The Volokh Conspiracy

From Matter of Rubino (N.Y. Sup. Ct. Feb. 1, 2012, posted online Feb. 7); the last three paragraphs, which discuss free-speech-related factors as to the magnitude of the penalty, are particularly interesting, though debatable:

In 1995, petitioner, a tenured teacher, began working for respondent New York City ]Department of Education (DOE). (Pet.). In February of 1997, she began working at Public School (P.S.) 203 in Brooklyn. (Petitioner’s Appendix [Pet. Appx.]).

On June 22, 2010, a New York City public school student fatally drowned during a field trip to the beach. On June 23, 2010, after the school day was over and petitioner was at home, she posted the following on her Facebook page: “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!” One of her Facebook friends then posted, “oh you would let little Kwame float away!” to which petitioner responded, “Yes, I wld (sic) not throw a life jacket in for a million!!”

After viewing petitioner’s postings, one of petitioner’s Facebook friends, a P.S. 203 colleague, contacted the school’s assistant principal and expressed concern about the propriety of the postings…. [The hearing officer found that petitioner had engaged in "misconduct, neglect of duty and conduct unbecoming her profession” based on the comments and on the teacher’s allegedly “directing her friend, Joanne Engel, to provide false information to investigators by claiming to have written the comments on [petitioner's] Facebook.com webpage … so that [petitioner] would not get in trouble.” –EV]…. In deeming termination the appropriate penalty for petitioner’s misconduct, the hearing officer emphasized the public nature of online postings and noted that petitioner had breached DOE’s trust by conspiring with her friend such that “it is impossible for her employment to be continued” and that teachers should instill in their students the importance of taking responsibility for their actions….

[The judge held that the finding of misconduct was not arbitrary and capricious -- the legal standard used for review of such decisions under New York law -- and found that he could not consider the First Amendment arguments as to that finding. But he then turned to the magnitude of the penalty:]

The standard for reviewing a penalty imposed after a hearing held pursuant to Education Law § 3020-a is whether the punishment imposed “is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness.” … Here, petitioner’s 15-year employment history with the DOE was unblemished before she posted the offensive comments, and she posted them outside the school building and after school hours. Moreover, there is no indication in the record, nor any finding, that her postings affected her ability to teach.

There is also no evidence that her postings injured her students or that she intended any injury. Although the hearing officer emphasized the public nature of her postings and her creation of an “electronic footprint,” she made no finding as to their effect on petitioner’s past and future students. And, the specter of racism emerging from the postings did not originate with petitioner, and there is no indication in the record apart from the posting that she is intolerant or that the feeling she expressed, made after a hard day at work, affects the manner in which she teaches and treats her students.

While [for procedural reasons] I do not address the hearing officer’s determination as to the alleged violation of petitioner’s first amendment right to freedom of speech, in these circumstances, termination of petitioner’s employment is inconsistent with the spirit of the first amendment. Facebook has rapidly evolved from a platform used solely by American college students to a world-wide social and professional network. It is commonly used to advertise businesses, organize parties, debate politics, and air one’s grievances, among myriad other uses. Indeed, with Facebook, as with social media in general, one may express oneself as freely and rapidly as when conversing on the telephone with a friend. Thus, even though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable. While her reference to a child’s death is repulsive, there is no evidence that her postings are part of a pattern of conduct or anything other than an isolated incident of intemperance.

Moreover, there is no reason to believe that petitioner will again post inappropriate or offensive comments online, as she repeatedly apologized during the administrative hearing for the posts, and expressed tearful remorse at oral argument before me….

And, while students must learn to take responsibility for their actions, they should also know that sometimes there are second chances and that compassion is a quality rightly valued in our society. Ending petitioner’s long-term employment on the basis of a single isolated lapse of judgment teaches otherwise. While I do not condone petitioner’s conduct and acknowledge that teachers should act as role models for their students, termination in these circumstances does not correspond with the measure of compassion a teacher should show her students. Rather, it places far too great a strain on the right to express oneself freely among friends, notwithstanding the repulsiveness of that expression. (Cf Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 US 557, 574 [1995] ["the point of all speech protection ... is to shield just those choices of content that in someone's eyes are misguided, or even hurtful."]; Texas v Johnson, 491 US 397, 414[1989] ["If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."]). …

So holds Dixon v. University of Toledo (N.D. Ohio Feb, 6, 2012). (I blogged about this case when it was filed.) A few thoughts:

(1) Some of the analysis seems limited to high-level “policymaking” employees, such as a university Associate Vice President.

(2) But some of the argument suggests that any time any government manager with hiring and firing authority — or even with substantial input into hiring and firing decisions — speaks out in opposition to civil rights laws protecting gays, the government may fire the manager on the grounds that the speech (a) “could disrupt the … [d]epartment by making homosexual employees uncomfortable or disgruntled,” (b) might lead “homosexual prospective employees [to] reconsider applications,” and (c) might “lead to challenges to her personnel decisions.”

(3) This in turn highlights the danger to government managerial employees who want to participate in, for instance, campaigns opposing same-sex marriage or proposed laws banning sexual orientation discrimination. If you’re such an employee, you’d be wise to keep your mouth shut on such matters, whether it comes to letters to the editor, to blog posts, to yard signs, to campaign donations, or to signatures on initiative or referendum petitions (in states that disclose such signatures). After all, any of these might be noticed by people who will publicize what you said or did, and who will directly or indirectly inform your supervisors about it.

Maybe that’s an acceptable price to pay for effective functioning of government workplaces — the Pickering test is generally not very speech-protective, on this subject or others — and maybe it’s not. But in any case that seems to be where things are headed, at least in many such workplaces.

As Associate Vice President for Human Resources, Plaintiff was an “appointing authority” at the University, which means she had the power to hire and fire employees…. The University had an Equal Opportunity Policy which prohibited discrimination based on sexual orientation. Further, the University has taken explicit steps to reach out to homosexuals and make them feel welcome.

