Category: General Law

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“Habeas Corpus in Wartime”

Professor Amanda Tyler’s long-awaited and fabulous book on the history of the Constitution’s Suspension Clause is about to come out. You can pre-order it here. The Abstract is:

Habeas Corpus in Wartime unearths and presents a comprehensive account of the legal and political history of habeas corpus in wartime in the Anglo-American legal tradition. The book begins by tracing the origins of the habeas privilege in English law, giving special attention to the English Habeas Corpus Act of 1679, which limited the scope of executive detention and used the machinery of the English courts to enforce its terms. It also explores the circumstances that led Parliament to invent the concept of suspension as a tool for setting aside the protections of the Habeas Corpus Act in wartime. Turning to the United States, the book highlights how the English suspension framework greatly influenced the development of early American habeas law before and after the American Revolution and during the Founding period, when the United States Constitution enshrined a habeas privilege in its Suspension Clause. The book then chronicles the story of the habeas privilege and suspension over the course of American history, giving special attention to the Civil War period. The final chapters explore how the challenges posed by modern warfare during the twentieth and twenty-first centuries have placed great strain on the previously well-settled understanding of the role of the habeas privilege and suspension in American constitutional law, particularly during World War II when the United States government detained tens of thousands of Japanese American citizens and later during the War on Terror. Throughout, the book draws upon a wealth of original and heretofore untapped historical resources to shed light on the purpose and role of the Suspension Clause in the United States Constitution, revealing all along that many of the questions that arise today regarding the scope of executive power to arrest and detain in wartime are not new ones.

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FAN 168.1 (First Amendment News) Prof. Alan Morrison Weighs in on Facts Issue in Cake Case

Earlier today I posted an issue of First Amendment News entited Resolution of wedding cake case — is it all about fashioning the facts?

In resposne to that, Professor Alan Morrison wrote to me inquiring how the factual dispute in the case might play out in the future, and then he raised this question: “Will this end up being a case in which parties can determine outcomes in the future by tailoring their speech and response?” Intrigued by that question, I invited Alan to elaborate. His comments are set out below. For the benefit of the reader, I have reinserted my five scenarios since Alan referenced them.

* * * * 

Ron Collins raises the interesting question of whether the facts in Masterpiece Cake case may play a very significant role in the outcome, based on which of (at least) his five scenarios  (dare I say “alternative facts”) the Court accepts. Presenting these alternative scenarios raises several thoughts that may be worth considering.

* * * * 

Scenario # 1: Gay couple walks into Christian bakery and attempts to buy a generic wedding cake from refrigerator display. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 2: Gay couple walks into Christian bakery and orders a generic wedding cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 3:  Gay couple walks into Christian bakery and asks if they design cakes for same sex couples. Owner says no. Couple then attempts to buy generic wedding cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 4: Gay couple walks into Christian bakery and orders a generic wedding cake. They then ask to purchase  two grooms to place on the cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 5: Gay couple walks into Christian bakery and asks if they will create and design a wedding cake for them. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

* * * * 

Prof. Alan Morrison (credit: GW Today_

It appears that the exchange between the buyers and the seller that gave rise to this case was very brief and was almost surely not carried out with the legal issue now before the Court in the minds of anyone.  From what I have read, the alternatives Ron discusses were not fleshed out in this exchange and so what each party now says it wanted may have no bearing on what, if anything, was going through their minds at the time.  To add to the uncertainty, the exchange was so brief, and perhaps infused with emotion on both sides, that any nuances now suggested were either not picked up or lost in the moment.

If the Court’s decision turns on which scenario it accepts as what actually happened, how much confidence should we have that the Court’s “facts” will be the “real” facts — whatever that means?  The only saving grace is that the remedy ordered does not include money damages and any injunction that is upheld is likely to be quite targetted, which brings me to my next thought.
Despite its emotional importance, this decision is likely to be of only modest significance, unless the Court takes an extreme position one way or the other. Suppose the Court says that artistic cake making is protected, but only if the baker is clear that this is a very limited exception. And assume further that cake makers — and perhaps florists and photographers — get the word and now know what they must say, and may not say, if they want to honor their consciences and avoid liability.  My hunch is that they will probably able to find a way to do that, and the cake buyers will still be able to get their cakes (and eat them too) in most situations.
Finally. I think (perhaps hope ) that this decision may have limited real world impact based on the fact that there are probably very few people in business who will turn away customers for reasons of conscience, not only because of the direct lost income, but because of what an adverse Internet posting may do for their business more generally.  And on the other side, will those few buyers who are turned down for reasons of conscience care enough to spend the time and money to establish a principle, or instead go to another shop that actually wants to serve them?

