Eugene Volokh's Blog, page 49

[Eugene Volokh] Court Blocks Washington Requirement that Clergy Report Child Abuse, Even Learned from Confessions

From today's opinion by Judge David G. Estudillo (W.D. Wash.) in Etienne v. Ferguson:

At present, Washington clergy who learn of child abuse or neglect while acting within their official supervisory capacity are required to report such abuse to public authorities. Only information obtained "as a result of a privileged communication" is exempted from this mandatory reporting requirement. Effective July 27, 2025, however, Washington law [SB 5375] will require clergy to report child abuse or neglect regardless of how they learn about such information…. The Court concludes Plaintiffs are likely to succeed on the merits of their Free Exercise Clause challenge ….

There is no question that SB 5375 burdens Plaintiffs' free exercise of religion. In situations where Plaintiffs hear confessions related to child abuse or neglect, SB 5375 places them in the position of either complying with the requirements of their faith or violating the law. In this way, the statute "affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs."

[The law must therefore be judged under the "strict scrutiny" test unless it is neutral and generally applicable.-EV] [A] law is "not neutral and generally applicable, and therefore trigger[s] strict scrutiny … [if it] treat[s] any comparable secular activity more favorably than religious exercise." Tandon v. Newsom (2021)….

SB 5375 modifies existing law solely to make members of the clergy mandatory reporters with respect to child abuse or neglect. However, other groups of adults who may learn about child abuse are not required to report. Parents and caregivers, for example, are not mandatory reporters.

Moreover, the Washington legislature passed Substitute House Bill 1171 ("SHB 1171")—"AN ACT Relating to exempting attorney higher education employees from mandated reporting of child abuse and neglect as it relates to information gained in the course of providing legal representation to a client"—around the same time as it passed SB 5375….The twin passage of SHB 1171 and SB 5375 appears to be a textbook example of "permitting secular conduct that undermines the government's asserted interests in a similar way" to religious conduct that is regulated. The government interest at issue in both statutes—protecting children from abuse and neglect—is the same. Nevertheless, one law eliminates the privilege for clergy while the other expands the privileges available to secular professionals. "The underinclusion is substantial, not inconsequential" here.

Thus, SB 5375 is neither neutral nor generally applicable because it treats religious activity less favorably than comparable secular activity. The State has not presented compelling evidence that the exemption for law professors and those they supervise is not comparable in terms of the "risk" posed to children by a communications privilege exception to the mandatory reporting requirement. As Plaintiffs point out, multiple law schools in Washington have clinics and programs that directly serve children. Moreover, the exemption for university attorneys applies to all attorneys employed by higher education institutions—not just clinical professors….

The court also noted that the law may also not be neutral and generally applicable if it "targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation," and that this appeared to be so here (though it ultimately chose to rely instead on the treats-secular-activity-more-favorably analysis quoted above):

Here, clergy were explicitly singled out. The law itself is titled "AN ACT Relating to the duty of clergy to report child abuse and neglect[.]" … [Defendants have not been able] to explain why the language in § 1(b) of the bill doubled down on singling out clergy when § 1(a) had already added clergy to the list of mandatory reporters who could not invoke a communication privilege.

The targeted exception for clergy raises concerns, as the text of the bill and its legislative history arguably evince the intentional abrogation of a practice that the legislature understood to be religiously sacrosanct. For example, one of SB 5375's co-sponsors stated that: "We as a state do not have to be complicit when religious communities choose to cover up abuse and neglect of children. We can establish our laws, they can have the rules. And if they are in conflict, I believe they can change their rules."  As the Ninth Circuit recently noted, "government actions coupled with 'official expressions of hostility to religion … [are] inconsistent with what the Free Exercise Clause requires … [and] must be set aside.'"

The fact pattern at hand is readily distinguishable from cases where courts have found that a law's lack of religious exception does not necessarily give rise to a free exercise claim. In this case, clergy were the only professionals whose pre-existing exception was eliminated by the legislature….

And the court concluded that the law likely failed strict scrutiny:

When a plaintiff's religious exercise is burdened by a law that is either not neutral or not generally applicable, the burden shifts to the defendants to demonstrate that the challenged action survives strict scrutiny. "A government policy can survive strict scrutiny only if it advances 'interests of the highest order' and is narrowly tailored to achieve those interests.'"

Here, Plaintiffs have raised a serious question as to whether SB 5375 would survive strict scrutiny. Plaintiffs do not dispute that the State has a significant interest in preventing child abuse and neglect and in implementing measures to further that interest. Nor do Plaintiffs dispute that members of the clergy can be designated mandatory reporters in most contexts in a manner consistent with the First Amendment.  However, strict scrutiny requires "that a law inhibiting religious belief or practice go only as far as necessary to further the government interest." States cannot "justify an inroad on religious liberty" without first "showing that it is the least restrictive means of achieving some compelling state interest."

