The Volokh Conspiracy

Jack Shafer (Slate) opines on the subject, and I think gets it quite right.

Stanley Kurtz (National Review Online's The Corner) writes:

East Germany Hits Virginia

I’ve heard of speech codes, but I’ve never heard of anything quite like this: a mechanism to anonymously report "bias related to race, gender, sexual orientation, religion, or other protected conditions" to the university administration, for possible action against the perpetrator. This system has been set up at William and Mary, and a website protesting it can be found here. Is this something new, or at least rare, or is it perhaps more common than I realize?

InstaPundit seems to echo this concern, as have some readers who have e-mailed me.

It seems to me that these concerns are somewhat overstated, at least absent more facts about how the system is being used. Let me briefly explain why.

1. The College is certainly free to punish biased conduct, such as beatings or vandalism, and even a narrow zone of speech, such as threats. In fact, it should punish such behavior, though I'm not one of those who thinks that bias-motivated beatings, vandalism, or threats should generally be punished more than other beatings, vandalism, and threats. What's more, the College's Web page acknowledges that "because the expression of an idea or point of view may be offensive or inflammatory to some, it is not necessarily a bias-related incident. William and Mary values freedom of expression and the open exchange of ideas and, in particular, the expression of controversial ideas and differing views that is a vital part of civil discourse."

2. The Web page does go on to say, "While this value of openness protects controversial ideas, it does not protect harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities." This leaves open the possibility that the College will punish protected speech as "harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities"; but it also leaves open the possibility that only unprotected speech (such as threats) would be covered.

On first reading, the statement of rights and responsibilities didn't strike me as particularly troubling — the most clearly relevant responsibility there seems to be the duty to obey "the general law," which I take it means no vandalism, assault, threats, and the like. If William & Mary starts punishing protected speech, then it should be condemned for that. And, more broadly, I would condemn it for not being more precise about what exactly constitutes, in its view, punishment "harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities." But on balance the College's Web page and the statement of rights and responsibilities — which do provide pretty broad and specifically worded assurances of speech protection — don't seem extremely troubling.

3. This then gets us to what seems to have triggered the "East Germany" reference: The encouragement of anonymous complaints. I know many of my friends are very troubled by such complaints, and I can see their possible costs. But they also have substantial benefits, and I would not roundly condemn institutions that encourage them, at least until I see the institutions misusing them.

In fact, we almost always allow and often encourage confidential reporting of alleged misconduct — poor performance by a company's or government agency's employees, street crime, corporate crime, and so on. We do this because we realize that without the promise of anonymity, people will often be chilled from speaking about misconduct.

Of course if a school or a police department acts badly based on an anonymous complaint — restricts speech, or punishes someone based on the anonymous allegations — then that's bad. But anonymous tips are often useful for investigation, even if they can't be used in the actual adjudication.

Say, for instance that a student (1) sees evidence that a classmate is cheating, (2) hears a professor say in class "If you express an anti-abortion view on the exam, you'll get an F," or (3) hears some acquaintances brag about how they've beaten up a gay student (or, if you prefer, a Muslim student, a white student, and so on). In any of these cases, the student might well want to alert the authorities without revealing his name, and opening himself up to retaliation. And the anonymous tip may well lead to the discovery of credible evidence (whether tangible evidence or nonanonymous testimony).

It seems to me we should indeed allow and even encourage such anonymous tips, while of course remaining suitably skeptical about such tips, insisting that actual punishment not turn on such tips, and insisting that protected speech (as opposed to violence, vandalism, or threats) not be punished at all, whether based on anonymous tips or on nonanonymous ones.

UPDATE: A bit of further looking led me to a page that might be occasion for more worry:

What is Bias?

A "bias incident" consists of harassment, intimidation or other hostile behavior that is directed at a member of the William and Mary community because of that person's race, sex (including pregnancy), age, color, disability, national or ethnic origin, political affiliation, religion, sexual orientation, or veteran status. A bias incident may be verbal (whether spoken or written) or physical.

