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The First Amendment and Professorial Classroom Speech

Keith Whittington’s new article, Professorial Speech, The First Amendment, and Legislative Restrictions on Classroom Discussions, is a timely response to the growing body of “anti-woke/anti-Critical Race Theory” legislation and legislative proposals that aim to drive certain types of discussions of race, gender, and other controversial topics out of state university classrooms. The clarity of Whittington’s style makes complex doctrines easy to understand for educated, non-expert readers, and his careful extrapolation from existing First Amendment doctrines and principles fills an important gap in the law. Overall, the article meets the high bar it sets for itself by staking out “a new argument for protecting from legislative interference how faculty at state universities teach their courses.”

The article has five important components. First, Whittington identifies the threat recent legislative proposals pose to academic freedom, especially to freedom in state university classrooms. For readers well-versed in an area of study, the “backdrop” section of an article is usually its least valuable contribution. Here, however, the article’s “backdrop” section makes an important contribution by demonstrating the scope and scale of current legislative efforts to suppress curricular speech in state universities. Whittington is not exaggerating when he calls these new proposals an “unprecedented wave of legislative proposals aimed at curtailing teaching and discussing controversial topics relating to race and gender in state university classrooms.” It is impossible to read this section without being struck by the sheer number of laws proposed and passed to drive certain ideas out of college classrooms. These laws are the product of concerted efforts to “restrict[ ] the topics and perspectives that a professor may discuss or advance while performing his or her instructional duties.” These concerted efforts have already induced universities “to curtail programmatic and instructional activities that might incense state politicians.” And this is just the beginning.

Second, Whittington moves from this backdrop to the lessons of history. Drawing on McCarthy-era history and legal precedents, Whittington shows the genesis of the Supreme Court’s underdeveloped First Amendment academic freedom doctrines. In the McCarthy era, campuses restricted speech by refusing to hire or removing members of “subversive” organizations, and states imposed loyalty oaths as conditions of employment. This historical account serves as a pointed comparison to today’s controversies and a “what-could-go-wrong” klaxon about government targeting of professorial speech.

Third, Whittington provides a good analysis of the existing constitutional dimensions of academic freedom as it stands today. As he rightly points out, the Supreme Court has provided only ill-defined contours for any First Amendment right to “academic freedom.” Most Supreme Court pronouncements on the topic are merely dicta. He does an excellent job of assembling and scrutinizing them to discern foundational principles that might help resolve current academic freedom controversies.

His careful reading of Keyishian v. Board of Regents, which involved professors forced to avow they had never been Communists to work for a state university, provides a principled argument for extending constitutional academic freedom to professorial speech in state university classrooms. Keyishian labeled academic freedom“a special concern of the First Amendment” and emphasized the chilling effect on professors who fear being terminated for speaking on important matters. Justice Brennan recognized that legislative targeting of “subversive” speech outside the classroom risked casting “a pall of orthodoxy over the classroom”; therefore, such laws required drafting with “narrow specificity” in order to satisfy the First Amendment.

These principles should apply equally or even more forcefully to professorial speech within the classroom. Whittington quotes Justice Abe Fortas, who wrote, “It is much too late to argue that the State may impose upon the teachers in its schools any conditions that it chooses, however restrictive they may be of constitutional guarantees.” Although Whittington’s analysis here is convincing about the uncertainty regarding what might be called curricular speech in university classrooms, I expected him to give a nod to the Supreme Court’s Hazelwood v. Kuhlmeier decision. Hazelwood is distinguishable because it deals with the curricular speech of student journalists and their teacher at the high school level. But it deserves to be explicitly discussed and distinguished, since it gave great deference to school administrators in limiting the topics that could be discussed in the high school classrooms—simply because the topics were deemed too controversial. Hazelwood appears to have generated a split in the lower courts as to its applicability to higher ed. The key point, though, is that Hazelwood deserves consideration because anti-CRT laws don’t just target professorial speech; they target the contents of the curriculum within the college classroom. Moreover, the paucity of direct legal authority applicable to professorial speech within the classroom requires reasoning from analogous bodies of cases, as Whittington does in his analysis of government employee speech doctrines and government speech cases.

Fourth, Whittington analyzes the Supreme Court’s “government employee” speech cases—Pickering, Connick, and Garcetti—to discern how one might “extend the principles” of academic freedom cases to cases involving professorial speech within the classroom. In the government employee speech cases, the Supreme Court asks whether a government employee is speaking in her capacity as a citizen on a matter of public concern, in which case her speech receives considerable First Amendment protection, or as an employee, in which case it doesn’t. Of particular note is Garcetti, in which the Court refused to extend First Amendment protection to a prosecutor who was punished for writing an internal memo accusing the police of misconduct. Because the memo was “made pursuant to his duties” and “owe[d] its existence to a public employee’s professional responsibilities,” he was not speaking as a citizen and his speech was deemed “commissioned or created” by the employer. “On its face,” Whittington writes, “Garcetti is debilitating to many academic freedom claims in state universities, but the Court added an important proviso.” That “proviso” turns out to be dicta in a dissenting opinion arguing that the Court can’t possibly mean to apply Garcetti in the university context.

Applying the principles from the Court’s academic freedom cases, Whittington argues that we must distinguish professorial speech in the classroom from other kinds of government employee speech. He does a nice job of making caveats to allow for necessary regulations of professorial speech. He argues that academic classroom speech rights must be qualified by considerations of competence and germaneness. Whittington makes a persuasive case that “[p]rofessorial classroom speech that is neither germane to the class nor professionally competent is deserving of little constitutional protection.”

This section is probably the strongest part of the article. Drawing from legal doctrine and history, Whittington establishes that the anti-CRT bills are the very essence of censorship. I especially appreciated his application of the academic freedom principles he sets out to a set of difficult hypotheticals. There’s room for even  more pushback  against Garcetti‘s overly simplistic distinction between speech-as-citizen versus speech-as-employee, and I would be interested in his future exploration of the “professional speech regulation cases,” such as Gentile. After all, the key question in academic freedom cases is whether professors may, in the exercise of their professional expertise, choose how to handle classroom discussions on controversial topics. Professor Claudia Haupt’s work on “knowledge communities” emphasizes this aspect of professional speech. I hope also that Whittington will eventually discuss students’ right to receive information, and perhaps the public interest in the discovery of truth, as an aspect of the First Amendment liberty infringed by broad anti-CRT bills.

Anticipating potential counter-arguments, Whittington explores whether professorial speech is government speech, under  the Supreme Court’s government speech doctrine. This somewhat ill-defined doctrine posits that the First Amendment does not constrain the government when it “speaks with its own voice.” Government must speak in order to govern, and when it does so, it may participate in the marketplace of ideas just like any other speaker. The government, as speaker, “necessarily must make decisions based on the content and viewpoint of the substantive issues on which it chooses to speak.”

Whittington begins his analysis of whether professorial speech is government speech by throwing public-school teachers to the wolves. He argues that public school curricula, and the use of those curricula by individual classroom teachers, “might readily be understood to be an example of [ ] government speech,” because the government has such a dominant role: it “creates the public school, determines the curriculum, chooses the textbooks, and employs the teachers.” Because the government’s role is so dominant,  one could plausibly argue that, “the government necessarily has the right to determine what [teachers] will say.”This concession may—or may not be—pragmatic if one’s goal is to protect professorial speech. Clearly it is easier to justify treating professorial speech as a form of “private” (that is, non- governmental) speech than it is to justify treating the speech of public-school teachers as “private,” given the high degree of control the State currently exercises over curricular speech in public schools. The fact that the doctrine forces this binary choice upon us suggests that perhaps something is amiss with the doctrine. But that’s an article for another day.

Finally, Whittington makes a strong case for treating professorial classroom speech as “private” speech, to use the Court’s odd terminology, which is not subject to government control  Within the frame of government speech doctrine, the Court has found the existence of government speech when “the government established the message; maintained control of its content; and controlled its dissemination to the public.” Whittington’s argument for why professorial speech lacks these characteristics hinges on the traditional independence of state universities from legislative dominance.

State universities have instead generally been understood to be peculiar institutions within the state government that operate with a high degree of autonomy from state political leaders. . . . If state university professors were engaged in government speech when in the classroom, then we would expect government officials to comprehensively direct what it is that professors say. Instead, state officials have contented themselves to intervene only to prohibit the discussion of certain ideas in the classroom, which looks far less like using classroom lectures as vehicles for communicating messages from the government and far more like the government censoring ideas that it does not like.

This argument is true but scary. Just because states haven’t previously controlled curricula at state universities doesn’t mean they can’t start. Would this turn previously “private” professorial speech into government speech subject to state control?

That question is what makes Whittington’s elucidation and extrapolation of First Amendment principles governing curricular speech so important. One can only hope courts will take Whittington’s analysis as a guide when asked to safeguard the curricula of state universities from state domination.

Cite as: Lyrissa B. Lidsky, The First Amendment and Professorial Classroom Speech, JOTWELL (January 19, 2024) (reviewing Keith E. Whittington, Professorial Speech, The First Amendment, and Legislative Restrictions on Classroom Discussions, 58 Wake Forest L. Rev. 463 (2023)), https://conlaw.jotwell.com/the-first-amendment-and-professorial-classroom-speech/.

African Founders and Zero-Sum Games in American Culture and the Supreme Court’s Capitalist (White) Imagination

In African Founders: How Enslaved People Expanded American Ideals, David Hackett Fischer provides a comprehensive survey of African contributions to Americanism at its most aspirational. Fischer gives particulars of knowledge and skills advanced by Africans in the United States and prized by white people in various regional economies. His primary argument, though, is that Africans in bondage, and their descendants, as a result of their unique American experience, formed “a very powerful idea of equity for all, cast in a distinctive moral calculus that rose from the experience of human bondage.” He summarizes: “Africans both slave and free have long reflected on a deep moral paradox in America, between the continuing horror of race slavery and persistence of racial injustice on the one hand, and the hope of expanding ideals of human rights, social Justice, the rule of law, and dreams of liberty and freedom.”

