FAN 140 (First Amendment News) Will Judge Hardiman be the nominee? A sketch for a First Amendment portrait

The talk in the air is thick: Third Circuit Judge Thomas Hardiman could be President Trump’s pick to fill the vacancy created by the death of Justice Antonin Scalia. Already much has been written about the Judge (see e.g., SCOTUSblog #1, SCOTUSBLOG #2, and Bloomberg-BNA), but what more might be added about his views on freedom of expression and the First Amendment?

Below is an sketch of his First Amendment views as expressed in B.H. v. Easton Area School District (3rd Cir. 2013), a case decided by the Third Circuit sitting en banc.

Judge Thomas Hardiman

→ Mary Catherine Roper of the ACLU of Pennsylvania argued on behalf of the Appellees, while while John E. Freund, III of King, Spry, Herman, Freund & Faul argued on behalf of the school district.

Focus on Alito’s Morse concurrence 

The issue in the case was was whether the First Amendment rights of middle school students were violtaed when the school district banned them from wearing “I ♥ boobies! (KEEP A BREAST)” braclets as part of a nationally recognized breast-cancer-awareness campaign.  The vote sustaining the First Amendment claim was 9-5, with Judge D. Brooks Smith writing for the majority and Judges Hardiman and Joseph Greenaway, Jr. writing the dissents.

In the back-and-forth between the majority and the dissenters, Justice Samuel Alito’s concurrence in Morse v. Frederick (2007) was referenced 51 times. Nonetheless, when the matter was presented to the Supreme Court, the School District’s petition was denied.

As the majority in Easton Area School District saw it, “Justice Alito’s concurrence, which it viewed as determinative, “did not permit the restriction of speech that could plausibly be interpreted as political or social speech.”

Judge Hardiman took exception. In his dissent, and in the Greenaway dissent he joined, Hardiman’s views as evidenced in both of those opinions focused on six basic points, which are summarized below:

1. Justice Alito’s Morse concurrence was not dispositive: “The notion that Justice Alito‘s concurrence in Morse is the controlling opinion flows from a misunderstanding of the Supreme Court‘s ―narrowest grounds‖ doctrine as established in Marks v. United States, 430 U.S. 188 (1977). . . . [I]n the six years since Morse was decided, nine of ten appellate courts have cited as its holding the following standard articulated by Chief Justice Roberts in his opinion for the Court.”
2. The Tinker precedent has limited constitutional vitality: “‘Since Tinker v. Des Moines Independent Community School Dist. (1969), every Supreme Court decision looking at student speech has expanded the kinds of speech schools can regulate.'”
3. Lack of guidance for school officials: “The Majority‟s test leaves school districts essentially powerless to exercise any discretion and extends the First Amendment‟s protection to a breadth that knows no bounds. As such, how will similarly-situated school districts apply [the majority’s] amorphous test going forward?”
4. What speech may be regulated? “[W]hat words or phrases fall outside of the ambiguous designation other than the ‘seven dirty words’?”
5. How to judge the validity of the speech claims: “[H]ow does a school district ever assess the weight or validity of political or social commentary?”
6. Slippery slope problems: “Applying the Majority‟s test, “I ♥ penises,” “I ♥ vaginas,” “I ♥ testicles,” or “I ♥ breasts” would apparently be phrases or slogans that school districts would be powerless to address. Would the invocation of any of these slogans in a cancer awareness effort fail to garner protection under the Majority‟s test?”

Judge Hardiman closed his dissent with this: “As this case demonstrates, running a school is more complicated now than ever before. Administrators and teachers are not only obliged to teach core subjects, but also find themselves mired in a variety of socio-political causes during school time. And they do so in an era when they no longer possess plenary control of their charges as they did when they acted in loco parentis.”

What might we infer?

So what does this case tell us about Judge Hardiman and his views of the First Amendment? Here are a few preliminary takes:

1. He is a legal pragmatist: If his views in Easton Area School District reveal anything, they suggest that Judge Hardiman is a man with his eye very much focused on institutional needs.
2. He favors bright line rules over open-ended ones: Where institutional norms are threatened, Judge Hardiman prefers bright-line guidance, even if it means denying a First Amendment claim.
3. He has little interest in reviving certain Warren Court First Amendment precedents: While it is true that as a circuit judge he must honor Supreme Court precedent rather evade it, still, the tenor of his dissent strongly suggests that Judge Hardiman has little or no interest in extending the Tinker precedent.
4. He is skeptical “political speech” labels. Tagging something as “political speech” is no talismanic pass to constitutional protection. Rather, as Judge Hardiman sees it, such claims must first prove their validity and then their worth.
5. Narrow opinions are preferable to broad ones: Consistent with what is set out above, Judge Hardiman does not seem to be the kind of jurist who would feel comfortable with First Amendment opinions such as those in New York Times Co. v. Sullivan (1964) or United States v. Stevens (2010).

