Eugene Volokh's Blog, page 173

[Eugene Volokh] Court Upholds 15-Year Sentence for Multiple Politically Motivated Arsons of Walmarts

From U.S. v. Olson, decided yesterday by Eleventh Circuit Judge Ed Carnes, joined by Judges Andre Brasher and Charles Wilson:

During a two-week period …, Olson conspired with seven others to set fires in four different Walmart stores. They set the fires during business hours while customers, children, and employees were still inside the stores. The fires caused confusion, chaos, and fear….

In early 2021, Alexander Olson moved to Lillian, Alabama, with his brother, Quinton Olson, and his friend, Michael Bottorff, who became two of his co-conspirators, to live in a house already occupied by his other soon-to-be co-conspirators, Jeffrey Sikes, Erica Sikes, Sean Bottorff, Jenna Bottorff, and Mikayla Scheele. After moving in, Olson became involved in meetings (that sometimes lasted all day) in which the eight co-conspirators planned the Walmart fires.

Jeffrey Sikes was unquestionably the leader of the pack. On the night before the first fire, he instructed co-conspirators Olson, Sean Bottorff, and Mikayla Scheele to pack bags with tactical gear and clothes in preparation for the next day's operation. When that day arrived, Olson, Scheele, and Sikes entered the first Walmart during normal business hours, while Bottorff stayed in the getaway car. Sikes told Olson and Scheele that once the three of them were inside the store, they should disperse, douse store merchandise with lighter fluid, and then set the merchandise on fire. Each one of them, including Olson, lit a fire inside the store. As those three fires broke out and spread, there was "mass chaos" as customers, including young children, and employees scrambled to get out of the store.

The next day, Olson and Scheele set fire to another Walmart in Mobile, Alabama. They followed a similar pattern to the one they had used the day before: they entered the store separately, found each other once inside, and then split up as Scheele set fires. As the two of them left the store, there were "a lot of people outside" as everyone tried to escape the burning store. The alarms were loud, the smoke was thick, people were scared and screaming.

On the way back home from that second fire, the group stopped at a different Walmart so that Olson could buy a cell phone. They planned to use that phone to anonymously send a document entitled "Declaration of War and Demands for the People" to various media outlets.

The "Declaration of War" characterized Walmart's policies and business practices as "a crime against humanity" that "validate[d]" the conspirators' "action of war against them." The document included seven demands that Walmart would have to meet for the fires at its stores to stop:

Pay its employees $18/hour, regardless of full-time status (Demand 1) Pay 100% of each employee's health insurance premium (Demand 2) Give new moms six months maternity leave and new dads two months paternity leave (Demand 3) Pay its CEO no more than five times as much as its lowest-earning employee (Demand 4) Implement a climate plan (Demand 5) Supply 900 ready-to-eat meals (900 from each store) to people in need each day (Demand 6) Produce half of its goods in the United States within five years (Demand 7)

About a week later, Jeffrey Sikes, Olson, Scheele, and Sean Bottorff traveled to Mississippi. Olson and Scheele set the group's third fire in a Walmart in Gulfport. The resulting scene was just as "chaotic" as the two previous ones.

That wasn't the last crime the group committed or attempted. After the third Walmart fire, they stopped at a bank. With Olson in the car, Sikes strapped on Scheele what looked like a suicide vest, which "had three or four metal pipes on it with wires and then a phone connected to it." Sikes instructed her to go inside the bank wearing the vest and rob the bank. Olson watched without intervening. Scheele ultimately "broke down" and couldn't bring herself to enter the bank. Sikes yelled at her but he didn't put the vest on anyone else, and the group abandoned any attempt to rob that bank. As they left, Sikes pointed out an armored car at the bank and commented that Scheele "probably would have been shot" if she had actually gone in the bank strapped with the vest.

The group turned its attention back to Walmart. That same night, Olson and Scheele set fire inside a fourth Walmart in Biloxi, Mississippi. Although it was late at night, customers and children were still inside when the fire started. That was the group's last fire.

Olson was prosecuted for "maliciously setting fires to 'damage and destroy, and attempt to damage and destroy, by means of fire, buildings and other personal and real property'" (and conspiracy to do so). He pleaded guilty, and the government recommended a sentence of 5 years in prison. The recommended sentence under the advisory sentencing guidelines would normally have been 41 to 51 months, but the statutory minimum was 5 years (the statutory maximum being 20 years), which led to an advisory guidelines recommendation of 5 years.

The district court disagreed with the government recommendation, and sentenced Olson to 15 years. The appellate court upheld the district court's sentencing decision:

A district court must consider the 18 U.S.C. § 3553(a) factors "in determining the particular sentence to be imposed." {Those factors are: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed [treatment]; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range … ; (5) any pertinent policy statement (A) issued by the Sentencing Commission … ; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.} …

Absent a procedural error, and none is present here, we will vacate a defendant's sentence only "if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case." "A sentence well below the statutory maximum indicates reasonableness."

Olson challenges the weight the district court gave to certain factors. He argues that the court ignored: (1) mitigating circumstances, including information about his personal history included in the PSR and details contained in the psychologist's report that he filed with the court; (2) that he was less culpable than Sikes; (3) his assertions about his low chance of recidivism; and (4) the influence of Sikes' "powers of persuasion and leadership" on Olson's actions.

Each of Olson's arguments of procedural error fails because the district court did explicitly consider all of those circumstances and facts that Olson says it ignored. First, the court did consider his mitigating circumstances as detailed in the PSR and in the psychologist's report. Second, the court did consider the relative culpability of Olson and Jeff Sikes—and notably did sentence Olson to a shorter sentence than Sikes [who was sentenced to 18 years -EV]. Third, the court did consider his argument that he had a low chance of recidivism. Fourth, the court did consider the "powers of persuasion" that Jeff Sikes exercised over Olson.

At its core, Olson's arguments are less about a failure to consider factors than about the relative weight the court gave to particular factors. The district court was free to weigh the § 3553(a) factors as it saw fit when considering them. The weight to be assigned to any one factor falls squarely within the district court's broad sentencing discretion.

The district court considered the § 3553(a) factors—explicitly discussing the seriousness of the offense and the need for deterrence, incapacitation, and just punishment as factors meriting an upward deviation from the guidelines. It also highlighted other specific details about Olson's crime that took his "case outside the heartland of regular arson guidelines": the more than $7 million in property damage; the risk to human life presented by setting fire to four separate Walmart stores during business hours; and the political motivation behind the fires.

The district court supported its significant upward variation "with significant justifications." Not only that but Olson's sentence of 180 months is well below the statutory maximum of 240 months, which is another indicator of its reasonableness. Olson's sentence was "in the ballpark of permissible" outcomes, making it substantively reasonable as a variance. If viewed as a variance, the sentence stands.

Here's more on Olson's history and on the trial judge's decision:

As to Olson's personal history, the PSR recounted that, when he was just two years old, he was sexually abused at a daycare center. His mother told the probation officer that Olson does not like to speak about the incident. And she told the defense's retained psychologist that Alexander did not remember the alleged molestation "at the time or later in life." His parents divorced when he was three years old, and he lived with his mother until the age of fourteen. After that, he lived with his father until he was eighteen years old. During that time, while under the influence of alcohol, his father physically and verbally abused him.

After Olson joined the United States Navy in 2017, he was diagnosed with "adjustment disorder with depressed mood," which ultimately led to his "uncharacterized (entry level separation) discharge" after only two months in the Navy. After his discharge from the Navy, Olson twice received inpatient mental health treatment—once in May 2018 after expressing suicidal thoughts and again in December 2019 after reporting he had attempted suicide.

Before the sentence hearing, Olson filed with the court a copy of a report from Dr. James Stefurak, a licensed psychologist. That report recounted Olson's personal history and expressed opinions about his mental and emotional instability. The report stated that Olson had a strong need for male validation. It also expressed the view that Olson "remains at risk of being drawn into behaviors that could lead to recidivism but is unlikely to initiate or voluntarily seek out criminal and norm-violating behaviors in the future."