Professor Fischer’s quest to name the African founding of America adopts a deeply empirical commitment that resists white ignorance and can inspire a broad critique of the American jurisprudential and popular attachment to lazy thinking, especially when race is the topic. The book provides a deep refutation of the reasoning process that has produced today’s climate of white resentment of Black visibility (ban on race studies), public role (attacks on prosecutors and judges), and access to all of American life (threats to corporations on hiring and resistance to housing integration).

The long history and importance of African and African-descended persons in the United States, with talents, intelligence, and character that have benefited the United States, provides an answer to the enduring insistence on treating their presence in white spaces as an anomaly-to be removed by violence and Jim Crow, or “color-blind” claims merged with theories of suspect race discrimination. By revealing the Black population’s part in making the nation, African Founders provides a starting point for a curiosity that might deflect willful amnesia and serves as the antithesis to the embrace of ignorance or alarm about Black presence in white spaces.

The setting for such a book, and a needed corrective, is captured by the late philosopher Charles Mills’s work on “white ignorance” in his lifelong work that addressed the epistemology, in a white-dominated academy, of conceptions of liberalism and of race:

White ignorance . . .

It’s a big subject. How much time do you have?
It’s not enough.
Ignorance is usually thought of as a passive obverse to knowledge, the darkness retreating before the spread of Enlightenment.
But . . .
Imagine an ignorance that resists.
Imagine an ignorance that fights back.
Imagine an ignorance militant, aggressive, not to be intimidated,

an ignorance that is active, dynamic, that refuses to go quietly–
not at all confined to the illiterate and uneducated but propagated
at the highest levels of the land, indeed presenting itself unblushingly
as knowledge.

Professor Fischer’s scholarship moves white ignorance away from the long embrace of the white majority’s preference for an uninformed stereotype by “going there”-to the site where ignorance must meet its enemy: the empirical world. Fischer’s book points its reader away from stereotypes and flattening treatment of African ethnic variety arising from African civilization, and toward the distinctively regional experiences of enslaved Africans in the colonies and then the United States. In so doing, he shifts the focus away from a story of victims needing redress and toward an understanding of the rightful presence in formative American spaces of African American talent.

Professor Fischer reports new discoveries of archaeological evidence of relentless cruelty in the destruction of bodies through forced labor. At the same time, he leavens that disheartening revelation of the American past by depicting what enslaved persons were able to contribute to the American “founding.” Though he does not address contemporary differences over “inclusion,” he provides an important, fog-clearing description of connections that have been enriching to America at large, and hence relevant to race jurisprudence and a shared culture today. Creativity within associations of enslaved persons nurtured collective work away from the “masters” and fashioned cultural connections that made for a more open, free, and creative America. Discussing the Hudson Valley and New York City, Fischer writes: “The rhythms of urban life allowed slaves to meet others in complex webs of voluntary association, defined by African ethnicity, place of origin, occupation, gender, and more.” These associations among Africans radiated into the whole culture, with the effect of transforming “multiple Afro-European cultures into a pluralist society.”

W.E.B. DuBois wrote that the construction of the racial category of “white” was used to exclude others at various points in history. It brought about, he said, a great emotional discovery of color as a difference in which “white, by that token, was wonderful.” 1 More recently, Ibram X. Kendi argues that “powerful and brilliant men and women have produced racist ideas in order to justify the racist policies of their era…” The idea that “race,” though a creation used to subjugate, has become something so real that it must be declared to be not real, while at the same time arguing it is so real that it is uniquely dangerous, is a new move in the maintenance of white-centered justification of ideals and policies. An example of this move is the campaign that has arisen in the wake of Students for Fair Admissions v. Harvard College. The targets are corporations, private funds aimed at giving start up seed money to Black women, 150 colleges, and surely more to come. It is only fair to describe the campaign, in the words of Charles Mills, as “militant, aggressive, not to be intimidated,” “refusing to go quietly.” Not coincidentally, SFFA converges with the “militant, aggressive” Florida laws requiring an erasure in Florida public schools of the Black experience in America, if presenting that history makes white students “uncomfortable.”

The emotions embedded in the currently dominant judicial imagination about the American experiment produced the startling description in SFFA by the Chief Justice of the United States of university admissions as “a zero-sum game.”

At best, the phrase seems to lend a patina of economic reasoning to a claim arising from a quantifiable basis in human psychology rather than empirical evidence of the real world. But a recent survey on zero sum thinking suggests that “high-status groups (white people and men) are more likely to espouse” zero sum beliefs. In adopting this term, Roberts is positioning the court with those concerned with loss of white privilege, not those concerned with individual fairness. More significantly, the “zero sum” phrase negates higher education’s long-held cultural value: the admissions process is meant to build a learning community that reflects a talented demographic with historic injuries and historic strengths valuable to the academy.

Fischer’s account of the shared benefit to American society provided by members of the whole American community, emphatically including Black enslaved persons and African American citizens, casts doubt on that description. The tale of interpersonal connections across historic American legacies told by Fischer speaks more of collectivism than individualism. Yet Roberts’s meaning is hard to read as anything but an emotional embrace of individualism-more for me and less for you.

The story of the continuing impact on the Black American population of enslavement and Jim Crow is a proper and morally weighty basis for race conscious programs addressing a historical burden for which remedy is due and compelling. Fischer’s book helps to point from a historic injustice meriting a benefit to the Black minority, and authorized constitutionally, to the gain shared by the whole culture of working to add a Black presence to our elite educational institutions and other spaces.

Fischer is a white scholar who embarks upon the project of knowing. He wants to know, and for readers to know, who the people are who were brought here against their will and whose descendants have wound up subsumed into one undifferentiated category. In white fantasy they have been called “slaves”-and eventually, in the mouth of a member of the Supreme Court, “the blacks.” Yet those subject to the flattening one-dimensional depiction of their shared “race,” and allegedly simultaneous colorlessness in a “color-blind” legal world, are individuals whose ancestral story, talent, and shared yet varied experiences support reasons for universities to seek their contributions to an environment dedicated to advancing knowledge and culture. Narrow, self-referential attachment to a “game” of individual winners and losers betrays our “African founders'” legacy.

  1. Wesley Lowery, American Whitelash: A Changing Nation and the Cost of Progress 47 (2023), quoting Du Bois.
Cite as: Mae Kuykendall, African Founders and Zero-Sum Games in American Culture and the Supreme Court’s Capitalist (White) Imagination, JOTWELL (December 11, 2023) (reviewing David Hackett Fischer, African Founders: How Enslaved People Expanded American Ideals (2022)), https://conlaw.jotwell.com/african-founders-and-zero-sum-games-in-american-culture-in-and-the-supreme-courts-capitalist-white-imagination/.

Toggle Boggle

Jessica A. Clarke, Sex Discrimination Formalism, __ Va. L. Rev. __ (forthcoming 2023), available on SSRN (Aug. 13, 2023).

What is sex discrimination? Or, more generally, what is discrimination?

This question has often centered around a few recurring divisions in constitutional and antidiscrimination law. One division is between intentional discrimination and disparate impact theories of liability; another break is between formal equality and substantive equality; another, related divide is between anti-classification theories of equality and anti-subordination theories.

In her timely new article, Sex Discrimination Formalism, Professor Jessica Clarke smartly unpacks the category of “formal equality” and shows that, at different points, it encompasses a family of different theories that sometimes travel together, but not always. Clarke argues that courts applying “formal” approaches to equality are sometimes using “but for” causation, asking whether some protected trait or characteristic is the but-for cause of differential treatment. But courts adopting a “formal” approach to equality sometimes use “anti-classification” theories of equality, asking if a protected trait or characteristic has been used to categorize or sort individuals. Finally, courts might use a “similarly situated” test that examines whether someone has been treated differently than someone who is “similarly situated” to them (but who does not have a particular trait or characteristic).

Clarke points out that Bostock v. Clayton County blended all of these different approaches as it engaged in a formal approach to Title VII. (In Bostock, the Court held that Title VII’s prohibition on discrimination because of sex entailed discrimination on the basis of sexual orientation and gender identity.) That is, Bostock could plausibly maintain that all of the three theories pointed toward the same conclusion. But there are times when the different approaches might yield different results. For pregnancy discrimination, some courts have concluded that sex is a but-for cause of the discrimination. But courts applying a “similarly situated” or “anti-classification” test have rejected arguments that pregnancy discrimination is a kind of sex discrimination.

These differences are not just academic. They help clarify some of what is happening in recent decisions concerning bans on gender-affirming care for individuals—an issue the Supreme Court has been asked to decide. Initially, courts were quick to recognize how “formal” approaches to equality, including the approach embodied in Bostock, would categorize bans on gender-affirming care as a species of sex discrimination. Sex is a but-for cause of the discrimination in those cases in the sense that an individual’s sex assigned at birth contributes to how an individual is treated. That also means the law classifies individuals on the basis of sex, because in order to determine whether an individual may receive certain treatments, someone would need to categorize them on the basis of sex assigned at birth.

But two courts of appeals have recently rejected claims that bans on gender-affirming care constitute sex discrimination. Yet both courts purported to adopt formal theories of equality. Clarke’s article is illuminating on how that might have happened, if courts were selectively toggling back and forth between different genres of formal equality. (Though Bostock pretty clearly suggests the different sub-categories of formal equality would treat bans on gender-affirming care as sex-based discrimination.)

