Violating the First Amendment, the Supreme Court rules that taxpayer money can be used to send kids to religious schools

June 21, 2022 • 12:00 pm

Further eroding the wall between church and state, the Supreme Court ruled today by a margin of 6-3 (get used to that vote!) that the state of Maine MUST allow taxpayer-funded vouchers for students who want to go to religious schools.  This means that we, the taxpayers, must surrender some of our hard-earned dosh to subsidize religious instruction. This has violated all precedent, as the articles below explain.

You can read the decision here.

Judge Roberts, who voted with the conservative majority, called the “no-religious-vouchers” law of Maine “discrimination against religion.” I can see that argument (though I disagree with it), except that the private or public schools normally funded with such vouchers do not push a religious point of view. In fact, if I had my way there would be no vouchers at all, so Roberts’s argument wouldn’t apply. You either send your kids to public schools, homeschool them, or, if you can afford it, PAY for private schools, religious or not. If you think the public schools aren’t good enough for your kid, or are too secular, pay for them to go to “better” schools. If I’m going to pay for improved education, I want it to be through higher taxes to improve PUBLIC schools.

Click below to read the CNN article:

An excerpt

The Supreme Court said Tuesday that Maine cannot exclude religious schools from a tuition assistance program that allows parents to use vouchers to send their children to public or private schools.

The 6-3 ruling is the latest move by the conservative court to expand religious liberty rights and bring more religion into public life, a trend bolstered by the addition of three of former President Donald Trump’s nominees.

“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment,” Chief Justice John Roberts wrote for the majority. “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”

Roberts was joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The three liberal justices dissented.

It is a loss for critics who say the decision will amount to a further erosion of the separation between church and state. Although only one other state, Vermont, has a similar program, the court’s ruling could inspire other states to pass similar programs.

Writing a dissent joined by Justice Elena Kagan and in part by Justice Sonia Sotomayor, Justice Stephen Breyer said the court had “never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.”

The Freedom from Religion Foundation also has a new piece analyzing the decision, which you can read by clicking below:

From the FFRF analysis:

The court has gone contrary to the country’s foundational constitutional principles in striking down Maine’s “no aid” law, a provision meant to ensure that no citizen is forced to fund religious indoctrination at private religious schools, or any religious education that conflicts with their personal beliefs. The Supreme Court’s judicial activism and faulty reasoning will undoubtedly lead to many additional violations and litigation in other states as Christian nationalists seek to fund private Christian education with taxpayer money.

The plaintiffs want to use state money in this instance to send their children to Christian schools that provide religious instruction. One of the schools in question, Bangor Christian School, has a mission of instilling a biblical worldview that is “completely intertwined” with the curriculum and identifies the bible as its “final authority in all matters.” The First U.S. Circuit Court of Appeals concluded in its judgment two years ago that the “nonsectarian” requirement in Maine’s tuition assistance program did not exclude religious schools based on their religious status, but rather protected the state’s interest in only supporting nonreligious education.

You citizens of Maine: if you accept evolution, you’re probably giving money to parents to have their kids taught creationism.

However, the majority opinion, written by Justice John Roberts, asserts that Maine’s law impermissibly infringes on the rights of religious schools: “A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.” Roberts added, “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

This claim misconstrues the real religious freedom at stake in the case, which is the right of every taxpayer to be free from funding religious indoctrination, and the right of every student in Maine to an education free from religiously motivated discrimination. Shockingly, the Supreme Court’s opinion explicitly acknowledges that private religious schools are very different from the public school education that Maine’s program is intended to offer. Roberts notes, “private schools are different by definition because they do not have to accept all students. Public schools generally do,” and moreover, “the curriculum taught at participating private schools need not even resemble that taught in the Maine public schools.”

And look at this!

The two religious schools acting as plaintiffs in the case “candidly admit that they discriminate against homosexuals, individuals who are transgender and non-Christians,” according to Maine’s brief to the Supreme Court. But rather than observing that these differences warrant Maine’s decision to limit its funding to schools that do not indoctrinate students, the court reasons that giving money to any private school means the state must fund religious education as well.

And from Sotomayor’s strong dissent:

In a blistering dissent, Sotomayor writes: “What a difference five years makes. In 2017, I feared that the Court was ‘lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.’ Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. ​​If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.”

I don’t think we should have to subsidize private education when we have public schools, but I object even more when that private education is religious, as forcing taxpayers to subsidize learning about Moses or Jesus or Allah is forcing the government to fund religion. And that’s a violation of the First Amendment.

Get used to a 6-3 vote (Breyer will be replace by the liberal Ketanji Brown Jackson). It is the vote that will be used to tear down the wall between church and state.

“Judge Roberts, stop tearing down that wall!”

Yes, burning the Qur’an can violate the First Amendment

May 17, 2022 • 10:00 am

Yesterday I described the mayhem that ensued in Sweden and Denmark when a nativist right-wing politician, Rasmus Paludan, head of Denmark’s anti-immigrant Hard Line Party, set fire to a Qur’an live on Facebook last month. He then announced that he was going to tour Sweden over Easter weekend burning Qurans: a tour with burnings in different Swedish cities. This caused the expected consequences: public ire and violent protests that included overturning buses and throwing Molotov cocktails. (The Muslims, of course, were irate over the burning of their scripture, and perpetrated the violence.) Paludan is continuing his Burn The Qur’an Tour and continues to create mayhem.

