AI use continues spreading in online dating dialogue

The Heritage Guide to the Constitution is my fifth book. Like with my previous publications, I did everything in my power to eliminate typos and other errors before publication. And, like in the past, as soon as the book is sent to the printers, I discover more typos and errors. Finally, like in the past, as soon as Amazon ships the book, people start writing to me with errors. I already compiled an errata list. We will make these changes for the second printing, and the online edition (stay tuned). If you happen to spot an error, please email me: josh-at-joshblackman.com. The post Errata in The Heritage Guide to the Constitution appeared first on Reason.com.

Once again, originalism is only elevated when a scholar with conservative credentials opposes conservative jurisprudence.

I have an article titled "Viewpoint Diversity" Requirements as a New Fairness Doctrine forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. You can see my argument about why viewpoint diversity requirements are likely to chill controversial faculty speech here; here is a brief follow-up section as to the problems with imposing such requirements as to students: [E.] Viewpoint Diversity Rules as to Students The Administration's letter to Harvard also calls on "audit[ing] the student body" and not just the faculty. But the problem of people being encouraged to misreport their political beliefs is likely to be even more severe with regard to the auditing of students. For college students, any such audit is likely to be based entirely on self-reporting, since most students will have little history of party registration, even less history of political donation, no formal publication record of the sort that academics have, and (again, for most students) little politically minded social media commentary. Yet if universities try to achieve viewpoint diversity by asking would-be students their political beliefs when they are applying, many students will likely claim beliefs that they see as likely to increase their chance of admission (e.g., by claiming to be conservative or centrist when they think they'll be penalized for being liberal, or claiming to be liberal or centrist when they think they'll be penalized for being conservative). This is especially so since this would generally be a very safe lie. The terms are vague enough that it will be hard to prove that people were misdescribing themselves. And even if, after they come to college, students become activists on a side contrary to the one they claimed, they can always just say that they've changed their minds. Indeed, the terms are vague enough that students can even persuade themselves that they are telling the truth. "No, really, I'm not that liberal—I'd say I'm more of a moderate" is an easy story to tell yourself once you learn that calling yourself a liberal would decrease your chances of admission. To be sure, universities might measure their students' viewpoint diversity by asking students their political beliefs when they are already in school. But then to cure any lack of viewpoint diversity, they would still have to ask future applicants for their views, and risk the strategic responses that I describe above. And even the current students might feel an incentive to respond inaccurately: After all, if left-wing (or right-wing) activist students realize that so labeling themselves will increase the university's pressure to admit students from the other side for ideological balance, those students might well conclude that it's better to mischaracterize their positions in the viewpoint diversity survey. The post "Viewpoint Diversity" Requirements as a New Fairness Doctrine: Viewpoint Diversity Rules as to Students appeared first on Reason.com.

It is forthcoming in Academic Freedom in the Era of Trump, (Lee Bollinger and Geoffrey Stone, eds., Oxford University Press).

A guest post by Joshua Braver and John Dehn.

From In the Interest of Juvenile: S.G.H., decided yesterday by the Colorado Supreme Court, written by Justice Carlos A. Samour, Jr.: S.G.H., a young teenager, … is accused of using a generative-AI tool to blend authentic images of three classmates' actual faces and clothed bodies with computer-generated images portraying naked intimate body parts to make it appear as though the classmates are nude…. Every state has laws prohibiting the nonconsensual distribution of authentic intimate images, and the federal government recently enacted a similar measure. But "few laws in the United States" specifically protect minors from exploitation through the use of generative AI tools, and many current statutes do not cover computer-generated explicit images that use real people's faces. [The court doesn't mention the federal TAKE IT DOWN Act, enacted in May 2025, which broadly bans nonconsensual deepfake porn. -EV] … Colorado is among those states that have been slow off the mark to address the use of explicit images created with generative AI. To our legislature's credit, it recently stepped up and bridged the generative-AI gap that existed in the relevant statutes. But that was after S.G.H. had been charged in this case with six counts of sexual exploitation of a child (two counts for each victim), so any recent legislative amendments cannot serve as a lifeline for the People here. The People nevertheless contend that they need no rescuing by the recent amendments because the law in effect on the dates of the charged offenses prohibited S.G.H.'s alleged conduct. According to the People, the amendments merely clarified that such conduct is prohibited. We disagree…. All six charges of sexual exploitation of a child (three charged pursuant to subsection (3)(b) and three charged pursuant to subsection (3)(b.5)) require proof of "sexually exploitative material." … As of December 2023, when the offenses charged allegedly occurred, our legislature defined "sexually exploitative material" as any photograph, motion picture, video, recording or broadcast of moving visual images, livestream, print, negative, slide, or other mechanically, electronically, chemically, or digitally reproduced visual material that depicts a child engaged in, participating in, observing, or being used for explicit sexual conduct…. The images recovered from S.G.H.'s email account are not photographs, motion pictures, videos, recordings or broadcasts of moving visual images, livestreams, prints, negatives, or slides. That leaves "mechanically, electronically, chemically, or digitally reproduced visual material." As the People impliedly agree, the images collected from S.G.H.'s email account were not "mechanically, electronically, [or] chemically" reproduced. No, the images are digital. But while they are digital, there is no evidence in the record that they were "reproduced." This is the death knell in the People's case: Even according to the People's own brief, S.G.H. prepared, produced, made, possessed, and/or controlled the images found in his email account; there is no assertion in the answer brief that S.G.H. reproduced the images at issue—digitally or otherwise. {While the composite images allegedly created by S.G.H. may appear photographic in form, we perceive a significant distinction between those images, which synthesized computer-generated and original properties, and a photograph. A "photograph" is a "picture or likeness" obtained by "photography," which refers to the process of producing images through the precise action of exposing "radiant energy" on a "sensitive surface" such as a film or an optical sensor. By contrast, the images found in S.G.H.'s email account did not originate from photographic processes.} … Reproduction in this context implies fidelity to the source. Indeed, photographs, motion pictures, videos, and the other items listed in subsection (2)(j) all faithfully capture a visual image. They do not distort, manipulate, modify, or fabricate a visual image. In this case, we deal with distortion, manipulation, modification, and fabrication, not reproduction: The images stored in S.G.H.'s email account are fabricated images that were digitally produced by distorting, manipulating, or modifying photographs. Because the People did not present any evidence that the activity S.G.H. engaged in involved the digital reproduction of images or otherwise met the definition of sexually exploitative material, they failed to establish probable cause to believe that he violated either subsection (3)(b) or subsection (3)(b.5). Therefore, we conclude that the district court erred in finding probable cause as to all six charges…. [W]e do not condone S.G.H.'s alleged conduct. Computer-generated explicit images often have a devastating impact on victims. We understand, of course, that our decision today means that the People will not have an opportunity to seek justice for the three named victims. Unfortunately, it took our legislature time to catch up to the recent advances in generative-AI technology. But regardless of the reason for this delay, S.G.H. cannot be penalized based on statutory provisions that came into effect after he allegedly engaged in the appalling conduct in question. As undesirable as it may be to deprive the named victims of their day in court in this proceeding, it is the result the law requires and thus the one we reach. In so doing, we are ever mindful that "[r]esult-oriented justice is … directly contrary to the concept of the rule of law." Michael S. Juba (The Juba Law Office, PLLC) represents defendant. The post Colorado Child Porn Law Didn't Ban Deepfake Porn Until Recent Amendments, Court Holds appeared first on Reason.com.

