- Seventh Circuit panel rebukes Purdue in important Title IX case [KC Johnson, Minding the Campus] Since federal Dear Colleague letter pressuring them to revamp procedures in favor of accusers, colleges have been sued more than 500 times [Stephanie Gutmann, New York Post] Behind Harvard Title IX investigation of law professor Bruce Hay is a story of trust and betrayal that almost beggars belief [Kera Bolonik, New York] Analyzing student demands at Princeton [Conor Friedersdorf, The Atlantic]
- For research institutions, exposure to False Claims Act liability is more than just a mouse nibble: Duke University will pay $112 million following allegations that it misrepresented progress of rodent studies [U.S. Department of Justice press release]
- Waiting-and-seeing on the Trump campus free speech executive order [from this spring: Eugene Volokh; Heather Mac Donald (“The history of government mission creep and bloat is not reassuring”); FIRE (Foundation for Individual Rights in Education) statement; Neal McCluskey, Cato; Keith Whittington; Donald Downs, Martin Center; Tyler Cowen]
- Letter from 12 scholars: “Philosophers Should Not Be Sanctioned Over Their Positions on Sex and Gender” [Inside Higher Ed] “Self-Censorship on Campus Is Bad for Science” [Luana Maroja, The Atlantic] U.K.: “Stonewall’s LGBT Guidance is Limiting the Free Speech of Gender Critical Academics” [Kathleen Stock, Quillette; more]
- “Cambridge University, which still drips with Norman money and influence, should now consider to what extent it needs to compensate its Anglo-Saxon victims.” [satire: Sahil Mahtani, The Spectator (U.K.)]
- Gov. Ron DeSantis signs bill passed unanimously by Florida legislature defining as hateful in context of educational civil rights such things as “demonizing, applying a double standard to, or delegitimizing Israel.” Shouldn’t that be more controversial, especially as applied at university level, given that it takes in some kinds of core political speech? [John Haughey, Florida Center Square; Florida Politics: A.G. Gancarski, Scott Powers; Joe Cohn, FIRE]
My new Cato post tells of New York regulators’ threat to impose large fines and penalties on a woman who they claim spent more than $5,000 to advocate for legislation without registering as a lobbyist. In particular, she purchased billboards and hired a plane to drag a banner as part of a one-woman crusade to ease New York laws on filing claims of sexual abuse.
- Second Circuit decision restricting public officials from blocking foes on Twitter is likely to discourage local electeds from sharing on social media, among its other problems [Gabriel Malor thread, John Samples/Cato, earlier]
- State of Washington defines lawyers’ pro bono work as “campaign expenditure,” even when it goes toward ballot access effort for a measure that never reached the ballot to be campaigned over. Review and clarification by high court sorely needed [Ilya Shapiro, Trevor Burrus and Patrick Moran on Cato amicus brief in Evergreen Freedom Foundation v. State of Washington]
- Freedom of press not just for those who own one: “Minnesota Supreme Court Holds That Nonmedia Speakers Are Fully Protected by First Amendment” [Eugene Volokh, defamation law]
- “Publishing Court Records Containing Home Address Not Actionable Invasion of Privacy” [Volokh on a pattern that sometimes gives rise to claims of “doxxing”]
- FOSTA, the law hailed as creating a pioneering exception to Section 230 for speech promoting “sex trafficking,” isn’t just your ordinary incursion on Internet freedom. It comes with a body count [Mike Masnick, Techdirt; related, Violet Blue, Engadget]
- If they’re farming, don’t you be filming: John Stossel on ag-gag laws [Reason video and story, earlier]
- Singapore law restricting so-called fake news “could force companies to tell the government what websites users have viewed” [Jennifer Daskal, New York Times] Ruling People’s Action Party “is notorious for its practice of bringing lawsuits against opposition members,” sometimes “for defamation upon criticizing the PAP,” while blog authors are “often pressured to register as members of political bodies if their posts touch upon national issues.” [Sally Andrews, The Diplomat]
- Australian federal police raid national broadcaster, seize files over story exposing alleged killings of unarmed civilians by special forces [Matthew Lesh, Spiked]
- U.K.: “Man investigated by police for retweeting transgender limerick” [Camilla Tominey and Joani Walsh, Daily Telegraph; Jack Beresford, Irish Post; Ophelia Benson followup on “Harry the Owl” case; earlier here, here, etc.]
- From President John Adams’s time to our own, rulers around the world have used alarms over fake news as excuse for measures against political opponents [J.D. Tuccille, Reason]
- “In a world first, Facebook to give data on hate speech suspects to French courts” [Mathieu Rosemain, Reuters, Jacob Mchangama on Twitter]
- Michael Jackson fan clubs sue sex-abuse complainants “under a French law against the public denunciation of a dead person,” good example of why laws like that are a bad idea [AP/GlobalNews]
- Turkish “Academics for Peace” initiative of 2016: “Of the petition’s more than 2,000 signatories, nearly 700 were put on trial and over 450 were removed from their posts by government decree or direct action from their own university.” [Brennan Cusack, New York Times]
The United Kingdom’s Advertising Standards Authority (ASA) has “instituted a ban on gender stereotypes ‘that are likely to cause harm, or serious or widespread offence.'”
