Eugene Volokh's Blog, page 175

[Josh Blackman] Today in Supreme Court History: January 31, 2006

1/31/2006: Justice Samuel Alito takes oath.

Justice Samuel Alito

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[Eugene Volokh] Friday Open Thread

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[Eugene Volokh] Free Speech Unmuted: Free Speech, Private Power, and Private Employees

Map of statutory private employee speech protections throughout the country.

 

My cohost Jane Bambauer and I discuss state laws that protect speech against private universities and private schools, private commercial property owners, private landlords, and—especially—private employers. You can also watch our past episodes:

[D.C. Circuit] Upholds TikTok Divestiture Law Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama Protests, Public Pressure Campaigns, Tort Law, and the First Amendment Misinformation: Past, Present, and Future I Know It When I See It: Free Speech and Obscenity Laws Speech and Violence Emergency Podcast: The Supreme Court's Social Media Cases Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky Free Speech On Campus AI and Free Speech Free Speech, Government Persuasion, and Government Coercion Deplatformed: The Supreme Court Hears Social Media Oral Arguments Book Bans – or Are They?

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[Josh Blackman] AP Asked Justice Jackson About Her Inauguration Attire

Justice Jackson gave an interview to the Associated Press at the Supreme Court. The biggest reveal is that she takes boxing lessons to get out her frustrations from the conservative justices. Lovely.

Buried deep in the story is a brief discussion about her attire at the inauguration.

Jackson, along with the other eight justices, also was part of the pomp and circumstance at President Donald Trump's inauguration, attracting attention for the white cowrie-shell necklace she wore over her judicial robe.

"It happened to coincide with Martin Luther King Day, and I thought I should wear something of cultural significance for that circumstance as well, to honor my heritage on this important day and this important occasion," she said.

The large necklace and earrings had special resonance because the shells have long been associated with African American culture and African heritage.

Um, the lede is buried. These shells didn't simply have resonance with African heritage. They are talismans to ward off evil. Jackson didn't quite deny that fact.

Carry on.

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[Eugene Volokh] Ban on Town Employees' Displaying Thin Blue Line American Flag Imagery on Town Property Violates First Amendment

From Tuesday's decision in Fraternal Order of Police v. Township of Springfield, decided by Judge Paul Matey, joined by Judge Anthony Scirica, concluding that the policy was unconstitutional:

The "Thin Blue Line American Flag" ("the Flag") is "a black and white American flag." "All of the horizontal stripes are black and white with the exception of one horizontal stripe that is blue." For Plaintiffs it "represents a show of support for [and] a solidarity with member[s] of law enforcement, which includes, police officers." In March 2020, the PBA {Springfield Township Police Benevolent Association} incorporated the Flag into its logo, which it uses at fundraisers, some of which occur on Township property. Individual Plaintiffs wish to continue to display the Flag on both personal and Township property. And the PBA wants to continue hosting events on Township property, displaying its logo and the Flag.

In 2021, Township Commissioners met with the PBA and asked them to remove the Flag from their logo. The PBA declined, and in response, the Township passed Resolution No. 1592 "prohibit[ing] the publicly visible display or use of any image which depicts the Thin Blue Line American Flag symbol by any Township employee, agent or consultant." The Resolution contains three specific prohibitions:

1) The publicly visible depiction of the symbol on the clothing or skin of any Township employee, agent[,] or consultant while on duty, during the workday of the individual or while representing the Township in any way (specifically including the off duty time of any such individual if still wearing the Township uniform).

2) The publicly visible depiction of the Thin Blue Line American [F]lag symbol on any personal property of a [T]ownship employee, agent[,] or consultant, which is brought into the [T]ownship building (except prior to or subsequent to reporting for duty or any official assignment for the Township), and which, in the reasonable opinion of the Township Manager, is placed in a location likely to be seen by a member of the public while visiting the [T]ownship building.

3) The display, by installation or affixation of a publicly visible depiction of the symbol, on [T]ownship owned property (including [T]ownship vehicles), by any person.

