Eugene Volokh's Blog, page 272

[Eugene Volokh] Fire Department Chaplain Fired for Blog Post About Transgender Controversies Can Go Forward With Lawsuit

[The chaplain's post "discuss[ed] 'how God designed each person as male or female, and that sex is immutable'" and "stated it is unfair to allow males to compete in women's sports."]

From today's opinion by Judge David Alan Ezra (W.D. Tex.) in Fox v. City of Austin:

In 2013, Dr. Andrew Fox ("Plaintiff") began volunteering as the Lead Chaplain at the Austin Fire Department ("AFD"). The chaplain program is part of AFD's Wellness Center, which houses numerous support services for firefighters, as well as other programming related to the physical and mental health of first responders. Plaintiff spent upwards of ten hours per week—all unpaid—ministering to AFD members and running the chaplaincy program.

Off AFD premises, Plaintiff maintained a blog where he discussed various aspects of the Christian faith. In 2021, Plaintiff began writing blog posts discussing "how God designed each person as male or female, and that sex is immutable." Specifically, he stated it is unfair to allow males to compete in women's sports. According to Defendants, the blog posts were calculated to provoke and "trigger" readers.

After hearing about the blog and finding it offensive, Lieutenant Xolochitl Chafino, AFD's LGBTQ Liaison, informed Chiefs Baker and Vires. At the time, Baker and Vires were unaware of the blog's existence. After some AFD members found the blog post upsetting and insulting, Baker and Vires met with Plaintiff to discuss their concerns. According to Plaintiff, the meeting went well and included "genuine[ness]" and "respectful dialogue." However, this meeting did not resolve the conflict.

Thereafter, Chafino printed out copies of the blog to solicit comments from AFD members, civilian employees, and outside individuals. Chafino also met with Plaintiff on multiple occasions. At one meeting, Chafino felt that Plaintiff stereotyped LGBTQ people and told Vires that she never wanted to meet with Plaintiff again. Moreover, she told Baker that AFD personnel would never seek services from Fox or the chaplain program again.

Baker and Vires directed Plaintiff write an apology for his blog post. Baker believed this would restore faith and confidence in the AFD chaplain program. Baker intended the letter to communicate that AFD personnel should feel welcome using the chaplain program, regardless of their identity or beliefs. However, Baker and Vires were not satisfied with the letter. Rather, Baker found it defensive and accusatory. Plaintiff then wrote a second apology. Baker found the second letter equally unsatisfactory and Plaintiff was terminated from serving as a volunteer chaplain….

The court applied the Pickering v. Bd. of Ed. (1968) test applicable to the government's action as employer; under that test, an employer can discipline or terminate employees for their speech, even on matters of public concern, but only if the harm caused by the speech to the employer's operation outweighs the value of the speech. (Among other things, this essentially allows a sort of "heckler's veto" under which, if enough people complain about the speech, it can indeed be restricted.) And the court concluded that the evidence wasn't clear on the degree of harm to the employer:

When balancing the interests, the Court will focus on "how the speech at issue affects the government's interest in providing services efficiently: it is the speech's detrimental effect on the efficient delivery of public services that gives the government a legitimate interest in suppressing it."

The Government argues it had a legitimate interest in terminating Plaintiff. The chaplain's role is to listen and comfort the firefighters, not provoke and divide. Chief Baker was also concerned that some AFD employees would choose to no longer seek help from AFD's mental health services. ("[Mental health is] a serious issue throughout the fire service…so if a member [doesn't] have faith that…they can go to… the chaplain service in a non- biased manner, then that's a problem for me as the fire chief…") ("I wanted to make sure I was not going to have any disruption because when [Lt. Chafino] reported to me that her and others [were] not going to use the chaplain service or Chaplain Fox, that was enough disruption for me to say 'hey I've got to do something immediately.'") Moreover, chaplains were sometimes called to emergency scenes to provide comfort to firefighters and community members. Chief Baker feared that these emergency operations could be disrupted if Plaintiff appeared at the scene. Moreover, Baker feared Plaintiff's speech would create a negative perception that the AFD would not serve all community members equally.

The Court finds that there is a genuine dispute of material fact regarding the impact that the blog had on the AFD. The parties vehemently disagree over whether those offended by the blog made up a small cohort of employees who never attended the Champlain services or whether the blog had a broader impact. For instance, Plaintiff argues that for the most part, AFD employees were unaware that Plaintiff even wrote a blog. However, at the hearing on August 15, 2024, Defendant described a chain of AFD employees who were aware of the blog and brought it to Chief Baker's attention.

Moreover, Plaintiff argues that there is no evidence that actual usage of the chaplaincy decreased. However, Defendants note that AFD employees stated that they refuse to attend the services because of the blog. Ultimately, there is a genuine dispute of whether the government's legitimate rationale for termination in the abstract is supported by the facts of this specific case.

This case is unlike Cochran v. City of Atlanta (N.D. Ga. 2017). In that case, a fire chief was terminated because of his religious speech. The court found that Plaintiff's status as the Fire Chief—and thus the head of a safety agency—also favored the City. The court found it was not unreasonable for the City to fear public erosion of trust in the Fire Department. Indeed, the court noted the expressive activities of a highly placed supervisory employee will be more disruptive to the operation of the workplace than similar activity by a low-level employee with little authority or discretion. Like in Cochran, in Nixon v. City of Houston (5th Cir. 2007), a police officer authored a monthly column in a local magazine. The officer identified himself as a police officer and wrote offensive and disrespectful comments about certain groups of citizens in the column, including derogatory remarks about minorities, women, and homeless individuals. The Court applied Pickering and found that the officer's articles were not protected by the First Amendment. The Court found that the articles written by the officer could negatively interfere with the police department's relationship with the community and would thus interfere with the efficient operations of the department.

However, the facts in Cochran and Nixon do not apply to this case. For one, the present case involves a voluntary chaplain. In this case, there is a genuine dispute as to whether his position has ever or could impact the fire department's relationship with the community. There is a dispute over whether the anyone would perceive his online blog to impact the creditability or trust in the fire department. The parties genuinely disagree as to whether the public tied Plaintiff to the AFD. Unlike in Nixon, Plaintiff never identified himself as a member of the AFD when writing the blog. However, at the hearing on August 15, Defendant said that he was identified as part of the AFD by virtue of a hyperlink to his Facebook page.

The Fifth Circuit has said a government's interest is stronger when a public employee has a policymaking or confidential position. But given the nature of Plaintiff's position and the fact that he provides emergency services [to] frontline firefighters, the Court cannot say that this factor is determinative.

"[R]eal, not imagined, disruption is required." And "[m]ere allegations of disruption are insufficient." In this case, there is a genuine dispute of material fact regarding the extent of the disruption that occurred within AFD. Therefore, the Court denies the cross motions for summary judgment on the free speech retaliation claim….

Because of this case, the case can presumably proceed to trial.

The court also concludes that Pickering should apply to the plaintiff's Free Exercise Clause claim, and that it yields the same result. The court then turns to the Texas Religious Freedom Restoration Act, which protects religiously motivated conduct, with no special provision for government employees, by requiring that any restrictions on such conduct pass the demanding "strict scrutiny" standard:

Defendants argue they have a compelling interest in ensuring that firefighters feel comfortable accessing mental health services due to the stressful nature of their jobs. Defendants also believe there is a compelling interest in preventing conflict and division among AFD personnel. As stated earlier, the Court agrees that these interests may be compelling in the abstract. However, there is a genuine dispute as to whether these interests apply in practice to the present case.

