First Amendment Coronado-ism

We are right now living through one of the most significant rollbacks in First Amendment law since the 1950s. To name a few examples:

• University employees are being fired for speech deemed critical of Charlie Kirk, in circumstances where it is almost impossible to argue that the terminations satisfy the Pickering standard for speech on matters of public concern.
• Legal immigrants are facing deportation for speech that opposes the current foreign policy orthodoxy of the American government; 
• The Attorney General is suggesting, in defiance of decades of well-settled law, that there is a "hate speech" exception to the First Amendment.
• The President is extorting settlements from critical media outlets via utterly frivolous defamation lawsuits, even as more and more conservative judges seek to roll back the landmark defamation decision in New York Times v. Sullivan in order to make such extortions even easier to launch.

There is irony to this. Until very recently, the constitutional law zeitgeist had been to raise alarms over "First Amendment Lochner-ism" -- the use of "First Amendment" claims as a cudgel to block governmental regulations (think 303 Creative or NIFLA v. Becerra). In this telling, our problem is a First Amendment that has spiraled out of control, a hypertrophic commitment to "free speech" that swallows up anything and everything (since what law doesn't, at some level, regulate "expression"?). In a world of First Amendment Lochner-ism, "rollback" was the furthest thing from anyone's minds.

However troublesome or misguided the First Amendment Lochner cases might be, one might think that their saving grace is that their expansiveness offers a bulwark against the sort of First Amendment regression we're seeing today. Yet few -- and I include myself in this -- seem to actually have confidence that these First Amendment principles will in fact serve as a meaningful shield now in the face of these new conservative assaults. It turns out that we don't have a hyperexpansive First Amendment, we have a First Amendment that implacably guards against enforcement of liberal policy objectives while pliable to the point of contortionism in order to accommodate conservative bugaboos.

This, too, reflects the Lochner era. Lochner itself refers to the Supreme Court's finding of a "liberty of contract" implicit in the Fourteenth Amendment's due process clause, which significantly curtailed states' authority to pass economic regulation. But the Lochner era also encompasses a series of rulings that similarly hamstrung federal authority to pass economic regulation -- limits ironically justified by reference to state's rights and respect for federalism. So, for example, in United States v. E.C. Knight, the Supreme Court struck down application of the Sherman Antitrust Act to a sugar refining monopoly, concluding that manufacturing was not "commerce" and so the law impinged on an arena reserved to the states.

Already the heads-I-win-tails-you-lose logic is apparent here: the feds can't pass economic regulations because of states rights, and the states can't pass economic regulations because it violates federal constitutional limits. But the apex of this logic came in a little-known Lochner era case, Coronado Coal Co, v. United Mine Workers, where the Supreme Court considered applying the Sherman Antitrust Act's prohibition on restraints on trade against union activity targeting a coal mine. Again, E.C. Knight had already concluded that the Sherman Act was unconstitutional as applied to employers (and subsequent cases had explicitly held that mining was akin to manufacturing in not being "commerce"). As bitter a pill as that might have been to swallow for the emergent labor movement, at the very least one might think that this logic would equally prevent leveraging the Sherman Act against collective action by employees (via unions). But no -- in Coronado, the Court concluded that the Sherman Antitrust Act, though not constitutionally enforceable against mining companies or manufacturing concerns, could be enforced against labor unions. The hyperexpansive Lochner rules suddenly were quite pliable once a union tried to be their beneficiary.

So I will suggest that today we do not have a regime of First Amendment Lochner-ism. We actually have First Amendment Coronado-ism. If Lochner stands for judges blocking democratic actors via hyperexpansive interpretations of constitutional law; Coronado highlights judges dropping those barriers the instant they pose an obstacle to their own faction's policy objectives. Lochner is bad law; Coronado is simple lawlessness.

And on a professional level, it has to be said that it is nearly impossible to teach Constitutional Law in a such an environment, at least not without collapsing into complete cynicism. I can defend to my students the position that the First Amendment protects even hateful speech; I can't defend the position that the First Amendment protects hateful speech in all circumstances except quoting Charlie Kirk's own words verbatim. I can defend to my students different standards of proof for defamation cases, I can't defend a rule that says it's defamation for a newspaper to criticize a presidential candidate. These developments breed contempt in my students for the entire notion of "free speech" as it's currently operationalized, and frankly I can't blame them for it -- they see it as a sucker's bet, a check they'll never be able to cash. And as someone who does believe in many of the classic free speech shibboleths it breaks my heart to see it.

A few days ago, Justice Barrett defended herself from Justice Jackson's allegation that the Court's only governing principle was "this Administration always wins" by arguing that the Court's rulings are not about this president but all presidents, and "so the decisions that we make about executive power today are the same ones that will still be precedent three or four presidents from now." Even if they were for "all presidents", these decisions would be catastrophic. But there is ample reason to be skeptical that these decisions do in fact augur a general theory of judicial deference to the executive branch, at least when Democrats occupy the office (quoth Scott Lemieux: "don't google 'Biden v. Nebraska'!").

When Justice Barrett pretends that she's enforcing a principle accessible to all, nobody believes her, and nobody should believe her. And just as I predicted the hyperexpansive religious liberty protections would suddenly find their limits when liberal Jews try to access them, so too do I strongly suspect we're going to see a significant rollback of supposed First Amendment Lochner-ism now that it stands in the way of letting conservatives crush speech they do not like.

On Hostility to Religious Views (for Non-Religious Reasons)

The other day, the Second Circuit in Mid Vermont Christian School v. Saunders ruled in favor of a Christian private school in Vermont which had been suspended from state extracurricular competitions after it refuses to allow its girls basketball team to play against a team with a transgender athlete. The school averred that playing such a game would force it to affirm that transgender girls are girls; the relevant Vermont agency decided this was discriminatory and expelled the school. The court, in turn, concluded that Vermont's actions evinced hostility to the school's religious views and thereby violated the First Amendment.

There are some complex factual issues in this case. But there are aspects of the court's opinion that I think have to be wrong, in terms of how it treats the question of "hostility toward the school’s religious beliefs." To put the matter bluntly: people (and the government) are allowed to have hostility towards a school's (or anybody's) "religious beliefs", and such hostility cannot itself be a First Amendment violation. What they cannot do is have hostility to these beliefs because they're religious, or hostility specifically tied to them being held by a particular religious group. But it cannot be the case that hostility to a given belief, where that hostility has nothing to do with religion and extends to any holder of the belief (religious or not), becomes unconstitutional religious hostility just because this particular holder of the belief believes it for religious reasons.

The court recognized that a "neutral" law or policy of "general applicability" does not become unconstitutional because it happens to impinge upon (even a sincere) religious belief. But it said, following Masterpiece Cakeshop, that a neutral law can still fail if it is not applied "in a manner neutral toward and tolerant of . . . religious beliefs." Fine, as far as it goes. But the way the court identifies what it means to be "intolerant" towards religious beliefs at times verges on suggesting that anytime one defends (as a general, neutral principle) a position that is (in the particular case at hand) antagonistic to a proffered religious belief, one is displaying unconstitutional "hostility" -- and if that's true, then it is functionally impossible for there to be a "neutral" law in the first place.

Let's take some examples. Suppose someone asks for a Kosher meal at a school event to substitute for the planned ham and cheese sandwich. The chef is derisive: "I can understand ethical objections to eating meat or other foods, but I'm not going to cook up a new meal just because your fantasy Sky God says so." That's hostility to religious belief -- the same (basic) belief is viewed disdainfully because it emanates from religion.

Compare a situation where someone explains "at our college, we prohibit interracial dating." You respond and say that is racist and discriminatory. They then say, "it's our religious belief." You respond "I don't care -- it's still racist and discriminatory." At one level, you are of course expressing "hostility toward the school's religious belief." At another level, your hostility has nothing to do with it being a religious belief; it's a hostility you are entirely entitled to hold. The First Amendment simply cannot mean that this sort of "hostility" is constitutionally problematic. If it were, then it would be impossible to defend a neutral and generally applicable rule against racial discrimination in any circumstance where someone wanted to racially discriminate for religious reasons, since the very act of explaining why the rule against racial discrimination is important would be reclassified as anti-religious antagonism.

