June 17, 2015 11:05 AM
Under the Obama administration, the Education Department has pressured schools and colleges to restrict speech, including off campus speech, even when it is protected by the First Amendment, and is not severe and pervasive. It claims this is required by federal anti-discrimination laws such as Title IX and Title VI. It also expects colleges to investigate off-campus sexual misconduct by students, even though most federal appellate court rulings say schools have no such duty under Title IX.
As I recently noted in The Wall Street Journal, “the Education Department, where I used to work,” is
pressuring colleges to adopt unconstitutional speech codes in the name of fighting sexual harassment. It has disregarded many court rulings in doing so.
For example, the Education Department has wrongly ordered schools to regulate off-campus speech and conduct. That contributed to the harassment charges against Prof. Laura Kipnis, who was accused over a politically incorrect essay she wrote in the Chronicle of Higher Education and statements she made on Twitter. Court rulings like Roe v. Saint Louis University (2014) reject Title IX claims over off-campus conduct, but the Education Department ignores them. It also ignores court rulings like Klein v. Smith (1986) emphasizing that the First Amendment usually bars public schools from restricting off-campus speech. For example, the Education Department told schools to regulate comments “on the Internet” in an October 2010 letter. In 2014, it demanded that Harvard regulate off-campus conduct more.
At Northwestern University, Professor Laura Kipnis was subjected to a bizarre Title IX investigation over an essay in the Chronicle titled “Sexual Paranoia Strikes Academe” (which hypersensitive students claimed offended them and constituted sexual harassment) and her subsequent statements defending herself on Twitter (which the students claimed constituted “retaliation” in violation of Title IX, even though she did not identify them by name). Kipnis was ultimately found not guilty.
Although it eventually became clear that nothing Kipnis did violated Title IX, Northwestern probably felt obligated to subject Kipnis to that chilling, lengthy, and extensive investigation due to improper mandates issued by the Education Department’s Office for Civil Rights (OCR), which make it hard to summarily dismiss weak or baseless Title IX complaints.
June 9, 2015 8:42 PM
Our friends over at the Reason Foundation, a venerable libertarian think tank and publisher of Reason magazine, recently received a grand jury subpoena from a federal prosecutor in New York, reports Ken White at Popehat. The subpoena demands that Reason disclose “all identifying information” it has regarding six pseudonymous users who posted comments about the death and afterlife of a federal judge on Reason’s Hit & Run blog.
These comments came in response to a May 31 Reason post by Nick Gillespie about the trial and sentencing of Ross Ulbricht, who was convicted in February of running an Internet-based narcotics and money laundering platform known as Silk Road. In late May, Judge Katherine Forrest, who sits on the U.S. District Court for the Southern District of New York, sentenced Ulbricht to life in prison. This sentence was met with mixed reactions, with many commentators criticizing Judge Forrest for handing down what they perceived as an exceedingly harsh sentence.
A few Reason users, some of whom may have followed Reason’s extensive coverage of the fascinating trial, apparently found Ulbricht’s sentence especially infuriating. One commenter argued that “judges like these … should be taken out back and shot.” Another user, purporting to correct the preceding comment, wrote that “[i]t’s judges like these that will be taken out back and shot.” A follow-up comment suggested the use of a “wood chipper,” so as not to “waste ammunition.” And a user expressed hope that “there is a special place in hell reserved for that horrible woman.”
Within hours, the office of Preet Bharara, the U.S. Attorney for the Southern District of New York, sent Reason a subpoena for the commenters’ identifying information “in connection with an official criminal investigation of a suspected felony being conducted by a federal grand jury.” This doesn’t mean a grand jury actually asked about the commenters; instead, in federal criminal investigations, it’s typically up to the U.S. Attorney to decide when to issue a subpoena “on behalf” of a grand jury. See, e.g., United States v. Kleen Laundry & Cleaners, Inc., 381 F. Supp. 519, 521 (E.D.N.Y. 1974). The subpoena demands from Reason information about the six users, including their email and Internet Protocol (IP) addresses—which, if disclosed, could enable the government to uncover the true identities of the commenters, perhaps after another round of subpoenas are sent to the users’ respective Internet Service Providers.
