Released Monday by OSU President Ted Carter; I'm not up on the factual details, but I agree that such encampments can and should be forbidden under content-neutral time, place, and manner rules, and those rules should be enforced:
Listening to the feedback from our community over the last several days, I want to set the record straight regarding the events that took place on the South Oval on April 25.
I value and welcome free speech. I have spoken to this since the day I arrived here at Ohio State. As many of you know, I wore the cloth of our nation for 38 years to support and defend these rights. What occurred on our campus on April 25 was not about limiting free speech. It was an intentional violation of university space rules that exist so that teaching, learning, research, service and patient care can occur on our campuses without interruption.
As a public university, demonstrations, protests and disagreement regularly occur on our campus — so much so that we have trained staff and public safety professionals on-site for student demonstrations for safety and to support everyone's right to engage in these activities. Sadly, in recent days, I have watched significant safety issues be created by encampments on other campuses across our nation. These situations have caused in-person learning and commencement ceremonies to be canceled. Ohio State's campus will not be overtaken in this manner.
We have been abundantly clear in a multitude of communications that Ohio State has and will enforce the law and university policy, which is what we did on April 25. I most recently stated this in a campus message on April 22. Dr. Shivers again reinforced this and the rules that apply to Finals Week in a message to all students on April 23.
The university's long-standing space rules are content neutral and are enforced uniformly. Thursday's actions were taken because those involved in creating the encampment on the South Oval were in violation of these rules and had been notified of this beginning at 4:30 a.m. when the first encampment was attempted, and continuing repeatedly throughout the day. During and after the attempted encampment on Thursday morning, students asked our demonstration staff pointed questions about the space rules and received answers, confirming they were aware of the rules.
This post provides an update from Stanford University about the encampment recently set up on Stanford's White Plaza. It follows the message sent to students by the president and provost last Friday, April 26. Additional updates will be posted to this page as needed.
Stanford welcomes and encourages the peaceful expression of free speech by members of our Stanford community. Students have been pursuing many opportunities to do so over the course of this year, in a variety of ways. Among other options, student groups are welcome to engage in advocacy on White Plaza in a manner consistent with campus policies. There is a process for registering to do so, in order to allow for equitable access to this space by members of our community.
Alongside its support for the peaceful expression of free speech, the university has viewpoint-neutral time, place, and manner policies. Among these are policies regarding the use of White Plaza, prohibiting overnight camping, and prohibiting the disruption of classes and university events.
With respect to the encampment on White Plaza, the university is continuing to submit names of students who are violating campus policies to the Office of Community Standards (OCS) for disciplinary proceedings. This is being done in a viewpoint-neutral manner and based on evidence of students' conduct in violation of university policy. Students who are involved will have the opportunity to provide a defense to OCS.
May Day should be a day to honor victims of an ideology that took tens of millions of lives. But we should also be open to alternative dates if they can attract broad enough support.
Today is May Day. Since 2007, I have advocated using this date as an international Victims of Communism Day. I outlined the rationale for this proposal (which was not my original idea) in my very first post on the subject:
May Day began as a holiday for socialists and labor union activists, not just communists. But over time, the date was taken over by the Soviet Union and other communist regimes and used as a propaganda tool to prop up their [authority]. I suggest that we instead use it as a day to commemorate those regimes' millions of victims. The authoritative Black Book of Communism estimates the total at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century's other great totalitarian tyranny. And May Day is the most fitting day to do so….
Our comparative neglect of communist crimes has serious costs. Victims of Communism Day can serve the dual purpose of appropriately commemorating the millions of victims, and diminishing the likelihood that such atrocities will recur. Just as Holocaust Memorial Day and other similar events promote awareness of the dangers of racism, anti-Semitism, and radical nationalism, so Victims of Communism Day can increase awareness of the dangers of left-wing forms of totalitarianism, and government domination of the economy and civil society.
While communism is most closely associated with Russia, where the first communist regime was established, it had comparably horrendous effects in other nations around the world. The highest death toll for a communist regime was not in Russia, but in China. Mao Zedong's Great Leap Forward was likely the biggest episode of mass murder in the entire history of the world.