So in the present case, the critical question ultimately should be whether the state's antagonism towards the anti-trans beliefs of Mid Vermont are due to those beliefs being religious, or whether the state is equally "intolerant" of those beliefs no matter who holds them, with the fact that Mid Vermont happened to be a religious believer being wholly incidental and irrelevant. As alluded to, there is some evidence in this case that points in the former direction (I think it's weak, but Masterpiece Cakeshop made a mountain out of a molehill of weak evidence of religious hostility that other minorities wish they could access). But my main problem with this opinion is that it strongly suggests that the First Amendment problem would be the same even if we were unambiguously in the latter camp.

Consider one of the critical excerpts, from how the Vermont agency explained why it did not find compelling Mid Vermont's complaint that playing with transgender athletes would "endorse" beliefs about gender it wished to reject:

Participating in an athletic contest does not signify a common belief with the opponent. Brigham Young University athletes do not compromise their Mormon faith—or endorse Catholicism—when they play Notre Dame. The act of playing together on a basketball court does not imply any approval of the values or beliefs of the opponent.

The court analyzed that passage thusly:

That statement did not just question Mid Vermont’s religious sincerity. It also attacked the validity of Mid Vermont’s objection. But “[a]n individual claiming violation of free exercise rights need only demonstrate that the beliefs professed are sincerely held and in the individual’s own scheme of things, religious.” That is because “courts should not inquire into the centrality of a litigant’s religious beliefs.” .... Put simply, the VPA may not impose discipline based on its view that Mid Vermont's religious objection was "wrong."

This is, I'm sorry to say, deeply confused analysis. The sincerity/validity divide goes to whether or not Mid Vermont's claim is actually a religious one, and it's absolutely correct that the state has no business telling Mid Vermont that its claim is a "wrong" understanding of Christianity. But that's not what the state was doing. The state isn't saying that Mid Vermont's logic is wrong as a religious proposition, it's saying it's wrong as a general proposition. In that circumstance, of course the state is entitled to "impose discipline" because it thinks the objection was wrong. Vermont has a policy, Mid Vermont thinks that policy is wrong, Vermont thinks Mid Vermont's objection doesn't hold water and so continues to apply the policy. That's completely anodyne, and it doesn't change because Mid Vermont's objection stems from its sincere religious beliefs. Under the Court's logic, any time any actor raises any sincere religious objection to any policy, they must win automatically because the act of rejecting the objection would suggest the religious objection was "wrong". Again -- I can't stress this enough -- religious objections can be wrong, so long as the reasons the adjudicating body thinks they're wrong are not themselves based on religion or religious hostility.

One last note: there may be circumstances where a policy is genuinely neutral and generally applicable, and not motivated or applied with religious hostility, but should still contain exceptions for religious objectors. I won't comment on whether this case is one of them. I'll only say that such cases are not, for the most part, religious hostility cases, and the problem in those cases is not one of a lack of neutrality. The outcome of Mid Vermont can, I think, be debated, but the logic of it I think is severely misguided (and, it must be said, I think is primarily traceable to courts giving super-protected status to anti-LGBTQ ideologies in a manner they've very consciously rejected in the racial discrimination context).

Georgetown Stands Up in the Face of the Trump Admin's Attempted Academic Boycott

A little while ago, the Interim United States Attorney for the District of Columbia, Ed Martin -- who has rapidly begun distinguishing himself as one of Trump's most odious foot soldiers -- sent a letter to Georgetown Law School demanding that they eliminate all "DEI" from their curriculum and threatening to refuse to hire Georgetown graduates until they do so (if "a little while ago" sounds vague, that's because it took Martin two attempts to send the letter -- he misaddressed it the first time).

Martin's threats are reminiscent of the announced boycott of Columbia grads by Judge James Ho and some of his fellow far-right travelers, and the Dean of Georgetown responded exactly how I wish the Dean of Columbia would have responded: by refusing to give in and also by naming exactly what is happening here: a threat of official government penalty against private institutions for refusing to kowtow to official ideological orthodoxy. This goes way beyond the "jawboning" or informal requests that caused conservatives to shriek their heads off during the Biden administration; we have in these cases an explicit promise of legal retaliation on private actors who don't toe the government's line. It is hard to imagine a clearer instance of de jure censorship than this, and Georgetown Dean Bill Treanor doesn't mince words:

As a Catholic and Jesuit institution, Georgetown University was founded on the principle that serious and sustained discourse among people of different faiths, cultures, and beliefs promotes intellectual, ethical, and spiritual understanding. For us at Georgetown, this principle is a moral and educational imperative. It is a principle that defines our mission as a Catholic and Jesuit institution. Georgetown University also prohibits discrimination and harassment in its programs and activities and takes seriously its obligations to comply with all federal and local laws.

Your letter challenges Georgetown’s ability to define our mission as an educational institution. It inquires about Georgetown Law’s curriculum and classroom teaching, asks whether diversity, equity, and inclusion is part of the curriculum, and asserts that your office will not hire individuals from schools where you find the curriculum “unacceptable.” The First Amendment, however, guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it. The Supreme Court has continually affirmed that among the freedoms central to a university’s First Amendment rights are its abilities to determine, on academic grounds, who may teach, what to teach, and how to teach it.

This is a bedrock principle of constitutional law – recognized not only by the courts, but by the administration in which you serve. The Department of Education confirmed last week that it cannot restrict First Amendment rights and that it is statutorily prohibited from “exercising control over the content of school curricula.” 

Your letter informs me that your office will deny our students and graduates government employment opportunities until you, as Interim United States Attorney for the District of Columbia, approve of our curriculum. Given the First Amendment’s protection of a university’s freedom to determine its own curriculum and how to deliver it, the constitutional violation behind this threat is clear, as is the attack on the University’s mission as a Jesuit and Catholic institution.

Georgetown Law has one of the preeminent faculties in the country, fostering groundbreaking scholarship, educating students in a wide variety of perspectives, and thriving on the robust exchange of ideas. Georgetown Law faculty have educated world leaders, members of Congress, and Justice Department officials, from diverse backgrounds and perspectives. We pride ourselves on providing an excellent graduate and professional education, built upon the Catholic and Jesuit tradition. Georgetown-educated attorneys have, for decades, served this country capably and selflessly in offices such as yours, and we have confidence that tradition will continue. We look forward to your confirming that any Georgetown-affiliated candidates for employment with your office will receive full and fair consideration.

Very well said. The appeal to religious liberty is also appreciated in this context, though I suspect the Jesuits will fare as well as liberal Jews will under the new free exercise jurisprudence.

It should be clear by now that the Trump administration and its right-wing fellow travelers are launching a full-fledged BDS campaign against American universities that don't bow to its ideological agenda. The proposed academic boycott against Georgetown is one example, the myriad donor threats to divest their funding from colleges that don't crackdown on disfavored programs or speech is another, the proposal to sanction Columbia by axing over $50 million in contracts is yet another. These endeavors are an anathema to academic freedom and First Amendment values, and must be opposed by all principled defenders of the academy.*

* What a shame that the AAUP recently and abruptly shifted course and decided, after decades of strong opposition, that actually academic boycotts are a-okay. It's almost like it was eminently predictable that abandoning that principle might backfire very quickly given how the right has been racing for excuses to punish universities who they've deemed "complicit" in ideological projects and activities they oppose!

Did You Hear? CUNY Branches Cancel Hillel Yom Ha'atzmaut Events

Two branches of the City University of New York system -- Kingsborough and Baruch -- have apparently canceled Israeli Independence Day events sponsored by local Hillel chapters, citing security risks. In the case of Baruch, administrators reportedly offered alternative venues to the Hillel chapter (which were declined), at Kingsborough, by contrast, the administration reportedly refused to make any arrangements to enable the event to go forward.

CUNY is a public university, so this raises the usual First Amendment problems. While every case is different, there are some clear overlaps between this case (in particular, the citation to "security" concerns) and the cancellation of pro-Palestinian speakers and events justified on similar logic (for example, at USC). This, of course, represents a golden opportunity for people to lob dueling hypocrisy charges at one another ("You were aghast when this happened at USC, but I don't hear you complaining now!" "Yeah, well you were apologizing for this when it happened at USC, but you're aghast now!"). I'm sure that will be a grand old time for everyone.