On April 4, 2008, the Toledo Free Press ran an opinion by Michael Miller which Plaintiff felt compared the modern movement toward increased tolerance and rights for homosexuals to the historical struggles of the African–American civil rights movement and which noted that one University of Toledo campus offered domestic partner benefits and the other did not. Due to her religious conviction, Plaintiff, an African–American woman, felt the need to respond. The Toledo Free Press ran her response on April 18, 2008. In it she objected to the idea that homosexuals are “civil rights victims,” asserted that homosexuality is purely a choice, and noted that the inter-campus benefits disparities involved all employees, not just those interested in domestic partner benefits. Plaintiff identified herself as “an alumnus of the University of Toledo’s Graduate School, an employee and business owner” and signed only her name, though she used her University photograph. She did not mention her title or duties within the University…. Because of the response to her article, Plaintiff was immediately placed on administrative leave….

Continue reading ‘Government Employer Free to Fire Human Resources Officials Who Publicly Criticize the Propriety of Gay Rights Laws’ »

The Deseret News reports:

Former Naples Police Chief Steven C. Guibord is charged with criminal defamation, a class B misdemeanor, in Uintah County. Prosecutors allege that he used the name of the city’s current police chief [Mark Watkins] to post derogatory comments on the online memorial pages for the two fallen Border Patrol agents….

Guibord — posing as Watkins — posted comments on memorial pages for two Border Patrol agents that are offensive to law enforcement officers, according to state investigators….

Clark’s page on the Officer Down Memorial Page website included a comment attributed to Watkins that said, “I realize that the Border Patrol is just a security organization, but we, in the police services recognize your sacrifice.”

Rojas’ page contained a similar comment, also attributed to Watkins, that referred to the Border Patrol as a “security business.”

For those in the law enforcement community, being identified as a security guard is considered a serious insult….

The theory is that Guibord’s use of Watkins’ name — which essentially states to readers that Watkins posted the comments — is a knowing falsehood that injures Watkins’ reputation. One could argue that the falsehood isn’t defamatory, because a reasonable reader wouldn’t perceive the statements as that derogatory, and therefore wouldn’t have a dimmer view of Watkins. But given the audience, and the fact that Watkins is a police chief, I suspect that the attribution of the statements to Watkins would indeed injure Watkins’ reputation.

And if this is so, then the criminal libel prosecution would likely be permissible: Though Garrison v. Louisiana (1964) held that criminal libel laws must require a showing that the speech is a knowing or reckless falsehood, Utah Code § 76-9-404 — which says, “[a] person is guilty of criminal defamation if he knowingly communicates to any person orally or in writing any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt, or ridicule” — embodies such a requirement. (For more on this, see I.M.L. v. State (Utah. App. 2002), which struck down a different Utah criminal libel statute.) Though most states have repealed their criminal libel statutes, the remaining statutes, if sufficiently narrow (as Utah’s seems to be), are likely constitutional.

Thanks to Dan Laidman for the pointer.

Here’s another London School of Economics Students’ Union resolution:

Union believes …
3. Anti-Semitism includes but is not limited to:
* Denying, trivializing and misconstruing the Nazi Holocaust. This includes denying the fact, scope, method, or motivation for the genocide of 6 million Jews at the hands of the National Socialist regime. It also includes the accusation that Jews or the state of Israel have fabricated, cause or over-exaggerated the Holocaust.
* Calling for, aiding or justifying the killing or harming of Jews for the sake of their Jewish religion, ethnicity or identity.
* Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such. This includes accusations of Jewish control of the world, government, media, as well as blaming Jews for imagined and real atrocities.
* Questioning the loyalty of Jews to their nation of citizenship simply on the basis of their Jewish identity. This includes claims that Jews as a collective or a community subvert or mislead the general population, as well as the claim that Jews are more loyal to the state of Israel than their country of citizenship.
* Claiming that Jews do not have the same rights as any other ethnic group. This includes the right to free speech, free practice of religion, free use of native languages (i.e. Hebrew, Yiddish, Ladino, etc.) and self-determination.
* Equating Jews or maliciously equating Jewish Foundations of the state of Israel with the Nazi Regime. This includes, but is not limited to equating Zionism with Nazism and claiming that ‘History is repeating itself’ with regards to the Nazi Holocaust and the state of Israel. This also includes using Jewish symbols and religious imagery alongside Nazi symbols and imagery. This does not necessarily include analogies between historical events.
* Using Jewish symbols to antagonize, harass, and intimidate Jewish students.
4. Legitimate criticism of the Israeli government and its actions are not inherently anti-Semitic.

Union resolves …
2. To ensure all anti-Semitic incidents aimed at or perpetrated by LSE students either verbal, physical or online are dealt with swiftly and effectively in conjunction with the school and, if appropriate or requested by the victim, the Metropolitan Police.

Now apparently LSE students are supposed to be “dealt with swiftly and effectively” for analogizing Israeli conduct to the Holocaust, or claiming that Israel shouldn’t exist (since I take it that this would be seen as denying Jews’ “self-determination”), “blaming Jews for imagined and real atrocities,” “using Jewish symbols to antagonize … Jewish students,” or claiming that Jews are generally more loyal to Israel than to their country of citizenship. As it happens, I think that such speech is generally bunk. But the point of Western universities, it seems to me, is to be places where bunk can be debunked — not “dealt with swiftly and effectively” through administrative sanctions (or, “if appropriate or requested by the victim,” by the police), including when it isn’t even said in university programs but “online” “by LSE students.”

That’s what the London School of Economics Students’ Union — as best I can tell, the British equivalent of a student government here in the U.S. — resolved, with Islamophobia defined to include “hatred or fear of Islam, Muslims, or Islamic culture, and the stereotyping, demonisation or harassment of Muslims, including but not limited to portraying Muslims as barbarians or terrorists, or attacking the Qur’an as a manual of hatred.” Here’s the resolution:

Union believes
1. In the right to criticise religion,
2. In freedom of speech and thought,
3. It has a responsibility to protect its members from hate crime and hate speech,
4. Debate on religious matters should not be limited by what may be offensive to any particular religion, but the deliberate and persistent targeting of one religious group about any issue with the intent or effect of being Islamophobic (‘Islamophobia’ as defined below) will not be tolerated.
5. That Islamophobia is a form of anti-Islamic racism.

Union resolves
1. To define Islamophobia as “a form of racism expressed through the hatred or fear of Islam, Muslims, or Islamic culture, and the stereotyping, demonisation or harassment of Muslims, including but not limited to portraying Muslims as barbarians or terrorists, or attacking the Qur’an as a manual of hatred”, …
4. To ensure that all Islamophobic incidents aimed at or perpetrated by LSE students either verbal, physical or online are dealt with swiftly and effectively in conjunction with the School ….