November 7, 2017 was the 100th anniversary of the Bolshevik seizure of power in Russia, which led to the establishment of the first-ever communist regime. On that day, I put up a post outlining some of the lessons to be learned from a century of experience with communism. The post explains why the lion's share of the horrors perpetrated by communist regimes were inherent flaws of the system. For the most part, they cannot be ascribed to circumstantial factors, such as flawed individual leaders, peculiarities of Russian and Chinese culture, or the absence of democracy. Some of these other factors, especially the last, probably did make the situation worse than it might have been otherwise. But, for reasons I explained in the same post, some form of dictatorship or oligarchy is virtually inevitable in a socialist economic system where the government controls all or nearly all of the economy.
While the influence of communist ideology has declined since its mid-twentieth century peak, it is far from dead. Largely unreformed communist regimes remain in power in Cuba and North Korea. In Venezuela, the Marxist government's policies have resulted in political repression, the starvation of children, and a massive refugee crisis—the biggest in the history of the Western hemisphere.
In Russia, the authoritarian regime of former KGB Colonel Vladimir Putin has embarked on a wholesale whitewashing of communism's historical record. Putin's brutal and indefensible invasion of Ukraine owes more to Russian nationalist ideology than communism. But it is nonetheless fed in part by his desire to recapture the supposed power and glory of the Soviet Union, and his long-held belief that the collapse of the USSR was "the greatest geopolitical catastrophe of the century." It is also telling that most communists in Russia and elsewhere have joined with many far-right nationalists in backing Putin's line on the war.
In China, the Communist Party remains in power (albeit after having abandoned many of its previous socialist economic policies), and has recently become less tolerant of criticism of the mass murders of the Mao era (part of a more general turn towards greater repression).
China's horrific repression of the Uighur minority is reminiscent of similar policies under Mao and Stalin, though it has not—so far—reached the level of actual mass murder. But imprisoning over 1 million people in horrific concentration camps is more than bad enough.
Far-left support for Hamas since the horrific October 7, 2023 terrorist attack is yet another reminder of the inherently evil nature of communist ideology. Backing terrorism is part of a long history of support for repression and mass murder. Not all extreme socialists of the type who support Hamas are communists. But the latter are a subset of the former.
In a 2012 post, I explained why May 1 is a better date for Victims of Communism Day than the available alternatives, such as November 7 (the anniversary of the Bolshevik seizure of power in Russia) and August 23 (the anniversary of the Nazi-Soviet Pact). I also addressed various possible objections to using May Day, including claims that the date should be reserved for the celebration of labor unions.
But, as explained in my 2013 Victims of Communism Day post, I would be happy to support a different date if it turns out to be easier to build a consensus around it. If another date is chosen, I would prefer November 7; not out of any desire to diminish the significance of communist atrocities in other nations, but because it marks the establishment of the very first communist regime. November 7 has in fact been declared Victims of Communism Memorial Day by three state legislatures.
If this approach continues to spread, I would be happy to switch to November 7, even though May 1 would be still more appropriate. For that reason, I have adopted the practice of also commemorating the victims of communism on November 7.
I would also be happy to back almost any other date that could command broad support. Unless and until that happens, however, May 1 will continue to be Victims of Communism Day at the Volokh Conspiracy.
From Doe v. U.S., decided yesterday by Judge Mary Kay Vyskocil (S.D.N.Y.):
Plaintiffs allege that for over two decades, the Federal Bureau of Investigation … allowed [Jeffrey] Epstein and others to sex traffic and sexually abuse children and young women by failing to investigate the reports, tips, and evidence it had of "rampant sexual abuse and sex trafficking by Epstein."
Plaintiffs sought leave to proceed under pseudonyms, but the court said no (note that at this stage there is no discussion yet of whether plaintiffs can sue FBI on this sort of failure-to-investigate theory):
Plaintiffs here allege that due to the FBI's failure to take appropriate action to investigate Epstein, they continued to be "sexually abused, raped, assaulted, tormented, violated, harassed, [and] intimidated," among other trauma. The Court agrees that Plaintiffs' allegations of sexual assault are "highly sensitive and of a personal nature," and, thus, the first factor of Sealed Plaintiff weighs in favor of anonymity. However, this factor is not dispositive. Courts in this district have explained that "allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym." Indeed, courts have denied motions to proceed under a pseudonym in similar circumstances….
