Eugene Volokh's Blog, page 202

[Paul Cassell] Did President Biden's Justice Department Confer with the Victims' Families Before the President Commuted Federal Death Sentences?

This morning, the White House announced that President Biden has commuted the death sentences of 37 of the 40 federal death row inmates. I wonder whether the President has ignored the rights and interests of crime victims' family members in granting mass commutations.

The Justice Department does have in place an announced policy for processing requests for executive clemency in capital cases.  Under the Department's "Rules Governing Petitions For Executive Clemency sec. 1.10/Procedures Applicable to Prisoners Under a Sentence of Death Imposed by a U.S. District Court," victims' families (like a death row inmate's representatives) are supposed to generally have an opportunity to make a presentation to the Office of the Pardon Attorney before clemency is granted:

(c) The petitioner's clemency counsel may request to make an oral presentation of  reasonable duration to the Office of the Pardon Attorney in support of the clemency  petition. The presentation should be requested at the time the clemency petition is filed.  The family or families of any victim of an offense for which the petitioner was sentenced to death may, with the assistance of the prosecuting office, request to make an oral presentation of reasonable duration to the Office of the Pardon Attorney.

In reading today's "fact sheet" from the White House, I see no reference to the Department having contacted victims' families or otherwise conferring with them before making the decision. The large numbers of commutations the President issued at the same time--all in the waning days of the current Administration--makes me wonder whether the Administration has simply left victims' families outside of the process.

As the Justice Department rules suggest, a fair process in considering commutations would necessarily involve at least hearing from victims' families before making any final commutation decision. And there does not appear to be any logistical barrier to conferring with the victims' families. The U.S. Attorney's Offices who have handed these 37 cases are, no doubt, have ways to quickly contact family members. The federal Crime Victims' Rights Act (CVRA) broadly commands that victims (and family members in homicide cases) have the "right to be treated with fairness and with respect for the victim's dignity and privacy." Failing to confer with victims family members who have gone through a long and arduous capital trial and sentencing process is difficult to square with this command. And the Justice Department's own Attorney General Guidelines for Victims and Witness Assistance indicate that "[t]his broad-based right [to fair treatment] is central to the purpose of the CVRA and should serve as a guiding principle for Department personnel that governs all interactions with crime victims." A.G. Victims Guidelines at 70, art. III, sec. j.

My suspicions that the victims' families have been ignored in this commutation process are heightened by the fact that in another case--U.S. v. Boeing--the Department has paid little attention to victims' families. Indeed, a federal judge has found that the Department violated the federal Crime Victims' Rights Act in reaching its decisions without conferring with victims' family members.

Here, of course, the President has constitutional power to commute federal sentences, including federal death sentences. And in this short post, I don't take a position on the substantive pros and cons of the 37 commutations. My question is simply a procedural one that goes to the fairness of the process: In making the commutation decisions, has the President followed standard procedures and given the victims' families an opportunity to confer with appropriate officials before making a final decision? Perhaps such conferrals have taken place and these details have not been publicly disclosed. But from the information I've been able to review quickly, that seems unlikely … and, once again, victims' families rights and interests are apparently being ignored in some larger political manuever.

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[Eugene Volokh] "Advanced Stalking"

From Guam Code Ann. § 19.70:

(a) A person is guilty of simple stalking if he or she willfully,
maliciously, and repeatedly, follows or harasses another person or who
makes a credible threat with intent to place that person or a member of his or
her immediate family in fear of death or bodily injury.

(b) A person is guilty of advanced stalking if he or she violates
Subsection (a) of this Section when there is a temporary restraining order or
an injunction or both or any other court order in effect prohibiting the
behavior described in that Subsection against the same party.

Rather an odd locution, it seems to me; the term would normally be something like "aggravated stalking," or the crime might be divided into first-degree and second-degree stalking. But legislatures can name things as they please.

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[Josh Blackman] Today in Supreme Court History: December 23, 1745

12/23/1745: Chief Justice John Jay's birthday.

Chief Justice John Jay

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[Eugene Volokh] Monday Open Thread

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[Josh Blackman] Today in Supreme Court History: December 22, 1789

12/22/1789: Justice Levi Woodbury born.

Justice Levi Woodbury

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[Eugene Volokh] Much of Government Response to Parent's Criticism of School Board "Was Beyond the Pale," but Can't Justify an Injunction …

From yesterday's Third Circuit decision in Reading v. North Hanover Township, written by Judge Thomas Hardiman and joined by Judges Kent Jordan and David Porter:

Angela Reading, a mother and former school board member, alleged that federal and local government officials violated her right to free speech by engaging in a campaign of censorship and retaliation after she posted comments on Facebook. She requested a preliminary injunction to prohibit those officials from further interfering with her First Amendment rights. After the District Court denied her motion, Reading appealed.