SCOTUS' "stay jurisprudence" is a bit of a mess

From today's opinion by Justice Gorsuch respecting the denial of certiorari in Thomas v. Humboldt County: In Minneapolis & St. Louis R. Co. v. Bombolis (1916), this Court held that the Seventh Amendment's civil jury trial right is not enforceable against the States. Petitioners ask us to reconsider that decision. But a number of "vehicle" problems make it unlikely that we could do so in this case. Accordingly, I agree with the Court's decision to deny review. At the same time, I do not doubt that Bombolis warrants a second look. As petitioners observe, Bombolis is something of a relic. There, the Court dismissed as "strange" the notion that the Seventh Amendment—or, for that matter, any of the Bill of Rights—might be enforceable against the States. But what once might have seemed strange almost goes without saying today. In the years since Bombolis, this Court has "shed any reluctance" about the idea that the Fourteenth Amendment "incorporate[s]" against the States many of the liberties enshrined in the Bill of Rights. To be sure, debates exist around the edges. There are, for example, those who hold that the Fourteenth Amendment incorporates provisions of the Bill of Rights through its Due Process Clause, while others believe that the Privileges or Immunities Clause supplies the truer source of authority for the job. Similarly, some have argued that the Fourteenth Amendment selectively incorporates only fundamental or deeply rooted aspects of the Bill of Rights, while others have suggested that, under that test or any other, the Fourteenth Amendment renders all of the first eight Amendments enforceable against the States. Compare Wolf v. Colorado (1949) (overruled by Mapp v. Ohio (1961)), with Adamson v. California (1947) (Black, J., dissenting). But whatever one's position on matters like those, it is hard to imagine how the Seventh Amendment might not be among those rights the Fourteenth Amendment secures against the States. Under this Court's contemporary case law, States must respect the First Amendment's Establishment Clause, the Second Amendment's right to bear arms, the Fifth Amendment's protections against self-incrimination and its Takings Clause, the Eighth Amendment's Excessive Fines Clause; the list goes on. On what account should the Seventh Amendment be treated differently? Surely, those who founded our Nation considered the right to trial by jury a fundamental part of their birthright. So much so that they cited its deprivation at the hands of colonial authorities as one of the reasons for breaking ties with England. After the Revolution, too, the new States promptly "restored the institution … to its prior prominence." "Indeed, [t]he right to trial by jury was probably the only one universally secured by the first American state constitutions." If the Federalists and Anti-Federalists disagreed about anything when it came to the civil jury trial right, it may have only been about whether the right was "the most important of all individual rights, or simply one of the most important rights." K. Klein, The Myth of How to Interpret the Seventh Amendment Right to a Civil Jury Trial, 53 Ohio St. L. J. 1005, 1010 (1992) (emphasis in original). Nor had much changed by the time of the Fourteenth Amendment's adoption. The right to a civil jury trial remained so deeply rooted that perhaps 97% of Americans at the time lived in States that guaranteed the right. See S. Calabresi & S. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868, 87 Texas L. Rev. 7, 116 (2008). In fact, the civil jury trial right may have enjoyed even more robust protection in American States than various other rights this Court has deemed fit for incorporation[:] … 35 out of 37 States expressly forbade excessive fines at the time of the Fourteenth Amendment's adoption[;] … 22 of the 37 States "explicitly protected the right to keep and bear arms" in 1868. That Bombolis lingers on the books not only leaves our law misshapen, it subjects ordinary Americans to a two-tiered system of justice. Take just one example. When a federal agency accuses someone of fraud and seeks civil penalties, the Seventh Amendment guarantees that individual the right to have the case heard by a jury of his peers—not by other agency officials who work side by side with those bringing the charges. But, thanks to Bombolis, state and local agencies pursuing similar charges and similar relief sometimes claim that they are free to dispense with the hassle of proving their case to a jury. For those in the government's crosshairs, that difference is no costless affair. No less than at the founding, civil juries today play a critical role in checking governmental overreach, holding public officials accountable, and ensuring a fair hearing for those who come before our courts. Bombolis may survive today, but this Court should confront its Seventh Amendment holding soon. A right "'of such importance,'" one that "'occupies so firm a place in our history,'" deserves no less. At this point, all the Bill of Rights has been applied via the Fourteenth Amendment to state and local governments, except that there are old precedents still concluding that the Fifth Amendment Grand Jury Trial Clause and the Seventh Amendment don't thus apply (and the Court has never considered the question as to the Third Amendment). The post Justice Gorsuch Argues that the Seventh Amendment Should Apply to the States appeared first on Reason.com.

