Free Speech on Campus: A Constitutional Void

By Eric Segall

It is rare that a week goes by without some major public controversy involving free speech at a public or private university. In Florida, Governor Ron DeSantis wants to essentially purge public universities of honest discussions of race, diversity, gender, LGBTQ+ issues, and America's past. So far, courts have said no. 

At Stanford last week, Judge Kyle Duncan was greeted with much hostility, which he seemed to invite, resulting in videos showing him calling Stanford Law students "idiots" and then running off to cry to the media about how he was treated. This incident, widely reported on, has many causes and there's plenty of blame on all sides.

Both public and private universities have controversial hate speech codes that many scholars and judges think are either unconstitutional or bad policy because they go beyond punishing true threats or harassment, while others believe such codes are essential to protect traditionally marginalized groups. 

Off campus online speech by university students has haunted the lower courts, which have reached all kinds of varying and conflicting results. Swirling around all these controversies are under-theorized free speech arguments leading to great constitutional uncertainty.

I have strong free-speech policy views about how colleges and universities should be operated, but this is a blog post about what the first amendment requires, not what policies are best. Even so, my goal is not to present a coherent, worked-out theory of the first amendment on campus. Instead, I want to ask a few hard questions and suggest that the label "academic freedom" does little to clarify many of these disputes. At the end of the day, much more work needs to be done by lawyers, scholars, university officials, and judges to bring much needed coherence to this area of the law. 

How Plausible is the Melania Defense?

 by Michael C. Dorf

Despite Donald Trump's incendiary announcement that he will be indicted and arrested today, there is no good reason to think that he has access to any inside information. After all, we are talking about a man who, as President, typically did not read classified briefings prepared specifically for him but spent hours watching cable news. He does not base his pronouncements on reliable sources, much less facts.

Nonetheless, there is good reason to think that Manhattan District Attorney Alvin Bragg's office will secure a grand jury indictment of Trump in the coming days or weeks, even if not in the next few hours. Accordingly, in today's essay I shall preview what I'll somewhat inaccurately call the "Melania defense."

Trump is likely to be charged with falsifying business records by recording as legal fees his reimbursements to fixer Michael Cohen for payments Cohen made to Stormy Daniels as hush money. As Professors Ryan Goodman and Andrew Weissmann note today in a NY Times op-ed, that mischaracterization made Trump's tax documents and campaign filings fraudulent. However, merely falsifying a business record is a misdemeanor in New York. Trump will not be arrested for a misdemeanor. To elevate second-degree/misdemeanor business record falsification to a first-degree/felony charge requires that the DA prove that Trump's "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof."

Presumably, the grand jury will indict Trump, if it does, on the ground that he falsely listed the hush-money reimbursement to Cohen as legal fees to conceal the commission of the "[]other crime[s]" to which Cohen pleaded guilty and for which he served time in prison.

As some of Trump's defenders (and even some anti-Trump observers) have noted, there is an obvious line of defense against the felony charge. Trump's lawyers can admit that he deliberately mischaracterized the payments to Cohen as legal fees--and thus that he committed a misdemeanor--but that his intention in doing so was not to cover up any other crimes but to cover up the fact that he had an affair. In this narrative, Trump's intent was that of any cheating husband: to prevent his spouse from learning of his extra-marital sexual relationship.

I hope the term "Melania defense" catches on, even though it's not exactly accurate. If Trump's intention was to prevent his wife from learning of his affair, then that negates the government's case against him. "I was intending to deceive my wife" is not an affirmative defense. That means, among other things, that the DA will have the burden of proving beyond a reasonable doubt that Trump's intent was to cover up another crime.

Raccoon Dogs, Pigs, Birds, Most of Your Diet, and Other Vectors of Zoonotic Disease

by Michael C. Dorf

As Republican politicians continue to push the improbable (but not completely ruled out by the evidence) hypothesis that the COVID-19 pandemic originated in a lab leak (or, in the fever dreams of their conspiracy theorists, as a bioweapon), new evidence has emerged suggesting a specific species as the more likely zoonotic origin: DNA from the (illegal) Wuhan live animal market that has been the focus of the most attention points to raccoon dogs as a possible source. I say "possible" because the evidence is raccoon dog DNA and COVID-19 in samples taken from the live market very early in the pandemic; it's possible that the raccoon dogs were infected after COVID-19 had already begun to spread from some other source, but given that other coronaviruses can spread from raccoon dogs to humans, the raccoon dog hypothesis merited a recent story in The NY Times.