{Reading's allegations are serious and raise important questions under the Free Speech Clause of the First Amendment. Reading expressed concern about whether her seven-year-old daughter was being exposed to sexual topics that have no place in an elementary school. Regardless of whether one agrees with Reading's concern, the record suggests that Defendants' response to her blog post was, to put it mildly, disproportionate.}

Although much of the government actors' behavior was beyond the pale, the record does not show a substantial risk that their acts of censorship and retaliation will recur. So Reading lacks standing to seek a preliminary injunction….

More on the factual claims:

The controversy that gave rise to this case unfolded at the Upper Elementary School (UES or School) in the North Hanover Township School District. As part of its 2022 "Week of Respect," the School invited students to design posters "demonstrat[ing] that UES [is] a safe place where everyone [is] accepted." Some students offered "messages of general acceptance," while others supported more specific causes.

One such poster, anchored in the center by the acronyms "LGBTQ" and "UES," featured descriptions of various sexual identities and their corresponding flags. The poster included a "bi" flag, a "genderfluid" flag, and a "polysexual" flag, among others. It announced that "different is cool" and instructed students that "you are who you are."

Angela Reading first saw the poster when she attended the School's "Math Night." After her seven-year-old daughter asked what the word "polysexual" meant, she was "livid." She took her concerns to social media. In a lengthy post to the "NJ Fresh Faced Schools" Facebook page, Reading wondered why an elementary school would permit its students to "research topics of sexuality," and worried that adults were "talking about their sexual life" with her children. She called the poster "perverse" and argued that it "should be illegal to expose my kids to sexual content." Although "[k]ids should respect differences," Reading explained, they "should not be forced to learn about and accept concepts of sexuality in elementary school." Reading concluded the post by noting that her comments were "made in [her] capacity as a private citizen and not in [her] capacity as a [school] board member."

Reading's post quickly drew the ire of military personnel at nearby Joint Base McGuire-Dix Lakehurst, some of whom had children at the School. Major Chris Schilling was especially fixated on the post. In an email to local parents, Schilling complained that Reading's post was "filled with too many logical fallacies to list." He accused her of "try[ing] to over sexualize things" to "give her arguments more power," insisting that she did "not hav[e] the proper resources and/or education on the matter." Schilling was "very concern[ed]" that Reading served as a local school board member.

Writing from his personal email account, Schilling also worried that Reading would "stir[ ] up right wing extremists." He raised this alarm in another email to parents, warning that Reading's post "could needlessly injure the school and others in the community." He encouraged parents to speak out against Reading and to "keep the pressure on until her disruptive and dangerous actions cease."

The controversy grew when Schilling elevated his concerns to the leadership at Joint Base McGuire-Dix Lakehurst. Now writing from his military email account, Schilling cautioned Major Nathaniel Lesher that Reading's post could "give[ ] a road map to anyone looking to make a statement, political, ideological, or even violent." In response, Major Lesher promised to forward the issue to Robert Duff, the Chief of Police for Hanover Township. After Reading's post gained modest traction online, Schilling once again contacted Lesher, who vowed to "push this again" to Duff..

Instead of de-escalating the matter to the Hanover Township Police, the situation intensified when more military personnel got involved. Air Force Antiterrorism Program Manager Joseph Vazquez wrote that Reading's post "really gets under my skin for sure." He assured Major Schilling that he was "sending this to our partners with NJ Office of Homeland Security and Preparedness as well as the NJ State Police Regional Operations Intelligence Center," which "keep an eye on far right/hate groups." And Lieutenant Colonel Megan Hall advised two local school superintendents, including Defendant Helen Payne, that Reading's posts "have created a concern for the safety of our military children and families." She worried that they "could become targets from extremist personnel/groups."

Major Schilling reported his colleagues' involvement to parents in the community. In an email sent from his personal account, Schilling explained that he had been "actively working with the base leadership over the past few days" and that "they are working to support us in our efforts."

Schilling's efforts bore fruit. On November 30, Chief Duff successfully convinced Nicole Stouffer, the administrator of "NJ Fresh Faced Schools," to remove Reading's post from the page. As Stouffer described the episode,

While professing that he was not actually ordering me to take the post down, Duff intimidated me into doing so by telling me that the post, and Mrs. Reading, were under investigation by Homeland Security because of the supposed potential for the post to cause a school shooting like the one that had occurred at Uvalde Texas, or a mass shooting like the one that had occurred at a gay nightclub in Colorado. Duff told me that the "threat" posed by this innocuous post was such he had had to provide extra security for the North Hanover schools because of the threat of violence. He was clearly and unequivocally pressuring me to censor the post while trying to pretend that he was not doing so.

After briefing military personnel on this development, Chief Duff promised to "continue to see if I can get additional posts removed from other social media posts."

