Eugene Volokh's Blog, page 91

[Eugene Volokh] Court Grants WilmerHale Law Firm Injunction Against President Trump's Executive Order Targeting Firm

A (relatively) short excerpt from today's long decision by Judge Richard Leon (D.D.C.) in Wilmer Cutler Pickering Hale & Dorr LLP v. Executive Office of the President; there's a lot going on here, but in general I agree with the First Amendment and Sixth Amendment arguments (I'm not sure either way about the others):

The cornerstone of the American system of justice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting. The Founding Fathers knew this! Accordingly, they took pains to enshrine in the Constitution certain rights that would serve as the foundation for that independence. Little wonder that in the nearly 250 years since the Constitution was adopted no Executive Order has been issued challenging these fundamental rights. Now, however, several Executive Orders have been issued directly challenging these rights and that independence. One of these Orders is the subject of this case. For the reasons set forth below, I have concluded that this Order must be struck down in its entirety as unconstitutional. Indeed, to rule otherwise would be unfaithful to the judgment and vision of the Founding Fathers! …

"[T]he First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech." WilmerHale alleges that "[t]he Order blatantly defies this bedrock principle of constitutional law." I agree!

To establish First Amendment retaliation, WilmerHale must plausibly allege and then prove: "(1) [WilmerHale] engaged in conduct protected under the First Amendment; (2) [defendants] took some retaliatory action sufficient to deter a person of ordinary firmness in [WilmerHale's] position from speaking again; and (3) a causal link between the exercise of a constitutional right and the adverse action taken against [WilmerHale]."

WilmerHale represents a range of clients in litigation. This advocacy is unquestionably protected conduct under the First Amendment. See Legal Servs. Corp. v. Velazquez (2001) (treating "the analysis of certain legal issues" and their "presentation to the courts" as "speech and expression"); Lehnert v. Ferris Faculty Ass'n (1991) ("We long have recognized the important political and expressive nature of litigation."); McDonald v. Smith (1985) ("[F]iling a complaint in court is a form of petitioning activity ….")….

The WilmerHale Order is, on its face, retaliation for the firm's protected speech. Indeed, § 1 outlines the motivations of the Order, including WilmerHale's pro bono practice, "obvious partisan representations to achieve political ends," and involvement in immigration and election litigation.

The Order goes on to impose a kitchen sink of severe sanctions on WilmerHale for this protected conduct! In addition to vilifying the firm in § 1, it suspends WilmerHale employees' security clearances, with a looming threat of full revocation of those clearances; coerces the firm's federal contractor clients to end their engagements with the firm or face cancellation of their contracts; targets the firm for investigation into supposed racial discrimination; threatens to bar its employees from entering federal buildings or engaging with federal employees; and prohibits agencies from hiring firm employees absent a waiver from the relevant agency heads.

Any one of those sanctions would cause clients to strongly reconsider their engagements with WilmerHale. Taken together, the provisions constitute a staggering punishment for the firm's protected speech! The Order is intended to, and does in fact, impede the firm's ability to effectively represent its clients! For example, WilmerHale attorneys may not be able to enter federal courthouses for trial, meet with federal regulators, or access classified materials necessary for working on national security matters. The Order also pressures the firm's federal contractor clients to either end their relationships with WilmerHale or face possible cancellation of their contracts…..

"At the heart of the First Amendment's Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society." As such, "[t]he government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rational for the restriction." Such viewpoint discrimination is "an egregious" violation of the First Amendment.

Here, WilmerHale claims that the Order targets the firm for its disfavored viewpoints and punishes it for expressing those viewpoints. The Court finds that WilmerHale has both alleged and shown this First Amendment violation!

As explained [above], WilmerHale's representation of clients in litigation is speech. The Order attacks the viewpoints WilmerHale expressed over the course of these representations, describing WilmerHale's work as "partisan" and "political," and maligning WilmerHale's advocacy on behalf of causes disfavored by President Trump. The Order is also motivated by WilmerHale's decision to "welcom[e]" Mueller to the firm and its statements that Mueller "embodies the highest value of our firm and profession."

President Trump can "share [his] views freely and criticize particular beliefs, and [he] can do so forcefully in the hopes of persuading others to follow [his] lead." He cannot, however, "use the power of the State to punish or suppress disfavored expression." The First Amendment bars the Government "from relying on the 'threat of invoking legal sanctions and other means of coercion … to achieve the suppression' of disfavored speech." …

The First Amendment [also] protects the right "to petition the Government for a redress of grievances." Filing and pursuing lawsuits are forms of protected petitioning. See Borough of Duryea v. Guarnieri (2011) ("This Court's precedents confirm that the Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes.")…. WilmerHale has both alleged and shown that the Order violates the Petition Clause by (1) punishing the firm for its past representation of clients in litigation and (2) undermining the firm's ability to pursue litigation in the future.

The Order explicitly targets WilmerHale at least in part for the litigation it has pursued, including election and immigration lawsuits…. The Order, however, goes further than punishing WilmerHale for past petitioning. It also creates hurdles to prevent the firm from pursuing future lawsuits. For example, § 5 directs agencies to limit the firm's employees' access to federal buildings and ability to engage with federal employees. The Order also suspends their security clearances, which restricts their access to the classified information they need to pursue cases involving national security. These limitations would severely hinder WilmerHale's ability to effectively bring cases….

Defendants invoke national security as the Government interest supporting the restrictions on WilmerHale's ability to petition outlined in § 5…. [But o]ther than a passing reference to WilmerHale's involvement in election and immigration litigation, the Order does not explain how WilmerHale's conduct has threatened national security or how restricting its access to federal buildings or federal employees would remedy those threats. Instead, and as I have already found, the Order is plainly motivated by the President's desire to retaliate against WilmerHale for its protected activity. This is not a legitimate Government interest, and the Order's unsupported assertion of national security will not save it! ….

The court added that the Order violated the right to expressive association:

The Supreme Court has [also] "long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others." Compelled disclosure of affiliation with groups engaged in advocacy can violate this First Amendment right. WilmerHale alleges that the Order compels the firm's federal contractor clients to disclose their affiliation with WilmerHale, which engages in advocacy on their behalf and on behalf of other clients. I find that this disclosure violates the First Amendment freedom of association….