Popehat’s Ken White is quite troubled by the government’s decision to issue this subpoena. Ilya Somin, writing at The Volokh Conspiracy, also objects to the subpoena. So do the Cato Institute’s Tim Lynch and Techdirt’s Mike Masnick, among many others.
I too find it quite concerning. Even if this subpoena is valid under current law—more on that angle in a bit—the government made a serious mistake in seeking to force Reason to hand over information that could uncover the six commenters’ identities. Unless the Department of Justice is investigating a credible threat to Judge Forrest with some plausible connection to the Reason comments at issue, this subpoena will serve only to chill hyperbolic—but nonetheless protected—political speech by anonymous Internet commenters. And if Reason decides to stand up for its users’ rights, the resulting court battle will amount to a waste of federal law enforcement resources that could instead help bring actual criminals to justice, as Tim Lynch reminds us.
To be sure, I have no problem with the feds seeking to locate and prosecute people who actually threaten to commit murder—which, if transmitted in interstate commerce, is a federal crime under 18 U.S.C. § 875. Threatening to kill a federal judge is especially problematic; assassinations of federal judges do happen from time to time. As such, it’s only natural that law enforcement takes such threats seriously.
Yet, while the comments identified in the subpoena are undeniably vile, they’re also protected by the First Amendment, and rightly so. Hyperbolic political statements have a long history in the United States; for instance, Ken Shultz notes that Martin Luther King, Jr., once said that “[t]he hottest place in Hell is reserved for those who remain neutral in times of great moral conflict.” Sound familiar?
June 9, 2015 3:20 PM
The Supreme Court has said that true threats can be banned without violating the First Amendment, but that doesn’t mean that hyperbolic rants are unprotected just because they express a yearning for someone’s demise. That doesn’t make them a true threat. For example, the Supreme Court ruled on the issue in Watts v. United States (1969). Robert Watts, a young black man, stated during a protest in Washington, D.C.:
I have already received my draft classification as 1-A and I have got to report for my physical this Monday morning. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.
The Supreme Court reversed his conviction for making threats, ruling that Watts’ statement was political hyperbole rather than a true threat. “We agree with [Watts] that his only offense here was ‘a kind of very crude offensive method of stating a political opposition to the President.’”
But prosecutors sometimes confuse hyperbolic dissent with true threats. School officials are even worse. They equate even mild academic references to violent protests in the distant past with unprotected threats.
For example, Oakton Community College (OCC) concluded that a one-sentence “May Day” email referencing the Haymarket Riot sent by a faculty member to several colleagues constituted a “true threat” to the college president. On May 1, Chester Kulis sent an email to OCC colleagues that read, “Have a happy MAY DAY when workers across the world celebrate their struggle for union rights and remember the Haymarket riot in Chicago.” Lawyers for the Chicago-area college argue that the email, which commemorated the riot, thus threatened violence.
The United States Department of Justice is using federal grand jury subpoenas to identify anonymous commenters engaged in typical internet bluster and hyperbole in connection with the Silk Road prosecution. . . .Why is the government using its vast power to identify these obnoxious asshats, and not the other tens of thousands who plague the internet? Because these twerps mouthed off about a judge. . .. The subpoena commands Reason to provide the grand jury "any and all identifying information" Reason has about participants in what the subpoena calls a "chat."
The "chat" in question is a comment thread on Nick Gillespie's May 31, 2015 article about Ross "Dread Pirate Roberts" Ulbricht's plea for leniency to the judge who would sentence him in the Silk Road prosecution. That plea, we know now, failed, as Ulbricht received a life sentence, with no possibility of parole.
Several commenters on the post found the sentence unjust, and vented their feelings in a rough manner. The grand jury subpoena specifies their comments and demands that Reason.com produce any identifying information on them.
The "Draw Muhammad" Contest and the Futility of Trying to Correct Journalistic Mistakes about the LawMay 6, 2015 2:03 PM
Journalists often not only get the law wrong, but then have the audacity to smugly talk down to people who attempt to correct them (usually in a way that manifests a pro-regulatory slant). A classic example was CNN anchor Chris Cuomo’s statement, in the context of a “Draw Muhammad” contest in Garland, Texas, that “hate speech is excluded from protection. dont just say you love the constitution...read it.”