However, the Swedish and Danish police protected Paludan, and several readers noted that his acts are not prohibited in Sweden and Denmark, even when they could cause damage to people and property.

The question I posed to readers was this:  could burning a Qur’an in the U.S. under some circumstances not be considered Constitutionally protected speech if it led to foreseeable and imminent harm, and if that harm was intended?

Like most readers, I see no issue with burning Qur’ans, but I was posing a hypothetical legal question.

Most readers argued that this “speech” (burning the Qur’an) would be protected in the U.S. even if it was likely to lead to foreseeable and intended violence. You can see readers’ comments here.

However, I wanted a definitive legal opinion, so I consulted a very well known law professor specializing in free-speech and First Amendment issues.  His/her answer was that, yes, under some circumstances burning the Qur’an might NOT be protected speech, in which case the burner could be prosecuted. The prof’s response (I’ve added the link), quoted with permission:

According to the Court’s 1969 decision in Brandenburg v. Ohio, which remains a leading precedent, the government cannot punish an individual for engaging in expressive conduct that causes others to engage in violence unless the individual specifically intended to cause that reaction and his speech caused likely and imminent violence. So, whether the right wing Swedish politician could be punished for his conduct would depend on whether the government could prove that causing the violence was his specific intent in burning the Muslim [book] and that the violent response was likely and imminent (and grave).

Now these circumstances may not obtain in the case of Paludan, and proving intent is of course quite difficult. Nevertheless, it is not beyond possibility that someone burning the Qur’an could be punished by the U.S. government for that act under the “imminent violence” provision.

I consider this opinion definitive.

Here’s a recent video of Paludin burning the Qur’an under police protection, and some of the reaction:

Musk says he’ll reverse Twitter ban on Trump

May 10, 2022 • 2:32 pm

According to the Washington Post, Elon Musk, who will be the new boss of Twitter, has announced that he’ll reverse Twitter’s ban on the lucubrations of former Lunatic-in-Chief Donald Trump.

Twitter’s decision to ban Trump from the platform early last year was a mistake, the Tesla CEO said during a virtual event Tuesday. The decision to do so alienated much of the country, and Trump still has a voice. And Trump has launched his own social media platform in the meantime, potentially prompting even greater problems, he added.

“I think it was a morally bad decision to be clear and foolish in the extreme,” he said at the event hosted by the Financial Times.

Twitter banned Trump in the wake of the Jan. 6 riots, citing the risk of further violence.

. . . [Musk] has seized on the platform’s importance to democracy and global debate and criticized what he has described as a left-wing bias in moderation decisions. Twitter has countered that its efforts have been aimed at minimizing harm and improving the user experience by limiting exposure to hate speech and harassment.

I am on Musk’s side in this one. If he truly wants to adhere to the courts’ First Amendment construal of free speech on Twitter, as he said he does, then there’s no reason to ban Trump. If Trump abrogates First Amendment principles in the future, he can go. You might say that his behavior on January 6 constituted the promulgation of predictable and imminent harm, though he’s not been convicted of that, but even if it did, I favor giving him a fresh start. After all, doesn’t America deserve the spectacle of seeing the man fulminate? And remember, half of America loves him.

Of course now people will hate Musk even more, though I don’t think he deserves it. This was a proper decision, and can be rescinded if Trump violates any of the forms of speech not protected by the First Amendment.

I suspect many readers will disagree with me.

The NYT apparently doesn’t understand freedom of speech

March 19, 2022 • 11:00 am

I was surprised to see this full-editorial-board opinion piece in yesterday’s New York Times. But any endorsement of freedom of speech is okay with me. Yet as I read it, I realized that the New York Times is really attacking “cancel culture” rather than endorsing free speech. Read on to see what I mean (click on screenshot):

From the very upshot the article takes a strange definition of free speech, one not at all coincident with that defined by the First Amendment::

First, the Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

What this means is that the government cannot itself ban or censor speech. The courts have carved out exceptions over the years, prohibiting speech that constitutes libel, harassment in the workplace, false advertising, defamation, some types of obscenity, and so on. This also means that the organs of government, most notably courts and public schools, cannot ban or censor speech. This does not mean that public organizations cannot censor some speech. For example, public schools, as in the Kitzmiller v Dover decision, were not free to teach intelligent design, an act that Judge Jones saw as itself violating the Establishment (of religion) clause of the First Amendment.

And yet here’s how the NYT article starts:

For all the tolerance and enlightenment that modern society claims, Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned.

This social silencing, this depluralizing of America, has been evident for years, but dealing with it stirs yet more fear. It feels like a third rail, dangerous. For a strong nation and open society, that is dangerous.

