Eugene Volokh's Blog, page 68

[Eugene Volokh] Conflict and Loathing Among Signature Gatherers + Battery, Slurs, and Self-Defense

["While Mr. Legorreta may have been calling Cobham an 'asshole' and making other comments, and even if he called Cobham the 'N' word these events do not justify or provide a defense of self-defense."]

From a decision by L.A. Superior Court Judge Frederick Shaller in Legorreta v. Cobham, decided Mar. 10 but just posted on Westlaw last week:

[A]s of … the date of the incident, … [Mr. Legorreta] was about 68 years of age. He was working as a "caller" or petitioner for signatures on state petitions for which he and his nephew would obtain income for each approved signature. He and his nephew [Mr. Proo] set up a booth, table, and chairs in a designated Free Speech area near the exit at the Walmart store located at 1827 Walnut Grove Ave, Rosemead, CA. Legorreta would call out to Walmar[t] customers as they left the store and tried to get them to sign a petition. Proo was the primary petitioner and Legorreta worked for him.

Legorreta states that he and nephew Proo arrived at the Walmart Free-Speech zone on the Walmart site early and that during the day he primarily sat around and solicited signatures by calling out to persons exiting the Walmart store. A rival group of petitioners led by Cobham, appeared at the site and commenced competing with Legorreta and Proo for signatures by attempting to solicit signatures from the same group of persons. The Cobham group did not have a booth or table and did not confine themselves to one area but circulated in and around the exit soliciting signatures including the area adjacent to the location of the Proo/Legorreta booth.

During the day-long signature gathering efforts, stress and tensions arose between the different groups of signature gatherers and it significantly increased with Cobham and Trujillo [a member of his crew] arrived. Legorreta, who identifies as gay, was repeatedly verbally assaulted by Cobham and his group with epithets calling him a "fucking faggot" and a "fucking loser." Mr. Proo was engaging in criticism of Cobham's team because of the name calling directed to Legorreta and himself, his perception that the Cobham team was violating the rules of solicitation of signatures by following people into the parking lot, and because Cobham was "stealing signatures."

The two groups accused each other of signature stealing, that is, getting a Walmart customer who was exiting the store to sign for one but not the other group's petition. There was no evidence that Legorreta was the aggressor in any of the back-and-forth insults, accusations, and name calling. There is convincing evidence, however, that Legorreta was being insulted and intimidated by the Cobham group.

Toward the evening hours (around 5:45 p.m.) Cobham came up to the table where Legorreta was sitting and shook the table and called him, as he had in a number of prior insults of the same nature, a "fucking faggot." Proo interpreted this as threatening Legorreta with physical harm. Cobham then left the immediate area. Legorreta then stood up to go inside the Walmart store to complain about Cobham and his crew's repeated insults and what Legorreta perceived as rude and unfair competition (signature stealing, insults.) Exhibit 2, a tape from Walmart's security camera, documents without audio the pertinent series of events. Exhibit 1, the Police Report, at Page 5, full paragraph 6, which the parties stipulated to admit into evidence states regarding the video:

"V/Legorreta approaches S/Cobham in from the "Wal-Mart" northeast entrance sliding doors. S/Cobham suddenly forcefully pushed V/Legorreta backwards out of view of the camera. S/Cobham appears to rush forwards into V/Legorreta with raised fists then moves out of view."

The Sheriff's report and investigation supports the conclusion that Cobham is the aggressor in the fight and that Legorreta did not constitute a threat of physical violence to Cobham. The police report recommends that Cobham be charged with a violation of Penal Code § 368(b)(1) for willfully causing an elder to suffer unjustifiable physical pain, a felony, punishable by imprisonment of three years. [The opinion doesn't discuss whether Cobham was indeed charged. -EV]

[Discussion of still more tension omitted. -EV]

In the video, the court notes that as Trujillo approached Legorreta, Cobham suddenly jumped in between Trujillo and Legorreta. Mr. Cobham is younger, more fit, and muscular. The police report indicates that Cobham was 42 years of age at the time. On the contrary, Mr. Legorreta was older at age 68 and not fit or muscular…. Mr. Cobham immediately pushed himself onto Legorreta in what appears to be an effort at bodily intimidation. They were standing with Cobham's chest or belly against or near to Legorreta's belly. They were face to face when there was a verbal exchange.

The content of the verbal exchange is in dispute at trial. Mr. Cobham claims that Mr. Legorreta put his left arm on Mr. Cobham but the court's view of the evidence is that this did not happen, and the investigating officer did not describe this either. After the verbal comment, Mr. Cobham forcefully pushed (as described by the police who viewed the video) and then beat Mr. Legorreta. Prior to Cobham's assault and battery, there is no evidence that Mr. Legorreta was in any way a threat to Cobham and it also appears that Legorreta did not even try to defend himself.

Mr. Legorreta told the police, as documented by Exhibit 1, the Sheriff's report that before the battery, Cobham and he engaged in the following verbal exchange: "This is why I voted for Trump, because of you people." Cobham replied: "What do you mean, you people." Mr. Legorreta claims he then said: "You know what I mean."

Cobham agreed with Legorreta's version of the conversation and reported to the police the nearly identical conversation. This agreement in content of the conversation is the strongest evidence of the verbal exchange and that it did not include Legorreta's use of the "N" word. In that statement, Cobham did not tell the police that Legorreta called him the "N" word. However, at trial Cobham now states that Legorreta called him a "Nigger" in that confrontation. Mr. Legorreta, a former civil rights activist, claims he did not make this statement and would never use this term. This denial is credible to the court even in light of the prior statement to police. Proo testified that he was nearby and did not hear Legorreta make this statement. Exhibit 3, video of the later portion of the beating, supports that it was only Cobham who used the "N" word. Mr. Cobham, who employed Mr. Trujillo, did not bring Trujillo in as an important witness to corroborate his claim, which causes the court to distrust Cobham's version of events.

A vague handwritten statement that Mr. Legorreta admits that he gave to a police officer in his handwriting appears at first to contradict this finding. Legorreta attempts to explain the letter by saying that he was in the ambulance, confused by the head trauma from the beating, and under duress caused by the officers wanting a statement before he was taken to the hospital. In the statement, Legorreta stated that "Being a practitioner of political issues Black Guy got angry at the fact that I used the 'N' word which is Freedom of Speech which is understood by most political workers."

Importantly, the statement does not state that he directed the word at Cobham or that the statement was made immediately before the beating. Since the police report prepared after Legorreta's statement does not indicate that the beating was incited by the use of the "N" word, the court finds that this statement was not an admission of his use of the word directed to Cobham or that the use of the word had anything to do with the battery.