Let's begin with the obvious: raccoon dogs (which are closely related to foxes, wolves, and dogs but not raccoons) are adorable (although definitely not suitable as pets).

At this point in our tale, I expect readers to feel outrage at the fact that some people in China eat raccoon dogs and other cute animals, including the kinds of dogs many people keep as pets. That is outrageous on moral grounds--slaughtering and eating a raccoon dog or a Labrador retriever feels only a step removed from cannibalism. It is also alarming on public health grounds, given the tendency of deadly diseases to jump from the particular sorts of wild animals that some people in China regard as delicacies to humans.

So be outraged. But try not to be selectively outraged.

Childish Manliness and the Anti-Woke Macho Panic

by Neil H. Buchanan

One of the formative moments of my adolescence was when I first heard the (probably apocryphal) story about a commoner who was invited to a special dinner with the queen.  As the story goes, when a finger bowl was placed in front of the nervous guest, he thought it was for drinking and quickly gulped downed the water.  While the assembled royals sneered and tittered, the queen calmly picked up her finger bowl and drank it as well.

That story is so well known that there are endless variations in its telling, but that is precisely because it makes such an important point -- a point that is reflected in other life lessons and aphorisms, including (the needlessly gendered) "a man never stands so tall as when he stoops to help a child," or simply "Don't be a jerk!"  The idea is that growing up and being good involves learning to be part of something larger and caring about -- or at least noticing and minimally respecting -- the humanity of others.

The thoughtful queen in the story understood that the kind, truly noble thing to do was to make her guest feel comfortable, rather than saying, "Oh, you rube!  Here is what it means to be upper crust."  Whoever it was that told me that story in my teen years then shared the lesson to be learned: "There's class, and then there's class!"  Given that I was growing up in the Baby Boom-era of what we would now call toxic masculinity -- a two-word phrase that serves as proof that a well chosen label can be powerfully clarifying -- that was a transformative moment.

Arguably, the US political divide in 2023 amounts to a sorting of people into two camps: those who would have laughed at the queen's guest, and those who would have applauded the queen's kindness.  Kindness is not in fashion on the political right.  More than that, maturity has become a liability.  These people are now all about finding vulnerable groups and kicking down at them, but what is in some sense more fascinating is their panicky refusal even to consider accepting limits in their lives.  In a way, the modern (and I use that term in only one of its meanings) conservative movement's slogan is: "You can't tell me what to do!"

Is this Blog's Name Problematic? An Agreeably Dissenting View

by Neil H. Buchanan

Does it matter whether the people engaged in something potentially offensive know that they are running the risk of causing offense?  Of course it does, but how completely does lack of intent or knowledge get a person off the hook?  There is no general answer to that question, but Professor Dorf's column yesterday -- "Jack Daniel's, Confusion, and the Problematic Origin Story of this Blog's Name" -- presents an opportunity to explore some nuances through an example in which we have access to an unusually large amount of the relevant facts.

The fundamental issue is whether the punny inspiration for this blog's name -- a series of videos in the 1980's by the comedian Tim Conway, the first of which was titled "Dorf on Golf" -- is potentially offensive enough to suggest that we should change that name.  (Although he only mentions the one video, I should note that there was more than one, with my limited memory dredging up only "Dorf on Tennis" but with the strong sense that there were others.  Yes, I could look it up online.  I didn't.)

Professor Dorf drew what I think is the right conclusion: "I gave the question some thought but elected to keep the name."  My disagreement here is with his analysis of the question of whether there is anything necessarily offensive about the name in the first place.  In Professor Dorf's telling, Conway's original "Dorf on Golf" comedy video can reasonably be described as an effort to get laughs at the expense of people with dwarfism.  Is that accurate?

Before getting there, let us situate the discussion within the culture wars of 2023.  Why?  Because that is where everything is now situated, thanks to Republicans' decision to do nothing but crank up the cultural grievance machine.  It is exhausting, but here we are.