As a lawyer who has brought cases where the principle is as important as the benefits to the client, I applaud the buyers here for making the complaint and carrying it to the Supreme Court.  But my point is only that, once the Supreme Court speaks, there is not likely to be many follow-on cases, which is probably to the good for everyone.

Alan Morrison
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FAN 168 (First Amendment News) Resolution of wedding cake case — is it all about fashioning the facts?

With oral arguments set for December 5th in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the central arguments in the case may have less to do with the law and more to do with the particular facts. On the one hand, if the relevant facts prove that there was no more than refusing to bake a cake for a gay couple, then the road to First Amendment victory will be a difficult one. On the other hand, if the pertinent facts point to a request followed by a refusal to create or design a cake for a gay weddding, then the First Amendment free expression claim will be far stronger.

So which is it? Is this a baking case or a create and design case?  To answer that question, I turned to some of the briefs presented in the case. Before going there, however, consider the following five scenarios:

Scenario # 1: Gay couple walks into Christian bakery and attempts to buy a generic wedding cake from refrigerator display. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 2: Gay couple walks into Christian bakery and orders a generic wedding cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 3:  Gay couple walks into Christian bakery and asks if they design cakes for same sex couples. Owner says no. Couple then attempts to buy generic wedding cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 4: Gay couple walks into Christian bakery and orders a generic wedding cake. They then ask to purchase  two grooms to place on the cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 5: Gay couple walks into Christian bakery and asks if they will create and design a wedding cake for them. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Question: For First Amendment freedom of expression purposes, does the difference in facts require different constitutional outcomes? 

The Briefs in the Case

FACTS PORTRAYED AS “CREATE” AND “DESIGN”

Colorado Court of Appeals’s Statement of Relevant Facts

“In July 2012, Craig and Mullins visited Masterpiece, a bakery in Lakewood, Colorado, and requested that Phillips design and create a cake to celebrate their same-sex wedding. Phillips declined, telling them that he does not create wedding cakes for same-sex weddings because of his religious beliefs . . .” [underlining added]

→ Mullins v. Masterpiece Cakeshop, Inc. (Colo. App., 2015)

Petitioner’s Statement of Relevant Facts

“Phillips’ religious conviction compels him to create cakes celebrating only marriages that are consistent with his understanding of God’s design. App. 275-277a, ¶¶16-22, 25. For this reason, Phillips politely declined to design and create a cake celebrating Respondents Craig’s and Mullins’ same-sex wedding, App. 287a, ¶ 78, but offered to make any other cake for them, id., ¶ 79.” [underlining added]

Cert Petition by Jeremy Tedesco (counsel of Record)

“Phillips carefully chose Masterpiece’s name: it would not be just a bakery, but an art gallery of cakes. With this in mind, Phillips created a Masterpiece logo depicting an artist’s paint palate with a paintbrush and whisk. And for over a decade, a large picture has hung in the shop depicting Phillips painting at an easel. Since long before this case arose, Phillips has been an artist using cake as his canvas with Masterpiece as his studio. . . .”
“Phillips gladly serves people from all walks of life, including individuals of all races, faiths, and sexual orientations. JA164. But he cannot design custom cakes that express ideas or celebrate events at odds with his religious beliefs. JA158-59, 164-66. For example, Phillips will not design cakes that celebrate Halloween; express anti-family themes (such as a cake glorifying divorce); contain hateful, vulgar, or profane messages (such as a cake disparaging gays and lesbians); or promote atheism, racism, or indecency. JA165.”

“Craig and Mullins were browsing a photo album of Phillips’s custom-design work, JA39, 48, 89, when Phillips sat down with them at his consultation table, JA168. After Phillips greeted the two men, they explained that they wanted him to create a cake for their wedding. Id. Phillips politely explained that he does not design wedding cakes for same-sex marriages, but emphasized that he was happy to make other items for them. Id. Craig, Mullins, and Munn expressed their displeasure and left the shop. JA43, 168.” [underlining added]

Petitioner’s Merits Brief by Kristen K. Waggoner (counsel of Record)

Government’s Statement of Relevant Facts

“In July 2012, respondents Charlie Craig and Da- vid Mullins visited Masterpiece and asked Phillips to ‘design and create a cake to celebrate their same-sex wedding.’ Pet. App. 4a.” [underlining added]

“Craig and Mullins sat down with Phillips at Master- piece’s ‘cake consulting table’ and told him that they wanted a cake for ‘our wedding.’ Pet. App. 64a. Phillips informed the couple that he does not create wedding cakes for same-sex weddings, but that he would make them any other type of cake or other baked good.”  [underlining added]

Brief for the United States as Amicus Supporting Petitioners, Jeffrey B. Wall (Acting Solicitor General)

Accord

Amy Howe: “because Phillips . . . believes that marriage should be limited to opposite-sex couples, he told Craig and Mullins that he would not design a custom cake for their same-sex wedding celebration.” [Underlinning added]