I do want to make one note on the relative coverage and penetration of this story compared to other free speech debacles related to Israel and Palestine on campus. I haven't seen this story covered outside of the Jewish press. That doesn't mean it won't be later, and I'm not generally a fan of the "...but you'll never see this reported in the mainstream media!" genre of commentary. In part, that's because I think there's massive selection bias in what we claim is over- or under-covered; in part, it's because I think virtually everyone massively overestimates how many stories break through to mass public consciousness at all. In reality, I think different stories gain traction in different media domains, such that a story which might tear through one sort of social or ideological circle might make barely a ripple in another.

That said, in many of the circles I reside in, there is essentially no knowledge that there are any cases of academic censorship of "pro-Israel" voices on campus at all. To be clear, I'm not saying that there are not numerous cases of academic freedom violations targeting pro-Palestinian speakers -- there are a slew of them. But the notion that this is a Palestine exception to academic freedom, rather than something which unfortunately happens in a host of other cases and contexts (including, in the right-slash-wrong environments, to pro-Israel speakers), speaks less to the reality of academic freedom and more to an epistemology of which cases get attention and which don't. There are many academics for whom the Steven Salaitas are known, while the Melissa Landas are not. In other domains and registers, there are different gaps.

Ultimately, it's a variant on "they would say it about Jews, they'd say it about other groups too." The claims of injustice are not wrong, but the claims of uniqueness very often are. How many times have we heard variations on "can you imagine if there was a mob of people harassing and making racist remarks towards any other minority group -- how would universities respond to that?" (As we saw at UCLA, the answer apparently is "they'd sit back and let said mob kick the crap out of their targets"). And at the same time, we've also heard plenty of iterations of "if a university dared cancel a pro-Israel event, it'd be on the front-page of every newspaper for the next month" (so far, no headlines).

So I'll all say is that, if you're of the bent that there's no meaningful suppression of pro-Israel speech in campus environments, and your informational ecosystem (other than me, I guess) didn't alert you to this cancellation at CUNY, you should consider how the former belief might be correlated with the latter lacuna. Other people might have different gaps, and they should contemplate what generates them as well.

Assorted Thoughts on the Chemerinsky Incident

If you're in my neck of the internet woods, you've no doubt heard about the incident in Berkeley where a small group of students conducted a pro-Palestinian protest in the backyard of the Dean Erwin Chemerinsky's house. 

To make a long story short, Dean Chemerinsky had invited the 3L class over to his home to celebrate their impending graduation (he normally invites the 1L class at the start of their law school journey, but since this crop of graduating students spent their 1L year mid-pandemic and so wasn't able to come, he invited them before graduation instead). The local SJP chapter issued a demand that Chemerinsky cancel the dinner, distributing a poster showing a caricatured image of the Dean with a bloody knife and fork over the message "No dinner with Zionist Chem while Gaza starves." Chemerinsky refused to cancel the dinner; so some of the students RSVP'd and, once they arrived at his home and were welcomed into his backyard, stood up with a microphone and began delivering a speech about Gaza. Chemerinsky and his wife (Prof. Catherine Fisk) asked that they stop and leave, as guests in their home; the student with the microphone initially declined, asserting she had a "First Amendment right" to engage in her conduct. At one point, Prof. Fisk placed her hand over the shoulder of the student to try and take her microphone away (the student has characterized this as an assault -- even going so far to imply it was a sexual assault -- and has indicated she wants to file legal action against the law school). Eventually the students left, the Dean released a statement, and the internet was set ablaze.

From my vantage point, the students' behavior was abhorrent and very possibly a violation of the university's code of conduct (and the notion that they are the victims here is farcical). Beyond that bottom line, my emotional reaction to this story has been stronger than I might have anticipated, and it's worth talking through why. I do have a Berkeley connection, and though I've never met Chemerinsky personally, his reputation for both kindness and brilliance is unrivaled in the academy. I also have former students currently at Berkeley Law, and while I cannot imagine they participated in this fiasco, I would be disappointed and crushed if I found out otherwise.

On a more personal level, I suspect my views on Israel are quite similar to Chemerinsky (two-stater, sharply anti-Bibi but pro-Israel existing), and I also have been known to host students at my house for dinner (typically my small-group seminar students at the end of the semester). I view the dinners as a nice way to cultivate an environment of care and welcoming in the often-impersonal environs of the law school, and as a way of paying forward the sort of collegiate community I was lucky enough to enjoy as an undergraduate to another generation of students. If that gesture of welcoming students into my home were to be exploited in a manner akin to what the students did here, I'd be devastated. Protests like this are exploitations of trust, they rely on and take advantage of the host's unguarded openness and welcoming. We're not screening people based on ideology, we're not making people fill out political questionnaires, we just -- welcome students into our homes, without reservation. To take advantage of that, to extract costs on that openness, invariably leads to more closedness, more guardedness, and more cloisteredness -- a loss for everyone, and one that can and should be mourned (I saw someone argue on social media that if the Dean didn't want to be protested in his own backyard, he shouldn't have invited these students in the first place and instead tried to screen out whichever students he thought might be likely to protest him. That to me bespeaks an almost impossibly short-sighted and narrow attitude that is utterly toxic to the sort of university community anybody should want to cultivate).

Meanwhile, there's the question of "why was Chemerinsky picked for this protest?" That question has two related dimensions: why Chemerinsky, and why this protest (since virtually everyone seems to think that something as extreme as protesting in your host's own household should be reserved only for the most malign and irredeemable actors). Chemerinsky very much views himself as being targeted as a Jew, citing the bloody fork caricature and its resonance with the classically antisemitic blood libel. The immediate demand of the protesters is for Berkeley to divest from Israel; but the law school dean doesn't make investment/divestment decisions, so they're limply left arguing that Chemerinsky doesn't personally support divestment -- true, but a feature he shares with thousands of other members of the Berkeley community who also don't make investment decisions on behalf of the university. He also has beliefs on Israel that, while anathemas to the SJP crowd insofar as he rejects Israel being wiped off the map, are by no means some sort of Israeli maximalist/anti-Palestinian eliminationism and are entirely mainstream amongst both liberals and Jews (and are again widely present in the Berkeley community and beyond). Again, even if one opposes that stance, there is (or should be) a gap between "what we oppose" and "what we deem protest-worthy", and even among those who are protest-worthy, there is (or should be) differentiation as to when and where a protest is justified.

The most specific thing I've seen people point to in justification of "why Chemerinsky" is an editorial he wrote this past October -- just a few weeks after 10/7 -- recounting the antisemitism he's experienced as a Jew at Berkeley in the wake of the Hamas attack. The usual suspects make the usual claims in response: that Chemerinsky's claims about antisemitism are wrong, unfair, smears, conflations of anti-Zionism and antisemitism, and those sins justify what might otherwise seem an obviously abusive overreach of a protest. On that point, one thing I haven't seen commented on much is the deep and dangerous chilling effect this sort of position has (and is intended to have) on Jewish faculty speaking on the subject of antisemitism. I've written on this in the context of academic freedom, but there is a very significant contingent in American and global society who deeply believe that if you are a Jew and you speak on antisemitism in a way that they don't approve of, it is open season -- you have removed yourself from any and all protections (certainly norm-based, possibly law-based) one might enjoy in a liberal, tolerant society. Needless to say, as a Jew whose academic work centers in large part on antisemitism, this is a tremendously dangerous trend for me personally, and so of course I notice when it rears its head in such an explicit fashion.

Those are the more personal reflections I have. But there are a few more scattered issues I've seen that I might as well address here as well.

• One area where I think the internet breaks our brains is how it interferes with our sense of proportion -- literally, in terms of "how many people are doing/believe in this thing we're upset out, compared to how many don't." The protesters appeared to number about ten students. That's not negligible, but it's also a very small percentage of Berkeley Law's total enrollment. Online, the consensus view from what I'm seeing is pretty strongly that the protesters were out of line here -- and while my internet circles are of course not perfectly representative, my read has been that one has to go pretty far out towards the fringes and randos before one starts seeing folks defending what the students did. But the thing is, even if the breakdown is, say, 80/20 against the protesters, if I'm reading one hundred posts about this event, that means I'm reading twenty people announce they support it. That feels like a lot, even though objectively an 80/20 split is actually extremely lop-sided!