Over the government's objection, the district court considered Dr. Stefurak's report. In deciding to do so, the court referred to the "hold" the group's leader, Jeffrey Sikes, had over each member of the group and noted that, "but for Mr. Sikes, [these fires] would not have occurred."

Olson argued that the mandatory minimum guidelines range sentence of 60 months imprisonment was appropriate based on the nature and circumstances of the offense, specifically the influence that codefendant and group leader, Jeffrey Sikes, had on Olson's actions. He asked the court to ensure that his sentence reflected that he was less culpable than Sikes. Olson asserted that because of his own young age (22 years old at the time the crimes were committed), his vulnerable mental state, and the unlikelihood that someone with Sikes' charisma would take hold of him again, he had a low risk of recidivism.

Olson called his aunt as a witness at the hearing, and she spoke well of his character. Then in allocution, he expressed his remorse for his actions and promised that he would not reoffend.

In sentencing Olson, the court found that co-conspirator Jeffrey Sikes was, in fact, the most culpable person in the conspiracy and that distinctions should be drawn between Sikes and the other members of the conspiracy, including Olson. Still, the court stated that several factors "t[ook] this case outside the heartland of regular arson guidelines." It noted the reality that the conspiracy involved more than one fire, which meant Olson had conspired and acted to put many people at risk. The court was "shocked that there was no loss of life" due to the fires and noted that the fires had caused great financial loss to Walmart.

The court also took into account the group's motives for setting the fires. It explained that the guidelines did not account for the fact that the crimes had a "political agenda," which the group had set out in its "Declaration of War and Demands for the People" as designed to radically affect the conduct of Walmart as an ongoing business. The court also noted the attempt to manipulate the media by sending to various outlets the group's "Declaration of War and Demands for the People." And it emphasized Olson's presence and failure to protest when Sikes strapped what looked like a suicide vest to Scheele and ordered her to rob a bank. That, the court reasoned, demonstrated Olson's willingness to condone that type of "very dangerous activity."

Speaking directly to Olson, the court held him accountable for his criminal conduct, notwithstanding Sikes' influence on him: "While Mr. Sikes has powers of persuasion and leadership, he didn't force you to participate in this. You chose to participate in it, and I believe you knew, when you were participating in this, that it was wrong." The court rejected Olson's attempt to blame anyone else for his participation in the fires: "[There isn't] anything that made you do what you did other than you chose to become involved in this plot and its objectives." …

Scott Alan Gray represents the government.

The post Court Upholds 15-Year Sentence for Multiple Politically Motivated Arsons of Walmarts appeared first on Reason.com.

[Eugene Volokh] Harvard / Dep't of Ed Settlement Chilling Anti-Israel, Anti-Zionist, and Anti-Anti-Zionist Speech

FIRE (Robert Shibley) has a long and detailed analysis of the settlement (announced Jan. 21), which I highly recommend. A few thoughts of my own:

[1.] The settlement adopts the International Holocaust Remembrance Alliance definition of anti-Semitism, which defines anti-Semitism to include, among other things,

Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations.

Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.

Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation….

Drawing comparisons of contemporary Israeli policy to that of the Nazis.

Much as I disagree with such statements, they are constitutionally protected speech, whether anti-Semitic or not; no serious university should ban them.

[2.] Harvard also adds an express prohibition on anti-Zionist statements, which could be violated by statements such as "using or disseminating tropes, stereotypes, and conspiracies about Zionists (e.g., 'Zionists control the media')." Whether or not such statements are anti-Semitic, they too are constitutionally protected. People must be free to criticize ideologies (whether political, religious, or a mix), even in intemperate and hyperbolic (and unfair) ways.

Note also that Harvard policy now says, "Zionists, anti-Zionists, and non-Zionists are all protected against discriminatory disparate treatment and harassment under the policy." This follows that "using or disseminating tropes, stereotypes, and conspiracies about" anti-Zionists would be forbidden as well.

[3.] Harvard, as a private university, could restrict speech this way on its own without violating the Constitution. But I think federal government pressure aimed at getting such intermediaries to restrict speech does violate the Constitution (see NRA v. Vullo (2024), and also this post by Evelyn Douek & Genevieve Lakier). And the rules adopted in the settlement would indeed violate the First Amendment, as was recognized by this federal court decision that preliminarily enjoined a University of Texas rule that adopted the definition.

Here are more details on why I think that adopting such a definition as part of campus speech codes would exacerbate the codes' violation of free speech and academic freedom principles (though, again, you should also read the FIRE piece):

[* * *]

[A.] The IHRA examples state that "Contemporary examples of antisemitism in public life, the media, schools, the workplace, and in the religious sphere could, taking into account the overall context, include, but are not limited to":

Calling for, aiding, or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion.

Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as collective—such as, especially but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.

Accusing Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, or even for acts committed by non-Jews.

Denying the fact, scope, mechanisms (e.g. gas chambers) or intentionality of the genocide of the Jewish people at the hands of National Socialist Germany and its supporters and accomplices during World War II (the Holocaust).

Accusing the Jews as a people, or Israel as a state, of inventing or exaggerating the Holocaust.

Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations.

Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.

Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.

Using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.

Drawing comparisons of contemporary Israeli policy to that of the Nazis.

Holding Jews collectively responsible for actions of the state of Israel.

Now imagine that a Gavin Newsom Administration enters into settlements with universities that adopt the following rule in their prohibition on anti-Palestinian discrimination:

The university will adopt the following definition in deciding claims of anti-Palestinian harassment:

Contemporary examples of anti-Palestinian prejudice in public life, the media, schools, the workplace, and in the religious sphere could, taking into account the overall context, include, but are not limited to:

Denying the Palestinian people their right to self-determination, e.g., by claiming that any Palestinian state would lead to terrorist attacks on Israel.

Applying double standards by requiring of Palestinians a behavior not expected or demanded of any other group that is waging an insurrection against an oppressive government.

Drawing comparisons of contemporary Palestinian policy and attitudes towards Jews to those of the Nazis.

Holding Palestinians collectively responsible for actions of Palestinian de facto governmental organizations.

Justifying the killing or harming of Palestinians in the name of protecting another nation's security, or on the theory that it is acceptable collateral damage in the other nation's defensive operations.

Discrimination against Palestinian-Americans is indeed, like discrimination against Jews, likely already prohibited by Title VI as discrimination based on race or national origin, just as discrimination against Hispanics or Arab-Americans is already prohibited. But I take it that we'd be concerned that the examples—even if cast just as examples of what might be useful as evidence of discriminatory intent—are likely to (and probably intended to) deter people from expressing their political views about the Israeli-Palestinian conflict.

To be sure, one can draw distinctions between the examples I give above and the examples in the IHRA anti-Semitism statement. For instance, some people argue that it's illegitimate to deny to Jews a right to have a nation of Israel, because it already does exist, but legitimate to deny the Palestinians a right to have a nation of Palestine, because it has not been officially recognized. (I'm quite skeptical of the view that official international recognition should make a difference for which arguments are legitimate, and especially for which arguments are protected by the First Amendment.) Or some might say that, in their experience, the view that Jews don't have a right to national self-determination is highly correlated with anti-Semitism but the view that Palestinians lack such a right is not highly correlated with anti-Palestinian prejudice.

But do you think it's likely that courts will indeed reliably accept such distinctions? Or do you think instead that, if an IHRA-based speech code were enacted and a court were to uphold it, would that decision be a powerful precedent in favor of the constitutionality of the hypothetical statute signed by President Newsom?

