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Last month, Justice Samuel Alitos draft opinion overturning Roe v. Wade leaked into public view. This month a man tried to assassinate Justice Brett Kavanaugh. Police arrested the suspect outside Kavanaughs home (he was able to find Kavanaughs address online), and he was carrying a handgun, a knife, pepper spray, zip ties, and tools useful for breaking into the Kavanaugh home.

As the disturbing news reports filtered out, I had two immediate responses. First, because Id just debated the topic on the New York Times Argument podcast, I thought: This is why you dont dox public figures. By exposing a persons home address to the public, you expose it not just to those who want to peacefully protest, but also to those who wish to do you harm.

But my second thought was more important, and its what I want to address today. I thought no one should be surprised at the attempt or the target. After all, in some quarters, Justice Kavanaugh has become the right person to hate, and if enough people hate a person, then threats and ultimately violence are the inevitable result.

Id like to introduce you to a term you may not have heard before. Its called stochastic terrorism, and its deeply challengingboth as a concept and as a realityto both sides of our partisan divide. You can find a good short definition of the term in a recent piece by Todd Morley in the Small Wars Journal. He described it as a quantifiable relationship between seemingly random acts of terrorism and the perpetuation of hateful rhetoric in public discourse, accompanied by catastrophising and fear generation in media sources.

Another, shorter definition is the incitement of a violent act by the public demonization of a group or individual, and it refers to a pattern that cannot be predicted precisely but can be analyzed statistically. In other words, a specific act against the demonized person or group cannot be forecast, but the probability of an act occurring has increased due to the rhetoric of a public figure.

The concept is both common-sense and controversial. The common-sense element is easy to explain. If youre a normal person and five people hate you, what are the odds youll face targeted violence? Unless youre engaged in criminal activity yourself (and the five people who hate you are other criminals), then the odds are almost impossibly low.

But what if 50,000 people hate you? Or five million? Then the odds change considerably, until they reach a virtual certainty that youll face a threat of some kind.

Ive explained the concept as working like a funnel. At each new step from rhetoric to action, engagement narrows and intensifies. Lots of people might just talk. Fewer people actually act. But the more people who talk, the more people who act. We can easily recognize this reality in extremist movements. They rarely spring from healthy communities.

For example, weve long recognized that the Middle East is awash in anti-Semitism. According to the Anti-Defamation League, a horrifying 74 percent of citizens of the Middle East harbor anti-Semitic attitudes. No other region comes close. The next-most anti-Semitic region is Eastern Europe, where 34 percent of citizens hold anti-Semitic ideas.

The vast majority of anti-Semites will never be violent. But amongst such a vast pool of people, there will be some who will believe words are simply not enough. A small number will raise money for violent causes. A smaller number will join extremist organizations. A smaller number still will take up arms. Is it any wonder that Israel faces persistent threats of terrorist violence?

Thus one of the challenges of containing extremism lies not just in addressing the most intense individuals at the bottom of the funnel but also the prevalence of the terrible ideas at the top.

When I was researching my book, which argues that America might face a secession crisis, I talked to a number of people who were experts in civil conflict in developing nations who are increasingly alarmed by the dynamics that exist here at home. There is nothing unique or special about Americans that makes us immune from the same tidal forces that have torn other nations or regions to pieces.

Here, as elsewhere, hatred is leading to a terrifying atmosphere of menace and threat. On Friday, Andrew Sullivan reposted an October essay arguing that personalizing politics was dangerous. Threats were migrating from online spaces to public figures' homes. Read these incidents and ask, How many do I remember? How many did I ever hear about?

Not content with marching in the streets to air complaints, demands, and grievances as a public spectacle, demonstrators of all kinds increasingly seek out the private homes of public figures to hound them intimately and personally. In the past year or so, the examples have mounted quickly. The mayor of Portland had to move house because activists besieged his condo building, breaking windows of other peoples offices and throwing burning debris into them. The mayors of St. Louis and Buffalo were also driven from their homes, and Chicagos mayor was under constant threat: [Lori] Lightfoot already receives 24/7 protection from cops including officers stationed at the residence.

