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From Singh v. Amar, decided Dec. 5 by Judge Sue Myerscough (C.D. Ill.):

Plaintiff is a second-year law student at the University of Illinois College of Law. Mr. Singh enrolled in the University on a full-tuition merit scholarship and eventually was invited to join the Illinois Law Review.

Shortly after beginning his first semester, Mr. Singh met with Defendant Virginia Vermillion, the law school's Dean of Students, to amend his law school application. He alleges that Dean Vermillion responded to his request by remarking that "[y]ou fucking [M]iddle [E]asterners are untrustworthy." Mr. Singh is of Sikh origin.

After his first semester, Mr. Singh filed formal complaints against instructors who he believed had graded his coursework and exams capriciously. Mr. Singh also had conflicts with other students and school administrators. The school made several informal attempts to resolve Mr. Singh's concerns and disputes, but those attempts were unsuccessful.

In April 2022, Dean Vermillion contacted the University of Illinois Behavioral Intervention Team (BIT) to share her concerns regarding Mr. Singh's behavior. Dean Vermillion alleged that Mr. Singh had threatened Dean Vermillion and other administrators, made female instructors and students uncomfortable, and shown signs of "disjointed" thinking.

Illinois law requires that post-secondary institutions take preventive and proactive action to prevent campus violence. The BIT therefore assesses and monitors "students exhibiting aberrant, dangerous, or threatening behavior." To ensure that the BIT's work is unimpeded, the University's various codes of conduct require the subject of a BIT complaint to comply with any "reasonable" directives. Failure to comply with BIT's directives can result in disciplinary sanction, including dismissal.

In June 2022, Defendant Katherine Snyder, the University's Associate Dean of Students and a member of the BIT, reached out to Mr. Singh to request an informal, non-disciplinary meeting regarding Dean Vermillion's claims. Dean Snyder wrote that such a meeting was "a necessary and required step in the process when we are made aware of situations such as this one." But Mr. Singh declined to accept Dean Snyder's invitation. Instead, Mr. Singh responded that the First Amendment shielded him from "compulsory speech," demanded access to his student records, and threatened to take legal action.

On November 18, Mr. Singh filed this suit pursuant to 42 U.S.C. 1983, Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972. The Complaint1 alleges that Defendantsall officials, employees, and trustees of the University of Illinoisviolated Mr. Singh's First, Fifth, and Fourteenth Amendment rights by compelling him to meet with the BIT, retaliating against him for his exercise of his right to free speech, and subjecting him to the strictures of an unconstitutionally vague code of conduct.

Mr. Singh seeks a preliminary injunction [that] would bar Defendants from subjecting him to further disciplinary process during the pendency of this case.

The first question is whether denying Mr. Singh an injunction will cause him irreparable harm. Mr. Singh argues that any number of consequencesfrom a compulsory meeting with the BIT to the premature demise of his legal careerwould follow. In response, Defendants contend that "the stakes are much lower." They say that Mr. Singh's "decision not to meet with BIT" would be "the sole cause of any 'irreparable harm' he now claims to face."

Irreparable harm "means an injury that money cannot repair." Put differently, irreparable harm is that which cannot be rectified by a favorable final judgment and an award of money damages or a permanent injunction. "Not every conceivable injury entitles a litigant to a preliminary injunction," and "[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief."

As noted above, Mr. Singh alleges two discrete irreparable harms. He alleges that in the absence of an injunction he will be compelled to speak with the BIT, and in so doing will suffer a violation of his First Amendment right "to refrain from speaking at all." Mr. Singh also alleges that he will be expelled from the University if he continues to assert that right by declining to meet with the BIT.

The gravity of Mr. Singh's allegations is obvious. And the disciplinary sanctions that Mr. Singh may face are troubling. But the harms he alleges here are too speculative to warrant the extraordinary measure of preliminary injunctive relief. Prohibiting the University "from enforcing a universally applicable disciplinary code does not seem to this court, on this limited record, to be a reasonable solution to this very difficult problem."

