A lawsuit filed Tuesday against Northwestern University opened a new front in the battle against affirmative action....
“For decades, left-wing faculty and administrators have been thumbing their noses at federal anti-discrimination statutes,” contends the suit, which was filed Tuesday in federal district court in Illinois. “They do this by hiring women and racial minorities with mediocre and undistinguished records over white men who have better credentials, better scholarship, and better teaching ability.”...
The suit names three White men it says were not hired despite strong qualifications, and names four Black women and one Black man who it alleges were offered faculty positions because of their race and/or gender, painting several of these academics in harshly unflattering terms.
This sounds not new but old to me, because I remember when the University of Wisconsin Law School was sued in exactly this way. The case went to trial, and I testified, because I'd served on the Appointments Committee. This was many years ago, and the jury found in our favor. It's very difficult to look at particular individuals who were hired and compare them to individuals who were not hired. This was decades ago, and the relevant case law has evolved since then.
Eugene Volokh is not one of the plaintiffs in the new lawsuit, but the complaint contains allegations about him.
"Still, I’m being conscripted. By obligating me to do the state’s bidding with regard to viewpoints that New York condemns, the law violates the First Amendment.
The Supreme Court has carved out several narrow categories of unprotected speech, but hate speech isn’t one of them.... The new law would force me to act on the state’s disdain for online speech that someone, somewhere believes can 'vilify, humiliate, or incite violence against' groups based on protected class, even if that speech is protected by the First Amendment.
Does speech by Richard Dawkins comparing George W. Bush’s faith to that of Osama bin Laden’s vilify conservative Christians? Does speech condemning trans athletes who join women’s sports teams vilify or humiliate based on gender identity? Do harsh criticisms of Israelis or Palestinians vilify those groups? Do some feminist comments criticizing patriarchy humiliate men? Can your comment on any of the blogs, news sites or social-media platforms swept up in New York’s law be defined as hateful conduct?
Nobody knows."
"... the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone. After all, while our own ideas may be popular today, they may not be tomorrow. Indeed, '[w]e can have intellectual individualism' and 'rich cultural diversities … only at the price' of allowing others to express beliefs that we may find offensive or irrational. West Virginia State Board of Education v. Barnette (1943). This 'freedom to differ is not limited to things that do not matter much … [t]he test of its substance is the right to differ as to things that touch the heart of the existing order.' Id."
Barnette was about compelling school children to recite the Pledge of Allegiance. The children had a religious objection but the case was not decided on the basis of a special religious exclusion. Justice Jackson famously wrote:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.
[The court wrote that] Twitter’s “interactive space,” where users can interact with Trump’s tweets, qualifies as a public forum, and that blocking users unconstitutionally restricts their speech. The decision rejected arguments from the president’s team that President Trump’s own First Amendment rights would be violated if he could not block users....
The court, while not going so far as to enter an order against the president and social media director Dan Scavino specifically, ruled more generally that public officials violated users’ rights when blocking them on the platform. The decision says such action is “viewpoint discrimination,” and that “no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared.”...
Notably, the decision distinguished between Twitter’s block and mute functions, and the judge found the argument that the two functions were equivalent “unpersuasive.” ...
[According to the court,t]he Tweets themselves aren't a forum, because they are the President's own speech; but the space for public replies is a forum. The court's concern is that replies are a valuable means for the repliers to speak to fellow members of the public. The court recognizes that there's no right to speak to the President in a way that the President is obliged to read; the President remains free, for instance, to use Twitter's "mute" function, which would keep him from seeing the user's replies when he reviews his own feed.
Volokh thinks that part is relatively easy, but this the question whether the President is acting as a private citizen or a government official:
[E]ven when the President is giving a public speech, he is understood at least in part as expressing his own views... [C]onsider a related issue under another First Amendment provision, the Establishment Clause—even Supreme Court justices who believe that the government may not endorse religion think that it's fine for government officials to express religious views in their speeches.
And the Volokh bloggers don't even use vulgarities in the own writing. They just want to be able to quote things like "Fuck the Draft."
