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Jack Greiner| Cincinnati Enquirer

I need to start this article with some caveats. First, I have been a Xavier University basketball fan since 1985. Second, I detest Bob Huggins' coaching style. Third, I think the University of Cincinnati did the right thing when it fired him back in the day. So, having said that, I assume some readers will accuse me of bias. Fair enough.

But this article isn't so much about whether West Virginia University should fire Huggins forhis homophobic comments on the Bill Cunningham radio show earlier this month. It's more about whether Huggins could hide behind the First Amendment to avoid any discipline imposed by West Virginia University.

WVU is a public institution. This means Huggins has First Amendment rights. He is in a different position than Thom Brennaman. As some readers may recall, Brennaman was removed from his post as a Cincinnati Reds announcer within minutes of using the same slur as Huggins. But Brennaman wasn't employed by a public entity. So, the Reds didn't have to worry about any First Amendment concerns when they cut him loose.

Huggins isn't free to say whatever he wants. Public employees are in a unique First Amendment space. On the one hand, as citizens, they don't lose their rights by accepting a job with a public employer. On the other hand, as employees, they can be subject to discipline for their speech.

To gain First Amendment protection, a public employee must speak out as a citizen, and not in his official capacity as an employee. Second, the speech must pertain to a matter of public concern. If those two elements are satisfied, a court then balances the interests of the employee as a citizen, "in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."

In weighing the employer's interests, the court considers (1) whether the speech or conduct impaired discipline by superiors or harmony among co-workers, (2) whether the speech or conduct had a detrimental relationship on close working relationships for which personal loyalty and confidence are necessary, and (3) whether the speech or conduct impeded the performance of the speaker's job duties or interfered with the regular operation of the enterprise. Here's ahelpful pieceon the subject.

One example of a public employee being protected by the First Amendment would beDean Smith. Smith routinely spoke out in support of the civil rights movement while coaching at the University of North Carolina. Had North Carolina sought to discipline him for his vocal support of the movement, it would have been a problem.

The question then, is whether Huggins' speech on the radio is in any way comparable to Dean Smith's speech. Most likely the answer is no. It's questionable whether Huggins was acting outside of the scope of his employment while being interviewed by Cunningham. The subject, after all, was hoops. It's also questionable whether Huggins' recollection of a particular crosstown shootout (which ultimately resulted in his slur) is a matter of public concern.

But let's say for the sake of argument that Huggins satisfied both of the first two elements. It's clear that the University's interests justify discipline. WVU is already dealing with the fallout, which has no doubt interfered with its "regular operation." The First Amendment won't allow Huggins to escape accountability. Nor should it.

And this whole sordid episode should be a reminder for all of us, but maybe those of us of a certain age, to do our best to purge our inventory of hateful words. It's upsetting that Huggins used the word. It's more upsetting that he was able to so easily pull it out from his closet of insults. Maybe now he'll purge it for good. Let's hope.

Jack Greiner is a partner at Faruki PLL law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues

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Will the First Amendment protect Huggins against any discipline WVU might impose? - The Cincinnati Enquirer

Harvard Law-educated DeSantis knows full well he will lose the courtroom fights. He knows the First Amendment prohibits the very kind of viewpoint discrimination, content-based regulation, and speech-based retaliation DeSantis and GOP lawmakers in Tallahassee are engaged in. These cases wouldnt even make for tough law school exam questions.

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So why is he doing it? Its because he and like-minded state officials enacting similar laws across the country believe the political payoff will far outweigh the harm they are causing the American people and the very pillars of the Constitution.

DeSantis, who is expected to announce a presidential bid any day now, needs bogeymen to rally against. Hes chosen them: drag performers, kids who want to play sports with their peers, students who wish to learn history that reflects their stories and cultures, educators who dare speak about our nations true history, and even the company that created the Magic Kingdom when its executives speak truth to power. In a party that is becoming more extreme and shrinks in size, like a toxic reduction sauce, the pain is increasingly the point.

Its problematic because it sends a very clear, strong message to marginalized groups that their history and their views and their stories really arent worth learning, said Charles McLaurin, senior counsel at the Legal Defense Fund, one of the groups that filed the legal challenge against Floridas Stop WOKE Act.