Andrew then talks about additional incidents in Pittsburgh, Philadelphia, Oak Park, Oakland, Sacramento, and Seattle before he turns his attention to the right:

Although not as persistent or as widespread as the far lefts invasion of the privacy of public figures, the far right is not innocent either. LA Mayor Garcettis residence was targeted by anti-lockdown activists; LA Countys public health director was also targeted at home; some folks brought menacing tiki-torches to the Boise mayors home; in Duluth, Trump supporters organized 20 trucks to circle the mayors home. Over the new year, Nancy Pelosis private home was vandalized, graffiti written on her garage door, and a bloody pigs head was thrown into the mix for good measure.

Of course the ultimate recent example of hatred and fury spawning violence is the attack on the Capitol on January 6. It was perhaps the most predictable spasm of violence in recent American history. One cannot tell tens of millions of Americans that an election is stolen and that the very fate of the country hangs in the balance without some of those people actually acting like the election was stolen and the nation is at stake.

But if the concept of stochastic terrorism is so obviously connected to human experience, why is it controversial? In part because it aims responsibility upward, and it places at least some degree of moral responsibility for violent acts on passionate nonviolent people. While criminal responsibility may rest exclusively with the person who carries the gun (or his close conspirators), moral responsibility is not so easy to escape.

That brings us back to Justice Kavanaugh. Its hard to think of a single public figure whos been subject to more sustained and furious attacks on his character than Kavanaugh, and I say this as someone who took Christine Blasey Fords allegations against him quite seriously. My position was simpleif there was a preponderance of evidence that her claims were true, then he shouldnt be a Supreme Court justice, even if she was talking about an incident that occurred decades ago.

(If you want to read my evaluation of the evidence against him, I recommend this long piece I wrote in October 2018 in National Review.)

But what should have been a sober look at a serious claim turned into a media frenzy the likes of which Ive rarely seen. It culminated in a transparently unserious gang rape allegation brought forward by lawyer Michael Avenattinow disgraced and imprisoned, but then championed as a Resistance hero by many on the left. The allegation started to fall apart almost immediately, but that didnt stop people with immense followings from both believing it and ridiculing and attacking those who expressed skepticism.

The result was that millions of Americans didnt just dislike Kavanaugh, they hated him. They believed the worst about him. When he was hated at that scale, threats were inevitable, and an attempt on his life was likely. The terrible math of stochastic terrorism worked again.

One of the things that makes me concerned for the fate of our country is the reality that Americas partisans are both quite eager to assign blame for intimidation and violence to their political opponents and indignant when told that their own rhetoric contributes to our cultural decline. And so we live in a world where both Brett Kavanaugh and Christine Blasey Ford faced an avalanche of threats. And not just themvirtually any person who possesses a public voice on matters of public concern can tell stories of times when they felt afraid.

Our nation cannot withstand this level of vitriol. It will lead to more violence, and when it does, our most vicious partisans will disclaim any responsibility. How dare you blame me, theyll say. Everyone knows the man who pulls the trigger is responsible for his own crime. Yes, legally, he bears the blame. But words still matter. They inspire action, and when angry partisans see people they publicly hate face danger and death, they should feel shame for the culture they helped create.

One more thing

Earlier this month, I filed a Supreme Court amicus brief on behalf of fifteen family policy organizations in a case called 303 Creative v. Elenis. Its going to be argued next Supreme Court term, and the issue at stake is whether the state of Colorado can compel a web designer to design a website celebrating a same-sex wedding. I say no. Here are my opening paragraphs:

This case comes to the court at a critical moment. There is an increasing collision between generations-long consistent protection of the First Amendment in this Court and a culture that increasingly yields to the impulse to dominate political opponents, censor their expression, and even compel them to host speech or engage in speech with which they disagree.

It is one thing if the pressure to conform remains cultural rather than legal. While online attacks are difficult to endure, one can persevere and still speak. While peer shame can sting, only a small amount of courage is required to preserve ones public voice.