[I]t's hard for me to see what value... redaction adds. And the symbolism is important to me... More importantly, we want the decision whether or not to redact to be ours, not the Post's. This is so for the familiar vulgarities, but also as to similar decisions about what to do with quoting incidents that involve offensive epithets, allegedly offensive team names and band names, allegedly improper use of pronouns to refer to various people, and much more. Once we acknowledge that it's proper to constrain our accurate reporting about one kind of offensive word, how would we effectively be able to defend our right to judge how to report on incidents involving other words?
"... and to the extent that cakes are used in ceremonies, their significance is inextricably tied to their being eaten, not to any message they visually convey," argue Dale Carpenter and Eugene Volokh in an amicus brief in the Masterpiece Cakeshop case (PDF):
To be sure, cakes often do convey messages in the writing or graphics on the cake itself. Cake-makers might indeed have a First Amendment right to decline to include such written or graphic messages on a cake. The cake itself, though intended for use in a ceremony, is not itself generally expressive of any message (other than perhaps the fact that 'this cake is intended for use in this ceremony'). Nor can wedding cakes be viewed as inherently expressive, or traditionally protected, simply by raising the level of generality and calling wedding-cake-making 'art.' Much in life is art in the sense that it is aimed at creating beauty, including beauty identifiably linked with some ceremony or some style. Cooking is often said to be an art.
At this point there's a footnote to 3 cookbooks with the word "art" in the title, one of which is by Anne Volokh ("The Art of Russian Cuisine").
Even setting the table to present food is an art, with a long historical pedigree. Subway calls its sandwich-makers 'sandwich artists.' But a restaurant may not refuse to cook or prepare a table for certain customers on the ground that would be a speech compulsion....
The relevant Free Speech Clause question is not whether a merchant customizes a product, but whether the customization communicates protected expression.... No one looks at a wedding cake and reflects, “the baker has blessed this union.”... Phillips may subjectively believe that making the cake would have communicated a message about his clients’ marriage, but there is not a substantial likelihood “that the message would be understood by those who viewed it.”...
Requiring bakers to design a cake using certain words, symbols, or other politically significant design elements, might... be an unconstitutional speech compulsion. Even if the choice to wear certain styles of clothing is not protected by the First Amendment, restrictions on wearing certain words on clothing are unconstitutional, see Cohen v. California, 403 U.S. 15 (1971); the same goes for cakes...
This case is about Phillips’ categorical refusal to provide a particular sort of product to customers based solely on their sexual orientation reflected in the event for which the product was to be provided, in violation of a state public accommodations law. It is not about any refusal on Phillips’ part to speak through his cake creations.
Carpenter and Volokh side with the Colorado Civil Rights Commission against the cakeshop. You can compare their argument to the one in the Cake Artists amicus brief, which we discussed a little while ago here. The Cake Artists refrained from taking a side, but they want what they do to be given the status of "expressive art." They want "the same respect under the First Amendment as artists using any other medium."
The difference between these 2 briefs isn't about what is art, but what is expression. Carpenter and Volokh say you've got to draw the line somewhere, and they rely a lot on whether there's already a tradition of regarding something as form of expression protected by the First Amendment:
Jackson Pollock paintings are protected because they are special cases of a broad medium — painting — that has long been used to communicate expression.
Are paintings protected because we see them as encoding a message that reminds us of something that could have been put in words?
Why do courts protect that, really? Well, there's the tradition argument: Courts protect paintings because they've protected paintings in the past, and anything that's literally a painting — even if it's off the stretchers and the brush never touches the canvas — gets the traditional protection.
But let's look beyond tradition — even though opponents of gay marriage got deeply wedged into tradition-based arguments. Go back to the Carpenter/Volokh quote I put in the post title. I see some substance here: "Cakes do not convey the rich, complex expression that can be conveyed by words, music, images, and the like." We might say to extend the protection beyond what is traditional, courts should look at whether the supposed expression achieves complexity and richness.
