Category Archives: academic freedom

New Article on Democracy and Political Assembly

academic freedom, First Amendment theory, , , , , ,

At this time, when so many democratic norms and institutions of government and civil society are being challenged, I hope readers of this blog will be interested in my new article, A Right of Peaceable Assembly, forthcoming in the Columbia Law Review.

The development of an independent Assembly Clause doctrine is essential. It may once have been possible to dismiss the consequences of ignoring the textual right of assembly. This is no longer true. Our neglect of the right has significant contemporary consequences for political protests, as the campus protests since October 7, 2023, have demonstrated.

The functional absence of the Assembly Clause in First Amendment law and constitutional discourse fundamentally distorts our analysis of the proper scope of constitutional protection for political assemblies. This Symposium Piece develops a much-needed independent Assembly Clause doctrine. An independent Assembly Clause doctrine would not just be consistent with the text and original understanding of the Founders but also allow for a jurisprudence capable of distinguishing between protected and unprotected assemblies in relation to assembly’s distinct contribution to self-governance. The Piece recognizes that legal recognition of assembly as a textual right troubles the speech-conduct distinction that lies at the heart of contemporary First Amendment jurisprudence and upends existing determinations about the proper scope of constitutional protection for those who gather in public for political ends. The fact, however, is that the First Amendment explicitly protects a certain form of conduct (peaceable assembly), and it does so for good reasons (assemblies further liberal democracy in both instrumental and non-instrumental ways). This Piece, therefore, lays out a roadmap for an independent Assembly Clause doctrine capable of providing more appropriate constitutional protection, accounting for both assembly’s value and its social costs.

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Michael Rosin: “In VRA1970 Congress Intended Election Day to Be a Floor, Not a Ceiling, for Receipt of Mail In Ballots”

academic freedom, The Voting Wars

The following is a guest post from Michael Rosin:

Rick Hasen recently criticized Trump’s March 25 Executive Order for attempting to end the counting of mail in ballots received after election day. He noted that “the EO would try to take a Fifth Circuit opinion nationwide,” an opinion he had described as “bonkers.” The opinion and the Trump EO are not simply bonkers. They are contrary to the relevant statute and to Congress’s intent when crafting the relevant statutory text.

The relevant statutory text appears in Sections 202(d) and (g) of the Voting Rights Act Amendments of 1970. Section 202(d) requires each State to provide an absentee presidential ballot to

all duly qualified residents … who may be absent from their election district … in such State on the day such election is held and who have applied therefor not later than seven days immediately prior to such election and have returned such ballots to the appropriate election official of such State not later than the time of closing of the polls in such State on the day of such election. (Emphasis added)

Critically, Section 202(g) provides

Nothing in this section shall prevent any State or political subdivision from adopting less restrictive voting practices than those that are prescribed herein. (Emphasis added)

A review of the relevant congressional hearings makes it clear that Congress intended Section 202(d) to specify a floor, not a ceiling, for receipt of mailed in absentee ballots.

Section 202 is the brainchild of Barry Goldwater who told a Senate subcommittee that he sought to “secure the right to vote for President and Vice President for every citizen of the United States without regard to lengthy residence requirements or where he may be on election day.” His testimony listed 40 states whose statutes “expressly permit absentee ballots of certain categories of their voters to be returned as late as the day of the election or even later.”

Washington and Alaska were two states whose statutes allowed mail in absentee ballots to be counted if received after election day.

In 1933 Washington enabled mail in absentee ballot for the physically disabled. This statute required absentee ballots to be received by election day. A 1955 Washington statute extended mail in ballots to those who could not vote in person because of absence or religious reasons. Hand carried ballots had to be delivered on or before election day. Mail in ballots had to be postmarked no later than that but would be counted if received by the sixth day after election day. This is the law today.

In 1960 the first Alaska legislature enacted a law allowing absentee ballots to be counted if postmarked no later than election day and received by the tenth day after the election. In 1963 the legislature trimmed that back to eight days, a setting it reaffirmed in 1968. It has since been reset back to ten days.

In 1970 Congress knew that at least two states counted mail in absentee ballots received after election day. Surely, if Congress had intended election day to be an absolute cutoff date for receipt of mail in ballots some member would have commented on these states needing to amend their election laws. No one did.

The Fifth Circuit got it wrong. Election day is the earliest cutoff date allowed for receipt of mail in ballots in presidential elections. Section 202(g) makes it clear that a state can opt for a later cutoff date and when enacted Congress knew that at least two states had so opted.