Even if the laws are ultimately halted by courts, McLaurin said, for Black and brown and LGBTQ people who have been impacted by systemic discrimination and continue to experience it every day, there is potential for a lot of damage to be done.

And McLaurin noted that the approach has gone viral, with GOP-controlled state legislatures filing a wave of bills limiting the way race, gender, and sexual orientation and identity are taught in schools.

And they didnt even have to work that hard. Many bills, including Floridas law, were largely cut and pasted from a 2020 executive order signed by then-president Donald Trump that outlawed the use of divisive concepts and race or sex stereotyping. The MAGA crowds marching orders came straight from the top.

And the pain isnt limited to marginalized Americans. I spoke to two professors at state universities in Florida who were so concerned about the impact of the new laws, including one enacted just this week that bars diversity, equity, and inclusion programs, they didnt want to speak on the record. The silencing has begun.

For faculty, and particularly faculty of color there is this fear out there, McLaurin told me. What is the line? The law is drafted in a way that it is not clear what is prohibited and what is not prohibited. A lot of faculty members have chosen to self-censor. They dont even want to go near it.

In defense of the policy, DeSantis said those who want to attend a college with such diversity programs are free to go to Berkeley. What a way to encourage higher-ed brain drain and discourage out-of-state tuition money in your own state.

But his state isnt on his mind. Trying to claim the GOPs MAGA throne is. And he needs to wage a culture war to do it, no matter the collateral damage.

Yes, he will lose in court. DeSantis is not bigger than the First Amendment. But that doesnt mean our nation and the principles upon which it stands wont take a beating.

Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at kimberly.atkinsstohr@globe.com. Follow her on Twitter @KimberlyEAtkins.

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Florida Governor Ron DeSantis's anti-wokeness crusade to trample on the First Amendment - The Boston Globe

Petitions of the week ByKalvis Golde on May 19, 2023 at 6:40 pm

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions were watching is available here.

Laws governing elections and the right to participate in the political process receive varying degrees of scrutiny when challenged in court. The Supreme Court has held that election laws restricting core political speech trigger a high degree of suspicion under the First Amendment. By comparison, laws that simply regulate the machinery of elections are subjected to a more flexible balancing test. This week, we highlight cert petitions that ask the court to consider, among other things, what level of First Amendment scrutiny applies to a state law governing slogans that appear alongside candidates names on the ballot.

New Jerseys so-called slogan statutes permit candidates in primary elections to have a short phrase containing no more than six words listed next to their names on the ballot. These slogans allow candidates to affirm their commitment to a platform goal or align themselves with a faction of their political party. The slogans cannot include the name of any person or a corporation located in New Jersey without their written consent.

Eugene Mazo and Lisa McCormick ran in the Democratic primary for seats in the House of Representatives in New Jerseys 2020 primary elections. Mazo wanted to name several local wings of the New Jersey Democratic political machine in his ballot slogan, which would have allowed him to be listed together with other machine-backed candidates higher on the ballot, but he never obtained consent to do so. McCormick was was not permitted to use her own campaigns slogan, which implicitly criticized Bernie Sanders, because a rival had established a New Jersey corporation in that slogans name and refused to give consent; she was also barred from using a slogan explicitly criticizing Sanders because she lacked his consent.

Both Mazo and McCormick eventually lost their races. But before the primary elections took place, they went to court to challenge the constitutionality of the slogan statutes. A federal district court dismissed their lawsuit.

The U.S. Court of Appeals for the 3rd Circuit upheld that dismissal. It held that the slogan statutes more closely resemble rules about election mechanics than restrictions on political speech because they regulate ballots, a core component of election machinery. Accordingly, the 3rd Circuit applied the so-called Anderson-Burdick doctrine, under which courts weigh the benefits of a rule governing election procedures on a sliding scale against the rules burden on the First Amendment right to participate in the political process. Because the statutes apply to all candidates, the court of appeals reasoned, modest First Amendment scrutiny was appropriate. The 3rd Circuit upheld the statutes, concluding that New Jerseys interest in preventing voter confusion and protecting named third parties outweighed the burden on speech because Mazo and McCormick had other slogans available to them.