[B.] As David Bernstein has pointed out, the problem here partly stems from the view that public comments by students, professors, and others can violate antidiscrimination law if they create a "hostile educational environment" based on race, religion, sex, sexual orientation, gender identity, national origin, and the like. Many courts have struck down campus speech codes framed in such terms, but the government and various universities have continued to assert that such speech restrictions are constitutional.

But adopting the IHRA definition, it seems to me, would exacerbate the problem by sweeping in anti-Israel speech (and not just overtly anti-Jewish speech) as potentially punishable "discrimination." Both anti-Israel speech and anti-Jewish speech are protected by the First Amendment (unless they fall within one of the narrow exception to First Amendment protection, such as for true threats). But broadening the unconstitutional restrictions is surely not a step forward.

Nor do I think that university statements such as, "Harvard also follows the University-Wide Statement on Rights and Responsibilities' guarantees of free speech and academic freedom," help much. The problem is that university officials often tend not to recognize that various speech, especially speech that is viewed as bigoted or "discriminatory," is protected by free speech or academic freedom. Adopting the IHRA definition tends to reinforce this attitude.

[C.] But say even that the IHRA definition, in its implementation, were limited to what one might think of as purely evidentiary uses of speech—e.g., if someone has been attacked, or had his property vandalized, or has been excluded from some university program, or given a low grade, and the question is whether the action was motivated by his being Jewish. Let's set aside the possibility that, as some have argued, the creation or tolerance of a "hostile environment" would itself be treated by some as actionable conduct, even if the environment stems just from speech that doesn't fit within any of the narrow First Amendment exceptions. Let's even set aside Harvard's express statement that "using or disseminating tropes, stereotypes, and conspiracies about Zionists" may itself violate its policies. Let's focus instead on the purely evidentiary uses I just mentioned.

Even for such evidentiary uses, I think accepting the IHRA definition would be dangerous and unconstitutional, as my hypothetical Newsom Administration actions help illuminate. Say that you are a professor who rejected a student's application to a graduate program. The student claims that the rejection stemmed from his or his parents' having been born in Gaza. (Assume he's an American citizen, so the claim is of discrimination based on national origin, and not based on current citizenship, which would raise more complicated problems.)

You argue that, no, you rejected him because you thought his past scholarly work wasn't strong enough. He responds that,

Under the hypothetical Newsom Administration approach, "Denying the Palestinian people their right to self-determination" is an example that "the Department of Education shall take into consideration … as part of the Department's assessment of whether the practice was motivated by antisemitic intent." You had publicly argued against a separate Palestinian state. Therefore, your speech is evidence that you were biased against him based on his national origin.

I think such an argument would be quite wrong, and dangerous to academic freedom. If the argument were accepted, it would sharply chill advocacy of various views on the Israeli-Palestinian conflict, and the government has no business doing that. And of course the same is true of the Department of Education pressuring the adoption of the IHRA definition.

Now I acknowledge that speech can be used as evidence of motive; indeed, sometimes it's the only such evidence. (See this post for more, including a discussion of some key Supreme Court cases on the subject.) Even in the absence of the IHRA definition, if a professor publicly says "All Jews are scum and I hate working with them" or "all Palestinians are scum and I hate working with them," that could be evidence that a particular action by a professor with respect to a student was deliberate discrimination based on ethnicity. The same would be true if a student is being accused of punching a classmate or vandalizing the classmate's property based on the classmate's being Jewish or Palestinian.

But when there is such concrete evidence of ethnic hostility, the IHRA definition is unnecessary. Adopting the definition would make a difference only in cases where statements overtly expressing ethnic hostility are weak or even absent, and the evidence stemming from one's views on the Israeli-Palestinian conflict would then be brought in.

The closest analog in the Supreme Court precedents (not a perfect analog, but I think a helpful one) is the presumption struck down in Virginia v. Black (2003). There, the law banned cross-burning with the intent to intimidate; and some such cross-burning (e.g., burning a cross in front of a black family's house with the intent to make them fear that physical violence would be next) may indeed be punishable, when it falls within the First Amendment exception for true threats of violence. But the law also added,

Any such burning of a cross [including in any public place] shall be prima facie evidence of an intent to intimidate ….

The Court held that this "prima facie evidence" provision violated the First Amendment, for reasons stated by Justice Souter (joined by Justices Kennedy and Ginsburg), and agreed with by Justice O'Connor (joined by Chief Justice Rehnquist and Justices Stevens and Breyer):

As I see the likely significance of the evidence provision, its primary effect is to skew jury deliberations toward conviction in cases where the evidence of intent to intimidate is relatively weak and arguably consistent with a solely ideological reason for burning. To understand how the provision may work, recall that the symbolic act of burning a cross, without more, is consistent with both intent to intimidate and intent to make an ideological statement free of any aim to threaten.  One can tell the intimidating instance from the wholly ideological one only by reference to some further circumstance. In the real world, of course, and in real-world prosecutions, there will always be further circumstances, and the factfinder will always learn something more than the isolated fact of cross burning. Sometimes those circumstances will show an intent to intimidate, but sometimes they will be at least equivocal, as in cases where a white supremacist group burns a cross at an initiation ceremony or political rally visible to the public.

In such a case, … the prima facie evidence provision … will have the practical effect of tilting the jury's thinking in favor of the prosecution…. [T]he provision will encourage a factfinder to err on the side of a finding of intent to intimidate when the evidence of circumstances fails to point with any clarity either to the criminal intent or to the permissible one…. The provision will thus tend to draw nonthreatening ideological expression within the ambit of the prohibition of intimidating expression.

To the extent the prima facie evidence provision skews prosecutions, then, it skews the statute toward suppressing ideas…. The question here is … [whether] the statute's terms show that suppression of ideas may be afoot…. And if we look at the provision for this purpose, it has a very obvious significance as a mechanism for bringing within the statute's prohibition some expression that is doubtfully threatening though certainly distasteful.

I think the same reasoning applies here. If a university responding to a student complaint, or the Department of Education Office for Civil Rights determining whether a university's response was inadequate, sees the usual sorts of evidence that would normally prove discriminatory motivation (e.g., "I hate Jews"), it can certainly rely on that evidence.

But the Harvard settlement, by pointing to the IHRA definition and its list of specific political statements as potential evidence, "skew[s] [the decisionmaker's] deliberations toward [a finding of forbidden behavior] in cases where the evidence of [anti-Semitism] is relatively weak." It "tilt[s] the [decisionmaker's] thinking in favor of [a finding of guilt]" simply based on a professor's or student's expression of political views about Israel (or, in my hypothetical, about Palestinian organizations). If "[t]he question" is whether "[the settlement's] terms show that suppression of ideas may be afoot," those terms have "a very obvious significance as a mechanism for bringing within [Title VI's] prohibition some expression that is doubtfully [evidence of discrimination]."

[* * *]

On the merits of the Israeli-Palestinian controversies, I generally support Israel; and I don't always support arguments that various attempts to protect Israel or Israelis from discrimination violate the First Amendment—consider, for instance, my amicus briefs (e.g., this one), filed on behalf of Prof. Michael Dorf, Prof. Andy Koppelman, and myself, arguing that various state anti-BDS statutes do not violate the First Amendment. (My position there is that actual refusals to deal with Israel and Israelis are not protected speech, even if they are politically motivated, just as refusal to deal with Muslims or Christians are not protected speech.)

But here it seems to me (as I've argued before as to similar proposals) that the Harvard settlement really does risk suppressing not just discriminatory conduct but speech—speech that I generally disagree with, but speech that is fully constitutionally protected.

The post Harvard / Dep't of Ed Settlement Chilling Anti-Israel, Anti-Zionist, and Anti-Anti-Zionist Speech appeared first on Reason.com.