State censorship and compulsions, however, are different matters altogether. It is the state that wields the power of the sword. It is the state that can bar entrance into the marketplace of ideas. It is the state that can dictate whether a citizen can open a business or earn a living. Thus, it is the state that is the eternal threat to liberty. Only the state can truly suppress the American idea.

The First Amendment thus erects a high wall around private speech and individual conscience. It does not ask if speech is wise, good, popular, or fashionable before it grants its protection. Popular speech does not need a constitutional shield. It is the dissenter who truly values the First Amendment, and it is for the dissenter that the First Amendment exists.

Read the whole thing and review my work in the comments. Persuaded? If not, why not?

Another thing

Youre not going to want to miss this weeks Good Faith podcast. Curtis and I hosted Christianity Todays Russell Moore, and we talked about the upcoming Southern Baptist Convention Annual Meeting in Anaheim, California, the SBC sex abuse report, the crisis in American pastors, and the Christian call to be strange (but not crazy). It was a great conversation, and I hope you enjoy it as much as I did.

One last thing

Lets do something a bit different and end with an inspiring moment rather than an inspiring song. You may not know this, but Im a longtime fan of professional wrestling. I went to my first sold-out show in Rupp Arena in Lexington, Kentucky, when I was 10 years old. In college I spent a ridiculous sum of money to go see Hulk Hogan wrestle Andre the Giant. The WWE gave us the greatest living American celebrity, Dwayne The Rock Johnson.

I dont keep up as much as I used to (its hard to simultaneously keep up with the NBA, college football, the NFL, superhero movies, the Star Wars franchise, Game of Thrones, every Tolkien property under the sun, British crime dramas, and the WWE), but did you know that nobody has granted more Make-a-Wish wishes than John Cena? And did you know that he did this?

Its one of the most touching things Ive seen in a long time. There is still much good in this world.

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There Is No Right Person to Hate - by David French - The Dispatch

Rep. Jim Jordan, R-Ohio, weighs in on the one-sided January 6th committee investigation on Sunday Morning Futures.

Rep. Jim Jordan believes that a "big change" will come in this years midterm elections because Americans think "the country is on the wrong track.

"I think the American people are fixing to make a change come November," Jordan, R-Ohio, told "Sunday Morning Futures" host Maria Bartiromo. "You can just feel that happen."

Jordan laid into the Biden administration and current cabinet, saying each secretary has overseen a "terrible" policy change since the last administration.

Congressman Jim Jordan (R-OH) speaks during the House Judiciary Subcommittee on Antitrust, Commercial and Administrative Law Subcommittee hearing on "Online Platforms and Market Power" in the Rayburn House Office Building on Capitol Hill in Washington, DC on July 29, 2020. | Reuters Photos

He lambasted Secretary of Homeland Security Alejandro Mayorkas for "chaos" at the border and Treasury Secretary Janet Yellen for saying that she was "surprised at inflation."

INFLATION TIMELINE: MAPPING THE BIDEN ADMIN'S RESPONSE TO RAPID PRICE GROWTH

"How can you be surprised at inflation when you spend like crazy, pay people not to work, and drive up the cost of energy?" he asked. "It makes no sense."

"We went from a secure border to chaos," Jordan said. "We went from energy independence to the president begging Iran, OPEC and Venezuela to increase production. We went from safe streets to record levels of crime in every major urban area."

BIDEN RESPONDS TO $5 GAS: OUTRAGEOUS WHAT THE WAR IN UKRAINE IS CAUSING

"And we went from stable price to a 41-year-high inflation rate, and I havent even gotten into foreign policy, or the attacks on our First Amendment, and of course last week the attacks on our Second Amendment rights," he added.

The Labor Department said Friday that the consumer price index, a broad measure of the price for everyday goods, including gasoline, groceries and rents, rose 8.6% in May from a year ago. Prices jumped 1% in the one-month period from April. Those figures were both higher than the 8.3% headline figure and 0.7% monthly gain forecast by Refinitiv economists.

LARRY KUDLOW: A DIFFERENT PLAN TO CRUSH INFLATION

It marks the fastest pace of Inflation since December 1981.