If we’re talking about “fundamental rights” guaranteed by the Constitution, then no, that document doesn’t give Americans any right to say whatever they want “without being shamed or shunned.” There is no “fundamental  {Constitutional) right” prohibiting “social silencing”, which is not really external silencing but self-imposed withholding of speech to prevent disapprobation.

It is this public disapprobation and shunning that the paper is defending, and yet even that has its place. If you publicly call for the gassing of Jews or genocide of Muslims in America, you have no “right” to not be shamed or shunned. Indeed, you should be. What you have the right to do is shout your views in the public square without being physically attacked, or, if you publish your views, to not have them censored by the government. (“Censorship” by private publishers is of course normal, as when Woody Allen’s publisher reneged on the agreement to publish his memoirs.)

What the Times is really calling for, in its confusing piece, is civil discourse—the “right” (and where do such “rights” come from?) to speak your piece without losing your job or being harassed. It’s calling for the kind of thing that Mill called for: the ability to speak your piece without being silenced by anyone—even by being shunned.

And the NYT faults both the Left and Right (mostly the Right, of course) for violating this kind of civility:

Many on the left refuse to acknowledge that cancel culture exists at all, believing that those who complain about it are offering cover for bigots to peddle hate speech. Many on the right, for all their braying about cancel culture, have embraced an even more extreme version of censoriousness as a bulwark against a rapidly changing society, with laws that would ban books, stifle teachers and discourage open discussion in classrooms.

Many Americans are understandably confused, then, about what they can say and where they can say it. People should be able to put forward viewpoints, ask questions and make mistakes, and take unpopular but good-faith positions on issues that society is still working through — all without fearing cancellation.

Now laws that ban books and prohibit certain speech in public schools are indeed violating Constitutional free speech, but the paper generally avoids the distinction between “legal” speech and “tolerated” speech. Only once in the whole article does it mention this crucial distinction, and it’s way down in the article:

It is worth noting here the important distinction between what the First Amendment protects — freedom from government restrictions on expression — and the popular conception of free speech — the affirmative right to speak your mind in public, on which the law is silent.

Yes, the law is silent on that issue. What we need, and what the Times should make clear, is the distinction above, for Americans really need to know what speech can be legally restricted and what what speech cannot. That is, for instance, a huge issue in colleges.

To buttress its misguided conception of “free speech”, the paper presents results from several polls, all of them showing that a surprisingly large number of people self-censor or fear “retaliation or harsh criticism”. But “harsh criticism” comes with the territory, and its not clear what they mean by “retaliation.”

This whole article is in fact a gussied-up version of “A Letter on Justice and Open Debate” published two years ago in Harper’s and signed by a number of luminaries. Her’s an excerpt:

The forces of illiberalism are gaining strength throughout the world and have a powerful ally in Donald Trump, who represents a real threat to democracy. But resistance must not be allowed to harden into its own brand of dogma or coercion—which right-wing demagogues are already exploiting. The democratic inclusion we want can be achieved only if we speak out against the intolerant climate that has set in on all sides.

The free exchange of information and ideas, the lifeblood of a liberal society, is daily becoming more constricted. While we have come to expect this on the radical right, censoriousness is also spreading more widely in our culture: an intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty. We uphold the value of robust and even caustic counter-speech from all quarters. But it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought. More troubling still, institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishments instead of considered reforms. Editors are fired for running controversial pieces; books are withdrawn for alleged inauthenticity; journalists are barred from writing on certain topics; professors are investigated for quoting works of literature in class; a researcher is fired for circulating a peer-reviewed academic study; and the heads of organizations are ousted for what are sometimes just clumsy mistakes. Whatever the arguments around each particular incident, the result has been to steadily narrow the boundaries of what can be said without the threat of reprisal. We are already paying the price in greater risk aversion among writers, artists, and journalists who fear for their livelihoods if they depart from the consensus, or even lack sufficient zeal in agreement.

That could have appeared in the NYT editorial. Yet many, especially on the Left, decried the Harper’s letter on various grounds (the signers were entitled, etc.); this link takes you to some some my posts on the criticism of the Harper’s letter.

I suspect that an entirely different article would be needed if you were asking not for legality but civility. (Alternatively, they should have separated the issues more clearly.) Indeed, the NYT has itself violated its own “civil speech” dictum in its own pages, firing staffers for “unwise” tweets and for saying the n-word in a didactic context. And the NYT’s staffers are notorious for their own cancel culture, saying they felt “unsafe” when science writer Don McNeil,  the n-word speaker, said the word several years before, in a didactic context, and on a different continent. (The audience for this editorial should be the paper’s own employees!) The NYT staff rebelled and McNeil was fired.

At any rate, I’m not beefing about this piece’s publication, for I too am an exponent of civil speech. The NYT is late to the party, but its sentiments are fine. But the big lacuna here are these unanswered questions:

a.) How far should First-Amendment style free speech be observed, even in places where it’s not mandated? These include private colleges, statements made outside the workplace, and so on?

b.) Sometimes people should be shamed or shunned for their speech, depending on what it is.  What should not happen is shouting down speakers or deplatforming them once they’ve been invited. In my ideal world, First Amendment free speech should coincide, as far as possible, with private free speech. That is, you have the right to say what you want (save the exceptions delineated by the courts), but nobody should be forced to listen to you.