Bottom line: Don’t expect to find a First Amendment Brennan or Black or Kennedy or Roberts in Thomas Hardiman; he does not seem to have that much free-speech spunk.

→ Even so, and to be fair, all of this is based on one case only, which may not be true to the full measure of the man.  For now, let’s wait and see if he gets the nod, and if so, I will then say more.

→ For more, see David Keating, Make the First Amendment Great Again? Trump’s Potential Supreme Court Nominees’ Views on Free Speech, Center for Competitive Politics 

The University of Oregon Controversy

Free speech is central to the academic mission and is the central tenet of a free and democratic society. The University encourages and supports open, vigorous, and challenging debate across the full spectrum of human issues as they present themselves to this community — University of Oregon report (2016) (professor’s free-speech activity violated school’s racial-harassment policy)

This free-speech controversy has been brewing in the land that many believe has the most robust protection of any state in the nation — this thanks to a spate of state constitutional free-speech cases dating back to some opinions by Justice Hans Linde (see e.g., State v. Robertson (1982)).

Professor Nancy Shurtz

But all of that is coming into question on the very campus where Linde taught before he was elevated to the state court high bench.  It started with a report that a UO law professor, Nancy Shurtz, wore  black makeup on her face and hands at a Halloween costume party she hosted at her home for UO law students, former students, and faculty members.

Professor violated racial-harassment policy 

I intended to provoke a thoughtful discussion on racism in our society, in our educational institutions and in our professions. In retrospect, my decision to wear black makeup was wrong. It provoked a discussion of racism, but not as I intended. — Nancy Shurtz

Professor Shurtz’s conduct was deemed to have violated school’s discrimination policy. According to December 21, 2016 statement from the office of the Provost:

Though [our] report recognizes that Professor Shurtz did not demonstrate ill intent in her choice of costume, it concludes that her actions had a negative impact on the university’s learning environment and constituted harassment under the UO’s antidiscrimination policies. Furthermore, the report finds that pursuant to applicable legal precedent, the violation and its resulting impact on students in the law school and university outweighed free speech protections provided under the Constitution and our school’s academic freedom policies.

Professor Shurtz was officially reprimanded; last semester her courses were cancelled. She is not teaching this semester but is scheduled to return in February.

→ The two lawyers who prepared the report were: Edwin A. Harnden and Shayda Z. Le.

→ Professor Shurtz criticized the report, which she said should not have been released: “This release violated rights of employees to confidentiality guaranteed by law. In addition, the report contains numerous mistakes, errors and omissions that if corrected would have put matters in a different light.”

→ An Open Letter from members of the Oregon Law faculty calling for colleague’s resignation

 → Lawrence Haun, Petition: Support Academic Freedom at the University of Oregon

U.O. law prof weighs in

Professor Ofer Raban

Writing in the Oregonian, first in November and then it late December, University of Oregon Law professor Ofer Raban led the criticism of the University’s action. In his first op-ed, Professor Raban wrote: “This regrettable Halloween event was a teachable moment, but it ended up teaching many wrong lessons. Surely, this was a moment to teach about racial sensitivity and awareness of history, and of what it means to live as a racial minority in this country. But it was also a moment to teach other valuable lessons for law students: Do not rush to judgment. Deliberate carefully, away from emotions running high. Consider all the relevant factors. And show compassion for human fallibility.

At a time of an emboldened pernicious racism, the refusal to recognize the distinction between malicious racism and a stupid but well-intentioned mistake is not only a moral and legal travesty, it is also fodder for the real enemies of racial equality.”

And then in response to the University’s report, he wrote that it “fails to mention or analyze the Oregon Constitution’s free speech provision, which Oregon courts ordinarily address even before the First Amendment since it provides greater free speech protections. . . .”

“Whatever the reason for administrators’ responses, let’s not forget what’s at stake in this sordid affair. According to the university, a professor is guilty of racial discrimination and harassment for donning a costume that sought to advocate for racial equality. And that act of political expression is not protected by the rights to free speech nor by academic freedom.This is a sad day for the freedom of speech and expression at the University of Oregon.”

Volokh joins in

The University’s action also drew sharp criticism from UCLA Law Professor Eugene Volokh: “contrary to the university’s explicit assurances in its free speech policy, the university report shows that ‘[t]he belief that an opinion is pernicious, false, and in any other way despicable, detestable, offensive or ‘just plain wrong’ would indeed be viewed as ‘grounds for its suppression.'”