The Order "require[s] Government contractors to disclose any business they do with WilmerHale," regardless of whether that business is related to a federal contract. Defendants have not explained how a federal contractor's affiliation with WilmerHale on "any business"—even business unrelated to the contract—is substantially related to defendants' proffered interests in "ensur[ing] that there is no transfer of taxpayer dollars to entities that engage in racial discrimination" or managing contracts on which WilmerHale is a subcontractor. It is certainly not clear to this Court! …

The court also accepted WilmerHale's separation of powers argument:

"[T]he President's power, if any, to issue [an Executive Order] must stem either from an act of Congress or from the Constitution itself." President Trump purportedly issued the WilmerHale Order pursuant to "the authority vested in [him] as President by the Constitution and the laws of the United States of America." WilmerHale argues that neither the Constitution nor any statutory authority empowers the President to issue the Order, and in fact the Order violates the separation of powers by usurping judicial authority to identify and sanction abuses of the judicial process. At the very least, the latter is certainly true! …

Even if the Court found that each section could be grounded in Executive power, the directives set out in each section clearly exceed that power! The President, by issuing the Order, is wielding his authority to punish a law firm for engaging in litigation conduct the President personally disfavors. Thus, to the extent the President does have the power to limit access to federal buildings, suspend and revoke security clearances, dictate federal hiring, and manage federal contracts, the Order surpasses that authority and in fact usurps the Judiciary's authority to resolve cases and sanction parties that come before the courts! The Constitution vests "[t]he judicial Power of the United States" in the Supreme Court and such inferior courts established by Congress. "Article III is 'an inseparable element of the constitutional system of checks and balances' that 'both defines the power and protects the independence of the Judicial Branch.'" "Under 'the basic concept of separation of powers … the "judicial Power of the United States" … can no more be shared' with another branch than 'the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto.'"

This judicial power includes the inherent authority to sanction attorneys for their conduct in Article III courts. "Federal courts possess certain 'inherent powers,' … 'to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.'" … It necessarily follows that this judicial power is exclusive of the other two branches….

The court accepted WilmerHale's void-for-vagueness argument:

WilmerHale alleges that "[t]he Order is unconstitutionally vague because it does not give WilmerHale fair notice of what is prohibited and how the Firm can avoid sanctions in the future." I agree! …

The Order does not provide WilmerHale with notice of how it should act in the future to avoid these sanctions. President Trump allegedly issued the Order because WilmerHale has "abandoned the profession's highest ideals" and "abused its pro bono practice to engage in activities that undermine justice and the interests of the United States." He points to WilmerHale's "obvious partisan representations," "efforts to discriminate on the basis of race," "obstruction of efforts to prevent illegal aliens from committing horrific crimes," and "efforts … to enable noncitizens to vote." The Court agrees that the Order "leaves no doubt that WilmerHale is being punished because it has represented some of the President's political opponents and advanced positions with which he disagrees," but it "does not specify what aspect of WilmerHale's conduct triggered its massive sanctions." Moreover, the Order's invocation of concepts such as "bedrock American principles" and "the interests of the United States" leave WilmerHale and its employees guessing about how to modify their conduct to avoid the Order's sanctions….

The court accepted the firm's Sixth Amendment right to counsel argument (asserted on behalf of its criminal defendant clients):

The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence." This guarantee requires providing a criminal defendant with "a fair opportunity to secure counsel of his own choice." … Absent an exception, a defendant is entitled to "the counsel he believes to be bestThe "[d]eprivation of the right is 'complete' when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the [alternative] representation he received." …

Here, WilmerHale has alleged and shown that the Order "infringes the Sixth Amendment right to counsel of [its] clients" by "eviscerat[ing] the Firm's ability to provide effective representation and advocacy for its clients." The firm represents "individuals accused of criminal … wrongs." This work requires entering federal buildings and engaging with federal employees. For example, "WilmerHale attorneys representing criminal defendants often meet with prosecutors in U.S. Attorneys' offices in-person to advocate for their clients."

By barring WilmerHale attorneys from federal buildings, prohibiting their engagement with federal employees, and suspending their security clearances, the Order effectively prevents the firm's attorneys from representing their clients in criminal matters. The Order also coerces WilmerHale's federal contractor clients to choose between their contracts and their engagements—including engagements on criminal matters—with WilmerHale….

Though the Order does not directly prohibit criminal defendants from hiring WilmerHale as their counsel, it certainly has that effect! The Supreme Court has indicated that indirect infringements on the right to counsel of choice can violate the Sixth Amendment…

The indirect infringement on the right to counsel here is severe, as explained above. I see no reason to ignore this violation simply because it is not a direct, explicit prohibition on representation of criminal clients. The intended and actual effect of the Order's sanctions is to drive clients away from WilmerHale! Taking into consideration the source of these directives—the President of the United States—along with the breadth of the sanctions, the Court finds that the Order materially "undermine[s] the value of" the firm's clients' right to counsel of choice.

The court, however, rejected the firm's Spending Clause argument, the firm's equal protection clause argument, and the firm's argument based on its clients' right to counsel in civil cases under the Due Process Clause.

Note that I signed a law professors' amicus brief in support of WilmerHale. Erin Elizabeth Murphy, Joseph John DeMott, Matthew Rowen, and Paul Clement (Clement & Murphy, PLLC) represent WilmerHale.

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[Eugene Volokh] Harvard Revokes Tenure of Business School Professor Francesca Gino "After Years of Data Fraud Allegations"

NBC News (Viola Flowers) reports:

Gino, widely known for researching honesty and ethical behavior, was placed on administrative leave in 2023 after multiple allegations of falsifying data surfaced….

No professors are known to have lost their tenure at Harvard since the 1940s, when the American Association of University Professors formalized rules of termination, according to The Harvard Crimson, the student newspaper.

Gino's lawsuit against Harvard related to Harvard's earlier disciplinary actions is still pending, but her defamation claims (including ones against authors at Data Colada, who had raised the allegations) were dismissed in September.