Clarke’s article illuminates courts’ sometimes seemingly mercurial approaches toward formal equality as they assess claims of discrimination. It highlights (yet) another way that courts and lawyers maintain some room to maneuver, and toggle back and forth between different sub-categories of formal equality even when they purport to be just adopting and applying formal equality. It also explains how selecting a sub-category of formal equality can sometimes dictate an outcome in a case. This calls to mind the word of Cary Franklin analyzing another formalist theory (textualism), and describing how that theory has “shadow decision points.”

Clarke avoids the temptation to select one sub-category of formal equality as the “right,” hegemonic conception of formal equality. Instead, she reasonably encourages courts and litigants to consider how different theories operate in the real world, not in some normative vacuum. Yet she recognizes the reasons why courts have, to date, opted for more formal rules when assessing equality claims instead of engaging with sociological factors and substantive values that might counsel in favor of one approach to formal equality rather than another. Perhaps her article will provide them with some tools to dip their toes into those waters going forward.

Cite as: Leah Litman, Toggle Boggle, JOTWELL (November 13, 2023) (reviewing Jessica A. Clarke, Sex Discrimination Formalism, __ Va. L. Rev. __ (forthcoming 2023), available on SSRN (Aug. 13, 2023)), https://conlaw.jotwell.com/toggle-boggle/.

Reconsidering the Public Square

Mary Anne Franks, Beyond the Public Square: Imagining Digital Democracy, 131 Yale L.J. Forum 427 (2021).

When (if ever) should we decline to apply longstanding First Amendment doctrine to technologies and practices unknown to, and unknowable by, the 20th-century Court that developed that doctrine? This question requires us to consider whether and when 21st-century expressive technologies are distinguishable from—or instead analogous to—older forms of expression in meaningful ways. As Genevieve Lakier observed in a related context, “analogies will prove useful only to the extent they are used thoughtfully, to illuminate the similarities and dissimilarities that matter for the purposes of the law.”

As courts and legislatures engage with such analogical questions with growing intensity, their high stakes become increasingly clear. Examples include the debate—now before the Supreme Court—as to whether social media platforms’ content moderation practices are (or are not) similar to the curatorial discretion exercised by newspaper editors, such that they do (or don’t) deserve the same First Amendment protections. So too are courts and policymakers now struggling with whether the products of artificial intelligence (including, but not limited to, chatGPT) are similar to or meaningfully different from human expression for First Amendment purposes (consider, for example, here, here, and here).

In Beyond the Public Square: Imagining Digital Democracy, Mary Anne Franks challenges efforts to analogize social media to the traditional public square as exemplified by the Athenian agora or New York’s Times Square. In so doing, she demonstrates the value of analytical rigor when evaluating analogies between speech environments old and new.

As a stepping-off point, Franks recalls the Supreme Court’s 2017 decision in Packingham v. North Carolina. There the Court described social media as “the modern public square,” emphasizing that social media serve as “the principal sources for knowing current events” and “otherwise exploring the vast realms of human thought and knowledge.” Franks disputes this analogy as both misleading and misguided.

Franks first argues that this analogical claim is descriptively inaccurate. The public square as contemplated by the Court is a physical space that is open to the public and managed (if not owned) by the government. In contrast, social media platforms create speech environments that are virtual, operated for profit, and privately owned and controlled. Franks shows how these variations make for very different speech environments, each with distinct advantages and limitations.

Consider, for instance, how physical spaces—unlike virtual spaces—sometimes require us to encounter views we might otherwise avoid. As the Court itself observed in McCullen v. Coakley (just a few years before Packingham):

Even today, [public streets and sidewalks] remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There a listener often encounters speech he might otherwise tune out.

In this way, the public square’s physicality creates expressive opportunities unavailable in virtual spaces.

To be sure, the converse is also sometimes true. As Franks recognizes, online (and often asynchronous) speech environments free participants from the restraints of physical space and time and thus enable them to communicate quickly and inexpensively. This means more speakers engaged in dialogue and contributing to the marketplace of ideas, with more ideas and information available to listeners. At the same time, however, social media platforms—and the cheap, speedy, and abundant speech they make possible—also create unprecedented opportunities for speakers to threaten, deceive, manipulate, troll, and otherwise undermine meaningful public discourse.

Consider next the different speech environments facilitated by spaces that are managed by the government as opposed to those instead controlled by private actors. Government actors, of course, are constrained by the First Amendment when they regulate speech in the spaces they control, including certain public squares. Social media platforms, like other private actors, are not. Instead, they have First Amendment rights of their own. That the platforms themselves are free from constitutional constraint means they are free to moderate the speech environments they create and control—ideally to improve democratic discourse—even though they’re not constitutionally required to do so.

Indeed, private actors’ ability to moderate content can improve the speech environment, even as we can and will disagree about when and how they should go about doing so. Franks thus asserts that “protecting free speech in a private forum requires the exact opposite of what it takes to protect free speech in a public forum: private actors must be allowed to exercise their free-speech rights to counter, ignore, or exclude speech as they see fit, even when state actors would be restrained from doing so.”

Finally, think of the difference between speech environments that are—and are not—operated for profit. As Franks observes, “while social-media forums may feel like public spaces, and the companies that own them might exploit this perception to their advantage, their relationship to the public is fundamentally commercial and contractual.” Social media platforms’ primary objective is often to do whatever it takes to keep users online for as long as possible to spend more money and shed more data—see, for example, here, here, and here.

For all these reasons, Franks counsels us to resist the descriptive claim that social media platforms are simply an updated version of the public square. The two are instead meaningfully different—each with their own distinct advantages and limitations—in ways that matter to their ability to facilitate, or instead frustrate, public discourse.

Franks next challenges the normative claim that the public square (at least as imagined by the Court) is something we should want to replicate without qualification. To be sure, many of the most iconic moments in our nation’s history involve speech in this space. Think, as just one example, of the 1963 March on Washington for Jobs and Freedom and its culmination at the Lincoln Memorial. Like most histories, however, the history of the public square is complicated, and Franks reminds us of those complexities. As she recounts, this public square has too often excluded the less powerful—like women long relegated to the private sphere of home and family, like the unhoused and unemployed often removed from that square, like Black people denied entrance to that square by slavery, segregation, and more. For this reason, Franks writes: “[T]he public square, like all public spaces, has never been unregulated. It has always been selectively regulated, and in ways that tend to benefit more powerful members of society at the expense of less powerful members.”

Indeed, Tabatha Abu El-Haj has shown how some of these regulatory dynamics have worsened with time. During the 18th and 19th centuries, she explains, “[p]olitical assemblages were considered ordinary uses of public places and one was not required to obtain permission from local authorities prior to engaging in street politics. Legal regulation was limited to responding to breaches of the peace.” In contrast, El-Haj writes, “today the state typically regulates all public assemblies, including those that are both peaceful and not inconvenient, before they occur, through permit requirements.”

So Franks questions First Amendment rhetoric’s largely celebratory history of the public square, observing instead that these spaces have not been equally open (much less welcoming) to all. Given these complexities, Franks closes by imagining where else we might identify, cultivate, and celebrate spaces that contribute to healthy democratic dialogue. She urges that we “craft[] law and policy to ensure that no single host or forum, or even single medium, dominates the shaping of public opinion,” with at least some of these spaces “designed for reflection instead of performativity; accessibility instead of exclusion; and intellectual curiosity, humility, and empathy.”

In so doing, Franks aspires to replicate the curb-cut effect, where design choices intended to accommodate members of vulnerable groups turn out to benefit everyone. Just as those without mobility impairments—like parents with strollers, travelers with luggage, shoppers with carts, and runners with aching knees—prefer the curb cuts initially intended to support wheelchair users, so too does she hope that speech environments designed to accommodate those previously excluded will be more attractive to all. As an example, she suggests MetaFilter, a blog that permits anyone to view the site’s content but requires users to register and pay a one-time five-dollar fee before posting content, with mandatory waiting periods between posts. In this way, MetaFilter designs a space to encourage expressive reflection rather than impulsiveness. As Julie Cohen noted in a related context, we need not “privilege design for automaticity and reflexive amplification.”

First Amendment law and rhetoric have long celebrated the public square as the physical embodiment of the marketplace of ideas. And in recent years, the Court has described social media in similar terms. But are the public square and social media really so parallel, much less laudatory? Franks asks us to consider these questions anew, and urges us to design and support a variety of other spaces—physical and otherwise—where democratic dialogue can thrive.

Cite as: Helen Norton, Reconsidering the Public Square, JOTWELL (October 16, 2023) (reviewing Mary Anne Franks, Beyond the Public Square: Imagining Digital Democracy, 131 Yale L.J. Forum 427 (2021)), https://conlaw.jotwell.com/reconsidering-the-public-square/.

Now and Then

Note, Romer Has It, 136 Harv. L. Rev. 1936 (2023).

In their issue this past May, the editors of the Harvard Law Review included a very useful, very provocative student note entitled “Romer Has It.” This brief essay, never overbearing, positions its readers to think hard again and again, to challenge, to consider alternative paths. The Note is not an AI thinking machine taking over work at hand. It is akin instead to spiritual exercising, to a series of sometimes startling declaratory prods. Ignatius Loyola “pumps you up!”

I react illustratively here.