The court finds that Legorreta did not direct any comment using the "N" word to Cobham. In the court's view, after reading the police report with Legorreta's statement, Cobham seized upon Mr. Legorreta's vague statement to the Sheriff regarding the use of the "N" word to create a false narrative about how the incident occurred that in his mind would give justification and defense to his battery on Legorreta.

Whether or not Legorreta used this word, Cobham was not justified in punching and beating Mr. Legorreta. It was only after the battery was concluded that the word "nigga" is found on Exhibit 3: Mr. Cobham used it himself, apparently also in an attempt to imply that he had beaten Legorreta because that is what Legorreta had called him. In the court[']s view there was no prior usage of the term by Legorreta. The video also shows that Mr. Cobham was stating to observers that Legorreta should "get off him," implying that Legorreta was the aggressor when that was clearly not the fact.

Mr. Cobham appears to attempt to justify his battery on Legorreta by stating that Legorreta ran toward him and as an ex-military person, "he is not going to allow anyone to run at him and not do anything about it." However, both Exhibits 2 and 3 document a different set of facts. Legorreta was responding to Mr. Cobham by calling him an "asshole" but in the portion of the video of the incident admitted as Exhibit 3, he was turned and trying to walk away from Cobham when Cobham rushed him and pummeled him.

It should be noted that Exhibit 3 is a compilation of videos that the parties "found" on the internet and that they do not know who recorded these. No witness laid the foundation for these videos. The manipulation and planting of these videos, in the court's opinion, calls into question whether they are accurate. They do not have any timestamp and do not show the entire set of events in the correct order.

It is the court's belief that it was Mr. Trujillo or one of Cobham's crew that recorded the original video and that the video has been edited and planted on the internet in order to omit the full chain of events and give a distorted view of events that would support Cobham's defense. In particular, it is the court's belief that there was willful suppression or manipulation of evidence regarding the full original video and that the video would, if fully produced, have confirmed the version of events testified to by Legorreta and Proo. There is a missing gap in the video that would have included any statement by Legorreta of the "N" word if he had made it. The court does not give the video any weight except for the portions endorsed by Legorreta.

The court went on to conclude that Legorreta proved Cobham had tortiously battered him, and rejected Cobham's claim of self-defense:

While Mr. Legorreta may have been calling Cobham an "asshole" and making other comments, and even if he called Cobham the "N" word these events do not justify or provide a defense of self-defense. Mr. Legorreta was an older frail man who was merely standing in his own space when Mr. Cobham pushed up against him in the ongoing course of events. Mr. Legoretta did not run toward Cobham and was in fact turning away when he was attacked. The video does not show that Legoretta touched Cobham or constituted a threat to Cobham before the beating. No force of any kind was justified to Cobham. The damages sustained by Legorreta were entirely the fault of Mr. Cobham….

Plaintiff is awarded the sum of $57,500 for past and future general damages….

Darren Richie represents plaintiff.

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Ilya Somin] Supreme Court Issues Terrible Shadow Docket Decision Lifting Injunction Against "Third Country" Deportations of Migrants Without Due Process

[The ruling includes no analysis. Justice Sotomayor's dissent has a compelling explanation of why it is wrong. ]

NA

In yesterday's decision in Department of Homeland Security v. D.V.D, the Supreme Court stayed a lower-court injunction barring the federal government from deporting migrants slated for deportation to "third countries" without due process - that is, nations other than their countries of origin or ones they had agreed to be sent to. Such deportations risk sending migrants to places where they might be subject to violence or torture, and where they have no connections or ability to support themselves, as, e.g., in the case of Asians and Latin Americans deported to places like South Sudan.

Like many "shadow docket" decisions, this one includes no reasoning justifying the majority's ruling. Justice Sonia Sotomayor's dissent on behalf of the three liberal justices provides a compelling statement of the many reasons why this is decision is a terrible mistake.

Here is a brief excerpt:

Turning to the constitutional claim, this Court has repeatedly affirmed that " 'the Fifth Amendment entitles aliens to due process of law' in the context of removal proceedings." J. G. G., 604 U. S., at ___ (slip op., at 3); A. A. R. P., 605 U. S., at ___ (slip op., at 3). Due process includes reasonable notice and an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950). Of course the Government cannot avoid its obligation to provide due process "in the context of removal proceedings," J. G. G., 604 U. S., at ___ (slip op., at 3), by skipping such proceedings entirely and simply whisking noncitizens off the street and onto busses or planes out of the country.

It is axiomatic, moreover, that when Congress enacts a statutory entitlement, basic procedural due process protections attach. Mathews v. Eldridge, 424 U. S. 319, 332 (1976). Congress expressly provided noncitizens with the right not to be removed to a country where they are likely to be tortured or killed. See 8 U. S. C. §1231 note. As this Court has explained, the " 'right to be heard before being condemned to suffer grievous loss of any kind . . . is a principle basic to our society.' " Mathews, 424 U. S., at 333
(quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring)). Being deprived of the right not to be deported to a country likely to torture or kill you plainly counts. Thus, plaintiffs have a right to be heard.

This is just one of many good points Sotomayor makes in her dissent. Perhaps the majority has compelling responses to them. But, if so, I wish they would tell us.

I am not one of those commentators who categorically rejects the Supreme Court's greatly increased use of the "shadow docket" in recent years. Sometimes, these quick rulings based on limited briefing, no oral argument, and truncated time for deliberation are necessary to prevent serious injustices from continuing. But they can also lead to badly reasoned or wrongheaded decisions, which I fear is what happened here.

One question that comes to mind is why the Supreme Court majority was willing to torpedo due process here, despite pushing hard to protect it in its three recent Alien Enemies Act deportation rulings. Justice Sotomayor pointedly cites them in the passage quoted above.

I don't know the answer, because the majority didn't tell us. But two possible explanations come to mind. First, maybe the majority believes (correctly) that Trump's invocation of the Alien Enemies Act is illegal, whereas they think the administration does have the authority to deport the migrants at issue in the D.V.D. case. But even if the administration is legally entitled to deport these people somewhere, Justice Sotomayor compellingly demonstrates that serious due process issues arise with deporting them to third countries.

A second possible explanation is that the majority justices don't think it matters much exactly where these people are deported to, so long as deportation to some location outside the US is legal. But, as Sotomayor explains, in many cases the destination matters greatly. I don't think you need to be a legal scholar or an immigration policy expert to see why. Just imagine being deported to a poverty-stricken, violent country, ruled by an oppressive government, where you have no contacts and don't speak the local language.