*******************

Addendum (h/t cesar):

Pluribus has collected a number of responses to the op-ed, both pro and con; you can see them here.  A couple:

I’m pleased to see that Greg Lukianoff, president of FIRE, agrees with me:

As does David French:

And Keith Olbermann:

Remember when the NYT abrogated Quinn Norton’s free speech but not equally odious speech from Sarah Jeong?

Several other people, like this one, don’t like the “both sides are to blame” trope, some seeing it similar to what Donald Trump said about Charlottesville:

And this one’s completely off the rails:

 

The University of Oklahoma teaches instructors how to make students shut up and swallow an accepted ideology

June 24, 2021 • 9:41 am

This new article from the Foundation for Individual Rights in Education (FIRE) tells a dire tale that is documented with a recording.

On April 14, the University ran a professional development workshop for grad students and instructors dealing with “Anti-Racist Rhetoric & Pedagogies”. In this workshop, the instructors were taught how to make students shut up about certain topics, steer them and bend them to a woke ideology and, most offensively, how to threaten students with lower marks (or reporting to the administration) if they didn’t write the right stuff in their assignments. Click on the screenshot to read (and hear):

Of course it’s not illegal under the First Amendment to prevent students from disrupting classes, nor is it illegal to make them regurgitate material you’ve taught them, even if they don’t accept it. (In my evolution classes here, for instance, I sometimes had some creationist students, but they were graded on their ability to answer questions under the assumption that what I taught them was true. But I never made them accept evolution if they rejected it.)

Here’s the one-hour video of the U of O Zoom session. FIRE has highlighted it with time stamps certain parts that are worrying:

FIRE’s quotes are indented:

The workshop in question trains instructors on how to eliminate disfavored but constitutionally protected expression from the classroom and guide assignments and discussion into preferred areas — all for unambiguously ideological and viewpoint-based reasons. FIRE’s concerns are further compounded by the University of Oklahoma’s brazen and unconstitutional track record of putting individual rights out to pasture.

. . .But it’s not just racism the presenters encourage participants to root out.

One of the workshop leaders, Kelli Pyron Alvarez, explained in the recording how undergraduate students in one of her introductory English courses are “a little bit more emboldened to be racist” (17:17). To combat this, she forbids huge swaths of classroom speech, including “derogatory remarks, critiques, and hate speech,” as well as “white supremacist ideas or sources,” unless the student is using those sources to dismantle racism.

If you are wondering what sources or ideas are off limits because they fall into Pyron Alvarez’s subjective categories of white supremacist sources or “derogatory remarks” — well, she never specifies, so you should be.

Making a mistake can cost you: “If they use any of those things, if any of those come through in their writing or in their comments, I will call them out on it.” (18:20)

And if it happens again, “report them.”

Report them! To whom? Remember, as a state school, the University of Oklahoma must adhere to the principles of the First Amendment, and cannot penalize students for simply believing things that the instructors frown on. But wait! There’s more!

. . . Fairly early in the training, Pyron Alvarez addresses the potential reluctance faculty members might have toward putting a heavy hand on student speech. “One of the fears is that we’re going to get in trouble for this, right?,” she says. “Like we can’t tell students that they can’t say something in class. But we can! And let me tell you how.” (17:45)

Pyron Alvarez’ fellow workshop leader Kasey Woody later goes into some detail on how instructors can “steer” students away from “problematic territory” to accomplish this. (46:01)

“I, in this case, usually look for my students who might be, like, entertaining the idea of listening to a problematic argument. Then I say, ‘we don’t have to listen to that.’” (45:45)

That’s right — even thinking about listening to a disfavored argument is apparently to be discouraged.

Woody later reassures the instructors that they won’t face consequences for censoring students: “You do not need to worry about repercussions at any degree in the university if you are responding to a student who is using problematic language in the classroom.” (49:42)

And who gives them the green light to censor OU students? According to Pyron Alvarez, that permission comes from the highest court in the country.

“The Supreme Court has actually upheld that hate speech, derogatory speech, any of the -isms do not apply in the classroom because they do not foster a productive learning environment. And so, as instructors we can tell our students: ‘no, you do not have the right to say that. Stop talking right now’, right?” (20:05)

Now that is just wrong. The Supreme Court has said that speech on school grounds that causes “material and substantial disruption” of school functions can be punished. But what doesn’t “foster a productive learning environment” now becomes the judgment of the U of O instructors, and “material and substantial disruption” doesn’t seem to be what the OU trainers are addressing here—unless they adhere to the false mantra that “offensive speech is violence.”

Finally,

Some of the responses from workshop participants indicated that they understood how what they were being told to do was out of the ordinary, and expressed reservations about it. One workshop participant asked whether instructors are doing a disservice to their students by censoring certain topics. The participant asked how to identify problematic arguments and whether, for example, a student should be able to examine if the Black Lives Matter movement should refrain from property damage. In response, Pyron Alvarez suggests telling students to “re-adjust” their topic if they’re “bordering” on being offensive. (53:05)

That’s not advice on what arguments might be effective — that’s “advice” on what arguments are politically acceptable.