The controversy didn't end there. One comment on Reading's post revealed the "location" of upcoming school board meetings, which were held at "times … publicly listed on the school website." So even though Reading's post had been taken down, Major Schilling feared that outsiders might still endanger the community. Worried for the "military parents [who] attend these meetings," Schilling sought even more support from base leadership. So Antiterrorism Program Manager Vazquez forwarded Schilling's concerns to the New Jersey Office of Homeland Security and Preparedness, who in turn notified the Burlington County Prosecutors Office Counter-Terrorism Coordinator. Meanwhile, Chief Duff offered to "continue to monitor social media and take appropriate action if needed."

Many of these developments were shared with the public. In a "Community Update" email, Superintendent Payne stated that recent events had "caused safety and security concerns for many families" and offered the following assurance:

[t]he safety and security of our students and staff is always of primary importance, and ensuring that has been my first priority, even as we responded to this situation over the past couple of days. I assure you that I have been in continuous close contact with the North Hanover Police and they have been very supportive and present for us. They are taking any risks very seriously, are aware of our concerns and have been working on their end to provide any support we need.

On top of these public-facing comments, Superintendent Payne and Chief Duff privately lambasted Reading in a string of text messages to each other. Duff called Reading "sick in the head," to which Payne responded, "[o]ld news." Duff asserted that Reading "should know better and keep her mouth shut," to which Payne responded, "She can't. She is not capable."

Major Schilling gave an update of his own. In a post to the Northern Burlington Parents Facebook page, he acknowledged that "[t]he current situation involving Mrs[.] Reading's actions has caused safety concerns for many families." But "[t]he Joint Base leadership takes this situation very seriously," and "Security Forces [are] working with multiple state and local law enforcement agencies to monitor the situation to ensure the continued safety of the entire community."

These efforts led to what Reading calls "an over-the-top show of force" at the next Board of Education meeting on December 13. She claims that Chief Duff arranged for "a multi-jurisdictional battalion of armed police officers, install[ed] a metal detector, and requir[ed] bag searches." Reading alleged that "panic-stricken attendees assailed" her at the meeting, "falsely accusing her of jeopardizing school safety when no 'threat' had ever materialized."

Reading defended herself in the media. She emailed government officials, appeared on national television, and was interviewed on local radio. She also published articles on a blog, which covered topics ranging from government censorship to developments in education policy.

After these events, Reading maintains that her "life and career were radically altered for the worse." Since the controversy began, Reading lost a job offer, resigned from her position on the Northern Burlington County Regional School Board, and withdrew her children from public schools. She blames Defendants, whose conduct "rendered [her] a pariah in her community."

All of this—emails, phone calls, text messages, community letters, heightened security, and referrals to counter-terrorism authorities—because of a single Facebook post.

The court nonetheless concluded that Reading wasn't entitled to a preliminary injunction:

Where, as here, the plaintiff seeks prospective relief to address future harm, she must show that "the threatened injury is certainly impending, or there is a substantial risk that the harm will occur." Evidence of "past exposure to illegal conduct" does not automatically justify an injunction against future violations, but it is relevant as "a launching pad for a showing of imminent future injury." …

Reading's primary evidence of future harm is the predictive value of Defendants' past conduct. Her emphasis is understandable, for "[i]f a plaintiff demonstrates that a particular Government defendant was behind her past social-media restriction, it will be easier for her to prove that she faces a continued risk of future restriction that is likely to be traceable to that same defendant." But "easier" does not mean automatic. For example, in Murthy v. Missouri, the Supreme Court considered a request for a preliminary injunction barring a host of government defendants from coercing the removal of plaintiffs' social media posts. Plaintiffs argued that because the Government defendants had coerced the removal of their social media posts in the past, there was a substantial risk they would do so again. The Supreme Court disagreed. And it did so because the Government's alleged suppression campaign "had considerably subsided" by the time plaintiffs sued, so even the strongest evidence of past censorship could not show "a likelihood of future injury traceable to" the Government defendants.

Murthy dictates the outcome in Reading's case. The bulk of Defendants' allegedly unlawful conduct took place during a three-week period, and almost all of it ended by mid-December 2022. Superintendent Payne sent her "Community Update" on December 1; Chief Duff's heightened security ended upon the conclusion of a school board meeting on December 13; and the Federal Defendants' spate of communications slowed significantly by December 5. Indeed, during oral argument, Reading's counsel could not identify any unlawful acts by Defendants since the initial events nearly two years ago. Even if Defendants engaged in a conspiracy to deprive Reading of her First Amendment right to speak freely during the final weeks of 2022, any threat "had considerably subsided" by the time she sued in March 2023.

Reading's counterarguments are unpersuasive. She first quotes the Supreme Court's statement in Susan B. Anthony List v. Driehaus that Defendants' "refusal to 'disavow' past enforcement … indicate[s] a credible threat of recurrence." Her reliance on Driehaus is misplaced. That case involved a preenforcement challenge to an Ohio law that "prohibit[ed] certain 'false statements' during the course of a political campaign." In finding a "substantial risk" that the law would be enforced against the plaintiff, the Court relied on the Ohio Elections Commission's refusal to disavow the possibility of future enforcement, not its failure to apologize for past transgressions. Unlike the Commission in Driehaus, here the law enforcement Defendants confirmed that they are not presently surveilling Reading and have no plans to do so. The record supports them on that score. While Reading continues to author blog posts about the appropriateness of "LGBTQ+ issues in public schools," Defendants have done nothing more to silence or retaliate against her.