Perhaps there is some other crucial distinction between the AEA cases and D.V.D. that influenced the majority justices, that I overlooked. If so, I wish they had told us what it is. If nothing else, this case highlights the desirability of including at least some explanation of the reasons for the result when the Supreme Court issues a "shadow docket" ruling on an important issue - as this one surely is.

UPDATE: Quinta Jurecic has a valuable Lawfare article detailing the history of this case, and the government's various attempts to circumvent court orders, verging on outright defiance.

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[Eugene Volokh] Judge Grants Preliminary Injunction Against Government's Suspending Harvard's Participation in Student Visa Program

Some short excerpts from Judge Allison Burroughs (D. Mass.) very long decision yesterday in President & Fellows of Harvard College v. U.S. Dep't of Homeland Security:

[A] presidential proclamation entitled "Enhancing National Security by Addressing Risks at Harvard University" … suspends "the entry of any alien into the United States as a nonimmigrant to pursue a course of study at Harvard University … or to participate in an exchange visitor program hosted by Harvard University [under the Student Exchange Visitor Program (SEVP)]."

Harvard sued challenging the proclamation, arguing that it was inconsistent with the relevant statute (for more on that, read the opinion) and in any event violated Harvard's First Amendment rights. First, Harvard argued that it was retaliation based on Harvard's having rejected demands made by the federal government in an April 11 Letter:

[The April 11 Letter] dictated specific conditions required for Harvard to "maintain [its] financial relationship with the federal government." These conditions included, among other things:

"reducing the power held by faculty (whether tenured or untenured) and administrators more committed to activism than scholarship";"reform[ing] its recruitment, screening, and admissions of international students to prevent admitting students hostile to the American values and institutions inscribed in the U.S. Constitution and Declaration of Independence";"commission[ing] an external party, which shall satisfy the federal government as to its competence and good faith, to audit the student body, faculty, staff, and leadership for viewpoint diversity, such that each department, field, or teaching unit must be individually viewpoint diverse";"[reforming e]very department or field found to lack viewpoint diversity … by hiring a critical mass of new faculty within that department or field who will provide viewpoint diversity";"[reforming] every teaching unit found to lack viewpoint diversity … by admitting a critical mass of students who will provide viewpoint diversity";"commission[ing] an external party, which shall satisfy the federal government as to its competence and good faith, to audit [certain] programs and departments that most fuel antisemitic harassment or reflect ideological capture";"shutter[ing] all diversity, equity, and inclusion (DEI) programs, offices, committees, positions, and initiatives, under whatever name, and stop[ing] all DEI-based policies, including DEI-based disciplinary or speech control policies, under whatever name [and] demonstrat[ing] that it has done so to the satisfaction of the federal government"; and"end[ing] support and recognition of those student groups or clubs that engaged in anti-Semitic activity since October 7th, 2023, including the Harvard Palestine Solidarity Committee, Harvard Graduates [sic] Students 4 Palestine, Law Students 4 Palestine, Students for Justice in Palestine, and the National Lawyers Guild." …

The court concluded that Harvard was likely to prevail on this retaliation claim:

"[T]he First Amendment prohibits government officials from relying on the 'threat of invoking legal sanctions and other means of coercion … to achieve the suppression' of disfavored speech." NRA v. Vullo. Importantly, "a government official cannot directly or indirectly coerce a private party to punish or suppress disfavored speech on her behalf." Against that backdrop, the elements of a retaliation claim are that "(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two—that is, the adverse action was motivated at least in part by the plaintiff's protected conduct."

On the first element, Harvard alleges that its refusal to meet the demands made by the government in the April 11 Letter, including that it cede control over its admissions and curriculum, constitutes the protected impetus for the alleged campaign of retaliatory conduct. Although "[a]cademic freedom [is] not a specifically enumerated constitutional right," the courts' "responsibility to safeguard [educational institutions'] academic freedom [is] 'a special concern of the First Amendment.'" "Academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also … on autonomous decisionmaking by the academy itself." "A university ceases to be true to its own nature if it becomes the tool of Church or State or any sectional interest."

"'[T]he four essential freedoms' of a university [are] to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." The April 11 Letter, on its face, was aimed directly at these protected academic freedoms, as it clearly sought to control the views of Harvard's faculty and students as well as the school's curricula and make them subject to government approval.

The letter further requires Harvard to select an external party, also subject to the government's approval, to audit all departments, fields, and teaching units to ensure "viewpoint diversity," a term that is defined nowhere in the Letter. Departments or fields found to lack such viewpoint diversity would be required to hire a "critical mass" of new faculty "who will provide viewpoint diversity," again subject to the oversight of the government, and "admit[ ] a critical mass of students who will provide viewpoint diversity." Further, Harvard must select an external party, again subject to government approval, to "audit" programs that "reflect ideological capture," a term not defined in the April 11 Letter, and then to "make repairs." These programs, as identified in the letter, include not just programs focused on international human rights or religion, but also programs at the Graduate School of Education, the Medical School, and the School of Public Health.

Thus, it is plain that Harvard's refusal to acquiesce to these demands constitutes engagement in protected conduct. Moreover, Harvard's public statements regarding its refusal, including President Garber's April 14 letter, also constitute protected speech….

On the second element, there can be no dispute that the Proclamation constitutes adverse action, nor do Defendants even attempt to offer a compelling reason to conclude otherwise. On its face, the Proclamation describes the ability to host foreign students and faculty as a "privilege" that is being lost. The loss of this privilege is an adverse action, particularly given the impact of the loss of that privilege on Harvard and its students and faculty. As articulated in Harvard's Amended Complaint, "[t]he sudden inability to maintain [international] students' enrollment jeopardizes ongoing research projects, damages Harvard's reputation as a world-class research institution, and deprives our nation of the benefits of … vital research projects."

The final element is the only one to which Defendants offer a serious dispute, and that is the causal connection between the April 11 Letter and the Proclamation. Defendants contend that "[t]he April 11 [L]etter and Harvard's rejection have no relation to the Proclamation"; "the gap in time undermines any link"; and the relevant parties are different. Defendants argue that the seven weeks between the April 11 Letter (or the April 14th response) and the Proclamation—issued June 4th—preclude any possible finding of a causal connection, "as courts 'typically allow no more than a few days to elapse between the protected activity and the adverse action.'"