It goes on, and doesn’t get better. FIRE wrote the University about this, and at first they refused to respond. Finally, yesterday UO Chief Diversity officer Kesha Keith responded, but it was a non-response. Keith asserted that the University “unequivocally values free expression and the diversity of all viewpoints”, but that’s not what the video shows. Keith also says that participation in this session was voluntary, but instructors are required to attend at least two of nine workshops.

On April 8 I reported that when FIRE wanted to see this Zoom session, the U of O stipulated very specific conditions:

The university’s March 23 response — more than four months after our request — said that FIRE would be permitted to view the training materials, but only in person on OU’s campus in Norman, Oklahoma. In other words, in order to view public records, the University of Oklahoma would require a FIRE staff member to fly across the country (FIRE is based in Philadelphia) during a global pandemic. That’s not exactly a transparency-friendly approach to public records, and it all but ensures that public records remain private.

It looks as if the U of O will continue this training—training that is effectively propaganda and also involves lying about student rights.

What can you do about it? At the bottom of the FIRE page is this form, and all you have to do is fill in your name and email address and press “send”, which will send the message at the bottom. I’ve already done that.  Read FIRE’s report, and if you agree that this kind of training  violates the rights of students, fill in the form and click. The only way we can stop the propagandizing of students and the discouragement of “speech” that the instructors don’t like is to speak up!

 

The message that’s automatically send under your name.

I am concerned about the state of free expression and freedom of conscience at the University of Oklahoma. Multiple instructor training sessions indicate that student and faculty individual rights are in jeopardy.

OU is a public institution, obligated to respect student and faculty rights. We call on you to ensure that individual rights are not violated at Oklahoma’s flagship institution.

Demanding ideological uniformity is a violation of students’ constitutional rights.

Supreme Court rules for cheerleader accused of obscene and disruptive speech

June 23, 2021 • 12:30 pm

I’m told by reader Ken that a number of important Supreme Court rulings are coming out today, and this appears to be the first. By an 8-1 vote, with Clarence Thomas dissenting (see full opinion below), the court showed near unanimity in ruling that Brandi Levy, a Pennsylvania high school student, had not violated the First Amendment by sending out a Snapchat message when she was off school grounds. Click to read the NYT story:

Ninth grader Levy, upset that she didn’t make the varsity cheerleading squad, put out a short Snapchat message with her middle finger upraised, saying, “Fuck school;” “Fuck softball;” Fuck cheer”; and “Fuck everything.”  Although, like all Snapchat messages, it disappeared on its own, someone took a screenshot and called it to the school’s attention. The school suspended Levy from cheerleading for a year, arguing that her speech caused “chaos” and disrupted the “teamlike environment.”

Levy sued and won in a federal appeals court on the grounds that her speech was made off school grounds and was therefore protected by the First Amendment. (The Court previously ruled that students could be punished if their speech was on school grounds and caused “material and substantial disruption” of school functions.) According to the NYT article, though, there was divergence among the judges about why her speech remained protected:

Though the Third Circuit was united in ruling for Ms. Levy, the judges disagreed about the rationale. The majority announced a categorical rule barring discipline for off-campus speech that seemed to limit the ability of public schools to address many kinds of disturbing communications by students on social media, including racist threats and cyberbullying.

In a concurring opinion, Judge Thomas L. Ambro wrote that he would have ruled for Ms. Levy on narrower grounds. It would have been enough, he said, to say that her speech was protected by the First Amendment because it did not disrupt school activities. The majority was wrong, he said, to protect all off-campus speech.

The Supreme Court has limited students’ First Amendment rights since the Tinker decision in 1969. In the court’s last major decision on students’ free speech, in 2007, for instance, the court sided with a principal who had suspended a student for displaying a banner that said “Bong Hits 4 Jesus.”

In general, though, I count this as a victory for the First Amendment. There was clearly no violation of free speech by Ms. Levy saying “Fuck softball/school/cheer/everything”.  I’m not sure about whether the Court’s new ruling really would protect off-campus speech that could include “racist threats” and “cyberbullying”, for some examples of those behaviors could constitute harassment in the work(school)place.

Her speech, though, was clearly off campus, and disruptive though some may have seen it, is not subject to the school’s authority.

I wonder if she’ll go back to cheerleading, or will make the varsity squad.

Here’s the 8-1 opinion, with only Clarence Thomas dissenting on the grounds that whether this speech was really “off campus” is unclear. You can download the pdf by clicking on the arrow to the right.

Click to access 20-255_g3bi.pdf

Michelle Goldberg on why the Left needs the ACLU to keep defending odious speech

June 9, 2021 • 11:00 am

I recently kvetched about the American Civil Liberty Union’s (ACLU’s) movement against defending freedom of speech and towards social-justice initiatives, objecting both to the kinds of issues that the ACLU is now tackling (taking the side of those offended by “hate speech” and rejecting defense of the First Amendment), and to their entering an area that is already full of other people doing similar work. (The only organization doing anything similar to the ACLU is the Foundation for Individual Rights in Education—FIRE), which formed to fill the lacuna left when the ACLU stopped working on college issues.)