There is a genuine dispute of material fact regarding if or how Plaintiff's blogs impacted mental health services he provides to both AFD and the community at large. There is a genuine dispute of fact regarding whether the blog impacted the number of people who would feel comfortable attending chaplain services prospectively. Beyond the few initial employees who discovered the blog, AFD employees were unaware Plaintiff wrote a blog. However, there is evidence to suggest that more people became aware of the blog. The parties also present contested evidence regarding whether Plaintiff could be identified as an AFD volunteer chaplain through his blog. Therefore, there is a genuine dispute of fact regarding whether his blog discussing his religious beliefs could negatively impact the relationship between AFD and the Austin community. Moreover, there are questions of fact underlying whether Defendants' request for an apology was the least restrictive means in burdening Plaintiff's religious speech.

Finally, the court concludes that requiring the apology didn't violate plaintiff's freedom from speech compulsions, partly because "Plaintiff was asked to write the letters pursuant to his official duties as a volunteer chaplain" and the First Amendment generally allows the government to control an employee's speech when the speech is part of his official duties:

The purpose of the letter was to restore faith and confidence in AFD's official chaplain program. Chief Baker planned to send the letter out to the AFD community through official channels with the hope that all would feel welcome to continue to use the chaplaincy program.

The Court finds that it was permissible for the fire department to request an apology note. It does not violate the First Amendment to ask an employee or volunteer to make an official statement to maintain a harmonious and orderly workplace. While there is not much precedent on this issue, other courts have signaled that compelled apologies in similar contexts do not violate the First Amendment.

Requesting this letter does not violate the First Amendment's prohibition on compelled speech because this letter was going to be used as an official AFD communication and Fox was directed to write it as part of his duties as volunteer lead chaplain. When public employees speak pursuant to their official duties, employees are not speaking as citizens for First Amendment purposes.

The post Fire Department Chaplain Fired for Blog Post About Transgender Controversies Can Go Forward With Lawsuit appeared first on Reason.com.

[Ilya Somin] Upcoming Speaking Engagements

[Ilya Somin's speaking engagements for the Fall 2024 semester. Most are free and open to the public.]

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This post is a list of my upcoming speaking engagements for the fall 2024 semester. Unless otherwise noted, all events are free and open to the public—and in person.  The listed times are those in the time zone where the event is being held.

I will likely add additional events and information to this post, as they are scheduled. Indeed, two or three such events are already in the works.

In the meantime if your university, think tank, research institute or other similar organization would like to invite me to speak (either virtually or in person) on any topic within my expertise, I am open for business! At this point, there are not many slots available this fall; but more are feasible in the spring 2025 semester. You can get an overview of the issues I write and speak about at my website.

Sept. 17, 2:25-3:40 PM, Cato Institute, 1000 Massachusetts Ave., Washington, DC: "A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson," Panel on "Novel Constitutional Questions." Cato Constitution Day symposium. Registration and other information available here. This presentation is based on my article of the same title.

Sept. 21, Federalist Society Texas Chapters Conference, Omni Fort Worth Hotel,
1300 Houston St, Fort Worth, TX, 3-4:15 PM: "Immigration is Not Invasion," Panel on Border Litigation. Registration and other information available here.

Oct. 2, Georgetown University Law Center, Washington, DC, 6-7:30 PM: "Immigration is Not Invasion" (debate with former Arizona Attorney General Mark Brnovich). Sponsored by the Georgetown Federalist Society.

Oct. 8, University of North Dakota Law School, 215 Centennial Dr Stop 9003, Grand Forks, ND, time TBD: "Democracy and Political Ignorance: Why Smaller Government is Smarter." Sponsored by the University of North Dakota Federalist Society.

Oct. 12, Mercatus Center, Markets and Society Conference, Falls Church Marriott Fairview Park, 3111 Fairview Park Drive, Falls Church, VA, 1:30-3 PM: Commentary on David Schmidtz's book Living Together. Book panel on Living Together: Inventing Moral Science. Event schedule and registration information here.

Nov. 11, University of Texas School of Law, Austin, TX, Time TBD: "The Constitutional Case Against Exclusionary Zoning." Presentation based on article of the same title. Sponsored by the Texas Law Review.

Nov. 21, Institute for American Constitutional Thought and Leadership, University of Toledo, Toledo, OH, time TBD: "Free to Move: Foot Voting Migration and Political Freedom" (tentative title) (debate on immigration with Prof. Christopher Wellman).

Dec. 24, Edmond J. Safra Center for Ethics, University of Tel Aviv, Tel Aviv, Israel, Time TBD: "Democracy and Political Ignorance."

The post Upcoming Speaking Engagements appeared first on Reason.com.

[Eugene Volokh] California Social Media Platform Reporting Mandate Likely Violates the First Amendment

[The mandate required platforms to, among other things, report to the state "how the terms of service define and address (a) hate speech or racism; (b) extremism or radicalization; (c) disinformation or misinformation; (d) harassment; and (e) foreign political interference, as well as statistics on content that was flagged by the social media company as belonging to any of the categories."]

From today's Ninth Circuit opinion in X Corp. v. Bonta, decided by Judge Milan Smith, joined by Judges Mark Bennett and Anthony Johnstone:

AB 587 … [among other things requires] that social media companies submit to the State a semiannual report detailing their TOS and content-moderation practices including, if at all, how the terms of service define and address (a) hate speech or racism; (b) extremism or radicalization; (c) disinformation or misinformation; (d) harassment; and (e) foreign political interference, as well as statistics on content that was flagged by the social media company as belonging to any of the categories (TOS Report) …. [W]e refer to these … as the Content Category Report provisions.

X Corp. is likely to succeed in showing that the Content Category Report provisions facially violate the First Amendment….

[T]he Content Category Reports are not commercial speech. They require a company to recast its content-moderation practices in language prescribed by the State, implicitly opining on whether and how certain controversial categories of content should be moderated. As a result, few indicia of commercial speech are present in the Content Category Reports.

First, the Content Category Reports do not satisfy the "usual[ ] defin[ition]" of commercial speech—i.e., "speech that does no more than propose a commercial transaction." The State appears to concede as much in its answering brief.

To the extent our circuit has recognized exceptions to that general rule, those exceptions are limited and are inapplicable to the Content Category Reports here. For example, as identified by the First Amendment and Internet Law Scholars amici, we have characterized the following speech as commercial even if not a clear fit with the Supreme Court's above articulation: (i) targeted, individualized solicitations; contract negotiations, and retail product warnings. Though it does not directly or exclusively propose a commercial transaction, all of this speech communicates the terms of an actual or potential transaction. But the Content Category Reports go further: they express a view about those terms by conveying whether a company believes certain categories should be defined and proscribed.

Second, the Content Category Reports fail to satisfy at least two of the three Bolger v. Youngs Drug Products (1983) factors. The compelled disclosures are not advertisements. Nor do the Content Category Reports merely disclose existing commercial speech, so a social media company has no economic motivation in their content. The district court found the same. The State does not dispute the district court's finding on appeal. Although the Bolger factors are not dispositive, they are "important guideposts" to the analysis and, here, further support the conclusion that the compelled speech is non-commercial.

Third, while a social media platform's existing TOS and content moderation policies may be commercial speech, its opinions about and reasons for those policies are different in character and kind. The Content Category Report provisions would require a social media company to convey the company's policy views on intensely debated and politically fraught topics, including hate speech, racism, misinformation, and radicalization, and also convey how the company has applied its policies.