Here’s the problem: What does it mean to “believe[]” “in freedom of speech,” if you can’t express your view that the Koran is a manual of hatred, or that Islam — or Catholicism or Scientology or atheism or any other belief system — should be hated or feared? How you can have a sensible “[d]ebate on religious matters” about the worth or dangerousness of these belief systems if the view that some of the systems are evil is “dealt with swiftly and effectively” by the School and its student government?

The Daily Mail (UK) reports:

Two British tourists were barred from entering America after joking on Twitter that they were going to ‘destroy America’ and ‘dig up Marilyn Monroe’.

Leigh Van Bryan, 26, was handcuffed and kept under armed guard in a cell with Mexican drug dealers for 12 hours after landing in Los Angeles with pal Emily Bunting.

The Department of Homeland Security flagged him as a potential threat when he posted an excited tweet to his pals about his forthcoming trip to Hollywood which read: ‘Free this week, for quick gossip/prep before I go and destroy America?’ …

Leigh was also quizzed about another tweet which quoted hit US comedy Family Guy which read: ’3 weeks today, we’re totally in LA p****** people off on Hollywood Blvd and diggin’ Marilyn Monroe up![']

A New York Times blog post suggests the story is indeed correct, and quotes a Customs and Border Protection response that seems to acknowledge at least some details.

If the facts described in these stories are correct, this strikes me as a pretty unsound decision on the government’s part. To be sure, the government has broad authority to exclude people from the country, even based on their speech — see Kleindienst v. Mandel (1972) — and the authority would be properly exercised for people who really do seem to be threats. But I don’t see the reported Twitter messages as being an adequate basis (again, if they were the extent of the basis) to justify the government’s decisions here. Likewise, while I realize that when someone is excluded from the country they have to be held somewhere until they can leave, locking them up with people who likely genuinely are serious criminals strikes me as improper treatment.

UPDATE: I erroneously faulted TSA for the actions here — the agency involved was Customs and Border Protection, which is also part of the Department of Homeland Security. My apologies for the error, and thanks to commenter Decius for the correction.

The New York Times reports:

[M]any in Tunisia, both pious and less so, were taken aback by the brief scene in which God was personified — speaking in Tunisian slang no less. A week later, a crowd of Salafis — the term used for the most conservative Islamists — attacked the house of Nabil Karoui, the station’s director, and he was soon charged with libeling religion and broadcasting information that could “harm public order or good morals.”

The trial, which Human Rights Watch called “a disturbing turn for the nascent Tunisian democracy,” was originally scheduled for Nov. 16, then postponed until January [and has since been postponed again, until April].

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

From today’s United States v. Strandlof (10th Cir. Jan. 27, 2012):

As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech. Under this principle, the Stolen Valor Act does not impinge on or chill protected speech, and therefore does not offend the First Amendment.

One judge dissents from the panel decision, reasoning:

The majority holds that such statements — at least when made knowingly and with an intent to deceive — are categorically beyond the protective universe of the First Amendment. In contrast, I believe that the First Amendment generally accords protection to such false statements of fact. Consequently, because it is a content-based restriction on speech, the Stolen Valor Act must satisfy strict scrutiny. This it cannot do.

The Supreme Court will have the last word on this, when it decides the same question this Term in United States v. Alvarez; but I suspect that the Tenth Circuit judges’ opinions in Strandlof, which are long and detailed, will be considered carefully by the Court.

From Montana Code § 13-35-218, titled “Coercion or Undue Influence of Voters,” first enacted by referendum in 1913 and still in effect:

A person who is a minister, preacher, priest, or other church officer or who is an officer of any corporation or organization, religious or otherwise, may not, other than by public speech or print, urge, persuade, or command any voter to vote or refrain from voting for or against any candidate, political party ticket, or ballot issue submitted to the people because of the person’s religious duty or the interest of any corporation, church, or other organization.

Today, this would be pretty clearly seen as an unconstitutional speech restriction, but apparently in 1913 it was seen as a good government measure. Similar laws were enacted in Nevada and Oregon around the same time.

The Telegraph (UK) reports:

An Indonesian civil servant who posted a Facebook message asserting that God did not exist was taken into protective custody after being badly beaten by a mob, some of them his colleagues.

The atheist identified as Alexander, who goes by just one name, now faces five years imprisonment for blasphemy after police officially arrested and charged him on Friday.

The Indonesian Council of Ulema, the Islamic religious authority, reported him over his remarks on a Facebook page he moderated which said: “God does not exist[.]” Mr Alexander, 31, turned up at his government planning offices in Dharmasraya, western Sumatra, on Wednesday to be confronted by a group of men who beat him and then took him to the police.

Thanks to Opher Banarie for the pointer.

The Occupy Wall Street movement is often seen as a left-wing counterpart to the Tea Party movement. Until recently, however, OWS has differed from the Tea Party in so far as it paid little attention to constitutional issues. By contrast, constitutional issues are a central focus of the Tea Party, which claims that the courts have departed from the original meaning and have allowed the federal government to seize too much power. As I explained in this article, the Tea Party fits the classic model of “popular constitutionalism” – a popular movement that makes constitutional issues a central focus of its agenda. Until now, such issues have been mostly peripheral for OWS.

Today, however, a group inspired by OWS is holding a series of “Occupy the Courts” protests, which do focus on constitutional issues, mostly attacking the Supreme Court’s campaign finance decisions:

The “Occupy” movement will turn its focus on the nation’s highest court Friday as organizers plan to gather around the Supreme Court building dressed like justices and singing songs of the Motown group, The Supremes.

The event is being held around the two-year anniversary of the Supreme Court decision in the case of Citizens United v. Federal Election Commission, which removed many limits to corporate spending in federal political campaigns, organizers say….

The one-day event dubbed “Occupy the Courts” is organized by the grassroots group called Move to Amend and was inspired by the Occupy Wall Street participants, organizers said.

“Move to Amend volunteers across the USA will lead the charge on the judiciary which created — and continues to expand — corporate personhood rights,” the Occupy the Courts website states.