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[Eugene Volokh] Justices Alito and Thomas Dissent from Court's Declining to Hear "There Are Only Two Genders" School T-Shirt Case

From Justice Alito's dissent from the denial of certiorari in L.M. v. Town of Middleborough, joined (with a twist) by Justice Thomas:

This case presents an issue of great importance for our Nation's youth: whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive. In this case, a middle school permitted and indeed encouraged student expression endorsing the view that there are many genders. But when L.M., a seventh grader, wore a t-shirt that said "There Are Only Two Genders," he was barred from attending class. And when he protested this censorship by blocking out the words "Only Two" and substituting "CENSORED," the school prohibited that shirt as well.

The First Circuit held that the school did not violate L.M.'s free-speech rights. It held that the general prohibition against viewpoint-based censorship does not apply to public schools. And it employed a vague, permissive, and jargon-laden rule that departed from the standard this Court adopted in Tinker v. Des Moines Independent Community School Dist. (1969).

The First Circuit's decision calls out for our review….

[T]he First Circuit relied on the … [Tinker principle that the First Amendment allows discipline for student speech that] "materially disrupts classwork or involves substantial disorder." The court acknowledged that L.M.'s shirts—like the black armbands in Tinker—expressed his views "passively, silently, and without mentioning any specific students." But the court saw a material difference between L.M.'s speech and that of the students in Tinker. According to the First Circuit, L.M.'s expression—unlike the speech in Tinker—"demean[ed] characteristics of personal identity, such as race, sex, religion, or sexual orientation" that "other students at the school share." After surveying decisions from other Circuits that have encountered similar situations, the First Circuit fashioned a bespoke two-pronged test to apply in this context:

"[S]chool officials may bar passive and silently expressed messages by students at school that target no specific student if: (1) the expression is reasonably interpreted to demean one of those characteristics of personal identity, given the common understanding that such characteristics are unalterable or otherwise deeply rooted and that demeaning them strike[s] a person at the core of his being; and (2) the demeaning message is reasonably forecasted to poison the educational atmosphere due to its serious negative psychological impact on students with the demeaned characteristic and thereby lead to symptoms of a sick school—symptoms therefore of substantial disruption."

When both prongs are satisfied, the First Circuit explained, a court can be confident "that speech is being barred only for reasons Tinker permits and not merely because it is 'offensive' in the way that a controversial opinion always may be."

Applying this standard to the facts at hand, the First Circuit resolved both prongs in favor of the School. Specifically, it determined (1) that NMS reasonably interpreted L.M.'s shirts as asserting that anyone who identifies as anything other than male or female is "'invalid or nonexistent,'" which would "demean the identity of transgender and gender-nonconforming NMS students"; and (2) such an affront on the very "existence" of these students would "'materially disrupt [their] ability to focus on learning.'"In making the latter determination, the court deferred to the School's prior experiences with the "'LGBTQ+ population at NMS,'" particularly "the serious nature of the struggles, including suicidal ideation, that some of those students had experienced." Given the "'vulnerability'" of these students, the court saw no reason to second guess NMS's prediction that the shirts "would so negatively affect the[ir] psychology" that their academic performance and class attendance would decline.

Finally, the First Circuit sidestepped L.M.'s viewpoint-discrimination arguments. Rather than fully engage with those arguments on the merits, the court, in a footnote, declined to import this Court's broader viewpoint-discrimination jurisprudence into the school context….

I would grant the petition for two reasons.

First, we should reaffirm the bedrock principle that a school may not engage in viewpoint discrimination when it regulates student speech. Tinker itself made that clear…. ("Clearly, the prohibition of expression of one particular opinion … is not constitutionally permissible"). Curiously, however, the First Circuit declined to follow Tinker in this regard, instead cherry-picking which First Amendment principles it thought worthy of allowing through the schoolhouse gates. By limiting the application of our viewpoint-discrimination cases, the decision below robs a great many students of that core First Amendment protection.

Second, we should also grant review to determine whether the First Circuit properly understood the rule adopted in Tinker regarding the suppression of student speech on the ground that it presents a risk of material disruption. We have described this standard as "demanding." But the First Circuit fashioned a rule that is anything but. The lower courts are divided on how to apply Tinker's "material disruption" standard in a context like this one, and the decision below underscores the pressing need for clarification. {See, e.g., Zamecnik v. Indian Prairie School Dist. No. 204 (CA7 2011) (upholding a student's right to wear a shirt that read, "Be Happy, Not Gay"); Nuxoll v. Indian Prairie School Dist. No. 204 (CA7 2008) (same); Sypniewski v. Warren Hills Regional Bd. of Educ. (CA3 2002) (upholding a student's right to wear a shirt "inscribed with 'redneck' jokes"); see also Harper ex rel. Harper v. Poway Unified School Dist. (CA9 2006) (upholding a school's ban of a shirt that read, "Homosexuality Is Shameful"), vacated as moot (2007); Parents Defending Education v. Olentangy Local School Dist. Bd. of Educ. (CA6) (holding that a school could satisfy Tinker's material-disruption standard by relying on "common-sense conclusions based on human experience" to punish students for the "dehumanizing and humiliating effects of non-preferred pronouns"), reh'g en banc granted (CA6 2024)….

[A.] "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Otherwise, the government could purge entire topics from the public discourse. And as our cases recognize, these freedom-of-speech harms become "all the more blatant" when the government "targets not subject matter, but particular views taken by speakers on a subject."

Nor is there a carveout from this principle for controversial, offensive, or disfavored views. For example, we recently held unconstitutional a statute prohibiting the registration of "immoral or scandalous" trademarks, explaining that "a law disfavoring 'ideas that offend'" is "the 'essence of viewpoint discrimination.'" Indeed, the presumption against viewpoint discrimination is of such importance to our constitutional order that we have even applied it to categories of speech—like fighting words—that do not enjoy full First Amendment protection. So, for example, Congress could ban all fighting words, but it could not ban only those fighting words directed toward Protestants.