Defendants' reading of the record is so selective as to border on absurd. Between the April 11 Letter and the Proclamation, there were very few days where the Administration did not attack Harvard in some form or another, including six Truth Social posts from the President himself; several actual or threatened grant and funding freezes; several iterations of the Administration's attempts to limit Harvard's ability to host international students and visitors; other investigation initiations; and numerous other statements by President Trump and other officials in the Administration, as detailed supra. Defendants' countervailing argument that these assaults cannot constitute retaliation as they came from different parties and are therefore not attributable to any one source is equally puzzling, because that fact only serves to reinforce that the Administration has made a full court press against Harvard on many different fronts. Indeed, public reporting surfaced only days before the Proclamation was issued regarding a session convened by the President to "brainstorm additional punitive measures" against Harvard that included "officials from nearly a dozen agencies."

Far from rebutting a finding of retaliation, the Administration's concerted campaign entirely supports such a finding. In summary, Defendants claim that "Harvard wants to [sic] the Court to take the massive and impermissible inference that all of these disparate actions are connected and designed to single out Harvard for its speech." But far from being a "massive and impermissible inference," to draw any other conclusion would require the Court to "blind [itself] to reality," namely that the government repeatedly, clearly, and unabashedly linked Harvard's refusal to accept the April 11 Letter's demands and the Proclamation….

Harvard also claimed that the government's actions were in part retaliation against Harvard's exercising its Petition Clause rights by "filing [a] lawsuit [with respect to the SEVP Revocation Letter and the Proclamation] and having filed the Funding Case." The court agreed that Harvard was likely to succeed as to this as well.

And the court likewise agreed with Harvard's argument that the government's actions were likely unconstitutional discrimination based on Harvard's viewpoints on other matters as well:

"One of the most egregious types of First Amendment violations is viewpoint-based discrimination…. Government actors may not discriminate against speakers based on viewpoint." Nor may they "single[ ] out a subset of messages for disfavor based on the views expressed," or "punish[ ] … organizations and their members merely because of their political beliefs and utterances."

Vullo is instructive. In that case, the Superintendent of the New York Department of Financial Services, Maria Vullo, was highly critical of the National Rifle Association ("NRA") in the wake several high-profile shootings, and she subsequently coerced insurance companies to sever ties with the NRA to avoid investigations. The Court held that the government cannot threaten or impose legal sanctions or other means of coercion to achieve suppression of disfavored speech. Although "Vullo was free to criticize the NRA and pursue the conceded violations of New York insurance law," as a government official, she could not "attempt to coerce private parties in order to punish or suppress views that the government disfavors."

The present case, although lacking the middlemen at issue in Vullo, presents precisely the same problem. Many of the Administration's statements in the past three months about Harvard have specifically critiqued its—real or perceived—left-leaning orientation. See [Am. Compl. ¶¶ 122 (Truth Social post stating: "Perhaps Harvard should lose its Tax Exempt Status and be Taxed as a Political Entity if it keeps pushing political, ideological, and terrorist inspired/supporting 'Sickness?' "), 123 (Truth Social post stating: "Harvard has been hiring almost all woke, Radical Left, idiots and 'birdbrains' [including former mayors Bill DeBlasio and Lori Lightfoot] … Many others, like these Leftist dopes, are teaching at Harvard, and because of that, Harvard can no longer be considered even a decent place of learning … and should no longer receive Federal Funds."), 127 (Press Release accompanying SEVP Records Request stating: "With anti-American, pro-Hamas ideology poisoning its campus and classrooms, Harvard's position as a top institution of higher learning is a distant memory…. This action follows President Donald J. Trump's decision to freeze $2.2 billion in federal funding to Harvard University, proposing the revocation of its tax-exempt status over its radical ideology."), 132 (Truth Social Post stating: "Harvard is an Anti-Semitic, Far Left Institution … The place is a Liberal mess, allowing a certain group of crazed lunatics to enter and exit the classroom and spew fake ANGER AND HATE."), 134 (Public cabinet meeting where President Trump said Harvard is "scamming the public and hiring people like [former New York City Mayor Bill] DeBlasio and [former Chicago Mayor] Lori Lightfoot who are certainly two of the worst mayors in the history of our country, paying them a fortune on salary, and having them teach our children how to manage cities and how to manage government" and "[t]he students [Harvard] ha[s], the professors [Harvard] ha[s], the attitude [Harvard] ha[s], is not American"); ECF No. 1-21 at 2–3 (Letter from Secretary McMahon stating: "The Harvard Corporation, which is supposed to competently and professionally manage Harvard's vast academic, financial, and physical resources, is run by strongly left-leaning Obama political appointee Penny Pritzker, a Democrat operative, who is catastrophic and running the institution in a totally chaotic way. Harvard alumnus and highly successful hedge fund manager Bill Ackman noted that, under her leadership, Harvard has become a 'political advocacy organization for one party.' ")]; Secretary Kristi Noem (@Sec_Noem), X (Jun. 1, 2025 at 12:00 PM ET) (video of an interview on Fox News where Noem criticized Harvard because, among other things, "communist and Marxist ideologies were allowed" on campus).

As Vullo makes clear, President Trump and his advisers are free to make statements like these criticizing Harvard for its perceived political viewpoints. "What [they] cannot do, however, is use the power of the State to punish or suppress disfavored expression." And the evidence suggests they were doing precisely that, including with regard to the Proclamation….

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[Eugene Volokh] Journal of Free Speech Law: A Report on Published Blind Submissions

Our peer-edited Journal of Free Speech Law publishes a mix of symposia, solicited pieces, and blind-reviewed submissions. Submitters might wonder: Blind though the process might be, can I get my piece published if I'm not a law professor at a top 20 (or even top 50) law school?

I thought I'd answer that by going through all the articles we published via blind submissions. (Recall that we've also published many more articles through other channels, mostly symposia; their authors include tenured faculty at top 10 law schools, tenured faculty at other law schools, faculty in other disciplines, and more.) All the rankings are from the current U.S. News—an imperfect ranking system, to be sure, but one that's adequate for these purposes.

One of the blind-reviewed accepted articles was from a tenured faculty member at a top 10 law school.Six were from tenured faculty at schools ranked in the 30s or 40s.Two were from tenured faculty at schools ranked in the second 50.Two were from a non-tenure-track faculty member, who had written comparatively few academic articles, but who had very substantial practice experience.Two were from practicing U.S. lawyers.One was from a recent graduate who was clerking for a judge.One was from a fellow at a law school, which is to say someone who has recently graduated and has a temporary position with an eye towards getting a future tenure-track job elsewhere.One was from a law professor at a foreign institution.Two were from foreign think-tank researchers.

