Eugene Volokh's Blog, page 62

[Eugene Volokh] Wednesday Open Thread

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[Dale Carpenter] Florida Can Forbid Transgender High School Math Teacher From Using Feminine Pronouns to Refer to Herself in Class, 11th Circuit Says

[The appeals court vacated a preliminary injunction that had been based on her First Amendment rights]

In a case of first impression, a split panel of the Eleventh Circuit decided today that a transgender high school teacher's speech rights were not violated when the state of Florida required her not to refer to herself in class by her preferred feminine pronouns ("she," "her," "hers") or honorifics ("Ms.," "Mrs.," "Miss") (See also Eugene's post about the decision below.)

From the majority opinion, here is the background:

Katie Wood teaches algebra at a public high school in Florida. Wood was born a biological male but now identifies as a woman. After transitioning in 2020, Wood began using the honorific "Ms." and the gendered pronouns "she," "her," and "hers." Importantly for present purposes, she wrote "Ms. Wood" and "she/her" on her classroom whiteboard and syllabi, she identified herself as "Ms. Wood" in her communications with students, and she wore a pin that said "she/her." Then, in 2023, Florida enacted Fla. Stat. § 1000.071, which states, in pertinent part, that "[a]n employee or contractor of a public K-12 educational institution may not provide to a student his or her preferred personal title or pronouns if such preferred personal title or pronouns do not correspond to his or her sex." Fla. Stat. § 1000.071(3).

In practice, if she used any pronouns or honorifics in class to refer to herself, Florida required her to use masculine ones. That is, it required her to misgender herself. If that's not quite the same thing as compelled speech because she could try to avoid using any pronouns or honorifics, it's the next worst thing. The majority continued:

Wood sued, challenging § 1000.071(3)'s constitutionality. In particular, she sought to enjoin enforcement of the statute on the ground that it violated her First Amendment right to free speech. The district court granted her request for a preliminary injunction. In so doing, the court held that Wood had shown a substantial likelihood of success on the merits of her First Amendment challenge. As relevant here, the court grounded its holding on the premise that when Wood used the identifiers "Ms.," "she," "her," and "hers" in interactions with students, she spoke not as a government employee but rather as a private citizen. See Wood v. Fla. Dep't of Educ., 729 F. Supp. 3d 1255, 1279 (N.D. Fla. 2024). That was so, the court reasoned, because her preferred honorific and pronouns "owe[their] existence not to her professional responsibilities as a math teacher, but instead to her identity as a woman—an identity that remains true to Ms. Wood both inside and outside the classroom." Id. Having concluded that Wood spoke as a citizen, the court went on to hold that her speech touched on a "matter of public concern" and that her interest in expressing herself outweighed the state's interest in promoting workplace efficiency. Id. at 1279–84.

The majority did not itself misgender the plaintiff.  But it held that Florida was not required to extend this basic courtesy to her, even when she referred to herself.  The majority reasoned as follows:

When a public-school teacher speaks "in the course of performing [her] job"—i.e., "speaking to [her] class in [her] classroom during class hours," Johnson, 658 F.3d at 967—she does so pursuant to her official duties and therefore speaks as a government employee, not a citizen. The speech at issue here—in which Wood verbally provided her preferred honorific and pronouns, wrote them on her whiteboard and syllabi, and wore a "she/her" pin—fits that description precisely….

To be sure, as the dissent correctly notes, the relevant caselaw—both our own and our sister circuits'—expressly permits government regulation of a teacher's curricular speech. But the inverse—that the First Amendment forbids regulation of a teacher's in-class noncurricular speech—doesn't follow.

I think that's right as far as it goes: it can't be the case that the First Amendment categorically protects any and all noncurricular teacher speech in the curricular setting. But that doesn't mean it's open season on all noncurricular speech in the curricular setting.

The dissent rebutted the majority's conclusion that the teacher's use of personal pronouns is fully regulable because it is necessarily government speech that happens in the classroom:

[A] teacher's preferred personal title and pronouns simply do not bear any of the
characteristics of government speech. Personal titles and pronouns have not traditionally been used to convey a government message; there is no evidence that the public associates them with the government; and they are not manufactured, owned, or designed by the government…

To the extent that Florida tries to shoehorn the use of preferred personal titles and pronouns into the curricular bucket, that attempt fails. The Supreme Court has generally defined a school's curriculum as activities or matters that are "supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences." Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988). A teacher's preferred personal title and pronouns simply do not fit into this understanding….

We should be wary of holding that everything that happens in a classroom constitutes government speech outside the ambit of the First Amendment. Those who wield the power of the government today and are on one side of the gender and culture wars will be the ones at risk of being compelled to speak against their beliefs, or silenced, when their opponents are in charge. Today's opinion
will then not look as attractive.

The dissent next asserted that the Florida law amounts to viewpoint discrimination:

The statute at issue here, § 1000.071(3), has nothing to do with curriculum and everything to do with Florida attempting to silence those with whom it disagrees on the matter of transgender identity and status. Florida cannot justify its viewpoint discrimination by relying on the very reason that such discrimination is constitutionally suspect—that it gets to decide what speech is permissible (the speech it likes) and what speech is prohibited (the speech it disagrees with).

I'm not sure it's quite right that the Florida law is viewpoint discrimination, although the statute does label the prohibited speech as "false." But it's certainly a form of content-based speech regulation.  Under it, the teacher may use the state's approved pronouns to refer to herself but not the disapproved ones. The dissent concluded:

The First Amendment I know, despite its many different (and sometime dizzying) doctrinal lines, would at least require some judicial scrutiny, some balancing of interests, before Florida is allowed to discriminate on the basis of viewpoint. By mistakenly characterizing a teacher's use of her preferred title and pronouns in the classroom as government speech, the majority has foreclosed any meaningful First Amendment review of § 1000.071(3). That is unfortunate, and I respectfully dissent.

My initial reaction is that the dissent overall has the better of the argument.

As I piece together the legal landscape in these fraught times for transgender people and for free speech, putting this decision together with decisions like Meriwether v. Hartop (6th Cir. 2021) (concluding a college professor had a free speech right to misgender his students), it seems school teachers have a First Amendment right against state policy to misgender their students in the classroom but have no First Amendment right against state policy not to misgender themselves in the classroom. And I don't think the differences between the outcome in this decision and the outcome in Meriwether can be chalked up to the differences between the high school and college settings. In fact, the regulatory interests of the state may have been greater in Meriwether because that case did not deal only with the speaker's own dignitary and expressive interests but directly involved the dignitary interests of the third parties (the students) he was addressing, a factor the Sixth Circuit did not even consider.