Unsurprisingly, the viewpoint-neutrality rule also applies to student speech. Students do not relinquish their First Amendment rights at school, and by extension, a school cannot censor a student's speech merely because it is controversial. As Tinker itself made clear, the viewpoint-neutrality rule plays an important role in safeguarding students' First Amendment right to express an "unpopular viewpoint" at school. There, in holding unconstitutional the decision to prohibit students from wearing black armbands to protest the Vietnam War, we emphasized that the school authorities "did not purport to prohibit the wearing of all symbols of political or controversial significance." "[S]tudents in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism." The schools allowed this speech but not the armbands. We concluded that such viewpoint discrimination "is not constitutionally permissible." …

[T]he First Circuit … [stated] in a footnote …: "We see no reason to take up L.M.'s invitation to be, as far as we can tell, the first court to import recent decisions that clearly did not contemplate the special characteristics of the public-school setting into that setting." The court below erred, and badly so: the rule that viewpoint-based restrictions on speech are almost never allowed is not a new principle proclaimed only in "recent decisions" …. To the contrary, viewpoint neutrality has long been seen as going to "the very heart of the First Amendment." B

[B.] The First Circuit also watered down the test adopted in Tinker for determining whether a school's restriction of student speech is allowed. Because free speech is the default and censorship the exception, Tinker set forth a "demanding standard." We held that a school can restrict speech when it has "evidence" that such restrictions are "necessary" to "avoid material and substantial interference with schoolwork or discipline." Thus, absent a "specific showing" of such a disruption—like "threats or acts of violence on school premises"—this justification for suppressing student speech does not apply.

Under this standard, NMS had no right to censor L.M. Like the black armbands in Tinker, L.M.'s shirts were a "silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitione[r]."  And just as in Tinker, some of L.M.'s classmates found his speech upsetting. Feeling upset, however, is an unavoidable part of living in our "often disputatious" society, and Tinker made abundantly clear that the "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint" is no reason to thwart a student's speech.  True, NMS also forecasted that L.M.'s shirts could lead to a "standoff " between students who support L.M.'s view and those who oppose it. 103 F. 4th, at 880. But the schools in Tinker were similarly worried that students "would wear arm bands of other colors" and that this could "evolve into something which would be difficult to control." 393 U. S., at 509, n. 3 (internal quotation marks omitted). If anything, the risk in Tinker was far less speculative than in this case. In Tinker, several students had already "made hostile remarks to the children wearing armbands," and a math teacher "had his lesson period practically 'wrecked' chiefly by disputes with Mary Beth Tinker" over her armband. Even so, Tinker deemed the schools' concern an "undifferentiated fear" that could not "overcome the right to freedom of expression."

Instead of applying Tinker's speech-protective standards, the court below crafted a novel and permissive test that distorts the "material disruption" rule beyond recognition. The First Circuit identified a special category of speech, i.e., speech that can be interpreted as demeaning a deeply rooted characteristic of personal identity. And if student speech, as interpreted by the school, falls into this category, the school may ban that speech if the school "reasonably forecast[s]" that it may have a "serious negative psychological impact on students with the demeaned characteristic."

This rule cannot be squared with Tinker. The black armbands in that case also involved an emotionally charged topic, and the students in the Des Moines public schools were not somehow immune from those intense feelings. Justice Black made precisely this point in his dissent, writing: "Of course students … cannot concentrate on lesser issues when black armbands are being ostentatiously displayed in their presence to call attention to the wounded and dead of the war, some of the wounded and the dead being their friends and neighbors." … "[T]he armbands … took the students' minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war" …. Indeed, a "former student of one of [the] high schools was killed in Viet Nam," and "[s]ome of his friends [were] still in school." The Tinker Court nevertheless held that this stress and these distractions did not trump the students' constitutional rights.

The First Circuit's test dilutes Tinker in other ways too. To name just a few, it defines "material disruption" to include anything that correlates with "a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school," whatever that means. That is a highly permissive standard, and it certainly requires far less than that which Tinker suggested would constitute a "material disruption." See Tinker ("aggressive, disruptive action"); ibid. ("threats or acts of violence on school premises"); ibid. ("group demonstrations").

Further, the First Circuit's test demands that a federal court abdicate its responsibility to safeguard students' First Amendment rights and instead defer to school officials' assessment of the meaning and effect of speech. The court below, for example, deferred to the School administrators' determination that L.M.'s shirts conveyed a message that demeaned others' personal identity. That court also deferred to the administrators' speculation about the likely effects of the t-shirts on students—even though L.M.'s speech resulted in no actual disruptions, and even though NMS "was not aware of any prior incidents or problems caused by th[e] [shirts'] message[s]."  That approach defies Tinker, in which we performed our own "independent examination of the record" without trusting school administrators' self-serving observations.

Tinker's "material disruption" standard is demanding by design. That is because free speech is the rule, not the exception. The First Circuit's test flips that principle on its head….

Justice Thomas noted that he had called for Tinker to be overruled, and for the Court to conclude that public schools have essentially plenary authority to restrict students' speech. But he joined Justice Alito's opinion on the grounds that, "unless and until this Court revisits it, Tinker is binding precedent that lower courts must faithfully apply." [UPDATE: I originally wrote Justice Black in the first sentence of this opinion, but of course this was Justice Thomas, who has long defended Justice Black's position in Tinker. In general, Justice Thomas's constitutional jurisprudence has in many ways echoed Justice Black's, just as Justice Breyer's had echoed Justice Frankfurter's.]

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[Eugene Volokh] Justices Gorsuch and Thomas Dissent from Court's Declining to Hear Apache Religious Freedom Case

From today's dissent from denial of certiorari by Justice Gorsuch, joined by Justice Thomas, in Apache Stronghold v. U.S.:

For centuries, Western Apaches have worshipped at Chí'chil Biłdagoteel, or Oak Flat. They consider the site a sacred and "direct corridor to the Creator." It is a place where tribal members conduct "religious ceremonies that cannot take place elsewhere." Recognizing Oak Flat's significance, the government has long protected both the land and the Apaches' access to it.