I have an article titled "Viewpoint Diversity" Requirements as a New Fairness Doctrine forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. You can see the opening sections  drawing the Fairness Doctrine / viewpoint diversity requirements analogy here; here is a section that explains how one of the problems with the Fairness Doctrine is likely to also arise with viewpoint diversity requirements. [V.] Chilling Effect on Controversial Faculty Speech and on the Hiring of Controversial Faculty [A.] The Fairness Doctrine Yet just as Red Lion offers some support for ideological diversity conditions on government funding, so the critiques of the Fairness Doctrine apply to ideological diversity conditions as well. To begin with, the Fairness Doctrine tended to deter broadcasters from featuring controversial speakers, because having such speakers would require the broadcasters to provide free time to rivals. The Red Lion Court pooh-poohed that concern: At this point, … that possibility is at best speculative. The communications industry, and in particular the networks, have taken pains to present controversial issues in the past, and even now they do not assert that they intend to abandon their efforts in this regard…. [And] if present licensees should suddenly prove timorous, the Commission is not powerless to insist that they give adequate and fair attention to public issues…. But just five years later, in Miami Herald Publishing Co. v. Tornillo, the Supreme Court rejected a Florida statute that provided a right of reply to political candidates who were criticized in a newspaper, and it did so partly on chilling effect grounds: Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced. That ruling did not directly invalidate the Fairness Doctrine, of course,  because the Court had concluded in Red Lion that broadcasters should be treated differently from newspapers under the First Amendment. But Miami Herald's reasoning did reinforce the view that, even if the chilling effect concerns are "speculative," such speculation could be plausible and legitimate. Later criticisms of the Fairness Doctrine—including the FCC's argument for finally jettisoning it in 1987—relied heavily on this chilling effect concern, as the quote in the Introduction illustrates. And subsequent empirical work linked the 1987 repeal of the Fairness Doctrine to an increase in informational programming—suggesting, perhaps, that the past chilling effect is no longer merely "speculative." [B.] Viewpoint Diversity Rules and the Apolitical Safe Harbor Conjecture Viewpoint diversity requirements at universities are likely to have much the same chilling effect—and one that would indeed be viewpoint-based because it would be focused on controversial viewpoints. Here too this is speculation, but it's likely correct speculation, given the foreseeable political environment in which the rules are likely to be enforced. Let me start with what I call the Apolitical Safe Harbor Conjecture: government officials will rarely demand greater viewpoint diversity from universities where faculty members focus on the discipline rather than on politics. Imagine, for instance, an English literature department in which the faculty are just interested in English literature. They have viewpoints about Chaucer, Shakespeare, and Thackeray, but they say little about modern politics, in class or out. Or imagine a mathematics or chemistry department in which the faculty likewise focus on publicly uncontroversial (or maybe even publicly incomprehensible) features of their subject, rather than trying to draw controversial political connections between their views and, say, global warming or the disparate effects of chemical pollution on different communities. Such a department is unlikely to draw concerns about viewpoint diversity, whether from government officials or political activists. If a university is required to proactively audit the department despite the lack of such concerns, it will presumably issue a report saying that the department is fundamentally apolitical. (Indeed, even a law school or a public policy department might avoid much scrutiny from those who worry about viewpoint diversity if its faculty keep a relatively low political profile—at least compared to similar departments at other universities—and tend to avoid the most controversial topics.) To be sure, one could imagine a literal reading of "viewpoint diversity" under which such an apolitical department would be required to hire more ideologically vocal faculty. "Where are your vocal Marxists?" auditors might ask the apolitical English department. "Where are your vocal Objectivists?" "Where are your vocal adherents of left-wing or right-wing schools of literary criticism?" "Where," they might ask the Chemistry department, "are your advocates of a critical race theory approach to chemistry or chemistry education? You must hire more faculty like that." But this literal reading seems practically unlikely. Among other things, if the department's faculty aren't seen as political in the first place, there is likely not to be much pressure to introduce ideological components into fields that many legislators, administrators, faculty, alumni, parents, and students might see as quite properly apolitical. Indeed, people who object to lack of viewpoint diversity also often object, for plausible reasons, to departments that are unduly "politicized." There would likely be little pressure to create more viewpoint diversity by deliberately politicizing departments that are currently apolitical. One could also imagine a reading of viewpoint diversity under which the inquiry examines what the faculty believe deep down inside, regardless of whether their teaching or public commentary reflects that. For instance, one could review voter registration records or submit surveys asking faculty for their views on various political issues. {Beyond implicating the First Amendment rights of universities, such requirements might also implicate the First Amendment rights of professors. Hiring professors based on their party affiliation would usually be unconstitutional at a public university. The government pressuring private universities to hire professors based on their party affiliation would likewise generally be unconstitutional. Query whether the same would apply to party-balance hiring policies. } But here too I expect that the government and activists would place little pressure on a university where the faculty appear middle-of-the-road. For example, if 60% of the chemistry faculty are registered independent and offer generally centrist answers to survey questions, 20% are moderate Democrats, and 20% are centrist Republicans, the department will likely be safe from having to substantially change its hiring practices. And if that's correct, prospective faculty will have plenty of reason to register as independents and to give centrist answers. After all, not being able to vote in a Democratic or Republican primary—or in a Green or Libertarian primary—involves little tangible loss, while becoming more employable by controversy-averse departments involves great tangible gain. {Indeed, in states that have open primaries, voters might not have to register as party members at all.} Finally, one could imagine another literal reading of "viewpoint diversity" under which the government would evaluate the department based on its diversity of intra-disciplinary viewpoints. Under this reading, the English department would need to have a mix of different views about how to interpret texts or how to evaluate aesthetic qualities. There would need to be a mix of people who believe that poetry is best when rhymed and metered, and those who instead favor blank verse. Likewise, physics departments might need to have a mix of people with different views on the implications of quantum theory. Medical schools might need to have a mix of people with different views on the best ways to treat or prevent cancer or heart disease. This might be a sensible idea in principle, at least to some degree. Indeed, some departments probably already try to have some such mix of intra-disciplinary viewpoints. But again, it's fairly unlikely that there will be much government or public pressure for departments to insist on this as a primary hiring criterion. Many legislators and government officials might not even know the main intra-disciplinary rifts in various fields. And there will be considerable internal pressure for departments not to focus unduly on such intradisciplinary viewpoint diversity, given that there are so many other hiring criteria that might be necessary. A department might, for instance, reasonably insist more on a mix of subject matters than viewpoints, and within each subject (e.g., 20th-century English-language poetry) a small department might only have one hiring slot available. As a result, "viewpoint diversity" is likely to focus on political views and not on intradisciplinary views. [C.] The Risk Posed by Faculty with Controversial Views If having relatively apolitical faculty offers departments a safe harbor, then hiring faculty who are known to have more controversial views would jeopardize that safe harbor. Say a department has 20 tenured faculty who don't have any prominent political profile. (Most faculty members in most departments are indeed apolitical, at least in their professional lives.) Two retire, and the department has to decide among a pool of replacements, some of whom are likewise apolitical, but others are publicly known to be left-wing, whether based on their scholarship, their public commentary, or both. The department will likely feel some pressure to avoid hiring the visibly political candidates. Once it starts having prominent left-wing faculty, it will start to draw attention from critics who ask, "Where are the right-wing faculty to provide viewpoint diversity?" The presence of many non-left-wing apolitical faculty is unlikely to be much protection: Because the apolitical faculty are less noticeable in such debates than the political ones, a department can get a reputation as being highly skewed even from just a few controversial hires. Now this wouldn't be the end of the world, of course: The department could respond to critics by assuring them that it will then add some right-wing hires to provide diversity. But the important thing is that—if my Apolitical Safe Harbor Conjecture is correct—hiring prominently ideological faculty would cause trouble for the university: It would draw unwanted attention from government officials, and it would constrain future hiring—something no department likes. (After all, there might be only a small pool of hires with the suitably balancing viewpoints available, and they might not fit well with the department's curricular needs.) To be sure, the hypothetical department of 18 apolitical faculty and two left-wingers is actually more viewpoint-diverse than that of the 20 apolitical faculty (even if a department with 10 apolitical faculty and 10 with a broad range of political views would be even more viewpoint-diverse). But, for the reasons discussed in the previous subpart, the department with all apolitical faculty is going to draw many fewer objections of lack of viewpoint diversity. To borrow from the FCC's criticism of the Fairness Doctrine, "instead of promoting access to diverse opinions on controversial issues of public importance, the actual effect of the doctrine is to 'overall lessen[] the flow of diverse viewpoints to the public.'" Likewise, let's return to the 20-person department in which the faculty are apolitical in their professional lives. Say that five of them, motivated by some issue in the news that's related to their discipline, are considering publicly expressing themselves—for instance, in op-eds, congressional testimony, or a coauthored paper. That has long been understood as a proper role of university faculty: to apply their expertise to the problems facing their community, the nation, and the world, and to offer that application to the public. But say they're aware that their views are going to be politically controversial and will cause them to be publicly labeled as "left-wing" or "right-wing." For example, some of the chemistry department faculty are considering speaking out on matters related to global warming, "environmental justice," or the need for controversial international treaties to deal with acid rain or fossil fuel use. They—and their Dean or University President—will realize that this expression will start to draw attention to their department, and that it may produce questions about whether the department is ideologically skewed and thus in need of more viewpoint diversity. The foreseeable result is that the professors will be reluctant to express controversial views, whether because of pressure from supervisors or because of their own worries about such political pushback. {And this chilling effect can remain even if the federal government takes a light hand in enforcing any viewpoint diversity mandates, for instance, by carefully screening public complaints and acting only on a few of the ones that it receives. See 1985 Fairness Report (likewise concluding that "there is a substantial danger that many broadcasters are inhibited from providing controversial issues of public importance by operation of the fairness doctrine," even if "the Commission requests broadcasters to respond to only a small number of the complaints it receives annually").} Consider, by way of comparison, what the FCC said in 1987 in rejecting the Fairness Doctrine: Each time a broadcaster presents what may be construed as a controversial issue of public importance, it runs the risk of a complaint being filed, resulting in litigation and penalties, including loss of license. This risk still exists even if a broadcaster has met its obligations by airing contrasting viewpoints, because the process necessarily involves a vague standard, the application and meaning of which is hard to predict…. [E]ven if [the broadcaster] intends to or believes that it has presented balanced coverage of a controversial issue, it may be inhibited by the expenses of being second-guessed by the government …. Further, in view of its dependence upon the goodwill of its audience, a licensee may seek to avoid the possible tarnish to its reputation that even an allegation that it violated the governmental policy of "balanced" programming could entail. Furthermore, … the doctrine inherently provides incentives that are more favorable to the expression of orthodox and well-established opinion with respect to controversial issues than to less established viewpoints…. [Many of the broadcasters] who had been denied or threatened with the denial of renewal of their licenses on fairness grounds … [had] espoused provocative opinions that many found to be abhorrent and extreme, thereby increasing the probability that these broadcasters would be subject to fairness doctrine challenges. Change a few of the words, and the analysis would apply much the same way to university viewpoint diversity requirements. The post "Viewpoint Diversity" Requirements as a New Fairness Doctrine: Chilling Effect on Controversial Faculty Speech appeared first on Reason.com.

10/14/1911: Justice John Marshall Harlan I dies. Justice John Marshall Harlan I The post Today in Supreme Court History: October 14, 1911 appeared first on Reason.com.

Blessed are You, L-rd our G‑d, King of the Universe, who has granted us life, sustained us and enabled us to reach this occasion.

The Fourth Amendment returns.

There is no moral equivalence between the hostages released by Hamas and the prisoners released by Israel.

An interesting Reuters report on the new locus of lawsuits challenging the Trump Administration.