If you are not certain whether an occurrence meets the above definition, please report the occurrence under this protocol and allow the College to make the determination.

If you wish to report an incident of bias, you may do so by contacting the Chair of the Bias Reporting Team. Please, if this is an emergency, contact Campus Police at 911.

Certainly some of this "hostile behavior" is properly punishable (e.g., a physical attack or a threat), some is constitutionally protected (e.g., among many other examples, "hostile behavior" in the form of statements condemning the target's religion, political affiliation, sexual orientation, or veteran status), and some may be occasion for further investigation though not itself actionable (e.g., hostile statements that might suggest that the speaker has in the past engaged in other violence or vandalism, and that should lead the College to look further at whether the speaker has indeed done so). And the statements break down into these three categories regardless of whether or not they are submitted confidentially.

The question is what the College will do with the reports: Will it punish just the constitutionally unprotected behavior, or will it try to punish the constitutionally protected speech as well? As I noted above, the College should be faulted for not being more precise in its definitions. But the East Germany comparisons, it seems to me, should wait until there's more tangible evidence that the College is indeed punishing, or even attempting to punish, protected speech.

Here's the Georgia Supreme Court decision, which is 4-3. The bottom line:

[W]e conclude that the habeas court properly ruled that Wilson’s sentence of ten years in prison for having consensual oral sex with a fifteen-year-old girl when he was only seventeen years old constitutes cruel and unusual punishment.

I'll have more when I finish reading the case. Thanks to Aeon Skoble (HNN) for the pointer.

UPDATE: As promised, here's more (some paragraph breaks added):

Legislative enactments are the clearest and best evidence of a society’s evolving standard of decency and of how contemporary society views a particular punishment. In determining whether a sentence set by the legislature is cruel and unusual, this Court has cited with approval Justice Kennedy’s concurrence in Harmelin v. Michigan. Under Justice Kennedy’s concurrence in Harmelin, as further developed in Ewing v. California, in order to determine if a sentence is grossly disproportionate, a court must first examine the "gravity of the offense compared to the harshness of the penalty" and determine whether a threshold inference of gross disproportionality is raised.

In making this determination, courts must bear in mind the primacy of the legislature in setting punishment and seek to determine whether the sentence furthers a "legitimate penological goal" considering the offense and the offender in question. If a sentence does not further a legitimate penological goal, it does not "reflect[] a rational legislative judgment, entitled to deference," and a threshold showing of disproportionality has been made. If this threshold analysis reveals an inference of gross disproportionality, a court must proceed to the second step and determine whether the initial judgment of disproportionality is confirmed by a comparison of the defendant’s sentence to sentences imposed for other crimes within the jurisdiction and for the same crime in other jurisdictions....

Here, the legislature has recently amended § 16-6-4 to substitute misdemeanor punishment for Wilson’s conduct in place of the felony punishment of a minimum of ten years in prison (with the maximum being 30 years in prison) with no possibility of probation or parole. Moreover, the legislature has relieved such teenage offenders from registering as a sex offender. It is beyond dispute that these changes represent a seismic shift in the legislature’s view of the gravity of oral sex between two willing teenage participants. Acknowledging ... that no one has a better sense of the evolving standards of decency in this State than our elected representatives, we conclude that the amendments to § 16-6-4 and § 42-1-12 [the sex offender registration statute] reflect a decision by the people of this State that the severe felony punishment and sex offender registration imposed on Wilson make no measurable contribution to acceptable goals of punishment.

[Footnote: Although the dissent correctly notes that the General Assembly stated that the 2006 Amendment to § 16-6-4 should not be applied retroactively, the dissent erroneously concludes that the cruel and unusual punishment analysis ends there.... [C]ruel and unusual punishment is an evolving constitutional standard and ... the most objective evidence of that evolving standard are legislative enactments.... Thus, although this Court cannot apply the 2006 Amendment to § 16-6-4 retroactively, we can rely on that amendment as a factor representative of the evolving standard regarding the appropriate punishment for oral sex between teenagers.]