The State suggests that this requirement is subject to lower scrutiny because "it is only a transparency measure" about the product. But even if the Content Category Report provisions concern only transparency, the relevant question here is: transparency into what? Even a pure "transparency" measure, if it compels non-commercial speech, is subject to strict scrutiny. That is true of the Content Category Report provisions. Insight into whether a social media company considers, for example, (1) a post citing rhetoric from on-campus protests to constitute hate speech; (2) reports about a seized laptop to constitute foreign political interference; or (3) posts about election fraud to constitute misinformation is sensitive, constitutionally protected speech that the State could not otherwise compel a social media company to disclose without satisfying strict scrutiny.

The mere fact that those beliefs are memorialized in the company's content moderation policy does not, by itself, convert expression about those beliefs into commercial speech. As X Corp. argues in its reply brief, such a rule would be untenable. It would mean that basically any compelled disclosure by any business about its activities would be commercial and subject to a lower tier of scrutiny, no matter how political in nature. Protection under the First Amendment cannot be vitiated so easily.

{For substantially the same reason, nor can the test for whether speech is commercial or non-commercial turn on whether the speech is "directed to potential consumers and may presumably play a role in the decision of whether to use the platform," as the district court seemed to suggest. Consider, for example, a state law that compels a social media company to disclose the political affiliations of its managers. That information could conceivably "play a role in the [potential consumer's] decision of whether to use the platform"—i.e., if the consumer is concerned about the platform's content being politically skewed. It could not be that such a law compels only commercial speech subject to a lower tier of scrutiny.} …

[N]either the Fifth nor Eleventh Circuit [in the NetChoice cases] dealt with speech similar to the Content Category Reports. Unlike Texas HB 20 or Florida SB 7072, the Content Category Report provisions compel social media companies to report whether and how they believe particular, controversial categories of content should be defined and regulated on their platforms. Neither the Texas nor Florida provisions at issue in the NetChoice cases require a company to disclose the existence or substance of its policies addressing such categories. Though perhaps relevant to an analysis of [other sections], these cases are unhelpful on the issue of the Content Category Reports and offer no compelling reason to apply Zauderer.

For these reasons, we conclude that the Content Category Report provisions compel non-commercial speech. Because the provisions are content-based, which the State does not contest, they are subject to strict scrutiny….

At minimum, the Content Category Report provisions likely fail under strict scrutiny because they are not narrowly tailored. They are more extensive than necessary to serve the State's purported goal of "requiring social media companies to be transparent about their content-moderation policies and practices so that consumers can make informed decisions about where they consume and disseminate news and information." Consumers would still be meaningfully informed if, for example, a company disclosed whether it was moderating certain categories of speech without having to define those categories in a public report. Or, perhaps, a company could be compelled to disclose a sample of posts that have been removed without requiring the company to explain why or on what grounds.

{We do not opine on whether such laws would survive constitutional scrutiny. They are offered only to illustrate that the Content Category Report provisions are not narrowly tailored to the State's interest.}

In any event, the State does not attempt to argue that the law survives strict scrutiny. For the reasons above, X Corp. has shown a likelihood of success on the merits of its First Amendment claim as to [these provisions] ….

Joel L. Kurtzberg, Floyd Abrams, Jason D. Rozbruch, and Lisa J. Cole (Cahill Gordon & Reindel LLP) and William R. Warne and Meghan M. Baker (Downey Brand LLP) represent X. Note that Gene C. Schaerr (my colleague at Schaerr Jaffe LLP) filed an amicus brief in this case, on X's side, for Protect the First Foundation and for me, as amici.

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[Eugene Volokh] N.Y. Community Education Council Speech Restrictions Likely Violate First Amendment

["The Community Guidelines' prohibitions of, inter alia, 'homophobia, transphobia, misogyny, ableism, racism, or any other forms of oppressive beliefs or behaviors,' 'name-calling,' and 'disrespect' are prohibitions against ideas that offend, and therefore discriminate on the basis of viewpoint in violation of the First Amendment."]

An excerpt from yesterday's long opinion by Judge Diane Gujarati in Alexander v. Sutton (E.D.N.Y.); read the whole thing for more:

New York Education Law Section 2590-c sets forth that each community district shall be governed by a community district education council ("CEC")…. Plaintiffs declare that they understand that for CEC 14's December 18, 2023 public meeting, CEC 14 adopted "Community Guidelines." … [Among other things, the Guidelines] provide a list of "Absolute no's," as follows:

This is not a space where we will tolerate antagonistic behavior or any of the following: homophobia, transphobia, misogyny, ableism, racism, or any other forms of oppressive beliefs or behaviors. Anyone who violates this guideline will be removed. There will be no name-calling of any community members in this space. If you violate this, you will be removed. If you continually disrespect the community, you will be given 2 warnings before being removed.

Plaintiffs further declare that they understand that CEC 14 rewrote its rules as "Community Commitments" in connection with the January 2024 public meeting. The Community Commitments, also referred to as the "Community Agreements," provide [in part]:

… We reserve the right to remove participants causing discord, spreading misinformation and/or affiliated with hate groups. The DOE may not utilize this practice or standard, but we do.

The court held that many of these restrictions are unconstitutionally overbroad, vague, or viewpoint-based, and held (among other things) that the removal of one plaintiff from CEC likewise violated the First Amendment:

Although the Second Circuit does not appear to have addressed the constitutionality of Regulation D-210, courts outside of the Second Circuit—referencing Tam and/or Iancu—have held speech restrictions similar to those set forth in Regulation D-210 to violate the First Amendment. See, e.g., Ison v. Madison Loc. Sch. Dist. Bd. of Educ. (6th Cir. 2021) (concluding that school board's restrictions on "abusive," "personally directed," and "antagonistic" speech, facially and as applied, constituted impermissible viewpoint discrimination because "they prohibit speech purely because it disparages or offends"); Mama Bears of Forsyth Cnty. v. McCall (N.D. Ga. 2022) (concluding that school board's "respectfulness" requirement, which court interpreted to be prohibition against "offensive, rude, insulting, or abusive" speech, was viewpoint-based and thus facially unconstitutional and that "because the Plaintiffs' facial challenge is successful, the Court need not address their as-applied challenge"); see also, e.g., Marshall v. Amuso (E.D. Pa. 2021) (concluding that defendant had not met burden to show that school district's prohibitions against speech deemed, inter alia, "personally-directed" and "abusive" did not constitute viewpoint discrimination as applied to plaintiffs, and concluding that defendant had not met burden to show that prohibitions against speech deemed, inter alia, "personally directed," "abusive," "offensive," "otherwise inappropriate," "personal attack," "inappropriate," and "intolerant" were not facially vague or overbroad); but see Moms for Liberty—Brevard Cnty. v. Brevard Pub. Schs. (M.D. Fla.), aff'd (11th Cir. Nov. 21, 2022)….

Plaintiffs have shown a clear and substantial likelihood of establishing that the challenged portions of Regulation D-210—namely, the prohibitions against "frequent verbal abuse and unnecessary aggressive speech that serves to intimidate and causes others to have concern for their personal safety"; "derogatory or offensive comments about any DOE student"; and "conduct that would publicly reveal, share or expose private or personally identifiable information about a DOE student or a member of such student's family without their consent"—are unconstitutional, facially and/or as applied.