I was thus pleased to see NYT op-ed writer Michelle Goldberg take a similar position in her Monday column (click on screenshot below). In her view, the ACLU’s defense of “awful speech” is essential in ensuring social justice:

It’s a short piece and can be summarized briefly. First, this isn’t the first time the ACLU has been divided (there was internecine dissent in 1978 over the ACLU’s defense of the Klan.) Still, it’s pretty clear there’s a generational split over free speech, both in the A.C.L.U. and in liberalism writ large.

Second, people seem slow to realize that defense of free speech is essential for guaranteeing civil liberties and the rights of minorities.  Without the First Amendment, Black Lives Matter protests, for example, could have been banned, and protests are being banned now. Goldberg:

I wonder, however, if this divide could soon fade away, because events in the wider world are conspiring to remind the American left how dependent it is on a robust First Amendment. Civil libertarians have always argued that even if privileged people enjoy more free speech protections in practice, erosions of free speech guarantees will always fall hardest on the most marginalized. This is now happening all over the country.

She gives two examples. One is the spate of anti-protest bills being passed by many states:

In a number of states, Republicans have responded to last year’s racial justice uprising by cracking down on demonstrators. As The Times reported in April, during 2021 legislative sessions, lawmakers in 34 states have introduced 81 anti-protest bills. An Indiana bill would bar people convicted of unlawful assembly from state employment. A Minnesota proposal would prohibit people convicted of unlawful protesting from getting student loans, unemployment benefits or housing assistance. Florida passed a law protecting drivers from civil liability if they crash their cars into people protesting in the streets.

I’m not sure about the legality of punishing people for being convicted of unlawful assembly, but it seems like a form of double jeopardy—like denying convicted felons who have served their sentences the right to vote.  The Florida drivers’ law seem simply ridiculous.

Goldberg’s second example is the widespread passing of laws prohibiting the teaching of Critical Race Theory (CRT) in public schools. (Trump started this by banning CRT training for federal employees.) While I have my beefs about some tenets of CRT, I don’t think it’s the place of any government, federal or state, to declare what cannot be taught. (Evolution is an exception, for that is an empirically supported theory ubiquitously accepted by scientists.) Curricula fall under the ambit of schools and school boards.

As Goldberg says, “the credibility of your defenders matters”. What she means is that organizations that are evenhanded in defending the First Amendment or free expression are organizations most likely to be listened to and respected. For they are following a principle, not an ideology.

Goldberg ends her piece with a nice aphorism:

. . . in the end, the A.C.L.U. has usually, in the teeth of internal conflict, stuck to its mission. Maybe every generation has to learn for itself that censorship isn’t a shortcut to justice.

My only beef here is her repeated claim that the ACLU is sticking to its mission. Yes, it is to some extent, but it’s increasingly abandoning the classical mission of defending everyone’s speech in favor of going after those said to purvey “hate speech.” See my kvetch for examples of the latter.

 

Stanford University tries to block student from graduating for publishing a satirical post, fails on First Amendment grounds

June 3, 2021 • 10:40 am

Here’s a pretty blatant violation of the First Amendment by Stanford University as reported by Slate. But to know how it’s a violation, you have to know two pieces of law. Click on the screenshot to read:

In short, a third-year student at Stanford Law School, Nicholas Wallace, decided to make fun of the conservative Federalist Society, some of whose members agreed with the January assault on the U.S. Capitol, by publishing some satire on a listserv:

The flyer promoted a fake event, “The Originalist Case for Inciting Insurrection,” ostensibly sponsored by the Stanford Federalist Society. It advertised the participation of two politicians who tried to overturn the 2020 election, Missouri Sen. Joshua Hawley and Texas Attorney General Ken Paxton. “Violent insurrection, also known as doing a coup, is a classical system of installing a government,” the flyer read, adding that insurrection “can be an effective approach to upholding the principle of limited government.”

Reader Paul found a screenshot of the flyer:

The Federalist society urged Stanford to formally investigate Wallace. When the school did, Stanford put a hold on Wallace’s degree and forbade him from graduating, asserting that Wallace may have violated the University’s code of conduct.  But Stanford, and especially its law school, should have realized two things, which apparently were caught by the estimable Foundation for Individual Rights in Education (FIRE), whose own statement is here.

On Tuesday, the Foundation for Individual Rights in Education sent a letter to Stanford urging the school to “immediately abandon its investigation and commit to procedural reforms to protect the expressive rights Stanford promises to its students.” FIRE pointed out that California’s Leonard Law requires private universities to comply with the First Amendment, and there is no real question that Wallace’s email is shielded by the First Amendment. The Supreme Court has held that satire, including offensive and hurtful expression, constitutes protected speech, and Wallace’s email is obviously satirical. “No reasonable person familiar with the email’s context would understand it to be sincere,” FIRE wrote, noting that it advertises an event that occurred 19 days earlier and is “laden with figurative language intended to impugn national political figures.”