No more. Now, the government and a mining conglomerate want to turn Oak Flat into a massive hole in the ground. To extract copper lying beneath the land, they plan to blast tunnels that will result in a crater perhaps 1,000 feet deep and nearly two miles wide. "It is undisputed" that the government's plan will permanently "destroy the Apaches' historical place of worship, preventing them from ever again engaging in religious exercise" at Oak Flat.

Seeking to halt the destruction of the Apaches' sacred site, Apache Stronghold, a nonprofit organization, sued under the Religious Freedom Restoration Act of 1993 (RFRA). That law prevents the federal government from "substantially burden[ing] a person's exercise of religion," unless that burden represents "the least restrictive means of furthering [a] compelling governmental interest." In a sharply divided en banc decision, the Ninth Circuit rejected Apache Stronghold's challenge. Though the government's plan will result in the destruction of an ancient sacred site, the Ninth Circuit reasoned, that plan does "not impose a substantial burden on religious exercise."

Apache Stronghold asks us to review the Ninth Circuit's extraordinary conclusion. But the Court today turns aside the group's request. Respectfully, that is a grave mistake. This case meets every one of the standards we usually apply when assessing petitions for certiorari: The decision below is highly doubtful as a matter of law, it takes a view of the law at odds with those expressed by other federal courts of appeals, and it is vitally important. Before allowing the government to destroy the Apaches' sacred site, this Court should at least have troubled itself to hear their case….

In cases like Sherbert v. Verner (1963), and Wisconsin v. Yoder (1972), the Ninth Circuit observed, this Court asked whether the government's challenged action imposed a substantial burden on religion, whether that burden served a compelling interest, and whether the government's chosen means were narrowly tailored. Later, the Ninth Circuit continued, this Court upended that approach in Employment Div., Dept. of Human Resources of Ore. v. Smith (1990), by holding that Sherbert and Yoder's test for Free Exercise claims does not apply to challenged governmental actions that are "'neutral'" toward and among religions and "generally applicable" to all persons. Later still, the Ninth Circuit noted, Congress expressed displeasure with Smith, adopted RFRA, and in doing so effectively guaranteed the Sherbert and Yoder test would be applied "in all cases where free exercise of religion is substantially burdened." …

{[But w]hile the phrase "substantial burden" generally reaches actions that "preven[t] access to religious exercise," the [Ninth Circuit en banc] majority said, that rule does not apply to actions involving "a disposition of government real property."} The court pointed to [a] pre-Smith [Free Exercise Clause] case, Lyng v. Northwest Indian Cemetery Protective Assn. (1988). That case involved a First Amendment challenge to a plan to construct a road on federal land near sacred tribal sites. On the Ninth Circuit's telling, Lyng set forth a special test for analyzing whether the government's "disposition" of its real property runs afoul of the Free Exercise Clause. That test, the Ninth Circuit said, permits the government to do as it pleases with its property as long as it has no "tendency to coerce individuals into acting contrary to their religious beliefs" and does not "discriminat[e]" against or among religious adherents. In the Ninth Circuit's view, what counts as a "substantial burden" under RFRA "must be construed in light of " this Court's pre-Smith First Amendment jurisprudence and thus must be understood to "subsum[e], rather than abrogat[e], the holding of Lyng." …

There are many reasons to think {the Ninth Circuit erred} …. Consider just a few of them.

First, the Ninth Circuit's interpretation of the phrase "substantial burden" is difficult to reconcile with the statutory text. As a matter of ordinary meaning, after all, an action that prevents a religious exercise does not just burden that exercise substantially, it burdens it completely. Even the Ninth Circuit seemed to recognize as much, acknowledging that, as a rule, the government imposes a substantial burden on religious exercises when it "prevent[s]" them entirely.

Exactly nothing in the phrase "substantial burden"—or anything else in RFRA's text—hints that a different and more demanding standard applies when (and only when) the "disposition" of the government's property is at issue. To the contrary, RFRA proceeds to define the "exercise of religion" to include "[t]he use … of real property for the purpose of religious exercise." The statute adds that its demands apply to "all" of "Federal law," without regard to subject matter. And the statute provides that "nothing" in its provisions "shall be construed to authorize any government to burden any religious belief." In each of these ways, RFRA's terms suggest that a law disposing of federal real property is to be treated like any other.

Second, while RFRA may have sought to restore some of this Court's pre-Smith First Amendment jurisprudence, we have never held that the statute should be construed to "subsum[e ]" that jurisprudence wholesale. Far from it. In Burwell v. Hobby Lobby Stores (2014), for example, the government argued that RFRA's use of the phrase "exercise of religion" should be understood to reach only those religious practices this Court had recognized to be protected by the First Amendment before Smith. But this Court emphatically rejected that notion, describing its implications as "absurd" and explaining that, "by enacting RFRA, Congress went far beyond what this Court ha[d] held [to be] constitutionally required" before Smith. Similarly, in Holt v. Hobbs (2015), a lower court invoked this Court's pre-Smith First Amendment decisions to hold that a prison regulation prohibiting inmates from growing beards did not "substantially burden" religious exercise under the Religious Land Use and Institutionalized Persons Act (RLUIPA), RFRA's "sister statute." But, again, this Court firmly rejected that course, holding that the lower court had "improperly imported a strand of reasoning" from First Amendment decisions into a distinct statutory setting that guarantees "greater protection."

Third, even taken on its own terms, it is hard to see how Lyng can be read as setting forth a special test for determining when a government's "disposition" of land represents a "substantial burden" on religion. Just search Lyng for the phrase "substantial burden." You will not find it. Nor did Lyng involve a challenge to a governmental plan that seeks to destroy a religious site, as the government's plan for Oak Flat would. Instead, that case concerned a plan to build a road near religious sites that promised to generate noise and considerable disruption, but that also promised to leave those sites standing. In rejecting a First Amendment challenge to the government's plan in Lyng, the Court took pains to stress that point, and the fact that the government's actions would not "prohibit" religious exercises.

To be sure, Lyng also stressed that the government's plan at issue there did not "discriminate" against or among religions. And later, in Smith, this Court read Lyng to support its view that the government does not violate the Free Exercise Clause when its actions are "neutral" toward and among religions and "generally applicable." But none of that has any bearing here. As we have seen, the fact that the government acts pursuant to a neutral and generally applicable law is not enough to satisfy RFRA. Even in those circumstances, the government may not impose a "substantial burden" on religious exercise unless it has a compelling reason to do so and employs the least restrictive means to further that interest.