First, Mr. Singh has not shown that meeting with the BIT will cause him irreparable constitutional harm. The First Amendment prohibits state institutions from compelling individuals "to voice ideas with which they disagree." As the parties agree, the University's codes of conduct obligate Mr. Singh to comply with the BIT's "reasonable" requests. But nothing indicates that the University intends to force Mr. Singh to engage in the kind of speech protected by the First Amendment. The codes of conduct do not require that Mr. Singh take a particular position or disavow a particular viewpoint. Compare Pl.'s Ex. G (requiring meeting with BIT members "to get to the bottom of your many conflicts and the allegations you assert in them") with Miller v. Skumanick (M.D. Pa. 2009), aff'd sub nom. Miller v. Mitchell (3d Cir. 2010) (requiring that teenagers accused of "sexting" expressly repudiate the activity, in writing, to avoid criminal prosecution). Indeed, the codes of conduct do not require that Mr. Singh utter a single word. On this record, the Court cannot find that by meeting with the BIT, Mr. Singh will suffer an irreparable harm.

Nor has Mr. Singh shown that allowing the University's disciplinary process to move forward will cause him irreparable harm. Muchif not allof the reasoned case law suggests otherwise. E.g., Noakes v. Case Western Reserve Univ. (N.D. Ohio 2021) (finding consequences of pending medical-school disciplinary proceeding neither "certain" nor "immediate"); Doe v. Univ. of Chicago (N.D. Ill. 2017) (finding student's claim that disciplinary process would "threaten[ ] his reputation and his educational opportunities too speculative to constitute irreparable harm").

Mr. Singh alleges that the only path forward ends in his expulsion. If that proves to be the case, or if the University's disciplinary process is otherwise procedurally infirm, then Mr. Singh's dismissal from law school may well constitute an irreparable harm. Yet the possibility of a sanction is not the same as its guarantee. Until Mr. Singh's "hearing is eventually held, we do not know that harm will result; a tribunal might very well clear [Mr. Singh] of any wrongdoing." And until these processes have run their course, the Court cannot find a clear showing of irreparable harm.

The decision was appealed, but has now apparently been settled, so the appeal will likely be dismissed (but the district decision will remain as potentially persuasive precedent). Congratulations to Katherine Tierney and Michael D Hayes (Husch Blackwell LLP), who represent the university defendants.

See original here:
No First Amendment Violation in Requiring Law Student to Meet with "Behavior Intervention Team" Related to ... - Reason

I cannot believe that this is happening to me again, and that the implications are even greater than they may have been in this first trial that I went through, she said, from her East Coast home, in a location she prefers not to share. And after what I went through and after what my family had to go through, and considering the clear, long-lasting harm that this had on me. I just can't believe that anybody would question whether or not this is a true threat.

Countermans public defenders contend his conviction was a violation of his free speech and appealed his case all the way up to the U.S. Supreme Court. They argue that Counterman was mentally ill and never intended to hurt Whalen and that he didnt understand the messages to be truly threatening because of that mental illness. They also argue that the notion that people could be imprisoned for things they say online opens up a larger free speech debate that touches on First Amendment protections.

I think it really highlights the kind of errors that can happen here, said John Elwood, a Washington, D.C.-based attorney who will argue the case on behalf of Counterman this week. The words coming out of someones mouth, he really did not understand them to be a threat. Here, there is a real reason to believe he didnt understand it in those terms.

For Whalen, her ordeal has now spanned more than a decade and nearly derailed her emerging career and upended her life.

Shes had to leave Colorado, change careers and push herself through fears she never thought were possible, like panicking about playing in front of people she cant see. She stopped doing live performances and waited to restart until she felt stronger.

I realized that trauma doesnt just heal because somebody goes to jail, she said. The damage had been done. What I anticipated was that I would be the person that I was before the trial and when the trial ended. And what I found was that I was not.

The months between when Counterman was arrested and when he was convicted and sentenced were among the most harrowing for Whalen, who knew that he could have been angry that she reported him to police.

He was out on the streets with me, she said.

At the suggestion of police detectives, Whalen took a concealed-carry class and began carrying around a gun something she had never done before. She varied her routes so she would be harder to follow.

And, increasingly, she found it extremely difficult to do what she loved best: sing and perform.

She began feeling terrified when performing in dark rooms where she couldnt see everyone.

At one particular performance in Dallas, her palms got clammy, she started seeing spots and was having trouble breathing. At the time, the now 43-year-old thought she was having a heart attack. She played one more song, sitting down, and then had to leave the stage. She went to a dressing room and cried hard for a very long time. When she finally came out to talk to her bandmates, she told them she didnt know if she could keep singing.