(FIRE’s own statement is here.)

If you knew about the Leonard Law, and that satire is considered free expression, you’d realize that Stanford shouldn’t have even begun an investigation of permitted speech. Indeed, the Federalist Society itself promotes free speech on campus, so why is it doing this? Wallace suspects, correctly, I think, that this is pure retaliation.

But, as the NBC News ends every evening, “There’s good news tonight!”  Yesterday evening Slate updated the article with this:

Update, 9: 30 p.m.:  Stanford has concluded that Nicholas Wallace engaged in protected speech, dropped its investigation, and lifted the hold on his diploma. Wallace has confirmed that he will be allowed to graduate.

What’s especially ironic is that a left-wing school went after a student for making fun of a right-wing organization, all the while violating the freedom of speech that Stanford is required to adhere to.

h/t: Scott

Blatantly unconstitutional Connecticut law apparently prohibits blasphemy and other insults

May 21, 2021 • 9:30 am

Reader John sent me this AP article that appeared in The Indiana Lawyer about a Connecticut student arrested for publishing racist insults. That is of course a reprehensible act, but not an illegal one. The case shows two things. First, free speech protects the most odious speech, though this is increasingly being questioned. Further, Connecticut has in effect a blasphemy law that prohibits speech that mocks or denigrates many things, including religion. Click on the screenshot below to read.

The emphases are mine:

A 16-year-old student in a classroom at Fairfield Warde High School allegedly took a photo of a Black classmate and posted it on Snapchat on May 7 with a caption that included a racial slur and racist comments. The teen who made the post is white, according to the Black student’s mother.

Police in Fairfield, Connecticut, arrested the student on a state hate crime charge of ridicule on account of creed, religion, color, denomination, nationality or race. The misdemeanor dating back to 1917 has been called an unconstitutional infringement on free speech rights by the American Civil Liberties Union of Connecticut and some law school professors.

Police did not identify the student who was arrested because of juvenile offender laws. The student also was charged with breach of peace.

While it is common for students to be disciplined by school officials for such comments, police and civil rights advocates said it is unusual for students to be arrested for what they say on social media if it does not involve threats, incitement or a pattern of harassment.

Note all the categories for which “hate speech” is prohibited. In effect, Connecticut has a blasphemy law. That law is unconstitutional and, if it’s appealed, will be overturned.

In the meantime, the student has been expelled from school. As one might predict, the American Civil Liberties Union is taking a mixed stand on this, despite the declaration above that the Connecticut ACLU says that the law is unconstitutional.

While it is common for students to be disciplined by school officials for such comments, police and civil rights advocates said it is unusual for students to be arrested for what they say on social media if it does not involve threats, incitement or a pattern of harassment.

“Having racist ideas or sharing racist ideas is something that we actually protect,” said Emerson Sykes, a senior staff attorney with the ACLU’s national chapter. “Even if that viewpoint is offensive, even if it’s deplorable, we don’t want the government making the call about what’s OK to say and think and what is not. But we have limitations on that right.”

Sykes, however, said he believed school officials would be justified in disciplining the student because the Snapchat post interfered with the Black student’s right to access education.

This is what confuses me. The school is an organ of government. The First Amendment prohibits the government from punishing someone because of their speech, unless that falls into areas like subverting the workplace climate, defamation, false advertising, immediate and predictable incitement of violence, and so on. This case doesn’t seem to fall into any of those categories. So why does the ACLU say the law is unconstitutional but the government (the school) still has a right to punish the student.

A single Snapchat post doesn’t seem to rise to the level that would warrant government punishment. A school disciplining a student because of one private social media post does not represent “a climate of harassment.” Nor would it be if the post concerned religion or any of the other categories.

But if the harassment continued, either by others or by the bigoted individual, that would be a discipline-able offense. But we have real lawyers on this site (I just play one on television), so counselors should weigh in.

And the legal implications:

The racist posting comes as the U.S. Supreme Court is weighing whether public schools can discipline students for things they say off campus on social media. The case involves a Pennsylvania high school freshman’s swear-filled rant on Snapchat, posted while she was at a convenience store, over being kept on the junior varsity cheerleading squad for another year. She was suspended from the team for a year.

The court previously, in a landmark ruling in the Vietnam era, declared that students don’t shed their right to free speech when they come to school. It also held that schools retained the authority to restrict speech that would disrupt the school environment.

In my view, the single Snapchat rant, which wasn’t made in school, doesn’t “disrupt the school environment.” Were this the judgment, then anything that a student says on private media or in private speech could be said to disrupt the school environment. The bigoted student should certainly be talked to and made aware of the odious nature of what he said, but expulsion goes beyond that. And, if he does it again, well, that’s a different situation.

More:

Connecticut’s hate crime law on ridiculing has been filed at least 40 times since 2012 and has resulted in about 10 convictions, according to state court records. Critics say it appears to be one of only a few such state laws in the country. [JAC: and they should all be eliminated].