I teach my students that free speech protects the rights of high schools students to form LGBT students groups and Christian ones, that protection against compelled speech allows people to salute the flag and to refuse to salute (or even to burn) it, and that it protects them when they come out as gay or as evangelical. Laws like the one in Florida, and decisions like the Eleventh Circuit's, complicate that story of evenhandedness and hinder the protection of currently unpopular opinion.

(HT: Casey Pick for alerting me to the decision.)

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[David Bernstein] Freedom of Expression Does Not Include the Right to Trespass

On Sunday, I wrote, with regard to my new article on freedom of speech and college antisemitism:

Coauthor David L. Bernstein and I spend a fair amount of space recounting examples of antisemitic campus activity that did not involve protected speech, such as vandalism, classroom and library disruptions, threats, one-on-one verbal harassment, assault, and more. Some readers of the draft paper questioned why a paper on free speech and antisemitism talking about things that don't constitute free speech.

A major reason for doing so is that David L. and I saw that many commentators were portraying the complaints about antisemitism on campus and the antidiscrimination obligations of universities under Title VI as if these complaints solely or primarily revolved around controversial political speech such as "From the River to the Sea, Palestine will be free."

Another reason we dwelled on activities that did not involve protected speech is to emphasize that such activities are not, in fact, protected speech. This should be obvious, and yet…

As I noted yesterday, federal judge Gerald McHugh described a three-day illicit "encampment" at Haverford College as the college allowing "protestors to freely express themselves for three days."

Perhaps more egregiously, last fall Professors Evelyn Douek and Genevieve Lakier wrote:

Administrators have also turned to Title VI to justify their decision-making, including their sometimes significant repression of student speech. For example, in April 2024, Columbia University's then-President Minouche Shafik referred to Title VI to justify her (very controversial) decision to send in the police to break up Columbia's protest encampment.

Breaking up a protest encampment is not only not a "significant repression of student speech," it's not a repression of student speech at all. The students were free to speak; the university had the right, and arguably the legal obligation, to enforce content-neutral time, place, and manner restrictions on the students, and also to stop the students from "occupying" university property, an illegal trespass. Nothing, meanwhile, was stopping the students from tabling, handing out flyers, holding up signs, giving speeches or chanting in ways that didn't disrupt university functions, or otherwise speaking their Hamasnik hearts out.

As with Judge McHugh, I am confident that at least in certain contexts Professors Douek and Lakier would agree that enforcing content-neutral rules against speakers does not violated free speech rights. I doubt, for example, they would defend the freedom-of-expression-right of students to camp out on their front lawns or in their law school offices on behalf of "Palestine" or anything else.

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[Eugene Volokh] Florida Teachers Have No First Amendment Right to Indicate Their Preferred Pronouns and Honorifics in Class

[So an Eleventh Circuit panel held today, by a 2-1 vote.]

Excerpts from the 9,400-word Wood v. Fla. Dep't of Ed., decided today by Eleventh Circuit Judge Kevin Newsom, joined by Judge Andrew Brasher:

Katie Wood is a transgender woman who teaches at a public high school in Florida. Two years ago, the state enacted Fla. Stat. § 1000.071(3), which, as applied to Wood, prohibits her from using the honorific "Ms." and the gendered pronouns "she," "her," and "hers" in exchanges with students during class time. Wood sued to enjoin the enforcement of § 1000.071(3) against her. The district court granted Wood a preliminary injunction, finding it substantially likely that the law violates her First Amendment right to free speech.

We disagree. Because we hold that Wood hasn't shown a substantial likelihood that § 1000.071(3) infringes her free-speech rights, we vacate the preliminary injunction and remand the case to the district court for proceedings consistent with this opinion….

Katie Wood teaches algebra at a public high school in Florida. Wood was born a biological male but now identifies as a woman. After transitioning in 2020, Wood began using the honorific "Ms." and the gendered pronouns "she," "her," and "hers." Importantly for present purposes, she wrote "Ms. Wood" and "she/her" on her classroom whiteboard and syllabi, she identified herself as "Ms. Wood" in her communications with students, and she wore a pin that said "she/her." Then, in 2023, Florida enacted Fla. Stat. § 1000.071, which states, in pertinent part, that "[a]n employee or contractor of a public K-12 educational institution may not provide to a student his or her preferred personal title or pronouns if such preferred personal title or pronouns do not correspond to his or her sex." …

We begin—and find that we can end—with the question whether Wood has shown a likelihood of success on the merits of her First Amendment challenge. As relevant here, the First Amendment (as incorporated through the Fourteenth) prohibits state legislatures from "mak[ing any] law … abridging the freedom of speech." The First Amendment's protections extend to public-school teachers and students, "neither of whom shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

But a teacher's right to speak is not without limits. One reason is that "[i]n addition to being [a] private citizen[ ]," a teacher is "also [a] government employee[ ] paid in part to speak on the government's behalf and convey its intended messages."

To resolve the private-citizen/government-employee tension, we employ a two-step framework grounded in the Supreme Court's decisions in Pickering v. Board of Education (1968), and Garcetti v. Ceballos (2006). At step one, the employee must show that in expressing herself she is (or was) speaking both (a) as a citizen—rather than in her capacity as a government employee—(b) about a matter of public—rather than private—concern. If the employee survives step one, she must then demonstrate, at step two, that her interest in speaking outweighs the state's interests in promoting the efficient delivery of public services.

Wood's case, we conclude, founders on the first prong of step one: She cannot show, with respect to the expression at issue here, that she was speaking as a private citizen rather than a government employee….

Needless to say, before we can decide whether Wood spoke as a private citizen or a government employee, we must first identify exactly what speech her suit covers. Wood's challenge is limited in two important respects. First, the statute at issue prohibits Wood only from "provid[ing] to a student" her preferred title and pronouns while she is "acting within the scope of [her] employment duties." And second, Wood's suit, by her own admission, challenges only the statute's application to her speech "in the classroom."

Accordingly, we deal here with only a narrow swath of expression: Wood disputes the state's authority to prevent her from using her preferred honorific and pronouns—by verbally stating them, writing them on her whiteboard and syllabi, and wearing a "she/her" pin—when she (1) is interacting with students (2) in the classroom and (3) within the scope of her employment duties. So, for instance, we needn't—and don't—consider whether Wood has a First Amendment right to use gendered identifiers or don a "she/her" pin when conversing with colleagues in the faculty lounge, or, for that matter, even whether she has a right to do those things in her classroom after the students have departed for the day….