The Cake Artists brief has material for putting together a complexity-and-richness argument for the protection of wedding-cake expression. But the complexity-and-richness standard smells of elitism and overeducation. The one case citation I left in, above, is Cohen v. California,where the protected speech was simple and cheap: "Fuck the draft."
And did Pollack really have anything complex or rich to say? I don't think there's a message to be decoded from the dried dribbles. He made an object, and the object is protected because it was made by an artist, and we've been reverential about the artists we consider real artists for a long time.
First, the panel split on whether the refusal to print a gay pride message was sexual orientation discrimination against particular individuals.... The majority said no....
So they didn't have to reach the question whether there was a free-speech right that supersedes the statute. (Volokh had argued in an amicus brief that there is: "The government may not require Americans to help distribute speech of which they disapprove.")
[The concurring judge] also reasoned that the ordinance was preempted by the Kentucky Religious Freedom Restoration Statute.... He concluded that the ordinance, as interpreted by the commission, burdened the [Hands On Originals] owners’ religious practice, and thus the owners were entitled to an exemption unless denying the exemption was the least restrictive means of serving a compelling interests — a showing the government could not make....
"[I]s the publisher free to publish them on the theory that it is accurately reporting what has been alleged, even if the allegations are not accurate?"
Eugene Volokh does the legal analysis. It's complicated. You have to understand the republication rule, the “absence of malice” standard, the fair report privilege, the neutral reportage privilege, and 47 U.S.C. § 230.
[T]he legal result would turn heavily on (at least) two contested questions — whether the jurisdiction recognizes the neutral reportage privilege and would apply it to this situation, and whether § 230 is read broadly when applied to a news site’s publishing particular material that it itself has deliberately chosen.
"Once a professor’s public speech — or even speech in a relatively private setting, so long as some students are there or some students hear about it — is seen as sufficiently offensive to enough students, that would be seen as justification for suspending or firing the professor. And the lack of this principle would be felt not just by Shurtz but also by those who talk about alleged white privilege, the evils of Catholicism, the folly or bigotry of Trump voters, the immorality of choosing the military as a profession, or the depravity of capitalists or Israelis — as well as those who post Muhammad cartoons, criticize homosexuality or transgender rights theories, or discuss possible biological differences between male and female cognition and temperament.... [I]f people do endorse this view, they should endorse it with their eyes open, realizing what a vast range of academic speech — left, right and otherwise — it would potentially affect."
Writes Eugene Volokh (at WaPo), analyzing the treatment of Nancy Shurtz, the lawprof who wore blackface at a Halloween party.
Now you, learned reader, are doubtless wondering, “But what about California v. Greenwood, in which the U.S. Supreme Court held that Fourth Amendment protections don’t generally apply to garbage?” And of course you’re right to so wonder; Greenwood concluded that....
Ha ha. I love the rhetorical device — must be a Greek name for it — of heading into something lofty or deep by portraying the reader as someone who's already thinking about it on that level.
Volokh explains Greenwood and proceeds to State v. Boland and makes the inconclusive conclusion of imagining "that searching materials turned over for disposal to determine whether they fit the rules about what qualifies for disposal might be different from searching such materials for evidence of unrelated crimes."
Eugene Volokh calls attention to the case of a 6th-grader who was punished — 5 lunch-hour detentions — for telling a fellow student "it’s not good to not eat meat" and that "he should eat meat because he’d be smarter and have bigger brains" and "vegetarians are idiots."
An administrative judge wrote that the boy's statements "were reasonably perceived as being motivated by a distinguishing characteristic between the two boys, namely vegetarianism, which substantially interfered with the rights of K.S. and had the effect of insulting or demeaning him."
Volokh observes that the judge did not stress the empty insult "vegetarians are idiots," but "treated this statement as on par with polite factual and normative claims (whether accurate or not), such as 'it’s not good to not eat meat' and '[you] should eat meat because [you]’d be smarter and have bigger brains.'"