• The students' claim that her conduct was First Amendment protected is ludicrous save for the sheer moxie of lecturing Erwin Chemerinsky on First Amendment doctrine in his own house. One issue some people have flagged is this dinner being an "official" Berkeley Law event, and asking whether that changes thing insofar as Berkeley Law is of course bound by the First Amendment. But there's less here than meets the eye, because even if we view this as a "government" event, not all government events or property are public forums. Even on the Berkeley campus, areas like the administrative back offices or the classroom when classes are in session are not public forums (hence why a professor could remove a heckler from her classroom without it being a First Amendment violation even where that same speech would be protected from sanction on the campus quad). A professor's personal domicile is, if anything, a clearer case -- if public forum analysis applies at all, it is clearly a non-public forum and so the student's protest is not First Amendment protected once she is asked to leave.

• Many people have criticized the protest against Chemerinsky in terms of it being "counterproductive". Who is this supposed to persuade? Don't they realize the protesters are the ones who look bad here? Antisemitism discredits the cause! I understand where this sentiment comes from, but I think it is at least partially misguided. First of all, whether it's "counterproductive" depends on what it's trying to produce. If the immediate goal is sympathy from either Chemerinsky himself or even the public at large, maybe it's ineffective. But if the goal is just "make an enemy miserable", then it may be perfectly effective. Second, there are many theories of protest whose model of change does not depend on the protest immediately swaying popular opinion in their favor. Without overstating comparisons to disanalogous contemporary events, we should all at this point understand how a shocking breach of basic social rules and norms can, even where it's immediately the subject of revulsion, generate a series of events that may ultimately redound to the violator's benefit. Ultimately, while it may be that this protest is counterproductive (though again, that depends on what one is trying to produce), I think the immediate declaration of counterproductivity, insofar as it is paired with a more moralistic condemnation of this sort of protest, is a means of eliding a more worrisome possibility: what if morally-contemptible norms violations are in fact quite productive means for certain social groups to achieve their goals? I've said it before and I'll say it again: antisemitism is a productive ideology. It builds things, engenders alliances, and motivates action. And so opposition to antisemitism, or other norm-violative behaviors, must be willing to oppose such actions even when they're productive -- because they often are.

• Joe Patrice at Above the Law makes clear that he thinks this sort of protest is unjustified, but mentions in passing the "authoritarian" free speech position coming out of the right whereby it is a "free speech violation" if, say, a social media platform blocks or bans you. In many ways, the incident at Chemerinsky's house is the meatspace version of this: Chemerinsky is literally hosting, and a speaker is claiming a First Amendment entitlement to retain access to Chemerinsky's space in defiance of the wishes of the host. It's a bad First Amendment argument as applied to Twitter, and it's a worse First Amendment argument as applied to someone's backyard.

• I'm certainly not the first person to say this, but part of civil disobedience is accepting consequences. While it's true that a good protest will often be disruptive and a breach of the normal rules of operation, it's also the case that the reason a protest is disruptive and a breach is that it violates normal, enforceable rules. To engage in that sort of breach, but then to act scandalized that the relevant authorities treat it as a breach, is to have one's cake and eat it too. And so I get someone feeling strong enough about a particular issue to say "it's worth it to me to violate this rule and face these consequences." I do not get -- or at least don't respect -- someone simultaneously expecting plaudits for being so bold as to defy the rules and demanding exemption from having those rules enforced.

• Finally, I'm increasingly tired of the way these sorts of student protesters weaponize their status to act as if it's unreasonable to hold them to basic norms of conduct, or some sort of authoritarian imposition to subject them to consequences that can be wholly anticipated. It's true that, as we age, it's easy for professors to forget that young students are young and are still learning, and are going to make some foolish choices and say some foolish things because they haven't learned better yet. But it's also the case that as we age and our students seem ever-younger relative to us, we can also forget that the students are in fact adults and are perfectly capable of understanding how to behave as well as eminently-predictable consequences of their actions. I am not someone who thinks student discipline has to be overly punitive, and I respect that student conduct officials often find themselves in difficult spots. But unlike other recent Berkeley events, here we know who the perpetrators are; there does not seem to be much reason for why a conduct investigation shouldn't be opened here other than the administration either not wanting to or being scared to. Formal disciplinary responses are not always the first resort or the best resort, but they are a valid resort, particularly in cases where student behavior seems to be at least partially encouraged by a culture where the very idea of facing consequences for breaking rules is viewed as a form of oppression. There are people who basically immediately say student conduct violation related to speech warrants expulsion and anything short of expulsion tacitly assents to the violation. I don't agree with that, but I also don't agree with the view that every student conduct violation should be assessed solely as a "learning experience". Law and graduate students, in particular, are not smol, they are adults, and adults on the precipice of exercising significant political and social authority -- and part of entering into that latter role is accepting their status as responsible actors who can be held responsible.

Art Maven Roundup

All of the sudden, I've been on an art kick. The below image is a silkscreen I recently purchased from DC-based artist Halim Flowers. Flowers was convicted of felony murder as a juvenile and sentenced to two life terms. He was released after serving 22 years following statutory reforms aimed a juvenile offenders who had received life sentences, and now is showing in galleries around the world.

Pictured: "Audacity to Love (IP) (Blue)" by Halim Flowers. The colors are meant to be reminiscent of the Israeli and Palestinian flags (blue and white, and red, white, and green).

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Trump continues to show his contempt for American Jews, saying any Jew who doesn't support him "hates their religion" (and Israel).

An in-depth story about a White supremacist who was elected to city council in Enid, Oklahoma, and the recall campaign to try and remove him.

Given the well-covered softness in Biden's support in the Muslim community, it seems suicidal to me for Democrats to give into the repulsive Islamophobic attacks holding up the confirmation of Third Circuit Court of Appeals nominee Adeel Mangi (the story indicates that Biden has remained rock-solid in backing his confirmation, but there may be some misgivings in the Senate Democratic caucus).

Writing on the sudden "heterodox" support for revisionist accounts justifying George Floyd's murder, Radley Balko flags what has been obvious for a long time: as much as this cadre likes to bleat about respecting truth, free-thinking, and rationality, it is as if not more beholden to ideologically-convenient narratives at the expense of reality. Pretty much everyone on the internet has been sharing this with their own story of the alt-center blowing past truth in order to push conservative grievance politics; mine was watching them stand in unblinking support of a hit piece on California's Model Ethnic Studies Curriculum even after it was revealed the author completely fabricated the inclusion of a seemingly-damning antisemitic quote.

Interesting retrospective on the Israeli Black Panthers in JTA.

The Supreme Court's frosty reception to the contention that government officials privately lobbying social media companies to take down misinformation is a First Amendment violation is the latest suggestion that the Court is finally losing patience with the regular drumbeat of insane legal theories emanating out of hyper-conservative Fifth Circuit.

DeSantis, ADL Call for SJP Ban

A few days ago, Gov. DeSantis ordered Florida universities to "deactivate" campus chapters of Students for Justice in Palestine, on the grounds that SJP provides "material support" to an international terrorist organization (i.e., Hamas). Yesterday, the ADL (along with the Brandeis Center) sent a letter to nearly 200 university presidents effectively urging them to do the same: demanding that the universities investigate their SJP chapters for "potential violations of the prohibition against materially supporting a foreign terrorist organization."

That the ADL has joined this campaign is, at this point, probably overdetermined, given the confluence of:

1. The ADL's general rightward turn on matters relating to Israel and Zionism over the past year;
2. The genuine decay in the campus environment for young American Jews, for which SJP bears more than a share of the responsibility; and
3. The long-standing intense (mutual) loathing between the ADL and SJP, where either one would sell out the constitutional rights of the other for a quarter and give back two dimes in change.

Nonetheless, this call is an obvious flouting of the First Amendment (for public universities) and academic freedom (for privates). As Howard Wasserman puts it, I resent being "[forced] to side with people who want to see me and my family dead," but thanks to DeSantis and the ADL, I'm now in that position.

To be clear: the "material support for terrorism" claim is -- with respect to the evidence presented -- absolutely spurious (FIRE's letter to Florida universities explains why). While the ADL claims to "recognize and support students’ First Amendment rights to freedom of speech, even odious speech," it flags nothing in its letter that goes beyond "odious speech" in support of Hamas. The sole example of alleged "material support" provided by SJP is rhetoric in its toolkit stating:

“We must act as part of this movement. All of our efforts continue the work and resistance of the Palestinians on the ground.” The toolkit refers to the Hamas-led terrorist attack in Israel as “the resistance.” 