Given the statute's relatively limited sweep and, even more so, the narrowness of Wood's challenge, this is, we think, a straightforward case. When a public-school teacher addresses her students within the four walls of a classroom—whether orally or in writing—she is unquestionably acting "pursuant to [her] official duties." Interacting with students during class time, quite literally, is a teacher's "official dut[y]." … "[T]he school system does not 'regulate' teachers' speech as much as it hires that speech" ….

Seeking to avoid this conclusion, our dissenting colleague conflates a teacher's "official duties" with "curricular" instruction—and contends, in particular, that while the state can validly regulate a teacher's in-class curricular speech, it may not regulate her noncurricular speech. To be sure, as the dissent correctly notes, the relevant caselaw—both our own and our sister circuits'—expressly permits government regulation of a teacher's curricular speech. But the inverse—that the First Amendment forbids regulation of a teacher's in-class noncurricular speech—doesn't follow. And so far as we can tell, there's no binding (or even persuasive) precedent to suggest that it does….

{The lone authority the dissent manages to muster for the proposition that the First Amendment forbids government regulation of a teacher's in-class noncurricular speech is Judge Luttig's solo concurring opinion in Boring v. Buncombe County Board of Education (4th Cir. 1998) (en banc), in which he asserted, without citation, that in the "context of teacher in-class noncurricular speech, the teacher assuredly enjoys some First Amendment protection." Judge Luttig was an exceptional jurist, but not even he could get away with asking adverbs to stand in for authority.} …

Judge Adalberto Jordan dissented:

Justice Robert Jackson wrote during World War II that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." W. Va. State Bd. of Educ. v. Barnette (1943). That venerable principle has stood the test of time. Florida, however, has recently come to believe that the First Amendment does not prevent it from dictating what can and cannot be said….

The "First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." The first step in evaluating the First Amendment claim here is figuring out whether Ms. Wood's use of her preferred personal title and pronouns in the classroom constitutes the private speech of a citizen on a matter of public concern….

The initial question is whether the speech in question "owes its existence to [Ms. Wood's] professional responsibilities." For a number of reasons, it does not.

[1]. The statute at issue here does not target titles conferred by a school or pronouns bestowed by the government. It prohibits (emphasis mine) the use of "preferred personal title or pronouns if such preferred personal title or pronouns do not correspond to that person's sex." That distinction is important, for we have held that

the exception to First Amendment protection in Garcetti for 'speech that owes its existence to a public employee's professional responsibilities,' must be read narrowly to encompass speech that an employee made in accordance with or in furtherance of the ordinary responsibilities of her employment, not merely speech that concerns the ordinary responsibilities of her employment.

The preferred personal title and pronouns of a teacher are, like her name, significant markers of individual identity. They exist outside of, and do not depend on, the school or the government for their existence. Stated differently, Ms. Wood would still have her own preferred personal title and pronouns, and would still use them to identify herself to others, even if she was not a public school teacher.

The personal title that Ms. Wood prefers and uses is especially linked to her individual identity because it is part of her name; she will be referred to by her title and last name by her students every day. In today's parlance, students refer to their teachers as "Mr./Ms./Mrs./Miss" followed by the teachers' last names, and Florida has essentially mandated that Ms. Wood go by a different name before her students than when she clocks out for the day…

[2]. The majority concludes that Ms. Wood's use of her preferred personal title and pronouns in the classroom constitutes government speech, i.e., the speech of Florida as a state. I think the majority is mistaken.

"[R]egulated speech is typically private speech, not government speech." To determine whether an utterance is private speech or government speech, "we conduct a holistic inquiry designed to determine whether the government intends to speak for itself or to regulate private expression." That "review is not mechanical; it is driven by a case's context rather than the rote application of rigid factors." We look to "several types of evidence to guide the analysis, including: the history of the expression at issue; the public's likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression." … [A] teacher's preferred personal title and pronouns simply do not bear any of the characteristics of government speech. Personal titles and pronouns have not traditionally been used to convey a government message; there is no evidence that the public associates them with the government; and they are not manufactured, owned, or designed by the government.

[3]. According to the majority, the use by public school teachers of their preferred personal titles and pronouns in the classroom is government speech because they are used during class time and because schools pay teachers to speak in class. But not every word uttered by a teacher in the classroom is the speech of the government….

[4]. We have said that the government has "some authority over the conduct of teachers in and out of the classroom that significantly bears on the curriculum." In reviewing the First Amendment claims of public school teachers, some of our sister circuits have similarly focused on whether the speech in question was "curricular" in nature. There is an "elementary difference between teacher in-class speech which is curricular, and teacher in-class speech which is noncurricular … In the latter context of teacher in-class noncurricular speech, the teacher assuredly enjoys some First Amendment protection. In the former context of teacher in-class curricular speech, the teacher equally assuredly does not." Boring v. Buncome Cnty. Bd. of Educ. (4th Cir. 1998) (en banc) (Luttig, J., concurring)….

[5]. Although the government speech doctrine is "important" and "essential," it cannot be applied too broadly because it is "susceptible to dangerous misuse." Why? Because "if private speech could be passed off as government speech by simply affixing a government seal of approval, [the] government could silence or muffle the expression of disfavored participants."

That danger exists here in spades. Through § 1000.071(3), Florida has used "speech acts to instate a sexual binary that privileges the expressive rights of its adherents over those whose identity calls that binary into question." The statute is not only a content-based restriction, but a viewpoint-based prohibition that is "presumed to be unconstitutional." "By limiting … restrictions to a list of ideas designated as offensive, the [statute] targets speech based on its content. And by targeting only speech that endorses any of those ideas, it penalizes certain viewpoints—the greatest First Amendment sin." …

Bryan Weir, Daniel Shapiro, and Daniel M. Vitagliano (Consovoy McCarthy, PLLC) represent the Department.

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[Ilya Somin] Federal Court Rules Against Trump's "Invasion" Executive Order

[But, notably, the court chose not to rule on the issue of what qualifies as an "invasion."]

AI-generated image.

Today, in Refugee and Immigrant Center for Legal and Educational Services v. Noem, US District Court Judge Randolph Moss issued an important decision blocking Donald Trump's January 20 "invasion" executive proclamation, which sought to foreclose nearly all pathways to legal migration and asylum applications for migrants crossing the southern border. Trump claimed the order is authorized by both federal statutes and the Guarantee Clause of Article IV, Section 4 of the Constitution, which states: "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion."