I have an article titled "Viewpoint Diversity" Requirements as a New Fairness Doctrine forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. You can see the opening sections  drawing the Fairness Doctrine / viewpoint diversity requirements analogy here; here is a brief section that dismisses one argument against viewpoint diversity requirements: [IV.] Regulators' Motivations [It does not matter for purposes of my analysis] that modern viewpoint diversity mandates come out of a desire to promote certain viewpoints (today, conservative ones) that their backers think are unfairly discriminated against. Many regulations stem from perceived problems caused by particular groups that express particular views. The 36-foot bubble zone around abortion clinics in McCullen v. Coakley, for instance, was enacted in response to speech that expressed anti-abortion views. The bubble zone disproportionately affected anti-abortion speech. The legislators who voted for it were likely abortion rights supporters. But the Court treated the restriction as viewpoint-neutral and even content-neutral because the government's stated purposes were sufficiently neutral: protecting safety and preventing obstruction of passageways. One could say the same of other restrictions, such as the residential picketing ban in Frisby v. Schultz, which was enacted in response to picketing outside an abortion provider's home, or the bans on picketing near funerals, which appear to have been prompted by the actions of the Westboro Baptist Church. Likewise, a stated purpose of protecting the "widest possible dissemination of information from diverse and antagonistic sources" should be seen as sufficiently viewpoint-neutral as well. And that would be so even if Republican government officials considered the underlying imbalance in dissemination as skewed against Republicans. To be sure, Moody v. NetChoice, LLC, rejected the government's attempt to provide ideological balance on social media platforms by restricting the platforms' ability to curate their news feeds. But this involved direct regulation of privately funded speakers. The Court didn't speak to whether the government may try to promote viewpoint diversity through conditions on government spending. I will argue below that viewpoint diversity mandates are necessarily viewpoint-discriminatory in operation. But the argument will not turn on the likelihood that the backers were likely concerned about the underrepresentation of viewpoints that the backers favored and thought had been treated unfairly. The post "Viewpoint Diversity" Requirements as a New Fairness Doctrine: Regulators' Motivations appeared first on Reason.com.

The Trump Administration’s threats to revoke broadcasters’ licenses and President Trump’s lawsuits against media companies implicate important, and contested, Supreme Court First Amendment doctrines. Should these actions affect how courts and scholars analyze these doctrines?

A set of interviews with the late justice is now available

I have this article forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. Here are the opening sections: Introduction The Trump Administration has been trying to attach "viewpoint diversity" mandates to federal funding, especially for universities. This Essay analyzes the parallels between these new proposals and a much older one: the Fairness Doctrine. The arguments for both are similar, though of course not identical: The claim is that, when the government is * distributing benefits—whether access to scarce spectrum, or scarce grants and other federal funds— * it may attach viewpoint-neutral conditions that aim to * make the benefits promote a wide range of opinion, rather than leaving it entirely to the beneficiary to choose which opinions it promotes. "It is the purpose of the First Amendment," the theory goes, "to preserve an uninhibited market-place of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee." Lawyers who want to argue in favor of the constitutionality of viewpoint diversity mandates may thus get some help from Red Lion Broadcasting v. FCC, which upheld the Fairness Doctrine against constitutional challenge. But the arguments against the Fairness Doctrine—ultimately accepted by the Reagan Administration's FCC in 1987, when it rejected the Doctrine—are also powerful arguments against viewpoint diversity mandates. Both the Fairness Doctrine and viewpoint diversity mandates tend to deter the targeted institutions (whether broadcasters or universities) from allowing controversial speech, or hiring or admitting controversial speakers. And both, unlike nondiscrimination mandates, are inevitably viewpoint-discriminatory in application. To quote the FCC's 1987 decision, * "enforcement of the [Fairness] doctrine acts to inhibit the expression of unpopular opinion"; * "it places the government in the intrusive role of scrutinizing program content"; * "it creates the opportunity for abuse for partisan political purposes"; and * "it imposes unnecessary costs upon both broadcasters and the Commission." Much the same, I will argue below, is likely to be true of government-imposed viewpoint diversity mandates. If one agrees with the 1987 FCC that the Fairness Doctrine violates the First Amendment, one should say the same of the viewpoint diversity mandates. And even if one believes that Red Lion was correct in upholding the Fairness Doctrine, but agrees with the FCC that the result undermined the marketplace of ideas more than promoting it, one should take the same view of the viewpoint diversity mandates. In what follows, I will begin (Parts I–IV) by laying out the Fairness Doctrine and proposed university viewpoint diversity mandates, and noting the analogies between how the Doctrine and the mandates have been justified. I will then discuss in Parts V–VIII how some of the problems created by the Fairness Doctrine, which ultimately led to its repeal, are likely to similarly plague the university mandates. Finally, Parts IX–X will discuss the limits of the analogy, and note how viewpoint nondiscrimination rules as well as narrow viewpoint diversity conditions on specific funding programs may avoid some of those problems. [I.] The Fairness Doctrine and Red Lion Broadcasting The Fairness Doctrine was part of American broadcasting law from 1938 to 1987, when it was abolished by the FCC. In essence, the Doctrine required "that broadcasters, while permitted to editorialize, must seek a reasonably balanced presentation of all viewpoints on public issues of controversial importance." Modern law would recognize this as * a speech compulsion, since broadcasters had to carry speech they would rather not, and * a content-based burden on the broadcasters' speech, since including "controversial" messages would trigger an obligation to supply speech that would "balance[]" those messages. But in Red Lion, the Court upheld this mandate. The Court stressed that broadcasters were able to broadcast because they enjoyed a tremendous advantage—a government-supplied license, which the overwhelming majority of would-be speakers lacked. Broadcasters had "no constitutional right" to such a license in the first place: They got the license because the government chose to provide it. And when the government provided this benefit, it could require that the beneficiary "share [the benefit] with others": There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves. This might reduce the speech opportunities of broadcasters, but it would serve public discussion more broadly: [T]he Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium…. It is the purpose of the First Amendment to preserve an uninhibited market-place of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee…. It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. And such government-imposed requirements, the argument went, would properly prevent "station owners and a few networks" from having "unfettered power … to communicate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agreed": There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. "Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests." Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airways anything but their own views of fundamental questions. [II.] Calls for Viewpoint Diversity in Universities Now let us consider the Trump Administration's April 2025 demand to Harvard, sought as a condition of Harvard continuing to get federal funds: By August 2025, the University shall commission an external party, which shall satisfy the federal government as to its competence and good faith, to audit the student body, faculty, staff, and leadership for viewpoint diversity, such that each department, field, or teaching unit must be individually viewpoint diverse…. Harvard must abolish all criteria, preferences, and practices, whether mandatory or optional, throughout its admissions and hiring practices, that function as ideological litmus tests. Every department or field found to lack viewpoint diversity must be reformed by hiring a critical mass of new faculty within that department or field who will provide viewpoint diversity; every teaching unit found to lack viewpoint diversity must be reformed by admitting a critical mass of students who will provide viewpoint diversity. The Administration's October 2025 proposed "Compact for Academic Excellence in Higher Education" also calls for universities to promote a "broad spectrum of ideological viewpoints." The Compact states, in relevant part, that funding recipients must "commit themselves" to "fostering a vibrant marketplace of ideas on campus," to engaging in a "rigorous, good faith, empirical assessment of a broad spectrum of viewpoints among faculty, students, and staff at all levels," to "sharing the results of such assessments with the public," and to "seek[ing] such a broad spectrum of viewpoints not just in the university as a whole, but within every field, department, school, and teaching unit." It also states that "A vibrant marketplace of ideas requires an intellectually open campus environment, with a broad spectrum of ideological viewpoints present and no single ideology dominant, both along political and other relevant lines." It remains to be seen whether the Compact proposal demands enforceable viewpoint diversity mandates, or whether it sets forth viewpoint diversity as an aspirational goal, the way one might set "excellence," "openmindedness," "fairness," and the like as aspirational goals. But the April 2025 letter suggests that the Administration may insist that the viewpoint diversity mandate would be seen as enforceable and not just aspirational. To be sure, conditions on government funding must generally be viewpoint-neutral, at least where—as with the bulk of federal money that indirectly goes to universities—they are aimed at promoting a diversity of private views (rather than a programmatic governmental message). Even when it comes to government funding, Viewpoint discrimination is … an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction. Although acknowledging that the Government is not required to subsidize the exercise of fundamental rights, … we [have] reaffirmed the requirement of viewpoint neutrality in the Government's provision of financial benefits. This requirement of governmental viewpoint neutrality is especially strong when it comes to universities: Viewpoint-based rules involve governmental examination and classification of ideas, which would lead to a "corollary" "danger … to speech from the chilling of individual thought and expression," a "danger [that] is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition." But presumably the argument in favor of viewpoint diversity requirements would be that they do not prefer particular viewpoints. [III.] The Common Links So far, we can see close analogies between the arguments in favor of the Fairness Doctrine and proposed viewpoint diversity mandates attached to government funding for universities (or other institutions): * The government is providing a tremendously valuable underlying benefit, whether a broadcast license or massive funding. * This benefit gives the beneficiary much greater power to speak: It allows broadcasters to speak via the airwaves or promotes universities' speech via their faculty members (in classrooms and outside them). * The government argues that it wants to ensure that "views and voices which are representative of [the] community" would not "be barred" from the airwaves or the university. * The government promotes this diversity to increase opportunities to speak, and not just to prevent situations where some voices are completely barred altogether from all opportunities to speak: The Fairness Doctrine required each broadcast station to provide balanced coverage, regardless of whether other stations in the same market offer a rival voice. The Doctrine also aimed to provide such balance as "to all discussions of issues of importance to the public" and not just on a few. University viewpoint diversity views would likewise apply to each department and presumably would require diversity on many issues. * The government argues that it is acting "to preserve an uninhibited market-place of ideas" and to prevent "monopolization of that market," including by "private" recipients of government benefits, and more broadly to avoid "unlimited private censorship operating in a medium not open to all." To be sure, Red Lion discussed "the scarcity of radio frequencies." That scarcity created the need for licensing, so as to prevent "the chaos which ensued from permitting anyone to use any frequency at whatever power level he wished." Broadcast licensees also received not just billions of dollars in grants, but rather the legal right to broadcast—a right that nonlicensees entirely lacked. One might thus distinguish Red Lion as applying only in situations where the government is indeed creating a legal "monopolization" of at least particular frequencies, and thus making the medium "not [be] open to all." Indeed, the Court has largely cabined Red Lion to the specific context of over-the-air radio and television broadcasting, and some Justices have cast doubt on it even there. Red Lion thus wouldn't be an entirely solid precedent for supporters of ideological diversity conditions to rely on. This having been said, it's probably the strongest such precedent, and the similarities are more significant than the differences. First, in both situations, the government gives institutions massive benefits, which give the beneficiaries vastly greater access to listeners, viewers, faculty, and students. Someone who lacks a broadcast license can still try to reach an audience through, say, leafletting or organizing public speeches, but those options will be much less effective at reaching a mass audience. Likewise, a university that doesn't receive federal funds can still try to attract faculty and students, but that will be much harder to do. Second, in both situations, the government's goal is to make sure that those benefits don't unduly skew the "market-place of ideas" in favor of the views favored by the beneficiary's operators. Indeed, scarcity of spectrum slots is a close cousin of the limited availability of federal grants, which are often distributed on a highly competitive basis, and which disproportionately go to elite institutions. Just as "100 persons [may] want broadcast licenses [when] there are only 10 frequencies to allocate, so 100 universities may want federal grants when there is only funding for 10 grants to go around. Defenders of the viewpoint diversity requirements can argue that when the government is distributing taxpayer funds this way, it is entitled to try to make sure that the funds end up promoting a "widest possible dissemination of information from diverse and antagonistic sources." "[T]he First Amendment," Red Lion reasoned, "confers no right on licensees … to an unconditional monopoly of a scarce resource which the Government has denied others the right to use." "It does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern." Likewise, the argument would go, the First Amendment confers no right on universities to channel scarce government-provided funds—which the Government denies to many other grant applicants—into promoting a narrow range of university-preferred views. And "[i]t does not violate the First Amendment to treat [universities] given the privilege of using scarce [federal grants] as proxies for the entire community, obligated to [promote a diversity of views on] matters of great public concern." Finally, the government may also assert a non-scarcity-related rationale for a viewpoint diversity mandate as well: Because the government is spending funds, it can attach conditions that aim to ensure that the funds are spent productively. And it seems at least plausible that a university department that has more viewpoint diversity would, all else being equal, produce better research and teaching, by reducing the dangers of echo chambers and other forms of groupthink. The post "Viewpoint Diversity" Requirements as a New Fairness Doctrine appeared first on Reason.com.