Price increases were widespread: Energy prices rose 3.9% in May from the previous month, and are up 34.6% from last year. Gasoline, on average, costs 48.7% more than it did one year ago and 7.8% more than it did in April. In all, fuel prices jumped 16.9% in May on a monthly basis, pushing the one-year increase to a stunning 106.7%.

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Food prices have also climbed 10.1% higher over the year and 1.2% over the month, with the largest increases in dairy and related products (up 2.9%, the biggest monthly increase since July 2007), non-alcoholic beverages (1.7%), cereals and bakery products (1.5%), and meats, poultry, fish and eggs rose (1.1%).

Fox Business' Megan Henney contributed to this report.

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Rep. Jordan: 'Big change' coming in midterms after 41-year-high inflation rate - Fox Business

I miss the old ACLU.

You know the one I'm talking about: The American Civil Liberties Union that defended the First Amendment right of Nazis to march at Skokie, Illinois. The one that sided with homophobic pastor Fred Phelps and his church when it protested the funerals of dead American servicemen.

The ACLU's cases have sometimes involved terrible people with terrible causes saying terrible things. Nobody with good taste or decent morals and certainly no one on the left side of America's political spectrum would ordinarily choose to associate themselves with the infamous scoundrels and bigots the organization has occasionally aided over the years. Even so, it has usually been comforting to know that the ACLU is on the case. If Fred Phelps is protected by the Constitution, after all, then the rest of us are, too.

It's not always like that, anymore.

Oh, the ACLU still takes on free speech cases and unpopular clients: Last month it argued an appeals case on behalf of a high school student who made a Holocaust joke. "In doing so, we were only doing what we have always donedefending speech rights for all, even those with whom we disagree," David Cole, the group's national legal director, wrote recently in The Nation.

But reporting in recent years suggests the ACLU has drifted away from its moorings as the nation's premiere defender of the First Amendment, struggling instead to balance its commitment to free expression with progressive stances on behalf of racial and sexual minorities. That would reflect a growing notion on the left that perhaps the Trumpist Age of Disinformation has revealed the limits of unfettered expression as a democratic virtue.

The ACLU's old guard worries something is being lost. Take David Goldberger, the attorney who argued on behalf of the Skokie Nazis. "Liberals," he warned last year, "are leaving the First Amendment behind."

So it's interesting and maybe even encouraging to see another group step forward to claim the mantle. The Foundation for Individual Rights in Education (FIRE), a group that's waged free speech battles on university campuses around the country, announced this week that it is rebranding itself. FIRE is now the Foundation for Individual Rights and Expression, a name change that brings with it a broader mandate and a plan to spend $75 million over the next three years on free speech education and litigation.

"Once the ACLU backs off its traditional role, who else is there?" said Ira Glasser, who ran the organization for more than two decades and now sits on FIRE's advisory board. (Former ACLU president Nadine Strossen is also on FIRE's board.)

Let's backtrack a bit, and acknowledge that the progressive reconsideration of free speech is nothing if not understandable. The ACLU's own evolution was sparked by its 2017 efforts on behalf of neo-Nazis whose angry "Unite the Right" protests at Charlottesville culminated in the death of Heather Heyer and gave us then-President Donald Trump's ugly "very fine people on both sides" equivocation between the racist and anti-racist demonstrators. Maybe there's something to the idea that "First Amendment protections are disproportionately enjoyed by people of power and privilege," as one former ACLU staffer put it. And maybe there's something to the idea that the Internet-fueled explosion of lies and conspiracy theories means we're no longer competing in a "marketplace of ideas," but instead collectively being forced to slog through an exhausting swamp of falsehood. Even for its most committed adherents, there can be days when the First Amendment doesn't look so wonderful.

That's not the whole story, though.

Yes, the First Amendment protected the marchers at Skokie in 1978 but it was also a "crucial tool" for protesters during the Civil Rights Era. Maybe Westboro Baptist Church was protected in shouting its vile anti-gay slurs in public, but so were gay and lesbian demonstrations and newspapers that were the targets of would-be censors. In America, marginalized groups have been able to advance their cause because of our country's legal commitment to free speech.