Stated in the language of Ewing and Harmelin, our legislature compared the gravity of the offense of teenagers who engage in oral sex but are within four years of age of each other and determined that a minimum ten-year sentence is grossly disproportionate for that crime. This conclusion appears to be a recognition by our General Assembly that teenagers are engaging in oral sex in large numbers; that teenagers should not be classified among the worst offenders because they do not have the maturity to appreciate the consequences of irresponsible sexual conduct and are readily subject to peer pressure; and that teenage sexual conduct does not usually involve violence and represents a significantly more benign situation than that of adults preying on children for sex....

[B]ased on the significance of the sea change in the General Assembly’s view of the appropriate punishment for teenage oral sex, we could comfortably conclude that Wilson’s punishment, as a matter of law, is grossly disproportionate to his crime without undertaking the further comparisons outlined in Harmelin and Ewing. However, we nevertheless will undertake those comparisons to complete our analysis.

A comparison of Wilson’s sentence with sentences for other crimes in this State buttresses the threshold inference of gross disproportionality. For example, a defendant who gets in a heated argument and shoving match with someone, walks away to retrieve a weapon, returns minutes later with a gun, and intentionally shoots and kills the person may be convicted of voluntary manslaughter and sentenced to as little as one year in prison. A person who plays Russian Roulette with a loaded handgun and causes the death of another person by shooting him or her with the loaded weapon may be convicted of involuntary manslaughter and receive a sentence of as little as one year in prison and no more than ten years. A person who intentionally shoots someone with the intent to kill, but fails in his aim such that the victim survives, may be convicted of aggravated assault and receive as little as one year in prison. A person who maliciously burns a neighbor’s child in hot water, causing the child to lose use of a member of his or her body, may be convicted of aggravated battery and receive a sentence of as little as one year in prison. Finally, at the time Wilson committed his offense, a fifty-year-old man who fondled a five-year-old girl for his sexual gratification could receive as little as five years in prison, and a person who beat, choked, and forcibly raped a woman against her will could be sentenced to ten years in prison.

There can be no legitimate dispute that the foregoing crimes are far more serious and disruptive of the social order than a teenager receiving oral sex from another willing teenager. The fact that these more culpable offenders may receive a significantly smaller or similar sentence buttresses our initial judgment that Wilson’s sentence is grossly disproportionate to his crime. Finally, we compare Wilson’s sentence to sentences imposed in other states for the same conduct. A review of other jurisdictions reveals that most states either would not punish Wilson’s conduct at all or would, like Georgia now, punish it as a misdemeanor. Although some states retain a felony designation for Wilson’s conduct, we have found no state that imposes a minimum punishment of ten years in prison with no possibility of probation or parole, such as that provided for by former § 16-6-4. This review thus also reinforces our initial judgment of gross disproportionality between Wilson’s crime and his sentence.

The dissent indeed relies, as the footnote suggests, chiefly on the fact that the legislature decided that the 2006 Amendments to § 16-6-4 shouldn’t be applied retroactively. It also generally relies on the deference due legislative judgments about sentences, and on Widner v. State, a 2006 Georgia Supreme Court case that the majority distinguishes. (I won’t get into that debate; if you’re interested, read Widner and the Wilson opinions’ discussion of Widner.)

My sense of the matter: I think there are institutional problems with courts’ evaluating the length of confinement under the Cruel and Unusual Punishment Clause; it’s hard to see a good legal rule that courts can sensibly apply in a wide range of cases, and to my knowledge there isn’t the sort of textual or original meaning evidence that strongly points to requiring courts to engage in such a mushy judgment. But the Supreme Court has said that such evaluation should take place, though with a great deal of deference to the legislature. And if there is to be such an evaluation, this would look like an excellent case for setting the sentence aside, for the reasons the majority mentions.

The Georgia Legislature has decided that consensual oral sex between 17- and 15-year-olds is not a very serious transgression. (It had decided the same about genital sex years before.) That has to be the implicit judgment behind making it a misdemeanor, and the nonretroactivity provision doesn’t undermine this implicit judgment. This judgment, coupled with the comparisons with other crimes and with the behavior of other jurisdictions — and the absence of statutory aggravating factors, such as the past convictions at issue in the California Three Strikes law, which the Court has upheld — provides strong and objective evidence in favor of the Georgia Supreme Court’s conclusion.