As I noted earlier this morning, Friday's Report and Recommendation in Garrett v. City Univ. of N.Y. (S.D.N.Y.) (written by Magistrate Judge Robert Lehrburger) discusses the limits the First Amendment imposes on "hostile work environment harassment" law (as well as the similar rules as to education, public accommodation, and housing). The report concludes that the First Amendment generally protects material on matters of public concern that isn't directly targeted to particular offended people based on their religion, race, sex, etc., but that other speech and conduct that is severe or pervasive enough to create a hostile work environment based on those attributes may be actionable. The opinion is long, so I've divided it into parts. Another post discusses the items that the court concluded weren't protected by the First Amendment, at least assuming plaintiff's allegations were correct; the court allowed the case to go forward based on them. This post discusses the items that the court concluded were protected by the First Amendment and couldn't themselves form part of the harassment case (though they might bear indirectly as evidence of other factors, such as CUNY's motive); I've marked some especially noteworthy passages in bold: A good deal of what Garrett complains about is speech that involves matters of public concern and falls outside the scope of Title VII. In making this determination, the Court need not circumscribe the heavily contested boundary between sincere political debate on the Israel-Palestine conflict and expressions of religious or ethnic hatred. That question is better left for others. The First Amendment's sweep is broad, and the application of Title VII can be resolved without opining on these issues. {The Court's analysis should not be understood as discrediting any emotional distress that Garrett has experienced as a Jewish person at CUNY. Political speech can be ugly and painful but remain protected under the First Amendment and outside the scope of Title VII. See Snyder v. Phelps (the First Amendment sometimes immunizes "hurtful speech on public issues [from liability] to … [avoid stifling] public debate").} … [1.] Campus Protests The Complaint alleges "constant harassing [and antisemitic] protests" on Hunter's campus following October 7, 2023. In general, "exposure to" peaceful protests on matters of public concern—regardless of their offensive content, disruptive nature, or technical "violat[ion of] … campus rules"—"without more, does not amount to harassment." Landau (observing "one goal of public protests is to stir strong feelings on the part of passersby"); Gartenberg I (finding not actionable a "walkout" and protest where demonstrators, many with their faces covered, chanted controversial anti-Israel slogans). This includes the "anti-Israel protest[s]" in the Faculty Senate and unspecified protests in other unauthorized campus locales. The Faculty Senate protests, for example, were reasonably directed toward public debate, especially considering the Faculty Senate is CUNY's principal governance body and, thus, an "obvious center for protest." As the court in Gartenberg observed, however, even once-peaceful protests may deteriorate into actionable harassment when, for example, protestors begin targeting individuals with "threatening or humiliating conduct." The Court will now consider [which] of the CUNY protests did so…. Garrett's effort to liken CUNY's "Day of Rage" protest to the Gartenberg library incident … is unavailing. Though the protest's title and CUNY's response (suspending campus activity) demonstrate the protest's "inflammatory and potentially dangerous nature," the Complaint is devoid of allegations regarding what, if any, actionable discriminatory conduct ensued at the protest. Contrary to Garrett's suggestion, Title VII cannot be interpreted as requiring CUNY to preemptively "shut[] down" a lawful protest based on its professed viewpoint. See R.A.V. v. City of St. Paul (1992) ("The First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed"); Street v. New York (1969) ("It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers"); University of Maryland Students for Justice in Palestine v. Board of Regents of the University System of Maryland (D. Md. 2024) (public university's viewpoint-based decision to revoke pro-Palestinian group's permission to hold a peaceful demonstration on October 7, 2024, was likely unconstitutional "even if [the university] … did anticipate on-campus turbulence")…. [T]he Complaint [also] describes protestors wielding signs with threatening and violent imagery, including "blood dripping from the Star of David and other Jewish symbols." The signs—like almost any message distilled to the size of a protest placard—may have several meanings, intended or not. The Star of David with blood dripping, for example, may express the notion that Israel, whose flag includes the symbol, has proverbial "blood on its hands." Alternatively, blood dripping from a Star of David could be "construed as a genuine threat targeting" Jews, including Garrett, who identify with the symbol. At the same time, the mere display of signs at a public protest is a "generally accepted method of communication," suggesting it cannot constitute harassment. Gartenberg I; see also R.A.V. (distinguishing between "cross burning … directed … to a single African-American family trapped in their home …, a crude form of physical intimidation" and "[b]urning a cross at a political rally [which] would almost certainly be protected expression") (Stevens, J., concurring). In her opposition, Garrett notes that Gartenberg found actionable certain "[s]igns denigrating Jews in Israel." The actionable signs in Gartenberg, however, "defac[ed] the windows of a main [Cooper Union] building" and were thus an example of the "extremely serious" graffiti and vandalism which covered the school's campus. When demonstrators "displayed some of the same signs" at a peaceful protest "on the sidewalk outside the [same Cooper Union building]," the Gartenberg court held that the protest was not actionable harassment. Gartenberg II. The same principle applies here. {At oral argument, counsel for Garrett suggested the signs may amount to incitement and thus "fall outside the First Amendment rubric altogether." Not only is this argument—being "raised for the first time at oral argument"—waived, but it also has no merit. The First Amendment incitement doctrine is narrow, encompassing only speech which "is directed to inciting or producing imminent lawless action and is likely to" do so. Brandenburg v. Ohio (1969) (distinguishing incitement from "mere advocacy" of illegal conduct, including violence against racial minorities); see Million Youth March, Inc. v. Safir (S.D.N.Y. 1999) ("messages of hate and [calls for violence] conveyed by several of the speakers at last year's rally" unlikely to amount to incitement, regardless if the rally did, hours later, descend into disorder). The Complaint, which fails to elaborate on the context in which the signs were displayed, includes no suggestion that the signs meet the Brandenburg standard. See Hess v. Indiana (1973) ("since there was no evidence or rational inference from the import of the [challenged] language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished" as incitement).} Both CUNY, and the Government in its Statement of Interest, observe that CUNY could, consistent with the First Amendment, prohibit substantially disruptive speech on campus, possibly by enforcing CUNY's public order policies [citing Tinker v. Des Moines Independent Community School District (1969)]. That observation, even if correct {See Radwan v. Manuel (2d Cir. 2022) (noting Tinker may have limited application in higher education); Students for Justice in Palestine v. Abbott (W.D. Tex. 2024) (recognizing Tinker may permit universities to curtail speech which would create a "substantial disruption in a university environment," but noting the speech restrictions cannot be unnecessarily viewpoint-based)}, is beside the point; there is a distinction "between what … [an] employer can do to [to suppress certain speech] and what the government can force the employer to do." Volokh at 1817 (emphasis added); see also Gartenberg II ("the fact that schools have ways of addressing harassment … does not mean that such expression is unlawful harassment in the first place"). Certainly, there are instances where a university—acting as an employer under Title VII—may have a responsibility to enforce its policies and act on disruptive speech because of its hostile or abusive nature; that does not mean, however, that the speech is harassing or shorn of First Amendment protection merely because it is disruptive or violates a university policy. {University policies—such as time, place, or manner restrictions on protest—may be probative of whether a means of communication is "generally accepted," and thus what a reasonable person would understand as harassment. An employer's policy alone, however, does not define the boundaries of Title VII. Here, with the exception of the demonstrations addressed above (see, e.g., Compl. ¶¶ 64 (alleging protestors violated Faculty Senate rules), 88 (alleging Hillel protest at campus entrance violated school's Public Order Policy), Garrett's description of protests at Hunter that violated campus policy regarding demonstrations are conclusory and undifferentiated. (See e.g., Compl. ¶ 8 ("Regularly, Plaintiff faced an onslaught of antisemitic protests conducted in blatant defiance of CUNY Hunter's policies governing demonstrations").) The Court cannot extrapolate or reasonably infer from these generalized allegations that every, or any specific, demonstration among the "constant harassing protests" was conducted in a non-generally accepted manner and constituted harassment. See Gartenberg I (declining to find actionable harassment where general allegations included "no factual support for its assertion that any of [the protest] messages were intended to target particular Jewish students, as opposed to efforts to communicate a political message to the Cooper Union community at large").} [2.] Israelism And The History Club The screening of a film and a student group's decision to read "works of known antisemitic writers" are not actionable. These episodes involve the expression of viewpoints through conventional forms of academic and political discourse. See Gartenberg I (requiring students to attend a speech criticizing Israel's "weaponization of language" is "unquestionably a protected exercise of [the university's] academic freedom")…. [A] rabbi was invited to campus as a "pro-Israel speaker … [to] participate in [the film's] post-screening discussion." In other words, the rabbi was invited to participate in a debate on a matter of public concern. A professor's demand that the rabbi answer a question that he professed he could not answer, and the crowd's disagreement, even if rudely expressed, are reasonably understood as contributing to that debate. See Rodriguez v. Maricopa County Community College District (9th Cir. 2010) ("doubt[ing] … college professor's expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment and justify the judicial intervention"). Disagreement on an issue of public concern in an academic setting—even if emphatically expressed—is not actionable harassment. See id.; Landau ("Even if offensive and received by some as antisemitic, the lecture was community at large"). [3.] Flyers, Open Letters, Mass Emails, And Social Media Posts The dissemination of flyers, open letters, mass emails, and social media posts on matters of public concern that were not targeted at any particular individual qualify as core political speech outside the scope of Title VII. Rodriguez (finding "racially-charged emails" sent to college distribution list were non-actionable speech and "the effective equivalent of standing on a soap box in a campus quadrangle and speaking to all within earshot; not conduct targeted by harassment laws"); Landau ("Peaceful distribution of political materials [on a college campus] is a standard method of political expression directed at the public"); see also Kopmar ("Resolution [criticizing Israel with intense and provocative rhetoric] constitutes pure political speech" outside the scope of Title VII). The following thus do not constitute actionable harassment even though the content may be antisemitic and hateful: social media posts by student organizations which, inter alia, purported to "debunk[] mass rape by Hamas on October 7th" and called on followers to "escalate by any means necessary"; an open letter "praising the … Hamas terror attack"; unspecified "antisemitic stickers" found on campus; and, flyers which supported the Boycott, Divestment and Sanctions movement and claimed "Israel is a state built to put Jews over all others." See Gartenberg (allegations about protest slogans, flyers, and other expressions related to the ongoing Israeli-Palestinian conflict were not actionable because the complaint "offers no factual support for its assertion that any of these messages were intended to target particular Jewish students, as opposed to efforts to communicate a political message to the [university] community at large"); Landau (finding not actionable communications calling for the "dismantling of the apartheid settler colonial state of Israel, by all means necessary")…. [T]he photographs of Garrett published by the student group on social media [also cannot form part of the basis for liability.] The Complaint fails to describe the nature of or context surrounding the photographs. (See Compl. ¶ 98 (alleging only that "[t]he group also published photographs of Plaintiff on social media").) Were the photographs posted in connection with commentary? If so, what was the content of that commentary? How was Garrett depicted in the photographs? Were the photographs altered in any way? Without that context, the Court lacks a basis to reasonably infer the social media post or posts were targeted harassment, an expression on matter of public concern, or something else altogether. Such vague pleading does not suffice…. {Although the Court finds some of the incidents and conduct, as alleged by Garrett, do not qualify as actionable harassment or, as discussed below, imputable to CUNY, that does not mean they disappear from the case. First, those events, particularly depending on CUNY's response or lack of response to them, may still be probative of discriminatory intent. See Gartenberg I; see generally Wisconsin v. Mitchell (1993) ("The First Amendment … does not prohibit the evidentiary use of speech … to prove motive or intent"). Second, discovery or amended pleading may provide information that would transform a non-actionable or non-imputable event into one that is actionable and imputable.} … The post What Alleged Behavior Was Constitutionally Protected Against Harassment Liability in CUNY Hunter College Case appeared first on Reason.com.