Judge Moss rejects both grounds for the order, in a long and detailed 128-page ruling. Interestingly, however, he rejects the administration's constitutional argument without defining what qualifies as an "invasion." Here is his summary of the decision:

For the reasons that follow, the Court concludes that neither the INA [statute] nor the Constitution grants the President or the Agency Defendants authority to replace the comprehensive rules and procedures set forth in the INA and the governing regulations with an extra-statutory, extra-regulatory regime for repatriating or removing individuals from the United States, without an opportunity to apply for asylum or withholding of removal and without complying with the regulations governing CAT protection. The Court recognizes that the Executive Branch faces enormous challenges in preventing and deterring unlawful entry into the United States and in adjudicating the overwhelming backlog of asylum claims of those who have entered the country. But the INA, by its terms, provides the sole and exclusive means for removing people already present in the country, and, as the Department of Justice correctly concluded less than nine months ago, neither § 1182(f) nor § 1185(a) provides the President with the unilateral authority to limit the rights of aliens present in the United States to apply for asylum. Nor can Article II's Vesting Clause or Article IV's Invasion Clause be read to grant the President or his delegees authority to adopt an alternative immigration system, which supplants the statutes that Congress has enacted and the regulations that the responsible agencies have promulgated. As the Framers understood, "every breach of the fundamental laws," even when "dictated by necessity," undermines respect for the rule of law and "forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent or palpable." The Federalist No. 25, at 167 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Here, nothing in the INA or the Constitution grants the President or his delegees the sweeping authority asserted in the Proclamation and implementing guidance.

On the constitutional argument regarding "invasion," Judge Moss chose not to address the issue of what qualifies as an "invasion," instead ruling that the Guarantee Clause doesn't grant the president any relevant independent authority:

Defendants' reliance on the Constitution's guarantee that the "United States . . . shall
protect each [state] against Invasion," U.S. Const., art. IV, § 4 (the "Invasion Clause"), fails for the same reasons. Defendants themselves place little or no independent reliance on the Invasion Clause and, instead, merely suggest that the President plays some role in protecting the States "against Invasion…." even assuming that is correct, Defendants do not dispute that Congress plays the primary role in crafting the governing rules and that, under the Youngstown framework, see Youngstown, 343 U.S. at 637–38 (Jackson, J., concurring), the President may not act in derogation of the laws that Congress has enacted. Although relevant precedent is sparse, the Supreme Court has opined that the responsibility for "carry[ing] into effect" the Guarantee Clause "is primarily a legislative power," Texas v. White, 74 U.S. 700, 701 (1868), overruled on other grounds by Morgan v. United States, 113 U.S. 476 (1885), and that it "rest[s] with Congress . . . to determine . . . the means proper to be adopted to fulfill th[e] guarantee" against "domestic violence," Luther v. Borden, 48 U.S. 1, 43 (1849). There is no reason to believe that the Invasion Clause, which appears in the very same sentence of Article IV as these provisions, allocates responsibility any differently. That conclusion finds further support in Article I of the Constitution, moreover, which grants Congress the power to "provide for calling forth the Militia to . . . repel Invasions," U.S. Const., art. I, § 8, cl. 15, leaving little doubt that responsibility under the Invasion Clause is, at the very least, shared between the political branches. Finally, it is far from clear that the Invasion Clause confers any power to act that is not found elsewhere in Articles I and II of the Constitution. Unlike Article IV, Section 4, which speaks in terms of the responsibility of "[t]he United States" to protect the States, Articles I and II speak in terms of the "Power[s]" vested in the Congress and the President to perform their constitutional responsibilities…. If the President lacks authority under the Vesting Clause of Article II to supplant the INA with an alternative set of immigration laws, that power cannot be found in Article IV, Section 4.

I think this is correct as far as immigration policy goes. The president cannot override congressional mandates and impose his own new migration policies merely by proclaiming the existence of an "invasion." An invasion does not give the president blanket authority to impose new immigration restrictions.

But I am skeptical of the idea that the Invasion Clause component of the Guarantee Clause never gives the president any independent authority. In the event of a genuine "invasion" - i.e., an organized military attack - the president would surely have at least some authority to respond, even in the absence of specific congressional authorization. In that situation, the Invasion Clause reinforces his powers as Commander-in-Chief of the armed forces.

For that reason, I think the better approach to this issue would be to rule that illegal migration and cross-border drug smuggling do not qualify as an "invasion." Rather, as James Madison wrote in addressing this very issue,  in his Report of 1800, an "[i]nvasion is an operation of war." I address the meaning of "invasion" in much greater detail here and here.

The rest of Judge Moss's long and detailed opinion addresses the statutory issues, and explains why he is granting a class certification, among other things. I will not attempt to go over these issues in detail here. But his general conclusion strikes me as correct. No statute gives the president the "authority to adopt an alternative immigration system, which supplants the statutes that Congress has enacted."

It is also notable that Judge Moss emphasizes that immigration restriction is primarily a congressional power, not an executive one. I agree on that, as well, assuming the power belongs to the federal government at all (which, under the original meaning of the Constitution,  it mostly does not). That principle lends support to a possible nondelegation challenge to Trump's massive new travel ban order.

This case should be distinguished from ongoing litigation over Trump's invocation of the Alien Enemies Act of 1798, which also involves the meaning of "invasion," among other issues. On that, see my recent amicus brief, on behalf of the Brennan Center, Cato Institute, Prof. John Dehn, and myself (coauthored with Katherine Yon Ebright and Leah Tulin).

Obviously, this litigation will continue on appeal.

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[Eugene Volokh] Federal Judge Sues for Libel, Court Calls (Some) Arguments on His Side "Frivolous" and "Absurd"

The decision, by Judge Roy Altman (S.D. Fla.) is Monday's Block v. Matesic; for more on the plaintiff judge (Judge Frederick Block (E.D.N.Y.)), see this N.Y. Times article, also from Monday.

The original libel claim has to do with the plaintiff judge's battles related to his Florida condominium association board, of all things. A few excerpts, from the discussion of plaintiff's arguments that defendant must have known that the statements about plaintiff were false or at least likely false (the so-called "actual malice" test):

[1.]

[W]e use "Florida's substantive law" to determine whether the words of the December 18 Email are competent evidence of express malice. As it happens, they aren't.

Block says that the "letter itself evinces ill-will" because the Defendants referred to him as "disgruntled" and said that he was "regurgitating" certain information. This "utterly gratuitous" language, Block says, reveals that "the publication's true, primary intent was to discredit [Block's] analysis and defame him by way of retribution." Filling in the gaps for Block, the reasoning seems to be that the Defendants' words show their ill intent towards him, and that ill intent (he seems to be saying) evinces their actual malice. Block doesn't argue—nor could he—that the words "disgruntled" and "regurgitate" in any way demonstrate the Defendants' knowledge of the falsity of their statement. We therefore take him to be arguing that the Defendants' word choice shows that the Defendants intended the defamatory implication of the December 18 Email.

