only after providing "significant procedural protections."

The lesson to draw is that this analogy only works "for some drug users." When "a court has found that the defendant 'represents a credible threat,'" a ban on firearm possession "fits neatly within the tradition." Rahimi. And so does one applied to drug users who engage in "terrifying conduct." For others, like the hypothetical grandmother, threatening violence or causing terror is "exceedingly unlikely," so the justification for disarmament is not comparable.

These two analogues also frame the relevant questions for resolving Cooper's as-applied challenge. Did using marijuana make Cooper act like someone who is "both mentally ill and dangerous"? Did he "induce terror" or "pose a credible threat to the physical safety of others" with a firearm? Unless one of the answers is yes—or the government identifies a new analogue we missed—prosecuting him under § 922(g)(3) would be "[in]consistent with this Nation's historical tradition of firearm regulation….

We recognize that not every group targeted by a disarmament law is the same. Consider felons. In United States v. Jackson, a panel of this court surveyed a different set of Founding-era laws and concluded that they supported a categorical ban. Supreme Court dicta singling out felon-dispossession laws as "presumptively" constitutional provided additional support.

We have "no such 'assurances,'" however, about drug users and addicts. Nor has our review of the historical tradition surrounding them, to the extent one exists, turned up any bright- line rules. Sometimes disarming drug users and addicts will line up with the case-by-case historical tradition, but other times it will not. The district court's task on remand is to figure out which side of the Second Amendment line Cooper's case falls on….

Although both sides invite us to resolve Cooper's as-applied challenge, the district court is in the best position to take the first crack at it. The factual record is thin, given that the case proceeded to a bench trial on stipulated facts, so the parties may want to supplement the record with other evidence. In the meantime, we will tie up a loose end to save everyone time on remand.

The government suggests in its briefing that Cooper is too dangerous to have a gun because he "possessed [one] for protection after [a] recent shooting at his residence." We disagree for two reasons. First, the parties only stipulated that "officers were dispatched to [his] residence … in reference to an individual who had been shot," not a shooting that happened there. And second, "individual self-defense is 'the central component' of the Second Amendment right," not an exception to it. {Marijuana use by itself is not an exception either, even if possessing it breaks federal law.}

The post Second Amendment Protects Marijuana Users Unless There's Concrete Showing They're Dangerous appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: February 5, 1793

2/5/1793: Chisholm v. Georgia argued.

The post Today in Supreme Court History: February 5, 1793 appeared first on Reason.com.

[Eugene Volokh] Wednesday Open Thread

The post Wednesday Open Thread appeared first on Reason.com.

[David Post] FBI Agents File Class Action Challenging "Retaliatory Firing"

While FBI agents may be at-will employees who can, generally speaking, be fired for "any reason or no reason," they can't be fired for an unconstitutional reason, or as punishment for the exercise of their constitutional rights (e.g. he can't fire all the African-American agents, or all the agents registered as Democrats).

The Complaint, filed in DC District Court, is posted here. Plaintiffs are "employees of the FBI who worked on Jan. 6 and/or Mar-a-Lago cases, and who have been informed that they are likely to be terminated in the very near future for such activity." They "intend to represent a class of at least 6,000 current and former FBI agents and employees who participated in some manner in the investigation and prosecution of crimes and abuses of power by Donald Trump, or by those acting at his behest."

Three Counts of unlawful activity are alleged: (1) Violation of the First Amendment to the Constitution: Retaliation Based on Perceived Political Affiliation; (2) Violation of Plaintiffs' Substantive and Procedural Due Process Rights under the 5th Amendment; and (3) Violation of the Plaintiffs' Fifth Amendment Right to Privacy.

I think they've got a decent case - don't you?

The post FBI Agents File Class Action Challenging "Retaliatory Firing" appeared first on Reason.com.

[Ilya Somin] Trump's Tariff Power Grab May not be Over

(NA)

Yesterday, Trump postponed his plan to impose massive 25% tariffs on imports from Canada and Mexico, as a result of deals in which the two countries largely promised to do things they were already doing, actions that are highly unlikely to curb the fentanyl crisis that Trump used as a pretext for his actions.

But this doesn't necessarily mean that the crisis is over. After all, Trump only postponed the tariffs by 30 days. He hasn't cancelled the plan to impose them entirely. What he does after the thirty day deadline expires remains to be seen. In addition, Trump's tariff ambitions may not be limited to Canada and Mexico. He also threatens to impose them on the European Union and others. Moreover, even just threatening tariffs only to pull back after extorting concessions on other issues, causes real harm, by disrupting the continuity and legal certainty on which trade relationships depend. A key purpose of free trade agreements - like the USMCA deal that Trump himself signed with Canada and Mexico in 2018, only to violate it now - is to establish certainty and forestall opportunistic imposition of trade restrictions.

Thus, we cannot rest easy about this issue. Importers and others should still plan to bring legal action against the imposition of these kinds of tariffs. And they would do well to use the major questions and nondelegation arguments I outlined here. As also noted in my earlier post, opponents should also do everything they can to oppose the tariffs politically, by highlighting the ways in which they will increase prices for Americans.

The post Trump's Tariff Power Grab May not be Over appeared first on Reason.com.