FACTS PORTRAYED AS “BAKING” OR ‘REFUSING TO SELL A “BAKED” CAKE

Respondents’ Statement of Relevant Facts

“Mullins and Craig expressed interest in buying a cake for “our wedding.” Pet. App. 64a. Phillips refused to serve them, explaining that the Company had a policy of refusing to sell baked goods for weddings of same-sex couples. Pet. App. 65a.2 Phillips did not ask for, and Mullins and Craig did not offer, any details about the design of the cake. Phillips was unwilling to make any cake for the wedding because they were a same-sex couple, and therefore any further discussion would have been fruitless. Pet. App. 65a. As the Administrative Law Judge in the Colorado administrative proceedings found, “[f]or all Phillips knew at the time, [Mullins and Craig] might have wanted a nondescript cake that would have been suitable for consumption at any wedding.” Pet. App. 75a.”  [Underlining added]

Brief in Opposition Leslie Cooper (counsel of Record)

Accord

David Savage: “‘Sorry, guys, I don’t make cakes for same-sex weddings.’ With that blunt comment, Jack Phillips, a baker who designs custom wedding cakes, sent two men out the door and set off a legal battle between religious liberty and gay rights that comes before the U.S. Supreme Court this fall.” [Underlining added]

“Food preparation is not a core First Amendment Activity”

“Amici are a group of 222 leading chefs, bakers, and restaurateurs from across the country. They submit this brief to convey their first-hand perspective, as culinary artists, on why application of public accommodation laws in cases such as this one do not impinge on the core expressive exercise of their talent and skill. . . .”

“Notwithstanding the talent and skill required to create fine cuisine, and the expression that may flow from it, amici acknowledge that food preparation is not a core First Amendment activity. Even when prepared by celebrated chefs, food retains a clear purpose apart from its expressive component: it is made to be eaten. For that reason, food products (and their preparation) are not necessarily protected by the First Amendment.. . . ”

“Even when prepared by renowned chefs, food retains a clear non-expressive purpose—namely, consumption. No matter how intricate, creative, and aesthetically pleasing a dish might be, it is not designed to be displayed in perpetuity, but rather to be served and eaten. With a clear “non-expressive purpose,’ food items may be appropriately “classified as *** ‘commercial good[s],’ the sale of which likely falls outside the scope of the First Amendment.‘ . . . .” [citation omitted and underlining added]

“Whether or not the creation of cakes or other food products implicates the First Amendment, any such protection does not entitle a chef to violate laws and regulations that do not target expressive activity. A chef may not evade health laws that preclude the use of certain unsafe ingredients on the ground that he prefers to cook with them. . . .” [Underlining added]

Brief of Chefs, Bakers, and Restaurateurs as Amici in Support of Respondents, Pratik A. Shah  (counsel of Record)

Car Dealership Raises First Amendment Defense in Firing Transgender Person

Bradley Rudkin

Writing in LGBTQ Nation, David Reddish reports: “Furthering its image as a state of irritable bigots, a Texas car dealership claimed protection under the First Amendment this week in a lawsuit by a former employee who says the business fired him because he’s transgender.”

“Bradley Rudkin, the former general sales manager of Roger Beasley Mitsubishi, an Austin based car dealership, filed a lawsuit on August 1 claiming wrongful termination from his job. Ruskin, a transgender man, claims the business fired him without warning solely for being transgender. Lawyers for the car dealership filed a motion to dismiss the lawsuit, claiming that the business had a right to fire Ruskin as a matter of free speech. Attorneys for the Mitsubishi dealership have argued that firing Ruskin makes a public statement, and therefore the business was within its legal rights to do so. . . .”

College Libraries Considering Inserting “Warnings” in Books & More
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AALS Recruitment Conference

I will be at the good ‘ol Wardman Marriott at the end of the week interviewing job applicants. While free time is at a premium at this event, if anyone else will be there and wants to meet up, let me know.

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FAN 167.3 (First Amendment News) Campus Speech Debate Continues: Enter Nadine Strossen — Senate Testimony (8 Points)

Below is the text of the written testimony presented by New York Law School Professor Nadine Strossen to the Committee on Health, Education, Labor and Pensions on “EXPLORING FREE SPEECH ON COLLEGE CAMPUSES” – Thursday, October 26, 2017, 10 a.m. 

Introduction

Professor Nadine Strossen

I would like to thank Chairman Alexander and Ranking Member Murray for convening this hearing on such a critically important topic, and giving me the opportunity to participate.

Chairman Alexander has asked me to summarize the legal standards governing freedom of speech in higher education, “and what speech limitations schools may impose, particularly for so-called `offensive speech’ or `hate speech.’” I am honored to have the opportunity to do this, especially as I have just written a book directly on point: HATE: Why We Should Resist It With Free Speech, Not Censorship (Oxford University Press, May 2018).