Plaintiffs [also] argue that these factors weigh in favor of anonymity because "identification poses a further risk of mental harm." They assert that their experiences are "deeply traumatic" and "[p]laying out those experiences in a public forum would retraumatize them." Specifically, they argue that "certain Plaintiffs have sought out mental health treatment in connection with the abuse described in the complaint and would certainly experience additional significant harm if [they are] forced to reveal [their] identity to the public."
However, Plaintiffs' allegations of potential harm are too speculative and insufficient to outweigh the presumption in favor of openness in judicial proceedings. "The risk of psychological injury stemming from identification is a cognizable harm that can serve as a legitimate basis for proceeding anonymously." However, the potential injury alleged must be more than "mere embarrassment" or "social stigmatization." For example, a court in this Circuit allowed a plaintiff to proceed anonymously when she "provided specific evidence from medical professionals predicting that revelation of her identity would likely 'cause psychological and emotional pain so intense that it would threaten her stability, her safety, and even her life.'"
From Pryor v. School Dist. No. 1, decided yesterday by the Tenth Circuit, in an opinion by Judge Joel Carson, joined by Judges Timothy Tymkovich and Scott Matheson:
The First Amendment protects those who petition the government for redress of grievances, even though such speech may offend government officials or damage their public reputation. Plaintiff Brandon Pryor passionately—and at times profanely—criticized actors within Defendant Denver School District No. 1 ("District") when he advocated for change within the District. In response, Defendants stripped him of his volunteer position and restricted his access to District facilities. Because the District likely acted in retaliation against Plaintiff's First Amendment rights, we exercise jurisdiction under 28 U.S.C. § 1292 and affirm the district court's preliminary injunction….
Plaintiff Brandon Pryor advocates for quality educational opportunities in Far Northeast Denver ("FNE Denver"). His advocacy takes many forms: he texts privately with District administration, speaks with officials in person, appears on local podcasts and news media, posts on social media, attends board meetings and work groups, and participates in public comment sessions. He has also served as a volunteer football coach in FNE Denver for many years. In 2019 he co-founded a school in FNE Denver: the Robert W. Smith STEAM Academy ("STEAM Academy").
In October 2022, the District served on Plaintiff a letter from Aaron Thompson, the District's general counsel ("Thompson Letter"). The Thompson Letter alleged that Plaintiff had displayed "abusive, bullying, threatening, and intimidating conduct directed at [District] staff." As support for its allegations, the Thompson Letter described interactions between Plaintiff and District staff throughout the previous two years. The Thompson Letter also quoted Plaintiff's text messages, personal Facebook posts, and statements from phone calls and a local podcast.
The Thompson Letter explained that Neisa Lynch, newly hired principal of Montbello High School in FNE Denver, had complained to the District that Plaintiff subjected her to harassment, defamation, and slander and that he had intimidated and threatened her and her husband. In her complaint, Lynch cited many of Plaintiff's Facebook posts—including a post that specifically called for Lynch's resignation or termination; a post in which Plaintiff stated that she (and others) "are a disgrace to the entire community"; and a post that included Lynch's husband's LinkedIn profile and stated: "What are the chances that Neisa Lynch and her husband Mike Lynch worked together to steal our kids [sic] game? … I'm sure they've talked about it all …" Lynch also complained that Plaintiff told community members not to enroll children at her school; called her derogatory names such as "plantation builder"; and—according to the Thompson Letter—"suggest[ed] her colleagues have endured hate speech, harassment, defamation, and slander by [Plaintiff] as well."
{Lynch was not the first District employee to complain about Plaintiff. Other District employees had complained that Plaintiff had become angry with them and had yelled and cursed in personal interactions. In response to these complaints, the District investigated and found that Plaintiff acted unprofessionally but did not violate District policies on harassment. The District ultimately did not enforce restrictions on Plaintiff based on these prior complaints.}
Each conversation, post, or interaction that the Thompson Letter listed related in some manner to Plaintiff objecting to or calling for changes in District operations. In many posts, Plaintiff called for the resignation or termination of District officials; in others, he criticized District officials for operational missteps or decisions with which he disagreed. The text messages between Plaintiff and District staff included specific demands, sometimes coupled with derogatory statements directed at the staff. Some of Plaintiff's statements, as quoted in the Thompson Letter, were cryptic, such as "Warning! Don't poke a resting bear!" And a few statements contained expletives—such as the following: "Watch out for the Black folks trying to Whitesplain this bullshit" (in a Facebook comment related to a post criticizing Lynch for hiring decisions); and "Stay the fuck away from me" (in a phone conversation with the District's Regional Instructional Superintendent after Plaintiff learned she had canceled a planning meeting for the school he founded).