I told them, I don't know if any dream is worth feeling this terrible, she said.

During Countermans trial, she testified about the fear he put her through.

I decided to take the stand and that meant I had to prove that I suffered serious emotional distress, she said. I had to speak out loud in front of this man about all of the nightmares and sleepless nights and the canceled shows and not being able to go anywhere alone.

Once Counterman went to prison, Whalen thought shed be able to bounce right back to the performer she was before it all happened.

I thought that life would be mine again and sadly it wasnt, she said. We got this conviction but I still lost my dream. It was my dream and it wasnt his right to take that from me.

Whalen knew she needed to get out of Colorado and do something different. She accepted a marketing job on the East Coast, where she ended up meeting her husband and having two children.

I had changed so much, she said. Playing music, songwriting, performing, connecting with people in that way, thats who I am. Thats my dream. Thats what Ive always done. The fact that Im not playing much music these days is shocking to the people that have known me the longest. We're not just talking about a job that I lost here.

Whalen said it took years to heal.

I tried to find other ways to fulfill my passion, hoping that music would someday be available to me again, she said.

But she has just started to come back. She wrote a song about the experience called Stronger and she has even started playing live but only to small crowds, usually by invite only.

Then, she got the news that the U.S. Supreme Court was going to take a look at the constitutionality of the states decision to imprison her convicted stalker and whether those messages should have been protected speech.

I am just astounded, Whalen said. I cannot believe that this is happening to me again.

Whalen is torn about how to be present for the case now.

On one hand, she comes from a long line of public servants and she feels the responsibility to explain her side of the story and to convey how truly horrifying the years were when she was on the receiving end of so many unwanted messages.

One detective estimated that Counterman had sent her hundreds of thousands of messages maybe even one million of them. Whalen didnt read them all.

But shes worked so hard to get past the experience and doesnt want a major emotional setback. She decided not to go to arguments in person in Washington, D.C., on Wednesday. And she doesnt even know whether shell listen to them online.

We are here debating a law whose outcome could have serious implications for victims of cyber harassment and cyber stalking all over the United States, and reminding people that there are real humans whose lives are really damaged by this type of threatening speech, she said. Lawyers and justices can pull apart the single messages that he sent me. Was this one threatening? Was that one threatening? But the bigger picture, the lived experience is much more than that.

Original post:
One Colorado stalking victim never wanted to become the center of a First Amendment case at the US Supreme Court - Colorado Public Radio

If no settlement can be reached in Dominion Voting Systems' $1.6 billion defamation lawsuit against Fox News, the ensuing trial will prove to be one of the most important in the history of First Amendment law. On Sunday, the start of the trial was delayed by 24 hours, and reports of a possible settlement spread.

Defamation cases are notoriously difficult to win against media outlets because the plaintiffs must prove both that a claim was false and that it was made with "actual malice" that is, either"with knowledge that it was false or with reckless disregard of whether it was false or not." In this case, a number of factors favor Dominion. First, because Fox News' claims that Dominion had rigged the 2020 election against then-President Donald Trump were false, as withthe other tenets of the Big Lie, Davis ruled that Dominion only needs to prove that Fox News acted with "actual malice." Second, there is a wealth of evidencethat the key figures at Fox News knew that their public accusations against Dominion were false, yet made them despite that knowledge to please their audience. Finally, Fox News has already been scolded by the judgefor withholding important information about the title of board member Rupert Murdoch.

It is easy, amidst the high drama of a landmark free speech case, to lose sight of how we got where we are. The First Amendment of the United States Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." So what does it mean to "abridg[e] the freedom of... the press"? How can courts and policymakers remain faithful to the Constitution while protecting those who may be wronged by a dishonest or corrupt media outlet?

In this case, a number of factors favor Dominion.

Below are some key cases from American history that either have helped shape how that question is answered or which help illustrate the nuances of First Amendment law.

When Salon reached out to Leonard M. Niehoff, a professor at the University of Michigan Law School who specializes in the First Amendment, he replied that "it's tempting to answer your question not by citing three cases but by suggesting reading Sullivan three times. The decision casts a lot of light on the Dominion case."