Cuomo has seemingly never read the Constitution himself, despite having once attended law school. The Constitution doesn’t even contain the word “hate,” much less mention “hate speech” in the First Amendment. The Supreme Court has made clear over and over again that hate speech in public settings is protected by the First Amendment. As Twitchy observed, “in 2011, the Supreme Court ruled 8-1 in Snyder v. Phelps stating the always awful Westboro Baptist Church” – which vociferously hates gay people – “had the right to protest at the funerals of slain military members. In other words, hate speech is protected speech.” This is not a new legal principle. The Supreme Court invalidated a hate-speech ordinance in R.A.V. v. St. Paul (1992). Moreover, it has also ruled that a racist group couldn’t be charged more fees based on its racist message (Forsyth County v. Nationalist Movement), and that a racist Klan speech was protected speech (Brandenburg v. Ohio (1969).
When this was pointed out to Cuomo, he justified his erroneous statement by citing the legally irrelevant “Chaplinsky case,” a case that said nothing about hate speech, but rather involved the judicially created “fighting words” exception to the Constitution. The “fighting words” exception seldom applies to hate speech, and requires face-to-face insults, not depictions of the prophet Mohammed, however inflammatory such depictions might be. As the Supreme Court explained in its Texas v. Johnson decision, which struck down attempts to ban flag burning, the fighting words exception doesn’t reach apply to even extremely inflammatory speech unless it involves a “direct personal insult or an invitation to exchange fisticuffs.” In response to a Jewish reader who attempted to correct his error, he argued that it wouldn’t cover speech in which someone would “call you something ugly for being Jewish.” But calling somebody something ugly, even in-person, is typically protected speech under the Supreme Court’s decisions in Gooding v. Wilson and Lewis v. City of New Orleans, which limited the reach of the fighting words doctrine to cover almost no speech.
Running out of patience with Cuomo, the First Amendment and criminal-defense lawyer Ken White, also known as Popehat, called Cuomo “a disgrace to Fordham Law School, which only admitted you because of your famous father.” Popehat’s acerbic remark may reflect his frustration over widespread media myths about the scope of the First Amendment, such as a recent McClatchy news story that quoted a political science professor erroneously suggesting that the Mohammed cartoons in Texas might have be unprotected incitement of violence. In reality, the Supreme Court’s ruling in Hess v. Indiana made clear that such speech cannot be banned as “incitement,” since even inciteful speech retains its protection under the First Amendment unless it is intended to incite imminent lawless action.
April 29, 2015 9:14 AM
Discrimination may be bad for business, but that doesn’t mean laws banning discrimination are good for business. Often, these laws are like the proverbial Trojan Horse, applied by the courts in unexpected ways that are harmful to businesses, including employers who harbor no prejudice of any kind. For example, the Supreme Court interpreted a federal race and sex discrimination law (Title VII of the Civil Rights Act) as banning unintentional “disparate impact” (which is when a neutrally applied selection criterion weeds out more black than white applicants) even though that statute explicitly limited relief to cases where there was a showing that the employer had “intentionally engaged in or is intentionally engaging in an unlawful employment practice.” [See Griggs v. Duke Power Co. (1971); 42 U.S.C. 2000e-5(g).] The result of that case was to outlaw a wide array of useful, colorblind standardized tests.
The Supreme Court also interpreted a statutory attorneys fees provision that was neutral on its face as instead mandating one-way fee-shifting, effectively entitling only prevailing plaintiffs to such fees (except in really extreme cases), not prevailing defendants, and entitling such plaintiffs to fees even if the employer had a reasonable, good-faith belief for taking the position it did. [See Christiansburg Garment Co. v. EEOC (1978).]
Civil rights agencies and courts also impose emotional distress damages in discrimination cases that seem to be either grossly exaggerated, or insufficiently corroborated by objective evidence. For an example of the former, see the recent ruling by an administrative law judge in the Oregon Bureau of Labor and Industries, recommending “$135,000 in damages against Melissa and Aaron Klein, owners of Sweet Cakes by Melissa in Gresham, Ore., who had declined to cater a gay wedding on grounds of religious scruples [Oregonian, earlier].” As is typical in administrative discrimination cases, the same agency is effectively serving as prosecutor, judge, and jury, which the Founding Fathers would have viewed as a violation of the constitutional separation of powers, as law professor Philip Hamburger has explained.