Of course, tenured faculty members tend to be accomplished scholars, and thus tend to produce good work; their jobs also give them time to produce such work. Still, this list shows that excellent articles on free speech law can be written by people who don't have top faculty appointments as well as those who do.

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[Eugene Volokh] Journal of Free Speech Law: "How American Civil Rights Groups Defeated Hate Speech Laws," by Samantha Barbas

This new article is here. The Introduction:

In the United States, as is widely known, "hate speech" is generally protected by the First Amendment. Hate speech is considered "free speech" unless it provokes imminent violence or constitutes a "true threat" or "fighting words." No other nation protects the right to express hate so vigorously. Hate speech laws exist in most other countries, where the principles of free speech are said to have no bearing on the expression of racial, ethnic, or religious hatred.

Why are there no hate speech laws in America? There are many possible explanations. Some have suggested that the United States diverged from the rest of the world on hate speech regulation because of deeply ingrained national traits and tendencies, such as Americans' historic fear of government regulation and our individualistic culture. In a book manuscript in progress, I argue that the course that America took on hate speech was not foreordained but was rather the result of contingency and circumstance. Hate speech laws existed in many jurisdictions before the 1950s, and there was a good deal of popular support for hate speech laws.

The reasons why hate speech laws ultimately failed to take root in America are complex. Timing was an important factor. The onset of McCarthyism in the 1950s undercut campaigns during the previous decade to advocate for hate speech laws. Efforts to enact hate speech laws arose during the period of the development of the modern First Amendment, between 1930 and 1960. Hate speech regulations clashed with emerging civil libertarian free speech principles, and free speech ultimately prevailed.

This essay focuses on another significant reason why hate speech laws may have failed to take root in America—the vigorous opposition of minority civil rights organizations to hate speech laws at the time when those laws had their greatest potential for adoption. Minority civil rights groups such as the National Association for the Advancement of Colored People (NAACP) and the American Jewish Committee opposed hate speech laws on the theory that such laws were ineffective in curtailing hate speech, and that any limitations on freedom of speech would hinder minorities' efforts to achieve racial and religious equality.

At a time when lynchings and cross-burnings were rampant, and when American fascist demagogues and neo-Nazis routinely terrorized minorities, the leaders of these civil rights groups thought hard about the hate speech problem. They concluded that the most effective way to reduce racial and religious hatred was to combat hate speech through counter-speech and education, rather than through legal restrictions on hate speech. The opposition of these civil rights groups to hate speech laws changed American law and public policy. Notably, their arguments influenced the Supreme Court in the 1960s, which created an expansive, civil libertarian free speech jurisprudence that was intended, in significant part, to protect the civil rights movement.

This essay tells the story of how and why American civil rights organizations opposed hate speech laws for much of the twentieth century. Civil rights groups like the NAACP could have sought laws banning hate speech, just as they fought for the desegregation of public facilities. Instead, eminent civil rights leaders—including Thurgood Marshall, W.E.B. Du Bois, and Louis Marshall, among others—rejected hate speech laws as incompatible with the pursuit of equality and civil rights.

This essay discusses significant episodes in the twentieth century when civil rights groups opposed hate speech laws, with important consequences for free speech law and public policy. Part I narrates the NAACP's campaign to have the film The Birth of a Nation censored, and how the failure of that campaign convinced the national NAACP of the ineffectiveness of legal regulations on hate speech. Part II describes Jewish civil rights organizations' rejection of hate speech laws in the 1920s and '30s, and how those groups developed methods to stop antisemitic attacks through means other than legal restriction. Part III explores black and Jewish civil rights groups' opposition to proposed hate speech laws in the 1940s, and their creation of a "quarantine" or "silent treatment" policy as an alternative to legal suppression of hate speech.

Part IV explains how the civil rights movement joined with the American Civil Liberties Union in the 1960s to defend the free speech of white supremacists, resulting in landmark First Amendment precedents. Part V details how and why some civil rights groups changed their positions on hate speech starting in the 1970s, a shift that was most visibly demonstrated in litigation surrounding neo-Nazi attempts to march in Skokie, Illinois. The conclusion emphasizes the wisdom of the civil rights groups' earlier stance opposing restrictions on hate speech.

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[Josh Blackman] Statement From The Dean At The University of Florida College of Law

Merrit E. McAlister, the Interim Dean at the University of Florida College of Law, released this statement to the UF Law Community:

Dear UF Law Community:

Many of you may have seen the recent New York Times article about a student at the law school.  The article stated that the student—who told the Times it "would not be manifestly wrong" to call him a Nazi—received a recognition through a "book award," which is given to the highest overall grade in a law school class.  The paper he wrote, which counted for 65% of the final grade in the small seminar course, argued for constitutional "nationalism" based on an understanding of the Constitution that excluded non-white people from legal and civil participation in America.  Although the law school is limited by what it can say about these events under federal and state law that protects the privacy of student record information, that student has now disclosed some information publicly.

Let me state unequivocally: the student's views are revolting and do not reflect the values of UF Law, its faculty, or its administration.  We welcome all, we discriminate against none, and we aim to create a community where students feel a sense of belonging and connection—without experiencing fear or threats or hatred.

The paper's views also in no way reflect the views of the professor in this course.  The professor had no knowledge of this student's history at the law school or his deeply held personal views.  The professor took the paper on its face—as a student paper attempting to use originalist methodology to reach a detestable and extreme position.  As abhorrent as the paper's thesis may be, that work still falls within the bounds of academic freedom and the First Amendment, and, as such, was graded consistent with the grading standard for the course.

As a matter of practice at UF Law and most other law schools across the nation, the highest-performing student in any class receives a "book award" during the grading process.  Indeed, the professor believed that recognition was mandatory for the top scoring student.

I understand that these events and this article have caused many in our community pain, disappointment, and fear.  I know that many of you are outraged at the law school for not taking the book award away from the student.  But the administration does not second-guess grading decisions at the law school, except in very narrow circumstances, and those circumstances did not apply here.  Upholding academic freedom and the student's First Amendment right to express even odious ideas is the harder path, but it is the path our principles require.

Rescinding the honor might feel righteous, but it would betray those principles and set a dangerous precedent in a law school that trains students to confront unpopular ideas and represent unpopular clients.  Defending free expression is easiest when we approve of the speech; it is hardest when, as in this instance, the speech tears at the fabric of our community.  But that is precisely when our commitment must hold.

We have protected academic freedom and the student's First Amendment rights while also prioritizing the safety and security of our community.  As soon as the student's conduct became threatening and substantially disruptive, in collaboration with UFPD and UF administration, the student was barred from campus.  We heightened security across the college.  It is important to note that the escalation in the student's conduct that led to his trespass happened three months after the book award had been announced in January.