Romer v. Evans was a 1996 Supreme Court decision announcing that a Colorado constitutional amendment violated the Fourteenth Amendment Equal Protection Clause. A popular initiative, the revision decreed that the state’s law could not incorporate civil or criminal remedies–-seemingly a very wide range-–responding to adverse conduct keyed to sexual orientation. Ten years earlier the Court had decided in Bowers v. Hardwick that federal notions of due process did not prohibit state laws criminalizing acts of “homosexual sodomy.” These acts were not constitutional concerns, Justice White wrote. Seven years after Romer, Lawrence v. Texas overruled Bowers, now depicting “homosexual sodomy” as a matter of personal privacy and constitutional liberty that Fourteenth Amendment due process norms indeed acknowledged. Subsequent decisions in federal and state courts led to Obergefell v. Hodges, Supreme Court recognition of same-sex marriages as due process-protected too. Lawrence and Obergefell looked like landmarks. Famously, Justice Kennedy wrote the Court’s majority opinions in Romer, Lawrence, and Obergefell. Justice Scalia dissented, famously too.

Dobbs v. Jackson Women’s Health Organization arrived on scene in 2022. The Harvard editors do not contest Justice Alito’s assertion that his majority opinion addresses due process only in connection with the matter at hand-–“right to life” and “right to choose” abortion questions. But there is still real reason to be concerned, they worry, given the general wording of the opinion’s insistence that due process scrutiny ordinarily does not reach state regulations of intimate decisions of individuals. They underscore the recent sharp surge in state legislation constraining individuals and institutions seeking to address health and educational troubles associated with facts of same sex life. “Don’t say gay!” “Ignore transsexuals!” If there are no ready due process norms, what constitutional resources are left for concerned lawyers and judges?

The answer, perhaps: Re-remember Romer?

In Romer, Justice Kennedy pushed Bowers off to the side. Instead of considering “due process of law,” he brought to bear its Fourteenth Amendment companion phrase “equal protection of the laws.” Why not enlist equal protection analysis again, the Note argues, this time to relocate Dobbs. We might treat it instead as plainly not within the vicinity of sexual orientation cases. To work this trick, we need a useful substitute calculus. The Note judges Kennedy’s own Romer majority opinion to be mostly not “it”-–incantation instead. One telling early critic declared that the opinion was apparently “missing six pages.” The Harvard editors also report that there are only a few, very brief references to Romer in opinions of now-sitting Justices. No problem! Undertaking an impressively intricate choreography of close readings, the Note extracts potentially apropos language. “[T]hree recurrent considerations” emerge, arguably probative in judging whether to treat “an anti-LGBTQ law as presumptively irrational under the Equal Protection Clause.” “Intermediate scrutiny” of a sort comes to mind, reminiscent of late twentieth century “rational basis with bite” protocols and the like.

This is the gist of the proposed inquiry (the subpart markers are my doing):

(1) Does the law implicate a classification based on (a) a group’s identity or (b) conduct? (2) If so, is that group (c) an unpopular one that (d) lacks functional access to the political process? (3) Was the law (e) explicitly or implicitly motivated by animus, or (f) an attempt to classify for classification’s sake? (Romer Has It, May 2023)

Romer becomes a six-part three-part test. Interesting questions abound.

Are we considering alternatives or conjunctions–“identify” or “conduct,” for example, or “identity” and “conduct”? How “unpopular”? At what point does obstructed political access become “[dys]functional”? Must a problematic law be entirely or mainly “motivated by animus,” or is it enough that “animus” is one of several prompts? What counts as “classify[ing] for classification’s sake”? There’s a lot to think about. All three of the main inquiries, however separated or overlapped, inhabit a common commitment. Romer “stands for the proposition that ‘governmental objectives steeped in animus’ can never be legitimate.” “’[L]aws that discriminate against gays will always be constitutionally doubtful … because they always arouse suspicion that they rest on a bare desire to harm a politically unpopular group.’”

Maybe our politics viewed constitutionally is in important part an accumulation of connotative figurations, ways of viewing clashing stances and attitudes. Justice Scalia, dissenting in Romer, might have thought so: German “kulturkampf” was business as usual in America, he insisted. Chief Justice Rehnquist’s opinion in the Falwell case? Robert Post? Missing in the Romer Note, William Eskridge took on Justice Scalia’s dissent directly in another metaphorically aware framing, across an important series of writings ultimately building up an alternative political sociology. (E.g., Eskridge, A Jurisprudence of “Coming Out”, 106 Yale L.J. 2411 (1997)). Are a few recent Supreme Court phrases, however carefully assembled, staging enough to frame judicial theater? Too weak tea? If we want ostensibly agnostic muddle, shouldn’t we want Dobbs? Or is the right question how–how intermediate scrutiny somehow points past Dobbs, manages oppositions less haphazardly, more emphatically? Isn’t that precisely the goal of intermediate scrutiny?

There are alternatives, we know.

For example, we might want to read closely federal district court judge James Moody’s opinion in Brandt v. Rutledge, released in late June this year (after the Harvard Note), declaring unconstitutional an Arkansas law barring physicians from providing or referring gender transition procedures if patients are under the age of eighteen. Extended, carefully written findings of fact figure powerfully. Looking at both anecdotal and structural accounts, Moody assembled unrebutted evidence of medical competencies, difficulties highly likely abated by successful gender management, piercing sufferings of children and parents prompted given interruption of treatment. All were relevant facts, Moody stressed. A quite terse summary of constitutional conclusions followed consistent with the thrust of the facts declared. Compelling facts appeared to resolve choice of law. Plainly not intermediate scrutiny.

In Romer, an unusual amicus curiae brief marked a surprising path.

Counsel of record Laurence Tribe wrote the brief. He was the author of American Constitutional Law, a full-barrel treatise, the first so acclaimed since Cooley’s a century earlier. Tribe represented Michael Hardwick in Bowers. Four other prominent academics joined as amici. Philip Kurland was a fierce Warren Court critic. Gerald Gunther specified first parameters of the equal protection “middle tier.” John Ely wrote Democracy and Distrust, succinctly outlining a principal constitutional architecture. Kathleen Sullivan emerged later, an expert navigator of the contested middle ground, a salvager of seemingly intractable crack-ups.

Surprisingly, the amicus brief ignored the Supreme Court opinions, doctrinal schemas and skirmishes largely preoccupying constitutional jurisprudence at the time. One phrase in the second sentence of the first section of the Fourteenth Amendment sufficed:

“No state shall … deny to any person within its jurisdiction the equal protection of the laws.” …

May a state set some persons apart by declaring that a personal characteristic that they share may not be made the basis for any protection pursuant to the state’s laws from any instance of discrimination, however invidious and unwarranted? [¶] The answer to that question must be no. … [¶] No extrapolation from precedents dealing with racial or other minorities, or from precedents dealing with rights of political or legal participation is needed …. [F]acial unconstitutionality flows directly from the plain meaning of the Fourteenth Amendment’s text. … Inserting a ban … in a state constitution entails not just a repeal of, or failure to enact or to enforce, laws protecting some citizens from discrimination, but rather puts the matter (and, in a sense, the group) beyond the reach of the state’s system for making or enforcing laws.” (Brief for Laurence H. Tribe, John Hart Ely, Gerald Gunther, Philip B. Kurland, and Kathleen M. Sullivan, as Amici Curiae in Support of Respondent, Romer v. Evans, U.S, (No. 94-1039), 1995 WL 17008432, at Pp. 3, 4, 7.)

The Constitution is clear.

Justice Kennedy seized the point-–elaborating, buttressing, ramifying:

Amendment 2 confounds th[e] normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. (Romer at P. 633.)

[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. … (Romer at Pp. 634-35.). The breadth of the amendment is so far removed from the particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. … A State cannot … deem a class of persons a stranger to its laws. (Romer at P. 635, emphasis added.)

The result is clear.

What are we to make of clarity?

Judge Moody’s powerful opinion in Brandt succeeds, if it does, because the facts of the case, as alleged by plaintiff attorneys, manifestly not well-challenged by defense counsel, put the trial judge in position to reach and write a clear, carefully detailed conclusion. Adverse medical consequences following from legislative restrictions are made to show precisely, both in general and in tragic individual cases. The manifest force of Moody’s narrative also organizes his legal analysis-–its confidently brief confirming summary of the law at hand. This decisive two-step notably follows a familiar form–a working stricture first dramatically pressed in the Field Code in 1848. Professor Pomeroy characterized this new normalcy:

[T]he existence of a legal right in an abstract form is never alleged…; but, instead …the facts from which that right arises are set forth, and the right is inferred therefrom. The cause of action, as it appears in the complaint when properly pleaded, will therefore always be the facts from which the plaintiff’s primary right and the defendant’s corresponding primary duty have arisen…. (John Norton Pomeroy, Remedies and Remedial Rights According to the Reformed American Procedure 487-88 (1876).)

Clarity–-its realization-–is the locomotive’s engine. In 2023, a century and a half later, Judge Moody’s opinion is exemplary. “Ancestral recall”?

In Romer? Professor Tribe’s phalanx and Justice Kennedy’s majority insist that Equal Protection Clause language is itself clear. The amicus brief and the majority opinion plainly look closely at the Colorado amendment, determining that it is something like the legal equivalent of a mob scene–-“mobscene,” not law in truth therefore, not law’s “equal protection.” No extensive history reports appear in detail. The constitutional terms enforced ultimately figure outside time. We are made aware of something like an artifact–-a memorial, a monument, a set realization. Whatever is of moment in 1866 or 1868 is of moment in 1996 and 2023. A fitting response to enormities–to conjunctions too many or too complicated to disentangle, to convert to analyzable parts? This is pretty much the idea Professor Tribe and Justice Kennedy convey. The amicus brief and the majority opinion countered the all-aggregating Colorado enactment by putting the Fourteenth Amendment Equal Protection Clause in opposition, presenting it as itself clearly encompassing, as itself a normative entirety.