The State arguably could have chosen a less restrictive means of advancing its interest in protecting children from abuse and neglect by adding members of the clergy to the list of mandated reporters while also permitting a narrow exception for the confessional, as approximately 25 other states have done. There is also the possibility that the State could have worked alongside clergy to determine where state intervention is needed to further this interest within the context of the different religious communities in Washington and worked backwards from gaps identified to formulate a narrowly tailored remedy. As Etienne states, "the Archdiocese of Seattle has adopted and implemented policies that go further in the protection of children than the current requirements of Washington law on reporting child abuse and neglect," which include "reporting to proper law enforcement agencies or the department of children, youth, and families whenever church personnel—defined to include clergy and lay faithful working for the diocese, its parishes, schools, or agencies—have reasonable cause to believe child abuse or neglect has occurred."  Etienne further suggests that:

[B]ecause absolution given by a priest requires true contrition for all confessed sins, I, and the priests within the Archdiocese of Seattle to whom are confessed sins of child abuse or neglect by the penitent, could help counsel the penitent to self-report and obtain the necessary temporal intervention and held. I, and the priests within the Archdiocese of Seattle who suspect based on what is disclosed during confession that the penitent is suffering from abuse or neglect, the penitent has engaged in abuse or neglect, or some third party has engaged in abuse or neglect, could invite the penitent for counseling outside of the Sacrament of Confession. If the penitent were to agree to such counseling and I or a priest within the Archdiocese of Seattle were to learn information in that non- sacramental counseling providing reasonable cause to believe abuse or neglect has been committed, I or the priest is obligated to report that suspected abuse or neglect to proper law enforcement agencies or the department of children, youth, and families.

Ultimately, Washington's failure to demonstrate why it has an interest of the highest order in denying an exemption to clergy while making such exemptions available to other professionals who work with underserved children—as discussed supra—is likely fatal to SB 5375. As in Lukumi, the law is "underinclusive to a substantial extent with respect to … the interest[] that [the state] has asserted." The state, in removing the privileged communication exception for clergy but expanding it for other professionals, cannot demonstrate the narrow tailoring strict scrutiny requires.

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[Josh Blackman] What To Make Of The Leak From The Judicial Conference?

Margot Cleveland at The Federalist obtained a copy of a memorandum prepared by the Judicial Conference of the United States. This group includes the Chief Justice of the United States, the Chief Judges of the Federal Courts of Appeals, as well as certain district court judges. Margot did not reveal who authored the memorandum.

To be clear, I have no love for the Judicial Conference. I think they completely botched the judicial reassignment policy. And these august judges haven't said a peep about Judge Pauline Newman's stealth impeachment. Still, I am profoundly troubled by leaks. I don't like leaks from the Supreme Court. And I don't like leaks from other judicial bodies. The deliberations of the judicial conference should more transparent. Trying to figure out what is going on resembles Kremlinology. But as things stand now, they aren't transparent. Cleveland does not say how she got the document. I imagine it would have had to come from a judge, or perhaps someone on a judge's staff. No matter how you slice it, this leak is bad.

I suppose if I am being consistent, I should call on the presiding officer of the entity that had the leak to resign. But I repeat myself.

Now, onto the substance. Here is how Cleveland describes the memorandum:

During the week of March 11, 2025, members of the Judicial Conference met in Washington, D.C., for the first of its two regular meetings. . . .

In a memorandum obtained exclusively by The Federalist, a member of the Judicial Conference summarized the March meeting, including a "working breakfast" at which Justice Roberts spoke. According to the memorandum, "District of the District of Columbia Chief Judge James Boasberg next raised his colleagues' concerns that the Administration would disregard rulings of federal courts leading to a constitutional crisis."

"Chief Justice Roberts expressed hope that would not happen and in turn no constitutional crisis would materialize," according to the memorandum. The summary of the working breakfast added that Chief Justice Roberts noted that "his interactions with the President have been civil and respectful, such as the President thanking him at the state of the union address for administering the oath."

I have a few tentative observations.

First, I find it fascinating that Chief Justice Roberts relayed his conversation from the State of the Union. If I had to guess, Trump exchanged these kind words during the pleasantries as he entered the Chamber. But, as readers recall, Chief Justice Roberts bolted out of the chamber after Trump finished speaking. And Justice Barrett gave Trump a sideways glance after shaking his hand.

Second, I find it even more fascinating that Roberts is serving as a voice of reason, pushing back at the notion that he doesn't think Trump will ignore court orders. Roberts did flag this issue in his end-of-year message, but he is at least giving Trump some space.

Third, it seems clear that Judges like Boasberg lost trust in Trump, before any cases were assigned to him. And that lack of trust pervaded his Saturday emergency TRO hearing, where he ordered planes to turn around. If Boasberg followed a presumption of regularity, he would not have issued such an order.

Margot suggests this memorandum reveals bias on the part of Judge Boasberg and others. I suspect this report will give rise to a motion to recuse. I would like to see the full memorandum. And perhaps in the interest of full disclosure, Judge Boasberg should reveal his position here.

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[Eugene Volokh] "At Times, Filings by Pro Se Litigants and Attorneys Alike Are Wholly Nonsensical, but Pointing That Out" Doesn't Justify Recusal

Words of wisdom from Judge Jennifer Dorsey (D. Nev.) last week in Naessens v. Breslin:

[The self-represented plaintiff] takes issue with an order of mine in an unrelated case calling a pro se plaintiff's filings "wholly nonsensical" and argues that such language "suggests an undue predisposition against unrepresented parties."

Naessens … fails to show that I treated him or his allegations unfairly because of his pro se status. At times, filings by pro se litigants and attorneys alike are wholly nonsensical, but pointing that out does not supply a legal basis for recusal….

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[Eugene Volokh] Self-Represented Ligitant Says He Was Mentally Incompetent to Represent Himself, Seeks to Void Results of Past Case

From Judge Jennifer Dorsey (D. Nev.) last week in Naessens v. Breslin:

Pro se plaintiff … contends … that he has an undisclosed mental-health condition that made him incompetent to represent himself during this lawsuit….

Naessens … argues that he was "diagnosed with a serious mental-health condition and lacked the capacity to proceed pro se without a judicial determination of competence or court-appointed representation." He asserts that the court should have sua sponte inquired into his competency and appointed a guardian ad litem to represent his interests. He contends that the failure to do so violated his constitutional rights.