"Especially for groups that are minorities, whether political dissidents or racial or other demographic minorities, (they) absolutely depend on robust free speech and are smothered by censorship," Strossen told me last year.

Indeed, the latest government-sponsored efforts to stifle speech the "Don't Say Gay" bill in Florida, any number of state bills intended to limit young people's access to books about racism and sexual identity are aimed directly at the the ability of those minority groups to tell their story. If those laws are defeated in court, it probably will happen because the First Amendment doesn't just protect people of power and privilege.

That makes free expression an idea worth continued defense by the progressives, even in these confusing and dangerous times. David Goldberger worries the left is leaving the First Amendment behind. It's not too late to come back.

Joel Mathis is a writer based in Lawrence, Kansas. His work has appeared in The Week, Philadelphia Magazine, the Kansas City Star, Vice and other publications. His honors include awards for best online commentary from the Online News Association and (twice) from the City and Regional Magazine Association.

The views expressed in this article are the writer's own.

Continued here:
Is It Time to Set the First Amendment on FIRE? | Opinion - Newsweek

To listen to the gun lobby, the Second Amendment provides an absolute constitutional right for an individual to own an array of armaments and ammunition free from regulation by the state. These advocates select from the amendments text only what supports their individual-freedom view, but they ignore entirely the imperative that precedes, the framing device of the whole thingto protect the security of a free State. Read in full, the text of the amendment is not a prohibition on gun regulations but, rather, a requirement of certain regulations necessary for protecting that security and freedom.

Gun-rights activists point to the 2008 Supreme Court decision in Heller v. District of Columbia as finally establishing, some 219 years after the ratification of the Second Amendment, an individual right to possess a gun in the home, which they proclaim extends to assault rifles and sundry other weapons enabling individual bearers to inflict mass destruction of human life. In their view, the ordinary citizen is bound by a constitutional covenant to suffer the risk that others might use their military-style weapons to murder childrenor churchgoers, or grocery shoppers, or concertgoers, but especially childrenbecause it is the person, not the gun, who does the killing in the Second Amendments name. We the people must endure this risk, we are told, because otherwise the rights of some to keep and bear Armseven against childrenoutweigh our collective need for safety and security. The constitutional protection of some to keep the weapons that they sometimes bear against us collectively is too important a right necessary for individual freedom to contemplate regulations that would, or even might, reduce our risk. We are told that the right to individual ownership of armaments like AR-15 platform assault weapons, with minimal or no real restraints on purchasing, is necessary for an armed populace to keep the threat of a tyrannical government at bay.

James C. Phillips and Josh Blackman: The mysterious meaning of the Second Amendment

Such a popularized version of our Constitutions meaning was in part vindicated by a conservative Supreme Court majority, whose opinion in Heller focused principally on the second half of the Second Amendment, which reads, The right of the people to keep and bear Arms, shall not be infringed. Assuming that the term of art keep and bear means the same in modern English as possess and carry, and that the people refers to particular individuals rather than a political collective, as in We the People, which established the Constitution in the preamble, the right would seem to be fairly clear. (Or at least as clear as the First Amendment, which provides that Congress shall make no law abridging the freedom of speech, under which the Supreme Court has nonetheless repeatedly found all manner of regulations permissiblesuch as those prohibiting incitement to violence, true threats, and advocacy for violent overthrow of the government, and those putting reasonable time, place, and manner restrictions on speech, among many others.)

But this version of the Second Amendment ignores the first half, which reads, A well regulated Militia, being necessary to the security of a free State. The Supreme Court barely contemplated the texts meaning in Heller, asking no more than whether it could be given a logical link or a purpose consistent with what it dubbed the operative clausewherein the amendment, in the Courts view, protects an individual right to possess a weapon. The first half of the Second Amendment is at times also anachronistically associated with the question of whether the right to possess a weapon is tied to service in a well regulated Militiaa view the Heller majority rejected. Missing from this reading, however, is any consideration of the constitutional significance of what is necessary to maintain the security of a free State. What does this security entail? Are Americans secure in a free state when they live in fear of the next violent act that might be perpetrated by the bearer of semiautomatic weapons? Are Americans secure in a free state when they are told that more resources should be spent on arming teachers, or training students to duck and cover and keep silent, as if in a new cold war, only this time the enemy is ourselves?