Summary of the most important First Amendment principles – which are especially important on campus, for the education and empowerment of all students, including those who have traditionally been subject to discrimination, and those who are activists

The research and analysis reflected in my forthcoming book have made me more appreciative than ever of the two most fundamental general First Amendment principles, which are essential pillars of not only individual liberty, but also equality and democracy, including on our nation’s campuses:

  • the viewpoint neutrality principle, which bars government from punishing any speech based solely on dislike of its viewpoint, no matter how deeply or widely despised that viewpoint might be; and
  • the emergency principle, which permits government to punish speech when it directly causes specific imminent serious harm, such as constituting a genuine threat, targeted harassment or “bullying,” or intentional incitement of imminent violence.

These robust speech-protective principles have consistently been endorsed for many decades, by Supreme Court Justices across the ideological spectrum. The Court likewise has neutrally enforced these principles to protect controversial expression ranging across the ideological spectrum: from left-wing protestors burning an American flag, to right-wing demonstrators burning a cross. Just this past June, the Court ringingly reaffirmed the First Amendment’s protection even for hateful and hated speech, unanimously striking down a federal law that denied registration to trade names that “disparaged” particular individuals or groups. As the Court declared: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express `the thought that we hate.’” Matal v. Tam, 137 S. Ct. 1744, 1764 (2017), quoting United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting).

In my capacity as a human rights activist, I am convinced, based upon the historic and current record, that these cardinal First Amendment principles are essential for furthering any political or social cause, including human rights. This conclusion is reaffirmed by examining how “hate speech” laws recently have been enforced in other comparable countries; they have disproportionately suppressed dissenting views and disempowered speakers.

Speaking in my capacity as a full-time educator for 33 years,* I am also convinced based on experience that these speech-protective principles are essential for effectively educating and empowering our nation’s future leaders and engaged citizens, and thus for maintaining a vibrant democracy. Being exposed to a diverse range of ideas, including those they consider “hateful,” and which they hate, is important for all students, including those who belong to groups that have traditionally been subject to discrimination or marginalization, and those who are engaged in activism on behalf of various causes. Therefore, when colleges and universities seek to punish controversial speech, or to shield students from it, they are not only violating the students’ (and others’) free speech rights, but they are also denying the students the rigorous education they deserve, and hence depriving our society of fellow citizens who are optimally equipped to participate constructively in our democratic self-government.

* The position of ACLU President is unpaid; while I served in that position, I continued to earn my living as an NYLS professor. Before joining the NYLS faculty in 1988 I began my teaching career as a clinical law professor at NYU Law School (1984-88).

Significantly, the preceding points have been strongly endorsed by politically diverse leaders who are members of minority groups, and who have themselves experienced the sting of “hate speech,” including former President Barack Obama. (Appendix A to this testimony includes quotations from him and from other ideologically diverse leaders who are all members of racial minorities, and who all oppose censorship of “hate speech,” including on campus, on the ground that such censorship would undermine equality and meaningful educational opportunities, including for minority students and student activists.)

List of key points discussed below

In the remainder of this written testimony, I will elaborate on the above themes by briefly discussing the following points:

  1. The Supreme Court has strongly enforced free speech principles on public campuses, including the cardinal viewpoint neutrality and emergency principles: that government may never suppress speech solely due to its disfavored viewpoint, but rather government may only suppress speech when it poses an emergency — e.,, it directly causes specific imminent serious harm, such as a “true threat,” targeted harassment, or intentional incitement of imminent violence that is likely to happen immediately.
  2. Many private campuses, which are not directly governed by the First Amendment, have chosen to protect the same free speech principles that are binding on public campuses, because such principles are consistent with academic freedom and sound pedagogy.
  3. “Hate speech,” which has no specific legal definition, may be punished (along with speech conveying any message) when, in context, it directly causes specific imminent serious harm. This means that hateful speech that poses the greatest danger of harm is already punishable, but such speech may not be punished when it is feared to pose a more speculative, attenuated risk of future harm.
  4. “Hate speech” laws are inevitably unduly vague and overbroad, thus leading to enforcement that is arbitrary at best, discriminatory at worst.
  5. The First Amendment protects the rights of peaceful, non-disruptive protestors. In contrast, any protest that prevents a speaker’s message from being heard constitutes an impermissible “heckler’s veto,” which violates not only the speaker’s rights, but also the rights of audience members who choose to listen to the speaker.
  6. The appropriate response to constitutionally protected “hate speech” is not censorship, violence, or disruption, but rather, “counter-speech,” which counters its ideas and any negative impact they might have. Our society must strive to provide access to educational and communications resources that will facilitate robust counter-speech, especially by and on behalf of the most vulnerable members of our communities.
  7. Equal rights movements are especially dependent on robust freedom of speech, including the viewpoint neutrality and emergency principles.
  8. Shielding students from hateful and hated ideas may well undermine their psychic and emotional well-being, as well as their education and preparation for effective participation in the workplace and the public sphere.