Niehoff is alluding to New York Times Co. v. Sullivan,a landmark Supreme Court decision that simultaneously protected America's free press and stopped white supremacists from using frivolous litigation to silence their critics. The case's roots can be traced back to 1960 when The New York Times ran a full-page piece by Dr. Martin Luther King, Jr.'s supporters that criticized the police in Montgomery, Alabama for engaging in racist violence against civil rights protesters. White supremacists often responded to critical newspaper coverage by filing frivolous defamation lawsuits, usually by nitpicking an article's factual errors and suing to intimidate publishers into not running pro-civil rights content.

On this occasion, however, the wealthy right-wingers who lined up to back Montgomery police commissioner L. B. Sullivan's intimidatory litigation found their money was wasted. Despite winning early trials due to pro-Southern audiences that were openly hostile to civil rights first in an Alabama jury trial, then with the Supreme Court of Alabama the segregationists were shocked when the Supreme Court unanimously ruled against them in 1964. It found that in order to sustain a defamatory accusation, the plaintiffs must prove that the claim was false and that the individual(s) making it did so with either "actual malice" or recklessly.

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"Consider: Sullivan seeks to create room for the media to make good faith mistakes when telling important stories," Niehoff explained. "Is this a case of good faith mistakes? Were these journalists trying to get the story right but getting it wrong for understandable reasons? Or is this a different kind of case altogether?"

Niehoff also noted that, as with Sullivan,theDominioncase is also a microcosm of where America is at this point in its history."Sullivan had its origins in the civil rights movement and recognized the threat that southern officials would weaponize libel cases to resist it," Niehoff wrote to Salon. "Sullivan is a case about a great social struggle and the role of the media in advancing it. The Dominion case has its origins in a lie about an election outcome. It is a case about a great fraud, where the plaintiff claims the media helped perpetuate it. One can appropriately wonder what the Dominion case says about where we've strayed to as a society."

This is a situation where, although a court case did not directly set a legal precedent, it set a chill through an entire industry as effectively as if the court had ordered it.

"A psychiatrically-impaired POTUS is capable of doing so much harm," Dr. David Reiss, a psychiatrist and expert in mental fitness evaluations who along with Lee contributed to the book "The Dangerous Case of Donald Trump: 27 Psychiatrists and Mental Health Experts Assess a President," told Salon. "In my opinion, it is irresponsible for mental health professionals not to inform the public and initiate discussion regarding concerns based upon objective facts (not speculation)."

"The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government," Black explained. "The press was protected so that it could bare the secrets of the government and inform the people. Only a free and unrestrained press can effectively expose deception in government."

"The decision is a bit of a libel buffet, offering up lots of principles that are somewhat disconnected from each other," Niehoff told Salon about the Gertzdecision. "But it seems to me possible that the case's approach to damages and other issues could prove important [toDominion]."

The story behindGertzbegins in 1968, when a lawyer named Elmer Gertz decided to represent the family of Ronald Nelson, who had been gunned down by Chicago police officer Richard Nuccio. Because Nuccio was ultimately convicted of second-degree murder, Nelson's family was suing him for damages. The John Birch Society opposed Gertz's advocacy, however, and falsely published that he was actually working for Communist front organizations as part of a conspiracy to destroy America's police force. They also falsely claimed that Gertz had rigged the trial to get Nuccio's conviction and that he himself had a criminal record. Gertz sued American Opinion (the publication which advanced these Bircher ideas) and, although he won a jury verdict and $50,000 award, lost his libel suit because a judge found he had not proved "actual malice." The Supreme Court later affirmed the lower court's ruling. As a result, America does not apply the standard of "strict liability" (holding someone accountable for the consequences of their actions regardless of their intentions) in defamation cases.

As the Gertzcase helps illustrate, one of the key variables in determining whether defamation occurred is ascertaining the presence or absence of "actual malice." While the courts found that Gertz did not meet that standard, the same was not true for Daniel Connaughton, a candidate for Hamilton, Ohio Municipal Judge in 1983. When it looked like Connaughton was going to win the election becausethe incumbent's Director of Court Services was arrested on bribery charges, a local newspaper owned by Harte-Hanks Communications that supported the incumbent decided to change that. Soon they ran a front-page story that falsely accused Connaughton of orchestrating the arrest through "dirty tricks." Among other things, it dishonestly stated that Connaughton had offered a member of the grand jury bribes in exchange for her assistance with the investigation. Connaughton sued Harte-Hanks and won both in a district court and in a Court of Appeals, as the evidence proved Harte-Hanks had intentionally published something false in order to harm Connaughton's reputation a clear example of "actual malice."