[Eugene Volokh] Alien Tort Statute Liability for American Publisher Would Turn on Whether It Knew Author It Paid Was Hamas Hostage-Holder

From Judge Tiffany Cartwright (W.D. Wash.) in Friday's Jan v. People Media Project:

Plaintiff Almog Meir Jan is an Israeli citizen who was kidnapped on October 7 and held hostage by Hamas operative Abdallah Aljamal before being rescued by the Israel Defense Forces. Defendants are People Media Project, its individual officers Ramzy Baroud and John Harvey, and unnamed Doe Defendants 1 through 10.

Jan alleges that Defendants employed and compensated Aljamal as a journalist and provided him a U.S.-based platform to publish articles supporting Hamas. Jan asserts that through these actions, Defendants aided and abetted his kidnapping and imprisonment as well as aided and abetted terrorism in violation of the Alien Tort Statute (ATS), 28 U.S.C. § 1350.

Defendants moved to dismiss …, arguing that Jan's allegations are insufficient to state a plausible claim that Defendants aided and abetted his kidnapping and Hamas's acts of terrorism. Defendants also assert that their decision to publish Aljamal's articles is protected by the First Amendment, and that Jan's claims do not overcome the ATS's presumption against extraterritoriality because the conduct relevant to the ATS's focus—kidnapping and imprisoning a civilian hostage—occurred outside the United States. In response, Jan argues that the ATS recognizes aiding and abetting as a cause of action, and that aiding and abetting illegal conduct is not protected speech. By compensating Aljamal and providing him a U.S.-based platform to publish articles justifying Hamas's actions, Jan argues that Defendants materially supported terrorism. Jan asserts that this domestic conduct is the gravamen of his ATS claims and is sufficient to overcome the presumption against extraterritoriality….

The court rejected the claims based on publishing pro-Hamas propaganda, for reasons discussed in a separate post. But here's what the court had to say about the claims based on providing funds to Hamas via Aljamal:

Based on the Ninth Circuit's standard for ATS accomplice liability, Jan's allegations that Defendants paid Aljamal while he held Jan captive in his home could support a claim for aiding and abetting—but only if Defendants knew they were paying a Hamas operative. Because Jan's complaint does not allege actual knowledge, his claims based on compensating Aljamal as a journalist must be dismissed….

The following facts are those alleged in the complaint. Because the Court is considering a motion to dismiss …, Jan's factual allegations must be taken as true and construed in the light most favorable to him.

Jan was kidnapped from the Nova Music Festival and held hostage in Gaza by Abdallah Aljamal. He was held for 246 days before being rescued on June 8, 2024 by the Israel Defense Forces. Jan asserts that since May 2019, Defendant People Media Project, doing business as the Palestine Chronicle, "provided Hamas Operative Aljamal with support and a U.S.-based platform to publish Hamas propaganda under the guise of independent journalism and compensated [him] for his contributions." Jan alleges "Hamas Operative Aljamal's publications follow[ed] Hamas's well-known 'war-by-propaganda' strategy by attempting to exploit the international community's response to civilian casualties and blaming Israel for its reasonable response to Hamas's atrocities on October 7." For example, Jan asserts that the Palestine Chronicle published "a propaganda piece by Hamas Operative Aljamal calling October 7 a 'daring attack' and accusing Israel of starting a 'war on the Gaza population' in order to 'forcefully displace Palestinians from their homeland.'"

Defendant Ramzy Baroud is the Editor-in-Chief of the Palestine Chronicle and is responsible "for editorial, content, and management decisions." Defendant John Harvey is a Governor of People Media Project and "responsible for management and financial decisions of the Palestine Chronicle." Jan also alleges that political advocacy by Defendants Baroud and Harvey shows they have "close ties" with Hamas. In December 2020, Defendant Baroud participated in a webinar hosted by the American Muslims for Palestine where he "espoused familiar Hamas propaganda, including accusing Israel of ethnically cleansing Palestinians and calling for the defeat of Zionism." Defendant Harvey "organized a campaign in 2007 to establish the Gaza Strip's Rafah neighborhood—a Hamas stronghold—as Olympia, Washington's sister city." Jan alleges that, as Governors of the Palestine Chronicle, Defendants Baroud and Harvey "aligned the Palestine Chronicle's mission and content with Hamas" and "disseminated Hamas propaganda to the Palestine Chronicle's readers in the United States." …

The entirety of the ATS provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of the nations or a treaty of the United States." After its enactment by the First Congress in 1789, the ATS lay mostly dormant for nearly two hundred years. But in 1980, the Second Circuit in Filartiga v. Pena-Irala allowed two citizens of Paraguay to pursue a claim that the defendant had tortured and killed their family member in retaliation for their political beliefs, in violation of international law. Filartiga led to a wave of litigation seeking to hold corporations liable "for alleged human rights violations in other nations."

The Supreme Court first interpreted the ATS in Sosa v. Alvarez-Machain (2004). In Sosa, the Supreme Court sought to clarify whether the ATS is only a jurisdictional statute or whether it creates a cause of action for a violation of the law of nations. The Supreme Court concluded that while "the statute is in terms only jurisdictional … at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law." In 1789, the Court explained, "the First Congress understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations," particularly "those torts corresponding to Blackstone's three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy." District courts may thus hear claims under the ATS "based on the present-day law of nations," so long as they "rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms [the Supreme Court has] recognized." …

As an initial matter, Defendants do not contest that the underlying torts committed against Jan by Aljamal and Hamas—the kidnapping and imprisonment of a civilian hostage—are international human rights violations that are actionable under the ATS. The Court thus turns to whether Jan may pursue claims against Defendants for allegedly aiding and abetting those torts….

[T]he Ninth Circuit [has] explained that customary international law supplies the standard for accomplice liability. The plaintiff must plausibly allege that the defendant engaged in a sufficient actus reus and had the requisite mens rea. Id. The Ninth Circuit adopted the "global consensus" that the "actus reus of aiding and abetting liability requires assistance to the principal with substantial effect on an international law violation." And the Ninth Circuit joined the Eleventh Circuit in holding that the "mens rea for aiding and abetting liability under customary international law is knowing assistance." Because this standard is analogous to the aiding-and-abetting provision of the Justice Against Sponsors of Terrorism Act (JASTA), which imposes civil liability on anyone "who aids and abets, by knowingly providing substantial assistance" to an "act of international terrorism," this Court also looks for guidance to the Supreme Court's recent decision interpreting JASTA in Twitter v. Taamneh (2023)….

[T]he Court in Twitter clarified that … "… a defendant must have aided and abetted (by knowingly providing substantial assistance) another person in the commission of the actionable wrong—here, an act of international terrorism." … Jan alleges that Defendants "employed" Aljamal. He alleges that the Palestine Chronicle began publishing articles from Aljamal in May 2019 and "compensated [him] for his contributions." After the events of October 7, 2023, the Palestine Chronicle continued to publish pieces by Aljamal, "often publishing two to three pieces per day." Jan alleges that during the time he was held captive in Aljamal's home, Defendants continued to pay Aljamal for his articles. Jan incorporates screenshots from the Palestine Chronicle's website that, shortly before Jan's rescue, described Aljamal as a "correspondent for The Palestine Chronicle"—before changing his description to a "freelance contributor" after Jan was rescued and Aljamal was identified as one of his captors. Jan alleges that "the compensation Defendants paid Hamas Operative Aljamal for his propaganda directly enabled him to imprison Plaintiff in his home."

Under the Ninth Circuit's standard …, these allegations meet the actus reus requirement for ATS liability. This requirement is met if "a defendant provides assistance, of any kind, with substantial effect on the perpetration of an international law violation." Courts assess the effect of a defendant's actions not by determining whether each individual action had a substantial effect, but by considering the "cumulative contribution" a defendant made to the alleged international law violation.  Assistance does not "need to be used for exclusively criminal purposes to be actionable." …

Here, Jan alleges that Defendants enabled Jan's imprisonment by employing Aljamal and paying him for articles, as many as two or three pieces a day, during the time that Aljamal kept Jan as a hostage inside his home. Although Jan does not allege specific amounts of money, the timing and extent of Aljamal's employment support the conclusion that these payments provided assistance with substantial effect on Jan's captivity. This meets the actus reus requirement for ATS liability.