According to the ASA’s overview, setups that will likely be in violation of the law include but are not limited to:
* An ad that depicts a man with his feet up and family members creating mess around a home while a woman is solely responsible for cleaning up the mess.
* An ad that depicts a man or a woman failing to achieve a task specifically because of their gender e.g. a man’s inability to change nappies [diapers]; a woman’s inability to park a car.
* Where an ad features a person with a physique that does not match an ideal stereotypically associated with their gender, the ad should not imply that their physique is a significant reason for them not being successful, for example in their romantic or social lives.
* An ad that seeks to emphasise the contrast between a boy’s stereotypical personality (e.g. daring) with a girl’s stereotypical personality (e.g. caring) needs to be handled with care.
* An ad aimed at new mums which suggests that looking attractive or keeping a home pristine is a priority over other factors such as their emotional wellbeing.
It will not be a defense of a stereotype that it is by and large true — that, for example, persons whose physique departs significantly from social expectations might genuinely face worse average outcomes in their romantic lives.
The rules do allow a few exceptions; for example, it will still be fine for advertisers in Britain to invoke gender stereotypes for purposes of challenging them. [Billy Binion, Reason; update on action against ads for Volkswagen and Philadelphia Cream Cheese]
Happy Independence Day!
As I noted last year, the American Bar Association in 2016 adopted as a recommendation its Model Rule 8.4 (g),
which makes it “professional misconduct” for an attorney to engage in “conduct,” including verbal “conduct,” that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” …
UCLA law professor Eugene Volokh has argued that the ABA rule’s scope “is broad and vague enough to potentially apply to a wide range of political speech, and thus violate the First Amendment.”
The rule would invite charges of professional misconduct against lawyers who express or circulate opinions, jokes, or graphics that they should have known would make a listener uncomfortable based on one or another protected class membership. It would apply in an extremely wide range of contexts “related to the practice of law”, as listed in these April comments:
Activities that seem to fall within the extremely broad scope of proposed Rule of Professional Conduct 8.4(g) include:
* presenting CLE courses;
* participating in panel discussions that touch on controversial political, religious, and social viewpoints;
* teaching law school classes as faculty, adjunct faculty, or guest lecturers;
* writing law review articles, op-eds, blogposts, or tweets;
* giving media interviews;
* serving on the board of one’s religious congregation, K-12 school, or college;
* providing pro bono legal advice to nonprofits;
* serving at legal aid clinics;
* lobbying on various legal issues;
* testifying before a legislative body;
* writing comment letters to government agencies;
* sitting on the board of a fraternity or sorority;
* volunteering for political parties; and
* advocating through social justice organizations.
While some state codes of lawyer conduct already ban bias and harassment, these have generally been drafted much more narrowly. In Maine, for example, up to now the missteps have to have been committed “knowingly,” in the course of representing a client, and in a manner “prejudicial to the administration of justice” — all three important safeguards against overbreadth.
Model Rule 8.4 (g) has faced rough sledding around the states since it was proposed. According to these comments in October, “seven states have rejected the rule: Arizona, Illinois, Minnesota, Montana, Nevada, South Carolina, and Tennessee have rejected the proposal. The Attorneys General of four states have concluded that adopting the rule would violate the First Amendment: Louisiana, South Carolina, Tennessee, and Texas. Only Vermont has adopted the model rule in its entirety.”
As Vermont goes, so goes Maine: the Pine Tree State’s highest court has now adopted a version of the rule, although narrowed in several respects. In particular, the Maine version defines “the practice of law” in a less broad (though still quite broad) way that covers fewer purely social activities; it removes socioeconomic status and marital status from the list of protected classes; and it tries at least to define what sorts of speech it will deem to be bias or harassment. Its definition is still quite unclear in its contours, however, and far broader than the standard approved by the U.S. Supreme Court as to harassment law and speech liability in workplace and university settings.
Let’s hope other states don’t follow Maine’s example: even as narrowed, the rules curtail important rights.
In the mean time, however, there is heartening news from Ontario, Canada, where (as I reported last year) the Law Society had gone all in on rules that go much further than the ABA’s, requiring all lawyers on eventual pain of discipline to draft a personal Statement of Principles (SOP) avowing a dedication to principles of diversity, equality, and inclusion. The Society rejected a proposal “to create an exemption to the new mandatory Statement of Principles for persons who believe the requirement violates their freedom of conscience.”