Diana Palmer and Timothy Zick: The Second Amendment has become a threat to the First

The gun lobby argues that the political, psychological, and emotional attachment to the ready availability of weapons for some is a value too precious to contemplate rethinking our collective approach to gun regulation. Any regulation that might lead to imposing far more restrictive licensing and background checks, or to limiting the availability of particular kinds of weapons, would be too costly to their selective understanding of constitutional freedoms. According to the gun lobby, individuals engaged in their own fantasy of the heroic citizen equipped to do battle against tyrannical government agents would suffer incalculable collective costs were Americans to restrict their access to weapons. If the choice were the lives of children or the political imagination of a vocal group of armament activists, whose costs should matter more? The inconvenience of some or the lives of others?

The Second Amendment provides an answer. The security of a free State matters. Our security is a constitutional value, one that outweighs absolutist gun-rights claims by NRA lobbyists, or Oath Keepers and other insurrectionist groups who hold their access to weapons dear for use in an imagined anti-tyranny quest. Meanwhile, the rest of us suffer the costs of the actual tyranny that living in a state of fear of mass gun violence creates.

Franklin D. Roosevelts 1941 Four Freedoms speech placed freedom from fear as one of four essential human freedoms. Translated to our modern gun crisis, this freedom can be realized only when individuals no longer have easy legal access to armaments that put them in a position to commit an act of [mass] physical aggression against any neighbor. Children today do not have this freedom from fear. Just to live in society and go to school, they must endure regular active-shooter drills, because the gun lobby has opposed any regulation that would keep weapons out of the hands of those whose activities remain legal up until the exact moment when they start shooting children and teachers. Proposals to make schools more like fortresses only add to the costs children bear rather than addressing the root constitutional problemthat insufficient regulation of guns impairs the liberties of all.

Protecting our freedom from fear does not mean that the government has complete authority to ban guns. To emphasize the amendments protections for security is not to abandon liberty. Rather, it is to recognize how excessive emphasis on the liberties of gun advocates undermines the many liberties of everyone else who seeks to live securely in a free state. The Second Amendment preserves a free state, not simply a security state.

When we Americans next hear that the Second Amendment protects a right against more effective regulation of weapons capable of imposing death on our neighbors, we should insist in response that the Second Amendment requires the opposite. It empowers a free people to regulate weapons as necessary to maintain their security and to protect their freedoms from fear and violence. We can be free, but only if we regulate gunsjust as the Second Amendment tells us.

Excerpt from:
Don't Forget the First Half of the Second Amendment - The Atlantic

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The University of Houston has settled with a conservative free speech group that sued the school over an anti-discrimination policy that the group argued was overly broad and violated students First Amendment rights.

As part of the settlement, UH officials will have to pay $30,000 in attorneys fees to Speech First and UH officials must keep in place its amended anti-discrimination policy.

In this case, Speech First, a group that actively litigates college policies they view as student censorship, targeted UHs anti-discrimination policy that has been in place since 2012. According to that policy, unlawful harassment was defined as humiliating, abusive, or threatening conduct or behavior that denigrates or shows hostility or aversion toward an individual or group or conduct that created a hostile living or working environment or interfered with an individuals academic or work performance.

Examples of such harassment included epithets or slurs, negative stereotyping and denigrating jokes.

It also stated [m]inor verbal and nonverbal slights, snubs, annoyances, insults, or isolated incidents including, but not limited to microaggressions, would be considered harassment if the actions occurred repeatedly and targeted a particular group of people based on their race, sex or gender or other status that keeps them protected from discrimination.

But in May, three months after Speech First filed its suit, the university amended its policy. Later that same month, U.S. District Judge Lynn Hughes, a Reagan appointee, blocked the university from reinstating its original anti-harassment policy.