The First Amendment protects the free speech of government employees when they speak "'as citizens' rather than 'pursuant to their official duties,'" as long as their speech regards "'matters of public concern' rather than mere 'personal interest.'" "Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public."

But an employee's right to speak on matters of public concern is not unlimited. We must "balance … the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Bd. of Ed. (1968). That balance "depends on whether the employer imposed a prior restraint on speech or disciplined an employee after the fact." Because when an employer imposes a prior restraint, "the Government's burden is greater … than with respect to an isolated disciplinary action." United States v. Nat'l Treasury Emps. Union (1995). So, we "must consider not just the specific speech that concerned the government, but [also] the 'broad range of present and future expression' that the rule chills and the interests of present and future speakers and audiences." …

Defendants concede that Plaintiffs are speaking as private citizens but argue that Plaintiffs' speech is not a matter of public concern. But we previously rejected that argument because speech concerning "'Black Lives Matter,' 'Thin Blue Line,' and anti-mask-mandate masks," comments on political or social concerns of the community. Just as wearing masks supporting Black Lives Matter qualifies as speech on matters of public concern, so too does the Flag in question here.

Because the Resolution and enforcement Memorandum constitute "a policy that prohibit[s] or restrain[s] future speech," we must consider "all present and future expression that the rule may chill." The Township also "bears the burden of showing" that the restricted expression's "'necessary impact on the actual operation of the Government' outweighs that interest." This showing consists of two subparts: "first, that [Defendants] ha[ve] [identified] 'real, not merely conjectural' harms; and second, that the ban as applied … addresses these harms in a 'direct and material way.'"

"To demonstrate 'real, not merely conjectural' harms, a government must not only identify legitimate interests, but also provide evidence that those concerns exist." "The government need not show the existence of actual disruption if it establishes that disruption is likely to occur because of the speech."

The Township has not met its burden. It concedes that it "cannot identify any specific incidents of disruptions" caused by Plaintiffs' use of the Flag. Instead, it points to a 2021 study on policing, which found that African American residents are less likely to cooperate with, and have lower trust in, the Springfield Police Department. But that study was unrelated to the PBA's logo and its display of the Flag. Thus, it cannot support an inference "that disruption is likely to occur because of the speech."

The Township also points to a few complaints from residents who felt that the Flag was offensive. But the Township Manager testified that he was aware of no disruption of services caused by the display of the Flag. And a handful of gripes and grumbles does not resemble "serious disruption caused by protests and riots" impacting public services.

Moreover, the Resolution is not "narrowly tailored to the 'real, not merely conjectural' harm the Township identified." The Resolution applies to "any Township employee, agent[,] or consultant," not just the Police Department. But the Township offers no explanation for how restricting the expression of all employees will increase public trust in the Police Department. And, confusingly, although the Resolution "prohibit[s] the publicly visible display or use of any image that depicts the Thin Blue Line American Flag," the Township concedes that the Resolution permits the display of the "Thin Blue Line Flag" lacking elements of the American flag. That only highlights the underinclusive nature of the restraint, and casts deep doubt on the Township's reasoning. After all, the ban only proscribes the viewpoint the Flag conveys, while giving opposing opinions free rein.

As the District Court observed, "nothing in the Resolution precludes an officer, while on duty and in uniform, from voicing opposition to the Black Lives Matter movement or for example, carrying a coffee cup that says, 'Blue Lives Matter.'" Such "speech has the same, if not more, potential to cause disruption." Accordingly, this over-and underinclusive policy fails to address the alleged harm "in a 'direct and material way.'"

Judge Patty Shwartz dissented, arguing that the case should go to trial:

To some, the TBLAF represents police solidarity. To others, it communicates a white supremacist message, which could erode public trust in the police. When public confidence in law enforcement declines, public safety suffers. As a result, viewing the facts and drawing inferences in the Defendants' favor, a reasonable jury could conclude that the Township's interest—in preventing the erosion of public trust in law enforcement by restricting the display of a symbol associated by some with white supremacy—outweighs the rights of the Fraternal Order of Police and police officers, to display the TBLAF in certain circumstances. As a result, I conclude that the District Court erred in granting Plaintiffs' motion for summary judgment….