As an initial matter, Regulation D-210's scope appears to extend beyond regulating conduct at CEC meetings or otherwise on government-owned property. See Regulation D-210 at 2 (defining "conduct" as "verbal and physical acts and behavior, including a Council Member's use of oral and written language, when it occurs at," inter alia, "other activities when such conduct creates or would foreseeably create a risk of disruption within the district or school community the Council Member serves and/or interferes with the functioning of the [CEC] or the performance of the Council Member's [CEC] duties"). Accordingly, the Court does not analyze Regulation D-210 under a forum-based approach. {The Court notes that, even under a forum-based approach, the Court's conclusions with respect to the challenged portions of Regulation D-210 would remain the same.}

Plaintiffs have shown a clear and substantial likelihood of establishing that the challenged portion of Section II(C) of Regulation D-210 is facially unconstitutionally vague. Regulation D- 210 itself does not provide definitions for terms such as "frequent verbal abuse" or "unnecessary aggressive speech." Indeed, when asked about the definition of "verbal abuse" at the June 18, 2024 oral argument, counsel for the City Defendants acknowledged that there was no definition in the regulation and stated, inter alia, that "there is going to be a subjective component" to the definition of such term, and that "there is a specific investigative process" to determine whether conduct would fall within the scope of "verbal abuse."

Notably, a determination of the scope of "frequent verbal abuse"—during the investigative process—does not provide a reasonable opportunity to a person of ordinary intelligence—before such person is subject to investigation under Regulation D-210—to understand what conduct Regulation D-210 prohibits. Here, given the lack of clarity with respect to conduct covered by Section II(C), Plaintiffs have shown a clear and substantial likelihood of establishing that the challenged portion of Section II(C) fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits and that it encourages arbitrary and discriminatory enforcement. Further, … "frequent verbal abuse and unnecessary aggressive speech" is a "boundless category" that does "not merely forbid well-established categories of unprotected speech, such as fighting words, obscenity, or true threats."

Plaintiffs have also shown a clear and substantial likelihood of establishing that the challenged portion of Section II(C) is unconstitutionally vague as applied to Plaintiff Maron, who was removed as a member of CEC 2 based on, inter alia, a finding that her statement to the New York Post constituted unnecessary aggressive speech that served to intimidate and cause others to have concern for their personal safety. {[O]n February 16, 2024, the student newspaper at Stuyvesant High School published an anonymous full page editorial titled, "Black and White: The Withheld Story of Palestine and Israel" and that Plaintiff Maron told the New York Post, in reference to that editorial, that "[t]he byline should read coward instead of anonymous;" that "[i]f you are going to repeat revolting Hamas propaganda and transcribe your ignorance and Jew hatred, put your name to it;" and that "Principal Yu should address the school and explain to Jewish students why this factually inaccurate bile was published on the school paper anonymously," and declaring that Plaintiff Maron "do[es] not know the author's identity" or "whether the author was a student, a staff member, or some other person").}

Notably, Plaintiff Maron's comments did not identify the editorial's author and Plaintiff Maron declares that she did not know the author's identity or whether the author was a student, a staff member, or some other person. Plaintiffs have shown a clear and substantial likelihood of establishing that the challenged portion of Section II(C) failed to provide Plaintiff Maron a reasonable opportunity to understand what conduct it prohibited and that the challenged portion of Section II(C) was discriminatorily enforced.

Plaintiffs have also shown a clear and substantial likelihood of establishing that the challenged portion of Section II(D) of Regulation D-210 facially violates the First Amendment because it discriminates based on viewpoint. As an initial matter, Section II(D), which prohibits "derogatory" and "offensive" comments about any DOE student, regulates speech on the basis of content. Further, a prohibition on "derogatory" or "offensive" speech disfavors ideas that offend and therefore discriminates based on viewpoint, in violation of the First Amendment….

Further, Plaintiffs have shown a clear and substantial likelihood of establishing that Section II(E) of Regulation D-210 facially violates the First Amendment. Plaintiffs have shown a clear and substantial likelihood of establishing that Section II(E) of Regulation D-210 is not narrowly tailored to achieve a compelling government interest. Section II(E), which prohibits conduct that would publicly reveal, share, or expose private or personally identifiable information about a DOE student or a member of such student's family without their consent, regulates speech on the basis of content and therefore is subject to strict scrutiny. Plaintiffs have shown a clear and substantial likelihood of establishing that Section II(E) is not narrowly tailored to achieving even the interest of preserving student privacy identified by Defendants.

Defendants do not explain, and it is not readily apparent, how revealing certain categories of information, such as the "employment status" of a DOE student's family member—a category of information included in Regulation D-210's definition of "personally identifiable information"—would necessarily threaten the privacy of a DOE student or subject that student to harassment or "doxxing" by CEC members. Further, the definition of "personally identifiable information" set forth in Regulation D-210 states that the term is "not limited to" the types of information set forth therein. Section II(E) appears to span beyond "the least restrictive means" of achieving the interest of preserving student privacy. Plaintiffs have shown a clear and substantial likelihood of establishing that a substantial number of Section II(E)'s applications are unconstitutional judged in relation to its plainly legitimate sweep.

The City Defendants appear to invite the Court to extend the law regarding speech of public employees. Here, Plaintiffs do not receive a salary or stipend in connection with their roles as CEC members; Plaintiffs were elected to their respective CECs; and New York Education Law does not appear to classify CEC members as employees.,,,

Here, Plaintiffs have shown a clear and substantial likelihood of establishing that the Community Guidelines fail under either level of scrutiny because the prohibitions are not viewpoint neutral. The Community Guidelines' prohibitions of, inter alia, "homophobia, transphobia, misogyny, ableism, racism, or any other forms of oppressive beliefs or behaviors," "name-calling," and "disrespect" are prohibitions against ideas that offend, and therefore discriminate on the basis of viewpoint in violation of the First Amendment.

For the same reason, Plaintiffs have shown a clear and substantial likelihood of establishing that the Community Commitments violate the First Amendment. The Community Commitments set forth various statements to which participants at CEC 14's meetings are required to agree, including "[w]e reserve the right to remove participants . . . affiliated with hate groups," which requirement discriminates on the basis of viewpoint, in violation of the First Amendment.

Plaintiffs have also shown a clear and substantial likelihood of establishing that a portion of Article IV § 2 of CEC 14's Bylaws—specifically, the restriction on "[d]iscussion and charges relating to the competence or personal conduct of individuals"—violates the First Amendment. As an initial matter, this restriction appears to cover speech that falls within the designated category for which the limited public forum—CEC meetings—has been opened. Strict scrutiny therefore is accorded to this restriction, and Plaintiffs have shown a clear and substantial likelihood of establishing that the restriction does not pass strict scrutiny. Defendants have not offered a compelling government interest underlying this restriction. And, even assuming there were a compelling government interest, the restriction, which appears to prohibit speech that is core to the purpose of CEC meetings, would not be narrowly tailored….

Plaintiffs have shown a clear and substantial likelihood of establishing that CEC 14's practices regarding its official X account discriminate on the basis of viewpoint and/or political association as applied to Plaintiffs, in violation of the First Amendment. Plaintiffs have shown a clear and substantial likelihood of establishing that Defendants have prevented Plaintiffs from accessing CEC 14's official X account on account of their views. Indeed, Plaintiffs' various declarations provide evidence that Plaintiffs have been blocked or otherwise prevented from accessing CEC 14's official X account on the basis of their viewpoints and/or political associations.

Alan Gura, Dennis J. Saffran & Nathan John Ristuccia (Institute for Free Speech) represent plaintiffs.

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[Ilya Somin] My New The Hill Article on How Trump and Harris Cater to Political Ignorance

[Both propose awful economic policies that appeal to public ignorance.]

Kamala Harris and Donald Trump. (NA)

 

Today, The Hill published my article entitled "Both Donald Trump and Kamala Harris are Preying on Political Ignorance." Here's an excerpt:

There are many differences between Donald Trump and Kamala Harris. But one crucial similarity is that both have proposed terrible economic policies that have political appeal because of widespread voter ignorance.

Trump has proposed both large-scale tariff increases and mass deportation of undocumented immigrants. Harris' plans include price controls and rent controls. All would cause great harm if enacted, but candidates advocate them because much of the public doesn't understand the damage such policies bring with them.