Sadly, this article has given an extremist provocateur exactly what he wanted: a platform for greater visibility.  And it has caused hurt and pain within our community in the process.  I also regret that this has led an honorable public servant—one who has served his country for decades as a federal public defender and a federal judge—to receive death threats because of an impartial grading decision he made.  No one deserves that treatment for selflessly teaching as a part-time instructor in a law school.

The decisions we've made in this instance reflect the best efforts of dedicated professionals to protect students' First Amendment rights and embody the principles of academic freedom in grading, administering, and guiding a law school.  Not everyone will agree with our judgment, and I respect that.  But I hope we can begin to move forward together recognizing that, collectively, we share commitments to uphold the First Amendment, academic freedom, and our shared sense of humanity.

I think this statement largely strikes the right tone, and makes several important points. First, and most importantly, when the grade was given, the student had not yet made the statements on social media. Second, the grade given was well within the bounds of reasonableness. Third, regrettably, Judge Badalamenti was subjected to death threats. There is so much outrage about pizzas, but here the New York Times unfairly tarred a good judge's reputation to no end. These threats were entirely predictable.

Fourth, the Dean wrote "No one deserves that treatment for selflessly teaching as a part-time instructor in a law school." Selfless is exactly the right word. It is no secret that academia is hostile to conservatives. UF is very fortunate to have originalists on the faculty like Gary Lawson and Judge Badalamenti. Other schools are not nearly as fortunate. The foreseeable consequence of this expose is that other judges may find the risk of teaching simply too high, and they'll sit on the sidelines. Make no mistake, this is a feature, and not a bug about these attacks on originalism.

Let me add some more positivity. I've spoken with several of Judge Badalementi's students, and they sing his praises. One wrote:

Hi Professor. There was absolutely no indication that [NAME] was a white supremacist. In fact, everybody at the school knew the story about a white supremacist student the year below us. I had even read another paper he had authored that was spread by concerned students. Despite this foreknowledge, during the class there was absolutely ZERO indication at any time Mr. [Name] was the one who held those beliefs, and I did not even realize he was the rumored white supremacist and in the same class as me until after the paper story blew up. Whenever I was asked by fellow students about what the class was like and what kind of person the Judge was, I always responded in the same way. "I am beyond certain from my time spent with Judge Badalamenti that he grades papers as impartially as any human possibly could, even if he has to hold his nose at some of the views espoused to recognize a well written, researched, and organized paper, regardless of how abhorrent the argument furthered is. For this reason, due to the criteria on the syllabus, Judge granted the paper an A, the highest in the class, which the school then automatically designated as earning a book award." Judge Badalamenti is one of the most kind, respectful, and judicious people I have ever met, and words cannot properly effectuate how much respect I hold for him both as a human being and a Federal Judge. The attacks on him by this "journalist" are disgusting, unfounded in reality, and highlight the absolute lowest forms of sensational tabloid click bait. Furthermore, I feel it necessary to add that I was particularly disgusted by the author of the article bringing in our co-Professor and using her name. She assisted the class on an administrative level and helped with discussions, but had no knowledge of this situation, nor did she help with grading the paper in any way. Attempting to bring her name into this was disgusting, unfounded, and the author should issue a retraction and an apology.

And another student wrote:

[The student] presented a thesis that critically examined originalism. It demonstrated how the doctrine when weaponized or applied in bad faith, can lead to deeply harmful and unjust consequences. You may also find it relevant that I emigrated to the United States at the age of 7 and am a first-generation law school graduate. Judge B always seemed to value that aspect of my background and fostered an environment that encouraged intellectual independence and a deep respect for diversity.

My earlier posts on this topic can be found here and here.

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[David Kopel] Big Business as Gun Control

[Partly from coercion and partly by choice, many banks and social media businesses impose severe gun controls]

On July 6, 1775, the great Pennsylvania lawyer John Dickinson coauthored the Continental Congress' Declaration of Causes and Necessity of Taking Up Arms. Among the grievances in the Declaration were the British government's gun control program, namely having "murdered" people in attempting to confiscate arms and gunpowder at Lexington and Concord, and the disarmament of the people of Boston. Known as the "Penman of the Revolution," Dickinson is the namesake of Penn State Dickinson Law school. Fittingly for the 250th anniversary of John Dickinson's immortal declaration, the Dickinson Law Review has published a symposium issue on arms rights and arms controls.

My article, coauthored with George Mocsary and Bhav Ninder Singh, addresses a form of constriction on the right to arms that was unknown to John Dickinson: Big Business as Gun Control. Here's the abstract:

Gun control increasingly bypasses direct legislative enactments by co-opting the commercial marketplace. Financial institutions and insurers often face regulatory pressures, frequently articulated through vague notions of "reputational risk," to terminate or restrict services for lawful firearms businesses and advocacy groups. The debanking tactic, seen in initiatives such as Operation Choke Point, can deny essential financial products to firearm owners, merchants, and organizations, curtailing the practical exercise of constitutionally protected rights. Simultaneously, government agencies sometimes pursue warrantless data collection from bank records and merchant category codes, building profiles of lawful purchasers and eroding privacy and due-process norms.

Social media platforms compound these problems by removing or limiting firearms-related content under opaque or inconsistently applied standards. Although they occasionally frame their policies as safeguards against violence, enforcement often removes instruction, historical discussion, and other legitimate forms of speech. The censorship distorts public debate about firearms, stifling conversations on safety, training, and responsible ownership.

This Article describes the significant shift toward privatized gun control, in which government entities and large corporations converge to limit access to banking, insurance, and information platforms. The outcome is a new type of regulatory regime that can subvert constitutional checks, undermine lawful enterprise, and chill lawful speech. Curbing abuses requires a combination of targeted legislation, judicial oversight, and self-restraint by private institutions to ensure that neither lawful commerce nor individual liberty are sacrificed to hidden agendas.

Part I of the Article examines debanking and other financial blacklisting, and explains how the financial regulatory environment enables abuse. When a regulator illegally says "jump," many banks and insurance companies tend to believe that the only response that will save their business from being destroyed is to respond "Yes, sir!" A case in point is the Obama administration's Operation Choke Point, which was an effort to debank the entire firearms industry. While that particular program was thwarted by its exposition in congressional hearings, debanking continues to be a growing problem. Abuses have been particularly severe in New York State. There, the Governor, the head of the Department of Financial Services, and the Attorney General engaged in egregious misconduct to attempt to destroy the National Rifle Association (NRA) for political reasons.