So would the boy have been punished if he'd limited himself to a substantive argument against avoiding meat? Isn't it significant that vegetarianism can be part of a person's religion or religion-like in its importance to a person? Are children allowed to proselytize in the lunch room? Does it depend on whether they can refrain from insults or do we just not want them arguing about things that go to the deep core of human identity? The question is: How big is this notion of harassment and how small — by contrast — are the free speech rights of school children?
Ben-Levi is serving a life sentence for a 1980 rape; at some point, he changed his name to Israel Ben-Levi, and either converted to Judaism or rediscovered Judaism; he now wants to engage in group Torah study with two other inmates. North Carolina prisons generally allow group religious study; but for Jews they require either the presence of a rabbi or a minyan — 10 adult Jews. The minyan requirement stems from the prison system’s understanding of Jewish law.
Alito writes;
In essence, [the warden]’s argument — which was accepted by the courts below — is that Ben-Levi’s religious exercise was not burdened because he misunderstands his own religion....
The argument that a plaintiff’s own interpretation of his or her religion must yield to the government’s interpretation is foreclosed by our precedents....
The Court's refusal to take the case doesn't mean the court below got it right. And, in fact, it looks obviously wrong — wrong on an exceedingly important proposition of freedom of religion. A person may be shamming about what he really believes, but whatever he sincerely believes, that's his religion. It doesn't matter that it may fail to align with what authorities operating under the same religion name happen to say or what the government, consulting those authorities, think they've got figured out. It's what's in that one person's head, here in the United States of America.
"Indeed, 18-to-24-year-old women are especially likely to be targets for rape, but more broadly 18-to-24-year-olds are especially likely to be victims of violent crime. It’s one thing to deny the necessary tools for self-defense to people who have long been recognized and children, who are both especially immature and usually under the protection of their adult parents. But I don’t think that it can be justified to deny the same tools to people who have the responsibilities and life patterns (living alone, working, and the like) of adults. Banning gun possession by 18-to-24-year-olds will do little to protect them from violent crime, precisely because most people willing to commit rape, robbery, murder, and the like will also be willing to violate gun control laws. But it will do much to interfere with young men’s and women’s ability to protect themselves from violent crime."
From Eugene Volokh's response to a WaPo column recommending "raising the minimum age to buy or possess (without adult supervision) a firearm to 25."
And now there's there will be a split in the circuits, because if the 4th Circuit went goes the other way in the case about the Redskins, so it's which will make it likely the Supreme Court will take the case. Eugene Volokh spells out why he thinks the Federal Circuit got it right. Super-short answer: It's viewpoint discrimination. The arguments on the other side are basically: it's commercial speech (and therefore entitled to less protection), and it's a government subsidy (and government can choose what speech it subsidizes).
What if, for instance, he believes that the parable of the Good Samaritan commands him to help his patient, or his wife, or anyone else to escape pain — or what they feel to be indignity — by helping them end their lives? (Assume that the target of this help wants to die, is in pain and is already near death. And assume that we’re in a state that forbids assisting suicide.)...
The federal Free Exercise Clause doesn't require accommodations, but there are statutes and state constitutional law provisions that give relief from substantial burdens on the exercise of religion unless the government has a compelling interest that can only be served by imposing that burden.
[T]he government [could say] that it has a compelling government interest in preventing people from being pressured into giving up their lives, and that a total ban on assisted suicide is the least restrictive means of preventing such pressure.... [S]ubtle pressure can happen even while the relatives are denying to themselves that they actually want the person to die... [O]nce assisted suicide becomes just another choice... families might subtly or overtly threaten to withdraw their affections, and the ill person may find life no longer worth living.... Is there a compelling interest in preventing such emotionally or psychologically pressured choices (even if not forcibly coerced choices) in favor of suicide?
I have an old Religion-and-the-Constitution exam somewhere — not in this computer — where I made up a religion that had an "assisted suicide" belief, basically a ritualistic killing of persons who had reached a certain stage of debilitation in proximity to death. My hypothetical went beyond a religious belief that one ought to help a dying person die when that person wanted to die. In "my" religion, the dying person also had an obligation to depart. I explained these religious beliefs with such dry neutrality that not one student expressed any outrage or disgust.