Naessens cites no authority for the notion that this court should have, unprompted, questioned his competency to litigate a case that he brought before this court. The court's obligation to conduct a competency hearing under FRCP 17(c) arises only when a "substantial question exists regarding the mental competence of a party proceeding pro se …." No such question arose in this case; Naessens actively participated in motion practice, coherently articulated his arguments and allegations, and never informed the court of any condition that affected his competency.

The only issue he raised concerning his health was in a motion to extend deadlines, stating that he was suffering from seizures that made it "difficult to communicate in a timely manner with the court." That statement did not raise a substantial question concerning Naessens's competency, so the court was under no obligation to determine competency under FRCP 17, and I conclude that his arguments do not justify relief [from the prior judgment].

Naessens separately but relatedly argues that because he was incompetent to participate in the prosecution of this case, "all court actions taken while [he] proceeded pro se are constitutionally invalid and must be vacated." He cites United States v. Gonzalez-Lopez (2006) and Dusky v. United States (1960) to support his argument. The United States Supreme Court's opinion in Gonzalez-Lopez addresses criminal defendants' right to constitutionally effective counsel. And the High Court's opinion in Dusky concerns the requirement that a criminal defendant be competent to stand trial. Neither case provides any applicable principles for this civil context, so they are not persuasive here….

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[Natalie Alkiviadou] Hate Speech and the European Court of Human Rights: Towards a Principled Approach

This book demonstrates that, with few exceptions, the ECtHR's general approach to hate speech has been overly expansive, often undervaluing both the significance of free speech and the harms resulting from the suppression of relatively low-threshold expressions. While this book does not advocate for an entire revision of the European approach to hate speech as that would anyhow be unrealistic, it does argue for a more rigorously substantiated balancing exercise and a renewed adherence to the Handyside principle. In Handyside v The United Kingdom (1976), the ECtHR found that the right to freedom of expression as provided by Article 10 of the European Convention on Human Rights (ECHR) extends to ideas that may 'offend, shock or disturb.' The hate speech jurisprudence of the ECtHR, although ostensibly committed to the protection of the right to freedom of expression continues to suffer from a lack of conceptual clarity, inconsistencies in application and a limited engagement with relevant scholarly literature. Some key examples are put forth hereinafter.

Féret v Belgium (2009) is emblematic of the departure from Handyside principles as it embedded a paradigm which I refer to as the low threshold hatred paradigm. Féret involved an application by a far-right politician who distributed leaflets during an electoral campaign with statements such as "Stop the Islamization of Belgium" and allegations that a refugee centre "poisons the lives of residents." In upholding domestic restrictions on such speech, the ECtHR equated insult, defamation and ridicule with hate speech that falls outside the protection of Article 10 of the European Convention on Human Rights (ECHR), denoting that incitement to violence is not a necessary pre-requisite for hate speech. Féret set a threshold precedent that would influence subsequent jurisprudence in which the ECtHR has systematically held that insults and/or defamation and/or prejudice and/or ridicule are enough to result in an Article 10 violation, even if they do not incite violence or other criminal acts.

Furthermore, rooted in the post-war consensus to combat anti-Semitism and Nazi propaganda, is the categorical exclusion of Holocaust denial from Convention protection through Article 17 of the ECHR, namely the prohibition of abuse of rights clause. This stems from the ECtHR's recognition of the enduring harm caused by the Holocaust and its denial not only to survivors, their descendants and groups but also to European democratic values.

Indicatively, the ECtHR's strict stance in relation to the Holocaust and its denial was put forth in Lehideux and Isorni v France (1998), in which the ECtHR ruled that there exists a "category of clearly established historical facts—such as the Holocaust —whose negation or revision would be removed from the protection of Article 10 by Article 17." The ECtHR's approach to genocides and genocide denial becomes less consistent when addressing denial of genocides other than the Holocaust. In Perinçek v Switzerland (2015), the ECtHR faced the question of whether denial of the Armenian genocide warranted criminal sanctions akin to Holocaust denial. Perinçek, a Turkish politician, publicly denied the Armenian genocide during events in Switzerland, describing it as an "international lie." The ECtHR found that Perinçek had not committed an abuse of his rights within the meaning of Article 17 of the Convention, as is seen in Holocaust denial cases. As a result, the applicant was assessed under Article 10.

While the case resulted in a finding of no violation, the fact remains that the case in question did not meet the severity required under Article 17, while Holocaust denial is systematically categorised as inherently harmful and abusive under Article 17, regardless of whether Article 10 is integrated in its analysis. Its use of historical consensus as a criterion for addressing cases of genocide denial risks reinforcing state-endorsed narratives while silencing alternative viewpoints. This approach raises concerns about the ECtHR's capacity to function as an impartial guardian of human rights. Furthermore, its divergent treatment of the Holocaust and the Armenian genocide points to an emergence of a hierarchy in the recognition of genocides and historical memory, thereby challenging the universal application of Convention safeguards in the Council of Europe region.

The ECtHR has taken varied approaches to speech related to totalitarian ideologies, applying a strict, exclusionary stance to Nazi glorification while adopting a more contextual, harm-based analysis for other symbols, particularly those tied to Communism or country-specific fascism. This is seen through the comparative spectrum of Vajnai v Hungary (2008) (red star), Fáber v Hungary (2012) (flag linked to the Arrow Cross Party) and Nix v Germany (2018) (Nazi symbols used on a public interest blog discussing racism in German government offices. This lack of uniform, principle-based reasoning across cases weakens legal predictability and the equitable application of free speech protections.