Such misunderstandings are part of a broader problem of widespread voter ignorance about government and public policy….

Trump has proposed a 10 percent tariff on virtually all imported goods. This would predictably increase prices on a wide range of products, costing the average American family roughly $1,700 per year. The economic damage will increase if foreign governments retaliate against American exports, as they likely would. In addition, because many American industries rely on imported inputs, tariffs often destroy jobs and cause shortages…..

The harmful effects of tariffs are the subject of a broad cross-ideological consensus among economists. Yet tariffs often get support from voters if presented as a way to save American jobs….

Trump's mass deportation plans would cause similar harm. Undocumented immigrants are important contributors to many sectors of the economy. Mass deportation would predictably create disruption, increase prices and cause shortages. Deportations also destroy more American jobs than they create… Such effects would be exacerbated by Trump's plans to massively cut legal immigration, as well…

As with free trade, there is broad agreement among economists on the beneficial economic effects of immigration. But many voters don't understand that…

Meanwhile, Kamala Harris has tried to assuage voter concerns about high prices by promising to impose price controls to prevent "price gouging" in grocery sales. She has also endorsed President Biden's plan to limit many housing rent increases to no more than 5 percent per year…

Price controls have a long history of causing shortages, including in the U.S. during the 1970s. When government artificially restricts prices, producers have less incentive to increase supplies in response to increasing demand. The same is true of rent control, which numerous studies consistently show exacerbates housing shortages.

Economists across the political spectrum agree here, too. Jason Furman, chair of Barack Obama's Council of Economic Advisers, notes that "[r]ent control has been about as disgraced as any economic policy." Nonetheless, polls indicate that both rent control and price controls more generally are often popular with voters. That is partly because a majority of the public wrongly believes that high prices are caused by "corporate greed…."

Extensive support for these terrible policies is part of a broader pattern of widespread political ignorance. Decades' worth of data show that most voters know very little about government and public policy. For example, surveys show only about one-third to a half of Americans can even name the three branches of government.

Political ignorance is perfectly rational for most voters. If your only reason for following politics is to be a better voter, that turns out to not be much of an incentive at all, because there is so little chance that your vote will actually make a difference to the outcome of an election (about 1 in 60 million in a presidential race)….

The danger of ignorance isn't just that it leads voters to choose the "wrong" candidate. It's that it incentivizes both parties to promote harmful policies that cater to ignorance. Not all bad policies are caused by ignorance, but voter ignorance does facilitate some terrible policies that a better-informed electorate would reject.

The last part of the article briefly describes some possible ways to mitigate the negative effects of public ignorance, a subject I address in much more detail in a recent academic paper on "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance," and in my book Democracy and Political Ignorance: Why Smaller Government is Smarter.

I previously wrote about how public ignorance is impacting the 2024 election here.

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[Eugene Volokh] Lawsuit Alleging Retaliation for Sexual Misconduct Whistleblowing by High School Basketball Player Can Proceed

From Doe v. Bd. of Ed. of City of Chicago, decided today by Judge Matthew Kennelly (N.D. Ill.), plaintiff's allegations (as usual, they are just allegations):

Doe was a student at Lincoln Park High School (LPHS), where he played on the boys' basketball team. During the 2019–2020 school year, Doe was a starter on the varsity team. In December 2019, the varsity basketball team participated in a basketball tournament in Detroit called the Motor City Roundball Classic. At the time, defendant Pat Gordon was the team's head coach. Though Gordon submitted paperwork to Chicago Public Schools (CPS) requesting permission for the Detroit trip, the trip was not approved because the paperwork was submitted late. Regardless, LPHS officials, including then-interim principal John Thuet, authorized the trip. The varsity basketball team played in the tournament, which was held on December 27 and 28.

On the evening of December 28, 2019, three members of the basketball team had sexual contact with the team's female manager, referred to in the complaint as Jane Doe. All these individuals were minors at the time.

Though Jane Doe had consented to have sex with one of the boys (hereinafter John Doe II), she was unaware that two other boys (hereinafter John Doe III and John Doe IV) had switched places with Doe II. Jane Doe was also unaware that a video recording had been made of the sexual encounter, which was subsequently shared with other LPHS students.

The following morning, December 29, two of the boys involved told other members of the basketball team about the sexual misconduct, including that Jane Doe did not know Doe III and Doe IV had engaged in sexual contact with her. Later that day, plaintiff Doe and another member of the team, John Doe V, separately informed their fathers of the sexual misconduct.

On December 30, 2019, Doe V's father reported the sexual misconduct to CPS's Office of Student Protection (OSP). The next day, December 31, plaintiff Doe's father e- mailed Thuet requesting a meeting to discuss the sexual misconduct allegation. Doe's father, Doe V's father, and Thuet met on January 2, 2020, and discussed the events that transpired on the Detroit trip. On January 3, Thuet e-mailed the boys' fathers to inform them he had submitted a report regarding their conversation to OSP.

On January 3, 2020, Debra Spraggins, OSP's director of investigations, received notice of the sexual misconduct and assigned OSP investigator Xochitl Rojas to the matter. OSP began investigating the reported sexual misconduct the following week. As part of this investigation, John Doe was interviewed without OSP notifying his parents or providing them with an opportunity to attend the interview in person. Instead, Doe's father attended the interview by phone, as he was at work and could not leave.

On January 9, Thuet sent a letter to parents of the basketball team regarding the Detroit trip and its aftermath. In this letter, Thuet explained that the trip was not a school sponsored event, that the staff member who led the trip had been removed from their position, and that the district was investigating the matter. Though the letter does not identify the staff member by name, the removed individual was head basketball coach Gordon. Gordon was replaced by interim coach Donovan Robinson.

Gordon, despite being removed from LPHS, continued to communicate with various members of the basketball team, parents of basketball team members, and LPHS administrators via text messages.Gordon revealed to one or more members of the basketball team that Doe had reported the sexual misconduct and instructed these members to deny the allegations and not cooperate with OSP's investigation.Although the precise date of this conversation is unknown, Doe contends that Gordon revealed this information before January 8, 2020.

On January 8, prior to a basketball game, Robinson informed John Doe that he would not be playing that evening. Robinson told Doe that "because of Plaintiff's report and the ultimate termination of Gordon, Robinson didn't have confidence in him." On January 10, Robinson revealed to the entire basketball team that Doe and Doe V had reported the sexual misconduct. As a result, Doe became isolated from his teammates and began receiving harassing and threatening text messages.

According to the complaint, Rojas and Spraggins were informed that Doe was receiving threatening texts by January 16 at the latest. Rojas and Spraggins, however, took no action on investigating the matter until January 30. Thuet learned that Doe was receiving threatening texts during a January 17 phone call with Doe's father. During this same call, Doe's father informed Thuet that Doe had been removed as a starter and was facing retaliation from Gordon and Robinson for reporting the sexual misconduct.

Doe's father told Thuet that, due to the impact of this retaliation, Doe was considering transferring schools. According to the complaint, Thuet took no action upon learning this information.

Due to inaction on the part of Thuet and OSP, Doe's father e-mailed Aneita Williams, the CPS Title IX Officer of Sports, on January 21, 2020 to inform her of the retaliation against Doe. Williams responded on January 22, advising Doe's father that OSP would be investigating the matter. Spraggins was copied on this e-mail. One week later, due to a lack of response from OSP, Doe V's father e-mailed Janice Jackson, then-Chief Executive Officer of CPS. After this follow up e-mail to Jackson, Doe and Doe V's fathers met with OSP investigators on January 30. The next day, January 31, Robinson was suspended as interim coach, and Thuet was removed from his position as interim principal. That same day, the LPHS boys' basketball season was cancelled.