As I noted earlier this morning, Friday's Report and Recommendation in Garrett v. City Univ. of N.Y. (S.D.N.Y.) (written by Magistrate Judge Robert Lehrburger) discusses the limits the First Amendment imposes on "hostile work environment harassment" law (as well as the similar rules as to education, public accommodation, and housing). It concludes that the First Amendment generally protects material on matters of public concern that isn't directly targeted to particular offended people based on their religion, race, sex, etc., but that other speech and conduct that is severe or pervasive enough to create a hostile work environment based on those attributes may be actionable. The opinion is long, so I've divided it into several parts. Another post discusses the alleged behavior that the court concluded were protected by the First Amendment, while this post discusses the alleged incidents that are "actionable in the sense that they are within the reach of Title VII and not merely political speech protected by the First Amendment": [1.] Accepting all allegations as pled and drawing all reasonable inferences in Garrett's favor, the anti-Hillel protest plausibly crossed the line into targeted harassment. President Kirschner described the protest as "reach[ing] a new level of aggression by targeting Hillel" and "personal[ly] targeting Jewish students." Many students—as well as Garrett—felt "compelled" to leave campus.   While protestors are free to criticize Hillel, or any campus organization for that matter, with strong and even offensive language, antidiscrimination law does not permit an employer to stand idly by when, as here, protestors "isolated or targeted individual[s]" in the protected class. Landau. To be sure, discovery may show the protest did not involve threatening or humiliating targeted conduct. But given President Kirschner's own description of the event as "personal[l]y targeting" Jewish students and reaching a "new level of aggression" that compelled students and Garrett to leave campus, the Court concludes that Garrett has, at this early stage, plausibly pled actionable harassment from the Hillel protest. {Generally, a plaintiff cannot transform political speech into actionable harassment by alleging, in a conclusory fashion, that the protected expression was targeted or otherwise actionable. See Gartenberg ("conclusory suggestion that [certain] speech included [actionable] 'threats of violence' … does not plausibly allege that any of this expressive conduct constituted" harassment). Here, however, the Complaint relies on Hunter President Kirschner's own account of the event.} [2.] Garrett alleges a student was "physically assaulted, as his pro-Israel sign was forcibly taken from him" at one protest.  This allegation is actionable because the "First Amendment does not protect violence." NAACP v. Claiborne Hardware Co. (1982). [3.] [T]he Complaint … alleges that a student grabbed a microphone from the rabbi's hand [at the Israelism screening, to which the rabbi had been invited as a debater], and that the rabbi was "led away … for his safety with security by his side" as the "crowd … hurl[ed] abuse at him" following the panel. (Compl. ¶¶ 74-75 (describing the incident as a "mob attack"); see also Opp. at 1 (describing the rabbi being "accosted" by students).) Making all reasonable inferences in Garrett's favor, the rabbi's treatment at CUNY went beyond political disagreement. The use of physical force by a student to take the microphone from the rabbi and the need for security to escort the rabbi from the auditorium for his safety is suggestive of actionable harassment. Cf. Gartenberg I (finding "mob" attack on library actionable where there was "compelling support for [plaintiffs'] allegation that this incident was threatening or humiliating," including that some Jewish students were escorted away from the scene by security). [4.] The Complaint plausibly alleges three episodes in which individual Jewish professors, including Garrett, and students at CUNY were subject to targeted antisemitic commentary: the Lecturer's in-class question singling out a Jewish student about how she felt "about 'the genocide in Gaza'"; Professor Soyer's remark questioning Garrett's faith and mentioning "rich Jews" to two colleagues; and a student's email to a Jewish professor comparing Jews to "Satan worshipers."  {A professor's discussion and questioning of students about controversial subjects, including asking what they think about genocide and what they may consider genocide, may well be perfectly appropriate and protected academic fodder. Here, however, the Complaint insinuates that the Lecturer singled out a Jewish student in an accusatory manner.} Each of these incidents falls within the zone of targeted speech that may be deemed harassment rather than protected political speech. See, e.g., Novio v. New York Academy of Art (S.D.N.Y. 2017) (offensive "comments in class directed at [student]"). The student group's email making a "false and defamatory" claim that Garrett "potentially disseminated decontextualized clips of students … to deliberately portray [them] as antisemites" is similarly actionable.  CUNY correctly points out that the email was directed to the community at large through a generally accepted method of communication and was not physically threatening. However, other aspects of the communication suggest targeted harassment. First, the email specifically mentions Garrett and, given the wide distribution, could well be humiliating. That alone, however, would likely be insufficient: the First Amendment provides speakers with latitude to criticize others, particularly authority figures, in the context of a genuine public debate. See Hustler Magazine, Inc. v. Falwell (1988) ("political debate encouraged by the First Amendment is bound to produce speech that is critical of … public figures"). Garrett's allegations, however, go one critical step further. Although couched in terms of what "potentially" happened, the student group's statement about Garrett was allegedly "false and defamatory," thus diminishing the constitutional protection it might otherwise receive and exacerbating its humiliating effect. See Landau ("outlandish claim that [student-plaintiff's statement] … was a contributing factor to the tragic shooting of a Palestinian Haverford student" made in widely-circulated document was actionable under Title VI); Jew v. University of Iowa (S.D. Iowa 1990) ("Free speech and academic freedom considerations might preclude Title VII liability if the … rumors [that a professor was having a sexual affair with her department head] were true") [what a name for a relevant case, though it appears the plaintiff there was likely not actually Jewish -EV]]; see generally Hustler ("False statements of fact are particularly valueless" to public debate and may, in certain circumstance, give rise to civil liability). Put another way, circulating false accusations about an employee that implicate a protected characteristic can be actionable harassment. {The Complaint fails to specify exactly how the student group's caveated accusation was "false and defamatory."  For instance, did Garrett not disseminate clips of students? Did she disseminate clips without the necessary context? Or, perhaps discovery will show that the statement was not false at all. Still, for purposes of the instant motion, the Court must accept the allegations contained in the Complaint as true and make all reasonable inferences in Garrett's favor.} [5.] CUNY does not contest that the swastikas graffitied on posters commemorating Jewish hostages in Gaza are actionable under Title VII. Similarly, CUNY does not contest the actionability of its refusal to provide security at Garrett's events or to permit the school's Jewish community to light menorahs on campus. The Magistrate Judge also recommended that the court find that CUNY was potentially liable for some of the incidents: Employers are presumptively liable for the [harassing] actions of a supervisor. Where the harasser is not a supervisor but rather a co-worker or non-employee, a negligence standard applies. That is, the non-supervisor's conduct may be imputed to the employer where "the employer's own negligence permits or facilitates [the] discrimination." You can read the full opinion for more detail on where the report concluded such supervisor actions, or CUNY negligence, was present. The Magistrate Judge also concluded that "the remaining allegations plausibly establish a severe or pervasive hostile work environment" (the threshold that must be met to show actionable harassment); again, details on that can be found in the opinion. And the judge concluded that Garrett had adequately alleged that the environment was hostile to her because she was Jewish: CUNY asserts that the alleged conduct—actionable or otherwise—was not "prompted by plaintiff's religion" and "instead rooted in the conflict between Israel and Hamas." … [But t]he Complaint clearly, repeatedly, and plausibly alleges that the challenged conduct was hostile and discriminatory to Garrett (and other Jews) because of her religion, and "reflected … attack[s] on [Garrett] as a [Jew]." See also Gartenberg I (finding similar alleged conduct was, at least plausibly, "particularly offensive to Jews and intended to provoke their reaction as Jews"). For example, CUNY's refusal to permit a menorah lighting on campus, "a cherished Jewish tradition," while permitting a Ramadan event, as well as its failure to provide security for Garrett's events on Jewish culture, would be uniquely offensive and plausibly discriminatory to Garrett and other Jews at CUNY who hoped to celebrate their religion and heritage. And, obviously, antisemitic remarks directed at or regarding Garrett and other Jewish faculty members, and swastikas graffitied across campus created an environment that was hostile "because of" Garrett's protected characteristic…. The post What Alleged Behavior Could Lead to Liability for Anti-Semitic Harassment in CUNY Hunter College Case appeared first on Reason.com.