There is some irony in the OWS protestors campaign against “corporate personhood.” OWS gets a great deal of financial and organizational support from labor unions and other left-wing organizations that are, legally speaking, organized as corporations. Labor unions were, in fact, among the biggest beneficiaries of the Supreme Court’s Citizens United decision, which the OWS protesters revile. Do the protesters believe that labor unions and left-wing nonprofits have First Amendment rights? Should the government have unconstrained authority to forbid unions and other corporate entities from spending money on OWS protests and other forms of political speech? If not, then the OWS protesters cannot categorically reject the idea that people organized as corporations have constitutional rights too.

Perhaps the real argument is that only profit-making corporations should be denied constitutional rights, while unions and nonprofits fall in a different category. But there is nothing in the text, structure, or history of the Constitution to support any such distinction. Freedom of speech applies just as readily to speakers motivated by economic self-interest as those with more altruistic motives. Moreover, economic self-interest is a big part of the motivation of labor unions too. One of the main purposes of unions is to increase the incomes of their members. OWS itself often appeals to economic self-interest. After all, one of their central demands is the redistribution of wealth from “the 1%” to “the 99%,” including OWS activists themselves.

Such contradictions are not unusual in popular constitutionalist movements. Many Tea Party supporters, for example, continue to back the federal War on Drugs, despite the fact that much of it is unconstitutional under a limited, originalist interpretation of congressional power.

Whether OWS addresses the contradiction in their position, and, more generally, tries to develop a coherent constitutional vision remains to be seen. It’s possible that OWS will, over time, make constitutional issues a major part of their agenda, thereby becoming a full-blown popular constitutional movement. It is also possible that they will quickly move back to focusing on other matters. If I had to guess, I would predict that constitutional concerns are unlikely to become a central focus of OWS. They have too many other issues that interest them more. However, the movement is still relatively new and could easily develop in unexpected directions.

UPDATE: Lest there be any doubt, Move to Amend, the OWS offshoot that organized the “Occupy the Courts” protests states on their website that their position is that “human beings, not corporations, are the persons entitled to constitutional rights.” They don’t just think that Citizens United was wrongly decided. They believe that corporate entities should not be able to claim any constitutional rights at all. That, of course, includes not only free speech rights for unions and nonprofit corporations, but also numerous other rights.

The New York Daily News reports:

A bigot named their WiFi signal “F— All Jews and N—-” — and now cops are investigating.

The hateful signal I.D. popped up on the iPhone of a 28-year-old mom inside a Teaneck, N.J. recreation center, where her 3-year-old daughter was attending dance class….

The Teaneck Police Department Juvenile Bureau and the Bergen County Prosecutor’s Office Computer Crime Unit are investigating it as a “possible bias crime,” Wilson said.

It should go without saying that the WiFi guy is scum, but scum have First Amendment rights, too. He has the First Amendment right to put up a sign in his window saying “Fuck All Jews and Niggers” — or burn a flag on his front lawn, or display blasphemous images where others might see them — though such speech would be understandably offensive to neighbors and passersby. Likewise, he has the right to attach such a name to his WiFi network, even though the name would be visible to neighboring WiFi users.

UPDATE: A commenter suggested that “fuck” could be banned as an “obscenity.” Not so, said the Court in Cohen v. California (1971) (holding that the wearing of a “Fuck the Draft” jacket may not be banned on such grounds). Another suggested that the words are punishable “fighting words.” But as cases such as Cohen and Gooding v. Wilson (1972) have made clear, speech can be punished as fighting words only if it is reasonably likely to lead to an immediate attack by a personally offended listener against the speaker; no such attack is likely when the speaker is not physically present, and can’t be readily identified even by those who want to immediately go and seek him out.

Another commenter suggested that the FCC has extra authority to regulate such speech, under FCC v. Pacifica Foundation (1978). I don’t think so. First, though the Pacifica decision is quite vague, it focused on traditional radio broadcasting and I doubt that it would be applicable to wireless network names (even if it is survives the Court’s reconsideration of the issue in the pending FCC v. Fox Television Stations case). Second, if the objection is to the racism and anti-Semitism and not just the word “fuck,” that would run afoul of the Pacifica plurality’s acknowledgment that “if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection”; viewpoint-neutral restrictions on vulgarity on radio broadcasting are constitutionally permissible, the Court held, but viewpoint-based bans on bigoted speech would not be. And, third and most important, Pacifica rested heavily on the FCC’s special authority in the area — and, to my knowledge, there is no FCC regulation restricting vulgar WiFi network names, and in any event that does not seem to be the legal avenue that the local police department seems to be pursuing.

The Shawano High School newspaper decided to run dueling student opinion pieces on whether same-sex couples should be able to adopt children; the student article that answered the question “no” said, among other things, quotes Leviticus 20:13 (“If there is a man who lies with a male as those who lie with a woman, both of of them have committed a detestable act; they shall surely be put to death. Their bloodguiltiness is upon them.”). The school district then publicly apologized for the column, as an “[o]ffensive article[] cultivating a negative environment of disrespect,” and said that it is “taking steps to prevent items of this nature from happening in the future.” And in a Fox interview, the school superintendent labeled the column a form of “bullying.”

Now I’ve long thought that Hazelwood School Dist. v. Kuhlmeier (1988) was correct, and that public K-12 schools should be free to control what is published in the school newspaper. If a school wants the newspaper to be its voice, it should be entitled to dictate which subjects and which viewpoints it chooses to carry, even when it speaks through the speech of students.

But what troubles me here is the superintendent’s willingness to label such speech as a form of “bullying,” which is speech that schools often ban even outside the school’s own newspaper, that schools often try to restrict even when it is said outside school, and that legislatures sometimes even try to criminalize. Indeed, the Shawano School District’s bullying policy provides that “bullying” may lead to “warning, suspension, exclusion, pre-expulsion, expulsion, transfer, remediation, termination, or discharge. Disciplinary consequences will be sufficiently severe to try to deter violations and to appropriately discipline prohibited behavior.”

I’ve long been troubled by anti-bullying policies and criminal laws, partly because “bullying” is a vague and potentially very broad term, which could easily be used to refer to political advocacy and expression of religious views. This incident, it seems to me, helps illustrate that some school officials indeed view the term “bullying” this broadly.