This in no way supports an inference of "material support" under the statute. "Material support" has to include more than just advocacy in support of the terrorist organization or rhetorical claims of alignment -- it must entail things like transfer of funds or the provision of a tangible, material benefit. As the Supreme Court made clear in Humanitarian Law Project v. Holder, as expansive as the "material support" statute may be, the prohibition on providing material support to terrorism nonetheless cannot encompass "a regulation of independent speech ... even if the Government were to show that such speech benefits foreign terrorist organizations." "Material" requires actual materials, not just speech.

Just a few weeks ago, there was a virtual consensus that campus SJP actors were a disreputable fringe that nobody should take seriously (this was how the left justified their complaints that we were paying too much attention to "letters sent from Harvard" -- they conceded the letters were gross, but argued that they represented a piddling and insignificant political faction toiling in deserved marginality. Intentional or not, I appreciated the concession!). Now, thanks to DeSantis and his buddies, the SJP can adopt the far more comfortable mantle of First Amendment martyrs. Of course, if there is evidence of actual "material support" -- SJP funneling funds to Hamas, for example, the ADL should provide it (and I'd add, the proper investigators of such claims are law enforcement officials, not university bureaucrats). But as it is presented here, the effort to ban SJP is nothing more than an effort to ban a noxious organization on the basis of its noxious viewpoint, and one cannot support that and claim to be comporting with either the First Amendment (for public universities) or academic freedom.

A Statutory "Green Book" After 303 Creative

In 303 Creative, the Supreme Court held that at least in some circumstances a business's free speech interest in avoiding producing expression it disagrees with constitutionally must trump the application of anti-discrimination law in areas of public accommodation, notwithstanding the admittedly "compelling state interest" the latter type of law protects.

It was not so long ago that minorities in America had booklets they carried to let them know which businesses it was safe for them to patronize, knowing that in certain places and communities they could not simply assume that a hotel, restaurant, or shop open to the general public would be open to them. The Jewish Vacation Guide was one example, the Negro Motorist Green Book was another. In circumstances where discrimination was lawful, these resources served several important needs. 

First, of course, they let their readers know where certain services simply would be unavailable. One does not want to travel through or move into a town where the only hotel or restaurant will refuse to serve you. 

Second, and almost as importantly, they enabled readers to avoid shops which would refuse to grant them service. This is distinct from the first injury, because there is a severe dignitary harm in being refused service on account of one's identity even if a competing business across the street that will happily take one's dollars. One feature of public accommodations law is precisely that one doesn't have to "run the risk" that in entering a storefront on Main Street you'll endure the indignity of being asked to leave because you're the wrong skin color, religion, or sexual orientation. Absent that guarantee being fully enshrined into law, resources like the Green Book enabled travelers to know in advance which storefronts to avoid so they wouldn't have to face that sort of humiliation.

In keeping with that tradition, I wonder if one way of balancing 303 Creative's First Amendment protections with the again conceded-to-be-compelling interest in robust antidiscrimination protections is via the time-tested policy of disclosure. States can pass laws which require any business that wishes to claim a First Amendment exemption from all or part of an anti-discrimination statute to publicly announce and display that choice; and the state can likewise maintain a list of businesses which make such claims. The law would be a sort of statutory Green Book, letting patrons know what businesses are at least claiming an ability to discriminate (and by extension assuring them that businesses not on the list remain safe to patronize).

Here's my very rough crack at some model legislative language:

Sec. XXX -- Exemptions

(a) Registration. Any business which seeks to claim a First Amendment exemption from all or part of the [this state's anti-discrimination law] ("a business seeking an exemption") must, at least thirty days prior to asserting any claim for such an exemption,

(1) Register with the Secretary of State their intent to claim an exemption, including specifying which portions of the law they assert they will not comply with.

(2) The Secretary shall publish the names and addresses of all businesses who register their intent to claim an exemption under this subsection on a publicly available website, including which provisions of the law they claim exemption from. 

(b) Public display. Within thirty days of receiving a filing under Sec. (a)(1), the Secretary shall issue a notification to the business seeking an exemption stating that "WARNING: THIS BUSINESS HAS FILED FOR A FIRST AMENDMENT EXEMPTION FROM THIS STATE'S ANTI-DISCRIMINATION LAWS", including specifying which portions of the law the business claims exemption from. Unless otherwise inapplicable, the text of this notification shall be conspicuously displayed in

(1) The front window or doorway space of any physical location of the business that is open to the general public or the businesses' regular customers; and

(2) The front page of any webpage or social media account controlled by the businesses and through which it advertises its business to the general public;

(3) Notwithstanding any other portion of this subsection, if a business claiming an exemption has neither a physical storefront under subsection (b)(1) or a webpage under subsection (b)(2), the text of the notification shall be displayed in any reasonable location where it will be conspicuous for the average customer considering patronizing the business.

(c) Presumption of sincerity. Any business which complies with the provisions in this section shall be deemed to have established, as a rebuttable presumption, the sincerity of their belief that compliance with [this state's antidiscrimination laws] conflicts with their own expressive beliefs.

(d) No entitlement to, or expansion of the scope of, exemption. Except as detailed in subsection(c), compliance with the provisions of this Section shall not entitle the business seeking an exemption from antidiscrimination law to any relief from the requirements of antidiscrimination provisions beyond that which is constitutionally required under the First Amendment; nor does it immunize the business seeking an exemption from any public or private proceeding seeking to enforce anti-discrimination provisions that would not otherwise violate the First Amendment.

The basic idea of this provision is simple: if you want to claim a First Amendment right to discriminate, you have to claim it publicly, in advance, so that people who would be denied service can plan accordingly. By creating a master list of discriminators, and by requiring businesses who seek to assert a right to discriminate to prominently display their intent on their storefront, it is far less likely that customers who would end up being excluded will on accident patronize the business.

The law would have some other salutary effects as well. By creating a reasonably comprehensive list of businesses asserting a right to discriminate, the state can learn of the existence of any "dead zones" where members of certain marginalized groups may be severely restricted or entirely unable to obtain services -- data that could be very useful for future legislative action. As reflected in subsection (c), the law also I think would aid in dividing the actual true believers from the opportunists -- I assume that only those who really, truly believe in their discriminatory impulses will be willing to announce in advance to the world "I am a discriminator" (as the 303 Creative plaintiff, to her "credit", was willing to do).

What are some potential drawbacks? One possibility is that it will be assumed that a law like this will enable more businesses to discriminate than otherwise would be licensed to do so by 303 Creative; I wrote subsection(d) to try and forestall that risk. Under this statute, registering a claim for an exemption is just that -- a claim, and the claim does not guarantee success. A business that registered but whose activities were not protected under 303 Creative's umbrella would still be liable, notwithstanding their registration.

Another possible problem is the argument that a law like this itself constitutes compelled speech. On face, the requirement that the business post the "WARNING" placard in its store to me doesn't seem any different than requiring a restaurant to display the health inspection notice. But there might be something different here insofar as the broader thrust of the statute would be to force businesses to "go public" with their intention to discriminate. While there's something instinctively odd about claiming a free expression right to avoid expressing one's deeply-held beliefs, there are circumstances where such a claim makes sense -- NAACP v. Alabama is the obvious template here. Alabama in the 1950s sought to require that the NAACP disclose the names and addresses of its members; the NAACP, unsurprisingly, did not wish to make this information public and claimed a First Amendment right to keep their membership data private. The Supreme Court ruled in favor of the NAACP (incidentally, NAACP was perhaps unsurprisingly a key precedent relied upon by the Griswold Court regarding the existence of a right to privacy). The NAACP had obviously reasonable fears that disclosure of their membership would render them vulnerable to harassment and violence; the discriminating businesses might claim fears of a similar vulnerability.

NAACP is clearly distinct, however, for a simple reason: the NAACP did not simultaneously seek to keep its "expression" quiet and claim that its expressive activity entitled it to a governmental benefit  (I've always found the Little Sisters of the Poor style claim -- wanting an exemption, but also being outraged at being forced to actually ask for the exemption -- to be utterly ridiculous). With regards to its membership information, the NAACP truly wanted nothing more than to be "let alone"; there was never a circumstance where the organization would wield its membership data as a sword against the state. By contrast, by stipulation the discriminators do wish to go public regarding their beliefs when they tell the state "you can't enforce your anti-discrimination law against me because I believe X". At most, what they want is to be able to hide their beliefs until the last minute. But that's a far less pressing claim -- at some point, the business seeking the right to discriminate will have to go public with its claim, and so it does not seem unreasonable to insist that the pivotal moment occur before an unwitting customer is humiliated and denied service.