Unfortunately for Block, his argument is absurd. As we noted, "disgruntled" means "unhappy and annoyed." Was Block disgruntled? Yes—obviously. And to "regurgitate" means "to throw or pour back or out from or as if from a cavity." "Typically," it refers to something— say, information—that has "been taken in, at least partially digested, and then spit back out." We don't think that "regurgitate" connotes something strictly negative, but Block's argument isn't more persuasive even when we infer (as we must) that the Defendants meant it disparagingly. "Strong, angry, or intemperate words do not alone show express malice." Under Florida law, "words themselves" inherently "demonstrate express malice" only when they are "so extreme."

Obviously, to satisfy a standard that regards mere garden-variety "extreme" words as insufficient, the words must be genuinely incendiary [citing cases which did involve incendiary language -EV] …. "Disgruntled" and "regurgitated" pale in comparison. And Block doesn't cite a single case in which any court treated such anodyne words as evidence of express (let alone actual) malice. In fact, faced with much nastier statements, the cases do the opposite.

[2.]

Block also suggests that "[t]he ongoing Tower One controversy" itself "furnishes proof of malice" because a "jury [could] conclude … that Block's detailed critique had embarrassed the[ ] [Defendants], and that they wished to strike back at him." In other words, Block is offering his own email as "evidence" of the state of mind with which the Defendants sent the December 18 Email. This "argument" is frivolous on its face, and we won't deign to address it further.

[3.]

Block doesn't offer any argument (or cite a single case) to explain why the inherent implausibility of an implication is entitled to any particular weight, and we won't fill in that gap for him.

Judge Altman has some choice words for the defendants as well, e.g.:

The Defendants attack Block's testimony as "self-serving"—bizarre, given that this testimony helps them—but mercifully avoid further self-defeating arguments….

[W]e agree that it's ridiculous to think that Block is a hacker and said as much when we disposed of the Defendants' first motion to dismiss…

[Defendant] assumed the burden of proving special damages at summary judgment when he alleged (in our view, absurdly) that Block's 2023 Text Messages defamed him….

Matesic hasn't found a single case (nor have we) suggesting that any of these statements could reasonably be construed as malicious. And he's adduced no evidence—not from any expert, Tower One resident, or even from his own Board—for his view that these statements demonstrated "express malice."

Both the plaintiff's defamation claim and the defendants' defamation counterclaims end up getting dismissed.

 

 

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[Orin S. Kerr] Do Arrest Warrants Have a Diligence Requirement?

[ Tracing the doctrine back.]

The Fourth Circuit recently handed down a ruling, United States v. Ordonez-Zometa, that raised a really interesting question: Does the Fourth Amendment require officers to exercise diligence in executing an arrest warrant?  That is, if there's an arrest warrant out for a person, are officers required to make the arrest when they can, or soon after that?  And if they can delay making the arrest, how long a delay is allowed?

What makes this particularly interesting to me is that I went in thinking there was no such diligence requirement; the Fourth Circuit said there is such a requirement; but when I looked back into the history of the caselaw, I tended to think the Fourth Circuit's diligence requirement may just be a vestige of long-overturned caselaw that no one realized is now obsolete.

Here are the details, for the law nerds interested in the puzzle to be solved here.

In the new ruling, officers obtained an arrest warrant for Ordonez-Zomet in a homicide investigation.  The next day, they executed the arrest while he was in a car, leading to a seizure and search of the car and evidence.  As I understand the claim, Ordonez-Zometa is arguing that it was a Fourth Amendment violation for the officers to wait until Ordonez-Zometa was in a car to carry out the arrest warrant.  That was problematic, the notion seems to be, because it gave officers the power to seize and later search the car under the search incident to arrest exception.

In an opinion by Judge King, the Fourth Circuit started off by saying yes, there is a diligence requirement, but that it was not violated here:

The record demonstrates that the district court did not err in denying his suppression motion on the basis of undue delay. To be sure, police officers should act with diligence in the execution of an arrest warrant. See United States v. Weaver, 384 F.2d 879, 880 (4th Cir. 1967). And, here, they did just that: The warrant for Ordonez-Zometa's arrest was issued at 7:12 p.m. on March 12, 2019, and it was executed less than 24 hours later — at 6:50 p.m. on March 13, 2019. See J.A. 110, 1920. That should end the inquiry. Cf. Weaver, 384 F.2d at 880-81 (upholding execution of an arrest warrant after a delay of more than two weeks).

Further, the court adds, you can't really evaluate the reasons for undue delay because modern Fourth Amendment law doesn't usually allow an inquiry into an officer's subjective thoughts:

In this appeal, Ordonez-Zometa urges our Court to look past the objective facts to examine and second-guess the officers' decision-making — specifically, why the officers chose to execute the arrest warrant when and where they did so. But this proposition runs headlong into the well-settled principle of Fourth Amendment law of objective reasonableness. This Court does not, and should not, inquire into the strategic motivations of arresting officers. See Ashcroft v. al-Kidd, 563 U.S. 731, 736-37 (2011); see also Brigham City, 547 U.S. at 404.

To be sure, we have cautioned against law enforcement intentionally withholding the execution of an arrest warrant in hopes of gaining access to a location they could not otherwise search. See Weaver, 384 F.2d at 880. But that principle does not license us to disregard the rule that a Fourth Amendment analysis does not turn on the subjective motives of the officers involved. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 764 (2005) (recognizing discretion police possess in deciding when and how to execute warrants). Indeed, the courts have "almost uniformly rejected invitations to probe subjective intent." See al-Kidd, 563 U.S. at 737 (internal quotation marks omitted). And for good reason: "the Fourth Amendment regulates conduct rather than thoughts." Id. at 736 (citing Bond v. United States, 529 U.S. 334, 338 n.2 (2000)).

I found this discussion fascinating because I'd generally been of the understanding that there is no diligence requirement for arrest warrants. As I have thought of it, arrest warrants do two things.  First, they establish probable cause that justifies an arrest, negating the need for a post-arrest hearing into probable cause that would otherwise be needed promptly, under Gerstein v. Pugh.  And second, they permit entry into a person's home to arrest them when there is reason to believe the person is home, under Payton v. New York. But arrests generally don't require warrants.  So I've been of the impression that there's no constitutional duty to carry out an arrest when an officer has the opportunity to do so.  Officers can do that, but they don't need to.

I was curious: Where did this apparent requirement come from?