In Mazo v. Way, the former candidates ask the justices to grant review and reverse the 3rd Circuits ruling. New Jersey did not have to permit ballot slogans, they argue, but once it did, their regulation should trigger the highest degree of suspicion under the First Amendment because slogans are core political speech. Mazo and McCormick also urge the justices to clarify the Anderson-Burdick doctrine. They argue that lower courts are deeply confused about how to determine whether an election law is a classic restriction on speech, or merely a regulation of election procedures subject to the doctrines sliding-scale of First Amendment scrutiny.

Emily v. Welters22-1005Issue: Whether the Minnesota Supreme Court departed from this courts decisions inCity of Tahlequah v. Bond,Rivas-Villegas v. Cortesluna, and many other qualified immunity cases by defining the relevant law at a high level of generality and holding that less particularity is required to clearly establish what the constitution requires when engaging in routine conduct.

Prime Insurance Company v. Wright22-1006Issue: Whether a trip of an empty truck between two locations in the same state qualifies as transportation of property between a place in a State and a place in another State for purposes of49 U.S.C. 31139(b)(1).

Moeser v. Wisconsin22-1018Issue: Whether a sheriff (1) who indisputably did not make an oral or written oath or affirmation to anyone and (2) who falsely signed a pre-printed affidavit stating that he had been first duly sworn on oath, (3) which was in turn notarized by a fellow law enforcement officer who also falsely asserted in the jurat that the affidavit had been sworn to, nevertheless supported [the warrant application] by Oath or affirmation for purposes of the Fourth Amendment because the [original] officer was impressed with th[e] obligation to tell the truth.

CoreCivic, Inc. v. Owino22-1019Issues: (1) Whether courts of appeals reviewing class-certification decisions underFederal Rule of Civil Procedure 23must, as a matter of law, give district court decisions granting class certification noticeably more deference than rulings denying class certification; and (2) whether Rule 23(a)s commonality requirement is satisfied through the assertion of a purportedly class-wide policy without significant proof that such policy is uniformly applied class-wide.

Mazo v. Way22-1033Issue: Whether a state that permits political candidates to engage in core political speech on the ballot may restrict that speech on the basis of content and viewpoint without satisfying strict scrutiny.

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Former candidates say New Jerseys slogan statutes violate the ... - SCOTUSblog

ADF attorneys join diverse coalition of legal advocacy groups in filing friend-of-the-court brief

Friday, May 19, 2023

ST. LOUIS Alliance Defending Freedom attorneys joined a broad coalition of organizations in filing a friend-of-the-court brief Friday with the U.S. Court of Appeals for the 8th Circuit urging it to preserve the freedom of all Americans to file civil rights litigation when their constitutional rights have been violated. ADF attorneys joined Americans for Prosperity Foundation, Foundation for Individual Rights and Expression, Defense of Freedom Institute for Policy Studies, Reason Foundation, and the American Civil Liberties Union of Missouri in filing the brief.

Alliance Defending Freedom, as well as the diverse coalition of other legal advocacy groups we joined in filing this friend-of-the-court brief, regularly help or advocate for the ability of average American citizens to challenge government officials who have infringed on their constitutionally protected rights, said ADF Legal Counsel Mathew Hoffmann. When government officials violate someones First Amendment freedoms, they should be held accountable for their actions and pay the necessary attorneys fees. We urge the court to protect every Americans right to pursue legal action to vindicate their constitutionally protected freedoms.

In the case, Henderson v. School District of Springfield R-12, two employees of Springfield Public Schools in Missouri sued the school district over mandatory diversity and inclusion training that they claim violated their constitutional rights. A federal court ruled in favor of the school district and then ordered the employees to pay the school officials attorneys fees. The two employees appealed those decisions to the 8th Circuit.

In their brief, the legal advocacy groups explain that they all regularly represent or advocate for average Americans, many of whom are not able financially to cover their own legal feeslet alone those of the government, who are bringing civil rights claims against government officials. They write that, if, as here [in Henderson], these clients risk bearing the legal fees of government defendants, they would hesitate to file suit, chilling the protection of their own civil rights and the development of the law. The groups note that the attorneys fees award in this case defeats the goal of civil rights legislation enacted by Congress that encourages injured Americans to remedy constitutional wrongs in federal court.

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.