Brief discussion of these key points Read More

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FAN 167.2 (First Amendment Law) Campus Speech Debate Continues: Prof. Post Responds to FIRE’s Creeley

Yesterday, I posted Will Creeley’s Free Speech on Campus: A Response to Robert Post. Mr. Creeley’s piece was in response to a forthcoming article by Professor Post titled The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University. Below, Professor Post replies to Mr. Creeley.

* * * * * *

Robert Post (Yale Daily News)

I very much appreciate Will Creeley’s excellent and eloquent post. In these times of overheated and exaggerated exchange, it is a relief to engage in such a thoughtful dialogue.

Creeley defends FIRE’s record of standing up for freedom of speech within university campuses. I have very little knowledge of the kind of cases that FIRE does or does not take, and I certainly do not mean to imply anything in particular about them. I mean only to attribute to FIRE what FIRE itself proclaims on its own website:

Freedom of speech is a fundamental American freedom and a human right, and there’s no place that this right should be more valued and protected than America’s colleges and universities. A university exists to educate students and advance the frontiers of human knowledge, and does so by acting as a “marketplace of ideas” where ideas compete. The intellectual vitality of a university depends on this competition—something that cannot happen properly when students or faculty members fear punishment for expressing views that might be unpopular with the public at large or disfavored by university administrators.

Nevertheless, freedom of speech is under continuous threat at many of America’s campuses, pushed aside in favor of politics, comfort, or simply a desire to avoid controversy.

FIRE then proceeds to discuss the First Amendment in a manner that plainly implies that the “freedom of speech” it wishes to defend is the kind associated with First Amendment rights (even if such rights do not technically apply to private universities). This is also suggested by the reference to the “marketplace of ideas” in the passage I have just quoted.

I have not reviewed FIRE’s litigation, and I hope that Creeley will correct me if I am mistaken, but I suspect that in defending free speech rights on campus, FIRE rather routinely invokes standard First Amendment doctrines, like the prohibition on content and viewpoint discrimination, the prohibition on prohibiting speech because it is outrageous or offensive, and so on. Creeley does not dispute this in his statement, and I shall assume it to be true in this post.

The chapter to which Creeley objects was written to contest this rather mechanical application of standard First Amendment doctrines to the context of universities. The chapter begins by discussing the control of classroom speech to indicate how absurdly inappropriate such doctrines are to core university functions. I do not mean to imply that FIRE argues that content neutrality applies to the classroom. My point is merely that FIRE says that it upholds the application to universities of First Amendment doctrines, and such doctrines cannot sensibly be applied to classrooms.

Creeley affirms that FIRE has “never” argued that individual free speech rights apply to students in the classroom. I believe him. But the question is why FIRE has chosen not to defend such rights. I take it, and once again Creeley should correct me if I am incorrect, that the obvious answer is that endowing students with such rights is inconsistent with the university’s mission of education. But this is as much to say that the university’s educational mission trumps the free speech rights of individual students. And the question is why, if this is true in the context of classrooms, it is not equally true throughout the university.

Universities are institutions created and dedicated to the accomplishment of two missions: the expansion of knowledge and the education of students. With respect to the first mission, I have argued elsewhere, and I will not repeat the arguments here, that the “marketplace of ideas” defended by FIRE has no place. See Robert Post, Democracy, Expertise, Academic Freedom: A First Amendment Jurisprudence for the Modern State (Yale University Press 2012) and Robert Post, Academic Freedom and Legal Scholarship64 J. Leg. Educ. 540 (2015).

In the context of hiring, promotion, tenuring, grants, and so on, the research of faculty is continuously and properly evaluated for competence. First Amendment doctrines protecting the marketplace of ideas and prohibiting content discrimination are thus inapplicable. Faculty are instead entitled to academic freedom, which, as the 1915 AAUP Declaration of the Principles on Academic Freedom and Tenure declares, concerns “not the absolute freedom of utterance of the individual scholar, but the absolute freedom of thought, of inquiry, of discussion and of teaching, of the academic profession.” Academic freedom of research is about the autonomy of the scholarly community, what Thomas Haskell calls the community of the competent. This is at root why the kind of individual (First Amendment) rights that FIRE is committed to defending are incompatible with academic freedom. To say that in the context of their scholarly research faculty have academic freedom, rather than individual rights, is thus to say that whatever First Amendment rights they may possess are subordinated to the research mission of the university.

