Tag: free speech

Due Process Stops at the Campus Gates?

People in the D.C. area maye be familiar with the tragic tale of Fairfax teacher Sean Lanigan, who was falsely accused of sexual molestation, resulting in termination and a destroyed reputation.  As pointed out by friend of Cato and Cato Supreme Court Review contributor Hans Bader, however, the Department of Education is pushing a policy that would allow for more Sean Lanigans, even in cases not involving anything close to rape or molestation:

If the U.S. Department of Education’s Office for Civil Rights has its way, more teachers like him will end up being fired even if they are acquitted by a jury of any wrongdoing.  It sent a letter to school officials on April 4 ordering them to lower the burden of proof they use when determining whether students or staff are guilty of sexual harassment or sexual assault.   According to the Department of Education’s demands, schools must find people guilty if there is a mere 51% chance that they are guilty – a so-called preponderance of the evidence standard.   So if an accused is found not guilty under a higher burden of proof – like the “beyond a reasonable doubt” standard that applies in criminal cases – the accused will still be subject to disciplinary action under the lower burden of proof dictated by the Education Department.

As Wendy Kaminer explains, the DoE would also like to strip the accused of their right to cross-examination:

Campus investigations and hearings involving harassment or rape charges are notoriously devoid of concern for the rights of students accused; “kangaroo courts” are common, and OCR ‘s letter seems unlikely to remedy them. Students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant “may be traumatic or intimidating.” (Again, elevating the feelings of a complainant over the rights of an alleged perpetrator, who may have been falsely accused, reflects a presumption of guilt.) Students may be represented by counsel in disciplinary proceedings, at the discretion of the school, but counsel is not required, even when students risk being found guilty of sexual assaults (felonies pursuant to state penal laws) under permissive standards of proof used in civil cases, standards mandated by OCR.

Now, it is undoubtedly extraordinarily difficult for a rape victim to face her attacker, but lowering the standards under which someone is judged for that crime and not allowing the accused to question his accuser opens the door to using accusation as a weapon, just as in Lanigan’s case or that of the Duke lacrosse team.  Justice (what lawyers call “due process”) demands, among other things, that both accuser and accused have their day in court, and that there be a presumption of innocence.  It is no more just for an innocent person to be smeared and forever tarnished – if not convicted and imprisoned – than it is to let a guilty man go free.  Indeed, as Blackstone famously said, “Better that ten guilty persons escape than that one innocent suffer.” 

What’s more, as Foundation for Individual Rights in Education president Greg Lukianoff details, it’s not just accused rapists whose rights are prejudiced under the new OCR policy, but those who make bad jokes:

California State University–Monterey policies state that sexual harassment “may range from sexual innuendoes made at inappropriate times, perhaps in the guise of humor, to coerced sexual relations.” UC Berkeley lists “humor and jokes about sex in general that make someone feel uncomfortable” as harassment. Alabama State University lists “behavior that causes discomfort, embarrassment or emotional distress” in its harassment codes. Iowa State University states that harassment “can range from unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people to serious physical abuses such as sexual assault.”

This disconnect between basic principles of free speech and due process creates what Lukianoff calls “a perfect storm for rights violations”:

By making it clear that OCR would be aggressively pursuing harassment claims, by mandating extensive changes to many universities’ due process protections, but not requiring universities to adopt a uniform standard for harassment, OCR has supercharged the power of existing campus speech codes. OCR could have done our nation’s colleges a favor if it required universities to adopt a uniform definition of harassment in the same breath as it required them to aggressively police it.

FIRE has done heroic work in protecting student rights, so you should really read all of Lukianoff’s indictment of the new policy. 

The Department of Education needs to rescind/clarify this mess.  Speech is not a crime, but even the rights of those accused of crimes should not be subordinated to misplaced compassion or political correctness.

Monday Links

  • Regulatory privilege is not consistent with competitive markets–that’s why Fannie Mae and Freddie Mac need reform.
  • Thank goodness the U.S. Supreme Court found that education tax credits are not consistent with the fictitious notion of a “tax expenditure.”
  • President Obama’s budget plan is not consistent with either his own deficit commission’s plan or the Constitution.
  • The modern “Executive State” is not consistent with Article II of the Constitution.
  • Cyberbullying laws are not consistent with the First Amendment and our concept of free speech:


Even University Presidents Are Bound by the Constitution

Few could imagine a more troubling free speech and due process case than that of Hayden Barnes. 