This is a huge win for the First Amendment, said Cherise Trump, executive director of Speech First, a group that pushes back against what it calls toxic censorship culture on campuses. It sends a message to the University of Houston and other universities that they will be held accountable if they enact unconstitutional policies on campus.

In a statement, UH officials said they have come to an amicable agreement and consider the matter resolved.

As a result of our discussions, a revised anti-discrimination policy has been adopted, Chris Stipes, director of UH media relations, said in a statement. The UH System remains committed to protecting the constitutional rights of our students and employees.

Speech First filed the lawsuit on behalf of three conservative students identified only as A, B and C who said they felt they could not express their beliefs on campus for fear they would be punished under UHs older policy.

As examples, the lawsuit listed how the students feared retaliation if they shared personal beliefs such as affirmative action in college admissions is racist or allowing biologically male athletes who identify as female to compete in womens sports is fundamentally unjust. All three said they were uncomfortable acknowledging fellow students preferred pronouns outside of a cisgender identity.

In documents, lawyers for the university argued that its policy specifically addresses unlawful harassment of students and would not consider those statements and ideas provided by the students in the lawsuit as a violation of the policy.

University lawyers have also argued there is no evidence that the anti-discrimination policy has ever been used against students.

When the university amended the anti-discrimination policy in mid-May, it specified that harassment must rise to the level of creating a hostile work environment for employees or to deny a student equal access to education by creating a hostile learning environment. That is the standard set by the 1999 Supreme Court decision in Davis v. Monroe County Board of Education, which states that schools violate the Title IX ban on sex-based discrimination if they remain deliberately indifferent to sexual harassment to the point it prevents a student from receiving an equitable education.

Two years ago, the U.S. Department of Education Office of Civil Rights under former President Donald Trump used that definition of sexual harassment when it issued revised rules and standards for investigating Title IX violations on college campuses, which was a more narrow definition for sexual harassment than any previously used.

Speech First lawyers argue that many universities, including UH, adopt harassment policies outside of that guidance that are too broad, providing a chilling effect to students free speech.

A UH lawyer said the definition of sexual harassment in the Davis case did not limit schools from enacting other policies to address unlawful harassment and should not be considered the standard for universities as they craft disciplinary policies to address other instances of inappropriate behavior.

Speech First has tried to bootstrap Davis in numerous other cases, and to date none has held that Davis imposed the outer bounds for addressing unlawful harassment, they wrote.

But when Hughes, the federal district judge, granted a preliminary injunction late last month preventing UH from reinstating its original anti-harassment policy, he sided with Speech First.

Restraint on free speech is prohibited absent limited circumstances carefully proscribed by the Supreme Court. Any limitation deserves the upmost scrutiny, he wrote, stating the group would likely win the case. The University says that it will be injured if recourse is unavailable for harassment against students of faculty. As important as that is, students also need defenses against arbitrary professors.

This is the latest victory for Speech First, which has sued universities across the country over free speech policies, including the University of Texas at Austin. The case against UT-Austin took a similar path. Speech First sued the university in 2018 over language in multiple freedom of expression policies. UT-Austin amended some of the policies before settling with the organization and agreed to discontinue the universitys Campus Climate Response Team, part of the division of student affairs and the division of diversity and student engagement that investigated student reports of bias incidents on campus.

This lawsuit comes as other free speech debates have bubbled up on Texas college campuses throughout this past academic year.

At Collin College in North Texas, three professors have sued the school, arguing their contracts were not renewed in retaliation for exercising their First Amendment rights on a variety of issues, including one professor who publicly criticized the schools COVID-19 response.

Nearby at the University of North Texas in Denton, thousands of students and community members signed a petition calling on school administrators to expel a right-wing student, arguing her campus activism and statements opposing gender-affirming care for transgender children created an unsafe learning environment for transgender students on campus.

In that instance, administrators denounced the students comments, but they said she and her right-wing campus group had not violated any university policies.

Disclosure: Collin College, University of Texas at Austin, University of Houston and University of North Texas have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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University of Houston settles lawsuit with conservative Speech First group - The Texas Tribune