Tucker Carlson & Professor Eugene Volokh

“[T]he report reasons that university professor free speech is limited by the so-called Pickering v. Bd. of Ed. balancing test, under which government employee speech is unprotected if ‘the State, as an employer, in maintaining the efficiency of its operations and avoiding potential or actual disruption’ outweighs ‘the employee’s interest in commenting on the matter of public concern.'”

“There is good reason to think that the university misapplied this test here, especially in light of lower court precedent (see, e.g., these posts by Prof. Josh Blackman, Hans Bader, and Prof. Jonathan Turley, as well as Levin v. Harleston (2d Cir. 1992)). Given that universities are supposed to be a place for debate and controversy, the tendency of university professor speech to spark debate and controversy — even debate and controversy that many people find offensive or disquieting — shouldn’t strip it of protection in a university community, even if it might be seen as doing so in, say, a police department. But the Pickering test is notoriously mushy, as such “balancing” tests tend to be, so I’ll set it aside here.”

→ See Professor Volokh being interviewed by Fox’s Tucker Carlson

U.O. President responds 

In light of such criticisms, the University’s President Michael H. Schill (who is a law professor) issued a response, which in part reads:

“When Professor Shurtz invited her two classes to her home for a Halloween party on October 31 and dressed up wearing blackface, she created a conundrum that is the stuff of a very difficult law school examination question. Two very important principles were potentially in conflict—the right of students to be free from racial harassment and the right of faculty members to exercise free speech. A law firm that the university hired to do an impartial investigation of the matter interviewed students and faculty members who were at the party and made a factual finding that at least some of the students felt compelled to attend their professor’s party and that they would potentially suffer negative consequences if they left early, despite being deeply offended and affronted by Professor Shurtz’s costume and its strong connotations of racism. The investigators made a factual finding that the behavior by Professor Shurtz constituted racial harassment under university policy V.11.02.”

President Michael Schill

“. . . .As I consider the case of Professor Shurtz, I have to admit I am torn. I believe that freedom of speech is the core value of any university. When faculty members pursue their avocation—teaching students and conducting research—they must be able to say or write what they think without fear of retribution, even if their views are controversial, and even if their research and their views risk causing offense to others. Otherwise, advances in learning will be stunted. This freedom of speech includes the freedom to share political views, academic theories, good ideas, and even bad ones, too. It includes speech that offends others. Without academic freedom we could scarcely call the UO a university. . . .”

“But, when exactly does offending someone turn into proscribed harassment? Only a small number of legal commentators would say that faculty members should be immune from all harassment charges on academic freedom grounds. Instead, most of us recognize that speech rights are extremely important, but they also fall on a continuum. For whatever it is worth, I personally am fairly close to the end of the spectrum that believes speech should be maximally protected. But even I believe that there are cases when speech or conduct is of relatively minimal value compared to the great harm that it may do to our students—particularly to students who already struggle with isolation and lack of representation. For example, imagine a required class in which a professor repeatedly uses the ‘N’ word for no apparent reason except to elicit a reaction. Could African American students forced to sit through this class have a claim of harassment? I think so. Similarly, imagine a class in which a professor makes repeated, sexually explicit remarks to a student or students for no educational purpose. Free speech principles should not, in my view, prevent the university from taking appropriate actions to make sure these actions stop and do not recur in the future. . . .”

“The case against free speech”

→ Brian Leiter, The Case Against Free Speech, Sydney Law Review (2016)

Abstract: Free societies employ a variety of institutions in which speech is heavily regulated on the basis of its content in order to promote other desirable ends, including discovery of the truth. I illustrate this with the case of courts and rules of evidence. Of course, three differences between courts and the polity at large might seem to counsel against extending that approach more widely.

Professor Brian Leiter

First, the courtroom has an official and somewhat reliable (as well as reviewable) arbiter of the epistemic merits, while the polity may not.

Second, no other non-epistemic values of speech are at stake in the courtroom, whereas they are in the polity.

Third, the courtroom’s jurisdiction is temporally limited in a way the polity’s may not be.

I argue that only the first of these — the ‘Problem of the Epistemic Arbiter’ as I call it — poses a serious worry about speech regulation outside select institutions like courts. I also argue for viewing ‘freedom of speech’ like ‘freedom of action’: speech, like everything else human beings do, can be benign or harmful, constructive or pernicious. Thus, the central question in free speech jurisprudence should really be how to regulate speech effectively — to minimise its very real harms, without undue cost to its positive values. In particular, I argue against autonomy-based defences of a robust free speech principle. I conclude that the central issue in free speech jurisprudence is not about speech, but about institutional competence.

I offer some reasons — from the Marxist ‘left’ and the public choice ‘right’ — for being sceptical that capitalist democracies have the requisite competence and make some suggestive remarks about how these defects might be remedied.