Following Citizens United, I heard many people argue that the Court was wrong because corporations should not be seen as having First Amendment rights — not just that they do have First Amendment rights but that there’s some special compelling interest that justifies restricting corporate speech about candidates, but that corporations aren’t people and therefore can’t have First Amendment rights at all. (UPDATE: I don’t agree with this, for reasons that include those briefly sketched here, but I set those arguments aside for now.) Let me then ask this question of our readers who take this view:

Today, Google’s U.S. query page features an anti-Stop-Online-Piracy-Act statement from Google. Say that Congress concludes that it’s unfair for Google to be able to speak so broadly, in a way that ordinary Americans (including ordinary Congressmen) generally can’t. Congress therefore enacts a statute banning all corporations from spending their money — and therefore banning them from speaking — in support of or opposition to any statute. What would you say about such a statute? Again, I limit the question to those who think corporations generally lack First Amendment rights.

(1) Perfectly constitutional, because corporations aren’t people, and thus have no First Amendment rights.

(2) Unconstitutional as applied to Google, because media corporations do have First Amendment rights, though other corporations don’t, and Google should be seen as a media corporation, even as to its query page rather than as to news.google.com and the like.

(3) Unconstitutional, because though corporations aren’t people and thus have no First Amendment rights for purposes of advertising in support of or opposition to candidates, they are people and thus do have First Amendment rights for purposes of other speech.

(4) Unconstitutional, for some other reason.

From TheNews.pl:

A Polish pop star has been fined 5000 zloty (1140 euro) by a Warsaw court for offending religious feelings.

Dorota Rabczewska, known to the public as Doda, was taken to court owing to an interview she gave for the Gazeta Dziennik Prawna daily in 2009. In the interview, the singer lamented that there were no references to dinosaurs in the Bible, and said it was “hard to believe in something written by someone who was hammered on wine and who’d been smoking herbs.”

The Warsaw Business Journal adds:

[T]he judge in the case, Agnieszka Jarosz, ruled that the artist’s statements could not be defended by an appeal to freedom of speech. She said Ms Rabczewska had the right “to assess [the content of the Bible] in the context of scientific discovery but had no right to insult” the religious text.

For more on this case, see this post from when the case was filed.

I’m pleased to say that the Electronic Frontier Foundation has asked the court for leave to file this amicus brief [UPDATE: link fixed] in our Obsidian Finance Group, LLC v. Cox case. To see links to the district court opinion in that case, and to our motion for new trial in that case, please go here.

Minn. Stats. Ann. § 10A.36 makes it a gross misdemeanor for “[a]n individual or association” to “engage in economic reprisals or threaten loss of employment or physical coercion against an individual or association because of that individual’s or association’s political contributions or political activity.” There is an exception for “compensation for employment or loss of employment if the political affiliation or viewpoint of the employee is a bona fide occupational qualification of the employment.”

As I read this, the statute criminalizes pretty much any boycott or other economic retaliation against a person because of his “political activity.” Is this a just law? Or should people have the right to take their business elsewhere, whether on their own or together with others, and whether as customers, contractors, or employers, if they disapprove of a person’s political activities?

Should the answer be different when we’re talking about reprisals by customers, vendors, contractors, landlords, or employers? Many states impose such restrictions on employers’ firing employees for certain kinds of political activity, and South Carolina law also bans landlords from evicting their tenants for political activity, but the Minnesota statute is the only I could find that bans “economic reprisals” more broadly. (I set aside the ban on threats of physical coercion, which I think are rightly prohibited.)

I should note that, under NAACP v. Claiborne Hardware (1982), speech encouraging a boycott is protected by the First Amendment. But this law prohibits the actual economic reprisal, not the speech urging it.

New Orleans Code of Ordinance § 54-256.1 prohibits “[s]igns containing language with vulgar content, explicit sexual descriptions, offensive written descriptions directed to a gender, class, racial or religious category or any combination of words including phonetic spellings or a foreign language equivalent which can be interpreted or defined as sexually suggestive, containing lewd connotations, or used to promote, solicit, depict, define, recruit, advertise or initiate immoral conduct, unlawful behavior or provide visual access to carnal language …..”

Our local counsel Benjamin Souede (Angeli Law Group LLC) and I have just filed a motion for new trial in Obsidian Finance Group, LLC v. Cox. As you may recall, the Nov. 30 opinion in that case concluded, among other things, that only members of the institutional media are entitled to certain First Amendment libel law protections. The motion for new trial argues that the First Amendment applies equally to all who speak to the public, whether or not they belong to the institutional media. Here is Part I.A of our memorandum in support of the motion:

Even if plaintiffs were not public figures, defendant was still entitled to the protections of Gertz v. Robert Welch, Inc.

The Supreme Court has held that the First Amendment applies equally to the institutional press and to others who speak to the public: “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” Citizens United v. FEC, 130 S. Ct. 876, 905 (2010) (internal quotation marks omitted). In support of this holding, the Court favorably quoted five Justices’ opinions in a libel case — Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 784 (1985) (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting), and id. at 773 (White, J., concurring in judgment) — which expressly concluded that “in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals or organizations engaged in the same activities,” id. at 784 (a view expressly approved by Justice White, id. at 773). And the Court in Citizens United went on to specifically mention that its “‘reject[ion]’” of any greater protection for the institutional press over other speakers stemmed partly from the realities of the Internet age: “With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.” 130 S. Ct. at 905-06.

Indeed, the principle that the institutional press and others who speak to the public have the same First Amendment rights has been applied by the Court in case after case since the 1930s. See, e.g., Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (stating that the freedom of the press “embraces pamphlets and leaflets” as well as “newspapers and periodicals,” and indeed “comprehends every sort of publication which affords a vehicle of information and opinion”); New York Times Co. v. Sullivan, 376 U.S. 254, 265-66 (1964) (applying the same First Amendment protection to the newspaper defendant and to the non-media defendants who placed an advertisement in the newspaper); Garrison v. Louisiana, 379 U.S. 64 (1964) (applying the rule of New York Times Co. v. Sullivan to a speaker who was not a member of the institutional press); Henry v. Collins, 380 U.S. 356, 357-58 (1965) (same, where the speaker was an arrestee who conveyed statements to the sheriff and to wire services alleging that his arrest stemmed from a “diabolical plot,” Henry v. Collins, 158 So.2d 28, 31 (Miss. 1963)); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 782 n.18 (1978) (rejecting the “suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by [non-institutional-press businesses]”); Cohen v. Cowles Media Co., 501 U.S. 663, 669-70 (1991) (concluding that the press gets no special immunity from laws that apply to others, including laws — such as copyright law — that target communication); Bartnicki v. Vopper, 532 U.S. 514, 525 & n.8 (2001) (concluding that, in deciding whether defendants could be held liable under statutes banning the redistribution of illegally intercepted telephone conversations, “we draw no distinction between the media respondents and [the non-institutional-media respondent],” and citing New York Times and First Nat’l Bank of Boston as support for that conclusion).