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“Assembly as Political Practice”

academic freedom, First Amendment theory

Columbia’s actions this past week, especially its decision to invite the NYPD onto campus, have prompted me to post a new chapter, “Assembly as Political Practice,” forthcoming in the Oxford Handbook of Peaceful Assembly (Tabatha Abu El-Haj, Michael Hamilton, Thomas Probert & Sharath Srinivasan, eds.). Recent events highlight the interrelationship between protest politics and electoral politics, the rise of a new McCarthyism focused on educational institutions, its power, but also the pervasive devaluing of it as a form of politics. Most disheartening to me personally is the widespread perceived reasonableness of Columbia’s actions including among First Amendment scholars. It stems, in my view, from a misconception of assembly as a lesser form of speech and an inclination to over estimate the risks of disorder.

“[A]ssemblies come in a range of . . . forms, including annual parades, smaller political protests, and weekly gatherings of social groups. All these forms of assembly sustain and reinforce the capacity for democratic politics, and their value does not turn on their expressive ends alone. Both the possibility of effective democratic politics, and a proper construction of the right of peaceful assembly, demand that we recognize the value of assembly, as assembly, and its latent and constitutive political functions.”

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Must Read Yoel Roth NYT Oped on Threats and Intimidation of Those Who Kept the 2020 Elections Safe

academic freedom, election subversion risk

This is truly must-read:

When I worked at Twitter, I led the team that placed a fact-checking label on one of Donald Trump’s tweets for the first time. Following the violence of Jan. 6, I helped make the call to ban his account from Twitter altogether. Nothing prepared me for what would happen next.

Backed by fans on social media, Mr. Trump publicly attacked me. Two years later, following his acquisition of Twitter and after I resigned my role as the company’s head of trust and safety, Elon Musk added fuel to the fire. I’ve lived with armed guards outside my home and have had to upend my family, go into hiding for months and repeatedly move.

This isn’t a story I relish revisiting. But I’ve learned that what happened to me wasn’t an accident. It wasn’t just personal vindictiveness or “cancel culture.” It was a strategy — one that affects not just targeted individuals like me, but all of us, as it is rapidly changing what we see online.

Private individuals — from academic researchers to employees of tech companies — are increasingly the targets of lawsuits, congressional hearings and vicious online attacks. These efforts, staged largely by the right, are having their desired effect: Universities are cutting back on efforts to quantify abusive and misleading information spreading online. Social media companies are shying away from making the kind of difficult decisions my team did when we intervened against Mr. Trump’s lies about the 2020 election. Platforms had finally begun taking these risks seriously only after the 2016 election. Now, faced with the prospect of disproportionate attacks on their employees, companies seem increasingly reluctant to make controversial decisions, letting misinformation and abuse fester in order to avoid provoking public retaliation…..

on Dec. 6, four days after the first Twitter Files release, I was asked to appear at a congressional hearing focused on the files and Twitter’s alleged censorship. In that hearing, members of Congress held up oversize posters of my years-old tweets and asked me under oath whether I still held those opinions. (To the extent the carelessly tweeted jokes could be taken as my actual opinions, I don’t.) Ms. Greene said on Fox News that I had “some very disturbing views about minors and child porn” and that I “allowed child porn to proliferate on Twitter,” warping Mr. Musk’s lies even further (and also extending their reach). Inundated with threats, and with no real options to push back or protect ourselves, my husband and I had to sell our home and move.

Academia has become the latest target of these campaigns to undermine online safety efforts. Researchers working to understand and address the spread of online misinformation have increasingly become subjects of partisan attacks; the universities they’re affiliated with have become embroiled in lawsuits, burdensome public record requests and congressional proceedings. Facing seven-figure legal bills, even some of the largest and best-funded university labs have said they may have to abandon ship. Others targeted have elected to change their research focus based on the volume of harassment.

Bit by bit, hearing by hearing, these campaigns are systematically eroding hard-won improvements in the safety and integrity of online platforms — with the individuals doing this work bearing the most direct costs.

Tech platforms are retreating from their efforts to protect election security and slow the spread of online disinformation. Amid a broader climate of belt-tightening, companies have pulled back especially hard on their trust and safety efforts. As they face mounting pressure from a hostile Congress, these choices are as rational as they are dangerous.

Yoel Roth is one of the panelists at our 9/26 event for the Safeguarding Democracy Project.

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Very Disturbing: Gay Rights Groups Seek Emails of Law Professor Doug Laycock

academic freedom

The story is here (via Orin Kerr).

Through the activist group Virginia Student Power Network, GetEQUAL found two UVA students willing to take up the cause of calling out Laycock: rising fourth-year Greg Lewis and now-alum Stephanie Montenegro. Last week, the pair sent an open letter to Laycock asking him to consider the “real-world consequences that [his] work is having.” They also submitted a Freedom of Information Act request seeking e-mails between Laycock and various right-wing and religious liberty groups.

I know something about these requests, and at this point I think it worth remembering what  Indiana Professor Eric Rasmussen said: we should be equally outraged at these threats to academic freedom when they come from the left or the right.