Reading also argues that the "voluntary cessation" doctrine excuses her failure to show a likelihood of future harm. That exception to the mootness rule provides that "a defendant's voluntary cessation of a challenged practice will moot a case only if the defendant can show that the practice cannot reasonably be expected to recur." And it ensures that a defendant cannot "suspend its challenged conduct after being sued, win dismissal, and later pick up where it left off." Unable to make out a likelihood of future harm, Reading relies on this doctrine to try to shift her burden of proof—under the voluntary cessation exception, it is Defendants who must make "absolutely clear that [their] allegedly wrongful behavior could not reasonably be expected to recur." Because they have not made this showing, Reading suggests, we have jurisdiction to reverse the District Court's order.

We disagree because Reading cannot recharacterize as mootness what is really a question of standing. This is not a case where Reading once had standing to seek injunctive relief but lost it during the pendency of litigation. Instead, "the issue here" is whether Reading "meets the preconditions for asserting an injunctive claim in a federal forum." Because Reading has not since the filing of her action established a likelihood of future harm, the doctrines of mootness and voluntary cessation provide her no refuge.

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[Eugene Volokh] Court Upholds Interim Suspension of Students for Justice in Palestine Chapter for Prohibited 10-Day Tent Demonstration

Yesterday's decision by Judge William K. Sessions III (D. Vt.) in University of Vermont Students for Justice in Palestine v. University of Vermont upheld the University's interim suspension of UVMSJP for violating various rules in setting up a 10-day long tent demonstration on the University's Davis Center Green in Spring 2024:

Using the Davis Center Green to the exclusion of others for non-commercial solicitation without a reservation; Disruption of scheduled tabling and other reservation of space outside the Davis Center; Disruption of normal student engagement and/or academic work patterns; Setting up tents ("temporary structure") on the Davis Center Green without a permit and declining to remove them when requested; Overnight occupancy of a temporary structure; Encouraging and facilitating the violation of policy by other students.

UVMSJP sued over this suspension of the group's recognized student organization privileges (the lawsuit wasn't about any academic suspension of any particular students). The court, though, granted the university's motion to dismiss, concluding that even if the facts were as UVMSJP had alleged, they wouldn't amount to a violation of the First Amendment. First, the court rejected plaintiffs' prior restraint claim:

In Healy v. James (1972), the Supreme Court considered whether a college violated the plaintiffs' free association rights when it denied recognition of their student group. Ultimately, the Court remanded the case for reconsideration of the plaintiffs' claims, as it was unable to "conclude from this record that petitioners were willing to abide by reasonable campus rules and regulations." … Healy noted that recognition of a student group, "once accorded, may be withdrawn or suspended if petitioners fail to respect campus law."

More recently, the Supreme Court considered a case in which Hastings Law School denied Registered Student Organization status to a Christian student group ("CLS") that excluded students based on religion and sexual orientation. Christian Legal Society v. Martinez (2010)…. The Supreme Court … [held] that by requiring CLS to comply with all school policies and regulations, Hastings was merely imposing a "reasonable, viewpoint-neutral condition on access to the student-organization forum," while CLS was seeking "not parity with other organizations, but a preferential exemption from Hastings' [nondiscrimination] policy."

The Court finds that both Healy and Martinez support Defendants' contention that a university may take action against a student organization when the university's rules have been violated. Whether those actions are constitutional, however, will largely depend on both the lawfulness of the underlying rules and the extent to which the university's actions were in concert with those rules. The Court must therefore proceed to UVMSJP's additional constitutional challenges.

The court held that the relevant program of student group access to university property, resources, and recognition was a limited public forum, in which the government's actions as property owner need only be reasonable and viewpoint-neutral. And the court concluded that these actions were indeed reasonable and viewpoint-neutral:

"[U]nder appropriate circumstances, a permitting requirement governing the use of a public open space can further a legitimate interest in the regulation of competing uses of that space." Moreover, the University "has a significant interest in ensuring safety and order on campus, especially where the [property in question] is sited at a highly trafficked area of the campus." … See also Healy ("[A] college has a legitimate interest in preventing disruption on the campus."). In keeping with these principles, the Court finds that UVM's registration process, as well as its rules for casual users, serve reasonable University goals of ensuring public safety, minimizing disruption, and coordinating the use of limited space.