All the federal circuits that have considered the question have likewise held that the First Amendment defamation rules apply equally to the institutional press and to others who speak to the public. Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144, 149 (2d Cir. 2000); Avins v. White, 627 F.2d 637, 649 (3d Cir. 1980); Snyder v. Phelps, 580 F.3d 206, 219 n.13 (4th Cir. 2009), aff’d, 131 S. Ct. 1207 (2011); In re IBP Confidential Bus. Documents Litig., 797 F.2d 632, 642 (8th Cir. 1986); Garcia v. Bd. of Educ., 777 F.2d 1403, 1410 (10th Cir. 1985); Davis v. Schuchat, 510 F.2d 731, 734 n.3 (D.C. Cir. 1975). As the Second Circuit put it in Flamm, “a distinction drawn according to whether the defendant is a member of the media or not is untenable,” even in private-figure cases. 201 F.3d at 149. And while the Ninth Circuit has not specifically discussed the question, it has indeed cited Gertz even where a non-institutional-press speaker was involved. See Newcombe v. Adolf Coors Co., 157 F.3d 686, 694 n.4 (9th Cir. 1998) (citing Gertz for the proposition that a “private person who is allegedly defamed” must show “that the defamation was due to the negligence of the defendant,” in a case where the defendant was not a media organization).

Continue reading ‘Motion for New Trial in Obsidian Finance Group, LLC v. Cox’ »

An interesting National Law Journal op-ed from Clark Neily and Paul Sherman of the Institute for Justice, about a case of theirs, Locke v. Shore:

[T]he U.S. Court of Appeals for the 11th Circuit boldly declared last March that the regulation of “professionals’ … direct, personalized speech with clients” received no First Amendment scrutiny whatsoever.

Fortunately, that aberrant holding may not stand much longer. This Friday, the U.S. Supreme Court will meet to decide whether to review the 11th Circuit’s ruling. If it takes the case — Locke v. Shore — it will be the Court’s first opportunity in 25 years to provide much-needed guidance on the First Amendment status of “occupational speech,” a murky area of the law that has grown increasingly important as more and more people earn their living by selling their speech.

Locke v. Shore is a challenge to a Florida law that requires interior designers to be licensed by the government before they may work in a commercial setting. The plaintiffs are three interior designers and the National Federation of Independent Business, some of whose members wish to engage in speech that Florida has broadly defined as the “practice of interior design.”

Florida is one of only three states in the nation to license the practice of interior design, and the burdens Florida’s law imposes on would-be designers are extraordinary, particularly in light of the fact that 47 states see no need to license them and have had no problems as a result. Acquiring an interior design license takes years and can cost tens of thousands of dollars. To be eligible for licensure, an applicant must first complete a combined six years of post-secondary education and apprenticeship under a state-licensed interior designer and pass a state-mandated exam administered by a private testing body.

Viewed through a First Amendment lens, the law is clearly unconstitutional. Virtually everything an interior designer does is speech, from consulting with clients regarding their personal goals and tastes, to drawing up space plans, to offering advice about the selection and placement of fixtures, finishes and furnishings. The Supreme Court has repeatedly held that all of these kinds of activities constitute “speech” within the meaning of the First Amendment. Weighed against the immense burdens Florida’s interior design law imposes on this speech is an utter dearth of evidence regarding the law’s supposed benefits to the public. Indeed, attorneys for the state stipulated during the litigation they had no evidence that the unlicensed practice of interior design — which is the norm in 47 states — poses any bona fide threat to the public, or that Florida’s licensing regime had benefited the public in any demonstrable way….

I was glad to have worked on Rob Kry’s amicus brief in this case on behalf of various industry groups.

A common argument against the claim that “the freedom of the press” protects all who use mass communications technology — and thus in favor of the claim that “the freedom of the press” specially protects the institutional media — is that otherwise the “freedom of the press” would be redundant of the “freedom of speech.” After all, the argument goes, the Court has long treated printed communication as “speech”; given this, the only way to give independent meaning to the “freedom of the press” is to view it as extending independent protection to the press-as-industry.

I don’t think that’s right, for reasons I talk about in Part I.E of my Penn article on the subject:

The freedom of the press-as-technology, of course, was not seen [during the Framing era] as redundant of the freedom of speech. St. George Tucker, for instance, discussed the freedom of speech as focusing on the spoken word and the freedom of the press as focusing on the printed:

The best speech cannot be heard, by any great number of persons. The best speech may be misunderstood, misrepresented, and imperfectly remembered by those who are present. To all the rest of mankind, it is, as if it had never been. The best speech must also be short for the investigation of any subject of an intricate nature, or even a plain one, if it be of more than ordinary length. The best speech then must be altogether inadequate to the due exercise of the censorial power, by the people. The only adequate supplementary aid for these defects, is the absolute freedom of the press.

Likewise, George Hay, who later became a U.S. Attorney and a federal judge, wrote in 1799 that “freedom of speech means, in the construction of the Constitution, the privilege of speaking any thing without control” and “the words freedom of the press, which form a part of the same sentence, mean the privilege of printing any thing without control.” Massachusetts Attorney General James Sullivan (1801) similarly treated “the freedom of speech” as referring to “utter[ing], in words spoken,” and “the freedom of the press” as referring to “print[ing] and publish[ing].”

And these sources captured an understanding that was broadly expressed during the surrounding decades. Bishop Thomas Hayter, writing in 1754, described the “Liberty of the Press” as applying the traditionally recognized “Use and Liberty of Speech” to “Printing,” an activity that Hayter described as “only a more extensive and improved Kind of Speech.” Hayter’s work was known and quoted in Revolutionary-era America.

