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Chernow on Grant

I’m reading Ron Chernow’s new biography of Ulysses S. Grant. Chernow is the greatest biographer of our generation, with books on John D. Rockefeller Sr., Alexander Hamilton, and George Washington that were each groundbreaking. Grant matches these both in terms of the scope of the subject and the high quality of the writing. Here are some things that I’ve learned so far:

  1. There was a brief effort to indict Robert E. Lee and other Confederate commanders for treason in 1865. A federal grand jury was convened in Virginia for that purpose. Grant strongly opposed this, in part because the terms that he offered at Appomattox Court House implied that no such prosecution would be brought. These terms were not binding on President Andrew Johnson, but Grant felt that they should be honored and that he would resign from the Army if the prosecution went ahead.
  2. Someone could (or perhaps has) write a terrific book on the generals who were charged with running the South under military Reconstruction. They were forced to make many tough decisions about racial justice, the limits of free expression, and the role of civilians. This subject gets a lot of attention in the book.
  3. One line that is amusing describes Grant’s first Attorney General, Ebenezer Hoar, who served as a Supreme Court justice in Massachusetts. Hoar was a curmudgeon, and as a judge “he was said to be unhappy because he could not decide against both litigants.”
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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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Worth a Thousand Words

Sometimes a picture says it all. Or that’s what lawyers have often hoped. And beginning with the development of modern printing technologies, publishers have worked hard and well to oblige them.

The creation of lithography. Technical advances in etching and wood engraving. Anastatic printing. New iron presses. Steam-powered rotary cylinders. Photography. Starting in the nineteenth century, technological innovations such as these enabled law book publishers to depict places, objects, and events with greater accuracy than ever before—and lawyers soon perceived the value of images in crafting a winning argument.

Those images are the subject of the seventh case in our digital gallery tour, “Arguing the Law,” which features illustrations and photographs used as evidence in litigation. They are least symbolic, most literal, type of law book image.

They were used in intellectual property litigation (scroll over for links)

criminal prosecutions

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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