The Fourth Circuit cites only one case: United States v. Weaver, 384 F.2d 879 (4th Cir. 1967), which was indeed pretty confident about the point.  Weaver said:

Police officials are required to use diligence in the execution of arrest warrants. They may not hold one unexecuted for an unreasonable period of time in the hope that they may ultimately find the defendant in a house or other building which they would like to search, but which they could not lawfully search except as an incident of a lawful arrest. Agents are not required to neglect all other investigatory and enforcement activity in order to execute every arrest warrant, however, and sixteen days' delay in executing an arrest warrant upon one whose residential address was not definitely known is far from unreasonable on its face. Moreover, such agents are entitled to proceed with some circumspection, so that the fact of their search for a defendant is not disclosed to him at a time when he may flee successfully.

Okay, but where did Weaver get that?  In Weaver, Judge Haynsworth adds three footnotes with a string of citations—no pin cites, no parentheticals, no nothing.  Just cites.  Here are the cites:

 Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Lefkowitz, 285 U.S. 452, 52 S. Ct. 420, 76 L.Ed. 877; Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Gilbert v. United States, 9 Cir., 291 F.2d 586; Taglavore v. United States, 9 Cir., 291 F.2d 262.

 See United States v. Wilson, 2 Cir., 342 F.2d 782; United States v. Simmons, 2 Cir., 338 F.2d 804; Carlo v. United States, 2 Cir., 286 F.2d 841; United States v. Joines, 3 Cir., 258 F.2d 471; Seymour v. United States, 85 U.S.App. D.C. 366, 177 F.2d 732.

 Cf. United States v. Santiago, 2 Cir., 327 F.2d 573.

I read the cases cited, and here's the interesting upshot:  My sense is that these cases reflect a set of assumptions that the modern Supreme Court has rejected.

It turns out that, in the 1930s, the Supreme Court used to care a lot about the subjective intent of officers when they executed searches and seizures.  One such subjective rule was announced by the Supreme Court in 1932 in United States v. Lefkowitz: "An arrest may not be used as a pretext to search for evidence."

Some background is needed here. In Lefkowitz, officers went to carry out an arrest warrant for Lefkowitz for Prohibition offenses in his office and then ransacked his entire office, taking away lots of documents as evidence of the crime.  The Supreme Court held that searching the office exceeded the search incident to arrest doctrine.

A key problem in Lefkowitz was that, under Gouled v. United States (1921), the government had no power to get search warrants for mere evidence like those documents.  The Justices saw what happened in Lefkowitz as a way to get around the limits of the mere evidence rule of Gouled.  Think about it: The government was trying to use an arrest warrant to search incident to arrest, and searching for things that a search warrant would not itself allow! You can't do that, Lefkowitz ruled: You can't use an arrest as a pretext to search for mere evidence.

The Lefkowitz pretext rule created a subjective test.  To know if mere evidence could be seized as part of a search incident to arrest, you had to ask if the arrest itself was a pretextual effort to get to the mere evidence.  In other words, was the government arresting the person to arrest them, or where they arresting the person to gather mere evidence of crime that would be found in a search incident to arrest?

Now at this point you're probably wondering: Okay, Kerr, what the heck does this have to do with the diligence requirement?

What seems to have happened is that delay in carrying out an arrest warrant was considered evidence that the officers were using an arrest warrant as a pretext to search for mere evidence.  If officers were waiting, the thinking ran, they were waiting until they could line up a search incident to arrest that could get to the mere evidence they wanted.  And so you get cases like Judge Medina's opinion in Carlo v. United States, 286 F.2d 841(2d Cir. 1961), where he would explain the doctrine as follows:

Law enforcement officers have a right to wait in the hope that they may strengthen their case by ferreting out further evidence or discovering and identifying confederates and collaborators. But every time there is delay in the making of the arrest and there is a search made as incidental to the arrest, the law enforcement officers take the risk that they will be charged with using the arrest as a mere pretext for the search. See United States v. Lefkowitz, 1932, 285 U.S. 452, 467, 52 S.Ct. 420, 76 L.Ed. 877; Henderson v. United States, 4 Cir., 1926, 12 F.2d 528, 51 A.L. R. 420; Worthington v. United States, 6 Cir., 1948, 166 F.2d 557, 566; Clifton v. United States, 4 Cir., 1955, 224 F.2d 329, 330; United States v. McCunn, D.C. S.D.N.Y., 1930, 40 F.2d 295, 296; United States v. Chodak, D.C.D.Md.1946, 68 F. Supp. 455. In other words, the delay in making the arrest is one of the factors to be taken into consideration when the time comes for a judicial determination of the question of whether or not the search was "reasonable." The mere fact that the arrest was not unlawful does not give law enforcement officers carte blanche to rummage about at will in any home or other place where an arrest is made and then seek to justify their conduct by a blanket statement that the "search" made by them was incidental to an arrest. All the attendant circumstances, including the delay in making the arrest and the reasons for such delay must be taken into consideration.

Note what happened. Lefkowitz in 1932 led to Carlo in 1961, which in turn was the basis for Weaver in 1967 which then led to Ordonez-Zometa in 2025.

But something here was lost.  Weaver missed that, a few months earlier, the Supreme Court had eliminated the doctrinal premise of Lefkowitz in Warden v. Hayden by overturning the mere evidence rule on which Lefkowitz was based.  After Warden v. Hayden, a search warrant can be obtained for mere evidence.  And that means that Lefkowitz's pretext rule no longer makes sense; there is no limit that requires a rule to police the limit anymore.

Plus, as Fourth Amendment nerds will know, the modern Supreme Court tends to reject subjective pretext tests in search and seizure cases.  As I have written at length, I think there's still a lot of subjectivity in Fourth Amendment law.  But the doctrine is a lot more objective than it used to be, making the Lefkowitz pretext rule especially out of place.

If I'm right about this, the notion that there is a diligence requirement for arrest warrants is a historical anachronism.  It's a vestige of a Fourth Amendment world that no longer exists, mostly reflecting the lost world of Lefkowitz and its concerns about protecting the mere evidence rule.

I say "mostly" because there is a bit more history to the idea of a diligence requirement.  You'll see occasional mentions in pre-Lefkowitz cases of the preference to act on arrest warrants without too much delay.  But my sense is that this may be another historical anachronism.

A brief aside. Fourth Amendment nerds may remember my November 2024 post, Why Do Search Warrants "Command" that Searches Occur?, the upshot of which was that warrants say that they command that the officer execute the search as a vestige of the era of private prosecution and private investigation.  At common law, it was typically the victim who had obtained the search warrant and then needed the constable to execute it.  Warrants had to order the constable to execute the warrant because the constable had no particular incentive to do it otherwise.