Jack Daniel's, Confusion, and the Problematic Origin Story of this Blog's Name

 by Michael C. Dorf

My latest Verdict column previews next week's Supreme Court oral argument in Jack Daniel's Properties v. VIP Products. For those of us who teach and generally write about constitutional law--and thus spend a whole lot of our professional time gritting our teeth at the latest claim by Messrs. Thomas, Alito, et al that the original (and supposedly widely shared) understanding of some vague constitutional term just happens to align perfectly with the Republican Party's ideological agenda in the 21st century--the Jack Daniel's case is a welcome diversion.

At a minimum, the case illustrates that the people who operate Jack Daniel's and/or its corporate overlord Brown-Forman are a bunch of stuffed shirts. Our first clue might have been that the company insists that its booze is "Tennessee whiskey" rather than bourbon. But if there were any doubt, the case now before SCOTUS shows that, despite the company's protestations in its brief, it has no sense of humor. Jack Daniel's sued VIP Products claiming that the latter's poop-themed dog toy parodying a bottle of Jack infringes its trademark. And to be clear, "Bad Spaniels The Old No. 2" is bottle-shaped but not a bottle, contains no whiskey or any other liquid, and, again, is a dog toy.

Constitutional Law, Constitutional Litigation, and the Truth About Constitutional Text

By Eric Segall

There are many parts of the United States Constitution that seem unfair, outdated, and have terrible consequences. Article I requires that that there be two senators from every state regardless of population, which means North Dakota and California have the same power in the Senate even though California has 39 million people and North Dakota has roughly 800,000 people. Many Americans would prefer to vote for the President directly rather than through the constitutionally required electoral college. Article V makes amending the Constitution almost impossible--surely a bizarre feature for a document written centuries ago by and for white propertied males alone. And even the prescribed date of January 20th for presidential inauguration in the 20th Amendment is problematic. The two-and-a-half-month transition period allows a lame-duck president to accomplish considerable mischief--including fomenting an insurrection!--but a substantially earlier inauguration date could also create difficulties because the decentralized electoral college process plus post-election litigation mean that it can take a fair bit of time to resolve legal challenges and determine a winner. 

We follow all of those arguably terrible rules and many more because they are perfectly clear, and the American people accept the Constitution as the supreme law of the land. Constitutional litigation, however, is an entirely different matter.  

The Potential Political Consequences if SCOTUS Dismisses the North Carolina "Independent State Legislature" Case

 by Michael C. Dorf

Earlier this month, the Supreme Court issued an order to the parties and the Solicitor General directing them to brief the question whether the Court still has jurisdiction to decide Moore v. Harper, in light of the North Carolina Supreme Court's decision to rehear the case from which Moore is an appeal. Readers may recall that Moore presents the question whether Article I, Section 4 of the Constitution--which assigns to state legislatures the authority to determine the manner of elections for Congress--precludes state court judicial review under the state constitution of political gerrymandering.

The petitioners are Republicans who object to the North Carolina Supreme Court's invalidation of the map drawn by the GOP-controlled legislature and its remand to the trial court to supervise the drawing of (or itself draw) a new map. The Supreme Court heard oral argument in the case in December. As I noted at the time, it was not the finest (nearly three) hour(s) of either the Justices or the advocates. Even so, many observers came away from the argument thinking that the Court was unlikely to adopt the most aggressive version of the "independent state legislature" (ISL) theory advanced by the petitioners.

ISL is a misbegotten and dangerous theory. To see why, readers could do no better than to read the terrific amicus brief by law professors Akhil Amar, Vik Amar, and Steve Calabresi. It makes what I regard as irrefutable arguments based on text, original understanding, structure, and just common sense. One hopes that Professor Calabresi's conservative credentials would also give the brief some added credibility with the Justices who have heretofore flirted with ISL. But the order regarding jurisdiction suggests we won't find out what the Justices think about ISL--at least not this Term. After saying a few words about jurisdiction, I'll speculate about the potential political consequences if SCOTUS dismisses.