To complicate matters further, the rapidly evolving digital climate complicates the hate speech discussion predominantly due to the rise of private content moderation and regulatory outsourcing. The ECtHR's tolerance of vague restrictions has influenced and been influenced by digital regulation across Europe. Platforms now act as de facto speech regulators, often erring on the side of over-removal to avoid liability. The ECtHR has reinforced this model. In Delfi AS v Estonia (2015), it upheld the liability of a news portal for user-generated hate comments. In Sanchez v France (2023), it approved the criminal conviction of a politician for failing to delete hateful third-party comments on his Facebook page. As I argue "with these two cases, 'hate speech by proxy' is born, with liability imposed even on those not uttering the hate speech." Nevertheless, the ECtHR has yet to grapple with the full implications of this shift for free expression, particularly given the enormous power of online platforms in shaping public discourse.

In light of the above, the book argues that the ECtHR must recalibrate its approach to hate speech jurisprudence. This, in turn, must be grounded in a principled framework that reconciles the right to freedom of expression with the legitimate aim of combatting hate speech, which necessarily entails establishing a high threshold of harm. It must also take into account the implications of the rising digital agora of ideas, with its decisions, to date, being problematic. At present, the ECtHR often relies on expansive interpretations that categorise certain forms of expression as hate speech simply because they are offensive or insulting, without adequately demonstrating concrete societal harm.

Turning to International Human Rights Law and particularly Article 20(2) of the International Covenant on Civil and Political Rights as elaborated upon in the Rabat Plan of Action could be a starting point through which the ECtHR could reduce legal ambiguity and prevent the risk of excessive restriction. A solid extrapolation of what hate speech is and what harm the ECtHR attaches to it would ensure that only the most harmful forms of speech fall outside the protection of Article 10.

Accordingly, the ECtHR must be able to identify thresholds for prohibited speech, grounded in a sound and consistent definition. This must go beyond the binary 'grave' and 'less grave' distinction seen in Lilliendahl v Iceland (2020) and instead support a more nuanced model that protects expression while regulating genuinely harmful content. Such an approach would bring clarity and consistency to the ECtHR's jurisprudence, a critical requirement for both individuals seeking protection under the Convention and for Contracting States.

Furthermore, to justify restrictions, the ECtHR must employ a consistent and evidence-based definition, while also drawing from scholarly research to inform its analyses. As the book demonstrates, the ECtHR frequently invokes vague assertions regarding the societal harm of impugned speech without sufficiently substantiating its claims. For example, in Vejdeland and Others v Sweden (2012), the ECtHR upheld restrictions on the distribution of homophobic pamphlets on the grounds of their prejudicial content yet offered little in the way of empirical evidence to support its reasoning. A more rigorous engagement with academic literature on the nature and effects of hate speech, as well as its regulation, would enhance the ECtHR's ability to evaluate the necessity and proportionality of such limitations, tests which are required to be met under the limitation grounds of Article 10. Such evidence-based reasoning would strengthen the coherence of the ECtHR's jurisprudence by establishing clearer thresholds for the classification of hate speech, ensuring that its decisions are aligned with both the actual harms posed by particular expressions and the needs of democratic societies.

At its next opportunity, the ECtHR should begin engaging with the extensive body of scholarship on hate speech, which can provide crucial insights into how harm is conceptualised and how speech regulation may be effectively and proportionately applied. As a starting point, revisiting Fáber and Vajnai could serve as a foundation for rebuilding a more coherent and principled jurisprudence. Most importantly, if the ECtHR fails to reconsider its current stance, the continued endorsement of vague, viewpoint-selective national prohibitions, without a clear harm threshold grounded in empirical research, will increasingly undermine the integrity of European democracy and risk silencing dissenting and marginalised voices.

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Jonathan H. Adler] Eleventh Circuit Upholds For-Cause Removal for Administrative Law Judges

[Will the en banc court agree? Will the Supreme Court?]

Yesterday, in Walmart v. Chief Administrative Law Judge, a unanimous panel of the U.S. Court of Appeals rejected Walmart's challenge to constitutionality protecting Administrative Law Judges in executive branch agencies from removal without cause.

In an extensive and quite thorough opinion by Judge Hull, joined by Judges Jordan and Jill Pryor, the court concluded that the duties and authority exercised by ALJs are sufficiently constrained that limiting ALJ removal does not entrench upon executive power under Article II or otherwise prevent the President from fulfilling his obligation to "take care" that the laws are faithfully executed."

Here is the key portion of the opinion summarizing the court's analysis:

No doubt, the "general rule" is that under Article II the President has the "unrestricted" power to remove executive officers. See Seila Law, 591 U.S. at 215. To date, the Supreme Court has enumerated only two narrow exceptions to this Article II rule: (1) "one for multimember expert agencies that do not wield substantial executive power," id. at 218; see also Humphrey's Ex'r, 295 U.S. at 631-32, and (2) "one for inferior officers with limited duties and no policymaking or administrative authority," Seila Law, 591 U.S. at 218; see also Morrison, 487 U.S. at 691.

We are not concerned with the first exception. In the district court and on appeal, neither party previously asserted that ALJs are members of multimember expert agencies under Humphrey's Executor or single directors of independent agencies. See Seila Law, 591 U.S. at 213 (single Director of CFPB); Collins, 594 U.S. at 251 (single Director of FHFA).