But for his claims to proceed, Jan's allegations must also satisfy the mens rea requirement—that the assistance was "knowing."  Jan's current complaint does not meet this standard. Jan does not allege that Defendants knew Aljamal was holding Israeli civilians hostage; that he had participated in any acts of terrorism, related to October 7 or otherwise; or even, critically, that Aljamal was a Hamas operative in the months following the October 7 attacks. Jan alleges only that, because Aljamal had served at some point as a spokesperson for the Hamas-run Ministry of Labor in Gaza, and he and Defendant Baroud were from the same Gaza town, "Defendants knew or should have known that Hamas operative Aljamal was an operative and official spokesperson for Hamas."

"Knew or should have known" is a negligence standard. "And negligence is a less culpable mental state than actual knowledge or recklessness." … This result is also consistent with the Supreme Court's guidance in Twitter on aiding and abetting liability…. [T]he Court in Twitter repeatedly cautioned that "[t]he point of aiding and abetting is to impose liability on those who consciously and culpably participated in the tort at issue," and that accomplice liability must be applied in a way to avoid "sweep[ing] in innocent bystanders as well as those who gave only tangential assistance." …

This context underscores the importance of the actual knowledge requirement. Without that boundary, organizations working in international conflict zones could be "swept in" to ATS liability for unwittingly employing residents to carry out legitimate tasks—reporting, taking photographs, distributing food and medical supplies—if those individuals turned out to have used their legitimate salaries to participate in human rights violations. The actual knowledge requirement guards against this expansion and ensures that "courts capture the essence of aiding and abetting: participation in another's wrongdoing that is both significant and culpable enough to justify attributing the principal wrongdoing to the aider and abettor." Because Jan's complaint does not allege actual knowledge, his compensation allegations must be dismissed….

But the court concluded that Jan should have a chance to refile the Complaint with the proper allegations (if he can indeed plausibly allege them):

The Court's dismissal of the complaint turns on the specific facts alleged, and Jan could conceivably plead additional facts to show Defendants' conduct satisfies the actus reus and mens rea elements of accomplice liability …. The Court therefore grants Jan leaves to amend his complaint.

Daniel Kovalik and Ralph Hurvitz represent defendants.

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[Eugene Volokh] Publishing Pro-Hamas Propaganda Is Protected by First Amendment

From Judge Tiffany Cartwright (W.D. Wash.) in Friday's Jan v. People Media Project:

Plaintiff Almog Meir Jan is an Israeli citizen who was kidnapped on October 7 and held hostage by Hamas operative Abdallah Aljamal before being rescued by the Israel Defense Forces…. Jan alleges that Defendants employed and compensated Aljamal as a journalist and provided him a U.S.-based platform to publish articles supporting Hamas. Jan asserts that through these actions, Defendants aided and abetted his kidnapping and imprisonment as well as aided and abetted terrorism in violation of the Alien Tort Statute (ATS), 28 U.S.C. § 1350.

The court rejected the claims based on payment to Aljamal, for reasons I note in a separate post. But here is the court's explanation for rejecting the claims based on publishing pro-Hamas propaganda:

Jan alleges that by publishing Aljamal's articles, Defendants gave him a "platform to write and disseminate Hamas propaganda," aiding and abetting Hamas by garnering sympathy and attracting support for its cause….

"The Free Speech Clause of the First Amendment—'Congress shall make no law … abridging the freedom of speech'—can serve as a defense in … tort suits." Snyder v. Phelps (2011). Here, as in Snyder v. Phelps, whether the First Amendment prohibits holding Defendants liable for their articles turns largely on (1) whether their speech is of public concern, and (2) whether their speech is limited to theoretical political advocacy, rather than speech meant to incite or produce unlawful activity. See Snyder; Brandenburg v. Ohio (1969)….

The Court [in Brandenburg] explained that "the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action." The Constitution distinguishes between supporting the political goals of an organization—even a violent one—and either inciting imminent unlawful conduct or using speech for "management of actual crimes."

This Court, then, must examine the speech that Jan alleges served to aid and abet Hamas and decide into which category it falls. Jan's complaint alleges that Defendants published articles written by Aljamal with the following content:

"[O]n October 23, 2023, Defendants published a propaganda piece by Hamas Operative Aljamal calling October 7 a 'daring attack' and accusing Israel of starting a 'war on the Gaza population' in order 'to forcefully displace Palestinians from their homeland.'" "Other pieces highlighted Palestinians killed or injured in Israel's targeted responses to Hamas's attack…." "[W]hen Hamas falsely claimed that it captured Israeli soldiers in Jabaliya, Hamas Operative Aljamal wrote an article repeating that false claim on Defendants' platform." "Aljamal even eulogized known Hamas terrorists….Aljamal accused Israel of assassinating Iyad Maghari, the mayor of Nuseirat….Aljamal's propaganda piece painted Maghari as a hero and martyr…Aljamal failed to mention that, according to the IDF, Maghari was a terrorist 'with an extensive history in Hamas.'" "Aljamal was instrumental in spreading misinformation about an Israeli airstrike that targeted a school run by the United Nations Relief and Works Agency…Aljamal called the attack a 'gruesome massacre' and accused Israel of 'targeting displaced civilians.'"

There is no question that, as in Snyder, this is core political speech addressing matters of public concern…. The terrorist attacks on October 7, and Israel's military response, are subjects of extensive news interest and political concern to the global community. The articles Defendants publish in the Palestine Chronicle are intended to convey their "position on those issues, in a manner designed … to reach as broad a public audience as possible." Many of the positions taken by the Chronicle, such as highlighting the deaths of Palestinian civilians and criticizing Israeli airstrikes, have been echoed by countless news organizations, protesters, and political leaders around the world.

These articles do not cross the line from protected speech to inciting or preparing for unlawful activity. Nothing in the complaint alleges that Defendants advocated for, incited, or planned specific human rights violations. Even taken as true, Jan's allegations that the articles unfairly characterize or falsely report Israel's military actions do not change the protected nature of political speech. The Supreme Court has long recognized that "erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the breathing space they need to survive."

And even if Aljamal's description of October 7 as a "daring attack" and his eulogy for the mayor of Nuseirat are read as praise for Hamas and its acts of terrorism, Brandenburg holds that this is not enough to defeat the protection of the First Amendment. Like the ugly celebration of the deaths of American soldiers on the picket signs from the Westboro Baptist Church, even articles sympathizing with Hamas remain protected when they speak on matters of public concern. Because Defendants' articles are shielded from tort liability by the First Amendment, Jan's claims that those articles aided and abetted Hamas must be dismissed….

Note that knowingly providing communications facilities to Hamas (in coordination with Hamas, rather than just by republishing already written Hamas propaganda, at arm's length) would be punishable under the statute banning knowing support for designated foreign terrorist organizations, and may well be constitutionally unprotected against punishment under that statute (cf. Holder v. Humanitarian Law Project (2010)). But that would at least require a showing that the defendants knew that Aljamal was acting on behalf of Hamas (something the court concluded plaintiff hadn't adequately alleged); and it appears that plaintiff hadn't argued that the speech was unprotected under Humanitarian Law Project or covered under the material support statute.

Daniel Kovalik and Ralph Hurvitz represent defendants.

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[Josh Blackman] Today in Supreme Court History: February 4, 1824

2/4/1824: Gibbons v. Ogden argued.