And on the subject of harassment: certainly, violence and vandalism are never justified. But often in this context, "harassment" means nothing more than a consumer counter-boycott -- the company refuses to do business with certain groups because of its beliefs; many other consumers decide accordingly that they will no longer patronize the business in protest of that discrimination (ex: the Jewish community members who no longer are purchasing from a Kosher bakery that decided it couldn't bake "pride" treats). That is not harassment, that's counter-speech. And in that register, I'd argue that under 303 Creative's logic enabling customers to know "this business asserts a right to discriminate" is free speech facilitative, not chilling.

One of the virtues of public accommodations law is that it dissipates, under normal circumstances, the inference that basic business transactions are expressive. I very much prefer a world where the bakery that bakes a cupcake for a client isn't seen as sending some sort of message of approval towards the client and the client that eats the baker's treat isn't sending a message of approval toward the baker (beyond "this cupcake is delicious"). That, to me, seems a far more pleasant space to live in than one where every turnip and widget we buy or sell can be taken as some sort of sweeping moral approval for our business partners.

But the Supreme Court did not agree. And once we open the door to saying that ordinary business transactions should be perceived as expressive, then customers as well as businesses have a strong interest in knowing the political and social views of who they're transacting with so they can assure themselves that values align, and can redirect their dollars where they do not. This is one reason I think a consequence of 303 Creative will be to supercharge "cancel culture" -- the more businesses are allowed to say "we don't serve your kind", the more customers must be allowed to say in return "well then we don't buy from your kind". The only thing worse than cancel culture is unidirectional cancel culture. If businesses can "cancel" customers for supporting gay rights, then customers should be equally empowered to cancel businesses for asserting a right to discriminate.

Again, the model language I've written above is rough. But I'm curious what First Amendment scholars and other interested parties think of the idea. We may have to tolerate certain businesses asserting a constitutionally-protected right to discriminate. But customers have rights too. One of those rights is to have confidence that one can walk into a storefront and be served as an equal. Another right is to be able to avoid patronizing businesses who insist they have a deeply held commitment to discriminating against you, your family, or your loved ones. This statute, it seems, can help bring these clashing interests into balance.

Keeping Perspective on July 4th

As you may have seen, a federal judge in Louisiana has issued a sweeping injunction prohibiting all manner of communications between the Biden administration and social media companies which seek to tamp down on misinformation and conspiracies. In the first paragraph of a sprawling opinion, Judge Terry Doughty, a Trump appointee with a history of indulging the most extreme right-wing Republican theories, characterized the allegations as "arguably involv[ing] the most massive attack against free speech in United States' history."

Since it is the Fourth of July, I feel compelled to observe that we used to have in this nation laws which prohibited teaching Black people how to read. These prohibitions existed side-by-side with laws forbidding anti-slavery advocacy. I daresay that such laws represent a more "massive" assault on free speech than government efforts to convince social media outlets not to promote dangerous misinformation in the heart of a deadly pandemic (or, for that matter, seeking to persuade media outlets not to publish classified material they come to possess -- notwithstanding their clear First Amendment right to do so under the Pentagon Papers precedent. Which is to say, government tries to convince media actors not to publish things all the time, and absent actual coercion it is of no First Amendment concern).

The little King Georges who now dot the federal judiciary would do well to learn a little history (if such history can still lawfully be taught in Louisiana) and keep a sense of perspective.

A First Amendment Right To Take In Information

Last week, the 8th Circuit decided Molina v. City of St. Louis, granting qualified immunity to police officers who shot tear gas at a group of lawyers (wearing bright green hats saying "legal observer") congregating on their own property while observing protests. The lawyers contended that the police gassed them in retaliation for exercising their First Amendment right to observe the protests. In a 2-1 ruling authored by Judge Stras, the court held that it was not "clearly established" in 2015 that there was any First Amendment right to observe protests.

(Because this is the Eighth Circuit, this is not even the most outrageous qualified immunity decision authored by Judge Stras of its week. That honor has to go to Leonard v. St. Charles County Police Department, where a jailhouse nurse simply refused to give a mentally ill inmate his prescribed medication, instead placing him under suicide observation -- the end result being jail staff "observing" the man claw out his own eyeball. Is just refusing to provide prescribed medical care "deliberate indifference" to the inmate's constitutional rights? Of course not! After all, the nurse did not do nothing -- she placed the man on suicide watch! That's what's great about modern medicine: everyone knows it can be freely swapped out with "do nothing but observe the patient" with no material change in outcome. This is why nursing is such an easy and non-stressful occupational path).

The interesting thing about Molina is that the Eighth Circuit had already in prior cases appeared to recognize that there was a constitutional right to observe the police. And under the "prior panel" rule, those decisions are supposed to be precedentially binding. But the Molina panel argued that those cases only concluded that it was a Fourth Amendment violation to seize someone for observing police (since there's no probable cause to believe any crime was committed). This does not establish, in the court's view (and notwithstanding the broad language in the case stating that there is a "clearly established right to watch police-citizen interactions at a distance and without interfering."), that there is a First Amendment right that's been established.

Judge Benton's dissent makes mincemeat of this finely-parsed distinction. But I wanted to flag a particular passage from Judge Stras' opinion that appears to embody a sort of vulgar textualism that's way too clever for its own good. In a footnote, Judge Stras argues:

It is not beyond the realm of possibility that a First Amendment right to observe police exists, but our Fourth Amendment cases like Walker and Chestnut do not clearly establish it. And it makes good sense why. It is one thing to conclude that officers cannot arrest someone passively standing by and watching as they do their job. After all, in the absence of interference, there is no crime in it. But it is another matter to say that watching is itself expressive. Expressive of what? Not even Molina and Vogel can provide a clear answer.

This, to me, seems to prove way too much, seduced by the allure of a hyper-literal reading of "expression". This argument, after all, would suggest that there is no First Amendment interest in reading a newspaper or watching a television program. Certainly, the speaker is expressing something, but what is the reader or watcher expressing? For them too, we could ask "expressive of what?" One can shoehorn in an answer ("they're expressing interest in or approval of the material"), but the more obvious answer is that the First Amendment encompasses interests on both the side of the speaker and the listener, and it is a fluke of grammar that "expressive" only directly captures the former. It seems obvious to me that the First Amendment encompasses some sort of right to take in information, not just to transmit it, and any reading that denies the former under the guise of interpreting the word "expression" is completely misunderstanding how to do legal analysis.

Incidentally, many years ago there was a similar thing with Justice Thomas in his Lopez concurrence, where he tried to bring constitutional Commerce Clause jurisprudence all the way back to E.C. Knight and claim that manufacturing is not "commerce". Among his arguments was the point that, grammatically speaking, you can't really substitute "manufacturing" for "commerce" in the clause -- while one can engage in "commerce" with a foreign nation, one can't really engage in "manufacturing" with a foreign nation. This was an argument that, again, proved too much. If there was a constitutional clause authorizing Congress to "wage war with a foreign power", would the power to "wage war" permit Congress to authorize the construction of warships? As a matter of grammatical substitution, it doesn't work ("construct warships with a foreign power"?). But all that means is the broader phenomenon of "waging war" can include activities which are not grammatically interchangeable with the phrase "wage war". And so too with "commerce", which also can refer to a range of activities which, taken as a whole, operate upon or in relation with foreign nations, Indian tribes, or the several states.

It is not a good thing, but also perhaps not an accidental thing, that the turn towards hyper-textualism corresponds to judges becoming increasingly bad readers of texts. The First Amendment obviously encompasses activities that are about receiving information alongside transmitting them. Pilpul about "expression" doesn't change that.

The Eighth Circuit's Boycott Ruling Does a Lot More and a Lot Less Than You Think

Yesterday, the Eighth Circuit sitting en banc upheld Arkansas' law prohibiting government contractors from boycotting Israel during the tenure of their contract. The ruling makes for interesting reading, more because of what isn't said than what it is. At one level, the ruling seems to have dramatic implications extending far beyond the case of Israel. And on another level, the ruling (including the solo dissent from Judge Kelly) barely even discusses what I would consider to be many of the critical issues in play.