As to the second exception, the parties still agree that the Department's ALJs are inferior officers properly appointed by the Attorney General. So the constitutional question becomes whether they have "limited duties and no policymaking or administrative authority" as required by the second exception. Seila Law, 591 U.S. at 218; Morrison, 487 U.S. at 691; see also Wilcox, 145 S. Ct. at 1415 (acknowledging "narrow exceptions" to the President's Article II removal power).

Under the second exception, the pivotal Article II inquiry remains whether the APA's § 7521(a) removal restriction unconstitutionally interferes with the President's necessary power to take care that the laws are faithfully executed. See Myers, 272 U.S. at 164; Morrison, 487 U.S. at 689-90. In other words, does the ultimate exercise of executive power remain within the purview of the President or those directly accountable to the President? See Morrison, 487 U.S. at 689-90.

After thorough consideration, and applying the Supreme Court's governing analysis and largely the same factors considered by other circuits, we conclude the APA's § 7521(a) removal restriction is constitutional . . .

The court adds:

In holding § 7521(a) constitutional, we respect the Constitution's carefully calibrated separation of powers. Even though the Constitution is silent about removal of executive branch officers, the Supreme Court has instructed that Article II's Take Care Clause and Appointments Clause grant the President the broad power to remove executive branch officers. But importantly here, the Constitution in Article II also explicitly grants Congress a say in how inferior officers, including the Department's ALJs, are appointed. The constitutional authority of Congress to vest the appointment of inferior officers implies authority to limit and regulate the removal of those inferior officers so appointed. Striking down § 7521(a)'s straightforward "good cause" removal restriction on inferior officers with such limited duties as ALJs would upset the Constitution's balance of governmental power.

I would expect that Walmart will seek review of this ruling, perhaps initially with a  petition for rehearing en banc, then followed by a petition for certiorari. This is a particularly liberal panel for the Eleventh Circuit, so an en banc petition would make some sense. On the other hand, Judge Hull's opinion is quite thorough, and other judges on the circuit might think that if any court is going to take the next step with regard to limitations on removal, it should be the Court at One First Street.

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[Eugene Volokh] Court Considers Claim of Montgomery County (Md.) Teachers Transferred for Pro-Palestinian Speech Following Oct. 7, 2023

[The speech included in-class display of "Free Palestine," e-mail signature saying "From the River to the Sea, Palestine will be free," and pro-Palestinian social media posts.]

From Judge Lydia Kay Griggsby (D. Md.) yesterday in El-Haggan v. Bd. of Ed.:

Plaintiffs are public school teachers employed by the [Montgomery County (Md.) Public Schools]. Following the events of October 7, 2023, the Plaintiffs individually expressed their opposition to Israel's response to the terrorist attacks and to the subsequent war in Gaza.

This led to their being transferred to other schools (and, as to two of them, being placed on paid administrative leave). They sued, claiming that, among other things, this constituted unconstitutional retaliation for the exercise of their First Amendment rights. The Court has held that such retaliation violates the First Amendment if

the speech is on a matter of public concern, Connick v. Myers (1983), andthe speech is not said by the employee as part of the employee's job duties, Garcetti v. Ceballos (2006), andthe damage caused by the speech to the efficiency of the government agency's operation does not outweigh the value of the speech to the employee and the public, Pickering v. Bd. of Ed. (1968)—in practice, this means that employees can be punished for their speech if coworkers or members of the public express enough hostility to the speech, but are generally protected if there isn't much such hostility.

The court rejected Plaintiff El-Haggan's claim to the extent it was "based upon [her] wearing of pro-Palestinian pins, buttons and clothing in the classroom":

Plaintiff El-Haggan was not speaking as a private citizen when she wore pro-Palestinian pins, buttons and other clothing in her classroom. The amended complaint makes clear that Plaintiff El-Haggan engaged in this speech within her classroom, by wearing homemade pins, buttons and outfits containing the slogan, "Free Palestine." The amended complaint also shows that Plaintiff El-Haggan engaged in this speech by distributing "Free Palestine" buttons to other teachers at her school. Given these facts, the Court agrees with the Defendants that Plaintiff El-Haggan's speech was curricular in nature, because, her students and their parents were likely to regard such speech in the classroom as approved and supported by the school.

Notably, the amended complaint makes clear that Plaintiff El-Haggan's speech, while unrelated to mathematics, was, nonetheless, designed to impart knowledge to the students about the war in Gaza. Because the factual allegations in the amended complaint, taken as true, show that Plaintiff El-Haggan presented her views regarding the war in Gaza in a compulsory classroom setting, she was not speaking as a private citizen, but rather as an employee of the MCPS.

Given this, the Plaintiffs do not state a plausible First Amendment retaliation claim based upon this conduct.

But the court held otherwise as to "Plaintiff El-Haggan's email signature containing the slogan, 'From the River to the Sea, Palestine will be free'":

The amended complaint … plausibly alleges that Plaintiff El-Haggan engaged in this speech as a private citizen. In this regard, the Plaintiffs allege in the amended complaint that Plaintiff El-Haggan added this slogan to her work email signature shortly after the October 7, 2023, terrorist attacks. The Plaintiffs also allege that Plaintiff El-Haggan did not use this email to communicate with students or their parents. Given this, the amended complaint plausibly alleges that Plaintiff El-Haggan's students and their parents would not have regarded her email signature as being supported by the school. And so, the Plaintiffs plausibly allege facts to show that Plaintiff El-Haggan was speaking in this context as a private citizen, on a matter of public concern.