$135,000 (or even a tenth that amount) is a grossly excessive emotional-distress damage award for a simple refusal to contract with a customer. Being rebuffed by a merchant is much less painful than losing your job, or even losing out on a promotion, and people wrongly fired from their jobs typically get less than $135,000 in emotional distress damages. The award is so ridiculously large that it seems to designed not to compensate, but to punish people for harboring archaic beliefs, with the lion’s share of the award being to punish the small business owners for their thought-crime, rather than make anyone whole.
March 6, 2015 12:39 PM
Recently, the dean of the School of Social Welfare at the University of California at Berkeley condemned a professor’s constitutionally protected remarks, including but not limited to his mention of black-on-black crime at a Black Lives Matter event. A complaint has also apparently been filed against the professor with the Office for the Prevention of Harassment and Discrimination.
Rather than defending academic freedom, Dean Jeffrey Edelson said “we deeply regret the reported incident” involving Steven Segal, a tenured professor, who has taught at Berkeley for more than 40 years and is world-renowned for his research on mental illness. Worse, the dean said that his remarks “made the classroom environment feel unsafe” for the complaining students. The dean reportedly set up a “shadow class” for students offended by the professor’s remarks: “Students in Segal’s class were offered an alternate section” with “a different professor.”
The University’s overreaction to Professor Segal’s speech was so absurd that a former head of the Education Department’s Office for Civil Rights told me that what occurred at the University of California “could just as easily be a Saturday Night Live skit.”
But it also sets a very bad precedent for academic freedom. Why are taxpayers paying to subsidize a school of social work whose officials exhibit so little common sense—and so much disdain for constitutional free speech guarantees?
The federal appeals court with jurisdiction over the University of California has made clear that speech like Professor Segal’s cannot be banned even by labeling it as a threat to people on campus or the classroom environment. In Bauer v. Sampson, it held that a college professor's caricatures of a college president and satirical yearning for his death were protected by the First Amendment, even though the college declared it a violation of its policy against “workplace violence.” Similarly, the Ninth Circuit held that the First Amendment protected a professor’s racially charged emails about immigration, which offended Hispanic faculty, in Rodriguez v. Maricopa Community College District (2010), holding that such speech was protected by the First Amendment against a racial harassment lawsuit, even if the complainants perceived it as discriminatory or creating a racially “hostile environment.”
February 19, 2015 6:54 AM
Many people associate professional licensing with consumer safety. For example, we wouldn’t want any schlub doing surgery. But where occupational licensing laws may have started out with the goal of protecting consumers, they have now become a means by which certain professionals restrict competition. States require licenses for hundreds of occupations including perilous professions like florist, funeral director, hair braider, and fortune teller.
The case of the “Caveman” blogger who was bullied by the North Carolina Board of Dietetics/Nutrition for providing nutritional advice without a license illustrates how licensing threatens not just our economic freedom, but our other basic freedoms. Luckily for blogger Steve Cooksey, his right to express his opinion and give advice to fellow dieters won out over the need to protect licensed dieticians from competition.
As the Institute for Justice, which has been fighting on Cooksey behalf, wrote yesterday:
In December 2011, Steve Cooksey started an advice column on his blog to answer reader questions about his struggle with Type II diabetes. Cooksey had lost 78 pounds, freed himself of drugs and doctors, and normalized his blood sugar after adopting a low-carb “Paleo” diet, modeled on the diet of our Stone Age ancestors. He wanted to use his blog to share his experience with others.
However, in January 2012, the North Carolina Board of Dietetics/Nutrition informed Cooksey that he could not give readers personalized advice on diet, whether for free or for compensation, because doing so constituted the unlicensed practice of dietetics. The board deemed Cooksey’s advice the unlicensed practice of nutritional counseling, sent him a 19-page print-up of his website indicating in red pen what he was and was not allowed to say, and threatened him with legal action if he did not comply.