I've long been interested in what limits the First Amendment imposes on "hostile work environment harassment" law (as well as the similar rules as to education, public accommodation, and housing); I wrote my 1992 law student article on the subject, and have monitored it since. Friday's Report and Recommendation in Garrett v. City Univ. of N.Y. (S.D.N.Y.) (written by Magistrate Judge Robert Lehrburger) offers an interesting analysis, and one that I think is generally sound (even if I would quibble with a few details). The opinion is long, so I've divided it into several parts; this part sets forth the general legal framework, and later parts will talk more about the details of the specific CUNY case. In the wake of the October 7, 2023 terrorist attack in Israel, political unrest embroiled City University of New York's ("CUNY") Hunter College ("Hunter") campus. Dr. Leah Garrett, a Jewish professor who chairs the Jewish Studies department at Hunter, asserts that events during that period perpetuated antisemitism on campus and created a hostile work environment in violation of Title VII …. Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Proscribed conduct includes subjecting employees to "harassment that, while not affecting economic benefits, creates a hostile or offensive working environment." To state a hostile work environment claim under Title VII in this circuit, "a plaintiff must plead facts that would tend to show that the complained of conduct: (1) is objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's [protected characteristic]." … Anti-discrimination laws, including Title VII, do not operate in a vacuum. As courts and commentators have recognized, these laws may run up against the First Amendment and its protection of free expression. See, e.g., Saxe v. State College Area School District (3d Cir. 2001) ("anti-discrimination laws are [not necessarily] categorically immune from First Amendment challenge"); DeAngelis v. El Paso Municipal Police Officers Association (5th Cir. 1995) ("Where pure expression is involved, Title VII steers into the territory of the First Amendment"); Richard Fallon, Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn't Bark, 1994 Sup. Ct. Rev. 1, 17-19 (1994) (discussing "First Amendment Boundaries" on Title VII hostile environment claims); Rodney A. Smolla and Melville B. Nimmer, Smolla & Nimmer on Freedom of Speech § 13:17 (while Title VII and the First Amendment "are not on an apocalyptic collision course," there will be "difficult cases" requiring distinguishing between protected and unprotected speech). Speech that is discriminatory, offensive, or hateful often falls within the protective ambit of the First Amendment. Matal v. Tam (2017) ("Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate'"); Volokh v. James (2d Cir. 2025) ("the Supreme Court has consistently held that expression motivated by bias, hatred, or bigotry falls within the First Amendment's protection"). Conversely, pure political speech—for which the First Amendment provides the most fulsome protection—may well be considered harassing. Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791, 1804 (1992) ("core protected speech can indeed constitute harassment"); see Snyder v. Phelps (2011) (political speech can "inflict great pain" on the targeted listener). An overly capacious construction of Title VII would force employers to censor political speech to avoid civil liability and run afoul of the First Amendment. See New York Times Co. v. Sullivan (1964) (warning "fear of damage awards … may be markedly more inhibiting [of free expression] than the fear of prosecution under a criminal statute"); Gomez v. United States (1989) (courts must avoid interpreting federal statutes in ways that "engender[] constitutional issues if a reasonable alternative interpretation poses no constitutional question"). An unduly narrow construction would undermine Title VII's vital role in eradicating invidious workplace discrimination, a compelling government interest. Harmonizing the interests protected by Title VII and the First Amendment is particularly precarious in the context of higher education. Political disagreement and protest on college campuses foster student learning, advance academic scholarship, and shape public opinion. At the same time, Congress extended Title VII protections to educational institutions, explicitly recognizing the importance of ensuring academics have an equal opportunity to advance their careers and research unencumbered by workplace discrimination. In striking the right balance, courts have explained that a reasonable person—the objective measure of what conduct is severe or pervasive under Harris—will distinguish between speech on matters of public concern "directed to the community at large through generally accepted methods of communication," and speech that constitutes "targeted, personal harassment aimed at a particular" individual or individuals. Gartenberg v. Cooper Union (S.D.N.Y. 2025) ("Gartenberg I"), reconsideration denied (S.D.N.Y. 2025) ("Gartenberg II"); accord Landau v. Corporation of Haverford College (E.D. Pa. 2025) (a "reasonable person should understand that … public [political] speech" is not harassment); see also Volokh at 1871 (distinguishing between offensive speech directed at particular individuals in a targeted manner and speech that is not so directed); Smolla § 13.17 ("The Court in Harris was speaking about speech that is severe, usually repeated many times, and sufficient to cause physical fear or humiliation. General comments on gender politics and race relations do not usually cause these reactions—at least they should not in the reasonable person who must learn to live with a degree of contrariness in social life"). The former—speech on matters of public concern directed to the community at large—is political speech to which civil liability does not attach. Gartenberg I; Yelling v. St. Vincent's Health System (11th Cir. 2023) (Brasher, J., concurring) ("the objective prong of our hostile-work-environment standard must be applied consistent with First Amendment principles"). Title VII reaches the latter—targeted personal harassment. Put another way, the former would not be reasonably understood as actionable harassment, while the latter would be. Gartenberg, a case similarly arising out of campus protests following October 7, 2023, is instructive. The court began its analysis by filtering out allegations deemed to be non-actionable political speech. Examples of such non-actionable expression included a sidewalk protest by pro-Palestinian students, a public letter from alumni supporting the Palestinian cause, pro-Palestinian student newspaper articles, an art installation advocating resistance to colonialism, a vigil to honor Palestinian martyrs, and flyers supporting the Palestinian cause distributed across campus. On the plaintiffs' motion for reconsideration, the Gartenberg court confirmed that Title VII does not impose liability on the defendant for failing to censor these "instances of pure speech by pro-Palestinian members of Cooper Union's community that, as pleaded, were reasonably designed or intended to contribute to an ongoing debate regarding the Israeli-Palestinian conflict." Sufficient allegations of actionable harassment—including "physically threatening or humiliating conduct and repeated acts of antisemitic vandalism"—remained, however, leading the Court to conclude that the plaintiffs had plausibly pled a hostile environment claim. The court relied primarily on two incidents. First, plaintiffs' complaint chronicled a harrowing event where a "mob of protestors forced their way past campus security guards" and surrounded a campus library. The mob banged on the library's doors and floor-to-ceiling glass windows "shouting 'let us in!'" and "directed [chants] at the visibly Jewish students [trapped] inside." Second, the complaint alleged incidents of discriminatory vandalism on campus, including the tearing down of Israeli hostage posters and graffiti "written in a font commonly associated with Mein Kampf." Not only did these allegations involve actionable harassment (as opposed to pure political speech), but, together, they plausibly demonstrated a severe or pervasive hostile environment. Gartenberg involved a hostile educational environment claim brought by a group of Jewish students against their college under Title VI. Here, the parties—and the Court—agree that the same First Amendment analysis applies in the Title VII context. See Kopmar v. Association of Legal Aid Attorneys (S.D.N.Y. 2025) (applying Gartenberg in Title VII case). Accordingly, both Garrett and CUNY adopt the dividing line articulated in Gartenberg between actionable "physically threatening or humiliating conduct and repeated acts of antisemitic vandalism," on the one hand, and, on the other, non-actionable "pure speech on matters of public concern" expressed through "generally accepted methods of communication" and "reasonably designed or intended to contribute to public debate." The post First Amendment Limits on Workplace Harassment Liability, in Claim of Anti-Semitic Harassment at CUNY Hunter College Following October 7 Attacks appeared first on Reason.com.

10/13/1890: Justice Samuel Miller dies. The post Today in Supreme Court History: October 13, 1890 appeared first on Reason.com.

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The lack of intellectual pluralism undermines the truth-seeking function of the university.