Part II turns to forced disclosure of private banking information. Section A briefly surveys the widespread problem of administrative subpoenas, including for banking data relating to firearms purchases. Section B addresses legislation to create separate merchant category codes for firearms business.

Social media censorship of firearms-related content is the subject of Part III. Based on examination of the policies and practices of six leading social media businesses, the worst offenders are Meta and YouTube. While these companies have published detailed policies, the companies' censors act arbitrarily, capriciously, and contrary to the published policies.

In each of Parts I–III, a final section examines potential solutions for the problems described in the relevant part. There are multiple ways to deal with debanking and other financial blacklisting, but many suffer from the penchant of some financial regulators to act as a law unto themselves, regardless of their statutory or regulatory authority. Financial privacy is the easiest issue to address, using the model of several states that have already enacted legislation against turning credit card transactions into gun registries. As for social media, the problem may be unsolvable by legislation, lawsuits, or antitrust.

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[Eugene Volokh] Arbitral Award in Dispute Between Former Twitter VP and Twitter Must Be Unsealed

From Friday's decision by Judge Gregory Woods (S.D.N.Y.) in Maheu v. Twitter, Inc.:

One distinguishing facet of the American legal system is its commitment to public access to the trial process. This legacy of "open justice" is as old as America itself. Respondents, Twitter, Inc. and X Corp., have asked that the Court seal an arbitral award because it was the product of a confidential arbitration proceeding. That fact alone does not overcome the presumption of public access to the award safeguarded by the First Amendment ….

On January 28, 2025, Petitioner Jean-Phillippe Maheu filed a petition to confirm an arbitral award issued in his favor [against Twitter] ….

The question is whether the arbitral award that Maheu (who had apparently been VP, Americas at Twitter) was trying to enforce could remain sealed; no, said the court:

The basis for Respondents' request that the Court seal the Award in its entirety is the fact that the Award was the product of a confidential arbitration process. Respondents argue that the "Second Circuit has repeatedly affirmed the 'FAA's strong policy protecting the confidentiality of arbitral proceedings,' which is a 'paradigmatic aspect of arbitration.'" And, Respondents contend, the Award "contains, among other things the 'contents' and 'results' of the underlying arbitration, which the parties agreed to keep confidential." …

The preservation of the confidentiality of an arbitral award, by itself, is not a "higher value" that overcomes the presumption of access afforded by the First Amendment.

Respondents offer no other reason for the Court to seal the Award in its entirety in this case. Here there is no indication that Petitioner had an improper purpose in filing the petition. Nor does any party argue that The [New York] Times seeks to unseal the Award for improper purposes. To grant Respondents' motion to seal the Award in its entirety on this record would require the Court to establish a general rule that the confidential nature of an arbitral award suffices on its own to override the First Amendment right of access to a document filed with the Court. The Court has no basis upon which to do so.

The fact that the Award contains financial information regarding Petitioner does not justify sealing the Award…. Petitioner asks that the Court redact the dollar amount of his financial award. And Respondents argue that the "Award also includes private financial information about Petitioner that warrants sealing." The Court acknowledges that courts "routinely permit parties to redact sensitive financial information" from public filings.

But neither Petitioner nor Respondents have provided the Court with an affidavit, or even a factual proffer, explaining the nature of the harm to Petitioner should the amount of the award be disclosed to the public in this case. And the Court observes that Petitioner did not assert any interest in sealing any portion of the Award when it was first filed. The fact that Petitioner did not ask for the information to be sealed initially suggests that the harm to him from disclosure of the information is not substantial. Lacking any factual basis to conclude that the disclosure of the amount of the award to Petitioner will result in concrete harm to him, the Court cannot make the specific finding required to overcome the presumption of public access to the Award.

Respondents have not provided the Court with sufficient justification to warrant overcoming the First Amendment presumption of public access to the Award….

Al-Amyn Sumar and Timothy Tai represent the N.Y. Times.

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[Eugene Volokh] Illinois Court Dismisses Defamation Suit Based on Allegations that Plaintiff Teacher Was "Anti-White" etc.

[The court does, however, leave open the possibility that the plaintiff can file an amended complaint that can go forward.]

From last Friday's Appellate Court of Illinois decision in Sebaggala v. Levinson, written by Justice Celia Gamrath and joined by Justices Sanjay Tailor and Michael Hyman:

According to the operative complaint, Sebaggala is a Black fourth-grade public-school teacher and a member of Abolition Coalition, a group of citizens who "support and advocate for diversity and anti-racism in Niles Township, Illinois schools." Levinson is the founder of NTAC, an organization whose primary goal is "to keep politics out of schools." Plaintiffs allege Levinson uses this platform to make "bigoted remarks" about members of minority groups.

In 2020 and 2021, Sebaggala and Levinson argued about politics and social issues on Facebook and other social media…. Levinson's statements about Sebaggala during this period [are alleged to have] constituted "a protracted and unlawful campaign of harassment," which we summarize as follows:

On November 4, 2020, Sebaggala attended a Black Lives Matter protest organized by Abolition Coalition. Levinson stated on NTAC's social media that Sebaggala was protesting "in support of inappropriate conduct by a [District 219] board member."On June 8, 2021, Sebaggala attended a "Protest & Anti-Racism Celebration" hosted by Abolition Coalition to oppose police officers in schools. Levinson posted a video of the event on social media, referring to Sebaggala and other attendees as "agitators," and opining it was unacceptable for a teacher to advocate removing officers from schools.On August 8, 2021, Levinson referred to Sebaggala as "anti-white, anti-semetic [sic], anti-conservative, [and] anti-moderate" in a Facebook post.

On August 31, 2021, Levinson sent a 14-page letter to Sebaggala's employer, alleging "Sebaggala's activity perpetuates an anti-white sentiment that is ethically and morally wrong." In the letter, Levinson:

States that Sebaggala and other members of Abolition Coalition engaged in "intimidation tactics," "verbal abuse," and "bullying" against parents and school board members, including "anti-white rhetoric" and "calling parents and board members racists, white supremacists, white nationalists, bigots, and misogynists."Claims that on July 27, 2021, after the school board did not vote for Sebaggala to fill a board vacancy, "a riot nearly broke out" and some school board members "required security to escort them to their cars."Provides screenshots of Sebaggala's Facebook posts, which she characterizes as "anti-white hate speech," "racist," and "offensive," and argues Sebaggala's posts serve no purpose except to "creat[e] tension and reactions on both sides."Asks, "[H]ow are white children in [Sebaggala's] classroom being treated? … [D]oes Ms. Sebaggala's in-person and online activity violate Title VI of the Civil Rights Act …?"Concludes by stating, "Please take the time to address this complaint with Ms. Sebaggala. I would like this shared with the Board of Education members, administration, and teachers of District 65. … Lastly, I would like confirmation that this complaint was reported to Human Resources and added to her employee file."