Barnes, a student at Valdosta State University in Georgia, peacefully protested the planned construction of a $30 million campus parking garage that was the pet project of university president Ronald Zaccari.  A “personally embarrassed” Zaccari did not take kindly to that criticism and endeavored to retaliate against Barnes — ignoring longstanding legal precedent, the Valdosta State University Student Handbook (a legally binding contract), and the counsel of fellow administrators.  Zaccari even ordered staff to look into Barnes’s academic records, his medical history, his religion, and his registration with the VSU Access Office!

The district court found that Barnes’s due process rights had indeed been violated and denied Zaccari qualified immunity from liability for his actions. Now on appeal, Cato joined a brief filed by the Foundation for Individual Rights in Education on behalf of 15 organizations arguing that qualified immunity is inappropriate here given Zaccari’s brazen violation of Barnes’s constitutional rights to free speech and due process.  As stated in the brief, the “desire of some administrators to censor unwanted, unpopular, or merely inconvenient speech on campus is matched by a willingness to seize upon developments in the law that grant them greater leeway to do so.”  The brief thus asks the Eleventh Circuit to affirm the denial of qualified immunity on both First Amendment and due process grounds.

First, the immense importance of constitutional rights on public university campus is due in no small part to the reluctance of school administrators to abide by clearly established law protecting student rights.  Second, Zaccari knew or should have known that his actions violated Barnes’ rights and were illegal retaliation against constitutionally protected speech. 

Qualified immunity is intended to protect public officials who sincerely believe their actions are reasonable and constitutional, not those who willfully and maliciously ignore well known law in a determined effort to deprive another of constitutional rights. A denial of qualified immunity here would vindicate those rights and reinforce school administrators’ obligation to protect and abide by them. 

The case of Barnes v. Zaccari will be heard by the Eleventh Circuit this spring or summer.  Thanks to legal associate Nicholas Mosvick for his help on the brief and with this post.

Free Speech Belongs on Campuses Too

Speaking of free speech, last night I had an Obamacare panel at Widener University, which is currently having its own little speech-related brouhaha.  (Getting there was a bit of a hassle because I was held up at the Wilmington Amtrak station by Vice President Biden’s entourage — but I didn’t end up in a closet, so I guess it could have been worse.)

There are strange things afoot at the tiny Delaware law school, specifically to tenured professor Lawrence Connell, who also happens to be the adviser to the school’s Federalist Society chapter. From the Foundation for Individual Rights in Education:

Widener University School of Law is attempting to fire longtime criminal law professor Lawrence Connell by charging him with dubious violations of the school’s harassment code, such as using the term “black folks” in class and using the names of law school Dean Linda L. Ammons and other law school colleagues as characters in class hypotheticals. Although a faculty panel has already recommended that Widener drop its “dismissal for cause” proceedings against Connell, administrators have reportedly induced students to issue further complaints under a new process that forces Connell to keep the details of the proceedings secret. Connell, who is represented by attorney Thomas S. Neuberger, also requested help from the Foundation for Individual Rights in Education (FIRE).

“Not only do the charges against Professor Connell appear to be either unsubstantiated or totally meritless, but even after the faculty refused to assent to his firing Widener has found a new, ‘confidential’ procedure to use against him,” FIRE President Greg Lukianoff said. “Professor Connell has already addressed the charges, but now he cannot publicly discuss the details of his prosecution out of fear of punishment for ‘retaliatory action’ if he reveals them.”

Although Widener is a private university, a faculty member receiving such treatment on dubious charges should raise some eyebrows in legal academia. If there is something to the charges, let them be aired in public. While this is not a constitutional issue, I’m sure the law school administration is well aware of the importance of both due process and intellectual freedom. To that end, either the professor should be afforded the dignity of defending himself to his accusers or this nonsense should be put to bed.

You can read more about the case here. Also, if the state of today’s law schools interests you, I cannot recommend strongly enough my colleague Walter Olson’s new book, Schools for Misrule: Legal Academia and an Overlawyered America.

Thanks to Jonathan Blanks for his help with this blogpost.

If the Government Gives Your Election Opponent More Money the More Money You Spend, It Burdens Your Speech

Yesterday the Supreme Court heard oral arguments in the Arizona matching-public-campaign-funding case, McComish v. Bennett, spearheaded by our friends at the Goldwater Institute and the Institute for Justice.