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[Eugene Volokh] Monday Open Thread

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

[Eugene Volokh] Court Reaffirms First Amendment Right to Quote Epithets in University Class Discussions

From Friday's decision by Judge Michael Watson (S.D. Ohio) in Sullivan v. Ohio State Univ.:

American public universities have traditionally "prided themselves on being forums where controversial ideas are discussed and debated." Few universities have shown a stronger commitment to being such a forum than The Ohio State University ("OSU"). The crown jewel of OSU's commitment may well be a course titled "Crucial Conversations"—designed to train students how to communicate productively about difficult topics.

Yet a group of OSU officials (Defendants) terminated the lecturer who taught that course (Plaintiff Mark Sullivan) because of his controversial classroom speech, or so he alleges. For considered pedagogical reasons germane to the course, Sullivan quoted the n-word. After a student complaint launched an HR investigation, Defendants declined to renew Sullivan's employment contract.

Seeking reinstatement and damages, Sullivan brought a First Amendment retaliation claim, which Defendants now move to dismiss. The First Amendment forbids public universities from dismissing lecturers because of controversial academic speech. So, accepting Sullivan's allegations as true, for the reasons below, the Court DENIES Defendants' motion….

"Crucial Conversations" used a practical, action-based pedagogy. Students begin by critiquing video vignettes of bullying and eventually escalate to simulating difficult conversations themselves in one-on-one and group exercises. Some of these simulations involved mock conflict—complete with intentionally triggering, provocative, disrespectful, or shocking language. Sullivan warned his students in advance that the exercises would involve such language. The theory behind this pedagogy is that a classroom role play provides a low-stakes environment ideal for honing conversational skills.

One role play scenario cast Sullivan as Whitey Bulger (the late Boston­ based organized crime boss) and a student as a law enforcement officer trying to obtain Bulger's cooperation. The purpose of this simulation was to teach students how to engage with offensive language (Bulger's words as recited by Sullivan) while keeping the conversation on track to productive purposes (obtaining Bulger's cooperation). During the actual simulation, quoting a real statement Bulger made to law enforcement, Sullivan said,

I don't want to be placed in a prison cell with a bunch of [n-word]s. You make sure I'm in a place with my kind and I'll talk about who was behind that job of killing [X].

Sullivan hoped for a student response such as,

I understand you have strong feelings about the kind of cell mates you will be assigned to live with. We will want to listen more carefully to what matters to you as we also work with what is acceptable under prison rules and regulations.

Sullivan performed this simulation all 49 times he taught the course, without incident for the first 48.

Sullivan taught "Crucial Conversations" for the 49th time in the Fall 2021 semester. After conducting the Whitey Bulger role play in September, a student in the course reported Sullivan for being racially insensitive and offensive. Defendant [Robert Lount, Chair of the Management and Human Resources Department at OSU,] informed Sullivan on September 30 that the Business School's HR Department required Lount to investigate Sullivan and his course…. On the substance of the investigation, Sullivan pleads only one detail: a phone interview, during which Lount communicated that he understood Sullivan to be performing his duties responsibly. Despite this assurance, at some time unknown to Sullivan, Defendants (and other unknown individuals) deliberated and decided not to renew Sullivan's contract….

To prove a First Amendment retaliation claim, Sullivan must show: (1) he engaged in protected speech; (2) Defendants took an adverse action against him; and (3) there is a causal connection between the protected speech and the adverse action.

Courts assess whether a public employee's speech is protected by the First Amendment under the Pickering-Connick framework. Applying that framework, the Court asks two questions: First, was Sullivan speaking on "a matter of public concern"? And second, was his interest in doing so greater than OSU's interest in "promoting the efficiency of the public services it performs"?

{Normally, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti.But that rule does not apply to "professors at public universities … engaged in core academic functions, such as teaching and scholarship." They receive the Pickering-Connick framework minus Garcetti.} …

Classroom instruction generally implicates a matter of public concern "because the essence of a teacher's role is to prepare students for their place in society as responsible citizens." … Sullivan's purpose, as alleged, was not just to trigger his students. He triggered them for a separate, ultimate purpose: teaching them to converse productively despite having been triggered. The context—the general mission of the course—renders that purpose plausible….

[I]n Hardy v. Jefferson Cmty. Coll. (6th Cir. 2001) …, the Sixth Circuit held that a professor's use of the n-word implicated matters of "overwhelming" public concern. Hardy involved a community college that declined to renew an adjunct professor's contract after he said the n-word (among other offensive words), prompting a student complaint. The adjunct uttered the offensive words during an in-class lecture on language and social constructivism, part of a course called "Introduction to Interpersonal Communication." The lecture examined how language (like then-word) can marginalize and oppress. The "academic context" of the adjunct's use of the n-word distinguished it from the coach's in Dambrot v. Cent. Michigan Univ. (6th Cir. 1995) [where the court found the coach's using the word during a locker room speech to be constitutionally unprotected -EV].

The "academic context" here is materially on all fours with that in Hardy. As was true for the adjunct, Sullivan's in-class use of the n-word was allegedly germane to an academic purpose. The lessons were not identical, of course. The adjunct's lecture abstractly reflected on racially charged language, whereas Sullivan's exercise pragmatically trained students how to respond to it. But, at bottom, both the Hardy lecture and the Sullivan exercise relate to race and power conflicts in society-matters of overwhelming public concern. By force of Hardy, Sullivan's in-class utterance of the n-word likely implicates race relations-a quintessential matter of public concern.

Beyond just race in general, Sullivan's speech, as alleged, also addresses the specific matter of whether using the n-word in class can have worthwhile pedagogical value. This matter is undeniably one of public concern. This debate entered the zeitgeist most prominently as grade schools considered banning classic books that contain the n-word.

On one side of this debate are those who believe that educators should never use the word because it is so hateful, degrading, and traumatizing that any pedagogical value it might have could never outweigh the pain or distraction it causes. On the other side are those who believe the opposite: uttering slurs can be "sound pedagogy—not just something [educators] have a right to do, but itself the right thing to do"—because the n-word prompts reflection on American history, quoting it may be necessary for precision, and hearing it in the classroom prepares students to hear it in the "real world." {Randall Kennedy & Eugene Volokh, The New Taboo: Quoting Epithets in the Classroom and Beyond, 49 Cap. U.L. Rev. 1, 11 (2021).} Not only did Sullivan implicitly take a side in this debate by uttering the n-word in his classroom, but his whole "Crucial Conversations" course was allegedly a monument to the view that hearing charged language in a classroom is pedagogically worth it. The Court need not take a position on this debate over the pedagogical worth of the n-word; it is sufficient to conclude that Sullivan's speech did and therefore involved another matter of public concern.

In sum, as alleged in the Third Amended Complaint, Sullivan's use of the n-word during an in-class exercise relates to both race generally and the n­word's pedagogical value specifically. For those reasons, the Court holds that Sullivan's speech is likely on a matter of public concern and deserves First Amendment protection, satisfying the Connick half of the Pickering-Connick framework….

Under Pickering, the Court applies a balancing test, which weighs "the interests of the [professor], as a citizen, in commenting upon matters of public concern" against "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."

Here, that balance favors Sullivan.

On Sullivan's half of the scale, the Court finds "the robust tradition of academic freedom in our nation's post-secondary schools." As the United States Supreme Court once remarked:

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.

By comparison, the interests on OSU's half of the scale are scant. Defendants assert that Sullivan's use of the n-word during class was so disruptive that it impeded OSU's ability to fulfill its responsibilities. As evidence of this disruption, Defendants cite the student complaint that prompted (some of) them to investigate.

Disruption may not even deserve a place on Defendants' side of the Pickering scale. See Hardy. After all,

undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression …. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom-this kind of openness-that is the basis of our national strength and of the independence and vigor of Americans.

But even if disruption does belong on the Pickering scale, here it does not cause the scale to budge. The disruption caused by the n-word (and other slurs) in Hardy did not tilt the Pickering scale in the community college's favor. There, as here, only one student complained about only one lecture. In fact, Hardy's reasoning applies with even more force here. The educator in Hardy uttered many slurs; Sullivan uttered only one. And not only did Sullivan allegedly teach the rest of the semester without any complaints, but he also taught the same material 48 times previously without any student complaints.