“Equal protection of the laws” needs to appear to be a redounding expression, an emblematic sequencing. Provocatively, Justice Kennedy begins his opinion with an affiliating gesture, quoting Justice Harlan dissenting in Plessy v. Ferguson. Near the end he similarly quotes Justice Bradley warning in the Civil Rights Cases. Both passages start from hostilities tied to “race,” reframed to encompass hostilities tied to “classes.” Apt circumstances of concern call to mind threatening entanglings of a type already at hand-–encountered, countered, variously re-encountered, re-countered. Isn’t this the thematic precisely “shining through” the idea of “the equal protection of the laws”? What “is” is at once sometimes what “was”. Hugo Black’s careen emblematic? Chambers v. Florida and the Ku Klux Klan?

Maybe we should read Romer-–all three of its principal analyses (Scalia’s opinion too)-–as tensely “basic”? “The way we live now”?

Cite as: Pat Gudridge, Now and Then, JOTWELL (September 12, 2023) (reviewing Note, Romer Has It, 136 Harv. L. Rev. 1936 (2023)), https://conlaw.jotwell.com/now-and-then/.

Constitutional Scholactivism, Foreign and Domestic

At least at this moment, one will find no uses of the word “scholactivism” in the Secondary Sources database on Westlaw. Yet readers encountering this neologism here will have little difficulty getting the gist of the word. They will have seen similar terms, like “scholar-activist” or “engaged scholarship.” They may believe the academy is increasingly welcoming of such approaches. They certainly know that in the United States, scholars of this stripe increasingly are targets for legislative interference. But they won’t puzzle over the word itself. That suggests a question worth examining. This is exactly what Oxford’s Tarunabh Khaitan has done, in an excellent article, along with a subsequent response to critics.

Although scholactivism is celebrated by some, Khaitan voices reasons for concern. His take is striking. It’s not the standard argument for “value neutrality in scholarship or pedagogy.” It has no specific political valence. And although it assumes a particular “role morality” for scholars centered on a devotion to “truth” and “knowledge,” it acknowledges that “every human activity—including scholarship—is permeated by power.” Neither, however, does Khaitan proceed by drawing a line between “good” and “bad” scholarship based on its outputs. Rather, he focuses on a motive-based account of scholactivism, and suggests that even scholactivism’s supporters should reject it for “instrumental reasons.”

Of course there are things to disagree with in the article. But I applaud the fact of the article, and its calm and scholarly critical approach to scholactivism. The fact that his article occasioned a good deal of pushback is to its credit. The fact that none of those reactions have appeared in American law journals, on the other hand, is both cause for concern and a sign of defects in the machinery of American legal scholarship. Those defects suggest that Khaitan’s globally oriented critique is especially relevant for American constitutional scholarship.

Khaitan defines scholactivism as scholarship “distinguished by the existence of a motivation to directly pursue specific material outcomes.” Scholarship, we like to tell ourselves, can ultimately change the world. Scholactivism goes a step further. It has the central and immediate purpose of changing a particular thing in a particular way to achieve a specified end. On this view, an article on gun rights, undertaken with no goal other than knowledge and truth, which concludes that the Second Amendment protects the open carrying of firearms is not scholactivism; an article written with the intent to convince a particular legislature or court to craft a statutory or constitutional open carry right is. His response emphasizes the difference between the scholactivist attempt to achieve “direct, proximate, material [ ] impact through one’s scholarship,” and the scholarly motivation to seek “merely discursive” impact.

Khaitan uses two hypothetical figures to illustrate different problems with scholactivism. The “radical” scholactivist is “irrefutably committed to confirming” a position regardless of the research, or pushes an argument the scholar thinks is unsound but likely to convince a judge. His “activist motivation overrides [his] academic commitment to truth and knowledge.” For Khaitan, such a figure is just a strawman. I’m not so sure. I recall a workshop presenter explaining without embarrassment that his article did not fully represent his own views. Rather, he had chosen the argument he thought was most likely to convince Justice Kennedy to cast a particular vote in a specific case.

The “moderate” scholactivist is also motivated by the direct pursuit of material outcomes, but remains committed to “prioritizing the twin objectives of truth-telling and knowledge dissemination.” She presents a “harder case.” Here, Khaitan turns to instrumental concerns.

At the individual level, even moderate scholactivism “usually requires quick responses to concrete problems in particular places.” Scholarship, by contrast, requires “time for reading, thinking, discussing, workshopping, getting peer reviewed, revising, and so on.” The time crunch lowers the guardrails that prevent error. The focus on a specific narrow result risks overlooking “the potential unintended consequences of their normative claims beyond the temporally and spatially proximate issue at hand.” The attachment to a particular goal erodes the scholar’s fundamental “commitment to skepticism and revisability.” More subtly, the scholactivist’s motives makes it harder to admit mistakes, because she is likely to see error as moral, not just intellectual. Finally, since scholactivists, like everyone else, are subject to the lures of fame, “a scholactivist who is celebrated for her causal rule in achieving direct material outcomes rather than her strict truth-telling” will be tempted to move toward radical scholactivism.

Some of these risks apply systemically as well. Khaitan’s vision of scholarship is rooted in a professional role morality, which requires a community devoted to scholarly norms and values. Without such communal norms, it’s harder for us to do things like publicly admit error. Scholactivism “renders a vocational culture premised on robust public criticism by peers,” in which one is expected to accept criticism and confess error when needed, “inherently fragile.” One might add that if scholactivism leads scholars to see their positions as fundamentally moral, not intellectual, we will not only see less confession of error by authors, but also a weakening in the culture of robust criticism by scholarly readers—especially in the absence of political diversity. Scholars won’t want to be accused of benighted views because they dared voice intellectual objections.

The presence of too many scholactivists, even moderate ones, also poses “a systemic risk for the overall health of the academy.” Such a system will lead scholars away from a fundamental attachment to truth-seeking, provide fewer scholarly role models for the next generation, and—as we have arguably seen in the U.S.—erode public trust in scholars and scholarship. Khaitan concludes that “an academy that incentivizes the pursuit of direct material outcomes through one’s scholarship is less likely to lead to a better world than one that self-consciously tries to maintain direct activism as a potential object of a scholar’s inquiry rather than her additional role.”

Khaitan’s article is sober and careful, and notes the many options available to a scholar concerned with justice. It’s also bracing stuff. His response notes that the initial article “unwittingly stepped on a landmine in the culture wars afflicting the academy, and the with-us-or-against-us demands in such tribal culture wars prey upon nuance and the complexity of one’s internal life.” It would dishonor what he actually wrote to praise it for striking a blow in the culture wars—even a blow for truth-seeking. But one side effect of the academic culture wars is that rather than fierce disagreement, there’s sometimes none at all. Right and left talk about each other, but not to each other. And a variety of factors leave scholars on the left—who, if the term is read loosely, surely constitute the majority of American law professors—reluctant to criticize their ideological allies. A progressive empiricist might think, for example, that scholarship based on “lived experience,” not robust statistical data, is problematic. But she’s unlikely to write a piece saying so.

That may be a prudent decision. But it deprives us of the light and heat of the intramural exchanges we used to see. Khaitan shares the substantive views of some progressive scholactivists, and notes in his reply that there is also plenty of politically conservative scholactivism. Yet he is willing to question scholactivism as such, regardless of its political valence, because that is just what a scholar does. The very existence of the piece is thus jot-worthy.

Much of what Khaitan says is widely applicable. But his article deserves notice in this section, and not just because he’s a constitutional law scholar. A fundamental premise of both pieces is that “while the role of constitutional scholars is unavoidably performative to some extent, the two objectives of truth-seeking and knowledge-dissemination apply to them as much as other scholars.” But the fuzziness of the field, its constant interweaving with moral claims—and, perhaps, the professional and financial incentives that might lead an activism-minded individual to choose a well-paid academic perch over a less comfortable life doing constitutional activism directly—all make our field especially fertile ground for scholactivism, and thus demand a critical evaluation of that approach.

Khaitan’s piece is particularly resonant for American scholars, perhaps in ways he didn’t anticipate. He writes that the nature of activism is “in tension with the academy’s need to provide time and distance for research and reflection, inculcate an attitude of skepticism, and reward truth-seekers and knowledge-creators.” Those tensions “put even a moderate scholactivist at risk of failure as a scholar.” The need to publish in a timely fashion to achieve specified goals may lead the scholactivist to, inter alia, “submit the paper to a non-peer-reviewed student-run law review known for its quick publishing decisions and for preferring practice-oriented novel claims over academic rigor.”

For Khaitan, these are perilous moves away from the rigor and role-morality of a true scholar. American legal scholars just call it Tuesday. Seeing these practices through the eye of a non-Stateside scholar reminds us just how few of the ordinary guardrails for serious scholarship are in place in the American legal academy. That strengthens Khaitan’s argument in the United States.

Some responses to Khaitan argue that if a scholactivist takes the short-cuts he worries about, the problem will cure itself, because such work either won’t be published or will be ignored. But the nature of the American legal academic enterprise—the vast number of journals, the reliance on student editors and absence of thorough peer review, the relative lack of political diversity and the two-solitudes relationship between contending sides, the reluctance to criticize the methodologies of one’s friends and allies—exacerbates the risks and weakens the safeguards that both Khaitan and his critics acknowledge. To the usual structural failings, we can add that the current crop of American student law review editors has a marked enthusiasm for scholactivism. They are thus likely to publish more of it, without being able to properly evaluate it (or any other scholarship) for rigor and integrity—and less likely to publish the few critiques of this approach that might emerge from the rather timid U.S. legal academy.

For ardent scholactivists, this might be a plus, not a minus. (They’d be wrong, because these features also weaken the likelihood that any given work will be taken seriously, by courts or anyone else.) But Khaitan’s audience surely includes those who might support moderate scholactivism but are still willing to consider its costs and benefits. For that audience, a look at the actual guardrails for quality within American legal scholarship, in constitutional law and elsewhere—or, rather, the lack of guardrails—will make Khaitan’s arguments much more persuasive.