The factual record before the Court is not, however, sufficient for the Court to perform the required balancing test under the second prong of Pickering, to determine whether the Defendants' regulation of this speech violates the First Amendment. As the Defendants correctly observe, the amended complaint contains factual allegations to show that Plaintiff El-Haggan's use of the email signature was disruptive to the workplace. ECF No. 42 at ¶ 53 (alleging that a staff member became upset when she read Plaintiff El-Haggan's signature block); id. at ¶ 55 (alleging that a staff member sent a screenshot of Plaintiff El-Haggan's signature line to supervisor and screenshot was circulated to head of school health services), id. at 61 (alleging that Principal Allrich received an email from a parent complaining about Plaintiff El-Haggan's clothing). These facts weigh in favor of the Defendants' ability to regulate this speech. But there are no facts before the Court regarding the other factors that the Court considers when conducting the Pickering balance, such as whether Plaintiff El-Haggan's speech impaired the maintenance of discipline by supervisors; damaged close personal relationships; impeded the performance of her duties; interfered with the operation of the school; undermined the mission of the school; and/or abused the authority and public accountability that her role entailed.

Given this, the Court cannot conclude at this early stage in this litigation that Plaintiff El-Haggan's email signature had an adverse effect that was "reasonably to be apprehended." And so, the Court declines to dismiss this claim.

And the court likewise denied the motion to dismiss as to "Plaintiffs Robinson and Wolf," who "commented and posted about the war in Gaza on their personal social media accounts":

[T]he amended complaint makes clear that these Plaintiffs did not engage in this speech pursuant to their duties as MCPS teachers. But, as is the case with Plaintiff El-Haggan, the factual record before the Court is not sufficient for the Court to determine whether the Pickering balancing factors support the Defendants' decision to regulate this speech. Again, there are some factual allegations in the amended complaint to show that the social media posts at issue were disruptive to the school. ECF No. 42 at ¶¶ 111-112 (acknowledging that parents contacted the school to complaint about Plaintiff Robinson's social media posts); id. at ¶ 173 (acknowledging that a parent contacted the school to complaint about Plaintiff Wolf's social media posts). But other important facts are simply not currently before the Court, such as whether this speech impaired the maintenance of discipline by supervisors; impeded the performance of these Plaintiffs' duties; interfered with the operation of the school; undermined the mission of the school and/or abused the authority and/or the public accountability that these Plaintiffs' roles entailed.

More details on the social media posts:

[111.] On November 26, 2023, according to the investigative report, a parent of a 7th grade WMS student emailed the principal and assistant principal about a post that Ms. Robinson made on her personal Instagram account on November 2. It was an image of a red eye with a map of Palestine in the center and the caption: "The world is watching, Palestine will be free."

[112.] The caption also read: "colonized peoples across the world stand in solidarity with the Palestinian people against israel's settler colonial state-sanctioned apartheid program of genocide backed by u.s. imperialism from the river to the sea, palestine will be free. decolonization is not a metaphor."

[113.] On November 27, at the request of the principal, the same parent sent the school a photo Ms. Robinson shared which depicts an Israeli government missile, moments away from killing a Palestinian child. The caption read, "Shame on the world. #plo #arafat #palestine #freepalestine #endapartheid." …

[194.] Among [Ms. Wolf's] posts, investigator Onley focused on a political cartoon posted by Ms. Wolf which depicts the neonatal intensive care unit in Al-Shifa hospital in Gaza being targeted by an Israeli tank.

[195.] Investigator Onley also questioned her about a Facebook post she shared from another user in which the user supported the Dulles airport bus drivers who refused to transport pro-Israel protestors to a pro-Israel rally. Ms. Wolf explained that she was a former bus driver and felt closely connected to this event.

[196.] Investigator Onley questioned Ms. Wolf about a post shared from another Facebook user. The post reads, "It is not a war– It Is a Slaughter Israel Determined To Make Gaza Uninhabitable.

The post Court Considers Claim of Montgomery County (Md.) Teachers Transferred for Pro-Palestinian Speech Following Oct. 7, 2023 appeared first on Reason.com.

[Eugene Volokh] Principal's Race Discrimination Lawsuit Over "We Can Malcolm X Her" Allegations Can Go Forward

A bit of backstory, from a 2019 N.Y. Daily News story (by Michael Elsen-Rooney & Stephen Rex Brown):

A white principal and four black teachers at a Bronx middle school have filed dueling lawsuits accusing the other of racism as fallout continues over allegations that the embattled administrator barred Black History Month lessons.

Former Bronx Intermediate School 224 Principal Patricia Catania, who is white, grabbed headlines in 2018 when the Daily News reported on accusations she prohibited English teacher Mercedes Liriano from teaching lessons on the Harlem Renaissance and confiscated a student's poster on African-American musical genius Lena Horne.

Amid the furor, Catania sued Liriano, two other black teachers at the school and two teachers union employees, alleging they'd waged a "maligning, malevolent, and racist campaign" to oust Catania as principal because she was successfully cracking down on under-performing educators….

"We can Malcolm X her, by any means necessary we will get her out. Change through violence," UFT rep William Woodruff allegedly said in January 2017.

In Catania v. United Fed'n of Teachers, decided Monday by Judge Gregory Woods (S.D.N.Y.), the judge rejected much of plaintiff's claims, but allowed some to go forward; recall that all the factual allegations described below are just allegations at this point—the court simply held that plaintiff had plausibly alleged enough to allow the case to proceed:

Plaintiff Patricia Catania was the principal of Middle School 224, a public school in New York City. Ms. Catania is white. She alleges that the defendants—a labor union and a number of its officers—conspired with a group of the school's teachers to get Ms. Catania fired and replaced with a Black principal.