Other alleged violations cited in the Notice, including disruption of normal student engagement or work patterns, also fit within those same legitimate and reasonable University goals. The use of tents, and in particular sleeping in the tents overnight, allegedly violated the University's Temporary Structures policy. The policy itself states that "[w]hile temporary structures do not necessarily express thoughts or opinions, in many cases their purpose is to represent particular viewpoints symbolically." The policy expresses the University's commitment to "an atmosphere of free expression and open dialogue," and recognizes that this commitment "must be balanced with other concerns as well, such as the safety of our students and employees; the condition and appearance of our campus; and the prudent use of our financial and human resources." "[O]vernight occupancy of a temporary structure" such as a tent is expressly prohibited "[d]ue to safety and security concerns." …

Allowing students to sleep outside on University property gives rise to vulnerabilities that are not present when students are housed in secure dormitories. The Temporary Structures policy addresses those vulnerabilities and furthers the community's strong interest in maintaining student safety….

The Court turns next to the question of viewpoint neutrality. Unlike Martinez, where the law school's decision touched upon CLS's core principles with respect to membership, the decision in this case was based on conduct that bore no direct relationship to UVMSJP's message regarding the war in Gaza. The group's actions triggered policies, such as the Posting and Solicitation policy, based upon conduct. In turn, the University responded to alleged violations of those policies and, despite unsupported allegations of pretext (discussed below), not to the messages or motivations underlying the group's speech. See, e.g., Martinez ("The Law School's policy aims at the act of rejecting would-be group members without reference to the reasons motivating that behavior."). Moreover, the UVM policies do not, as UVMSJP contends, allow unfettered discretion….

The court also rejected UVMSJP's claim that the violations of the content-neutral rules were just a pretext, and that the real reason for the University's actions was disagreement with UVMSJP's viewpoint:

UVMSJP cites the cancellation of a scheduled appearance by a Palestinian poet several months before the demonstration at issue here. The appearance was allegedly cancelled after pro-Israel groups claimed the poet's works are anti-Semitic. The Verified Complaint also references other protests and demonstrations, and claims the University failed to take action against demonstrators who supported Israeli policies.

While the Court accepts the factual allegations in a complaint as true, the law does not require it to also accept a plaintiff's legal conclusions. Here, the allegations in the Verified Complaint do not support a plausible pretext claim. Briefly stated, the incidents cited by UVMSJP are readily distinguished from the events in this case.

And, as discussed above, the University's actions were taken pursuant to rules and policies that focus on conduct. The Verified Complaint references a series of previous protests: a 2017 student march into the UVM President's office; a 2018 protest that overtook classrooms and blocked a public street at rush hour; a 2019 student walkout and subsequent demonstration on the Andrew Harris Commons; a blockage of a public street in 2019; a 2021 student protest of the University's response to allegations of sexual assault on campus; a 2021 protest and march that involved University spaces, including open greens and a campus building, while at times blocking traffic; and the annual 4/20 protests that occurred prior to the legalization of marijuana in Vermont. The Verified Complaint does not allege that any of these events involved a Recognized Student Organization violating a University rule or policy. The Verified Complaint also does not claim that any of the cited events involved a multi-day demonstration, a lack of proper registration, or the overnight use of tents.

UVM cannot regulate public streets, and cannot discipline persons or groups not affiliated with the University. With respect to an alleged preference for pro-Israel protesters, there is no claim that such protesters engaged any of the conduct, or even similar conduct, addressed in the University's Notice to UVMSJP. Accordingly, the allegations in the Verified Complaint do not plausibly support the assertion that these other events offer evidence of pretext.

Finally, the court rejected the UVMSJP's various due process claims as well.

Kendall A. Hoechst (Dinse P.C.) represents the University.

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[Josh Blackman] Today in Supreme Court History: December 21, 1922

12/21/1922: Justice Pierce Butler takes oath.

Justice Pierce Butler

 

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[John Ross] Short Circuit: A Roundup of Recent Federal Appeals Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New cert petition: Does the Supreme Court want to overturn Kelo v. New London? We're asking them to overturn Kelo v. New London. Swear to heck. Click here to learn more.

New on Unpublished Opinions, IJ's roundtable podcast: Is a pun worth keeping if you have to explain it in a footnote? Plus, other weighty jurisprudential questions.

New on the Short Circuit podcast: UCLA's Joanna Schwartz and Kasia Wolfkot of the Brennan Center talk with IJ's Anya Bidwell about civil rights reforms at the state level.