On February 3, CPS held a community meeting and shared basic details on the investigation regarding the harassment and sexual misconduct. CPS informed attendees that a total of four investigations were ongoing. Following this meeting, verbal harassment against Doe continued to escalate, and an online petition began to circulate seeking to resume the boys' basketball season.

On February 14, 2020, LaTanya McDade, CPS's Chief Education Officer, e- mailed the LPHS community stating that, though the investigations remained open, the allegations of adult misconduct have been fully substantiated. A pertinent section of this e-mail states:

Based on extensive interviews with students, staff, and parents, the district determined that school administrators fostered a dangerous culture for students by disregarding their training and requirements for protecting students and failed to effectively oversee the school's athletic program. Most troublingly, when speaking with investigators, the administrators attempted to minimize the severity of the allegations, and withheld key evidence for nearly a week. An administrator also misled parents of the whistleblowers and falsely claimed that OSP and district officials had reviewed their child's allegations and considered it not troubling. Their mishandling of the situation and lack of candor jeopardized student safety, especially the students who came forward to report the allegations, and further traumatized student survivors.

At some point after this e-mail was sent, Brian Thompson, lead Title IX specialist for OSP, told Doe's father that the claims of harassment against Doe had been fully substantiated.

On June 23, 2020, Laura LeMone, Chief of Network 14 for CPS, sent a follow-up e-mail to the LPHS community. This e-mail confirmed that OSP had substantiated "multiple allegations of serious misconduct" regarding coaches at LPHS. Based on the findings of their investigation, CPS "decided to file dismissal charges and move forward with a termination hearing for Pat Gordon." LeMone acknowledged that "misconduct was substantiated" against Robinson as well but determined that he could return to his position following additional training from OSP and Title IX.

Due to this harassment, Doe withdrew from LPHS and transferred to De La Salle Institute for his senior year. This transfer negatively impacted Doe's GPA due to a difference in how the two schools weigh grades. Doe was also deprived of the opportunity to receive support from his coaches in seeking collegiate basketball opportunities. This support includes lack of advocacy to college basketball coaches and recruiters and lack of compiling game tape to submit to college basketball programs. Doe has been told by college basketball coaches that they need such game tape "to make a full evaluation of [Doe]." Doe has not made his college's basketball team.

The court concludes that the allegations, if true, could make out a Title IX case on various theories, all related to retaliation:

To successfully establish a claim for Title IX retaliation, a plaintiff must show that (1) he engaged in activity protected by the statute, (2) the school took materially adverse action against him, and (3) there is a but-for connection between the two. A materially adverse action is one that would dissuade a reasonable person from engaging in the activity protected under Title IX. "Not everything that makes an [individual] unhappy is an actionable adverse action…. [I]t does not include those petty slights or minor annoyances that often take place …"

The Board contends that Doe has failed to plead that he suffered any materially adverse action. This argument fails for multiple reasons, primarily the fact that Doe contends he transferred schools because of the retaliation. Doe further alleges that he faced threats and harassment from students as well as school administrators over the course of several months, he was removed as a starter, and he did not receive support when applying to college basketball programs. Accordingly, Doe has alleged facts sufficient to survive a motion to dismiss.

As a separate matter, it is unclear given recent Supreme Court case law whether the plain language of Title IX requires Doe to show a materially adverse action, as opposed to any adverse action. In Muldrow v. City of St. Louis (2024), the Supreme Court held that, under the plain language of Title VII, a plaintiff bringing a discrimination claim is not required to show that "the harm incurred was significant. Or serious, or substantial, or any similar adjective suggesting that the disadvantaged employee must exceed a heightened bar." Though Muldrow was interpreting Title VII, and this case involves Title IX, the manner in which the Seventh Circuit has constructed Title IX to require showing a materially adverse action to bring a successful retaliation claim runs contrary to the logic invoked by Justice Kagan in her opinion for the Court in Muldrow. See id. ("Discriminate against means treat worse, here based on sex. But neither that phrase nor any other says anything about how much worse.")….

And the court concluded that plaintiff also stated a state law intentional infliction of emotional distress claim, because the defendant's alleged behavior was "truly extreme and outrageous":

Specifically regarding Thuet, the interim principal at the time, Doe contends that Thuet was informed of the sexual misconduct, as well as the harassment Doe was experiencing as the whistleblower, on January 3, 2020. Thuet, however, did not report this to OSP. Instead, Doe alleges, Thuet instructed Johnson "to bring the accused and the whistleblowers together in a meeting" despite such action being "in direct violation of district policy and best practices." Thuet is also alleged to have been aware as of January 13 that Gordon was continuing to contact members of the basketball team, their parents, and other school administrators despite having been removed from his position as head coach. Thuet also was allegedly made aware on January 17, 2020 that Doe was facing harassment and threats from his teammates. Doe alleges that Thuet took no action despite this.

Regarding Gordon and Robinson, Doe alleges they both knew of and encouraged the harassment from other players. Doe contends that Gordon leaked Doe's identity to Robinson, who in turn revealed it to the other members of the basketball team. Robinson removed Doe as a starter and allegedly told the entire basketball team that Doe was one of the whistleblowers. Gordon and Robinson are also alleged to have refused to help Doe compile game tape or reach out to college basketball coaches and recruiters, and they are claimed to have conveyed to Doe that they did so because of Doe's reporting of the sexual misconduct….

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[Josh Blackman] Court Watchers Can Safely Skip Justice Jackson's New Book

[She doesn't write about the Court, and the press is strictly prohibited from asking about anything of interest.]

Unless you've been living under a rock, you will have seen wall-to-wall press coverage about Justice Jackson's new book. She has already made headlines by saying something about an enforceable ethics code and something about the immunity case and something about the election. But if you read the transcript, she really didn't say anything at all about the Court. And you'll find much the same in the actual book.

Abbe Van Sickle of the New York Times sounds almost frustrated with how little Jackson reveals:

Justice Jackson was far less forthcoming about the current court, where she and the justices have come under historic scrutiny after the leaked draft of its decision to overturn the constitutional right to abortion. Revelations about the failure of some of the justices — most notably Justice Clarence Thomas — to disclose luxury gifts and travel from wealthy benefactors only intensified the attention.

For a justice who seemed to find her footing on the bench immediately, peppering lawyers with questions and writing sharp dissents, she was circumspect in addressing the existing pressures facing the court.

After the revelations about Justice Thomas and others, the court announced an ethics code last fall, the first in its history. But Justice Jackson would say only that it was a "very interesting moment to be on the court," acknowledging that discussions about whether to strengthen the ethics code were "ongoing."

Indeed, the press was put under strict instruction to not ask about anything of interest:

Shortly before the interview, her publicist outlined the parameters of the interview, noting that Justice Jackson "will not be able to discuss past or present Supreme Court cases, the upcoming presidential election or any other political or electoral matters."

I bought a Kindle copy of the book so you don't have to. The Kindle version of the book has no actual index, which makes scanning through the contents tough. (Jackson obviously did not follow the wisdom of the Volokh crowds on this one.) If you search, there are exactly zero entries about Clarence Thomas and Samuel Alito. There is a brief mention of the Trump appointees:

Over the next four years, President Trump would have the opportunity to fill not one but three vacancies on the Court. First, he would select Tenth Circuit Judge Neil Gorsuch to replace Justice Scalia. Then he chose D.C. Circuit Judge Brett Kavanaugh to succeed Justice Anthony Kennedy, who retired in July 2018. And after Justice Ruth Bader Ginsburg passed away only weeks before the 2020 presidential election, he appointed Seventh Circuit Judge Amy Coney Barrett Barrett to fill her seat. The appointment of these new justices decisively shifted the ideological balance of the Court, since, as of O.T. 2021, only three of the nine justices—Sonia Sotomayor, Elena Kagan, and my old boss and mentor Stephen Breyer—regularly maintained and expressed a progressive perspective regarding the Constitution and, more broadly, the law.