Analogously, the individual free speech rights of students are subordinated to the university’s second mission of education. For a general and theoretical argument about why this must be so, see Robert Post, Between Governance and Management: The History and Theory of the Public Forum, 34 U.C.L.A. L. Rev.1713 (1987). Unless I miss my mark, Creeley effectively concedes that this subordination occurs in the context of the classroom. But he quotes Healy v. James for the proposition that individual student free speech rights might be more compatible with university educational objectives in other areas of the campus. I think there is much to be said for that approach. But it requires a sensitive appraisal of whether and how university regulations serve its educational mission in the context of various spaces and dimensions of campus life. Where attributing individual free speech rights to students is inconsistent with that educational mission, they must yield. Otherwise such rights will undermine the university’s very raison d’etre. That is why the Court has explicitly said that “a university’s mission is education” and that the First Amendment does not deny a university’s “authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities,” which includes “a university’s right to exclude . . . First Amendment activities that . . . substantially interfere with the opportunity of other students to obtain an education.” Widmar v. Vincent, 454 U.S. 263, 268 n.5, 277 (1981) (citing Healy v. James, 408 U.S. 169, 189 (1972)). Read More

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FAN 167.1 (First Amendment News) Center for Competitive Politics Renamed Institute for Free Speech

After twelve years, the Center for Competitive Politics is embracing a new identity

Bradley A. Smith

Alexandria, VA – The Center for Competitive Politics (CCP), the nation’s largest organization dedicated solely to protecting First Amendment political rights, announced today its new name, the Institute for Free Speech.

Though the group’s name is changing, its mission will remain the same. Since its founding in 2005, the Institute has fought for First Amendment political speech rights in every significant court case where they were at stake. Its efforts have contributed to a dramatic restoration of these rights – no other organization has done more to strengthen them.

“Back in 2005 it was important to emphasize that limiting speech frustrates our ability to have free and competitive elections,” said Institute for Free Speech Chair and Founder Bradley A. Smith. “But our very success in establishing the right to spend and speak about elections, especially in SpeechNow.org v. FEC, which established “super” PACs, has led those who oppose robust discussion of candidates and issues to try to squelch speech in myriad new ways.

“Free speech about candidates and issues remains subject to direct assault, but it is also being attacked indirectly with arcane rules at every level, using securities regulation, broadcast regulation, the IRS, government contracting power, harassment of individuals and organizations who speak out, and more,” Smith continued.

Pulitzer Prize-winning columnist George Will hailed CCP as the “gold standard” in advocacy work. But despite its success, CCP’s name often confused people about its work and objectives. The name Institute for Free Speech will clearly convey the group’s mission, to longtime supporters and newcomers alike.

David Keating

“Most Americans support the idea of free speech,” said President David Keating. “We want people to know who we are and what we’re about from the first moment they meet us. Our new name will quickly tell policymakers, journalists, judges, and potential supporters what we do. It will help us become even more effective.”

The Institute for Free Speech is a nonprofit, tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code. It has been awarded a four star rating, the highest possible, for fiscal management and best practices in good governance by Charity Navigator, America’s largest independent charity evaluator.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

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FAN 167 (First Amendment News) SPECIAL ISSUE: Robert Post’s Arguments Draw Replies from Erwin Chemerinsky & Will Creeley on Campus Speech Issue

(Credit: Evelyn Hockstein/ for The Washington Post)

This entire FAN post is devoted to recent developments concerning free speech on college campuses. This sampling reveals just how controversial and widespread this debate has become.

Last week I blogged on the campus speech debate as it played out with the Virginia ACLU and its response to the William and Mary controversy (Deleted Passages: VA ACLU abandons key portions of its original statement regarding William & Mary controversy. See also Walter Olson, The ACLU Yields to the Heckler’s Veto, WSJ, Oct. 24, 2017)

As evidenced by the several entries below, the campus speech issue continues to be the First Amendment issue of our times.

Just out: Post-Chemerinsky Exchange

Professors Robert Post and Erwin Chemerinsky exchange views on the topic of campus speech, this in just published Vox posts. Here are a few snippets from that exchange:

POST: “The language and structure of First Amendment rights . . . is a misguided way to conceptualize the complex and subtle processes that make such education possible. First Amendment rights were developed and defined in order to protect the political life of the nation. But life within universities is not a mirror of that life.”

“. . . [M]embers of the university community do not enjoy special freedoms. They have the right to academic freedom, not First Amendment freedom of speech. Academic freedom is defined in terms of the twin missions of the university; it encompasses freedom of research and freedom of teaching. Academic freedom does not entail the equality of ideas. To the contrary, it is defined as the freedom  to engage in professionally competent teaching and research.”