Continue reading ‘The Framers and the Difference Between Freedom of Speech and Freedom of the Press’ »

My article, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Penn. L. Rev. 459 (2011), available in its full PDF form here, has just been published; here is the Introduction:

“[T]he freedom … of the press” specially protects the press as an industry, which is to say newspapers, television stations, and the like — so have argued some judges and scholars, such as the Citizens United v. FEC dissenters and Justices Stewart, Powell, and Douglas. This argument is made in many contexts: election-related speech, libel law, the journalist’s privilege, access to government property, and more.

Some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press, and not to book authors, political advertisers, writers of letters to the editor, professors who post material on their websites, or people who are interviewed by newspaper reporters. Sometimes, this argument is used to support weaker protection for non-institutional-press speakers than is already given to institutional-press speakers. At other times, it is used to support greater protection for institutional-press speakers than they already get. The argument in the latter set of cases is that the greater protection can be limited to institutional-press speakers, and so will undermine rival government interests less than if the greater protection were extended to all speakers.

But other judges and scholars — including the Citizens United majority and Justice Brennan — have argued that the “freedom … of the press” does not protect the press-as-industry, but rather protects everyone’s use of the printing press (and its modern equivalents) as a technology. People or organizations who occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just as protected as newspaper publishers or broadcasters.

Under this approach, the First Amendment rights of the institutional press and of other speakers rise and fall together. Sometimes, this approach is used to support protection for non-institutional-press speakers and to resist calls for lowering that protection below the level offered to institutional-press speakers. At other times, it is used to rebut demands for greater protection: Extending such protection to all speakers, the argument goes, would excessively undermine rival government interests — yet allowing such protection only for the institutional press would improperly give the institutional press special rights.

Both sides in the debate often appeal at least partly to the constitutional text and its presumed original meaning. The words “the press” in the First Amendment must mean the institutional press, says one side. The words must mean press-as-technology, says the other. Citizens United is unlikely to settle the question, given how sharply the four dissenters and many outside commentators have disagreed with the majority. So who is right? What light does the “history” referred to by the Citizens United dissent shed on the “text” and the Framers’ “purpose”?

The answer, it turns out, is that people during the Framing era likely understood the text as fitting the press-as-technology model — as securing the right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry. The text was likely not understood as treating the press-as-industry differently from other people who wanted to rent or borrow the press-as-technology on an occasional basis.

Parts I, II, and III set forth the evidence on this subject from the Framing era and the surrounding decades. Part I discusses, among other things, early reference works and state constitutions that described the freedom of the press as a right of “every freeman,” “every man,” or “every citizen.” This right was generally seen as the right to publish using mass technology, as opposed to the freedom of speech, which was seen at the time as focusing more on in-person speech. Part II discusses the Framing-era understanding that the freedom of the press extended to authors of books and pamphlets — authors who were generally not members of the press-as-industry, though they did use the press as technology. Part III goes on to discuss fifteen cases from 1784 to 1840 that treated the freedom of the press as extending equally to all people who used press technology, and not just to members of the press-as-industry. To my knowledge, these cases have not been discussed before in this context. Each of the sources standing alone may not be dispositive. But put together, they point powerfully toward the press-as-technology reading, under which all users of mass communications technologies have the same freedom of the press.

Part IV turns to how the “freedom … of the press” was understood around 1868, when the Fourteenth Amendment was ratified. Much recent scholarship has suggested that originalist analyses of Bill of Rights provisions applied to the states via the Fourteenth Amendment should consider the original understanding as of 1868 in addition to that of 1791. And it turns out that around 1868, it was even clearer that the “freedom … of the press” secured a right to use the press-astechnology, with no special protection for the press-as-industry. Part V offers evidence that this remained true from 1880 to 1930.

Part VI then looks at how the Supreme Court has understood “freedom … of the press” since 1931, the first year that the Court struck down government action on First Amendment grounds. Throughout that time, the press-as-technology view has continued to be dominant. Many Supreme Court cases have officially endorsed this view. No Supreme Court case has rejected this view, though some cases have suggested the question remains open.

Part VII turns to how the “freedom … of the press” has been understood by lower courts since 1931, and concludes that the press-astechnology view has been dominant there as well. The first lower court decisions I could find adopting the press-as-industry view did not appear until the 1970s. Even since then, only a handful of cases have adopted such a view, and many more have rejected it. (The press-asindustry cases that this Part identifies could also be helpful as test cases for any future work that discusses the policy advantages and disadvantages of the press-as-industry model.)

None of the evidence I describe specifically deals with corporations, the particular speakers involved in Citizens United, but it does show that the institutional media has historically been seen as the equal of other people and organizations for purposes of the “freedom … of the press.” The constitutional protections offered to the institutional media have long been understood — in the early republic, around 1868, from 1868 to 1970, and in the great bulk of cases since 1970 as well — as being no greater than those offered to others.

Finally, the Conclusion briefly discusses what effect this analysis should have on the Court’s interpretation of the Free Press Clause. Of course, text, original meaning, tradition, and precedent have never been the Supreme Court’s sole guides. But any calls for specially protecting the press-as-industry have to look to sources other than text, original meaning, tradition, and precedent for support.

If you’re interested in the subject, whether as to campaign speech restrictions, libel law, the newgatherer’s privilege, or other topics, have a look at the article.

In today’s Western Tradition Partnership, Inc. v. Attorney General, the Montana Supreme Court upheld a ban on corporate expenditures to speak in support of or opposition to political candidates — pretty much the same sort of ban that the United States Supreme Court struck down in Citizens United v. FEC. The majority argues that Citizens United is distinguishable, because of Montana’s “unique” interests stemming from its history, its size, and its political culture. Here’s what strikes me as a key excerpt, though both the majority and the dissent are long, and no short excerpt can do justice to them:

The question then, [given the long Montana history of corporate influence over politics that the court set forth -EV], is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because the shadowy backers of WTP seek to promote their interests? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines? We think not. Issues of corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and low campaign costs make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government. Clearly Montana has unique and compelling interests to protect through preservation of this statute.