I should say that I at first thought there was no Cruel and Unusual Punishment Clause issue here, but the Georgia Supreme Court’s analysis has persuaded me.

Finally, for those who wonder about the racial dimensions of the case, note that the four white Justices on the Georgia Supreme Court split 2-2, and the three black Justices split 2-1 in Wilson’s favor — no stark racial disparity here (though, as I noted earlier, there was "little reason to assume that there’s much of a racial dimension here" even before this decision).

The Houston Chronicle reports:

An order issued today by an executive session of judges from the U.S. Southern District of Texas calls for U.S. District Judge Samuel Kent to move from Galveston, where he was the only federal judge, to Houston....

The order issued today redistributes Kent's Galveston cases among other Houston judges. The order did not say when, if ever, Kent would return to Galveston. David Bradley, chief deputy clerk for the Southern District, said Kent would remain in Houston until a new order was issued allowing him to return to Galveston.

Federal judges will continue to hear cases in the Galveston court room, but they will commute from Houston.

More on the Judge Kent matter in these posts.

George Will condemns the Ninth Circuit's decision in Flint v. Dennison:

Perhaps the [University of Montana] noticed the praise that speech rationers in Washington receive when, in the name of combating corruption or the appearance thereof, they regulate, as with the McCain-Feingold campaign finance law, the timing, quantity and content of political speech. In any case, the university has a rule that limits candidates for student government offices to spending a maximum of $100 when campaigning among the university's 10,000 students....

[T]he reliably liberal and frequently reversed U.S. Court of Appeals for the 9th Circuit ... ruled against [a student who was challenging the rule], arguing that the university's limits on political speech are reasonably related to two permissible institutional objectives — providing "student candidates a valuable educational experience" and maintaining the election process "as an educational tool, rather than an ordinary political exercise." Two things were unexplained: What is the nifty educational value of an election process that is not an ordinary political process? And: How does severely limiting political speech serve "a valuable educational experience"?

Anyway, last summer the Supreme Court, while upholding the right of a high school to restrict speech advocating the use of illegal drugs, stressed that students' rights are greatest with respect to political speech and ideological speech. And Justice Sam Alito, joined by Justice Anthony Kennedy, stressed that the ruling "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue."

Courts have spun a complex tangle of law distinguishing degrees of permissible regulation of speech depending on which kind of "forum" it occurs in — a "limited public forum," a "designated public forum," even a "metaphysical" forum (it is not physical). In this case, the forum is neither mysterious nor small nor the university's property: The $100 limit covered an individual's political advocacy not just on campus but on public sidewalks and streets throughout Missoula, where many students live.

If the Supreme Court takes [the student's] appeal [which is the news hook for the op-ed -EV], it will see that the University of Montana is indeed teaching students a lesson about politics — the pernicious lesson that politics should be conducted under tight restrictions on advocacy. The university is preventing students from learning such essential civic skills as how to raise and allocate political money for advertising and organizing. Thus do the grossly anti-constitutional premises of McCain-Feingold seep through society, poisoning the practice of democracy at all levels.

Will's argument strikes me as unsound, for reasons I mentioned when the case came out. The Ninth Circuit was right to hold that, because student government and student elections are university functions — whether or not the campaign posters are put up outside the university, the election itself is a university function — they should be treated as limited fora. The test is therefore viewpoint-neutrality (clear here) plus reasonableness, and the rules are reasonable, for the reasons the court gives:

The evidence before us clearly shows that the University views the spending limitation as vital to maintain the character of ASUM and its election process as an educational tool, rather than an ordinary political exercise....