My sense is that something similar explains the occasional early statements about not delaying too much in executing arrest warrants.  In an era of private investigation and private prosecution, the victim would go to the court to get the arrest warrant.  They then needed the constable to make the arrest.  Unlike a search warrant, though, the arrest warrant couldn't be carried out at a known and predictable place. The constable might have no idea where the person to be arrested was located.  But the victim needed the constable to carry out the warrant for the victim, which made it useful for courts to sometimes suggest that constables shouldn't just ignore the warrant.  Basically, it wasn't the constable's case, but the constable shouldn't just ignore the warrant and give the victim no way to make the arrest. (Private parties could make arrests, too—what we now know as "citizen's arrest"—but the rules were somewhat stricter.). But as far as I can tell, there was no formal requirement of diligence as a matter of search and seizure law.

That's my sense of things, at least.

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[Eugene Volokh] Lawsuit Against Google for Accurately Reporting Negative Stories About Plaintiff Dismissed

[Plaintiff claimed that the search results violated his "right of publicity," and also that the output was defamatory because it "uses a 'negative algorithm' that promotes negative stories about Garmon while suppressing positive stories about him—or, at least, pushing the positive stories down the list of search results."]

From Judge Corey Maze (N.D. Ala.) yesterday in Garmon v. Google LLC (note that, though plaintiff is pro se, he is a lawyer, and indeed had represented Senate candidate and former Alabama Supreme Court Justice Roy Moore):

Trenton Garmon filed his third complaint against Google LLC and asks the court to enjoin Google and award him $8 billion….

Google, as likely all readers know, is an internet search engine…. If you … type "Trenton Garmon" into Google's search bar, you will receive images, links, and articles about the plaintiff. According to Garmon, this shows Google's unauthorized use of his indicia that is both defamatory and violates Alabama privacy laws. So Garmon sued Google. The court dismissed Garmon's first amended complaint for failing to state a claim and gave Garmon a chance to refile and fix his pleading deficiencies. Garmon has since filed a third amended complaint, which Google moves to dismiss with prejudice….

Garmon alleges … that Google violated Alabama's Right of Publicity Statute …:

[A]ny person or entity who uses or causes the use of the indicia of identity of a person, on or in products, goods, merchandise, or services entered into commerce in this state, or for purposes of advertising or selling, or soliciting purchases of, products, goods, merchandise, or services, or for purposes of fundraising or solicitation of donations, or for false endorsement, without consent shall be liable under this article to that person, or to a holder of that person's rights

By its plain text, the ARPS only prohibits commercial use of a person's "indicia of identity" without his consent in one of four ways:

Using someone's identity "on or in products, goods, merchandise, or services entered into commerce in [Alabama]";Using someone's identity for "advertising or selling, or soliciting purchases of, products, goods, merchandise, or services";Using someone's identity for "fundraising or solicitation of donations"; or,Using someone's identity for "false endorsement."

While Garmon alleges facts that would prove he did not consent to Google using his name or image, Garmon doesn't allege facts that would prove Google did so for one of the four commercial reasons enumerated in the statute. So Garmon fails to plead facts that would result in a viable claim. See Reg'l Prime Television v. South (Ala. 2024) (reversing trial court's denial of television network's motion for a judgment of law when plaintiff failed to offer evidence that television show used her deceased husband's identity "for the purposes of trade" as required for a claim under the ARPS)…. Because Garmon fails to plead a viable claim, the court does not address Google's alternative arguments that Garmon's claim is time-barred or would violate the First Amendment….

Garmon next accuses Google of the state common-law torts of defamation and defamation per quod. In short, Garmon alleges that Google uses a "negative algorithm" that promotes negative stories about Garmon while suppressing positive stories about him—or, at least, pushing the positive stories down the list of search results.

As the court previously explained, while Garmon might prove Google highlighted pictures and stories that shed a negative light on him, defamation claims require falsity: "Garmon does not plead facts that would prove the articles are false—a necessary element of defamation." But Garmon again fails to allege that Google published any false facts about him….

In his last count, Garmon asks the court to order Google to remove all pictures and mentions of Garmon and enjoin Google from continued use of his indicia of identity…. Because the court must dismiss Garmon's substantive counts for failure to state a viable claim, the court must again DENY his request for injunctive relief tied to those counts….

You can also read an earlier decision in the case; if you're interested in Garmon's arguments, you can see his Complaint and his arguments responding to the motion to dismiss. Eric P. Schroeder (Bryant, Cave, Leighton, Paisner, LLP) and James P. Pewitt (James P. Pewitt LLC) represent Google.

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[Eugene Volokh] Wisconsin Court Had Ordered Ex-Wife Not to Make "Disparaging Remarks … About the Other Party, Attorneys, or … Employees of the Court"

From Wisconsin Court of Appeals Judge Lazar's decision April 30 in Reeves v. Reeves:

Moondette and Timothy were divorced on November 29, 2023, after four years of marriage. Moondette was ordered to pay Timothy a total of $24,209.54, which included reimbursements and attorney's fees related to earlier contempt findings as well as an equalization payment, by January 3, 2024. On January 31, Timothy sought an order to show cause why Moondette should not be found in contempt, alleging that she had paid nothing….

At a March 21, 2024 hearing Moondette argued that her failure to pay was not contemptuous because it was not willful, asserting that she did not have the financial means to comply with the order…. The circuit court did "not find [Moondette] credible at all," stating its impression was that she was "telling [the court] whatever is convenient[ ]" rather than being truthful. Noting contradictions in her testimony regarding her income, her "unreal" decision to spend on things like a car payment for her eighteen-year-old daughter rather than "taking care of [her] obligations," and her admission that she could afford up to $500 per month but had paid nothing, the court concluded that Moondette had "willfully and intentionally violated the court orders." It held her in contempt and imposed a penalty of 120 days in jail if Moondette failed to comply with the purge condition of making monthly payments of $900 on her debt to Timothy.

After the circuit court set that condition, Timothy's counsel brought up another issue, stating:

And there's not an existing motion on this and I briefly mentioned it to counsel. But I can tell the Court what my client was looking to have addressed is that there continues to be a lot of social media posts from [Moondette] about my client, about this process, [and] about the judges that have handled this case.

After counsel confirmed that these alleged posts were "[a]bout the courts as well," the court imposed an additional purge condition:

Here's the other condition that we're going to put into this purge condition, is that there will be … no dissemination to a third party about and disparaging remarks about the – – either party in this action, any attorney involved in this action, any court employee including the prior court judge or myself, in any social media or anything to a third party. If he has so much as a post that he has a screen shot of and he brings it back, that will be considered a violation, even if you continue to pay.

The circuit court signed an order memorializing these purge conditions on April 18. The condition related to Moondette's speech was written as follows:

There shall be no dissemination or disparaging remarks on social media or to any third party about the other party, attorneys, or past and present employees of the court….