While Montana has a clear interest in preserving the integrity of its electoral process, it also has an interest in encouraging the full participation of the Montana electorate. The unrefuted evidence submitted by the State in the District Court through the affidavit of Edwin Bender demonstrates that individual voter contributions are diminished from 48% of the total raised by candidates in states where a corporate spending ban has been in place to 23% of the total raised by candidates in states that permit unlimited corporate spending. The point is illustrative of Montana, a state where citizens generally support candidates with modest campaign donations. In the case of ballot issues, where corporations may make unlimited donations, the characteristics of donors are markedly different from those who give to candidates. In 2004, for example, 97 institutional donors gave 95% of the total money raised in ballot initiative campaigns, while 760 individual donors accounted for the remaining 5%. Similarly, in 2008, 34 institutional donors gave 95% of the total money donated to ballot campaigns. Moreover, unlimited corporate money would irrevocably change the dynamic of local Montana political office races, which have historically been characterized by the low-dollar, broadbased campaigns run by Montana candidates. At present, the individual contribution limit for Montana House, Senate and District Court races is $160, and for Supreme Court elections it is $310. With the infusion of unlimited corporate money in support of or opposition to a targeted candidate, the average citizen candidate would be unable to compete against the corporate-sponsored candidate, and Montana citizens, who for over 100 years have made their modest election contributions meaningfully count would be effectively shut out of the process….

Finally, § 13-35-227(1), MCA, is narrowly tailored to meet its objectives…. Unlike the Federal law PACs considered in Citizens United, under Montana law political committees are easy to establish and easy to use to make independent expenditures for political speech. As the Bender affidavit submitted by the State in District Court confirms, corporate PACs can make unlimited independent expenditures on behalf of candidates. The difference then is that under Montana law the PAC has to comply with Montana’s disclosure and reporting laws. And as noted earlier, corporations are allowed to contribute to ballot issues in Montana, which is a significant distinction because ballot issues often have a direct impact on corporate business activities within Montana but present less danger of corruptive influences that have concerned Montana voters since 1912. The statute only addresses contributions regarding candidates for state political office.

(There is also a good deal of discussion about the lack of burden on these particular plaintiffs, but I focus here on the court’s broader rationale, which applies to all corporations that want to speak about candidates.) But the dissent disagrees; here is an excerpt:

Having considered the matter, I believe the Montana Attorney General has identified some very compelling reasons for limiting corporate expenditures in Montana’s political process. The problem, however, is that regardless of how persuasive I may think the Attorney General’s justifications are, the Supreme Court has already rebuffed each and every one of them. Accordingly, as much as I would like to rule in favor of the State, I cannot in good faith do so…. I cannot agree that [the majority's] “Montana is unique” rationale is consistent with Citizens United….

[W]hat has happened here is essentially this: The Supreme Court in Citizens United … rejected several asserted governmental interests; and this Court has now come along, retrieved those interests from the garbage can, dusted them off, slapped a “Made in Montana” sticker on them, and held them up as grounds for sustaining a patently unconstitutional state statute….

My sense is that the disagreement with Citizens United is so striking that it is likely that the Supreme Court will agree to hear the case, and will reverse the Montana Supreme Court’s decision.

Hindustan Times (Dec. 24, 2011) reports:

A Delhi Court on Saturday ordered 22 social networking sites, including Facebook, Google, Yahoo and Microsoft, to remove all “anti-religious” or “anti-social” contents in the next one-and-a-half-month[s] ….

Kumar had on December 20 issued summonses to the social networking sites and asked them to remove objectionable photographs, videos or texts that might hurt religious sentiments….

The websites — asked to remove objectionable contents — include Facebook India, Facebook, Google India Pvt Ltd, Google Orkut, Youtube, Blogspot, Microsoft India Pvt Ltd, Microsoft, Zombie Time, Exboii, Boardreader, IMC India, My Lot, Shyni Blog and Topix….

The Times of India reports that the material included “derogatory articles on Prophet Mohammad, Jesus Christ and Hindu gods and goddesses.” “‘The contents are certainly disrespectful to the religious sentiments and faith and seem to be intended to outrage the feelings of religious people whether Hindu, Muslim or Christian,’ the magistrate said.”

The article does not indicate whether this is somehow targeted to Indian-hosted material, or to material being asked using identifiably Indian IP addresses, or whether this would in effect require the companies to delete all material put up by anyone, given that it can potentially be accessed in India. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

A Foundation for Individual Rights in Education video, about the now-notorious University of Wisconsin-Stout Firefly poster incident:

Here’s a brief summary of the incident from FIRE:

On September 12, 2011, Professor Miller [UPDATE: who is a professor of theater] posted on his office door an image of Nathan Fillion in Firefly and a line from an episode: “You don’t know me, son, so let me explain this to you once: If I ever kill you, you’ll be awake. You’ll be facing me. And you’ll be armed.” On September 16, UWS Chief of Police Lisa A. Walter emailed Miller, notifying him that she had removed the poster and that “it is unacceptable to have postings such as this that refer to killing.”

Amazed that UWS could be so shockingly heavy-handed, Miller replied by email, “Respect liberty and respect my first amendment rights.” Walter responded that “the poster can be interpreted as a threat by others and/or could cause those that view it to believe that you are willing/able to carry out actions similar to what is listed.” Walter also threatened Miller with criminal charges: “If you choose to repost the article or something similar to it, it will be removed and you could face charges of disorderly conduct.”

Later on September 16, Miller placed a new poster on his office door in response to Walter’s censorship. The poster read “Warning: Fascism” and included a cartoon image of a silhouetted police officer striking a civilian. The poster mocked, “Fascism can cause blunt head trauma and/or violent death. Keep fascism away from children and pets.”

Astoundingly, Walter escalated the absurdity. On September 20, Walter emailed Miller again, stating that her office had removed the poster because it “depicts violence and mentions violence and death.” She added that UWS’s “threat assessment team,” in consultation with the university general counsel’s office, had decided to have the poster removed, and that this poster was reasonably expected to “cause a material and/or substantial disruption of school activities and/or be constituted as a threat.” College of Arts, Humanities and Social Sciences Interim Dean Raymond Hayes has scheduled a meeting with Miller about “the concerns raised by the campus threat assessment team” for this Friday.