What is more, Sullivan says that each time he taught the course, OSU approved. "[P]rior approval of controversial speech by the school or the Board undercuts the interests of the state in controlling the workplace." See also Cockrel v. Shelby Cnty. Sch. Dist. (6th Cir. 2001) ("[W]e cannot allow [concerns of harmony, efficiency, and discipline] to tilt the Pickering scale in favor of the government … when the disruptive consequences of the employee speech can be traced back to the government's express decision permitting the employee to engage in that speech."). If Sullivan uttering the n-word during a Whitey Bulger role play was so disruptive, why would OSU and Defendants allow him to do it 48 times previously?

All in all, taking his allegations as true, Sullivan's dismissal smacks of the "pall of orthodoxy" and "undifferentiated fear of disturbance." So, weighing Sullivan's interest in academic freedom against OSU's professed interest in avoiding disruption, the Court holds that Sullivan's claim likely survives Pickering balancing….

And the court concluded that "Sullivan's right to free speech in the classroom is 'clearly established,'" so that the case couldn't be dismissed on qualified immunity grounds:

A long line of U.S. Supreme Court precedent establishes a First Amendment right to free speech in academic contexts, especially the classroom. See generally Keith E. Whittington, Professorial Speech, the First Amendment, and Legislative Restrictions on Classroom Discussions, 58 Wake Forest L. Rev. 463, 482-92 (2023). Although the Supreme Court held, in Garcetti, that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline[,]" it expressly declined to address whether that rule would apply "to a case involving speech related to scholarship or teaching."

The Sixth Circuit, in Meriwether v. Hartop (6th Cir. 2021), walked through the door that Garcetti left open. Hartop distilled the principle, from Supreme Court and Sixth Circuit precedent, that "professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching." The Sixth Circuit has since held that this principle was clearly established as of 2017. Thus, whether the First Amendment protected Sullivan's alleged speech in 2021 is "beyond debate."

But even if this principle were too general to shed qualified immunity, the Sixth Circuit in Hardy held specifically that when a professor utters slurs like the n-word for an educational purpose (as Sullivan allegedly has here) that speech is protected. Hardy has been good law since it was decided ….

The careful reader will have noticed that Judge Watson substituted "n-word" for "nigger," including in the quotes. But that fits his point that professors are entitled to choose whether or not to expurgate; likewise, some judges expurgate and others don't, and still others sometimes use the accurate quote and sometimes the expurgation. (The same is true with other words, such as "fuck," see, e.g., here and here.) For the text of Randy Kennedy's and my article, which the court cited, see here.

Daniel Petrov and Sarah Wyss (Thorman Petrov Group Co., LPA) represent plaintiff.

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[Eugene Volokh] May Aliens Be Deported Based on Their Speech?

Thursday's Fact Sheet related to Wednesday's Executive Order, Additional Measures to Combat Anti-Semitism, says (among other things):

Immediate action will be taken by the Department of Justice to protect law and order, quell pro-Hamas vandalism and intimidation, and investigate and punish anti-Jewish racism in leftist, anti-American colleges and universities. The Order demands the removal of resident aliens who violate our laws.

Now, President Trump has promised that the Federal Government will: …

Deport Hamas Sympathizers and Revoke Student Visas: "To all the resident aliens who joined in the pro-jihadist protests, we put you on notice: come 2025, we will find you, and we will deport you. I will also quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before."

This suggests that aliens who commit crimes may be specially targeted for deportation because their behavior is "pro-Hamas" or "anti-Jewish." And it also suggests that aliens might be deported even if they don't commit crimes, but are merely "Hamas sympathizers" "who joined in the pro-jihadist protests."

Indeed, the order itself refers to 8 U.S.C. § 1182(a)(3), which provides (in subsections (B)(i)(VII) and B(iii)) that:

Any alien who … endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization … is inadmissible….

"[T]errorist activity" means any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:

The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle). The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained. A violent attack upon an internationally protected person [a Chief of State or the political equivalent, head of government, or Foreign Minister whenever such person is in a country other than his own and any member of his family accompanying him or someone protected as a diplomat] or upon the liberty of such a person. An assassination. The use of any - (a) biological agent, chemical agent, or nuclear weapon or device, or (b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property. A threat, attempt, or conspiracy to do any of the foregoing.

And 8 U.S.C. § 1227(a)(4)(B) makes clear that such aliens are "deportable."

Congress, then, has authorized both denying visas to people based on their speech endorsing a wide range of violence, and deporting based on such speech people who had already been admitted. Nor is this limited to illegal aliens; it is also applicable to lawfully admitted visitors, including those under student visas and, as best I can tell, those who are lawful (and longtime) permanent residents.

Does this statutory scheme, and Executive actions to enforce it, violate the First Amendment? After all, the First Amendment generally protects endorsing or espousing violence. Americans are perfectly free, for instance, to say that it would be good if Putin were assassinated (either in Russia or when visiting, say, Belarus), that Israel should start taking Palestinians as hostages (even if doing so would be unlawful under American law), or that Palestinians were right to take Israeli hostages. The list of generally constitutionally protected speech that would be covered as "endors[ing] or espous[ing]" would be very long.

Yet when it comes to aliens and immigration law, the First Amendment questions aren't settled. Here's my sense of the current rules, such as they are:

[1.] Criminal punishment and traditional civil liability: The government may not criminally punish aliens—or, presumably, impose civil liability on them—based on speech that would be protected if said by a citizen. "Freedom of speech and of press is accorded aliens residing in this country." Bridges v. Wixon, 326 U.S. 135 (1945).

[2.] Entry: The government may bar noncitizens from entering the United States based on their speech, even speech that would have been protected if said by a citizen. "It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise," including if the denial were based on his speech (as it was in that case). Kleindienst v. Mandel, 408 U.S. 753 (1972). And this is true even when denying entry to foreigners also interferes with Americans' right to hear them (for instance, at university conferences) or to talk with them.

[3.] Deportation: Here, though, the rule is unclear. The leading case, Harisiades v. Shaughnessy, 342 U.S. 580 (1952), speaks about nearly unlimit­ed Con­gressional power over deportation, but that language is in the sec­tion dealing with the argument that the deportation of Harisiades violated the Due Process Clause. The First Amendment discussion rested on the con­clusion that active membership in the Communist Party was sub­stan­tive­ly unpro­tect­ed by the First Amendment—both for citizens and non­citi­zens—which was the law at the time (see Den­nis v. United States (1951)).

Lower court cases are mixed. For the view that Harisiades doesn't generally let the government act based on otherwise protected speech by aliens, see American-Arab Anti-Discrim. Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995), rev'd on other grounds, 525 U.S. 471 (1999):

[T]he Court has explicitly stated that "[f]reedom of speech and of press is accorded aliens residing in this country." … Furthermore, the values underlying the First Amendment require the full applicability of First Amendment rights to the deportation setting. Thus, "read properly, Harisiades establishes that deportation grounds are to be judged by the same standard applied to other burdens on First Amendment rights."

See also Parcham v. INS, 769 F.2d 1001 (4th Cir. 1985). For the view that the federal government generally has nearly unlimited immigration power over aliens, see Price v. INS, 962 F.2d 836 (9th Cir. 1991):

[T]he protection afforded resident aliens may be limited…. [T]he Court has historically afforded Congress great deference in the area of immigration and naturalization…. "[I]n the exercise of its broad power over immigration and naturalization, 'Congress regularly makes rules that would be unacceptable if applied to citizens.'" [A]lthough Price [as a lawful permanent resident] is justified in expecting the greatest degree of constitutional protection afforded a non-citizen, the protection afforded him under the First Amendment certainly is not greater than that of the citizen plaintiffs in Kleindienst [whose First Amendment claims were rejected -EV].