Dorf & Tarrow on Fake News & the First Amendment

Michael Dorf & Sidney Tarrow, Stings and Scams: ‘Fake News,’ the First Amendment, and the New Activist Journalism, SSRN (Jan. 26, 2017)

Abstract:  Constitutional law, technological innovations, and the rise of a cultural “right to know” have recently combined to yield “fake news,” as illustrated by an anti-abortion citizen-journalist sting operation that scammed Planned Parenthood. We find that the First Amendment, as construed by the Supreme Court, offers scant protection for activist journalists to go undercover to uncover wrongdoing, while providing substantial protection for the spread of falsehoods. By providing activists the means to reach sympathetic slices of the public, the emergence of social media has returned journalism to its roots in political activism, at the expense of purportedly objective and truthful investigative reporting. But the rise of “truthiness” — that is, falsehoods with the ring of truth, diffused through new forms of communication — threatens the integrity of the media. How to respond to these contradictions is a growing problem for advocates of free speech and liberal values more generally.

Forthcoming Books

1. David van Mill, Free Speech and the State: An Unprincipled Approach ( Palgrave Macmillan, February 27, 2017)
2. Charles W. Eagles, Civil Rights, Culture Wars: The Fight over a Mississippi Textbook (University of North Carolina Press, March 13, 2017)
3. Alex Brown, Hate Speech Law: A Philosophical Examination (Routledge, April 22, 2017)
4. Floyd Abrams, The Soul of the First Amendment (Yale University Press, April 25, 2017)

New  Scholarly Articles

1. Victoria Jones, Developing a Speech Standard for Public University Faculty in the Academic Environment, SSRN (Jan. 25, 2017)
2. Kayla Louis, Pornography and Gender Inequality-Using Copyright Law as a Step Forward, SSRN (Jan. 24, 2017)
3. Christine Haight Farley, Supreme Court Amicus Brief of Law Professors in Support of Petitioner, Lee v. Tam, No. 15-1293, SSRN (Nov. 16, 2016)

News, Editorials, Op-eds & Blog Posts

1. Lauren Gustus, First Amendment matters, here’s what I’m doing, The Coloradoan, Jan. 30, 2017
2. Editorial, Regarding the First Amendment, let’s have a conversation, North Texas Daily, Jan. 30, 2017
3. Christian Farias, The First Amendment Doesn’t Protect The Federal Workers Tweeting Out Climate Data, Huffington Post, Jan. 26, 2017
4. David Rosenthal, Another College’s Speech Code at Odds With First Amendment Values, The Daily Signal, Jan. 26, 2017
5. Ronnell A. Jones & Sonja R. West, Don’t Expect the First Amendment to Protect the Media, NYT, Jan. 25, 2017
6. Billy Talen, On Monsanto and the First AmendmentReflections on a trial by a professional protester, Aljazeera, Jan. 24, 2017

The Court’s 2016-2017 First Amendment Free Expression Docket

Cert. Granted

1.  Expressions Hair Design v. Schneiderman (oral argument: Jan. 10, 2017)(transcript here)
2. Lee v. Tam (oral argument: Jan. 18, 2017) (transcript here)
3. Packingham v. North Carolina (oral argument: Feb. 27. 2017)

Pending Appeals & Petitions & Related Cases*

1. Republican Party of Louisiana v. FEC
2. Independence Institute v. FEC
3. Augsburg Confession
4. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 
5. Bondi v. Dana’s Railroad Supply
6. Scott v. Georgia (The Georgia Supreme Court upheld, in the face of a First Amendment overbreadth challenge, a statute that forbids otherwise-protected sexually related speech to minors if the speaker intends to arouse or satisfy someone’s sexual desire. The Texas Court of Criminal Appeals and the Ninth Circuit Court of Appeals have held such statutes unconstitutional.)

Cert. Denied

1. Bennie v. Munn
2. Flytenow v. Federal Aviation Administration
3. Armstrong v. Thompson
4. Wolfson v. Concannon
5. Dart v. Backpage.com
6. NCAA v. O’Bannon
7. Mech v. School Board of Palm Beach County
8. Williams v. Coalition for Secular Government 
9. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Case: Review denied 

• Doe v. Backpage.com LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Denied 

• Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Freedom of Information Act Petition: Pending  

• Detroit Free Press, Inc. v. Department of Justice (Whether the Freedom of Information Act requires disclosure of booking photos of publicly named, federal indictees who have already appeared in open court.)

→ The Court’s last Conference was on January 19, 2017; the next conference is on February 17, 2017

* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Next Scheduled FAN, #141: February 8, 2017

Last Scheduled FAN, #139: Gov. Cuomo turns to Floyd Abrams for First Amendment Help