She does write about some of her high-profile cases on the District Court, but I doubt that will be of much interest to SCOTUS watchers.

In the acknowledgments, she thanks Rosemarie Robotham as a "collaborator." Robotham's actual title is actually "literary collaborator."

First and foremost, I must give thanks where it is most profoundly due: to my intrepid and indefatigable collaborator, Rosemarie Robotham. If a day went by during the writing process that Rosemarie and I did not communicate in some fashion, I don't recall it. She was always there, from the start and throughout, gathering the various pieces of my life story; developing the framework that weaves them all together; assisting with my vision of a narrative that, like me, moves seamlessly between law and life; and, of course, employing her exquisite writing and storytelling capabilities. It is Rosemarie's mastery of prose that breathes life into this book's retelling of my lived experience. I did what I could. Still, it is a point of pride for me that, notwithstanding the demands of my day job, our little duo managed to do a lot. With Rosemarie serving as principal drafter, we conceptualized, wrote, edited, analyzed, reassessed, and revised the myriad strands of my personal and professional story, ultimately producing an intricate tapestry that recounts my journey while also providing information in a manner that reflects my authentic self. I cannot imagine how such a mammoth undertaking could have possibly come into being without such a brilliant, selfless, and dedicated partner. In another stroke of my great good fortune, I never had occasion to find out.

Generally, one would call the "principal drafter" the "author," or perhaps a "co-author." But in the publishing world, this sort of recognition does not appear on the cover, but on page 387. Again, I'll give kudos to Justice Gorsuch for giving Janie Nitze the full-billing of co-author.

Jackson's description of her "collaboration" is similar to the praise that Justice Sotomayor gave to her "collaborator" in My Beloved World:

Given the demands of my day job, this book would not have been possible without the collaboration of Zara Houshmand. Zara, a most talented writer herself, listened to my endless stories and those of my families and friends, and helped choose those that in retelling would paint the most authentic picture of my life experiences. Zara, you are an incredible person with a special ability to help others understand and express themselves better; I am deeply indebted to your assistance. One of the most profound treasures of this process has been the gift of your friendship, which will last a lifetime.

Jackson's book came out within two years of her confirmation. Speedy! But where is Justice Barrett's memoir? She was confirmed in November 2020, and the advance was announced in spring 2021, but her book is still in the works.  Barrett tends to be one of the fastest justices to write opinions. What's the holdup? Does Barrett have a "collaborator"?

I'll close by beating my dead horse. Justices should not be able to bypass the limits on outside income by styling a $3 million payment as an "advance" of royalties. Congress should close this actual ethical loophole. At least Justice Jackson gave interviews in her publisher's office, and not at the Court. I find that practice less objectionable than using the trappings of One First Street to earn media.

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[Eugene Volokh] Firing Teacher for Refusing Instructions Not to Call Police About Alleged Assault by Student May Violate State Law

From Friday's decision by Judge Ronnie Abrams in Samuels v. Urban Assembly Charter School for Computer Science (S.D.N.Y.), Samuels' allegations:

On June 9, 2022, one of Samuels' students "threw a hard ball that hit Samuels in the head, causing a concussion." Upon being struck, Samuels immediately reported the incident and her injuries to Defendants. Although Noah [the school's founding principal] "instructed Samuels to not give the police any information about the student who had assaulted her," she nonetheless began reporting the incident to the police. Samuels asserts that Noah then physically confronted her, "approach[ing] her within a few inches of her face … and angrily ask[ing] if she really wanted to get a kid involved in the criminal justice system." In response to Noah's alleged "attempt[ ] to prevent her from reporting the incident," Samuels "objected" and continued to report the incident to the police officers present. Soon after, Samuels left Urban Assembly in an ambulance and the school "disabled her school email and system access."

After being transported to the emergency room, Samuels was allegedly "diagnosed with a head injury, neck pain, and concussion." Her symptoms included blurred vision, which prevented her from "read[ing] from her phone or computer screen" and restricted her ability "to operate a car or navigate public transportation." For example, Samuels was "unable to drive herself to the hospital for a PET scan the day following her injuries." She also says that she experienced "severe, persistent head and neck pain," which "impacted her ability to bend her neck and rotate her head," including "even minor head and neck movements." Her head and neck pain also "impacted her ability to sleep, … read, concentrate, and think."

A day later, on June 10, 2022, Noah messaged Samuels: "I [h]ope your head is feeling better. I assume you're not coming in so you can recuperate." Samuels responded as follows: "After being as[s]aulted on campus I sought medical care, and was discharged this evening to recuperate. Please see the attached physician letter excusing me from work for ten days. This includes not being able to participate in tomorrow's Algebra 1 Regents Prep session." The email included an attached doctor's note from Malcolm Johnson MD, stating that "Melissa Samuels was seen and treated in our emergency department on 6/10/2022. Please excuse the absence. She may return to work on 6/21/2022. If you have any questions or concerns, please don't hesitate to call."

The next morning, on June 11, 2022, Noah sent Samuels a reply email:

You were not assaulted. [A student] accidently hit you with a nerf ball while he was throwing it at [another student] in a raucous classroom…. [I]t was an accident, it was a nerf ball, and he is a child in a school. It's one thing for him to face consequences or for you to ask to be moved out of the advisory. It's entirely another to make what I believe is a bad faith assault claim…. Your account was temporarily disabled because I was sincerely afraid that you were sharing a student's personal information without parental consent or cause[.] … I'm not sure why you are doing this, but if it's just to avoid coming to work, let's please talk…. I suggest a virtual meeting to come to a shared understanding about next steps[.] … In the unlikely event you are unable to meet until the 21st, please plan on meeting in my office at 8:15.

The next day, on June 12, 2022, Noah emailed Samuels again:

After further review of your doctor's note and consultation with our school's counsel, I will need further documentation to excuse your absence beyond Friday[.] … [B]eyond Friday, the note doesn't contain any indication of your condition and your request for an accommodation that involves not working at all for 10 days doesn't appear to be supported by the note (which, again, lacks a diagnosis or any details). I remain open to discussing the matter with you directly via phone or video chat so we can actually come to some shared understanding about what happened and what happens next. But, in the absence of such a conversation and further documentation, this week will have to be considered unpaid[.]

Four days later, on June 16, 2022, "while Noah knew Samuels remained on medical leave recuperating from injuries," Defendants terminated Samuels' employment….

