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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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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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Over at the So to Speak podcast, Nico Perrino arranged to post audio of the recent First Amendment Salons exchange between the lead trial lawyers for Dominion and Fox. A video of that exchange also appears on The First Amendment Salons website as noted below.

On April 18, Fox News agreed to pay Dominion Voting Systems $787.5 million to settle a defamation lawsuit stemming from allegations of voter fraud in the 2020 presidential election. The historic settlement came just before the trial was set to begin in a case many saw as having significant First Amendment implications. In this exclusive conversation, attorneys for Fox and Dominion join First Amendment attorney Lee Levine to reflect on what led to the case, its outcome, and the arguments they would have made had the case gone to trial.

The future of media and content will be bound up with generative AI in ways that we dont yet know. AI itself is not human and cannot have constitutional rights, writes Cass Sunstein, just as a vacuum cleaner does not have constitutional rights. But it seems pretty clear that content created by generative AI probably has free speech protections. It is speech. It is speech that is created out of the raw material of human speech. It is created from code made by humans. It certainly contributes to the marketplace of ideasit may well contribute too much. The modern Court has shown over and over that government cannot restrict speech because of its message, its subject matter, or its content. [See Police Department v. Mosley]

At the same time, it makes sense that government can restrict any AI speech that is traditionally not protected by the First Amendment: libel, criminal solicitation, false advertising, child pornography, and speech that leads to imminent lawless action. Such speech is unconstitutional, whether it is created by a human, an algorithm, or a toaster. The question is whether government can regulate AI to prevent unconstitutional speech.

Related

A judge in California has dismissed a seven-year $100 million lawsuit against Greenpeace USA that threatened the groups existence. Canadian logging giant Resolute Forest Products sued Greenpeace in the United States and Canada for defamation after the group exposed the companys irresponsible practices, part of a pattern of corporations attempting to use the burdens of the legal process to intimidate, exhaust and censor activists. Known as SLAPP (Strategic Lawsuits Against Public Participation) lawsuits, they are increasingly being used by the rich and powerful to silence critics.

We are joined by Deepa Padmanabha, deputy general counsel for Greenpeace USA, to discuss the organizations legal victory, as well as the continued work of advocates to pass anti-SLAPP legislation and promote free speech. We took on this fight not just for Greenpeace, but for everyone who dares speak truth to power, and we knew we had to win this both in the courtroom and for the movement, says Padmanabha.

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The Empire Center for Public Policy and New Yorkers Family Research Foundation (NYFRF) have sued Attorney General Letitia James over ongoing First Amendment violations at the Office of the Attorney General (OAG) connected to confidential charitable donor records.

In 2021, the Supreme Court of the United States ruled in AFP v. Bonta that requiring charitable organizations to disclose the identities of their large donors to a state attorney generals office imposed a widespread burden on donors associational rights. On that basis, the Court found that donors First Amendment rights had been violated.

In a similar fashion, AG James is keeping donor information that her office improperly requested from charitable organizations. Specifically, the OAG has requested and received IRS Form 990, Schedule B from charitable organizations; this document contains donor names and amounts donated. This information has been the subject of at least one security breach that AG James has acknowledged. The issue first came to light in an August 2022 Politico article that revealed donor identities from a leaked filing bearing the Attorney Generals official stamp.

The Ninth Circuit ruled that a public agency did not violate the First Amendment when it prohibited an employee from speaking to coworkers on matters related to the employees alleged misconduct while an investigation was pending.

The case, Roberts v. Springfield Utility Board, arose when SUB initiated an investigation into Todd Robertss dishonest related to [his] work attendance. SUB prohibited Roberts from communicating with coworkers regarding the matter while the investigation proceeded. Roberts then sued, arguing that the restriction violated free speech.

The Ninth Circuit rejected the claim. The court ruled that SUB's restriction applied to speech that was not on a matter of public concern, and therefore Roberts didn't clear the first hurdle under Pickering v. Board of Education. The court noted that SUB's restriction permitted Roberts to communicate with coworkers on other matters, and allows his attorney to communicate with coworkers on matters related to the investigation.

Mere months after the Uvalde school district suspended its entire police force for failing to effectively respond to a deadly shooting at an elementary school, school officials banned a concerned parent from school property because he questioned the qualifications of a new police hire.

Today, the Foundation for Individual Rights and Expression demanded the Uvalde Consolidated Independent School District lift its ban against Adam Martinez, a father of two students in the district. The district banned Martinez from all district property for two years, including from school board meetings. FIREs letter to UCISD threatens litigation if the district does not lift the unconstitutional ban by May 22, 2023.

My community counts on me to be their voice, but the district wants to shut me up, said Martinez. My fight has always been for the 21 people who no longer have a voice and for those who are too scared to speak up about social injustice.

Freedom of expression is a core value of the United States and other democratic countries. Yet in recent years, free speech has become a site of intense conflict when it intersects with issues of diversity and inclusion. Such clashes can be seen in discussions about safe spaces on university campuses, race and LGBTQ+ education in K-12 schools, and hate speech regulation on social media.