CHEMERINSKY: “Professor Post’s premise is undoubtedly correct: universities must evaluate the content of faculty and student work. But it does not follow that outside of this realm, free speech principles do not apply on campus. It is a logical fallacy to say that because basic free speech principles sometimes do not apply on campus, they must never apply.”

  • “First, it is important to distinguish what the law is from what Professor Post thinks the law should be. . . .”
  • “Second, Professor Post ignores the distinction between the university’s ability to regulate speech in professional settings (such as in grading students’ papers or in evaluating teaching and scholarship) and its ability to regulate speech in other contexts. . . .”

 Related: Erwin Chemerinsky & Howard Gillman, Free Speech on Campus (Yale University Press, 2017)

Robert Post’s Article & Will Creeley’s Response 

Recall, that in an earlier FAN post I refenced a forthcoming article by Professor Post entitled The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University. Again, here is the abstract of that article:

Robert Post (Yale Daily News)

POST: This forthcoming chapter in a book to be edited by Lee Bollinger and Geoffrey Stone scrutinizes the frequently-heard claim that universities are suppressing the “First Amendment” rights of students, faculty, and invited speakers. The chapter argues that this claim rests on a fundamental misconception about the nature of First Amendment rights, which apply to public discourse and are designed to establish preconditions for democratic self-determination. Speech at universities, by contrast, must be regulated to attain the ends of education. Debates about the proper regulation of campus speech are thus ultimately debates about the nature of education, not about First Amendment rights. The overblown and misleading constitutional rhetoric of these debates is symptomatic of a larger debasement of our understanding of the nature of free speech protections, a debasement that could seriously undermine the strength of Free Speech principles when we actually need to call upon them to do serious work to protect the integrity of our political system.

I invited Will Creeley, Senior Vice President of Legal and Public Advocacy at FIRE, to respond to Professor Post’s article. That reply is set out below. Professor Post has been invited to respond. Should he accept, his response will be published in a future post.

WILL CREELEY, “Free Speech on Campus: A Response to Robert Post”

Will Creeley

In an essay for a forthcoming book edited by Lee Bollinger and Geoffrey Stone, Yale Law School professor and former dean Robert Post turns his attention to free speech on campus. Unsurprisingly, Post delivers his argument with characteristic erudition and acuity. Unfortunately, however, his contribution distorts the contours of the current debate by suggesting that my organization, the Foundation for Individual Rights in Education (FIRE), takes positions we do not in fact hold. Post’s misunderstanding of FIRE’s work requires a response.

Post argues that recent campus speech controversies illustrate “our modern failure to appreciate the fundamental purpose of the First Amendment” — that is, to “protect speech that serve[s] the purposes of self-government.” Because “public universities are not public parks,” and instead serve an educational mission, Post concludes that “it makes little sense to apply core First Amendment principles of freedom of speech to public universities.”

To make his point, Post enlists FIRE as a foil. He writes:

FIRE aggressively proclaims that First Amendment protections of free speech ought to apply within the domain of universities. The assumption is that First Amendment protections attach to speech, and speech occurs within universities. A moment’s reflection, however, reveals the superficiality of this logic.

“Consider, for example, speech within a classroom,” Post continues. “If I am teaching a class on the Constitution, my students cannot ramble on about the World Series.”

But to FIRE’s knowledge, nobody is arguing that they should be able to do so. Certainly, FIRE has never argued as much. Post does not cite any instance of FIRE (or any other organization) advocating that students should have such a right. FIRE has always recognized that professors have a right to control their classrooms. Academic freedom — that “special concern of the First Amendment” — demands it.

FIRE does not intervene in controversies involving in-class student speech. We do not take cases involving grade disputes, accusations of plagiarism, or other academic misconduct. Barring extraordinary circumstances — we have defended students who have been required by faculty to lobby for political positions outside of class, for example — we will not ever be involved in such cases. Post errs by suggesting otherwise, turning FIRE into a convenient strawman.

Post continues in this direction, attempting to show the incompatibility of the First Amendment and campus:

If I am supposed to be teaching constitutional law, I can’t spend my classroom time talking about auto mechanics. Universities also assess the quality of the ideas conveyed by professors. If a mathematics professor continuously gets her equations wrong, her competence will be called into question. Universities also compel professors to show up to class, to teach, and therefore to speak.

But again, to our knowledge, no one — not FIRE or other organizations, and certainly not courts — has suggested these examples are at odds with the First Amendment’s requirements, nor would any reasonable observer do so. In fact, the outcomes Post describes are in line with longstanding jurisprudence regarding the role of the First Amendment on public campuses. For example, like courts and the American Association of University Professors, FIRE believes that a faculty member’s in-class speech must be germane to the course’s subject, broadly construed, to earn the protection of the First Amendment and academic freedom. We acknowledge that if a professor isn’t actually teaching his or her class, he or she may be subject to discipline, though we think that such decisions are best left to his or her faculty peers.