February 11, 2015 12:13 PM
NPR gets a lot of taxpayer money based on a false pretense of objectivity and accuracy. Its departing ombudsman, Edward Schumacher-Matos, says that “as a public media that receives some 11 percent of its funding indirectly from the government, it cannot be partisan or have a declared bias.”
But it routinely gets basic facts wrong. While touting NPR’s supposed superiority over other media, such as Fox News, ombudsman Matos recently made the false claim that the French satirical magazine Charlie Hebdo, whose staff were massacred by terrorists, would not be protected in the U.S. under the First Amendment, because it made “fun” of people’s “prophets and gods,” and constituted “hate speech.”
This was simply ignorant, because the Supreme Court declared blasphemy laws unconstitutional in Joseph Burstyn, Inc v. Wilson, 343 U.S. 495 (1952), stating that “it is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches or motion picture.”
January 8, 2015 6:03 PM
My wife Sylvie, who grew up in France, is terribly shocked about yesterday’s terrorist attack on the French satirical weekly Charlie Hebdo, which murdered 12 people, including four prominent French cartoonists.
Its editor had been on an Al Qaeda hitlist, and this vicious attack was immediately cheered by supporters of the Islamic State and Al Qaeda. According to Vice News, “Minutes before the attack, the Charlie Hebdo account had tweeted out a cartoon mocking the Islamic State's leader, Abu Bakr al-Baghdadi.”
My wife calls the attack “France's 9/11,” and says Charlie Hebdo was a symbol of free speech for the French people, and much more culturally significant than publications like National Lampoon or The Onion is for Americans. French people across the political spectrum, from left-wing Trotskyites like my father-in-law, to conservative Gaullists, were appalled by the attack.
The slain cartoonist Cabu was not just a Charlie Hebdo cartoonist, but had also, years earlier, been perhaps the leading cartoonist of Sylvie's childhood. He drew cartoons for children, such as for “the children's TV programme, Récré A2,” making his murder as culturally significant for her as it would be if Charles Schultz, the creator of Peanuts and Charlie Brown, had been assassinated.
But most of the media are too cowardly to do so (which they should be doing, because doing otherwise rewards the terrorists who sought to eradicate such depictions). Instead, many are cropping historical photos, or blurring out images, to censor depictions of the prophet Mohammed found in newsworthy photos of Charlie Hebdo and its staff. Some are even effectively blaming Charlie Hebdo for the attack, like Tony Barber of the Financial Times referring to it as “being stupid” and aiming to “provoke Muslims.”
By contrast, Charlie Hebdo’s staff showed incredible courage over the years. As Matt Welch of Reason notes, it had the courage to not “just print original satirical cartoons taking the piss out of Islamic-terrorist sensibilities, but do so six days after [it was] firebombed . . .and do so in such a way that's genuinely funny (IMO) and even touching, with the message ‘Love is stronger than hate.’” And not “just print original cartoons of the Prophet Muhammad—a historical figure, lest we forget—but then defending and winning the right to do so after being charged with offensive speech.”
November 25, 2014 3:07 PM
This morning the D.C. Court of Appeals heard oral arguments in Michael E. Mann v. Competitive Enterprise Institute, National Review, et al. CEI General Counsel Sam Kazman gave the following comments about the case:
Regardless of where one stands on global warming, this case is about the First Amendment. Michael Mann’s defamation lawsuit is an unfounded attempt to chill speech on a major issue of public concern. Professor Mann is a high-profile figure in the global warming debate, and he himself is responsible for much of the overheated rhetoric in that debate. His complaint about CEI’s criticism of his statistical methods belongs in the arena of public discussion and scientific inquiry, not in the courts.
This is precisely the type of First Amendment lawsuit that the District of Columbia’s Anti-SLAPP law was designed to stop at the outset, and it is for this reason that CEI and National Review’s position is supported by a wide range of amici, including the Reporters’ Committee for Freedom of the Press, the Electronic Frontier Foundation, the Cato Institute, and dozens of other organizations. We are hopeful that the Court of Appeals will agree.
Legal briefs in the case can be found at cei.org/michaelmann.