In the course of an interview mostly devoted to other issues, a Japanese reporter recently asked me whether there is a difference between justice and the rule of law. Some of his (understandable) confusion was purely linguistic. Both "justice" and "rule of law"are fuzzy terms that different people use in different ways. It's easy to see how non-native English speakers could get confused.
Nonetheless, there are differences between the two concepts that go beyond semantics. Sometimes, of course, "rule of law" might be used in ways that preemptively rule out the possibility that legislation that meets rule-of-law requirements could ever be unjust. In the famous Hart-Fuller debate of the 1950s, Lon Fuller argued that gravely unjust rules and regulations (like those of Nazi Germany) could never be real laws. If so, enforcing such mandates can never be squared with the rule of law.
More commonly, however, "rule of law" is used to denote crucial procedural elements of a legal system, particularly that that ordinary people should be able to readily determine what laws they are required to obey, and that whether or not you get charged by authorities depends mostly on objective legal rules than the exercise of official discretion (thus, the contrast between the rule of law and the "rule of men"). We might add that the rule of law bars—or at least presumptively forbids—discrimination on the basis of certain morally irrelevant characteristics, such as race, ethnicity, and gender.
By contrast, "justice" is a broader notion that focuses on the substantive rightness of the legal rule in question. Laws protecting freedom are (at least usually) just. Laws promoting slavery are not. And so on.
Understood in this way, it is easy to see how legislation that meets the requirements of the rule of law can nonetheless be profoundly unjust. Consider a law mandating the death penalty for jaywalking. It's certainly clear and unequivocal. Assume, further, that there is no enforcement discretion; no discrimination on the basis of race, gender, or any other morally arbitrary trait. Nor is there any favoritism. It is enforced against the rich and powerful no less than the poor and weak. If the governor of the state jaywalks, he or she will be executed just as readily as a homeless person who commits the same offense.
This rule meets the requirements of the rule of law. But it is still blatantly unjust. The death penalty is a hugely disproportionate punishment for the offense of jaywalking, no matter how evenly it is applied.
The same can be true of laws where "crime" itself is something that should not be illegal, even aside from the severity of the punishment. Imagine a law imposing forced labor on a large swathe of the population, such as one requiring all able-bodied adult citizens to do a month of forced labor each year. In Butler v. Perry (1916), the Supreme Court actually upheld a Florida law that required all able-bodied male citizens between the ages of 21 and 45 to either do road repair work for six days each year, provide a substitute, or pay a $3 tax (a much larger amount in inflation-adjusted terms in 1916 than it would be today).
In 1916 Florida, this law was likely enforced much more aggressively against blacks and poor people than against affluent whites. Such unequal enforcement arguably violated rule-of-law principles. Perhaps the rule of law was also undermined by the fact that the law only mandated forced labor for men, exempting women. But we could easily imagine a version of the law that is enforced equally, and also covers women. That version would satisfy the requirements of the rule of law. And, unlike the death penalty for jaywalking law, the punishment seems at least reasonably proportional to the offense.
The forced labor law would nonetheless be terribly unjust, because forced labor (including forced labor for the state) is itself unjust—no matter how equally enforced. Indeed, fully equal enforcement might in some ways make things worse, because it would increase the number of people who are victimized.
If laws that meet the requirements of the rule of law can still be unjust, we might also consider whether justice might sometimes require dispensing with rule-of-law constraints. At the very least, it seems like such a possibility cannot be categorically ruled out.
Because of the vast scope of current law, in modern America the authorities can pin a crime on the overwhelming majority of people, if they really want to. Whether you get hauled into court or not depends more on the discretionary decisions of law enforcement officials than on any legal rule. And it is difficult or impossible for ordinary people to keep track of all the laws they are subject to and to live a normal life without running afoul of at least some of them….