Plaintiffs concede that (1) some residents view the TBLAF as a racist, white supremacist hate symbol, and (2) when public trust in the police is eroded, communities are less safe, which is why public trust in the police is an important consideration for local governments. The Majority discounts these concerns, noting that too "few" residents "felt that the [TBLAF] was offensive" and that there were no identified disruptions caused by displaying the TBLAF. However, as the Majority agrees, the "government need not show the existence of actual disruption," and here, the residents' concerns raise an inference, which we must view in their favor, "that disruption is likely to occur." … [F]or summary judgment purposes, the government has satisfied its burden of showing that Defendants' desire to engage in the speech at issue is outweighed by the "impact [of the speech] on the actual operation of the [g]overnment."

{Furthermore, the officers may communicate the same message they seek to profess (i.e., support for law enforcement) via a different symbol that (1) does not convey a racist message, (2) does not undermine the government's interest in fostering community trust in the police, and (3) protects officers' purported reasons for displaying the TBLAF. See App. 959 (FOP President conceding that the "Thin Blue Line" flag, which is different than the TBLAF, has "exactly the same meaning" as the TBLAF with respect to support for law enforcement).}

{The Majority claims that the Resolution's application to "any Township employee, agent[,] or consultant" indicates that it is not narrowly tailored to the identified harm. I do not think this is a concern in this case. Police officers and the FOP are the only parties challenging the Resolution and Memorandum here and we therefore need not reach the Resolution and Memorandum's application to other employees or groups. Even if we did, the public could infer that an employee's speech through his or her display of the TBLAF demonstrates the Township's endorsement of the message that some think the TBLAF conveys.}

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[Josh Blackman] Today in Supreme Court History: January 30, 1939

1/30/1939: Justice Felix Frankfurter takes oath.

Justice Felix Frankfurter

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[Eugene Volokh] Wednesday Open Thread

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[Eugene Volokh] Trump "Global Gag Rule" as to Abortion Likely Doesn't Violate the First Amendment

Friday, President Trump reinstated his 2017 reinstatement of the 2001 President G.W. Bush reinstatement of President Reagan's "Mexico City Policy" (also called by some the "Global Gag Rule") which provides, in relevant part:

The Mexico City Policy announced by President Reagan in 1984 required foreign nongovernmental organizations to agree as a condition of their receipt of Federal funds for family planning activities that such organizations would neither perform nor actively promote abortion as a method of family planning in other nations. This policy was in effect until it was rescinded on January 22, 1993.

It is my conviction that taxpayer funds appropriated pursuant to the Foreign Assistance Act should not be given to foreign nongovernmental organizations that perform abortions or actively promote abortion as a method of family planning in other nations….

The policy restricts the foreign grantees' speech (actively promoting abortion, which includes public advocacy and lobbying of foreign governments) as well as their conduct. Does this violate the First Amendment?

No, the Second Circuit federal court of appeals held in 1990; and it then followed that decision in 2002, in an opinion by then-Judge Sonia Sotomayor:

[W]hatever one might think of the Mexico City Policy, "the wisdom of, and motivation behind, this policy are not justiciable issues," and [this Court has] found the restrictions to be rationally related to the "otherwise nonjusticiable decision limiting the class of beneficiaries of foreign aid."

And in Agency for Int'l Dev. v. Alliance for Open Society Int'l (II) (2020), the Supreme Court recognized (though this time with Justice Sotomayor joining Justices Breyer's dissent, together with Justice Ginsburg) that "foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution," including free speech rights. This means, the Court said, "As foreign organizations operating abroad, plaintiffs' foreign affiliates possess no rights under the First Amendment." The Court there upheld a condition that foreign recipients of U.S. aid must take a public stand opposing prostitution, but the analysis would be the same for a condition that they must not make statements promoting abortion.