I wonder what Professor Volokh would say if the dying person's desire to die rested on religious obligation.
ADDED: In my exam hypo, the individuals who were killed were members of the religion, sharing the killer's belief system. In Volokh's hypothetical, the killer could be a real Dr. Death Reverend Death, ministering to everyone who wants to die (and is in pain and near death). Dr. Kevorkian, but with religion.
In his keynote address at the Freedom From Religion Foundation annual convention in 1990, Kevorkian told convention-goers: "Religion is telling law what to do, and law is telling doctors what to do. Religion dictates to law, and law dictates to ethics. No wonder we have problems. That's insanity!"
"Acceptable" is a weak word. It's not going to be acceptable to a court that has decided what the law is and ordered you to follow it, and Volokh isn't trying to say that it is. He's really only asking us to look at the Kim Davis problem from the perspective of those who think that the acceptance — there's that word again — of gay marriage is an evil on the scale of slavery or Nazi Germany.
Not that we have to agree with that view, but the question is whether the (possibly oath-based) proceduralist argument (“do your job or engage in revolution, but if you do that you have to quit, because OMG the oath”) should carry any logical weight with adherents of that view. While I think acceptable resistance against Nazis differs from acceptable resistance against liberal democratic governments, the reason I think that has nothing to do with oaths, and it’s not clear to me how an oath-based theory would successfully distinguish between the two situations.
Bottom line: I’m fine continuing to criticize Davis on substantive moral grounds. And I’m fine showing why Davis’s actions are illegal under the positive law; but once you get to the point where you’re making the illegality serve a normative goal, you have to confront issues of legitimate disobedience, and I’m not sure that a purely procedural (“quit or do your job”) argument will work to exclude Davis’s “keep your job but follow your ideals” strategy of disobedience.
I'm using my tag "civil disobedience," even though Sasha Volokh eschews the adjective and speaks only of "disobedience." I think "civil" is inappropriate because Davis is not a citizen resisting the government. She's a government official. "Civil" denotes a connection to ordinary citizens. There's something much fishier about someone working within the government, not following the rules.
Should we accept (there's that word again) IRS agents resisting tax-exemption applications from groups that represent politics they think are evil? Think of resistance from the inside by police officers, teachers, judges, social workers, prison wardens, and the rest of the immense cast of characters that make up the government and against whom we, the citizens, assert our civil rights.
ADDED: For what it's worth, here's the (unlinkable) OED entry for "civil disobedience":
civil disobedience n. rebellion of the populace against a governing power; (in later use) spec. refusal to obey the laws, commands, etc., of a government or authority as part of an organized, non-violent political protest or campaign.
Smith and Owens found that the U.S. government had a secular purpose: "the statue’s cultural and historical significance for veterans, Montanans, and tourists; the statue’s inclusion in the National Register of Historic Places; and the government’s intent to preserve the site 'as a historic part of the resort.'"
And the majority had 6 reasons for rejecting the notion that the government was "endorsing" religion:
(1) there is nothing in the statue’s display or setting to suggest government endorsement; the twelve-foot tall statue is on a mountain, far from any government seat or building, near a commercial ski resort, and accessible only to individuals who pay to use the ski lift; (2) the statue’s plaque communicates that it is privately owned and maintained — “it did not sprout from the minds of [government] officials and was not funded from [the government’s] coffers”; (3) besides the statue’s likeness, there is nothing in the display or setting to suggest a religious message. The mountain’s role as a summer and winter tourist destination used for skiing, hiking, biking, berry-picking, and site-seeing suggests a secular context...