We find that the spending limits reasonably serve this pedagogical aim. ASUM exists to teach students responsible leadership and behavior. Imposing limits on candidate spending requires student candidates to focus on desirable qualities such as the art of persuasion, public speaking, and answering questions face-to-face with one’s potential constituents. Students are forced to campaign personally, wearing out their [shoe]-leather rather than wearing out a parent’s — or an activist organization’s — pocketbook. Our conclusion is supported by the declaration of Gale Price, former ASUM President:

Unlimited spending in ASUM elections also would change the nature of the election process as a learning experience. The spending limits mean that students have to figure out no-cost or low-cost ways of campaigning. They have to plan ahead to figure out their strategy, rather than just dumping a lot of money into advertising materials at the last minute. They have to make decisions about allocating their resources effectively. Without spending limits, the well-off students would not have to face these constraints or make these kinds of decisions in the course of running for ASUM.

Will's mistake, I think, lies in treating student government as tantamount to ordinary government for First Amendment purposes. In fact, a university may indeed treat student government and student government campaigns as an educational project, and may constrain students' activities within educational projects in order to make such projects fairer, or more focused on those skills that the university is trying to teach. A law school may set up a moot court program that limits the time students spend drafting or researching, or that limits outside research students may do for their briefs. A university-run debate contest may limit the debaters' ability to lobby the audience outside the context of the debate, so the debaters focus more on their in-debate performance. Likewise, a university-run election campaign may be aimed at teaching students campaign skills that involve less money rather than teaching campaign skills that involve more money.

In all these situations, the students should of course remain free to persuade classmates of whatever they please. But if they are to take part in a university-run contest, the university may properly insist that they follow the university's viewpoint-neutral rules or be ejected from the contest. Where true self-government is involved, the government may be highly limited in what speech-restrictive rules it may impose. But the First Amendment doesn't command a similar rule for educational projects, even ones that take the form of student government.

Incidentally, the author of the unanimous opinion from what Will calls the "reliably liberal" Ninth Circuit was Judge Carlos Bea, who's a quite conservative George W. Bush appointee. The other judges were Clinton appointees (Graber and Paez), but Judge Bea went along fully with them, and wrote the opinion.

The Interfaith Association of Central Ohio "will host an educational forum in the atrium of the [Ohio] Statehouse [this coming Sunday] about "The Many Voices of Islam."

And it turns out that the panel will indeed represent some Islamic voices that some such panels try to downplay: One of the voices on the panel is that of Anisa Abd el Fattah, who has in the past year

1. formally asked the Justice Department to "take the steps necessary to end" "hate speech" and "misleading and highly politicized information" from "Jewish organizations and activists" and "the 'Jewish lobby'" (steps that would, I take it, somehow use the Department's law enforcement authority);

2. complained about "Jewish people rais[ing] a fuss" when others "say that Israel should be wiped off the map" (and about "Jewish people['s]" labeling those who make such arguments "anti-Semite[s]");

3. defended "White nationalist" claims that they are "misrepresented by the media and made to appear as enemies of blacks and Jews, and others, when they simply want to preserve the white race, and its majority status"; and

4. seemingly expressed support for White nationalists' "feel[ing] that Jewish supremacism threatens their existence."

I'm sure Abd el Fattah's voice doesn't speak for all Muslims, and I hope it doesn't even speak for a majority. Still, whether deliberately or not, the Interfaith Council does seem to be acknowledging that the many voices of Islam include those like Abd el Fattah's. I'd like to see from press coverage the extent to which the Council's platform ends up endorsing Abd el Fattah's perspective, rather than just making clear that it's out there.

Does "engaging in a three-way sexual encounter with [a current client] and [the client's] girlfriend" count as having sex "with a current client" (a practice forbidden by state bar rules)?

From Office of Lawyer Regulation v. Inglimo, decided last week by the Wisconsin Supreme Court (paragraph break added):

¶57 The relevant language of SCR 20:1.8(k) is as follows:

(k)(1) ... (i) "Sexual relations" means sexual intercourse or any other intentional touching of the intimate parts of a person or causing the person to touch the intimate parts of the lawyer.... (2) A lawyer shall not have sexual relations with a current client unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.