Here’s the background:  In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns.  Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. Notably, in a case where a privately funded candidate is running against more than one publicly assisted opponent, the matching funds act as a multiplier: if privately funded candidate A is running against publicly funded candidates B, C, and D, every dollar A spends will effectively fund his opposition three-fold. In elections where there is no effective speech without spending money, the matching funds provision unquestionably chills speech and thus is clearly unconstitutional.  For more, see Roger Pilon’s policy forum featuring Goldwater lawyer Nick Dranias, which Cato hosted last week and you can view here.

The oral arguments were entertaining, if predictable. A nice debate opened up between Justices Scalia and Kagan about the burden that publicly financed speech imposes on candidats who trigger that sort of financing mechanism under Arizona law. Justice Kennedy then entered the fray, starting out in his usual place — open to both sides — but soon was laying into the Arizona’s counsel alongside Justice Alito and the Chief Justice.

The United States was granted argument time to support Arizona’s law, but Justice Alito walked the relatively young lawyer from the Solicitor General’s office right into what I consider to be his (Alito’s) best majority opinion to date, the federal “millionaire’s amendment” case (paraphrasing; here’s the transcript):

Alito:  Do you agree that “leveling the playing field” is not a valid rationale for restricting speech?

US:  Sort of.

Alito:  Have you read FEC v. Davis?

Note to aspiring SCOTUS litigators: try not to finesse away direct precedent written by a sitting justice.

My prediction is that the Court will decide this as they did Davis, 5-4, with Alito writing the opinion striking down the law and upholding free speech.  Cato’s amicus briefs in this case, which you can read here and here, focused on the similarities to Davis, so I’m keeping my fingers crossed that we’ll get cited.

NB: I got to the Court too late to get into the courtroom today but live-tweeted (@ishapiro) the oral arguments from the (overflow) bar members’ lounge, which has a live audio feed. I was later informed that such a practice violates the Court rules, however – ironic given how pro-free-speech this Court is – so I will not be repeating the short-lived experiment.  (That said, you should still follow me on Twitter – and also be sure to follow our friends @IJ and @GoldwaterInst!)

Arrested for Pamphlets

The feds are seeking to jail 78-year old Julian Heicklen for distributing pamphlets.  Heicklen knows that jurors are supposed to be able to vote their conscience in criminal cases – so he distributes pamphlets on that subject near the federal courthouse.  The feds are evidently worried about the contents of those pamphlets and assert that Heicklen’s conduct amounts to “jury tampering.”  But if Heicklen just gave the pamphlets to anyone and everyone, as he claims, without attempting to sway the outcome of any particular case, his conduct is free speech, plain and simple.   Heicklen should get a jury trial to fight the free speech violation – since our Constitution says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” but prosecutors are going to invoke wrongheaded precedents that say this case can be tried before a judge, not a jury.  Oh, and the police arrested another guy for simply videotaping Heicklen’s arrest.  No pamphlets, no photography, no jury trial. 

Cato co-published a book in defense of jury nullification in 1998.   More here and here.   (I am betting that books, blog posts, and law review articles are still legal should this post reach readers in New York City, but we’ll see about that.)

Corporations Aren’t People But They Are (Legal) Persons

Recently, activist and filmmaker Annie Leonard released a video titled “The Story of Citizens United v. FEC,” an eight-and-a-half-minute criticism of last year’s Supreme Court case of the same name.

Well, sort of.

Competitive Enterprise Institute’s Lee Doren made his own video critique in response to Ms. Leonard’s offering, and points out quite clearly that Ms. Leonard doesn’t really deal with any actual constitutional problems in her position—essentially ignoring the decision and its rationale—and instead spends most of her time corporation bashing.

Lee was kind enough to cite, inter alia, a blogpost I wrote last year about what “corporate personhood” does and does not mean. If Ms. Leonard was going to ignore the decision, it may have at least served her well to read that post before producing her video. As I pointed out, under the logic she puts forth, “individuals acting through corporations should be denied their freedom of speech because corporations are ‘state-created entities.’ The theory goes that if a state has the power to create corporations, then it has the power to define those entities’ rights.” Ms Leonard’s video was made by (or coordination with) Free Range Studios—a corporation—and thus she’s making the argument that Congress should be able to keep her from or punish her for making that video because Free Range Studios shouldn’t have rights.

Despite the misinformation in Ms. Leonard’s video, we believe she and Free Range Studios have every right to be wrong as publicly as they see fit, even if she doesn’t.

Please watch Lee’s full video below, and look for the Cato shout-out around the 12:20 mark. If you’re in the Chicagoland area, I’ll be speaking about corporate rights and corporate personhood at John Marshall Law School tomorrow at 10:15AM local time. Feel free to stop by and please introduce yourself.