Suzanne Nossel, CEO of PEN America and author of Dare to Speak: Defending Free Speech for All, argues that we need not choose between protecting free speech and advancing diversity and inclusion. But how can these values be reconciled? What should governments, tech companies, and educational institutions do when free speech threatens feelings of inclusion among marginalized people? When does protesting cross the line into censorship? In an era of book bans and heightened political polarization, finding answers to these questions is as important as ever.

Suzanne Nossel held a wide-ranging conversation on these topics with Professor Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law and director of the Meltzer Center for Diversity, Inclusion, and Belonging.

This event is co-sponsored by the Birnbaum Womens Leadership Network at NYU School of Law.

In this book, Amy Lai examines the current free speech crisis in Western universities. She studies the origin, history, and importance of freedom of speech in the university setting, and addresses the relevance and pitfalls of political correctness and microaggressions on campuses, where laws on harassment, discrimination, and hate speech are already in place, along with other concepts that have gained currency in the free speech debate, including deplatforming, trigger warning, and safe space.

Looking at numerous free speech disputes in the United Kingdom, the United States, and Canada, the book argues for the equal application of the free speech principle to all expressions to facilitate respectful debates. All in all, it affirms that the right to free expression is a natural right essential to the pursuit of truth, democratic governance, and self-development, and this right is nowhere more important than in the university.

In this Article, I maintain that in recent years a broad, but unspoken, consensus has existed on the Supreme Court for deciding free speech cases with an almost insuperable presumption of unconstitutionality and that the result has been a system of freedom of expression that indefensibly and dangerously favors speech. If the Justices were simply putting a proverbial thumb on the scales in favor of free speech, that would not be particularly noteworthy. I make the much more controversial and novel claim here, however, that, across their ideological spectrum, the Justices routinely decide free speech cases in a way that greatly overvalues the harm to speakers from regulating speech or greatly undervalues the harm to society from not regulating it, or both. A fundamental change in the Courts thinking about free speech issues is essential, and it is not the kind of change in thinking that can come about with one or two retirements on the Court.

To demonstrate the extreme nature of the Roberts Courts free speech approach, I look closely in Parts II-IV at three cases in which the Justices were in broad agreement that a free speech claim should prevail Snyder v. Phelps in 2011, United States v. Alvarez in 2012, and Mahanoy Area School District (MASD) v. B.L. in 2021. Snyder, Alvarez, and MASD are not the first cases anyone would name if asked to list the Roberts Courts most important free speech decisions, but each offers a much better view of the Courts approach at work than a high-profile case like Citizens United in which the Court divided along familiar ideological lines. The real story here is the striking breadth of agreement across the Courts usual ideological divide and the exceptionally protective approach to free speech on which the Justices are so broadly agreed. In essence, all the Justices predicate their thinking in free speech cases on a baseline of protection that is perilously and unjustifiably high.

After discussing Snyder, Alvarez, and MASD, I turn to speech on social media to illustrate the urgency of the Courts revising its free speech approach. In Part V, I underline the gravity of the dangers posed by speech on social media by focusing on two kinds of uses to which social media has all too often, and increasingly, been put: expressing and cultivating hatred and prejudice toward racial and other minorities; and deliberately misleading and confusing the public about matters of important public policy. I argue in Part VI that such dangers very likely must go unregulated unless and until the Court adopts a much more balanced free speech approach. Social media is a propagandists dream come true. Speakers have always wanted to get others to embrace and act upon their ideas. By enabling speakers to flood the marketplace, and bombard people repeatedly, with their ideas, social media gives speakers enormous power to make that happen. Properly understood, however, the First Amendment should not stop the government from standing in its way when vital state interests are at stake.

In last weeks issue of FAN, our link to Ryan Morrison was erroneous. The correct link is as set out below:

Review granted

Pending petitions

State action

Qualified immunity

Immunity under Foreign Sovereign Immunities Act

Liability Anti-Terrorism Act

Section 230 immunity

Review denied

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FAN 378: Paul Clement files cert. petition in campaign ballot slogan case

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Mr. Collins.

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Post-settlement First Amendment Salon: Lawyers for Dominion and ... - Foundation for Individual Rights in Education

OPINION

UPDATED: MAY 16, 2023 AT 1:23 PM

St. George Mayor Michelle Randall speaks during a city council meeting that lead to her changing public comment rules and First Amendment rights. (Screenshot courtesy of St. George City)

This is an editorial piece. An editorial, like a news article, is based on fact but also shares opinions. The opinions expressed here are solely those of the author and are not associated with our newsroom.

ST. GEORGE, Utah Contentious public meetings are not a new thing. Utah has seen more than its share of raucous school board meetings, especially during the pandemic.This week, the mayor of St. George, Michelle Randall, decided to close city council meetings because they had become too divisive. That prompted one citizen in attendance at the meeting to quote their First Amendment rights.