A bill that would have repealed the law died last year when the state Legislature ended its session early because of the coronavirus pandemic. The bill was prompted by the arrests of two University of Connecticut students in 2019 on the ridicule charge for uttering a racial slur several times while walking in the parking lot of a dorm. The students entered a probation program that is expected to result in the charges being erased.

If this were possible, and I lived in Connecticut, I would insult myself by posting that “Jerry Coyne is a big-nosed, money-grubbing kike” and see what happens. Or I’d get some other brave soul to do it. Hate speech is not illegal speech, as odious as it is, and in this case it seems pretty odious. But the First Amendment has decreed that such speech is, in general, protected. If you disagree, consider that, according to the Connecticut law, it’s also illegal to ridicule someone because of their religion or creed. That would make Christopher Hitchens a multiple felon! Remember his obituary of Jerry Falwell? Or read God is Not Great. 

FIRE’s (bad) speech code of the month: The University of Wisconsin at Oshkosh

May 17, 2021 • 9:15 am

Every month the, Foundation for Individual Rights in Education (FIRE), an excellent organization, names one college’s speech code as standing out for being especially egregious. And this month it’s particularly bad, for the speech code singled out is that of the University of Wisconsin at Oshkosh (UWO), a public university. State universities, of course, must abide by the First Amendment because they’re considered organs of the government.

As always, when a college simultaneously tries to promote “mutual respect” and “free speech”, it gets into trouble. Here’s how the trouble emerges at the UWO website (click on screenshot)

Here’s UWO’s avowal of nearly unlimited free speech (below) in the section on “shared principles”

The widest possible range of free inquiry and expression.

          1. The University community provides opportunities for its members to listen and be heard.
          2. Members endeavor to create an environment open and accessible to information, expression and inquiry.
          3. Members express their concerns, opinions or beliefs both publicly and privately without fear of recourse, intimidation or threat.
          4. Members respect the rights of others when they express their concerns, opinions or beliefs.
          5. Students are free to question the data, views or activities in a course on a moral, religious or other basis and to reserve judgment about matters of opinion, yet they remain responsible for meeting the learning objectives of any course in which they are enrolled

Contrast this with another “shared principle”:

An environment that is free of harassment and free of insulting and demeaning comments and epithets based on race, ethnicity, gender, religion, sexual orientation, age, disability, military status, socioeconomic status, family status or political views; and consistently enforces federal, state and university protections against discriminatory treatment yet is free from any official speech codes.

          1. Consistent with established rules and policies, all University community members encourage a sense of duty to address harassing, discriminating or demeaning comments or behaviors.
          2. Upon observing discriminatory behaviors or hearing offensive comments, every reasonable effort is made to protect the victim(s) and witness(es) from further harassment.
          3. All members act in ways that allow for a diversity of rights, opinions and cultural characteristics both in and out of the classroom.
          4. No University member misrepresents actual or suspected violations of this right for their own personal gain, advancement or other ulterior motive.
          5. Every University member is informed of applicable University policies and procedures, pursues action against violators, and informs and protects victims and witnesses.

Now the issue of personal harassment and discrimination has already been settled by First Amendment law: you cannot persistently harass an individual in the workplace, nor create a threatening or unpleasant atmosphere for them.But you don’t violate the law by “insulting” someone, and that stricture is therefore unconstitutional.

And then, after averring that UWO has no “official speech code”, it proceeds to set out one, prohibiting “insulting and demeaning comments and epithets based on race, ethnicity, gender, religion, sexual orientation, age, disability.  . . and so on. Even “political views” are protected. Does that mean you can’t say that “Your Republican views suck big time”?

Further, university members are themselves enlisted in an effort to enforce the (nonexistent) speech code, and to “allow for a diversity of rights, opinions, and cultural characteristics”. It’s not even clear what that means.

But what this does mean is that UWO’s speech code palpably violates the Constitution, and I suspect it will have to be modified. Here’s a brief video FIRE made about the issues at play. What she says is absolutely accurate according to the law.

At the FIRE rating page, UWO gets an overall free speech rating of “red”, which is the worst .  Here’s what that means:

A “red light” institution has at least one policy that both clearly and substantially restricts freedom of speech. A “clear” restriction is one that unambiguously infringes on what is or should be protected expression. In other words, the threat to free speech at a red light institution is obvious on the face of the policy and does not depend on how the policy is applied.

And yet UWO says it’s adopted “the Chicago Statement of Free Speech.” Well, no, it hasn’t—not by a long shot.

If you click on the link below, you can quickly send your own message to UWO’s Chancellor asking the school to do the right thing. (To read more about their violation, go here.) You don’t even have to say anything, as there’s a built-in message to Chancellor, Andrew J. Leavitt:

I’m writing to you to discuss University of Wisconsin – Oshkosh’s speech codes. While a commitment to free speech is almost universally embraced in concept, many schools have official policies that restrict speech in practice. Although these policies may be written with the best of intentions, such restrictions violate students’ free speech rights and prevent higher education from achieving its full potential.

I’ve sent in mine, and you can send in yours in less than a minute. Strike a blow for freedom of speech.