Now I want to be a bit tentative here, because it's possible that I'm misunderstanding some way in which the now-reinstated Mexico City Policy operates. (If, for instance, it sufficiently affected domestic organizations' speech in the U.S., it might be unconstitutional, see Agency for Int'l Dev. v. Alliance for Open Society Int'l (I) (2013).) But as I understand things, the funding condition applies only to foreign organizations operating abroad, and thus doesn't violate the First Amendment. (Whether the policy is a good idea is an entirely separate question, on which I do not opine here.)

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[Eugene Volokh] Harvard Crimson Was Entitled to Ban Commenter for What He Claims Were "Anti-Zionist" Comments

From today's decision by Judge Angel Kelley (D. Mass.) in Affleck v. Harvard Crimson Inc.:

Plaintiff Jonathan Affleck [who has also at times litigated as Joachim Martillo -EV] brings this action against Defendant The Harvard Crimson, Inc…. According to the Complaint, the Crimson … deleted Affleck's comments on three articles on the Crimson's website and then suspended Affleck's ability to post. Affleck claims that the Crimson's actions violated the First Amendment …, [the Massachusetts Constitution's free expression provision], and finally, federal and state laws related to common carriage discrimination and public accommodation discrimination….

According to the Complaint, from February 7 to February 10, 2024, Affleck commented, under two different names, 38 times across three articles on the Crimson's website. The three articles focused on Palestine and the Palestinian people…. [In an earlier case, Affleck] "… represent[ed] that each defendant disabled or suspended his account on their respective platforms because he posted content that each defendant deemed to be anti-Zionist."

The court concluded that 47 U.S.C. § 230 precludes all of Affleck's claims:

"No provider or user of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected." 47 U.S.C. § 230(c)(2). This provision "'precludes courts from entertaining claims that would place a computer service provider in a publisher's role,' and therefore bars 'lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions – such as deciding whether to publish, withdraw, postpone, or alter content.'"

"[C]ourts that have addressed these issues have generally interpreted Section 230 immunity broadly, so as to effectuate Congress's 'policy choice … not to deter harmful online speech through the … route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages.'" Instead Congress' goal "was to encourage service providers to self-regulate the dissemination of offensive material over their services." Thus, Section 230 "allows website operators to engage in blocking and screening of third-party content, free from liability for such good-faith efforts."

Under Section 230(c)(1), the Crimson is shielded from liability if: (1) the Crimson is a provider or user of an interactive computer service, (2) the claim is based on information provided by another information content provider, and (3) the claim would treat the Crimson as the publisher or speaker of that information. The First Circuit has made clear, "(1) web site operators … are 'provider[s] … of an interactive computer service'; (2) message board postings do not cease to be 'information provided by another information content provider' merely because the 'construct and operation' of the web site might have some influence on the content of the postings; and (3) immunity … cover[s] any claim that would treat [the website] 'as the publisher.'"

With this backdrop, … the deletion of content posted by Affleck and the disabling of his account are well within the Crimson's traditional editorial functions protected by the CDA.

As a result, the Crimson is also immune from Affleck's state common carriage and public accommodation discrimination claims. Further, even if the Crimson was not immune, Affleck has failed to state a claim, as the Crimson is "not [a] common carrier[] of 'merchandise or other property'" and is "not [a] place[] of 'public accommodation.'"

I'm not sure that § 230, properly interpreted, does indeed preempt state laws that impose antidiscrimination norms or viewpoint-neutrality norms on service or content provider removal decisions (see Adam Candeub's and my article on the subject). But I agree that the Crimson should in any event prevail because the relevant federal and state statutes don't actually impose such a mandate (and the First Amendment and the Massachusetts Constitution's free speech provisions apply only to government action).

Note that Affleck is also a commenter on our blog (under his own name), and we've had our run-ins with him as well. Here's a sample comment of his on one of our posts:

A US Zionist is almost certainly in violation of one of the above statutes [related to genocide] and must be arrested, tried, almost certainly convicted, sentenced, and sent to the gallows or to a long prison term.