Courts (and FIRE) have been more thoughtful about the First Amendment’s application on campus than Post acknowledges. Justice Powell’s statement in 1972’s Healy v. James is representative of the judicial approach, both then and now:

As the case involves delicate issues concerning the academic community, we approach our task with special caution, recognizing the mutual interest of students, faculty members, and administrators in an environment free from disruptive interference with the educational process. We also are mindful of the equally significant interest in the widest latitude for free expression and debate consonant with the maintenance of order.

And since the advent of forum analysis, courts have recognized the differences between the various areas of a college campus, noting the obvious distinctions between classrooms (a classic example of nonpublic fora), auditoriums or amphitheaters (designatated public fora), and open outdoor spaces and sidewalks (traditional public fora). See, e.g., Bowman v. White, 444 F.3d 967, 976-77 (8th Cir. 2006) (“A modern university contains a variety of fora…. labeling the campus as one single type of forum is an impossible, futile task.”) The judiciary has drawn these commonsense distinctions for years, but Post does not appear to acknowledge this well-established precedent.

Post’s argument is animated by his concern about applying the First Amendment “to ‘speech as such’ rather than to public discourse.” By invoking the First Amendment in controversies that concern only the quotidian “communication [that] inheres in all aspects of life,” Post worries that we are inviting a “predictable over-extension of First Amendment rights [that] will in the long run prove unsustainable.” In other words, when the speech at issue is not “essential for the free formation of public opinion,” the First Amendment need not apply.

Accordingly, because “public universities are not public parks,” Post concludes that “First Amendment doctrine does not help us resolve” campus speech controversies “because such doctrine derives from the requirements of public discourse within a heterogeneous nation.”

But the controversies in which we engage every day — FIRE’s bread and butter, wherein students and faculty engaging in public discourse outside of the classroom are subjected to censorship by the authorities or calls for such by their peers or the public — stem from analogous disputes between diverse members of a heterogenous campus. (This similarity in microcosm may partially explain the lasting public interest in campus speech controversies, and the way in which campus speech controversies sometimes prefigure or channel larger cultural disputes.) Given that we believe a core part of a public college’s educational mission is to facilitate the education of future leaders in democratic living, First Amendment doctrine is not only helpful in resolving these disputes, but essential.

If there is something “deeply wrong” about the First Amendment arguments that have helped protect student and faculty from censorship for decades, then FIRE will be happy to be as wrong as the courts that have crafted and credited them. If arguing for such is just “overblown rhetoric” — then, again, FIRE must simply disagree.

MORE ON CAMPUS FREE SPEECH ⇓ Read More

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Kozinski reviews new book — THE JUDGE: 26 MACHIAVELLIAN LESSONS

Judge Alex Kozinski (credit: The Recorder)

So you thought a judge’s job is to be fair and impartial? To renounce personal gain? To have no agenda? According to Ronald K.L. Collins and David M. Skover in their new book, The Judge: 26 Machiavellian Lessons, that’s all malarkey. If you believe it, you’re a chump. And if you’re a judge who believes it, you should quit and make room for someone who will use his power to advantage. “Power,” the authors tell us, is “that ability to make something happen.” Like Niccolo Machiavelli, whose 16th century guide to executive power they channel, the authors explain how the modern judge can exploit the opportunities his position and Fortuna bestow upon him.

So begins Ninth Circuit Judge Alex Kozinski’s book review published on Law360. Here is another excerpt:

 “The ethics of a great judge are counter-ethics. They do not bow to law’s old pieties, the ones grounded in the myths of justice impartially applied. … Still, the myth of impartiality lives on and, strangely enough, some judges (the weaker ones) actually take their decisional cues from such pious norms.” The ideal judge “appreciate[s] the value of deception.”

Collins and Skover give example after example where U.S. Supreme Court justices have (in the authors’ view) manipulated the law, lied about history, undermined precedent while pretending to follow it, “cram[med] their opinions with half-truths” and generally pulled the wool over the eyes of their colleagues and the public. The authors speak in glowing terms about justices who achieve their ends through skullduggery and disparage justices who are ineffectual because they’re proud, priggish, wedded to precedent or fooled by their own rhetoric. According to Collins and Skover, “a Justice must be hypocritical and strive to appear objective, judicious, and collegial.” John Marshall, William J. Brennan Jr., William Rehnquist, Antonin Scalia and (usually) John Roberts make the grade while James Clark McReynolds, Felix Frankfurter, William O. Douglas (except in Griswold), Warren E. Burger, and Roberts in Obergefell don’t. Frankfurter draws particular scorn as “arrogant, combative, spiteful, and manipulative (but not in effective ways).”

 Of course, there is more, much more.  The full text of the review is here: The Judge, 26 Machiavellian Lessons