According to plaintiffs, Levinson knew these allegations were "entirely false," and she "wanted to damage Sebaggala's career for the sole reason that Sebaggala is a Black teacher who supports Black Lives Matter." In response to the letter, Sebaggala's employer assigned a principal to observe Sebaggala's classroom. Sebaggala claims she "suffered a loss of reputation in her community and among her coworkers." …

Plaintiffs (Sebaggala and Abolition Coalition) sued for, among other things, defamation, "alleg[ing] Levinson falsely accused Sebaggala of falsifying racist events, threatening bodily injury to defendants and police officers, committing 'child abuse,' segregating students based on race, attempting to start a riot, and violating the Civil Rights Act." The appellate court held that they hadn't adequately alleged specific defamatory statements, but it left plaintiff another chance to amend the complaint:

"[A] defamation per se claim [i.e., a claim brought in the absence of a showing of specific damages -EV] must be pled with a heightened level of precision and particularity." … [The defamation claim] in its current form does not meet this standard and was properly dismissed, as follows.

Some of the statements alleged … are affirmatively rebutted by exhibits attached to the complaint. For instance, plaintiffs allege Levinson defamed them by saying Sebaggala "attempted to start a 'riot' in multiple school board meetings." However, Levinson's letter says only that "a riot nearly broke out" when the board did not vote to seat Sebaggala. It does not accuse Sebaggala of inciting it.

A few statements alleged to be defamation are not defamation at all because they are either true, as proven by the video of Sebaggala's public comments and posts of Sebaggala herself, or they can be given an innocent construction… [U]nder the innocent construction rule [imposed by Illinois law], if a statement may reasonably be interpreted as referring to someone other than the plaintiff, it is not actionable per se ….

Other statements alleged in the complaint may be deemed mere opinions, not facts capable of being proven true or false (e.g., racist, Marxists, Communists). When stated in general terms, as is the case here, they are nonactionable. See Coghlan, 2013 IL App (1st) 120891, ¶ 50 (and cases cited therein) (a harsh characterization that merely amounts to loose, figurative language that no reasonable person would believe presented facts, is not defamation, e.g., calling someone the "biggest crook on the planet," "trashy," a "traitor," "a rip-off, a fraud, a scandal, a snake-oil job," and using the term "blackmail" were all nonactionable); Ward v. Forest Preserve District of Winnebago County, 13 Ill. App. 2d 257 (1957) (saying "You are a Communist" is not slander per se and is non-actionable without special damages); Flickinger v. King, 385 So.3d 504, 514-15 (2023) (use of the term "racist" is not actionable as defamation); Law Offices of David Freydin v. Chamara, 24 F.4th 1122, 1131 (7th Cir. 2022) (under Illinois defamation law, comments such as "hypocrite," "chauvinist," and "racist" are not actionable when stated in general terms, without asserting specific factual support); Younge v. Berman, 2025 IL App (2d) 240354, ¶ 48 ("it is not defamation to inquire [with an employer] whether [an employee] has broken the law" and asking if this is "how [they] want [their] company represented").

This is not to say such words may never amount to defamation. But to be actionable they must be accompanied by specific factual support and pleaded with a heightened level of specificity. In Green, our supreme court held that plaintiff's "vague and generic" allegation that defendant accused plaintiff of "abus[ing] players, coaches, and umpires" was insufficient to state a cause of action for defamation per se. The court observed that "abuse" can mean to "reproach coarsely" or to "violate sexually." By not pleading either the actual words or the type of "abuse" to which defendant referred, plaintiff made it "virtually impossible" for defendant to formulate an intelligent defense.

The same is true here. Plaintiffs allege in general terms that Levinson called Sebaggala a "child abuser," said she "abuses white children in her class," "threaten[ed] bodily harm to defendants," and "threaten[ed] harm against police officers." Plaintiffs do not plead the type of abuse to which Levinson referred, and these statements do not appear in Levinson's letter or in the social media posts attached to the complaint. Plaintiffs give no details as to what Levinson actually said, when she said it, or to whom she said it. As such, plaintiffs have not met the heightened pleading standard applicable to defamation per se.

Nonetheless, if specific facts can be pled, some of Levinson's alleged statements may give rise to defamation per se. They strike at the heart of Sebaggala's profession and could suggest she lacks the ability or integrity to perform her job as a teacher. Such was the case in Kumaran where we held the plaintiff could state a cause for defamation per se based on defendants' remarks in an article (e.g., eight-ball, paranoid, and scam), which imputed a lack of integrity and impeached his reputation as a teacher. Although plaintiffs' complaint falls short of what was pled in Kumaran, they should be allowed one last opportunity to amend count I of their complaint to plead specific facts, if they can, to state a cause of action for defamation per se….

Based on the record and given the severity of accusations directed at Sebaggala's profession, we are not prepared to say quite yet that repleading a claim for defamation per se would be futile. Indeed, if plaintiffs can prove Levinson made false statements of fact (not opinion) that are not protected by innocent construction and fall within one of the five categories of defamation per se, damages are presumed, and recovery is certain. However, if, on remand, they fail to allege sufficient facts under the heightened pleading standard, they ought not be permitted to proceed with the defamation per se claim and this case should end….

Justice Hyman joined the majority, but added this:

In this era of social media, protecting individuals from false and harmful public accusations ensures justice in individual cases and maintains civility and truthfulness in public discourse. I write separately to pose a question regarding social media and claims of defamation.

People now communicate in ways that were unimaginable before the advent of social media; however, social media has also amplified the harm that false and defamatory statements can cause. Reputations painstakingly built over the years can now be destroyed in seconds by a single post that spreads with viral speed. While much of the legal conversation has centered on the responsibility of media outlets and the liability of online platforms, little attention has been paid to whether defamation law itself needs rethinking.

Any effort to curb the abuses of social media must be approached with caution, ever mindful of the fundamental protections guaranteed by the First Amendment. The challenge is not whether to act, but how. Thus, my question: How can we uphold free expression while protecting individuals from reputational harm in a digital age where the consequences are more severe and the reach broader than ever before?

This challenge will become increasingly urgent in the years to come, and the law must be prepared to respond with both fidelity to constitutional values and sensitivity to the character and livelihood of individuals.

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