 

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“Christian Adams, the Election Law Listserv, and Private Speech”; And Clearing Up What Judicial Watch Wanted

academic freedom

Allen Dickerson, Legal Director of the Center for Competitive Politics (with whom I’ve had countless but respectful disagreements over the years) writes at CCP’s blog:

In a similar vein, Mr. Adams takes issue with a listserv run by Professor Rick Hasen:

       Hasen runs an online meeting hall for all the would-be speech totalitarians. They post, bluster, and kibitz about the latest news on their effort to erode the First Amendment and increase federal power. Whenever a free speech advocate seeks to contribute to the conversation at the blog, they are often deliberately given a cold shoulder and ignored, per plan. The ignored don’t understand that leftists aren’t interested in debate. Their pedigree requires the eradication of opposing ideas, not their incubation.

He goes on to suggest that, because this listserv is hosted by a public university (Prof. Hasen teaches at the University of California, Irvine), that it is appropriate to file “a freedom of information request demanding Hasen’s emails to the White House and other government officials including any on the topic of speech regulations.”

As a participant on that listserv—and I do not believe that Mr. Adams would consider me a “speech totalitarian”—I can say that while Prof. Hasen and I disagree on a great many things, I have never been given the cold shoulder or ignored. There have been exchanges both terse and tense, but that is to be expected in discussing this issue. This isn’t a field populated by folks with thin skins.

More importantly, a bedrock principle for many of us is that private speech should be left alone. Prof. Hasen is a private citizen. While leaving aside the merits of any particular state Public Records Act request (I am not a California lawyer), there is an unmistakable air of intimidation in requesting a private person’s emails, especially when that same request can be more properly addressed to any government officials involved.

I do want to clear up one misconception of Allen’s, created by Mr. Adams’ original post. Adams wrote: “Judicial Watch sent the University of California at Irvine a freedom of information request demanding Hasen’s emails to the White House and other government officials including any on the topic of speech regulations.” (my emphasis)  Allen then writes that any public records requests should go to whatever government officials are out there. But that’s not all that Judicial Watch asked for.  They asked for virtually all of my email for a two year period [corrected] except internal UCI email and email sent to students:

  “…Judicial Watch, Inc. requests from the University of California access to and a copy of any and all record(s)… concerning or relating to the following:

1) All emails from Law Professor Rick Hasen from September 1, 2010 through November 6, 2012, to any party outside of the University of California, Irvine, sent on University of California, Irvine, servers from [email protected]. This request does not therefore include any administrative emails regarding the University of California, or any emails to students or the like.

2) All emails from third parties outside the University of California, Irvine, system sent to Law Professor Rick Hasen sent from September 1, 2010 through November 6, 2012, on University of California, lrvine, servers to [email protected]. This request does not therefore include any administrative emails regarding the University of California, or any emails from students or the like.

3) Moreover, this request does not seek any emails which are already public record by virtue of being part of a list serve run by Law Professor Rick Hasen and housed on University of California, Irvine, servers at http://department-lists.uci.edu/mailman/listinfo/lawelection. This request does not include email traffic which is part of this list serve and already has been posted publically though it also appears in Professor Hasens in or out box for his email mailbox [email protected].”

So it is worse than Eric Rasmussen thought too.

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Quote of the Day

academic freedom
“Judicial Watch sent the University of California at Irvine a freedom of information request demanding Hasen’s emails to the White House and other government officials including any on the topic of speech regulations. The University told Judicial Watch to pound sand, and still hasn’t provided anything.”
What will judicial watch think if a liberal group asks universities to hunt down all the political emails of its conservative professors? I’m one of those, so I feel threatened myself. And since when have the emails of a single employee with no authority to act for [the] university on a subject been subject to FOIA requests?
Indiana University Professor Eric Rasmussen, commenting at PJ Media.
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“Protect academic freedom in N.C.”

academic freedom

Charlotte Observer editorial: “What’s happening to UNC Chapel Hill law professor Gene Nichol should trouble all of us in North Carolina. A campaign appears afoot to silence his criticism of Republicans and their legislative policies that Nichol deems harmful to the state and its residents….In email records obtained by the (Raleigh) News & Observer, criticism by Republican supporters of GOP Gov. Pat McCrory – including university board members, alumni and others – spurred the university to request notice when Nichol writes opinion pieces. University officials also asked him to omit his title as director of the privately funded, university-based Center on Poverty, Work & Opportunity when the issue does not directly involve poverty. Last October after he criticized the governor and legislature for election law changes that this editorial board has also lambasted as partisan and racially motivated, the school asked him to include an explicit disclaimer that “he doesn’t speak for UNC.”…It is understandable officials would make such requests, given the legislative rock and hard place the university finds itself in these days. Budget director Art Pope just last month chastised university officials for submitting a funding request that asks for what they needed rather than acceding to his directive for something much less. After his tongue-lashing, officials revised their request substantially downward.”

Art Pope?  Now where have I heard that name before?  Oh yeah.

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