To implement this conspiracy, the defendants created what Ms. Catania claims to be the false narrative that Ms. Catania wanted to prevent teachers at the school from teaching Black history. The conspirators publicized that narrative, led protests against Ms. Catania, and lodged false complaints against her with the Department of Education. This conduct provoked a wave of negative publicity and harassment. Ms. Catania ultimately believed she faced a choice between resigning or facing disciplinary action for allegedly pretextual violations, so she resigned from her position.

Ms. Catania commenced this action against the labor union and its representatives … for conspiring with public school teachers to constructively discharge her in violation of her rights under the First and Fourteenth Amendments. The Court already dismissed Plaintiff's Free Speech and her Due Process claims with prejudice. After the Court granted Plaintiff leave to replead her Equal Protection claim, Plaintiff filed a Third Amended Complaint. Because Plaintiff alleges facts sufficient to raise a minimal inference that Woodruff [a UFT representative] and the UFT … had discriminatory intent, Defendants' motion to dismiss Plaintiff's only remaining claim, her Equal Protection claim, is GRANTED IN PART and DENIED IN PART….

Plaintiff plausibly alleges that Woodruff and the UFT discriminated against her on the basis of her race…. The Third Amended Complaint alleges facts sufficient to plausibly plead a minimal inference of Woodruff's discriminatory motivation: that he targeted Plaintiff and attempted to remove her from her position because she is white. The Court refers to the Prior MTD Opinion at 26–28 for analysis of why Plaintiff's previous allegations relating to discriminatory intent either are conclusory or cannot be imputed to Defendants and the alleged conspiracy…. [But] Plaintiff's new allegations regarding Woodruff's conduct during the protest rallies and regarding his Malcolm X comment plausibly support a minimal inference of his discriminatory intent….

Plaintiff's allegation that Woodruff encouraged protestors to shout "white racist b**ch" and "white devil," among other things, supports an inference of Woodruff's discriminatory intent….

A minimal inference of discriminatory intent can be drawn from Woodruff's statement during the January 17, 2017 meeting that he wanted to "Malcolm X" Plaintiff shortly after she started working at MS 224. Given Malcolm X's complex legacy, the Court cannot say as a matter of law that no reasonable inference could be drawn that Woodruff was referencing what Plaintiff calls "notions of Black Supremacy and Black separatism." And if Woodruff was indeed "indicating that people of color at [MS 224] needed to be separated from Catania because of her White/Caucasian race," then this is sufficient to raise a minimal inference that Woodruff's actions were taken on the basis of Plaintiff's race….

The Third Amended Complaint [also] plausibly alleges that Woodruff acted jointly with the MS 224 Teachers, who themselves were acting under color of state law, and therefore that Woodruff's conduct was state action.

First, Plaintiff plausibly alleges that Woodruff conspired with the MS 224 Teachers to defame Plaintiff and get her removed from her position on account of her race. Plaintiff alleges that Woodruff held meetings with the MS 224 Teachers, during which they agreed to take steps to get plaintiff removed, such as filing grievances. Defendants then took steps jointly with the MS 224 Teachers toward achieving their goal. The MS 224 Teachers filed numerous false and unsubstantiated complaints against Plaintiff with the DOE and with the UFT as directed by Woodruff. Woodruff and the UFT organized press conferences and rallies at which various MS 224 Teachers made false and derogatory statements about Plaintiff, again at Woodruff's direction.

Crucially, the MS 224 Teachers heard Woodruff's comments about wanting to "Malcolm X" Plaintiff, from which a reasonable inference may be drawn that they were "knowingly furthering the discriminatory intent" in carrying out Woodruff's plans. At the very least, a plausible inference can be drawn that Liriano [one of the MS 224 Teachers], who explicitly stated that she wanted to replace Plaintiff with a black principal, was intentionally engaged in discriminating against Plaintiff on the basis of her race. Woodruff and the MS 224 Teachers are therefore alleged to have conspired and acted in concert to violate Plaintiff's constitutional rights.

Second, Plaintiff plausibly alleges that the MS 224 Teachers were acting under color of state law in engaging in the conspiracy…. Educators who are public employees act under color of state law when they "misuse [their] authority" over their students…. The MS 224 Teachers were not merely protesting in the ambit of their personal pursuits as private citizens; they were using their authority as teachers to harass and defame Plaintiff. They lodged formal workplace complaints through the DOE, through the UFT, and directly to Superintendent Alvarez, even though the complaints were "false and unsubstantiated."

Multiple MS 224 Teachers made derogatory comments about Plaintiff directly to students, over whom they had authority, in classroom settings. Ms. Liriano even "caused forty students … to opt out of a certain exam" in order to "reflect badly" on Plaintiff. These formal DOE complaint processes and the influence over students were only available to the MS 224 Teachers by virtue of "the position[s] given to [them] by the State." In stoking resentment toward Plaintiff, see, e.g., TAC ¶ 291 ("[D]uring an official observation from a DOE deputy superintendent, inside a classroom in the school, a student called Catania a 'racist, white b**ch' in front of said deputy superintendent."), and in discouraging students from taking exams for reasons unrelated to their educational development, the MS 224 Teachers misused that influence over their students. Therefore, the MS 224 Teachers' conduct constituted state action for purposes of Plaintiff's § 1983 claim….

The post Principal's Race Discrimination Lawsuit Over "We Can Malcolm X Her" Allegations Can Go Forward appeared first on Reason.com.