For most people, it is difficult to avoid violating at least some laws, or even to keep track of all the laws that apply to them….
Ignorance of the law may not be a legally valid excuse. But such ignorance is virtually inevitable when the law regulates almost every aspect of our lives and is so extensive and complicated that few can hope to keep track of it….
Most Americans, of course, never face punishment for their lawbreaking. But that is true only because the authorities lack the resources to pursue most violators and routinely exercise discretion in determining which ones are worth the effort….
In this way, the rule of law has largely been supplanted by the rule of chance and the rule of executive discretion.
I think the way to fix this problem is to drastically reduce the number of laws, and the range of behavior regulated by the state. But it's easy for me to say that. As a libertarian, I would like to abolish a vast range of current laws for reasons unrelated to rule-of-law considerations. I think a high proportion of current laws are substantively unjust; if I didn't think that, I would not be a libertarian in the first place.
But if you believe that extensive government regulation of many aspects of society is necessary - and especially if you think it's necessary to promote justice - then you are likely to face serious tradeoffs between justice and the rule of law. In some situations, you might choose to promote the former, at the expense of the latter. Note the implication that a libertarian society could stick to the rule of law much more consistently than one based on most other ideologies.
But even libertarians might sacrifice the rule of law to substantive justice in at least a few situations. What if, for example, giving government broad discretion to suppress potentially dangerous movements is the only way to prevent Nazis or communists from coming to power? Perhaps that was, in fact, the situation faced by the Russian Provisional Government in 1917, or by the Weimar Republic in the years right before 1933. If so, deviating from the rule of law might be the only way to avoid horrific injustice. I think such dilemmas are rare. But the possibility they might arise can't be categorically ruled out.
If you believe civil disobedience is sometimes justified (as Martin Luther King and others argued), the distinction between justice and the rule of law implies there may be situations where there is no obligation to obey a law, even if it meets rule-of-law requirements. As described above, such a law could still be horrifically unjust. For example, people would be justified in evading a rule-of-law compliant forced labor regime, and in helping others to do so.
Both justice and the rule of law are important values. But they are not the same thing. And there can be situations where the two come into conflict.
You can watch on YouTube (see here for past episodes), or subscribe on any podcast platform. This series put together by the Hoover Institution at Stanford University, where I'll be starting as the Thomas M. Siebel Senior Fellow on May 11.
An excerpt from Hiles v. CNN, decided yesterday by Judge Arenda L. Wright Allen (E.D. Va.), where plaintiff sued for libel in a CNN article (read the whole opinion for more):
Factual Allegations …
Although Plaintiff is referred to as a "rioter" in the Article, he alleges that he was never charged with or accused of rioting at the U.S. Capitol. Plaintiff further quotes definitions of "riot" from Virginia and federal law and alleges that his activities do not meet these definitions. CNN had made distinctions between rioters and demonstrators in prior reports, including when covering the 2015 Baltimore riots, when CNN analyst Mark Lamont Hill pointed out that not all demonstrators present were rioters. Likewise, in April 2021, Schneider had published an article differentiating conspiracy cases brought against about 20 members of paramilitary groups from "hundreds of rioters facing trespassing charges."
The Article also omits certain matters…. [Among others,] [t]he Facebook post quoted by the Article … is accompanied by "an obviously tongue-in-cheek" caption, "Feelin cute … might start a revolution later. IDK – in Capitol Hill." … The Article … omits the phrase "IDK" (short for "I don't know") from the Facebook post….
The Virginia Fair Report Privilege …
"Virginia's fair report privilege protects the publication of 'accounts of public proceedings or reports'—for example, records of judicial proceedings." … Here, the challenged statements all derive from publicly available court materials in Plaintiff's criminal case and are substantially accurate and fair abridgements of those materials….
I've benefited from much thoughtful commentary about last week's arguments in Trump v. United States, the presidential immunity case (besides posts at this blog, see e.g. these posts by Jack Goldsmith and by Marty Lederman).