Some readers may question Khaitan’s framing of scholactivism as “internal and motivational, rather than external and judgmental.” An examination of “an internal dilemma concerning scholarly ethics” is still a worthwhile project. It seems valid to me, moreover, to argue that even a purely internal departure from a scholarly role morality that views truth-seeking and knowledge-dissemination as the “constitutive” traits of a scholar can “be risky (for both truth and justice),” if that sentiment is “widespread and celebrated within an academy.” If he is right that even moderate scholactivism may lead to a rise in the kinds of error that all scholars should worry about, such as failing to engage contrary facts and arguments, then even a motive-centered account that refuses to “give a test for what counts as ‘good’ scholarship” may be beneficial. But I wondered nonetheless whether Khaitan could have said more about scholarly outputs as well as motivations.

More broadly, one might ask whether the systemic risks he warns about require an effort to identify the external indicia of scholactivist work, and a corresponding norm against publishing it. Maybe this is unnecessary, because the indicia of bad scholactivism are the same as those of bad scholarship tout court. But it is possible that we would need to take further steps in the U.S., given our unusual approach to the publishing of legal scholarship. Khaitan argues that 1) scholactivism involves internal motivations that are hard to discern and 2) risks harming the quality of legal scholarship. That suggests an urgent need to pivot away from student editors, who are least qualified to judge both the motives and the quality of scholarship, and toward scholar-edited, peer-reviewed journals. That’s especially true if student editors are both too inexperienced to have assimilated scholarly norms and role morality, and too inclined to favor scholactivism for their own reasons.

Of course, there are compelling reasons to do this regardless of the motives of either scholars or students. The American way of legal academic publishing didn’t suddenly become an embarrassment (which it is) because of the rise of scholactivism. Scholactivism’s rise merely highlights the flaws of the American legal academy’s scholarship structure, reminding us how pitiful our guardrails are.

Regardless, Khaitan has made a valuable contribution, in both his principal piece and his reply, to our thinking about the reasons for and results of legal scholarship. It should be of particular interest to constitutional scholars, and doubly so for American legal scholars. If nothing else, it should encourage and embolden American legal scholars to name and examine the phenomenon of scholactivism—one we are all well aware of, with or without the label—in our own journals. If that doesn’t happen, it will be strong evidence that something has gone wrong with American legal scholars, student editors—or both.

Cite as: Paul Horwitz, Constitutional Scholactivism, Foreign and Domestic, JOTWELL (Aug. 2, 2023) (reviewing Tarunabh Khaitan, On scholactivism in constitutional studies: Skeptical thoughts, 20 Int'l J. of Const. L. 547 (2022); Tarunabh Khaitan, Facing Up: Impact-Motivated Research Endangers not only Truth, but also Justice, Verfassungsblog (Sept. 6, 2022), https://verfassungsblog.de/facing-up-impact-motivated-research-endangers-not-only-truth-but-also-justice/).

Aren’t We Special?: Article III’s Institutional Design

Merritt E. McAlister, Macro-Judging and Article III Exceptionalism, UF Law Faculty Publications 1197 (2023), available at UF Law Scholarship Repository.

In Macro-Judging and Article III Exceptionalism, Professor Merritt E. McAlister spotlights largely overlooked aspects of the operation of federal courts that work against the interests of litigants and society. Not only does the article expose the unintended consequences of institutional design choices, but it is written in an engaging and accessible style that more of us should emulate.

Broadly speaking, Professor McAlister analyzes and critiques the reshaping of the operation of the federal courts over the last fifty years through decisions concerning judicial workflow and workload. This reshaping is the product of what she calls “macro-judging,” i.e., “macro-level” decisions made or influenced by Article III judges concerning who decides which cases and how they decide them. Although “macro-judging” decisions over the last fifty years may have enhanced judicial efficiency, the aggregate effect has been to prioritize “the view that Article III courts are ‘special’ places, with elite judges whose work should focus on only the most important federal cases.” In other words, the effect of macro-judging decisions by the Article III judiciary has been to “entrench [ ] . . . Article III exceptionalism.” This article persuasively illustrates that Article III exceptionalism has had negative consequences for the public interest, and it lights a path toward reform.

In framing the problem of Article III exceptionalism, Professor McAlister explains that the reorganization of the operations of the federal judiciary was largely a response to “competing crises,” namely, “a vast rise in the number of small, seemingly pedestrian federal cases and an increase in both the number and complexity of ‘big’ cases.” Instead of lobbying to expand their ranks, Article III judges pushed for addressing the crises through means that preserved and even enhanced their own prestige.

At the trial court level, federal courts shunted their more routine or boring work to less prestigious judicial officers with far less job protection and lower pay. These Article I “adjuncts” to Article III judges include the federal magistrate judges, bankruptcy judges, and administrative law judges who now handle the vast bulk of the federal judicial workload on the civil side. Without them, the federal judicial system would cease to function, but their “lesser” status serves to emphasize the exalted status of their Article III brethren.

Article III judges also used “case management” tactics to exalt their status by keeping the most complex and interesting cases for themselves. Professor McAlister shows how the procedural device that allows a judicial panel to transfer and consolidate federal cases with similar facts to a single district court judges confers “elite status” on the judge to whom the “multidistrict litigation” is transferred. This procedure allows a single judge to resolve thousands of cases in one fell swoop, and these cases sometimes involve the most important, high-profile litigation in the country. The result is that “district court judges over the last fifty years have acted collectively to consolidate their authority, delegate their least sophisticated or valued work to others, and attract higher-profile, more elite civil work for themselves.”

At the federal appeals court level, judges also have taken measures to dispense quickly with cases that appear to be routine, to save their attention and energy for the most interesting and high-profile cases. Under its “triage” system, federal appeals courts do not schedule for oral argument cases that are preliminarily deemed easy; instead, judges resolve these cases without written decision, often by rubber-stamping the recommendations of staff attorneys. As Professor McAlister demonstrates, the effect is to funnel judicial energies toward “important” cases, while shifting their energies away from “unimportant” ones, which disproportionately comprise those brought by unrepresented or other marginalized litigants.

She also traces these same trends through macro-judging decisions reshaping Supreme Court operations. In 1988, the Supreme Court succeeded in convincing Congress to eliminate its mandatory jurisdiction, allowing it to completely control its caseload. The effect? A very dramatic reduction in the number of “merits” cases decided by the Court, providing Justices “more time to devote to their merits docket (including writing longer decisions or more separate decisions) and to engage in other pursuits (like seeking public recognition, getting book advances, and doing high-profile speaking gigs in far-flung locales).”

Meanwhile, and perhaps relatedly, the Court has refused to adopt ethics rules while such matters “are beyond congressional purview.” At the same time, a “judicial cult of personality” has taken hold: with their increased leisure time to write books, give speeches, and draft separate opinions, Justices seem to “have more time for pursuits that exalt themselves.” This affects judicial modesty and restraint, and, as Professor McAlister provocatively argues, may ultimately be detrimental to the public interest.

One of the strongest facets of this remarkably good article is its exploration of the dark side of the intensification of the “special” status of Article III courts. “Macro-judging” (again, the many decisions about how the federal courts operate) runs the risk of tainting “micro-judging,” the individual judicial decisions resolving cases—decisions that change the lives of the litigants and definitively interpret society’s operating rules. Macro-judging decisions that aggrandize judicial power and prestige will often work to the detriment of the least powerful in society: fewer, if any, judicial resources will be dedicated to hearing their cases, and less authoritative rulings will result in matters concerning them. As Professor McAlister points out, this is “reason enough for more aggressive congressional oversight and lawmaking in these areas.”

Professor McAlister’s proposals to counteract Article III exceptionalism are sound. First, she urges reinvigoration of Congress’s operational oversight of the federal courts in ways that would enhance the rule of law and improve the quality of justice for all. Congress must “resist judicial capture” and “act with greater sensitivity to the possibility of judicial aggrandizement—including, especially, by inviting dissenting voices and different constituencies into what formal processes exist.” Congress should be especially skeptical of judicial objections to court expansion, which often are a product of “entrenched (and rampant) elitism.” Building on the work of other scholars, she also urges Congress to consider requiring the Supreme Court to issue, without dissents or concurrences, unsigned per curiam decisions in every case. Or Congress might limit the issuance of nationwide injunctions, expand the federal judiciary, or take other measures to decrease the federal courts’ autonomy over their workload. All these options represent possible avenues for reform worthy of the further consideration this article ought to inspire.

Ultimately, Professor McAlister issues an optimistic call to action rooted in a desire to improve the quality of justice, and not merely the judiciary’s self-perception. She writes:

There’s every reason to think reforms that disturb the exceptionalism narrative of Article III might return the courts to a more passive, minimalist, or public-service orientation. . . .

Design features can encourage or discourage boldness and aggrandizement; they can elevate or diminish the public-service orientation of the federal courts; they, ultimately, have the power to define what is important to our judicial institutions. My point is this: it’s time for the people—acting through our elected representatives— to set our own judicial priorities for the Article III courts. Greater regulation of macro-judging may be one way to re-align those priorities to privilege the public-service mission of the judiciary—that is, a mission that heeds the priorities set by a democratic process—over the aggrandizement of Article III.

As I hope this review illustrates, her article makes a significant contribution to the literature on federal courts by identifying the tremendous and often overlooked costs of Article III exceptionalism. Further, it stands as a useful and timely corrective to a tendency within the legal academy and profession and sometimes the society at large “to romanticize or canonize the federal judiciary.” I hope the article’s sensible proposals for reform will receive the attention they deserve—and not merely within legal academia.