Fourth, at bottom, it seems the Ninth Circuit was concerned that a ruling for Apache Stronghold would effectively afford tribal members a "'religious servitude'" on federal land at Oak Flat. And, the argument goes, those who adopted RFRA could not have intended to afford Tribes or others that kind of power over the disposition of federal property. But unexpressed legislative intentions are not the law. And even if we were to abandon the statutory text in favor of guesswork about unenacted congressional purposes, it is far from clear why we should make the guess the Ninth Circuit did.

The truth is, Congress has adopted all sorts of laws restricting the government's power to dispose of its real property. Take just one example, the Endangered Species Act. That law, this Court once held, required the government to halt "operation of a virtually completed federal dam" to protect the endangered "snail darter," a "previously unknown species of perch." The Court read the Act to require that result even though Congress had spent more than $100 million on the dam—nearly half a billion in today's dollars—and our holding effectively "'divest[ed] the Government of its right to use what is, after all, its land.'" If Congress went to such lengths to accommodate the snail darter, why should we suppose it offered less protection to people practicing an ancient faith? …

Not only does the Ninth Circuit's decision merit our review because it rests on questionable legal footing. Review is all the more warranted because that decision implicates both a vital question and a circuit split. [Details omitted. -EV] …

While this Court enjoys the power to choose which cases it will hear, its decision to shuffle this case off our docket without a full airing is a grievous mistake—one with consequences that threaten to reverberate for generations. Just imagine if the government sought to demolish a historic cathedral on so questionable a chain of legal reasoning. I have no doubt that we would find that case worth our time. Faced with the government's plan to destroy an ancient site of tribal worship, we owe the Apaches no less. They may live far from Washington, D. C., and their history and religious practices may be unfamiliar to many. But that should make no difference. "Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country's commitment to … religious freedom."

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[Keith E. Whittington] Academic Freedom Podcast on the Federal Funding Freeze Aimed at Harvard University

[An explainer from Cass Sunstein]

A new episode of the Academic Freedom Podcast has been released. The podcast is sponsored by the Academic Freedom Alliance and the Center for Academic Freedom and Free Speech at Yale Law School.

This episode features a conversation with Cass Sunstein, the Robert Walmsley University Professor at Harvard Law School and former administrator of the White House Office of Information and Regulatory Affairs. His recent working paper, "'Our Money or Your Life!' Higher Education and the First Amendment," explores the First Amendment constraints federal funding to American universities.

In the last few weeks, the Trump administration has made several announcements that it is withholding a significant amount of federal funds from specific universities, notably Columbia University and Harvard University, and that those funds will not be released until those universities comply with a set of demands. Harvard received a letter on April 11 demanding changes in Harvard's governance, faculty hiring practices, student admissions practices, viewpoint diversity among the faculty, and student disciplinary policies, among other things. On May 5, the Secretary of Education sent a letter to Harvard informing the university that the federal government will award it no grants for scholarly research in the future. Reportedly, there is more than $2 billion dollars at stake.

On the podcast we talk through what the Trump administration is doing, what the consequences are for Harvard and other affected universities, and what constitutional issues are raised by the administration's actions in denying Harvard access to federal research funds. In the process, we get a short course on First Amendment doctrine relating to viewpoint discrimination and unconstitutional conditions.

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[Mark Movsesian] Confession and the Constitution

[Washington State's new law on clergy reporting in child abuse cases.]

This month, Washington State enacted a law requiring clergy to report suspected child abuse or neglect, even when the information is obtained through a confidential spiritual communication, like Confession in the Catholic Church. The new law seems clearly unconstitutional under current doctrine; that's the easy part. But the deeper issues are more interesting and more difficult, and they have been with us for a very long time. 

The new law departs significantly from the approach in most other states, even those that mandate clergy reporting. Most of those states preserve the traditional clergy-penitent privilege while mandating that clergy report abuse they learn about in other contexts. What's more, Washington's law expressly preserves other professional privileges, like the attorney-client privilege, but explicitly eliminates the clergy-penitent privilege. That unequal treatment presents a serious problem under current free exercise law. 

Under cases like Fulton v. City of Philadelphia and Tandon v. Newsom, which adopt what scholars have called the "most favored nation" approach, laws that provide exemptions for secular conduct but not analogous religious conduct must survive strict scrutiny. That means the government must show that the law advances a compelling state interest and that it uses the least restrictive means of doing so. Punishing child abuse is undoubtedly a compelling state interest, but if the law allows attorneys to withhold relevant information while requiring clergy to disclose it, the state will have difficulty justifying its choice.

The issues surrounding the clergy-penitent privilege have been with us a long time. In one of the earliest American cases on religious liberty, People v. Philips (1813), a Catholic priest refused to testify in a criminal trial about a penitent who had confessed to returning stolen goods. The state argued that public safety required all citizens to cooperate with the criminal process and that religion was no excuse. The court, however, sided with the priest, reasoning that public safety did not justify requiring him to violate a core "ordinance" of his faith. Confession might in fact encourage culprits to come clean, as had happened in Philips; the stolen goods had been returned. What's more, the court noted that the state already recognized an attorney-client privilege, and implied that religious privileges deserved equal respect.

Philips was decided under the New York State Constitution, not the Free Exercise Clause, but the debate—public safety versus religious liberty, civic obligation versus spiritual commitment—remains much the same. And that is because balancing personal religious commitments and civic duties, whatever the specific legal doctrine, is an enduring problem in a pluralistic society. Too much deference to religious commitments interferes with public policy and threatens chaos. Too little renders our commitment to religious freedom hollow.

The clergy-penitent privilege, in particular, has become more problematic over time. Confidentiality imposes costs, which can be very high in the child abuse context. Historically, though, the privilege was narrow, covering only sacramental confessions in traditions, like Catholicism, where such practices were theologically mandated. The costs were contained to a few situations.