In addition I wanted to pass along these additional thoughts by Professor Robert Leider from George Mason, an expert in both constitutional law and criminal law, which I thought would be of interest to readers:
Sources of Presidential Immunity
On Thursday, the Supreme Court heard arguments in Trump v. United States, which concerned whether presidents have criminal "immunity" for their official acts while in office. Some arguments seemed perplexing. Trump's counsel, for example, argued that a prosecutor could charge private acts, but not official acts. So if a president accepted a bribe to appoint an ambassador, prosecutors could charge the bribe (which he declared a private act) but not the appointment, which he classified as an official act. Official acts, in his view, could only be the subject of criminal charges if there was first an impeachment and conviction, followed by a prosecution under a criminal statute that explicitly mentions the president.
The Court struggled with these arguments, and many others. In large part, I think these struggles occurred because "immunity" is not a good way to describe when a president may not be prosecuted. In this post, I want to lay out what I believe to be the exceptions to when a president may be prosecuted in the same manner as a private citizen. This post comes with the caveat that this is not my usual academic area, and I do not have a high degree of confidence that what I framed here is complete and correct. But at the very least, I think it is a better starting place than the all-encompassing term "immunity."
The court held that the ADL's claims were factual assertions, and not just opinions; whether they are false assertions, and whether plaintiff is a limited-purpose public figure (who would therefore have to show knowing or reckless falsehood) remains to be decided.
Plaintiff John Sabal started his own business, The Patriot Voice, to organize conservative political events. The purpose of these events is to showcase "pertinent and dynamic speakers, whose messages are timely and relevant." These events also "feature speakers of every color and creed, including those of the Jewish faith." … Sabal contends that ADL defamed him….
The first ADL publication at issue is entitled, "Backgrounder: QAnon" (the "Backgrounder"). The Backgrounder includes two references to Sabal. The first states that "several aspects of QAnon lore mirror longstanding antisemitic tropes, and multiple QAnon influencers, including … QAnon John (John Sabal) have been known to peddle antisemitic beliefs." [The Backgrounder specifically refers to "the antisemitic trope of blood libel, the false theory that Jews murder Christian children for ritualistic purposes." -EV] The second states that "[i]n October 2021, several elected officials and candidates spoke at the Patriot Double Down conference hosted in Las Vegas, Nevada by antisemitic QAnon influencer John Sabal (QAnon John)." The words "spoke at the Patriot Double Down conference" link to an article published by the Arizona Mirror reporting on "some extremely antisemitic imagery," such as visuals of Hitler and the Star of David superimposed against a picture of the 9/11 attacks….
The second publication is ADL's "Glossary of Extremism and Hate" ("Glossary"), which "provides an overview of many of the terms and individuals used by or associated with movements and groups that subscribe to and/or promote extremist or hateful ideologies." The Glossary entry at issue here provides that "John Sabal, also known as 'QAnon John,' is a QAnon influencer who runs The Patriot Voice website, which he uses to advertise QAnon-related conferences. These conferences, the first of which was held in May 2021, have showcased the mainstreaming of QAnon and other conspiracy theories." …
The third ADL publication at issue is the report entitled, "Hate in the Lone Star State: Extremism & Antisemitism in Texas" (the "Lone Star Report"), which "explore[d] a range of extremist groups and movements operating in Texas and highlights the key extremist and antisemitic trends and incidents in the state in 2021 and 2022." The Lone Star Report identifies Sabal in connection with a Dallas conference:
Over the last few years, Texas has been at the heart of several notable QAnon events and incidents. The state has been home to multiple QAnon-themed conferences, highlighting the mainstreaming of QAnon and other conspiracies among conservative communities and the GOP. The most notable was "For God & Country: Patriot Roundup," which took place on Memorial Day weekend 2021. Organized by John Sabal, known online as "QAnon John" and "The Patriot Voice," the event featured then-Congressman Louie Gohmert (R-TX), then-Texas GOP chair Allen West, Lt. General Michael Flynn, attorney and conspiracy theorist Sidney Powell and various QAnon influencers. During the event, Michael Flynn seemingly endorsed a Myanmar-style coup in the U.S., although he has since backtracked on his remarks….
4/30/1789: President Washington's inauguration. He would appoint eleven members to the Supreme Court: Chief Justices Jay, Rutledge, and Ellsworth, and Justices Wilson, Blair, Cushing, Rutledge, Iredell, Johnson, Paterson, and Chase.
even when he got the address through a public records request, and is trying to use it to show the chief lives far from town. The court concluded that the chief's "exact street address is not a matter of public concern" and therefore, under the circumstances, wasn't constitutionally protected.