See also Bluman v. FEC (D.C.C. 2011) (Kavanaugh, J.), aff'd without opinion (U.S. 2012): "The Court has further indicated that aliens' First Amendment rights might be less robust than those of citizens in certain discrete areas. See Harisiades."

[4.] Selective prosecution: The Court has, however, held that if the government tries to deport someone who has violated immigration law (for instance, by over­stay­ing his visa, or working without authorization, or committing a crime), the person generally may not challenge the deportation on the grounds that he was selectively prosecuted based on his otherwise protected speech. See Reno v. American-Arab Anti-Discrim. Comm., 525 U.S. 471 (1999). Outside the immigration context, such selective prosecution based on protected speech is generally unconstitutional. See Wayte v. United States, 470 U.S. 598 (1985).

[5.] Citizenship: Price suggests that Congress can deny noncitizens citizenship based on speech that would be protected if said by a citizen: "While a resident alien may not participate in the process of governing the country, naturalized citizens may. Naturalization decisions, therefore, deserve at least as much judicial deference as do decisions about initial admission."

[* * *]

Perhaps the Trump Administration will indeed start deporting aliens based on their pro-Hamas speech, and we'll get a clear answer from the Supreme Court. But we don't have one so far.

I should say that I don't support the deportation of aliens for supporting foreign violence (at least unless there is reason to think they will act violently here). As some of the examples I gave above suggest, there are lots of legitimate arguments for violence when it comes to foreign wars and other international matters. Which arguments are morally sound and which aren't should be a matter for debate, not for government fiat.

And I think that chilling the speech of lawful visitors to the U.S. does interfere with the marketplace of ideas for Americans. Indeed, even pro-Hamas speech on American university campuses has, I think, taught many Americans a valuable lesson about various speakers, groups, and ideologies. That would be true of speech by foreign students or by lawful permanent residents as well as by American citizens. (See also this piece by Sarah McLaughlin [FIRE]).

But in this post I've tried to lay out the legal rules as they are, rather than as I think they should be. I hope this has been helpful and accurate; please let me know if the analysis above needs correction or elaboration.

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[Josh Blackman] Today in Supreme Court History: February 3, 1812

2/3/1812: Justice Joseph Story takes oath.

Justice Joseph Story

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[Eugene Volokh] "Judge Orders LSU to Reinstate Law Professor Sidelined for Political Comments"

From Louisiana Illuminator (Piper Hutchinson), reporting on this short restraining order:

A state judge has [temporarily] ordered LSU to allow its law professor Ken Levy to return to teaching duties. The university had removed Levy from the classroom pending an investigation into alleged criticism of Gov. Jeff Landry….

A hearing on a longer-term preliminary injunction is scheduled for Feb. 10 (WAFB, Chris Nakamoto):

LSU removed Levy from his tenured teaching position last week, following comments Levy made to his students about Louisiana Governor Jeff Landry and President Donald Trump.

Back to the Illuminator:

In an affidavit to the court, Levy says that he brought up Landry's reaction to comments of fellow law professor Nick Bryner during class. Levy asked his students not to record his lectures because he didn't want to be targeted by Landry.

In November, Landry publicly asked LSU to discipline Bryner last year for his comments about President Trump the day after the presidential election. A video of Bryner's comments were sent to the governor, who then circulated the video on social media.

"If Governor Landry were to retaliate against me, then f*** the governor and f*** that. — all of which was a joke and clearly said in a joking manner to highlight my no recording policy in class and the First Amendment," Levy wrote in the affidavit…..

LSU has several policy statements and permanent memoranda that address disciplining a tenured faculty member. These policies call for several layers of review, all of which require peer faculty input. None of this happened before Levy was removed from his classes ….

The university is quoted as responding,

"While academic freedom protects speech, thought, and expression within the university setting to promote learning and knowledge, it does not provide a license to:

Use the classroom as a platform for personal grievances beyond the scope of the course or otherwise. Demean or threaten students with differing viewpoints. Engage in gratuitous use of profanity, particularly in professional training environments such as law, where students are preparing to practice under standards of conduct and civility.

"PS-15 [LSU's policy statement regarding academic freedom, free speech and tenure] further emphasizes that faculty members, as both scholars and representatives of LSU, should remain mindful that their words and actions reflect upon the institution. LSU recognizes that faculty status demands professional responsibility and accountability."

The seeming relevant passage from PS 15 is,

Teachers and investigators are entitled to freedom in the classroom in discussing their subject but should not introduce information or topics which have no relation to the subject being instructed. Instructors should be careful to use appropriate examples, metaphors, and analogies to achieve the desired student learning. The Faculty Senate Admissions, Standards and Honors Committee or the Faculty Adjudication Committee will evaluate the circumstances and context and provide a recommendation to the Provost and Faculty Senate President when there are complaints or disputes on the information or its method of presentation in a class. Faculty members will be afforded due process that includes ability to present supporting materials in disagreements on appropriate academic freedom, free speech, or freedom of expression.

For the Foundation of Individual Rights and Expression's letter defending Prof. Bryner, see here; I don't think FIRE has yet responded to the Levy matter.

Note that in Buchanan v. Alexander (5th Cir. 2019), a federal case involving LSU, the court upheld the firing of a faculty member for vulgarities and sexual discussions that were seen as "not related to the subject matter or purpose" of the course:

Before she was fired, Dr. Buchanan was an associate professor at LSU with tenure. She taught in the Early Childhood Program for teacher education. In November 2013, LSU received a complaint from the superintendent of a local public school district regarding Dr. Buchanan's "professionalism and her behavior" when she visited schools in his district. LSU also received complaints from some of Dr. Buchanan's students regarding her classroom behavior. One student complained about Dr. Buchanan's comments regarding the student's sexual relationship with her fiancé. Another student complained that Dr. Buchanan recorded her crying during an assessment team meeting. LSU had received a letter in 2012 from a group of students complaining that Dr. Buchanan made offensive classroom comments, such as (1) "a woman is thought to be a dike if she wears brown pants"; (2) "it was a choice to be in the program and it was not the fault or problem of the professors if any of us chose to be mommies or wives and not to expect to get an A in the class"; and (3) use of "extreme profanity on a regular basis." …

In March 2015, the Faculty Committee held a lengthy hearing regarding Dr. Buchanan's classroom behavior. The Faculty Committee concluded that Dr. Buchanan had violated LSU's sexual harassment policies, PS-73 and PS-95, "through her use of profanity, poorly worded jokes, and sometimes sexually explicit 'jokes.'"  The Committee also found that Dr. Buchanan had created a "hostile learning environment."

The Committee recommended censure. In April 2015, despite the Faculty Committee's censure recommendation, President Alexander informed Dr. Buchanan that he was going to recommend to the Board that she be dismissed for cause ….

We agree with the district court here that Dr. Buchanan's use of profanity and discussion of her sex life and the sex lives of her students was not related to the subject matter or purpose of training Pre-K-Third grade teachers. This court has held that, in the college classroom context, speech that does not serve an academic purpose is not of public concern [and thus not protected against employment action -EV]….

In [a prior Ninth Circuit case that held in favor of the professor], the use of profanity and discussion of controversial viewpoints was "at least tangentially related" to teaching college-level English. Here, the use of profanity and discussion of professors' and students' sex lives were clearly not related to the training of Pre-K-Third grade teachers. Dr. Buchanan's speech was not, therefore, a matter of public concern; we thus affirm the district court's holding that LSU's policies did not violate the First Amendment as applied to Dr. Buchanan because her speech was not protected.

Note that state courts aren't technically bound by federal appellate precedent, even from the federal circuit in which the state is located (Louisiana is in the Fifth Circuit), though they tend to find such precedent to be influential.

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