Why isn't the US DOJ mass-arresting US Zionists? The executive branch has been corrupted by Zionist money. No Zionist should be roaming freely in the US. Every US Zionist individual and organization must be stripped of all assets. Every US Zionist must die penniless and impoverished.

The court also added,

The Court warns Plaintiff Affleck that the use of fictitious names [referring to his previous case filed under the name Joachim Martillo, which he called his "professional name" -EV] is strongly disfavored and should only be used when given leave by the court. Federal Rule of Civil Procedure 10(a) provides that "[t]he title of the complaint must name all the parties" and Federal Rule of Civil Procedure 17(a)(1) provides that "[a]n action must be prosecuted in the name of the real party in interest." Although the use of pseudonyms may be allowed in "exceptional cases," there is a "strong presumption against the use of pseudonyms in civil litigation."

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[Eugene Volokh] Settlement in Heartbeat of Miami v. Jane's Revenge Pro-Life Pregnancy Center Vandalism Lawsuit

The judgment was just entered today, and it provides, in relevant part:

All four Defendants—Caleb Freestone, Amber Marie Smith-Stewart, Annarella Rivera, and Gabriella Victoria Oropesa—are ENJOINED for a period of ten years from coming within 100 feet of the facilities that Plaintiff alleges were victimized in this case: South Broward Pregnancy Help Center in Hollywood, Florida; the Life Choice Pregnancy Center in Winter Haven, Florida; and any of the five facilities owned by Plaintiff. The parties agree to mutual general releases of any claims they may have against any opposing party arising from the same transaction or occurrence as the claims in the operative complaint. Each party shall bear their respective fees and costs.

The clerk must enter a JUDGMENT for the plaintiff and against Defendant Gabriella Victoria Oropesa for $13,000. Defendant Oropesa will pay $1,000 to each of the three facilities (South Broward Pregnancy Help Center, Life Choice Pregnancy Center, and Plaintiff) for a total of $3,000. Defendant Oropesa will pay a $10,000 civil penalty directly to the State of Florida. Defendant Oropesa's $13,000 payment of the civil judgment in the related civil action, No. 8:23-cv-701-SDM-AAS (Related Civil Action), satisfies the judgment in this action. Defendant Oropesa will also, within 30 days of sentencing in her related criminal case, No. 8:23-cr-25-VMC-AEP (Related Criminal Action), send a letter of apology to each facility similar to the apology the other three Defendants made at their sentencing hearing.

The clerk must enter a JUDGMENT for the plaintiff and against Defendants Freestone, Smith-Stewart, and Rivera for a restitution amount of $600.00 jointly and severally, the amount equal to the restitution the trial court ordered Defendants Freestone, Smith-Stewart, and Rivera to pay Plaintiff in the Related Criminal Action. Defendants' payment of the restitution order in the Related Criminal Action satisfies the judgment in this action.

For more on the guilty pleas in related criminal cases, see this June 2024 post; an excerpt:

Three Florida residents pleaded guilty today to conspiring to injure, oppress, threaten or intimidate employees of pregnancy resource centers in the free exercise of the right to provide and seek to provide reproductive health services. The defendants selected reproductive health facilities that provided and counseled abortion alternatives and vandalized those facilities with threatening messages.

According to court documents, between May and July 2022, Caleb Freestone, Amber Smith-Stewart and Annarella Rivera engaged in a series of targeted attacks on pro-life pregnancy help centers in Florida. The defendants admitted they participated in the attack in the dark of night and, while wearing masks and dark clothing to obscure their identities, spray painted the facilities with threatening messages, including "If abortions aren't safe than niether [sic] are you," "YOUR TIME IS UP!!," "WE'RE COMING for U" and "We are everywhere."

The fourth defendant (Gabriella Victoria Oropesa) was convicted in December, though she is still challenging the conviction.

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