Sometimes our creations escape our control—sometimes our monster pushes a little girl into a well or our dinosaurs eat the guy from Seinfeld—but this is not the case with Pennsylvania's Joint Underwriting Association, which, holds the Third Circuit, is purely a creature of the state and thus incapable of either asserting constitutional claims against its creator or (one assumes) devouring any beloved character actors. Following a trial, jury finds that Pennsylvania prison guard twice sexually abused a prisoner. It awards $20k in compensatory damages for each assault, $25k in punitive damages for the first one, and $200k in punitive damages for the second. Guard: Maybe it was a different guard who did the assaulting. And the punitive damages are too punitive. Third Circuit: No and no. The jury could reasonably have concluded that you were the guy who did the assaulting. And given that you repeated your "egregious behavior," it sure seems like these punitive damages are needed to deter future wrongdoing. (Fun fact: The Pennsylvania Attorney General's Office appears to take a decidedly more . . . nuanced view of reprehensibility for prison guards found liable for sexual abuse ("Reprehensibility has to be considered on a spectrum . . . .") than it does for elderly widows facing forfeiture of their homes because their sons sold $190 worth of weed ("Including a claimant's culpability as a specific consideration in the [Excessive Fines Clause] balancing test is not only contrary to established precedent, it is illogical.").) South Carolina ACLU wants to record and publish an interview with a death row inmate, but the South Carolina Department of Corrections forbids "personal contact" interviews with inmates, including those by telephone (exchanging letters is fine, though). ACLU-SC challenges the prohibition as a violation of the First Amendment. Fourth Circuit: The press has no special right of access to prisoners that is not enjoyed by the public generally, and the ACLU doesn't dispute that the inmate is unavailable to the public. Case dismissed. This unpublished per curiam opinion from the Fifth Circuit—affirming a denial of qualified immunity—gives no hint of the outrageous allegations in the case (which involve the innocent plaintiff being tackled and hogtied for meeting the description "Hispanic male"). For the full scoop, you'll have to check out the district court opinion. Maverick County, Tex. judge, who is presiding over a meeting of the county commissioners, orders resident removed for speaking out of turn (though it's unclear that she did). On the judge's say-so, the resident—herself a former county judge—is detained outside in the rain for three hours and then taken to jail, booked, and released. But wait! Was the arrest actually retaliation for her criticism of the commission? Fifth Circuit: Let's find out. The judge is neither protected by sovereign immunity, nor judicial immunity. And he doesn't even get to invoke qualified immunity because judges don't have authority—outside of their courtrooms—to hold people in contempt. You have to be operating within the scope of your authority to ask for QI. Apparently the Fifth Circuit thinks some of their readers are so modern that they won't understand what a "rolodex" is without a footnote. Of course, discerning Short Circuit readers know that it is, as the court says, "a genericized portmanteau referring to a desktop card index used to record names, addresses, and telephone numbers." This is relevant to the court's conclusion that Section 230 does not immunize Salesforce in a lawsuit brought by sex trafficking victims where Salesforce provided services for Backpage.com. This is because Salesforce did not act as a "publisher" but instead did rolodex-type stuff. The court also footnotes Lewis Carroll to justify its use of the term "rabbit hole." After a series of seemingly random shootings into homes in Detroit, the police chief announces that a man who open carries an AR-15 around the neighborhood is a person of interest. But the open carrier is not the shooter, and he loses customers and gets assaulted by private parties as a result of the announcement. Sixth Circuit (unpublished): There's no prior case like this. QI. If a person repeatedly buys distribution-level quantities of drugs from a supplier, is that enough to show he has entered a "conspiracy" with the supplier to distribute drugs? Seventh Circuit (en banc): Yes, and in so holding we realign our circuit with the Supreme Court's precedent. Dissent: False! You need more than that to show intent to enter a conspiracy. Bodybuilder "Chuck Diesel" sells a testosterone-boosting herbal supplement called Diesel Test. Then, a different enterprise, "Revolution Laboratories," starts selling a nutritional supplement called . . . Diesel Test. After disgruntled customers of Company B start mistakenly complaining to Company A, cease-and-desist letters and trademark-infringement litigation ensue, culminating in an award of $2.5k in compensatory damages to Company A, disgorgement of ~$550k and punitive damages of $900k ($300k each against Company B and its two owners, respectively). Seventh Circuit: This all checks out, not least because in comparing the ratio of punitive damages to the harm suffered, disgorgement amounts can count towards the harm-suffered part of the equation. Nonpartisan legislative specialist in the clerk's office of the Missouri House sends a super-polite email in August 2020 to the Speaker of the House and the President Pro Tem of the Missouri Senate, requesting that they implement a mask policy to protect visitors to the capitol from COVID-19. Three days later he's fired. He sues for First Amendment retaliation. Defendants: It's a total coincidence; we actually fired him for poor job performance. Eighth Circuit: A jury disagreed, which wasn't unreasonable given his seven years of sterling performance reviews. Pay the man. Pursuant to the Indian Gaming Regulatory Act (IGRA), Indian tribes located in Washington State are authorized to offer gambling (including sports betting) on their land by entering into tribal-state compacts. After Washington denies a (non-tribal) gaming company the right to engage in sports betting, the company sues, alleging that Washington's tribal-state compacts are unconstitutional. Are the tribes required parties to the company's lawsuit? Ninth Circuit: Indeed, but the tribes can't be sued because they have sovereign immunity. The company is out of luck. Dismissal affirmed. After protest in 2017, Phoenix police officers sell/obtain/possess a "challenge coin" commemorating the events of the day that depicts a protestor being hit in the groin by a munition and that bears the inscription "Making America great again one nut at a time." Ninth Circuit: Immature. Distasteful. But of minimal relevance. The crowd was unruly, and using chemical irritants and flashbang grenades to disperse them was fine. This en banc Tenth Circuit case has a little something for everyone. Bickering over en banc procedure. (The court sua sponte ordered it to be heard en banc after the appeal was briefed and argued at panel but before the decision issued.) A prosecutor who misconducted so egregiously that she was later disbarred. (Her rap sheet is long, including framing an innocent man of double murder who spent 23 years in prison before being exonerated.) A court overturning its nearly 30-year-old precedent. (The Tenth Circuit no longer has a per se Sixth Amendment violation if a prosecutor listens in on a defendant's calls with his attorney. The defendant now must show prejudice.) An intense circuit split. (Four positions, as identified in the dissent's footnote 34, a citation that presumably will make its way to a cert. petition in short order.) So pour yourself a tipple this holiday season and pore over this decision. And in en banc news, the Sixth Circuit will reconsider its opinion that a class-action lawsuit against GM for certain transmission problems may proceed even though not all putative class members actually had those problems in their GM vehicles.