First thing's first. As many of you know, I clerked on the Eighth Circuit, and it is now as it was then a very conservative court. JTA's bland statement that "The Eighth Circuit is considered to have a conservative makeup" does not do it justice. There is a grand total of one Democratic appointee serving on the court, the inestimable Judge Jane Kelly. While it lacks the outright nihilist streak that has afflicted the Fifth Circuit of late, it is fair to characterize the Eighth Circuit as among the most right-wing courts in the country.

In any event. The Arkansas law requires that state contractors certify they will not "boycott Israel" for the duration of the contract. "Boycott Israel", in turn, is defined to encompass doing any of the following three things “in a discriminatory manner”:

(1) “engaging in refusals to deal”; 

(2) “terminating business activities”; or 

(3) taking “other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories.”

The court essentially divides its analysis in two. One question is whether things like "refusals to deal" or "terminating business activities" should be seen as potentially implicating First Amendment values (that is, are they expressive). The second question is whether the third clause, covering nebulous "other actions", includes activities that are unquestionably First Amendment protected (e.g., writing an editorial supporting BDS -- which presumably would be "intended to limit commercial relations with Israel"), or whether that clause should be read to only cover commercial conduct akin to that covered in the first and second clause.

The first question basically gets to the issue of whether "boycotts" are First Amendment protected. Citing Rumsfeld v. FAIR, the majority concludes they are not, because boycotts are non-expressive conduct that only garners an expressive meaning if accompanied by explanatory speech. The venerable NAACP v. Claiborne Hardware case does not control, the court says, because Claiborne only extends to the speech that accompanies the boycott (e.g., the signs and pickets around a store), not the "action" of the boycott itself.

This is a big ruling. The holding that the "action" of boycotting falls categorically outside First Amendment protections is a major decision, and one that deserves every bit of public scrutiny and inquiry that this decision is getting. In that respect, the Eighth Circuit decision is getting the proper amount of attention and concern.

This makes it all the more strange the fact that the court itself doesn't act as if its conclusion was a big deal. Its holding was delivered in conclusory fashion at scarcely three pages worth of analysis. While the Eighth Circuit does tend to prefer relatively terse opinions over the long, rambling, and often self-indulgent treatises that other circuit courts typically issue, there's little indication that it viewed the "are boycotts speech" question as a substantial issue. 

Likewise, most of the dissenting opinion also does not really question the majority's assumption that boycotts are not speech. Indeed, far more of the debate between the majority and dissent focuses on the second question -- whether or not the Arkansas law, in its third provision, captures activity that is unquestionably First Amendment protected. This is a matter of statutory interpretation -- what is the best way to read the statute under Arkansas law? -- and while that may be an interesting question to some, it is certainly not what is driving the interest over this case. Yet nearly all of Judge Kelly's solo dissent focuses on this second question, while arguably taking for granted the seemingly big sweep the court makes regarding the first question. The result is that the "boycotts are speech" position -- fervently held and believed in by substantial sectors of the American people -- neither gets a substantial challenge (from the majority) nor a substantial defense (from the dissent). This is a very, very odd omission.

Judge Kelly does not spend much, if any time, arguing that the "action" of boycotting is First Amendment protected. Rather, her position is that the law goes beyond regulating non-expressive economic activity and captures purely expressive speech (again, the proverbial pro-BDS editorial or flyer). On my quick read, both majority and dissent have plausible arguments for what the best read of the Arkansas statute is -- but again, that is not the issue anyone actually cares about. A ruling that says "Arkansas' law is unconstitutional because it does not just target the act of boycotting but also pure expression supporting a boycott" should be equally upsetting to critics as "Arkansas' law is constitutional because it only targets the act of boycotting and does not cover pure expression supporting a boycott." Yet that appears to be the locus of the dispute between majority and dissent.

Judge Kelly at most only alludes to the questions that many of us view as central to a case like this. For example, the very end of her dissent briefly suggests that the law does not just cover what the contractor does in the course of fulfilling his or her contract but also "prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship 'on its own time and dime.'" This is something I've long felt was important in distinguishing valid versus invalid state regulations in this field. Is Judge Kelly correct that Arkansas' law does limit the contractor's "own time" behavior? Does that make a difference? Neither majority nor dissent really say.

Likewise, the seemingly key question of whether boycotts are at all "expressive" is given scant attention. The majority cites FAIR to say they are not, because the conduct would not be understood as "expressive" absent additional speech explaining the intended meaning. In FAIR, the question was whether a law school could refuse to allow military recruiters on campus as a means of protesting Don't Ask Don't Tell; the Court said that was not expressive because an observer wouldn't know that the recruiters' non-presence was meant to be a message sent from the law school absent the law school saying "the recruiters are not here because we are sending the message that ...."

There is some purchase to applying FAIR to the case of boycotts. Imagine two people walk into a store. They both see a Hewlett-Packard computer on sale. They both then walk out without buying it. Have they "boycotted" HP? An observer would have no way of knowing absent the customer explaining their behavior as a boycott. After all, there are a myriad of other reasons why one wouldn't buy an HP computer; the average observer would not have any basis for assuming that the non-purchase was for boycott related reasons.

However, the logic of FAIR also cuts in the other direction. In FAIR, the Solomon Amendment required that law schools provide access to military recruiters. It didn't matter why a law school didn't want to provide such access (whether for "expressive" or "non-expressive" reasons); the schools had to provide the access regardless. In this way, the law didn't single out "expressive" objections for singular opprobrium; it treated the expressive and non-expressive objectors exactly the same (i.e., by bulldozing the objection).

Anti-boycott laws, though, are different. The Arkansas law here certainly does not say "every government contractor must buy Israeli goods". There are myriad reasons why a contractor might not purchase from an Israeli vendor, and for the most part they remain free to do so. The only time they are forbidden from doing so is when their action is a boycott. But that means that, unlike FAIR, the hitherto hidden expressive character of their conduct is what distinguishes licit and illicit behavior. Judge Kelly does allude to this in a footnote, pointing out that the ordinary meaning of  "boycott" (undefined in the Arkansas statute) "includes an inherent element of expression" -- it is a refusal to buy that is done as a means of protest or disapproval. Hence, the contractor's action is only illegal if it is expressing a particular (disfavored) message -- something that should spark obvious First Amendment concerns.

We should recognize we're treading on very precarious terrain here. While not defining "boycott" directly, the Arkansas statute frames what is prohibited as "discrimination" against Israel. The risk that First Amendment protections for "boycotts" could generate First Amendment protections for "discrimination" is by no means unfounded, particularly in the era of Masterpiece Cakeshop and First Amendment Lochner-ism. Applying the above analysis to anti-discrimination claims, one can imagine a restaurateur refusing to seat a Black patron, then defending himself by saying "there are all sorts of reasons why I might not seat a patron; yet what makes my conduct illegal is the message I intend to convey -- that I object to Black people." Courts have not (yet) accepted that logic, and there are some bases for making distinctions here. But ask yourself how much you want to prop that door open for Alito and company by going all in on "refusal to engage in business transactions with disfavored groups is your First Amendment right!"

Finally, one other nettlesome issue about the Arkansas law that comes to my mind is the potential viewpoint discrimination problem. Different states have written their anti-BDS laws in different ways, and I've noted before my strong preference for those which do not single out Israel for special treatment but instead craft a broader rule forbidding, e.g., discrimination on basis of nationality or national origin. Arkansas' law is not like that -- it provides enhanced protections for Israel and only Israel. Contractors are apparently free to boycott Palestine, or France, or Germany, or Russia or Ukraine or China or India or Zambia without consequence.

This to me generates a serious viewpoint discrimination problem. As Justice Scalia pointed out in R.A.V. v. City of St. Paul, even where a state has legitimate reasons for restricting certain types of speech -- and we can stipulate for sake of argument that nationality-based discrimination, even where styled as a "boycott", is one such case -- it "has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules." If Arkansas thinks this sort of behavior has to be restricted, it has to restrict on both sides of the ledger -- it cannot single out one side of the controversy for special restriction because that side represents the disfavored viewpoint. After all, we might not be aghast if a state required its contractors to certify that they do not discriminate on the basis of race; I think we'd be far more concerned if a state only required them to certify they do not discriminate against White people, while being a-okay with contractors who discriminate against other racial groups.