Another citizen, David Johnson of Washington City, said, The First Amendment is very clear and leaves no doubt what our rights are.

Actually, there is plenty of doubt. Open meeting laws, sometimes called sunshine laws, were not included in the Constitution. They cannot be traced back to common law or common practice during the time when the Bill of Rights was passed.

They are a relatively new development. The movement to require open government meetings began in the 1950s, and by 1976, all states and the District of Columbia had adopted sunshine laws. These laws vary from state to state, but in general require that all public meetings be open to the public, with some exceptions.

Utahs open meetings law also provides that any citizen who willfully disrupts a meeting can be removed from that meeting.

Additionally, our sunshine law only applies to the state, its agencies and political subdivisions.

The Ninth Circuit Court of Appeals looked at this issue in Acosta v. City of Costa Mesa. There the court said that a persons speech must actually disrupt the city council meeting before the person can be removed. The Fourth Circuit also said that public officials must have the discretion to cut off speech which they reasonably perceive to be a disruption. See Steinburg v. Chester County Planning Commission.

The bottom line misunderstanding that many Americans struggle with is their belief that rights are absolute.

You may hear someone say in conversation: If I own my home, I ought to be able to do whatever I want with it.

Property law does not convey an absolute right. Your ownership is subject to restrictions, including taxes and eminent domain. Youll also hear people talk about their gun ownership rights in absolute terms, but you must be a certain age and go through a background check, among other restrictions, in order to legally buy a gun.

Likewise, your freedom of speech, in city council meetings and elsewhere, is not absolute. You cannot yell fire in a crowded theater (to name the famous one), and you cant use speech to incite imminent violence. Speech rights are most protected in public forums, but the city council chamber is considered a limited public forum.

Because it is limited, the government is allowed to impose time, place and manner restrictions on the exercise of your free speech rights.

Amanda Dickson is the co-host of Utahs Morning Newsand A Womans View.

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Dickson: No First Amendment rights to yell in city council meetings - KSL NewsRadio

As a media lawyer and fan of the WestView News, I appreciate this publications willingness to tackle contentious issues. But even the most well-intentioned publishing decisions can spark conflict. Indeed, WestView recently found itself embroiled in controversy relating to a breakaway competitor, and I contributed an opinion piece to last months issue advocating for WestView and sharing my opinions on the matter. As it turns out, my opinion piece has itself become the subject of some controversy. These recent events prompted WestView to ask me to explain the First Amendment right to hear provocative speech.

The First Amendment to the United States Constitution guarantees freedom of speech, religion, press, assembly, and petition. One of the most important aspects of the First Amendment is the protection of free speech, which includes both the right to express polarizing opinions and the right to hear them. Indeed, the Supreme Court has recognized that the First Amendment includes the right to hear unpopular speech, stating in First Nat. Bank of Boston v. Bellotti that the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.

The right to free speech includes the right to offend, shock, and criticize others. While it may be uncomfortable to hear opinions that differ from our own, it is important to allow dissenting voices to be heard and considered. Doing so can foster a more inclusive and diverse society where voices are valued and represented. By fostering open and honest debate, the right to hear contentious discourse about sensitive topics provides a check against tyranny and oppression. Robust public debate creates a marketplace of ideas, where the best arguments and most persuasive viewpoints rise to the top.

The right to hear unpopular speech is essential for protecting minority viewpoints. Without protection of all perspectives (including ones that may be challenging), we risk creating an echo chamber where only the dominant opinions are heard, and minority viewpoints are suppressed. But when the minority has the right to speak and be heard, it can defend its position and perhaps gain support if warranted. At the very least, the right to hear unpopular speech ensures that the public has access to a diverse range of viewpoints, and can make informed decisions based on multiple perspectives.

While the right to engage in and hear unpopular speech is essential to the functioning of our democracy, there are of course limits to speech. One such limit is defamation, which occurs when a speaker makes a false statement of fact (rather than an opinion) that harms the subject in some appreciable way, and is made with fault or malice. I practice in this area and have experience both bringing and defending lawsuits involving defamation claims. But no matter the case, one constant remains: opinion-based speechsuch as argument about whether someones conduct was appropriateis absolutely protected. This protection includes the right of readers to hear such an argument and decide for themselves whether they agree.

Ultimately, the right to hear unpopular speech is essential to the functioning of a true democracy. It allows for the free exchange of ideas, protects minority viewpoints, and guards against censorship. It is important to challenge and critique opposing views, and it is equally important to allow those views to be heard and considered. By doing so, we can foster a more open and inclusive society where all voices are valued. As Justice Louis Brandeis famously wrote, If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

Justin T. Kelton is a partner and Co-Chair of the Litigation Department at Abrams Fensterman, LLP. His practice focuses on media law, First Amendment issues, and complex commercial litigation. He can be reached at 718-215-5300 or jkelton@abramslaw.com. This article represents Mr. Keltons personal opinions only, and does not constitute legal advice.

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