It is a testament to the thought-provoking quality of the article that it made me consider whether other recent Supreme Court practices I have been studying recently, such as anticipatory overruling or shadow docket signaling, might be operational decisions contributing to Article III exceptionalism. The exclusion of cameras in federal courts is another phenomenon suggesting our federal judges are “too special” for the tawdry scrutiny of the masses. (The rhetoric federal judges have used to reject cameras in the courtroom amply supports Professor McAlister’s thesis about judicial self-interest and self-perception.) Her article also made me wonder how the increased difficulty today of obtaining Senate confirmation affects judicial notions of “specialness” or otherwise affects subsequent judicial behavior. All this is to say that this article is generative. It is just the beginning of the tremendous contribution Professor McAlister’s work can make to our understanding, and perhaps reform, of the operation of the federal judiciary.

Cite as: Lyrissa B. Lidsky, Aren’t We Special?: Article III’s Institutional Design, JOTWELL (June 27, 2023) (reviewing Merritt E. McAlister, Macro-Judging and Article III Exceptionalism, UF Law Faculty Publications 1197 (2023), available at UF Law Scholarship Repository), https://conlaw.jotwell.com/arent-we-special-article-iiis-institutional-design/.

Bringing Real Harm Back to Canadian Free Speech Law

Camden Hutchinson, Freedom of Expression: Values and Harms, 60 Alta. L. Rev. 687 (2022).

Among the best-known maxims of freedom of speech in the United States is Justice Holmes’s “freedom for the thought that we hate.” It would not be an apt description of the law of free expression in Canada. As Camden Hutchison explains in Freedom of Expression: Values and Harms, the Supreme Court of Canada (SCC) ranks speech according to subjective judgments of value, and woe to those whose thought it does not think much of. Hutchison makes a compelling case for why this is the wrong approach to adjudicating freedom of expression claims, and an intriguing suggestion for what may replace it.

As Hutchison points out, and as I have noted elsewhere, things didn’t start out this way. At first, the SCC held that any law whose purpose was to restrict expression amounted to a limitation of the freedom protected by s. 2(b) of the Canadian Charter of Rights and Freedoms, which could only be upheld under s. 1 of the Charter if “demonstrably justified in a free and democratic society.” Only when the impugned law affected expression incidentally would the values associated with this right be relevant: political participation, the search for truth, and individual self-fulfillment. If these were impaired, a potential violation of s. 2(b) might still be on the cards, subject to justification under s. 1.

But the tail quickly came to wag the dog. When it was asked to consider the constitutionality of prohibitions on hate speech in R v Keegstra, the SCC chose to assess the expression at issue with reference to these same values. While it held that hate speech was prima facie protected expression, hate speech’s failure in the SCC’s eyes to do much for political participation, the search for truth, or even self-fulfillment meant that bans were justified.

This was so not only for the provisions of Canada’s Criminal Code, which provide a number of important safeguards and defenses, notably truth, but also for prohibitions in anti-discrimination statutes, to which even truth is no defense. As Hutchison summarizes Whatcott v Saskatchewan (Human Rights Commission), the SCC’s most recent decision in this area, “certain forms of expression advance free expression values, while other forms of expression serve to undermine those values. If expression is found to undermine free expression values, then the government will have freer scope to legally restrict it.”

Hutchison’s careful reading of the SCC’s hate speech jurisprudence exposes its incoherence, subjectivity, and indeed failure to protect the values it invokes as constitutive of the freedom of expression. Instead of protecting the search for truth by individuals, however misguided this may sometimes prove to be, this case law rests on the conceit that the SCC has access to the truth, and that little is lost when competing views are prevented from being aired. Since the SCC has upheld hate speech bans that make no exception for true statements, its commitment to the value of truth seems rhetorical at best. The value of self-fulfillment, meanwhile, is turned from a justification for free expression into one for censorship in the name supporting the collective well-being of the groups victimized by hate speech. Last but not least, democracy is made into a synonym for tolerance―which, as Hutchison rightly notes, it isn’t always in Canada, any more than in other places―and, thus, into yet another justification for silencing those who will not get with the program.

Hutchison’s focus is on the SCC’s hate speech cases. However, his charge that the SCC’s invocation of the values that support freedom of expression is no more than a rhetorical smokescreen for restricting expressive freedomis borne out by the SCC’s treatment of other issues. For example, it has upheld the use of compelled speech in the face of a dissenting judge’s protestation that ordering a person to make “statements of facts in which, rightly or wrongly, he may not believe, or which he may find inaccurate, misleading or false” amounts to ordering him “to tell a lie.” So much for the search for truth.

Democratic participation fares little better. As I have pointed out elsewhere, “no debate in Canadian society is so regulated as the one at the heart of our parliamentary democracy and thus of the protection of the freedom of expression.” Thus, the SCC has upheld restrictions on independent campaign expenditures so draconian that they prevented the publication of an ad in a national newspaper, back when ads in newspapers were still a thing. This was done, needless to say, in the name of enhancing the democratic process.

To address the flaws he identifies in the SCC’s freedom of expression jurisprudence, Hutchison proposes a new approach to the proportionality analysis that, through s. 1, governs the justification of limitations on Charter rights. This approach would “focus on the impairment of actual expression rather than underlying values,” which can be “easily employed to justify the suppression of disfavoured ideas.”

At the balancing stage of the proportionality analysis, Hutchison argues, the limitation of the freedom of expression should be set off not against the government’s objectives, as is now the case, but “the individual or social harms prevented by the restriction.” The harms, moreover, must be more than speculative—another distinction with current law, which gives considerable leeway to the government’s “reasonable apprehensions” of harms that might be produced by unregulated expression.

The language of harm can be, and in recent years has been, deployed expansively to justify all manner of restrictions on speech. Hutchison proposes a cabined definition to prevent the notion of harm from becoming a stand-in for the “values” he urges the SCC to discard, as well as to promote consistent and predictable adjudication in freedom of expression cases. Drawing on other cases that have considered the notion of harm, he suggests that limitations on the freedom of expression can only be justified where there is “tangible” “evidence that the targeted expression is likely to cause either (1) harm to individuals whose autonomy or liberty may be injured or (2) harm to society by predisposing individuals to antisocial conduct.” Harms that have not yet eventuated need to be discounted by the likelihood of their doing so.

This part of Hutchison’s argument is, I am afraid, vulnerable to criticism. I may trust him with applying the harm test as he frames it ― though, as will presently be apparent, I will not always be happy with the outcomes ― but I do not think I would trust the SCC. Hutchison’s test is an improvement on the Court’s current free-flowing invocation of “values,” but I doubt that whether an individual’s autonomy is injured by speech, let alone whether she will be predisposed to anti-social conduct, are matters that can be objectively resolved on the basis of judicially cognizable evidence. The prospect of manipulation by a willful court—which after all is the reason why Hutchison’s article is necessary and important—still lurks. Even apart from that, these questions are surely subject to reasonable disagreement.

Thus, Hutchison argues that Canada’s criminal hate speech statute would be constitutional on his approach. This is partly because of the various protections, including the defense of truth, available to the accused. Partly, though, this is because he believes that his harm requirement was met on the facts of Keegstra. There, a teacher’s antisemitic rants to his students “targeted a minority group that, within living memory, was subject to one of the deadliest extermination campaigns in human history” and “by denying the reality of the Holocaust itself … might increase the risk of similar tragedies occurring in the future.” One might wonder what tangible evidence there would be for such pessimism. One might also argue, or at any rate I have argued, that it is not hate speech, but the more polished and insidious insinuations of politicians that truly imperil minorities.

Nonetheless, Hutchison’s arguments have the merit of calling attention to the subjectivity of the SCC’s current approach to the justification of limitation on the freedom of expression, and indeed of other rights. His call for a more objective approach is no less important ― perhaps all the more so ― even if there is reason to doubt that his own proposal is objective enough. So is the focus on the costs and benefits to actual people rather than to abstract values. And so too is Hutchison’s insistence on real evidence to support the government’s claim that it has good reason to limit constitutional rights. The Charter itself, after all, only condones limitations “demonstrably justified in a free and democratic society.”

In short, Hutchison has done the Canadian legal community, and indeed the Canadian public, a considerable service. He has shown that the SCC’s long-dominant approach to freedom of expression cases is only a pretense of a defense of this right. In truth, freedom of expression in Canada is a privilege for those whom the SCC considers sufficiently inoffensive to the values of which some its judges have openly proclaimed themselves the ultimate guardians. There is a lesson there, too, for those in the United States and elsewhere who may look to Canada for what they may deem a more balanced approach to reconciling the imperative of the freedom of speech with the reality that speech can, indeed, deserve our hatred. The Canadian model is not a reconciliation, but a usurpation. Be careful what you wish for.

I would conclude with the following observation. Hutchison is not primarily a constitutional lawyer; he is a scholar of corporate law. His ability to challenge the entire framework of freedom of expression law built up by the SCC over more than 30 years ― something that, as Paul Horwitz has noted elsewhere, seldom happens in the cozy world of Canadian public law ― is above all proof of his curiosity and willingness to pursue interesting questions wherever they lead. But it is also testament to the value to scholarship and to legal inquiry more broadly of outsiders, in the broadest possible sense of the word. People who dare cross disciplinary boundaries or, in other cases, jurisdictional, or indeed ideological ones, can teach us more than those who never leave their geographical and metaphorical home.

Cite as: Leonid Sirota, Bringing Real Harm Back to Canadian Free Speech Law, JOTWELL (May 26, 2023) (reviewing Camden Hutchinson, Freedom of Expression: Values and Harms, 60 Alta. L. Rev. 687 (2022)), https://conlaw.jotwell.com/bringing-real-harm-back-to-canadian-free-speech-law/.