In any event, the Eighth Circuit decision devotes cursory, if any, attention, to all of these issues. That applies as much to Judge Kelly's dissent as Judge Kobes' majority opinion. Normally, I'm not upset by the Eighth Circuit's preference for shorter and more compact opinions, but here I think they made a very big move without fully thinking it through or potentially even realizing it. This case very well could end up before the Supreme Court, and with the court that we have who knows what hash will be made of both First Amendment and anti-discrimination legal guarantees?

Are All Exemptions "Individualized"?

One of the many fun events of the past few years has been the Supreme Court deciding it is going to blow apart and reconstruct First Amendment free exercise doctrine in the middle of a pandemic, often on the shadow docket, with little warning and less argument, invariably in the direction of hamstringing the public authorities' efforts to impose basic common-sense limitations to stop the spread of a highly-infectious, contagious disease. We should all take a moment to pour one out for the courageous American people, who have largely been steadfast and resilient in the face of the federal judiciary's determined efforts to kill us all.

The latest salvo on this front was the 6-3 vote by the Supreme Court to deny emergency relief to health care workers who wanted a religious exemption from Maine's vaccine requirement. Maine allows vaccine exemptions solely for medical reasons; it does not permit religious (or, I believe, any other) bases for exemption. This vote does not necessarily mean that the case will come out the same way if it ever reaches the Court via normal avenues; Justice Barrett, joined by Justice Kavanaugh, concurred but suggested that part of their issue was that the case was inappropriate for resolution on the shadow docket. Glad they finally got the memo!

Justice Gorsuch wrote for three dissenters to stake out what would have been until, well, last week, a truly staggering position: that Maine's choice to exempt from a vaccine mandate only those for whom a vaccine is physically dangerous fails rational basis review, which is such an extreme departure from existing constitutional law doctrine I'm almost in awe of its lèse-majesté. Others can pick at other aspects of the opinion, but one element I wanted to flag was Justice Gorsuch's claim that Maine has a system of "individualized exemptions" in place for its vaccine mandate which it is unreasonably failing to extend to religious objectors.

The "individualized exemption" rhetoric picks up from the Court's halting attempt to harmonize its new free exercise jurisprudence with what had been the prevailing standard in Employment Division of Oregon v. Smith, which held that neutral and generally applicable laws needn't offer religious exemptions even if they happen to impinge upon the religious precepts of certain individuals. Smith distinguished some older cases, notably Sherbert v. Verner, on the grounds that in the latter there was a system allowing for individualized review and assessment of each applicant's claim. In Sherbert, which involved claims for unemployment benefits, the state individually checked to see whether each applicant had demonstrated "good cause" for declining any work offered to them; the case there involved a circumstance where the administrative agency declined to accept that refusing to work on the Saturday Sabbath constituted "good cause". As Smith observed, most laws do not offer that sort of case-by-case, highly-tailored individualized review, and so the Sherbert rule is difficult to reasonably extend to other cases.

Fast forward thirty years, and we have a Court that seems far more inclined to grant religious exemptions as a matter of constitutional entitlement, but has not (as yet) been willing to overturn Smith. So it relies on the "individualized exemption" angle to say that it's not actually making a change. This gives us Fulton v. City of Philadelphia, ruling against a Philadelphia policy which declined to give a religious accommodation to a Catholic organization that wanted to discriminate against gay couples notwithstanding that its anti-discrimination policy allowed for exemptions at the sole discretion of the relevant administrator for any reason whatsoever. Though Philadelphia had never actually granted an exemption, the Court interpreted this provision as essentially having Philadelphia look at each application for an exemption and decide, based on individualized assessment of the particular case, whether to grant one or not. This was akin to Sherbert rather than Smith -- a system of individualized review -- and if one is going to offer that sort of review than religious exemptions have to be permitted as well. Perhaps for that reason, Fulton was a unanimous decision -- it really could fit within the pre-existing doctrine, albeit only because Philadelphia had a crafted a broad and purely discretionary exemption system allowing for individualized assessment of every applicant.

Which brings us back to the vaccine mandate case. Justice Gorsuch, in his dissent, says that the Maine rule is like the Philadelphia rule -- it allows for "individualized exemption." What he specifically says is that "The State’s vaccine mandate is not absolute; individualized exemptions are available but only if they invoke certain preferred (nonreligious) justifications" -- namely, the health-based justification.

Yet Justice Gorsuch seems to be making a conflation here with huge ramifications -- between "exemptions" and "individualized exemptions". Yes, Maine's law has an exemption from its vaccine mandate for persons for whom the vaccine would not be healthful; this is eminently sensible if Maine's ambition is to promote public health. But these exemptions are not individualized in the way that was present in Sherbert or Fulton -- Maine does not make a free-standing commitment to assess every applicant "as an individual" and determine, based on the totality of the circumstances, whether an exemption is appropriate or not. It has a specific exemption for a particular class of persons -- those for whom the vaccine would be physically dangerous. Admittedly, Maine presumably has to do some individualized review to determine whether a person applying for an exemption under this demarcated policy qualifies for the exemption. But that is still not "individualized" review in the Sherbert/Fulton sense, unless every "exemption" in a law necessarily is an "individualized exemption".

Which actually does seem to be Justice Gorsuch's position: all exemptions are "individualized exemptions" -- the word "individualized" is superfluous. His proof that the vaccine mandate has "individualized exemptions" is that it is "not absolute", suggesting that any exception ipso facto qualifies as an individualized exemption which must therefore allow for a religious exemption as well.

This is staggering. One would struggle, I imagine, to think of a law that doesn't have some "exemptions" in it -- pretty much any law of substance has some "provided that such-and-such does not qualify" proviso in it somewhere. Our laws prohibiting stabbings exempt surgeons; our laws prohibiting possession of drugs exempt police officers seizing drugs; our laws prohibiting homicide exempt executioners of the death penalty. Are these all now "individualized exemptions", compelling religious adherents to get a similar exemption as well? In our soon-to-be-post-Roe world, most states which ban abortion probably still will have some "life of the mother" exception; does offering this exemption mean that any person for whom abortion is religiously mandatory in other scenarios must be permitted to have one?* I can't wait for the first Jewish plaintiff to sue on that theory; I can wait for her to inevitably lose because there is no question that the rule being expressed here is not a check liberal religious observers will be entitled to cash as against conservative rules.

At some level, this is all an academic exercise -- the reason we're focusing on the existence or not of "individualized exemptions" is not because Justice Gorsuch has any particular attachment to that as the standard, it's because this is the rhetoric one can find in Smith and so this is the best way to achieve the outcomes Justice Gorsuch wants in a world where there are not yet enough votes to overturn Smith. Nonetheless, the implications of Justice Gorsuch's position really is that any law which has any exemption for any reason must have a religious exemption too -- a position which seems perilously close to covering "all laws". That's a recipe for religious anarchy. I won't say "and that's the point", because again, we all knew who is going to be allowed to ride that train and who won't be. The likely upshot is far more likely to be the typical authoritarian-conservative structure: a favored class for whom the laws protect but do not bind, and a disfavored class for whom the laws bind but do not protect.

* It is amusing to me just how well Justice Gorsuch's logic for why a health exemption to a vaccine  mandate necessarily compels a religious exemption maps onto why a health/life exemption to an abortion ban necessarily compels a religious exemption there too. Justice Gorsuch's position is that we are per se forbidden from ever declaring a "religious" need as lesser than any secular need, including health and safety (this has been referred to as promoting a wrongful hierarchy privileging "life-sustaining" over "spirit-sustaining" needs). The only basis we have for declining a religious exemption is if the religious action uniquely threatens the state's interest in promulgating the general law in a way that the secular exemption doesn't. 

In the vaccine case, Gorsuch's argument goes, unvaccinated persons may be dangerous in a health care setting, but they're equally dangerous regardless of the reason they're unvaccinated -- it's not as if a virus is less transmittable if it's carried by someone who's unvaccinated because of health reasons compared to religious reasons. But so too in the abortion case -- the state's interest in protecting fetal life is equally implicated regardless of whether the reason the fetus is killed is because its necessary to protect the mother's life or because it's necessary to protect the mother's soul. Either way, the fetus is equally dead, and so once the state allows the, ahem, "individualized exemption" permitting abortion in cases where it is necessary to save a mother's life, it must allow them in any cases where a patient sincerely believes them to be religiously mandatory.