From Kratovil v. City of New Brunswick, decided Friday by the N.J. intermediate appellate court (Judges Gilson, DeAlmeida, and Bishop-Thompson):
Plaintiff is a journalist who writes for and edits New Brunswick Today, an online publication. As the name of the publication suggests, it focuses on local news about the City.
Defendant Caputo is a retired police officer who then became Director of the City's Police Department. Caputo was also a Commissioner of the City's Parking Authority. He served in both those positions through 2023 and retired from those positions in early 2024.
In 2023, plaintiff noted that Caputo was not attending City Council meetings, nor was he regularly attending Parking Authority meetings in person. On March 14, 2023, plaintiff sent Caputo an email asking if Caputo still lived in the City. The Deputy Director of Police responded on Caputo's behalf, stating, in relevant part: "The public release of a law enforcement officer's place of residence is protected under Daniel's Law."
Plaintiff came to believe that Caputo was living in Cape May. To confirm that belief, plaintiff filed a request under the Open Public Records Act (the OPRA) with the Cape May County Board of Elections (the Cape May Board), requesting Caputo's voter profile. Initially, the Cape May Board provided a redacted version of Caputo's voting profile to plaintiff in March 2023. After follow-up communications from plaintiff, in April 2023, the Cape May Board produced a voter profile with fewer redactions. That voter profile included Caputo's home address.
At meetings of the City's Parking Authority and the City Council conducted on March 22, 2023 and April 5, 2023, respectively, plaintiff asked if Caputo still lived in the City. Neither Caputo nor anyone else from the City definitively responded to plaintiff's question.
On May 3, 2023, plaintiff attended another City Council meeting. The City and plaintiff separately recorded that meeting. During the public comment portion of the meeting, plaintiff discussed Caputo's change of residence, that Caputo's residence in Cape May was approximately a two-hour drive from the City, and that Caputo was serving on the City's Parking Authority even though he was a non-resident. During that discussion, plaintiff stated the street name in Cape May where Caputo was registered to vote. He also provided City Council members with copies of Caputo's voter profile, which included Caputo's complete home address.
UPDATE 4/29/2024, 12:05 am: Here's an item circulated Sunday evening:
We write this evening to let the campus community know that demonstration activity began on the south end of the Main Quad several hours ago. This is a resumption of Friday's activities. The demonstrators were again informed of the policies and rules for activities in this area. Members of the group began setting up tents and other structures that are in violation of the rules and policies as explained to them. They have been told that violations of our rules or of state or local laws are subject to consequences including arrest, and for university students, interim suspension.
President Killeen and I offered to meet directly with representatives of the group this evening to discuss their questions and concerns if they would remove the tents and structures. This offer was refused.
We respect the rights of freedom of speech and expression and remain committed to providing a safe environment for all members of our community. Demonstrators in compliance with university policies are allowed to remain in public space as long as they continue to abide by university policies and state and federal laws. These measures are in place to maintain the physical safety of our campus and so that all campus community members can continue to benefit from the academic experience we are here to provide.
University classes and activities are expected to continue as usual tomorrow.
We write to ask all students, staff and faculty to avoid the area near Wright and Green Streets in front of the Illini Union until further notice. This area has been the site of a demonstration that began early this morning and that has included unlawful and impermissible conduct by some. Despite our continued efforts throughout the day to ensure those who were participating were fully informed of the policies and rules that they needed to follow to continue their activities, the participants refused to adhere to them.
This afternoon, when university police officers attempted to escort university staff into the area to remove the encampment structures violating university policy, members of the demonstrating group prevented their entry and physically resisted. This included use of pieces of lumber as well as other physical tools and objects to push the officers back. Our officers made the decision to deescalate the situation and stepped back to reduce the risk of injury to themselves or the demonstrators.
This situation has escalated beyond a peaceful expression of opinion. Those who do not comply with our orders to leave will be subject to consequences, including arrest, when criminal laws are violated, and the possibility of immediate interim suspension for students.