Samuels sued, alleging that defendants discriminated against her based on disability (stemming from her alleged injury) and failed to accommodate her disability, and the court allowed the claim to go forward. But the court also allowed Samuels to go forward with her claim of retaliation for the call to the police:

Samuels was allowed to proceed with her disability discrimination (and failure to accommodate) claim, but also with her state "whistleblower claim, alleging that Defendants unlawfully retaliated against her because she filed a police report and objected to Noah's instructions to 'not give the police any information about the student who had assaulted her'":

The NYLL [New York Labor Law] forbids employers from "tak[ing] any retaliatory action against an employee … because such employee … discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee reasonably believes is in violation of law, rule or regulation." The statute also proscribes retaliation because an employee "objects to, or refuses to participate in any such activity, policy or practice." …

Samuels asserts that, after reporting her injury to Defendants, Noah "instructed [her] to not give the police any information about the student who had assaulted her." When she began reporting the alleged assault to the police, she says Noah "angrily asked if she really wanted to get a kid involved in the criminal justice system." Samuels maintains that she understood Noah's actions to be an "attempt[ ] to prevent her from reporting the incident to the police," and that she "objected" to this attempt by continuing to "report[ ] the incident to the police officers present," Samuels now argues that she has stated a NYLL retaliation claim because she "objected to … Defendants' attempts to prevent her from filing a police report … under the reasonable belief that Defendants' attempts to prevent her from filing a police report was in violation of [a] law, rule, or regulation." …

Samuels plausibly alleges that she participated in an activity protected under the statute. To be sure, Samuels does not assert that she "disclose[d] … to a public body an activity, policy or practice of the employer." As Defendants rightly note, Samuels reported a student's conduct to the police, and she does not aver that she reported any unlawful conduct by Urban Assembly or Noah.

Nevertheless, § 740 independently proscribes retaliation against an employee because that employee "objects to, or refuses to participate in any … activity, policy or practice" that "the employee reasonably believes is in violation of law, rule or regulation." Samuels identifies a specific activity, namely that Defendants "attempted to prevent" her from filing a police report about an Urban Assembly student and forbade her from "giv[ing] the police any information" about that student. Samuels, moreover, plausibly alleges that she "object[ed] to, or refuse[d] to participate in" Defendants' activity, because she reported the assault to the police even after Noah "instructed [her]" not to do so….

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[Eugene Volokh] Repression of Anti-China-Government Speech in San Francisco

For more on the 2021 Emerson College incident associated with this image, see the bottom of this post.

 

From today's long and detailed Washington Post article by Shibani Mahtani, Meg Kelly, Cate Brown, Cate Cadell, Ellen Nakashima, and Chris Dehghanpoor, "How China extended its repression into an American city":

Chinese diplomats and pro-China diaspora groups based in the United States organized demonstrations in San Francisco that harassed and silenced protesters opposed to Beijing's policies, including through violence, during Chinese leader Xi Jinping's visit to the city in November, a six-month investigation by The Washington Post shows.

The events in San Francisco illustrate how the Chinese Communist Party (CCP) is willing to extend its intolerance of any dissent into the United States and target people exercising their First Amendment rights in an American city. It is part of a broader global pattern of China attempting to reach beyond its borders and suppress parts of its diaspora advocating against the CCP and ongoing rights abuses in Tibet, Xinjiang, Hong Kong and mainland China, the U.S. government and human rights groups say.

A number of diaspora group leaders have long-standing links to Beijing, according to Chinese state media, photos of high-level events and interviews, including with Chinese activists, former FBI officials and researchers. These include ties to the United Front Work Department, an arm of the Communist Party which uses non-state actors to further China's political goals overseas, blurring the line between civilians and state officials.

China has stepped up efforts to intimidate and spy on its diaspora, as Beijing's influence grows outside its borders. The Washington Post is investigating a global surge in campaigns of cross-border repression. The series' previous story examined Indian assassination plots in North America….

Some universities have also been going after anti-Chinese-government speech seemingly on their own, see this 2021 Emerson College incident (involving the China Kinda Sus sticker depicted above), this 2021 University of San Diego Law School incident, and this 2020 Fordham University incident. But this situation seems much more serious.

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[Cass Sunstein] Campus Free Speech, 2024

[For free speech on campus, Brandeis and Holmes should guide colleges and universities.]

I did not expect to write a book on free speech on campus. If you had asked me in 2020, 2021, 2022, or 2023, whether I might ever produce such a book, I would have said, "Are you kidding? Definitely not!"

But as they say, life is full of surprises. The on-campus disputes of 2024, spurred by protests connected with events in Israel and Palestine, led me to write a kind of extended "note to self," on my travel laptop—and here we are.

There's an issue that did not make it into the book, but that has haunted me for the last months. In thinking about freedom of speech on campus, we could use a lodestar. Two of the canonical First Amendment opinions—perhaps the most canonical, and perhaps the greatest—come from Justices Louis Brandeis and Oliver Wendell Holmes. Though they're grouped together, they're very different.

Brandeis' opinion is more elevated and soaring. It is almost a poem.

In Whitney v. California (1927), he wrote, "Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary." He added (and this is where he soared),

They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.

Let's pause over that passage. Law review editors would have a field day with it; Brandeis offered no citations for his claims, and it would not be so easy to demonstrate that Brandeis was really speaking for the founders. Still, it is reasonable to connect the protection of free speech with the civic republican tradition that the founders embraced (at least to some extent). For Brandeis, "an inert people" is the "greatest menace to freedom," and citizens are duty-bound to engage in political discussion.

Brandeis is prizing freedom from government, to be sure, with his emphasis on the importance of "counterspeech." Discussion, rather than censorship, is "ordinarily adequate protection against dissemination of noxious doctrine." (University censors, on both the right and the left—in New York, Florida, California, or Washington DC—please take note?) But Brandeis is also prizing participation in public affairs, and seeing it as a duty.

That's civic republicanism. It is also a kind of free speech libertarianism. But its libertarianism is derivative of its republicanism.

Holmes' defining opinion was his dissent in Abrams v. United States (1919). It is much darker than Brandeis, and more cynical, and it soars at a lower altitude and in a different way. It shows the influence of American pragmatism (William James, Charles Pierce, and John Dewey), not civic republicanism. Its libertarianism is derivative of its pragmatism.

Unlike Brandeis, Holmes nods, with some appreciation, at the impulse toward censorship: "Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition."

He adds, in a way that speaks directly to our era (again, left and right, please take note), that if you allow opposition by speech, you might seem to show "that you do not care wholeheartedly for the result."

In response, Holmes argues for epistemic humility.  "But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out." In Holmes' view, "That, at any rate, is the theory of our Constitution."

Thus Holmes' somewhat shocking conclusion:  "I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

That's staggeringly eloquent, even if here again, law review editors would have a field day. ("That, at any rate, is the theory of our Constitution." Citation?)

Note, if you would, that while both Brandeis and Holmes are fiercely protective of free speech, the foundations of their commitment could not be more different. Brandeis, unlike Holmes, focuses on democratic self-government and public participation. Holmes, unlike Brandeis, emphasizes the limits of existing knowledge ("time has upset many fighting faiths") and "the competition of the market."

Also note, if you would, that neither Brandeis nor Holmes is an originalist. Neither of them claims that his approach is a product of the original public meaning of the First Amendment. Neither of them investigates history. They are seeking to understand free speech as a broad and general commitment, not limited to specific understandings of the late eighteenth century.

How does all this bear on free speech on campus? As they say, general propositions do not decide concrete cases.

Still, those inspired by Brandeis would begin with a kind of presumptive celebration of student engagement, seeing it as something to be welcomed and applauded rather than to be deplored. After all, the greatest menace to freedom is an inert people. And if some of what has been and is being said is noxious doctrine (and it sure is), it is nonetheless part of a process that is "indispensable to the discovery and spread of political truth."

Those inspired by Holmes would go in a different direction. They would urge that "the ultimate good desired is better reached by free trade in ideas." They would broaden the viewscreen and insist (and this is the kicker, as relevant now as in 1919) that "we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death."

I admire Holmes' opinion, but I don't love it. It's great, but it isn't lovable, not really. (It's brilliant, but it's kind of harsh.) I admire Brandeis' opinion, and I also love it. It's great, and it's really lovable. (It's brilliant, and it's kind of sweet.)

But in 2024, colleges and universities need both. And if they are looking for a single lodestar, right here and right now, there is a good argument that Holmes is their man.

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