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[Eugene Volokh] Student Suspended for Saying Man Who Insulted Her "Needa Get Blasted" + Having Posted (a Year Before) a Shooting Range Video

From Monday's decision by Judge Joseph Dawson, III (D.S.C.) in Lemoine v. Horry Georgetown Technical College:

In September 2024, Leigha Lemoine … was enrolled in the cosmetology program at Defendant Horry Georgetown Technical College ("HGTC"). On September 5, 2024, while Lemoine was off-campus, Lemoine's boyfriend's roommate—who was not an HGTC student—insulted Lemoine. Later that day, Lemoine detailed the incident in a Snapchat group text that included other HGTC students. Therein, Lemoine posted the following:

But naw I was trying to be nice but f[***] that some random ugly a[**] in bread looking f[***] dude called me a b[****] he needa get blasted….

On September 11, 2024, some students at HGTC reported that they "fe[lt] uncomfortable and somewhat unsafe" due to Lemoine's use of "the term 'blasted'" in the Snapchat….

School officials met with Lemoine, who "denied [the Snapchat had] anything to do with physical harm" and said she "only intended that the roommate 'needed to be held accountable and called out for his behavior.'" The officials at first accepted that, but two days later they

discovered a one-year-old video of Lemoine posted on Instagram, in which Lemoine fired a handgun at a target. While firing the handgun, Lemoine was "wearing a western[-]style outfit …." … Lemoine explained [to school officials] that the gun in the video "did not belong" to her and she had never fired a gun before that time….

Apparently because of the combination of this Snapchat and the year-old video, Lemoine was suspended until Summer 2025, based on a student code provision forbidding "[e]ngaging in any activity that disrupts the educational process of the college, interferes with the rights of others, or adversely interferes with other normal functions and services."}

Specifically, [a school administrator] wrote that "[i]n today's climate," Lemoine's "failure to disclose the existence of the video" and "use of the term 'blasted'" created "a significant amount of apprehension related to the presence and use of guns" and that "both employees and students" at HGTC "feel unsafe due to these circumstances."  …

Lemoine sued, and the court issued a preliminary injunction ordering that she be readmitted. The court concluded that the speech likely didn't fall into the First Amendment exception for "true threats" of illegal conduct:

First, on September 20, 2024, Defendants agreed with Lemoine's explanation that "blasted" had a completely nonviolent meaning. If Defendants believed that use of the term "blasted" was objectively threatening, it is unlikely they would have accepted Lemoine's explanation. But even assuming that "blasted" could have been objectively threatening on September 20, 2024, Lemoine explained that she only intended to provide commentary about a personal insult directed towards her. Thus, it does not seem—much less clearly appear—that Lemoine's "intent" in making the Snapchat was sufficiently culpable.

Second, the context of the later-discovered Instagram video likely does not support Defendants' decision. Defendants contend that the decision to suspend Lemoine was made in the full context of discovery of the video after Lemoine's "dissembling" about guns. But Defendants do not suggest that there is anything that smacks of impropriety—much less a subtle indicium of danger—about the video. Though Lemoine did not disclose the video's existence, Defendants do not contend that Lemoine affirmatively lied about or tried to hide anything that it disclosed. As Lemoine explained, the one-year- old video depicted the first—and apparently only—time that Lemoine ever fired a gun. Lemoine also stated that the gun was not hers and that she did not see anything wrong with the video. Defendants' admission that, like the Snapchat, there is nothing individually nefarious about the video, is telling.