Migrants wait to be processed at the U.S.-Mexico border in Eagle Pass, Texas. (Miguel Juarez Lugo/ZUMAPRESS/Newscom)
On Friday, federal District court Judge David Alan Ezra once again rejected Texas's argument that illegal migration qualifies as an "invasion" authorizing the state to "engage in war" response, under Article I, § 10, Clause 3 of the Constitution, which states that "No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."
This ruling is the latest phase of the ongoing litigation in United States v. Abbott over the legality of Texas's actions in placing water buoys to block a part of the Rio Grande River. The federal government claims this violates the Rivers and Harbors Act of 1899. Texas claims it does not, but but also argues that the Invasion Clause gives the state the power to install the buoys even if it would otherwise violate federal law, due to the fact that illegal migration and drug smuggling qualify as invasion.
Judge Ezra's latest decision rejects Texas's motion to dismiss the River and Harbors Act claim, but does side with Texas on the issue of dismissing an additional claim that the placement of the buoys violates the 1848 Treaty of Guadalupe Hidalgo (which ended the Mexican War). As part of the former ruling Judge Ezra again rejects the "invasion" theory:
Texas now wants to respond to immigration as a military threat, which is beyond "invasion" as described in the Constitution…. And even if this were an invasion as understood by the Founding Fathers, the federal government is already present and actively managing immigration at the border…
When the Constitution was enacted, the Founding Fathers conceptualized invasions as a part of war, not an "invasion" or "disaster" created by immigrants entering the United States. The text, structure, and original understanding of the Constitution makes it clear that immigration does not constitute an invasion….
Judge Ezra's reasoning here largely tracks that of his September preliminary injunction ruling, and his even more thorough analysis in his February 2024 ruling in a case where the federal government challenges the legality of Texas's SB 4 immigration law, which gives state officials broad power to detain and deport undocumented immigrants. A Fifth Circuit panel recently reached the same conclusion in the SB 4 case.
However the en banc Fifth Circuit may well further consider the meaning of "invasion" in United States v. Abbott. That issue is extremely important for reasons that go far beyond the specifics of the water buoy and SB 4 cases.
Among other things, if Texas prevails on the invasion question, border states would have broad power to start wars with neighboring countries, and the federal government could suspend the write of habeas corpus (and thereby detain people without filing charges) virtually anytime it wants. I cover these and other flaws in Texas' invasion theory in greater detail in an article in Lawfare, and in an amicus brief I filed in US v. Abbott, before the en banc Fifth Circuit, on behalf of myself and the Cato Institute.
As I've noted before, public universities have considerable authority to impose content-neutral rules on demonstrations, for instance prohibiting overnight campouts, restricting sound amplification, and so on. But of course the First Amendment requires such rules to be content-neutral (or, in "limited public forums" on campuses, at least viewpoint-neutral). And even content-neutral restrictions in outdoor quads, at least as to student gatherings, still have to be reasonable (to oversimplify the rules slightly).
Beyond that, a 2019 Texas statute reinforces this, and indeed provides even broader protection than the First Amendment minimum. In particular, it treats "outdoor areas of the institution's campus" as tantamount to "traditional public forums," open to all members of the public. This designation also precludes content-based restrictions. (Some public universities might be able to argue that such outdoor spaces are only "limited public forums," where content-based but viewpoint-neutral restrictions are allowed; not so in Texas.) And it provides that restrictions must be "narrowly tailored to serve a significant institutional interest" and must "leave open ample alternative channels." (Again, if a university could treat an outdoor space as a "limited public forum," restrictions would only need to be reasonable; but in Texas the bar is higher.) And the statute "recogniz[es] freedom of speech and assembly as central to the mission of institutions of higher education."
This makes me pretty skeptical about the dispersing of protesters at UT. First, Governor Abbott's statements suggest that this happened because the protesters' speech was anti-Semitic; but that's a viewpoint-based basis for restriction, not a content- and viewpoint-neutral one. (The Governor appears to have been involved in the police actions here.) Second, from the press accounts that I had seen the protesters appear to not have been engaged in sleepouts, blockages, or other things that violated campus rules; and to the extent that they didn't have a permit, there seemed to have been no "clear, published, content-neutral, and viewpoint-neutral criteria" (to quote the Texas statute) justifying any denial of a permit.
The Foundation for Individual Rights and Expression, whose work I generally trust in this area, takes a similar view in a letter it released Thursday:
