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Sorry to do two posts back to back, but the Fourth Circuit has dropped a steaming pile of dog shit on my front porch and I'm kind of mad about it. (Is that too heated? Honestly I feel like I'm soft pedaling it.)
Porter v. Board of Trustees of North Carolina State University is a case on academic freedom and speech by government employees. Stephen Porter was a tenured professor of education in the university's "higher ed" program. His statistical research on higher education has dealt at times with questions of faculty and student body demography. After complaining that
he found himself removed from the higher ed program for being "insufficiently collegial." He sued. And now, barring a reversal by SCOTUS, he has lost. More from the article:
This analysis suggests that the Fourth Circuit has quite perplexingly decided that "intramural" speech does not qualify for the Garcetti academic exception. Essentially, in the Fourth Circuit, academic freedom apparently extends to lectures and publications, but not "when professors speak and write as citizens of the campus community and officers of an educational institution." This is an especially awkward position, however, when the professor in question teaches and researches higher education specifically. Imagine being free to make assertions about higher education policy in the classroom and in your writing, but not being free to repeat those things at a faculty meeting, or to university administrators! The author also notes that this may reflect a circuit split with the Ninth, which is good news for any planned appeal.
But the age of that split (the Ninth Circuit case was decided in 1976) also highlights how much the American Left has changed in the last 50 years, and how right-coded Free Speech has become--even, maybe the speech of tenured university professors (who are of course overwhelmingly left-identifying). As one commenter over at Brian Leiter's blog observes:
A second commenter adds further context:
Leiter himself then weighs in on Richardson:
Posner, of course, is the father of the Law and Economics movement, which is not universally embraced by conservative lawyers but is very often a right-coded jurisprudence. So here we have a flip from the stereotypical expectations, with leftist judges constraining the academic freedom of a tenured university professor (as well as government employee freedom of speech generally--they give a narrower interpretation than the conservative Supreme Court furnished in 2006!) and a right-wing judge dissenting.
Naturally, most analysis seems to agree that this is a results-oriented decision; the "real issue" is not academic freedom or freedom of speech at all, it's the total inviolability of the gospel of DEI. Porter committed a heresy, and got slapped down for it, and the high priests of the church of DEI confirmed his punishment. All other details are irrelevant. This does not mean Republicans are now going to be the champions of academic freedom, or that Democrats have abandoned that position. It's just pure, unadulterated who, whom, as the dissent seems to grasp.
I hate when judges add fuel to the cynical fires of "there is no principle, there is only power." I have seen judges choose principle over their preferred results. I know that something like reasoned objectivity is broadly achievable, if we value it. But it seems to be happening less and less, and certainly the forcefulness with which DEI has been rammed down our collective cultural throat seems best described as oppressive ideological totalitarianism.
I tend to believe in free association a lot more than currently protected which makes this a very grey zone for me. In general I think “most” employees should be able to discriminate in any way that want to which would include speech.
The taxpayer funding part gets complicated here. The employer the voters should get to choose what their employers do in an official capacity. I don’t have a problem if Kendi was an employee of University of Florida and Desantis fired him. I don’t think the State should be able to fire him for his speech as a private person.
Now I think an organization should be able to have some dissidents in management with different ideas and good organizations can deal with it. But if he’s a nuisance to management I don’t have a problem with him being fired.
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Hoist them on their own petards. Pass laws banning advocating for race-segregated graduations, student groups, "affinity" groups, or programs. When faculty complain, whoops, that's intramural speech seeking to racially-discriminate in violation of the Civil Rights Act and 14th Amendment; no "free speech" protection there.
They'll find some way to dodge it. Perhaps it's hate speech. Perhaps it makes people feel unsafe. They could invent a whole new legal doctrine specifically to target this, ignoring the contradiction with precedent.
OP's whole point is summed up in this statement from the dissent:
It's a results oriented decision, not a principle-based one.
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If you have to ask, the answer is probably “yes.”
I am pretty skeptical of comments evaluating the quality of “argumentation.” At worst, it’s drawing one’s opponent as the Soyjak. At best, you’re still going to get wildly different interpretations. Compare our board after the AA and debt decisions: were the conservative justices extra-principled? Was Barrett, Kavanaugh, Kagan or Sotomayor a hack? Did Roberts sandbag as part of a devious liberal strategy?
The answer to all these questions is most likely “no,” but you can find each of them argued in the parent thread. Such is the risk of evaluating literal opinions. Our own debate is weak evidence.
Likewise, I don’t think the comments are great evidence that Wynn and Thacker are hacks. Leiter himself starts out on firmer ground, and I appreciate his analysis of Garcetti. The merits of this case do look pretty suspicious! I’m just…not ready to jump to accusations of hackery. Reading the tea leaves about right- or left/coded jurisprudence, or who clerked for whom, should be secondary to analysis of the actual opinions. Unfortunately, the FIRE links are broken, and I get a 404 when I try and evaluate the argumentation for myself.
Edit: found it.
There were three points of contention. The court denies that two of them were protected, since they did not have political valence. For the third, a blog post, they argue that the timeline doesn’t line up, and the complaints of the firing process don’t focus on it. I think this amounts to saying Porter was enough of a dick to get fired even if he had been expressing the opposite political opinion. Is this true? Maybe. Is it chilling? Probably. Does it meet the “rigorous” standard? You know, I could be convinced.
Naturally, FIRE spins this as a “troubling” development and dismantling of Garcetti. Leiter already questioned that. Despite my preference for improved speech protections, I am loath to take FIRE as an unbiased source.
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I have to say, I do not find this curious. I have admitted previously to being legally unsophisticated and I remain so; in recent months, I've taken to reading more decisions than I had in the entirety of my life up to that point, and the experience has substantially shaped my view of left-leaning jurisprudence for the worse. There are, of course, decisions with sketchy logic running in either direction, but the number of times that I run into reasoning from left-leaning judges that aligns with that first comment you quote on the "bad man" theory of law is so, so much more frequent. Sotomayor and KBJ seem to have particular enthusiasm for explaining how a decision will have bad outcomes rather than focusing on whether it's, you know, legal and consistent with an ordinary reading of statute. For instances, [this Sotomayor dissent regarding Covid restrictions] or the recent KBJ perspectives on affirmative action. In contrast, Gorsuch seems the most likely of the justices to just read the text to mean what it literally means on ordinary reading.
Pretty sure the commenter doesn’t actually find it curious, either.
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Banned for being a ban-evader and a troll.
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Isn’t this practically the way both sides utilize the judicial system? There’s no such thing as 100% impartiality. Even the most rational of conclusions will inevitably come to look like its support ‘someone’s’ side of the isle. There may be more obvious and egregious examples of people who crudely and openly have no problem injecting their political agenda into the judiciary, but the broader problem is unavoidable, IMO. I’ll always be unavoidably biased in ways I don’t recognize.
Some schools of thought are more assiduous about trying to construct a seemingly-consistent jurisprudential and/or historical framework. Others either lack the skill or patience to do this, or prefer just to exercise naked power through judicial ipse dixit.
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In practice that’s probably true, but they do have a theory of the constitution as a living breathing document that needs to be adapted to the times, and because amendments are short that means lots of penumbras and the like.
The GOP has their own the constitution can mean whatever we want theory - it’s called something like “Common Good Theory”. They haven’t yet nominated a devotee. If they ever did the court really would just be a super legislature.
Though both sides seem to make up things when they really want to. I remember when one day student athletes couldn’t get paid and the next day they had a constitutional right to pay. I never read the opinions but when no law has passed it does mean a lot of it’s just public opinion and reading things how you want to for that opinion. I like cited this case because it was bipartisan.
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As a legal naïf, I'd rather just be able to read a statute's plain language and understand it than have to rely on the deep expertise of those who can sense penumbras. Ideally, any normal person that would like to engage in commerce or speech would be able to do so based on such a naive understanding of the ordinary meaning of laws without needing to consult a penumbra expert, but I suppose such a situation would be quite unprofitable for the legal industry.
This is basically how all legal systems start out, when given a clean slate. As time goes on, case and precedent law eventually become important as other important issues enter the foreground, where a nuanced interpretation of things is needed. Law over the long-run isn’t a such the clean and pristine thing people want it to be, but I think some nations do it better than others. Singapore does this ‘really’ well. The interplay between the judiciary and economy is a huge focus in Ordoliberalism (1, 2).
The legal business landscape and lack of a secure property rights regime, is one of the many things that’s holding back the economic development of Russia for instance. Because informal patronage networks play an enormous role in the Russian socioeconomic system, you never entirely know who it is you’re dealing with and what legal boundaries you’re going to run afoul of. They could benefit hugely from the kind of thing you’re saying, but it comes at the destruction and reset of existing systems. Legal ‘reform’ is always a more difficult task than people think it is.
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You can just look at contemporary political discourse and see why this theory of legal interpretation runs into problems. Rarely do people agree on the "plain meaning" of anything.
Consider the text of the second amendment:
Already, this one sentence presents multiple interpretive issues:
1.) If a "well regulated militia" is no longer necessary to the "security of a free State", does that mean that the amendment is no longer applicable? This could be read as a conditional - "given that a militia is necessary, the right to bear arms shall not be infringed". You could say that that part doesn't really matter, that it's just "flavor text", and the important and permanently binding part is the "...shall not be infringed" part - but then, that seems to call for a general theory of which parts of a text can be ignored as "not really mattering".
2.) What counts as an "infringement" of the "right of the people"? Does that mean that no person can ever be prevented from owning a gun? Maybe. But, "the people" is not the same thing as "any person". It's reasonable to say things like "the people of the United States are free", even though there are individuals in the United States who are imprisoned and unfree. So, maybe we're allowed to restrict the right of certain individuals to own a gun, as long as "the people" as a whole have not had "their" rights infringed. But then that raises the question of where to draw the line. How many individuals is too much? When do we cross the line from "individuals have had their rights infringed" to "the people have had their rights infringed"? 50%?
3.) What counts as an "arm"? Do nuclear weapons count? The phrase "nuclear arms" is relatively commonplace, so it seems like they might. But, I've never seen anyone suggest that the second amendment should prevent the government from restricting access to nuclear weapons.
I would have no problem with someone owning nukes if it was a situation where they could reasonably keep the nukes safely, use the nukes without harming bystanders, and dispose of the nukes safely when they can no longer be used. This is not inherently impossible (consider a company that uses a nuke when mining) but generally is unlikely.
Also, all except very small nukes are not arms you can "bear".
One American citizen in particular has the ability to drop a literal ICBM, on my (or anyone else's) head, at will. ICBMs are absolutely arms he "bears", nuclear or not.
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I've always wondered about the viability of demanding that new laws do something along these lines:
Give answers to pre-emptive hypotheticals. Ah yes, the 2nd Amendment will no longer apply if the "arms" in question are capable of killing >10 people in the span of 1 minute.
Or, this prohibition against speeding above 60 mph or legalizing a requirement for child seats in cars no longer applies if subject to the widespread availability (>50% of active motor vehicles) of self-driving cars (or technological advances of other natures) that have the effect of reducing per kilometer fatality rates to below 50% of the value today.
Think of it as test cases in programming, you provide clear examples and documentation of how your natural language commands ought to be interpreted.
Even if the law seems dead simple and foolproof, never underestimate the universe's ability to generate a better class of fool.
I am also mildly positive on all laws having an automatic expiry date if they're not verified, perhaps graded by the degree of unanimity with which they were passed. I heard this didn't work out in Texas, but I don't think it's in the grave yet, in conjunction with the above.
@naraburns have lawyers considered something like this? Is there a deep and inscrutable (to me, an ignoramus) reason why it's not advocated?
No, the Texas sunset rules are bipartisan consensus and enforced.
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What--sunset provisions? Sure. Congress often passes laws with expiration dates. They're usually laws aimed at funding something-or-other, but the idea of a law that expires is a totally normal one. The badly-misnamed PATRIOT Act is one famous case where big chunks of the law were supposed to go away as the apparent emergency of Islamic terrorism was beaten into submission, but Congress kept renewing various objectionable chunks of that law and I think eventually made many parts permanent (or, as permanent as law ever is).
I think what you're maybe missing, though, is the "separation of powers" doctrine. Congress is supposed to be the legislative branch of the federal government, and also the political branch. American courts of law are supposed to fulfill two basic functions: interpreting the (politically-crafted!) legislation from an objective or "non-political" perspective when disputes arise, and safeguarding individual rights against legislative overreach.
American courts are actually pretty good at fulfilling that first function. It's the second function where stuff gets weird. Personally, I think this is largely a matter of having a Constitution written by natural law theorists, that is still the "final word" on government activity in a nation where almost no one even understands natural law, much less believes it to be true, much less believes it to be divinely appointed. The Supreme Court is thus routinely accused, often with compelling evidence, of just making shit up about what the Constitution supposedly "says" or "implies" or whatever. And these accusations come from both the Right and the Left, but of course since people tend to treat their arguments as soldiers, those accusations rarely get leveled by anyone whose ox isn't being actively gored. This makes the Court a kind of "super legislature," any time it can be persuaded that the Constitution somehow demands yet another thing no one has ever before believed the Constitution to demand.
But maybe your question was referring more to this:
Congress does a lot of this, too, during its various hearings and debates. But due to the "cases and controversies" clause limiting (at least in theory) what questions the judiciary can hear, American courts are generally not able to issue such "advisory opinions." Even so, shenanigans with the cases and controversies clause are also definitely a thing.
It was:
I'm asking why it's not enshrined into the law itself, not just debates surrounding it. From my limited understanding, the judiciary would have no choice but to consider it if was part of the law outright.
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Something many people
Miss is the militia clause within the original constitution. I think one needs to read that in connection with the second amendment which ends up suggesting a different reading compared to Heller. While I am relatively pro gun, I don’t buy the second amendment arguments favored by people on that side.
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You've never run into the legalize recreational nukes meme? Even Heinlein made a soft argument for private ownership in Moon is a Harsh Mistress, claiming that in practical terms they already are.
I 100% think a fair reading of the amendment would include nukes.
I also think there is likely 99% of populate does not support private ownership of nukes.
IMO a you can’t own nukes amendment would pass fairly easily. Which does raise a question of expediency - can the Supreme Court just ignore it or should they yes you can own nukes and force the legislature to constantly add amendments and edge cases that far (which would lead to a much longer constitition that school kids couldn’t read).
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I think here, what liberals believe differentiates them from the rest of the world is their belief that “groups don’t have rights, only individuals do.” And freedom is a concept that’s home to many different political systems.
In the US, we tend to think of ‘freedom’ as the ability to live our lives governed by our choices we make. Essentially it’s the ability to live a life without coercion from others. That’s not an absolute value, but the by this US definition of “freedom,” I suppose we’re much freer than other societies.
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The Second Amendment is a perfect example, from my perspective, of one where quite a few of the arguments made are obviously dishonest. I don't believe that any sincere person can read the text and believe that it allows the federal government to ban handguns and light infantry weapons. Sure, there are questions that could come up (your point regarding nuclear weapons is good, questions around felon possession, and numerous more that really would require some narrower reading), but I flatly don't believe that attorneys that argue for bans on handguns or light infantry weapons are reading in good faith.
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Right, that ship sailed before the current generation of lawyers had even been born.
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The problem is not that this case is results-oriented. It is that the entirety of the Court's jurisprudence on govt employee speech is awful. After all, in Garcetti itself, the Court held that a district attorney could be disciplined for complaining internally that he believed that police officers had lied on a search warrant affidavit. The Court held:
And, I am a big fan of FIRE, but I am puzzled by their emphasis on the issue of whether the speech in this case was "related to scholarship or teaching", because even the dissent did not rely on that issue, but rather on the threshold question of whether he was speaking as a citizen on a matter of public concern, as opposed to speaking as an employee. In fact, the dissenting judge says: " I need not consider the scope of any exception for duties related to scholarship or teaching." (see dissent, fn 3).
Moreover, I am skeptical that things like speaking at a faculty meeting or sending an internal email is what Garcetti meant by "related to scholarship or teaching." (Note also that Garcetti did not actually create an exception for that speech, but rather left that question open. The Fourth Circuit, however, has said that the exception apples. See Adams v. Trustees of the Univ. of NC-Wilmington, 640 F. 3d 550 (4th Cir. 2011) ["The plain language of Garcetti thus explicitly left open the question of whether its principles apply in the academic genre where issues of "scholarship or teaching" are in play."]).
Edit: See this law review article for a discussion of terrible decisions arising out of Garcetti. The table of contents gives a sample:
+1
I have long thought that the "government speech" exception was going to result in a series of absurd decisions before it crashes and burns, or we end up with little fascistic fiefdoms where state governments are just openly spending money to keep incumbent parties in power.
Perhaps, but this case isn't about government speech; the government speech doctrine is something different.
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Why are all those complaints not protected by the laws that protect you from retaliation when you complain about working conditions? The asbestos and scabies seem to fall under this.
California has: Labor Code section 6310 prohibits an employer from retaliating against an employee who complains about safety or health conditions or practices at the workplace, institutes or testifies in any proceedings relating to the employee’s rights to safe and healthful working conditions, exercises any rights under the federal or California law relating to occupational health and safety, or participates in an occupational health and safety committee established under Section 6401.7.
OSHA, which seems federal, has whistleblower protection that should cover some other claims.
It seems whistleblowing is only protected when you complain to the right person. That seems stupid to me.
Well, the cases cited are ones which specifically raise First Amendment claims. The employees might have had separate claims under various whistleblower laws.
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If DeSantis takes this decision as a green light to fire every CRT-spouting faculty member in the University of Florida system who has criticized their own university or the UF system, we'll get a more recent circuit split.
Along, likely, with some very fancy footwork in the Fourth Circuit (which includes part of Florida) explaining why it's not OK when the other side does it(no, the Fourth Circuit does not include any of Florida, I think the source I was looking was describing Florida Circuit Courts).Re public criticism, DeSantis might have a problem under Pickering. Though as I note above, the public employee speech cases are terrible, so who knows.
Pickering involved a letter written to a newspaper, not intramural speech. De Santis should only fire the university employees that argued for DEI programs in internal venues, not those that used the press.
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