The Problem is the Court, Not the Constitution

Brandon Hasbrouck, The Antiracist Constitution, 102 B.U. L. Rev. 87 (2022).
Jonathan Feingold

Jonathan Feingold

“But first, we must believe.” So concludes The Antiracist Constitution, where Brandon Hasbrouck confronts an uneasy question: In the quest for racial justice, is the Constitution friend or foe? Even the casual observer knows that constitutional law is no friend to racial justice. In the nineteenth century, Plessy v. Ferguson blessed Jim Crow. In the twentieth century, Washington v. Davis insulated practices that reproduce Jim Crow. Now in the twenty-first century, pending affirmative action litigation invites the Supreme Court to outlaw efforts to remedy Jim Crow.

Of course, “constitutional law” is not some independent and self-executing thing. It is little more than what five Supreme Court Justices say the Constitution means. We might, accordingly, reframe the opening question and instead ask: Has the Supreme Court been faithful to the Constitution? Hasbrouck offers a bold response. Since at least the fall of the Civil War, the Supreme Court’s race jurisprudence has been defined by constitutional infidelity. Hasbrouck views the Constitution as an antiracist document that holds the “tools of abolition democracy.” For the antiracists and abolitionists in the room, Hasbrouck has a message: The Constitution is on our side. Do not misread constitutional law for the Constitution. And to reclaim constitutional law, we must first reclaim the Constitution.

I want Hasbrouck to be right. I want a Constitution that distinguishes Jim Crow from affirmative action; grandfather clauses from race-neutral alternatives; racism from antiracism. I want to believe. But the story Hasbrouck tells would indict 150 years of constitutional jurisprudence. Hasbrouck is prepared. To put it in social-media vernacular, he came armed with receipts.

Through a kaleidoscopic highlight reel, Hasbrouck captains a journey through white supremacy in America. But he cautions that the Constitution is not to blame—at least not our Constitution. In Hasbrouck’s words, one hears echoes of the late Justice Thurgood Marshall, who on our nation’s 200th birthday refused to celebrate the Constitution of our Founders. “While the Union survived the Civil War,” Marshall underscored, “the Constitution did not.” Our Founders’ Constitution died with the Confederacy. Our Constitution rose in its aftermath.

To understand our Constitution, Hasbrouck uplifts “oft-ignored original public meanings of the Reconstruction Amendments.” This “originalist” turn builds on scholarship that documents how the Reconstruction Congress used and endorsed race-conscious tools to build a new America. Specifically, Hasbrouck features the arguments of antebellum abolitionists and the Reconstruction Amendment’s congressional champions. He also centers an all-too-frequently overlooked constituency: Black Americans. Hasbrouck explores how contemporary Black communities viewed the broader project of Reconstruction—and what this says about the Constitution itself. Black Americans saw the Reconstruction Amendments as integral to a racial project to transform and remake America’s social, economic, and political orders. Taken together, these diverse historical sources of original public meaning reveal a document infused with, and animated by, antiracist and abolitionist commitments.

To complement this history, Hasbrouck interrogates the origins of constitutional colorblindness, a judicial philosophy often deployed to defuse antidiscrimination law’s liberatory promise and potential. Proponents of colorblindness trace the theory to Justice Harlan’s Plessy dissent. Writing for himself in one of the Court’s most notorious cases, Harlan proclaimed that “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” The ritual of invoking Harlan’s words holds a certain logic. As with right-wing entities that appropriate civil rights icons like Martin Luther King and Brown v. Board of Education, this rhetorical move shrouds racially regressive projects under the veil of equality itself. Hasbrouck pulls back the veil through a simple yet uncommon tactic: he places Harlan’s language in context. As Hasbrouck explains, Harlan was no abolitionist interested in realizing the promise of multiracial democracy. To the contrary, Harlan harbored white supremacist views and believed de jure segregation was unnecessary to uphold America’s racial hierarchy. Harlan’s words speak for themself: “The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.”

The Antiracist Constitution leads to a liberating realization. Those on the front lines fighting for an antiracist and abolitionist America enjoy more than moral authority. They also enjoy constitutional authority. Constitutional law continues to impede racial justice in America. But the problem is not the Constitution. The problem is a Supreme Court whose hostility to civil rights comes in spite of, not because of, the Constitution. If such a claim appears bold, one reason is that constitutional fidelity has long been the exception to the rule—the outlier to a constitutional jurisprudence that privileges the status quo over constitutional command.

Against this backdrop, Hasbrouck invites us to reclaim our Constitution. This entails more than locating antiracist and abolitionist politics within the Constitution itself. It also requires recuperating color-consciousness as constitutionally compelled, not just constitutionally permitted. It also requires challenging colorblindness as not simply anti-egalitarian, but also anti-Constitution. One might say Hasbrouck calls on us to shift from racial justice defense to racial justice offense. The Constitution has our back. But first, we must believe.

Cite as: Jonathan Feingold, The Problem is the Court, Not the Constitution, JOTWELL (April 27, 2023) (reviewing Brandon Hasbrouck, The Antiracist Constitution, 102 B.U. L. Rev. 87 (2022)), https://conlaw.jotwell.com/the-problem-is-the-court-not-the-constitution/.

Former President Trump: Inflammatory Speaker or Criminal

Alan Z. Rozenshtein & Jed Handelsman Shugerman, January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution, 37 Const. Comment. (Forthcoming 2023), Jan. 21, 2023 draft available at SSRN.

There can be no doubt that January 6, 2021, was one of the worst days in United States history. Outgoing President Donald Trump held a rally with supporters near the Capitol, urged them to keep “fighting” (the adverse election results and more), and sent them to illegally storm the barriers of the U.S. Congress. A Trump supporter lost her life, and numerous Capitol police and security officials were injured trying to defend the site. Many Trump supporters carried weapons but, miraculously, nobody in Congress was injured. Among the attackers were members of right wing extremist groups like the Proud Boys, who Trump encouraged.

One of the key questions in this tragic episode is whether the President himself committed a crime by engaging in inflammatory speech. The January 6 Congressional Committee has urged the U.S. Department of Justice to bring charges against Trump. But one legal defense that President Trump will employ is that the U.S. Constitution’s First Amendment protects his speech. Law professors Alan Z. Rozenshtein and Jed Shugerman answer the question of whether this defense should prevail in their impressive forthcoming article, January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution.

The article focuses principally on whether the Supreme Court’s famous per curiam decision in Brandenburg v. Ohio protected his speech. In Brandenburg, the Court ruled unconstitutional an Ohio Criminal Syndicalism statute that was being used to prosecute Ku Klux Klan members. The KKK members were verbally advocating disobedience of the law and various racist views. The Court adopted a multi-part test for when a prosecution against inciting speech could be allowed under the First Amendment and said the test had not been satisfied. The test required that a speaker deliberately advocate illegal conduct, and that there be a likelihood of imminent lawlessness taking place. The Court in Brandenburg said mere advocacy of illegality, as opposed to incitement, was not enough. And there was certainly no imminent danger.

Brandenburg is still good law, and there have been cases where the Court seems to have given a very pro-speech interpretation of the test. But it is a very short opinion on a vital topic. It is also not clear how the case applies in certain contexts, like the Internet. Trump’s January 6 speech was ambiguous in that parts of the speech urged fighting, while other parts were more toned down. Yet most people agree that President Trump’s speech encouraged and supported the rioters. Nonetheless, a strong formalistic reading of Brandenburg might protect him. To put it another way, the case’s meaning is not perfectly clear, and the January 6 context is especially difficult.

The authors note these problems, as well as earlier inflammatory incidents in which Trump was involved. The article’s authors argue that “The key lesson from these cases is that ’mere abstract teaching‘ is different than ’preparing a group for violent action.’” The authors use other incitement-type cases to gain a perspective on the problem, such as NAACP v. Claiborne Hardware Co. (NAACP organizer essentially threatens members who are not sufficiently committed to protest effectively).

The authors also reference the one major decision dealing with similar issues regarding President Trump’s actions on January 6, Thompson v. Trump. There, D.C. District Court Judge Amit Mehta conceded that Trump did not “explicitly encourage the imminent of use of violence,” but held that Trump’s lengthy effort to discredit the election could be viewed as “encouraging the attack on the Capitol.” Perhaps inspired by this opinion, the authors argue that the crucial incitement answer is found in the overall context of the situation, which included actions even before the worst statements. Based on this framework, the authors make a strong case that Trump took actions that convert his statements to unprotected incitement.

For example, the authors show that Trump urged security officials to remove the “magnetometers” that were keeping the January 6 crowd farther away from him and the Capitol. Moreover, Trump made a statement that ratified the rioters’ view that Vice-President Pence deserved to be killed for his inaction. And Trump apparently wrestled with his Secret Service driver, in an effort to get the car to the Capitol where the riot broke out. The authors argue that these acts, along with Trump’s earlier fervent rejections of the election results, “represent concrete steps to incite, insurrect, and obstruct.” What makes the article even more interesting is the analogy it draws to incidents involving the era of Aaron Burr. Trump’s actions removed any ambiguity from the intent behind his speech and pushed it into the criminal category.

The one problem with the article—one that shows the difficulty of the issue—is that some of the “actions” that it refers to, as distinct from speech, are actually expression. But overall, the article is helpful in clarifying the incitement principles regarding President Trump’s speech and actions on January 6, 2021.

Cite as: Mark Kende, Former President Trump: Inflammatory Speaker or Criminal, JOTWELL (March 30, 2023) (reviewing Alan Z. Rozenshtein & Jed Handelsman Shugerman, January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution, 37 Const. Comment. (Forthcoming 2023), Jan. 21, 2023 draft available at SSRN), https://conlaw.jotwell.com/former-president-trump-inflammatory-speaker-or-criminal/.