Starting in the mid-20th century, though, courts expanded the privilege to cover a wide range of spiritual communications, sometimes in informal or undefined contexts. That expansion may have been necessary in the interests of state religious neutrality. But it has made the privilege costlier and harder to defend in the face of pressing state interests like child protection.

My colleague Marc DeGirolami and I discuss the new Washington State law, and the pros and cons of the clergy-penitent privilege generally, in a new Legal Spirits podcast. Listen in! 

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[Eugene Volokh] Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do"

[What did that 1995 article trying to predict the Internet future get right? More amusingly, what did it get wrong?]

In Fall 1994, I wrote an article called "Cheap Speech and What It Will Do," which became my first publication as a law professor. It was for a Yale Law Journal symposium called "Emerging Media Technology and the First Amendment," which was about the then-emerging technology of the Internet. (Fun fact: Back then, we would hammer out our manuscripts with chisels on clay tablets.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong, from "infobahn" to people printing out daily newsletters to read them.

I've omitted most of the footnotes—you can see them here—but I've moved a few of the substantive ones into text, marking them (as I usually do for moved text) with { and }. This morning, I begin with the Introduction.

[* * *]

It's easier for the rich to speak than it is for the poor. It's also easier to speak if what you're saying, or singing or drawing, has mass appeal. Publishers will only invest in a product if the expected returns exceed the expected costs. If your work lacks a wide audience, publishers may be hard to find; and even if you can get a small publisher to back you, distributors may be unwilling to let you use their scarce shelf space. Getting access to nationwide radio and TV is harder still. People with unorthodox tastes lose out, and even those in the mainstream suffer when potentially interesting work isn't produced because of (rational) predictions that it won't be a hit.

Many have pointed to these problems—the bias in favor of speech of the rich, or of speech endorsed by the rich, and the relative blandness of much mass media. The perfect "marketplace of ideas" is one where all ideas, not just the popular or well-funded ones, are accessible to all. To the extent this ideal isn't achieved, the promise of the First Amendment is only imperfectly realized. And some suggest that because current First Amendment doctrine is premised on an open-market metaphor that isn't valid, the law should be adapted to this brutal reality.

My thesis is that (1) these two problems are directly linked to the fact that speaking today is expensive; (2) new information technologies, especially the "information superhighway"  or "infobahn,"  will dramatically reduce the costs of distributing speech; and, therefore, (3) the new media order that these technologies will bring will be much more democratic and diverse than the environment we see now. Cheap speech will mean that far more speakers—rich and poor, popular and not, banal and avant garde—will be able to make their work available to all.

To support this view, I describe in Part I what I think will be the likely information future and the market forces that will make it inevitable. I focus on how the infobahn will change the existing forms of communication: music, books, newspapers, magazines, and television. (Though the new, truly interactive media-electronic bulletin boards, Internet mailing lists, and Internet newsgroups-are a very intriguing topic, lack of space keeps me from discussing them. )

In Part II, I suggest some social consequences of these technological changes, each of which might be relevant to thinking about the First Amendment:

(1) Democratization and Diversification: Many more speakers will be able to make their speech widely available, including many who can't afford to do so today; and listeners will have much more choice than they have now.

(2) The Shift of Power Away from Intermediaries: Control over what is said and heard will shift from intermediaries—publishers, bookstore and music store owners, and so on—to speakers and listeners themselves. Private parties will thus find it harder to use their market power to stifle speech. Listeners will find it easier to become well informed about the issues in which they're interested. On the other hand, it will be easier for people to choose only the information they know they want, and to ignore other topics and other views. And the extra diversity of speech may reduce social and cultural cohesion.

(3) Mixed Effects on Poor Listeners: Poor listeners will be able to enjoy many of the benefits of the new order, but to some extent may be shut out from other benefits.

(4) Substantial Changes in Advertising in the Media: There'll be more no-advertising and low-advertising media; advertising will be better targeted to people; newspapers will lose a lot of classified advertising income; and political advertisements might change significantly.

Finally, in Part III I briefly explore some of the possible First Amendment implications of these changes. My ultimate conclusion is that the First Amendment of today will not only work well with the new information order—it will work better than it ever has before. But I also discuss ways in which the new technologies might undercut some of the assumptions that underlie the existing doctrine, and might lead to public pressure for legal changes.

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[Josh Blackman] Today in Supreme Court History: May 27, 1935

5/27/1935: Schechter Poultry Corp. v. U.S. decided.

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[Ilya Somin] New Jersey Town Seeks to Condemn Church to Build a Park and Pickleball Courts

[The move may be a pretext for blocking the church's plan to build a homeless shelter. If the town proceeds, it will face near-certain litigation under the federal and state constitutions.]

Christ Episcopal Church, Toms River, NJ. (Christ Episcopal Church)

 

The New York Times reports that the town of Toms River, New Jersey is planning to use eminent domain to condemn a church, raze it, and build a park and pickleball courts on the spot. The planned condemnation may be motivated by a desire to prevent the church from opening a small homeless shelter on part of its land:

Leaders of Christ Episcopal Church in Toms River, N.J., were preparing for a Cinco de Mayo festival late one night when the news began to spread: The mayor planned to use eminent domain to seize their church and its 11 acres of land.

Under his plan, the church, which was founded in 1865, would be replaced by 10 pickleball courts, a soccer field and a playground with a nautical theme, according to an engineer's drawing. The first vote by the Township Council, Toms River's governing board, was the next afternoon.

The proposal represented a curious new twist in an ongoing battle in the large Jersey Shore community. An affordable housing nonprofit that rents space from the church had asked to create a small homeless shelter on the very land the mayor now wanted to turn into a park. The request was unpopular with neighbors, and the organization was awaiting approval from a zoning board.

The mayor, Daniel T. Rodrick, called the timing a "coincidence." But opponents have condemned the park plan as a thinly disguised way to block the shelter.

The effort to buy or take the land is all but certain to face legal challenges. But it has unleashed an emotional debate over property rights, religious liberty and the limits of a community's responsibility to care for poor people….

"I am outraged," said Rabbi William Gershon of Congregation B'nai Israel, a conservative synagogue that has been in Toms River for 75 years. "If you can do it to them, you can do it to any of us."