[Eugene Volokh] Hamtramck (Michigan) May Stop Flying Pride Flag and Other Flags on City Flagpoles

From Monday's decision by Judge David Lawson (E.D. Mich.) in Gordon v. City of Hamtramck:

This case concerns a dispute over the display of flags on a series of 18 flagpoles located on city sidewalks lining Joseph Campau Avenue in the City of Hamtramck's downtown historic district. It is undisputed that the flagpoles are on public property and owned by the City. At the center of the dispute is the display of a Gay Pride flag, once sanctioned by [the city Human Relations Commission] and then banned by city government after a change in administrations and a corresponding policy reversal. The plaintiffs, Russ Gordon and Cathy Stackpoole, were members of that commission before they were dismissed for pressing the issue….

In 2021, the Hamtramck City Council authorized the display of a Pride flag at a city-owned flagpole, but then in 2023 it reversed course, implementing this resolution:

WHEREAS, the City of Hamtramck is one of the most diverse cities in the United States, in which we should proudly promote and embrace its diversity; and

WHEREAS, the City must and will serve and treat its residents equally, with no discrimination, or special treatment to any group of people; and

WHEREAS, the City has authorized in the past, the Human Relations Commission to install nations['] flags on the City flagpoles to represent the international character of the City, Resolution 2013-102: and

WHEREAS, each religious, ethnic, racial, political, or sexually oriented group is already represented by the country it belongs to; and

WHEREAS, the City does not want to open the door for radical or racist groups to ask for their flags to be flown; and

WHEREAS, this resolution does not in any way, shape or form infringe upon the fundamental right of an individual or business in the City of Hamtramck to engage free speech. Nor does this resolution limit speech by public employees provided that such employees engage in such speech in a protected time, manner and place.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Hamtramck, Wayne County, Michigan, that the government of the City of Hamtramck does not allow any religious, ethnic, racial, political, or sexual orientation group flags to be flown on the City's public properties, and that only, the American flag, the flag of the State of Michigan, the Hamtramck Flag, the Prisoner of War flag and the nations' flags that represent the international character of our City shall be flown.

Gordon and Stackpoole then "took the personal view that the resolution was an unconstitutional restriction on speech contrary to the First Amendment, and, on July 9, 2023, acting on their own initiative, Gordon and Stackpoole raised the Pride flag on one of the Joseph Campau Avenue flagpoles." "Hamtramck police were summoned by the Mayor and soon removed the flag." After that, the City Council removed plaintiffs Stackpoole and Gordon from their positions on the HRC, and "stripped the HRC of authority over the flagpole displays."

Gordon and Stackpoole sued and moved for partial summary judgment, but the court disagreed:

This case begins and ends with Shurtleff v. City of Boston, which is both squarely on point and constitutes the leading and most recent controlling authority regarding First Amendment treatment by the Supreme Court of flagpole displays…. Resolution 2023-82 substantially altered the nature of the forum presented by Hamtramck's public flagpoles, and that alteration in turn is dispositive of [plaintiffs'] First Amendment claims. [T]he closure of a limited public forum by municipal authorities was expressly recognized as constitutionally permissible in Shurtleff….

As the [Shurtleff] Court observed: "All told, while the historical practice of flag flying at government buildings favors Boston, the city's lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech—though nothing prevents Boston from changing its policies going forward." The Court also endorsed the type of regulations enacted in other cities that expressly limit and specify which flags can be displayed, indicating that such an enactment would tip the balance of the forum- classification analysis: "Boston could easily have done more to make clear it wished to speak for itself by raising flags. Other cities' flag-flying policies support our conclusion. The City of San Jose, California, for example, provides in writing that its 'flagpoles are not intended to serve as a forum for free expression by the public,' and lists approved flags that may be flown 'as an expression of the City's official sentiments.'" The regulation here fits precisely into that niche….

The court likewise rejected plaintiffs' Establishment Clause claim:

The plaintiffs … posit[] that the enactment of Resolution 2023-82 that effectively banned display of the Pride flag violated the Establishment Clause because it was promulgated "to accommodate a segment of the Hamtramck community which was hostile to the rights of the gay community based on their personal religious views." The plaintiffs cite several statements in this record by city councilpersons condemning homosexuality and expressing hostility to the sentiments that the Gay Pride flag may symbolize.

However, the plaintiffs' "evidence" of subjective motivation to advance a religious viewpoint is irrelevant to the analysis of alleged Establishment Clause violations. "The eyes that look to purpose belong to an objective observer, one who takes account of the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act."

"[I]t is virtually impossible to determine the singular 'motive' of a collective legislative body, and [the Supreme] Court has a long tradition of refraining from such inquiries…. The First Amendment does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted[.] This does not put [the Court] in the business of invalidating laws by reason of the evil motives of their authors." Accordingly, "[i]t is a familiar principle of constitutional law that [courts] will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. As the [Supreme] Court long ago stated: 'The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted.'"

On its face, Regulation 2023-82 is devoid of any reference or endorsement of any religion or viewpoint. In fact, it evidences an intent by the City to avoid endorsing any private credo at all. Whether or not any subjective animus toward a particular viewpoint motivated the adoption of the regulation is entirely irrelevant, since "[t]he Supreme Court [has] repeatedly explained that legislators' personal motivations for enacting a regulation are irrelevant to First Amendment challenges to government regulations; [and] only the government's asserted justifications are pertinent." The justifications advanced here—foreclosing public controversy and avoiding contentious litigation over displays of competing viewpoints—have been found to be constitutionally valid by courts that upheld regulations with indistinguishable limitations on flagpole displays….

The court also concluded that plaintiffs' Equal Protection Clause argument was insufficiently developed to be considered.

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