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Gov't officials should be held accountable for First Amendment ... - ADF Media

A former psychology professor this week sued the University of California system, claiming that its use of diversity statements in hiring represents a thinly veiled attempt to ensure dogmatic conformity throughout the university system.

John D. Haltigan, a former assistant professor in the department of psychiatry at the University of Toronto, sought to apply for a tenure-track position at the University of California at Santa Cruz that was posted last July and remains open. He left his post at Toronto because it was funded by a grant that ran out, according to his lawyer.

Courtesy of J.D. Haltigan

Haltigan argues in the lawsuit that Santa Cruz uses diversity statements to screen out job applicants who do not hold specific views, including the view that treating individuals differently based on their race or sex is desirable. He claims that his views on colorblind inclusivity, viewpoint diversity, and merit-based evaluation mean that he cannot truthfully compete for the position, which involves receiving a high sore on a rubric used to evaluate candidates.

Haltigan is being represented by lawyers with the nonprofit Pacific Legal Foundation, which provides free legal services to people who believe they have been subjected to government overreach and abuse.

In addition to the university system, the lawsuit names various administrators at Santa Cruz as defendants. Haltigan, whose research focuses on the mental health of children and adolescents, is seeking an injunction forbidding the university to require him to submit a diversity statement to apply for the job. The university system has required diversity statements in applications for tenure-track positions and promotions since 2018.

Wilson Freeman, a lawyer representing Haltigan, said that the diversity-statement mandate violates the First Amendment because such statements are completely disconnected from the purposes of the university or the purposes of the position or qualifications for the position.

A spokesperson for the university system said on Friday that it would not comment because it had not yet been served with the lawsuit. Santa Cruz did not respond to a request for comment.

Guidelines for diversity statements, posted online for job applicants at Santa Cruz, say the university is committed to serving a student body and hiring faculty and staff who reflect the diversity of the State of California; responding to the needs of a diverse society; as well as maintaining principles of equity and inclusion.

Diversity statements have been used in academe since the mid-2010s for hiring, promotion, and tenure bids, but grew in popularity in the aftermath of the 2020 murder of George Floyd, experts say. An American Enterprise Institute study of 999 academic job listings, posted in the fall of 2020 at two- and four-year institutions, found that 19 percent required diversity, equity, and inclusion statements.

Proponents of diversity statements believe they help employers understand how candidates can advance their institutions diversity, equity, and inclusion goals, such as recruiting and retaining diverse students and faculty members. Diversity can encompass race, ethnicity, and gender but also religion, language, sexual orientation, abilities and disabilities, socioeconomic status, and geographic regions. Candidates can use diversity statements to write about their contributions to diversity for students, faculty, and staff through teaching, research, or service.

But critics argue that diversity statements can serve as ideological litmus tests, excluding those who disagree with prevailing views on diversity, equity, and inclusion. Haltigan, for example, argues in the lawsuit that one such prevailing view is that treating individuals differently based on their race or sex is desirable.

A recent survey by the Foundation for Individual Rights and Expression, which has expressed concern about the potential misuse of diversity statements, found faculty members evenly split between those who saw diversity statements as a justifiable requirement for a job at a university and those who saw them as an ideological litmus test that violates academic freedom.

In recent months, diversity statements have come under attack across the country. Lawmakers in 10 states have filed bills this year to ban colleges use of diversity statements in hiring, according to The Chronicles database of legislation to restrict diversity, equity, and inclusion efforts in higher education. So far, governors in Florida and North Dakota have signed legislation banning the use of diversity statements.

Some universities and university systems have also ended the use of diversity statements in hiring. In February the University of North Carolina systems Board of Governors banned compelled speech for prospective students and employees, which was widely interpreted as referring to diversity statements.

The chancellors of Texas A&M and Texas State Universities and the University of Houston stopped the use of diversity statements in hiring in March after Gov. Greg Abbott sent a letter, obtained by The Texas Tribune, to public-university and state-agency leaders barring the consideration of factors other than merit in hiring. Idahos State Board of Education last month banned diversity statements in hiring. Also last month Ohio State University told the Foundation for Individual Rights and Expression, in response to a public-records request, that it would no longer use diversity statements in hiring.

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Diversity Statements Violate First Amendment, Professor Says in ... - The Chronicle of Higher Education