But its membership revolted. Attorney Lisa Bildy and other SOP objectors led a campaign that, in a seeming miracle, elected 22 of its supporters to the 40 lawyer seats among the benchers (governors) at the Law Society. While the newly elected are not a majority because of the other seats on the body reserved for lay benchers and paralegals, the message was unmistakable (more on the campaign from Bruce Pardy, Murray Klippenstein, Teng Rong, and Dylan McGuinty). Now, in the face of a determined campaign of abuse directed at the incoming benchers (sidelight), the Law Society of Ontario’s governing Convocation will meet June 27 to begin considering whether to repeal, render optional, otherwise change, or retain the Statement of Principles requirements.
The June 27 Law Society meeting, and what follows, deserve a close watch by all of us concerned about the rise of speech codes and forced expression in the professions.
- “The Moral Panic Behind Internet Regulation” [Matthew Lesh, Quillette] New Congressional Research Service report on free speech and the regulation of social media content [Valerie C. Brannon, Congressional Research Service]
- “A social media campaign from the French government has been blocked by Twitter – because of the government’s own anti-fake-news law” [BBC via Elizabeth Nolan Brown]
- European authorities misidentify many pages on Internet Archive as “terrorist,” demand takedown [Mike Masnick, Techdirt]
- Armslist case is one in which Section 230 protected Second Amendment rights (that’s not a misprint for First) [John Samples, Cato; Eugene Volokh]
- Sen. Josh Hawley (R-MO)’s bill to require the largest social media firms to obtain certification of their political balance from the FTC, on pain of making them liable for all content posted by users, met with hail of dead cats from knowledgeable observers [Elliot Harmon/EFF, John Samples/Cato and more, Cathy Gellis, Joshua Wright thread, Eric Goldman, Raffi Malkonian on retroactivity and more, Elizabeth Nolan Brown/Reason] Related: Daphne Keller (“Build Your Own Intermediary Liability Law: A Kit for Policy Wonks of All Ages”);
- “We sympathize with Plaintiffs — they suffered through one of the worst terrorist attacks in American history. ‘But not everything is redressable in a court.'” [Sixth Circuit, Crosby v. Twitter, affirming dismissal of lawsuits seeking to hold Twitter, Facebook, and Google liable under Anti-Terrorism Act for abetting self-radicalization of perpetrator of Orlando Pulse attack]
The whole history of the old broadcast Fairness Doctrine is one of regimenting opinion to benefit political insiders and favor establishment views. Unless that’s your goal, keep it away from the Internet. Paul Matzko explains at Cato, with many historical details.
- Following similar rulings in Charleston, S.C., and Washington, D.C., federal judge rules Savannah violated First Amendment when it passed law forbidding unlicensed tour guides [Andrew Wimer, Institute for Justice]
- Pursuing a leak, San Francisco cops raid home of freelance journalist Bryan Carmody, hold him captive, seize his equipment [Yashar Ali, CNN] “SF police got warrant to tap journalist’s phone months before controversial raid” [Evan Sernoffsky, San Francisco Chronicle] Update: judge revokes warrant and says cops didn’t tell her target of wiretap was a journalist [Billy Binion, Reason]
- Breadth of the Julian Assange indictment and implications for the First Amendment [Eugene Volokh]
- Three concepts of “hate speech” related to religion, and their different legal treatment: “speech that denigrates religion as such; speech that threatens imminent violence against believers; and speech that insults or denigrates believers on the basis of religion” [Mark Movsesian and Marc DeGirolami podcast, Center for Law and Religion, St. John’s]
- New York disciplines a civil servant over political opinions he expressed on Facebook. Can it do that? [Center for Individual Rights]
- “Goldsmith … was charged with simple misdemeanor harassment for a Facebook post he made expressing his criticism of the policing methods he witnessed by an Adams County sheriff’s deputy at a local town festival.” [ACLU] Speaking of that organization: “ACLU (N.H.) Challenging Criminal Libel Statute” [Eugene Volokh last winter]
- Turkish economist “Snatched at Night, Questioned for ‘Insulting’ Erdogan” [Asli Kandemir and Taylan Bilgic, Bloomberg News] “Croatian journalists stage protest against abusive lawsuits” [IFEX]
- SCOTUS has made clear that First Amendment generally bans government from “retaliat[ing] against a contractor… for the exercise of rights of political association.” That should doom Los Angeles ordinance requiring contractors to disclose ties to National Rifle Association (NRA) [Eugene Volokh]
- “How Regulation Cripples Online Political Speech” [Cato Daily Podcast with attorney Allen Dickerson with the Institute for Free Speech; related on unconstitutional Maryland law] License to chill: New Jersey bill would require disclosure of donors involved in “providing political information on any candidate or public question, legislation, or regulation” [Emily Kelchen, Federalist Society]
- Alabama publicity rights law trips up documentary series with focus on deceased man [Timothy Geigner, TechDirt]
- “Libel Case Can’t Be Litigated with the Alleged Libel Sealed, Says Federal Court” [Volokh]
- “Why Is the Fight for Free Speech Led by the Psychologists?” [Scholar’s Stage] From last year, another review of Keith Whittington’s book on academia, Speak Freely [James Stoner; earlier here, here]