Finally, the stark difference between the context here and other cases about threats buttresses the Court's conclusion. See, e.g., McNeil v. Sherwood Sch. Dist. 88J (9th Cir. 2019) (off-campus journal entry discovered referring to students and school personnel with "All these People Must Die" and "I am God"); Doe v. Pulaski Cnty. Special Sch. Dist. (8th Cir. 2002) (student wrote "two violent, misogynic, and obscenity-laden rants expressing a desire to molest, rape, and murder" his ex-girlfriend that were discovered off-campus). Notably, Lemoine directed no threat to any student, teacher, or other personnel at HGTC. And no criminal charges have been brought against Lemoine.

Therefore, Lemoine's speech was likely not a true threat. The record lacks an indicium that Lemoine's speech was of any other unprotected class of speech. Therefore, the Snapchat, understood in the light of the Instagram video, receives at least some protection under the First Amendment. The next question is how much.

Lemoine uttered the speech in issue here via two social media applications: Snapchat and Instagram. In doing so, Lemoine spoke "away from [the] college campus." Defendants contend Lemoine's speech "impacted the learning environment" by "causing both employees and students" to "feel unsafe."

And the court concluded that the government's extra power as educator likely didn't justify the punishment here, either.

The Supreme Court began with the doctrine of in loco parentis: "First, a school, in relation to off-campus speech, will rarely stand in loco parentis." Mahanoy Area Sch. Dist. v. B.L. (2021). The Latin term "in loco parentis" means "[i]n the place of a parent," and it applies "when [a] person undertakes care and control of another in absence of such supervision by [the] latter's natural parents."

Here, Lemoine spoke "away from" campus. She spoke outside of the traditional school day and did so in a non-HGTC-operated group chat. These facts alone suggest HGTC did not stand in loco parentis. But Lemoine is also a college student. As a justification for speech regulation, in loco parentis has diminished force in the college context. See Mahanoy Area Sch. Dist. (Alito, J., concurring); cf. Healy v. James (1972) (noting that "[t]he college classroom with its surrounding environs is peculiarly the 'marketplace of ideas'"); see McCauley v. Univ. of the Virgin Islands (3d Cir. 2010) ("Public university 'administrators are granted less leeway in regulating student speech than are public elementary or high school administrators.'")….

"Second, from the student speaker's perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day." Mahanoy Area Sch. Dist.  For this reason, courts "must be more skeptical" of attempts to regulate such speech. Here again, Lemoine was "away from" HGTC when she spoke, , and Lemoine spoke in a "group text chain" that, while it included some HGTC students, it was "outside of school owned, school operated, or school supervised channels …." Furthermore, Lemoine's speech occurred sometime in the "evening and into the night …." School regulation on these facts would sweep in much student speech. Thus, Lemoine's speech shares substantially in this feature of off-campus speech….

"Third, the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus." Mahanoy Area Sch. Dist. Here, Lemoine intended to hold the person who insulted her accountable. Calling for accountability is the essence of protected speech. Thus, as a public school, HGTC and its personnel have an interest in protecting unpopular speech like Lemoine's. Thus, Lemoine's off-campus speech shares fully the same underlying rationales supporting limited regulation by the school.

Nonetheless, the interests of the school in regulating off-campus speech are entitled to some weight. In that regard, Defendants point only to the results of their investigation. Namely that Lemoine's Snapchat purportedly "impacted the learning environment, causing both employees and students to express that they feel unsafe due to these circumstances." But these undifferentiated contentions, without more, do not suggest an actual disruption occurred. See Kutchinski ex rel. H.K. v. Freeland Cmty. Sch. Dist. (6th Cir. 2023) (finding a "reasonabl[e] argu[ment] that actual disruption occurred" when a student observed "one of the targeted teachers crying in one of her classes" and there were "whisper[s] about" the purported harassment "during the day" among students). Defendants point to no evidence of any past disruption by Lemoine or any other disruptions occurring under materially similar circumstances.

As to future disruptions, the Fourth Circuit Court of Appeals has said that off-campus speech must create "a reasonably foreseeable substantial disruption" at the school. In Kowalski v. Berkeley Cnty. Sch. (4th Cir. 2011), the court of appeals found it foreseeable that speech via a MySpace group that targeted a fellow high school student for ridicule "would reach the school via computers, smartphones, and other electronic devices" because "most" of the MySpace group members were also students. The problem is that Kowalski is distinguishable in two material respects: the school imposing regulation was a high school, not a college, and the speech in issue there was about a fellow student, not a non-student. These facts about Lemoine's speech diminish the reasonableness of any concern about a disruption (much less a substantial one) occasioned by Lemoine's speech.

Therefore, Defendants' interest in regulating Lemoine's speech is, on the facts here, limited. For that reason, Lemoine is likely to succeed on the merits of a First Amendment claim of retaliation.

Ben LeClercq and David Dale Ashley (LeClercq Law Firm) represent Lemoine.

The post Student Suspended for Saying Man Who Insulted Her "Needa Get Blasted" + Having Posted (a Year Before) a Shooting Range Video appeared first on Reason.com.