That's not the usual way we spell "sight-seeing," but I guess it's a site... and here comes a cite:
... the location “does not readily lend itself to meditation or any other religious activity,” and the setting “suggests little or nothing of the sacred,” Van Orden, 545 U.S. at 702 (Breyer, J., concurring in the judgment); (4) the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures; (5) local residents commonly perceived the statue as a meeting place, local landmark, and important aspect of the mountain’s history as a ski area and tourist destination; and, (6) there is an absence of complaints throughout its sixty-year history, see Van Orden, 545 U.S. at 702 (Breyer, J., concurring in the judgment) (reasoning that the monument’s forty-year unchallenged history “suggest[s] more strongly than can any set of formulaic tests that few individuals … are likely to have understood the monument as amounting … to a government effort to favor a particular religious sect, … to ‘compel’ any ‘religious practic[e],’ or to ‘work deterrence’ of any ‘religious belief’” (alterations in original)).
Note the emphasis on Justice Breyer's concurring opinion in Van Orden, which was the case about the 10 Commandments monument next to the Texas state house. This emphasis is justified, as Breyer was the deciding vote in that case and another 10 Commandments case that came out the same day and went the other way. Following Breyer, you end up with multifactored, contextualized judgment.
The dissenting judge in the 9th Circuit was Harry Pregerson. He didn't go for the Breyer-style multifactored analysis but asked whether a reasonable observer would perceive "a message of religious endorsement."
Lawprof Eugene Volokh — at the first link, above — approves of the outcome. He says "the Supreme Court’s Establishment Clause jurisprudence" is "not quite right" because: 1. It's too "tricky" to look into "government’s supposed motive" ("[M]ost things that people do — and even more so most things that multi-member government agencies do — have many different motives, whether policy motives or political motives"). 2. The lack of complaints "might simply reflect that complaints about such things are often highly unpopular in many circles, and that many people can be quite upset and yet still not want to fight a thankless and uphill legal battle." 3. It's "unrealistic" to take account of "divisiveness." And what about history? Volokh says: "[T]he Big Mountain Jesus isn’t quite the Bamiyan Buddhas, but 60-year-old items are still pretty historical by American standards," and even though Big Mountain Jesus wasn't really treated like your usual historical monument: "[T]his sort of historical monument ought not be ordered off government land."
The litigation goes all the way back to 2011. Here's my original post on the subject from then. I said:
... I think removing the statue is not necessary to comply with the Establishment Clause. I go back to what Justice Breyer wrote in one of the 10 Commandments cases that the Supreme Court decided in 2005 [Van Orden]. Breyer... was the only member of the Court in the majority in both cases.
Justice Breyer quoted the 1963 school prayer opinion written by Justice Goldberg: "[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious."
And Breyer concluded that taking down the old stone monument in Texas would "exhibit a hostility toward religion that has no place in our Establishment Clause traditions" and "encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation," which would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid."
Big Mountain Jesus is a 50-year-old part of the landscape, so it's probably a good idea to take Justice Breyer's advice seriously and ski clear of divisiveness and a brooding and pervasive devotion to the secular.
What Volokh said was (mocking the university's aggressive definition of microaggression):
Well, I’m happy to say that I’m just going to keep on microaggressing. I like to think that I’m generally polite, so I won’t express these views rudely. And I try not to inject my own irrelevant opinions into classes I teach, so there are many situations in which I won’t bring up these views simply because it’s not my job to express my views in those contexts.
Unlike Volokh, I don't "like to think that I’m generally polite." I dislike (and avoid) thinking that, because politeness is subjective, and I'm afraid to count on the belief that other people will think that I'm polite.
Eugene Volokh asks, looking at a case where there's good reason to want to answer yes.
But the legislature deliberately enacted a law that made it an aggravated felony to have sex with someone if “at the time of the sexual assault, the victim indicates by speech or conduct that there is not freely given consent to performance of the sexual act.” An alleged victim’s being passive — and, again, passive without the defendant’s use or threat of physical force — is a reaction that is broadly consistent both with absence of consent and presence of consent (even if not necessarily enthusiastic consent). In such a situation, passivity shouldn’t satisfy the statutory requirement of the victim’s “indicat[ing] by speech or conduct that there is not freely given consent,” especially since the defendant’s guilt must be shown beyond a reasonable doubt.
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