Rabbi Gershon said members of the town's interfaith council were united in their opposition to the effort, which he considers an attempt to use "political levers to cudgel a community, almost vindictively."

Rabbi Gershon is right. This sort of use of eminent domain is abusive and unjust. As the NY Times article notes, there is substantial public opposition to the taking. The Mayor of Toms River (who supports the taking) has postponed the final town council vote on it until July 30.

If the town decides to proceed with the condemnation, it will likely be challenged in court under the state and federal constitutions, as not being for a "public use." Unfortunately, US Supreme Court precedents, such as the notorious ruling in Kelo v. City of New London (2005), hold that almost anything that might benefit the public in some way qualifies as a "public use," even if the land is going to be transferred to a private party (see my critique of this position in my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain).

However, Kelo does allow courts to strike down "pretextual" condemnations where the official rationale for the taking is really a pretext for a scheme to benefit a private party. What qualifies as a pretextual taking is anything but clear! Lower courts have developed at least five different approaches for addressing such issues. For details, see my recent amicus brief urging the Court to revisit Kelo. But if the plan to condemn the church really is motivated by neighbors' complaints abut the potential homeless shelter, there is at least a plausible argument that the taking here is pretextual. That would be even more true if the plan provides for transferring some or all of the condemned property to a private owner.

New Jersey is within the jurisdiction of the US Court of Appeals for the Third Circuit. In Carole Media v. N.J. Transit Corp., 550 F.3d 302 (3d Cir. 2008), that court ruled that a key criterion for identifying a pretextual taking is whether there is a private beneficiary (usually the new owner) whose identity is known in advance.

I won't go into detail here. But New Jersey courts applying their state constitutional public use clause are much less deferential than federal courts applying Kelo and other Fifth Amendment public use precedents. Just ask Donald Trump, whose effort to use eminent domain condemn a widow's home to build a parking lot for one of his casinoes got struck down by a New Jersey court in CRDA v. Banin (1998) [I had a very small role in working on that case as a law student clerk at the Institute for Justice, which represented the property owners].

Whether the Toms River Church condemnation can be successfully challenged in court is likely to depend on facts such as how detailed and extensive the development plan is, whether some or all of the property will be transferred to a new private owner (public use challenges are much more likely to succeed if the answer is "yes"), and the extent of evidence of pretextual motivation.

I intend to reach out those involved to learn the answers to these questions, and - if possible - offer assistance to the Church in fighting this condemnation. If readers have relevant contacts, please let me know.

 

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[Ilya Somin] Trump Seeks to Deport Afghans Who Fled the Taliban

[Lifting TPS status would make them eligible for deportation to Afghanistan, where the Taliban is likely to persecute and punish them.]

Afghan evacuees arrive at Dulles International Airport in September 2021 (Rod Lamkey - CNP/Polaris/Newscom)

 

The Washington Post reports that Trump will lift Temporary Protected Status (TPS) from thousands of Afghans who fled persecution by the Taliban, after the radical Islamist movement took over their country in 2021:

The Trump administration's move to end deportation protections for wartime allies who fled to the United States after the fall of Afghanistan has infuriated veterans of the 20-year conflict there, who say the U.S. government is betraying a sacred promise made to some of America's most vulnerable partners.

This month Homeland Security Secretary Kristi L. Noem announced the administration's termination of temporary protected status, or TPS, for Afghans, exposing thousands, potentially, to deportation by Immigration and Customs Enforcement (ICE) as soon as July, when the policy is to take effect.

The fear, veterans and other advocates say, is that anyone who returns to Afghanistan will almost certainly face reprisal by the Taliban, the extremist militant group that in 2021 overran the U.S.-trained Afghan military and toppled the government in Kabul…..

Advocacy groups estimate that about 10,000 Afghans in the United States have been dependent on TPS while they navigate the lengthy and complex process for obtaining permanent residency, a process made all the more difficult, they say, by the absolute chaos that defined Afghanistan's collapse — and by the guidance they received from the U.S. government while trying to escape.

The veterans' groups are right. Afghans deported back to Afghanistan - especially those who worked with the US during the war - will indeed face harsh persecution by the Taliban. Deporting them would be profoundly unjust, and also a betrayal of wartime allies that will make it more difficult for the US to recruit local support in any future conflict. If we don't stand by our allies, why would anyone trust us?

I'm old enough to remember a time when Republicans saw themselves as fighters against radical Islamism. Now they seek to deport Afghan allies back to the tender mercies of the Taliban, under the ludicrous pretext that conditions in Afghanistan are improving under the Taliban's rule.

This move is part of Trump's broader cruel assault on legal immigration, which includes barring nearly all refugee admissions, and targeting other groups for deportation back to repressive regimes in their countries of origin. Virtually the only group the Trump Administration sees as worthy of refuge are Afrikaner white South Africans, prioritized for refugee status under a February executive order.

I don't object to admitting the Afrikaners, and doing so might even set a useful precedent. But the idea that South African whites face worse persecution than Afghan opponents of the Taliban and other victims of oppressive regimes is utterly ridiculous. It reflects the racial obsessions of elements of the far right, not any objective reality.

Trump's abrogation of TPS for the Afghans is likely to be challenged in court. But the Supreme Court recently stayed a lower court decision blocking revocation of TPS for Venezuelans (despite the fact that they too face deportation to a brutally repressive government), and it seems likely, even if not certain, that the justices would do the same in a case involving the Afghans.

The lifting of TPS doesn't immediately imperil all Afghans in the United States. Many have parole status, granted and extended during the Biden Administration. But Trump could try to pull that, as well (as he has sought to do in the case of Cubans, Haitians, Nicaraguans, and Venezuelans), and in any event parole status is only temporary, and will eventually run out.

While Trump deserves severe condemnation for  this cruel policy, Congress also deserves a hefty share of the blame. For years, veterans groups and others lobbied them to pass the Afghan Adjustment Act, which would have granted permanent residency rights to Afghans who fled the Taliban.  I repeatedly advocated this, as well. But Congress dithered, and so here we are.

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