¶58 The referee found that Attorney Inglimo engaged in sexual relations with L.K.'s girlfriend while she was doing the same with L.K. The OLR essentially argues that the word "with" in SCR 20:1.8(k)(2) connotes a temporal and spatial connection. According to the OLR, as long as the lawyer and the client are both participating in a sexual act at the same time in the same place, they are having sexual relations "with" each other....

¶59 On this issue, we concur with the referee's conclusion [that Inglimo did not violate the rule]. The definition of sexual relations in SCR 20:1.8(k)(1) connotes conduct directly between the lawyer and the client. When the definition refers to touching, the rule speaks of the lawyer intentionally touching the intimate parts of "a person," but the subsequent alternative definitional phrase uses the more definitive "the person" when referring to a situation in which the lawyer causes the touching to be done to him/her. In addition, to the extent that sexual intercourse also qualifies as "sexual relations" under the definition, such conduct is likewise done intentionally (i.e., not by accident).

Further, SCR 20:1.8(k)(2) prohibits a lawyer from having "sexual relations" "with a current client." Thus, the definitional language of SCR 20:1.8(k)(1) and the prohibition of SCR 20:1.8(k)(2) together clearly indicate that the prohibited "sexual relations," whether intercourse or touching, must be intentionally done between the lawyer and one particular person, namely the client.... [B]ecause it does not appear that the definitional elements of "sexual relations" have been satisfied, the simple term "with" in the prohibitional phrase in SCR 20:1.8(k)(2) cannot transform this situation into a violation of the rule.

Note that Mr. Inglimo was found guilty of a good deal of other misconduct, involving sex, drugs, and money, and was suspended from the practice of law for 3 years.

I'm not sure how representative these views are, and I can see a downside to following this advice. But my correspondent has fresher experience with grading papers than I have, so I thought the advice would be worth passing along:

You mention in the book already [my correspondent is talking about my Academic Legal Writing book] that if you think of more than one possible thesis, you should choose the more creative one. I think this is much more important than you make it seem. This year, our competition was about [a topic that implicated a circuit split].... Out of my alloted stack of 22 papers, about 18 of them took one side or the other (or some more complicated position) on the circuit split.

The other 4 papers had very different sorts of theses.... All of these topics [that the 4 papers focused on] were mentioned in the cases and supplementary materials, and there were enough sources to make a 7-page comment out of it, but the topics were not clearly indicated by the packet materials.

These papers were at a significant advantage. First, they got all the creativity points instantaneously, though for us this was only 2 points out of 45 total. More importantly, they put the grader in a good mood after the monotony of reading the same thesis elaborated over and over. And even more importantly, I hadn't been primed with the counterarguments already, so the papers probably got more points for thoroughness and convincingness of arguments than they would have if I'd seen 20 papers making various counterarguments.

I should note also that I followed this "ignore the circuit split" strategy when I took the competition last year, and it worked. (Though I was really nervous about making that choice at the time.)

Second, structure is critically important. Not only is it allocated more possible points than any category except analysis, it also helps the grader understand the analysis better and can therefore lead to more points in that category, too. If two papers raise exactly the same arguments and counterarguments, the one that is structured more clearly will almost certainly get more analysis points than the other, in addition to the extra structure points. Additionally, having clear structure when writing the paper can show you, as the author, which arguments don't quite work and help you make them better.

Nearly all of the papers I graded had exactly the following headings:
I. Facts
II. Analysis
III. Conclusion

This is basically no help at all. It doesn't tell me anything about what the argument is and where it's going. I understand that it might be tempting to forgo subheadings because of the major space constraints, but they are totally worth it.

Bill Patry (The Patry Copyright Blog) points to a very interesting article about this.

Lyle Denniston (SCOTUSblog) reports that the Court will consider the petition Nov. 9. That means it may announce the grant or denial of certiorari Nov. 13, though the Justices might delay it for a week or more in certain circumstances. "The case, if granted, would probably be heard in February or March."

UPDATE: Whoops, the link was wrong; fixed it, thanks to an anonymous commenter.