Netanyahu's Political Takeover of the Courts

 by Michael C. Dorf

In addition to its hardline policies in other domains, the current far-right coalition government in Israel is rapidly moving to undercut the independence of the nation's courts. The details of the legislation moving forward in the Knesset (Israel's unicameral parliament) under the sponsorship of Simcha Rothman differ somewhat from the version proposed by Justice Minister Yariv Levin. However, bloc voting by members of the parties forming the ruling coalition ensures that once they iron out their differences, some version of the measure will go through--unless Prime Minister Netanyahu judges the political cost too high. Yesterday brought a ray of hope, when Netanyahu seemed to open the door to a compromise proposal by Israel's (mostly ceremonial) President Isaac Herzog, but that's no reason for protesters to ease the pressure.

With the disclaimer that I am not an expert in Israeli politics (or in Israeli law, for that matter), I will say that I am not optimistic about the prospect of derailing or substantially weakening the effort to rein in the courts. For one thing, Netanyahu has a personal interest in undercutting the courts. By changing the composition of the judiciary, he can reduce the likelihood that he will be convicted of the corruption charges pending against him and increase the likelihood that if he is convicted, the result will be reversed on appeal.

Moreover, even setting aside Netanyahu's personal motives, he is under considerable pressure to attack the courts. In order to maintain his power, Netanyahu needs to appease the most extreme right-wing members of his coalition, in somewhat the same way that Kevin McCarthy cannot risk alienating the likes of Marjorie Taylor Greene. Each leader's pragmatic streak is tempered by his political weakness. Even if the long-term interests of the GOP and Likud (not to mention the long-term interests of the U.S. and Israel) counsel moderation, in both countries the imperative of political survival in leadership demands bowing to the extreme right.

Accordingly, I shall assume for the balance of this essay that at least two key elements of the Rothman and Levin plans will become law, even as I hope I'm wrong in that assumption. Those elements are: (1) a change in the means by which Supreme Court Justices are selected from one that, by requiring a super-majority of persons with differing views, ensures political balance on the Court, to a system that effectively gives the ruling coalition in the Knesset the power to name whichever Justices it wishes to name, even in the face of the most strenuous opposition; and (2) effective elimination of the Court's power of judicial review.

After providing a little background, I'll offer some broader thoughts about norms and judicial review.

The Tightening Grip of Authoritarianism Is Not Limited to Florida

by Neil H. Buchanan

Over the last several years, I have in varying contexts predicted that the US will soon no longer be a constitutional democracy, that we will witness the end of anything resembling the rule of law in this country, and that there seems precious little that we can do to stop any of that from happening.  The most dramatic and direct way for that to happen would have been for Donald Trump to have succeeded in his efforts to supplant the results of his 2020 loss.  At that point, there would no longer have been even the fig leaf of democratic legitimacy, and an unbound Trump would have been -- as he put it to his most devoted followers at a conference a few days ago -- "your retribution."  Meaning, of course, his retribution.

To my surprise and delight, that did not happen in 2020/21 (though only barely).  Even so, the evidence of creeping authoritarianism was all around us, and Republicans' rapid pivot from post-insurrection shock to denialism made it all seem less like creeping on tiptoe (though still creepy) and more like a brisk trot.  We are not yet at a full sprint, but it does seem that the Republicans' strides are getting longer and more confident -- much of it under the cover of culture-war craziness, but with a very consistent goal of establishing one-party rule in the US.

Here on Dorf on Law, I have been noting with some dismay that my current state of residence has seen itself become a laboratory of autocracy.  This includes the Republicans' negating of an extremely popular constitutional amendment that would have re-enfranchised over a million Floridians, the voter intimidation that that negation then allowed, the absurdly extreme gerrymandering that keeps them all in power, the punishing and threatening of private businesses for violating conservative orthodoxy, and too many other heavy-handed moves to list here.

Today, I want to pick up on a few loose ends of this discussion, mostly to add some thoughts and fill in some gaps.  I will then move outside of the boundaries of the Sunshine State, to show that the dictatorial fever is alive and well in other states -- even among Republicans who have otherwise done some unquestionably honorable things amid the recent chaos of American politics.  The trend lines are all moving in the wrong direction, and the slopes are all rising menacingly.