Setting aside the issue of whether this broad order could survive scrutiny under the First Amendment—on its face, it would prohibit Moondette from saying anything negative about her ex-husband, any attorney involved in the case, and any court official to any third party, even a friend or therapist, for example—this court concludes that it must be reversed for the simple reason that, as Moondette asserts, it is not arguably related to the conduct for which Moondette was held in contempt.

Under our supreme court's holding in Larsen, a purge condition "should be reasonably related to the cause or nature of the contempt." The circuit court did not explain how this condition prohibiting disparaging remarks related to Moondette's failure to make court-ordered payments to Timothy, which was the conduct that led to its finding of contempt.

In defending the condition on appeal, Timothy only vaguely argues that "Moondette refusing to comply with orders and cooperate with the process is the very root of the problem" such that "[a]dding a purge condition to restrict the disparaging remarks and to protect the court and the people involved is reasonably related to the cause of contempt." This court does not see the connection and concludes that there is insufficient nexus between the purge condition and the contemptuous conduct….

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[David Bernstein] Some Dubious Reasoning in Judge Gerard McHugh's Haverford Opinion

Eugene blogged earlier today about Judge Gerard McHugh's opinion dismissing a hostile environment complaint by Jewish students against Haverford College. I have not read the complaint, and I'm not going to take issue with Judge McHugh's ruling--I tend to think that the strongest case Jewish students typically have is disparate treatment, not hostile environment, in part for the First Amendment reasons Judge McHugh identifies--but I did find some of his reasoning rather dubious, to wit:

(1) Plaintiffs also discuss assorted social media posts made by Haverford Professors Gina Velasco, Guangtian Ha, and Tarik Aougab on their personal social media accounts. Id. ¶¶ 49, 51, 54-57. These posts all disparage those who continue to support Israel, but vary in tone, taste, and conviction. Id. I begin with the observation the social media posts are leveled at the state of Israel, not people of Jewish descent.

Well, no. If social media posts by professors are disparaging supporters of Israel, those posts are disparaging individuals, not the state of Israel. On northeastern liberal arts campuses like Haverford, the most vocal supporters of Israel will be predominately, perhaps exclusively, Jewish students. Professors nevertheless have a right to criticize people, including Jewish people, for supporting Israel. However, there is a point where such criticism can be of a nature where the professor may be justly suspected of being unwilling to treat some of his or her students fairly. (Imagine a professor who says, for example, "I will take any opportunity I can to take revenge on any Zionists I come across.") At that point, the university may have a duty to step in.

(2) At a meeting with Jewish community leaders to discuss the campus climate, Vice President Young also reportedly said that "Jewish students needed to condemn 'genocide' rather than report[] antisemitism." At a similar meeting with Jewish community leaders, Plaintiffs also aver that Dean McKnight posited that attacks against Jews who are committed to Israel are categorically different from attacks against other minorities. Plaintiffs finally contend that at a Chabad-hosted event, President Raymond stated that on October 7th, she saw "peaceful people" breaking free from their chains.

As a preliminary matter, none of these statements embrace Hamas. Plaintiffs can reasonably characterize them as focusing on the suffering of Palestinians without showing similar concern for the losses inflicted by Hamas or for the surge of antisemitic incidents making headlines. As a matter of campus leadership, there may be ample basis for criticism if such statements were made, but the statements remain pure speech about matters of public concern.

My first objection is that Vice President Young has an obligation to enforce Title VI, and at least some manifestations of antisemitism are violations of Title VI. For a university VP to be telling Jewish leaders that students shouldn't be reporting antisemitism, period, seems to strongly suggest that VP Young is discouraging students from reporting potential Title VI violations, and also that Young will not enforce Title VI when it comes to antisemitism. Imagine, for example, a Swarthmore VP telling black community leaders that instead of African American students reporting racism on campus, they should be condemning genocide in South Sudan.

Second, while McKnight is entitled to his opinion that attacking Jews who support Israel is categorically different than attacking members of other minority groups, the dean also has Title VI obligations. Imagine Dean McKnight saying "attacking women who support abortion/black students who support affirmative action is 'categorically different' than attacking other groups." You can't imagine it because it wouldn't happen, but in any event the dean doesn't get to pick and choose which groups on campus get protected and why. To the extent he is saying that they are being attacked for their ideology rather than their identity, that raises all sorts of complicated questions that can't be dismissed "categorically."

Third, if President Raymond indeed stated that on 10/7, she saw "peaceful people breaking free from their chains," how is that not embracing Hamas? Who was responsible for October 7, if not Hamas?

At least with regard to points 1 and 2, when you are in a position of university authority, and in that position you are charged with enforcing civil rights laws, your comments that relate to such enforcement may in fact be speech on matters of public concern, but that surely doesn't provide a blanket exemption from liability. Imagine, for example, a university official says, "I think Latinos are typically criminals, and I wish we did not have any at Haverford." Is that speech on a matter of public concern? Sure. Does that mean the First Amendment protects Haverford from liability based in part on that statement if Latino students sue, and use that as evidence of (at best) deliberate indifference to their concerns? Hardly.

(3) The encampment lasted three days, a relatively short period compared to similar encampment activity on other college campuses. … Here, amidst a period of extreme unrest on college campuses across the country, it was not clearly unreasonable for administrators to allow protestors to freely express themselves for three days.

I've expressed the view that the way universities should handle rule-breakers is to ask whether they would allow the rule-breaking if white supremacists were doing it. Surely, Haverford fails that test here, and I don't think it's "reasonable" for universities to decide whether to enforce rules based on the political views of the rule-breakers.

But my bigger concern here is Judge McHugh referring to an illicit encampment as students freely expressing themselves. Occupying someone else's (Haverford's) property is trespass, not freedom of expression. The students could have expressed themselves in all sorts of ways without breaking college rules, and the law. So if Judge McHugh is correct that Haverford's response was reasonable, it was because it was reasonable for Haverford to allow students to break school rules and the law, because no one was otherwise stopping the students from expressing themselves.

(Fun thought experiment: imagine the students "occupied" Judge McHugh's chambers  or courtroom. Think they would have lasted three days thanks to his tolerance for "freedom of expression"?)

To conclude, again, I'm not arguing that Judge McHugh's decision was ultimately wrong. At the very least, I would need to study the pleadings before I could think about reaching such a conclusion. I also tend to be skeptical of hostile environment claims, both because of First Amendment concerns and because it's very hard to prove that a plaintiff was truly denied the benefits of an education by a hostile educational environment. But that said, I think that Judge McHugh's sloppy reasoning undermines the force of his opinion, and makes it look like he is apologizing for Haverford administrator's misbehavior rather than merely concluding that it did not rise to the level of a Title VI hostile environment violation.

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