When Niehoff was asked to list important First Amendment cases, he made a point of singling Connaughton.

"There, the Supreme Court clarified the kinds of evidence that can show the presence of actual malice," Niehoff told Salon. "It turns out that the evidence looks a fair amount like the same sort of evidence a plaintiff would use in a simple negligence case. The actual malice standard provides important protection, but, once you get to trial, it's probably less protection than is generally understood. The case also clarifies how appellate courts should review adverse jury verdicts, which may ultimately be a factor here."

"In the present case, it is undisputed that Aequitron is a corporate plaintiff and that CBS is a media defendant," the judge ruled. "The defamatory material is a matter of legitimate public interest, as it affects the health and well-being of babies and is subject to federal regulation. Thus, the actual malice standard applies."

At the last second, however, the judge presiding over the case decided that the "veggie libel" law could not be applied in this case, forcing the plaintiffs to instead prove defamation under normal criteria instead of merely needing to prove financial losses. This was all that Oprah needed to prevail.

Read more

about the Dominion case:

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First Amendment history hurts Fox News: How precedent helps ... - Salon

The report that the special counsel, Jack Smith, is contemplating handing up charges of wire fraud against President Trump suggests that the Manhattan district attorney is not the only prosecutor pursuing exotic charges against the former president.

Instead, creative charging appears to be the name of the game against the man who could be the highest-profile defendant America has ever seen, as the laws long arm stretches to reach the countrys 45th president.

As District Attorney Alvin Bragg works on transforming misdemeanors into felonies and the Fulton County district attorney, Fani Willis, considers using anti-racketeering law meant for mobsters against Mr. Trump having already deployed it against teachers and rappers Mr. Smith, who once tried war crimes, is getting in on the action.

Mr. Smith, who has been tasked by Attorney General Garland with investigating both the trove of documents at Mar-a-Lago and Mr. Trumps possible culpability for the events of January 6, 2021, is according to the Washington Post investigating whether Mr. Trump used false claims about voter fraud to raise money.

Subpoenas issued to alumni of Mr. Trumps presidential campaign appear to show that Mr. Smith is zeroing in on the period between the election of November 2020 and the end of Mr. Trumps time in office in January 2021. Mr. Trump raised more than $200 million during that span.

The federal wire fraud statute makes it illegal to make false representations over email for fiduciary gain. It is rooted in mail fraud laws, but according to the Department of Justice requires the use of an interstate telephone call or electronic communication made in furtherance of the scheme. To be convicted, a defendant must intend to defraud, not merely end up doing so.

The question, then, is whether Mr. Trumps claims of a stolen election constituted a scheme or artifice that endeavored by means of false or fraudulent pretenses, representations, or promisesto obtain money or property. In the event of a conviction, the statute carries a maximum 20-year prison sentence.

Mr. Smith could, though, run into a significant roadblock in his pursuit of Mr. Trump; the First Amendment. A warning can be found in the Alien and Sedition Acts of 1798, which banned, among other things, false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States.

Those notorious acts, though, were repealed before they faced judicial scrutiny. More than a century and a half later, the Supreme Court held, in New York Times Co. v. Sullivan, Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.

That case also prevented a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice that is, with knowledge that it was false or with reckless disregard of whether it was false.

The issue here, though unlike Governor Palins suit against the Times, for which the riders of the United States Second Appeals Circuit will eventually have to bestir themselves is not things said about Mr. Trump, but the claims he himself has made about the validity of the 2020 election.

Mr. Trump used those claims to raise funds, which means they fell under the category of a solicitation of money, albeit for politics not for commerce. While commercial speech was historically not protected by the First Amendment, the 1970s saw a sea change. In 1975, Justice Harry Blackmun ordained, The existence of commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment.

In a post Monday on Truth Social, Mr. Trump appeared undeterred in his efforts to cast doubt on the last presidential election. He addressed the chief executive officer of News Corporation, Rupert Murdoch, in respect of another defamation case, this one being pushed by Dominion Voting Systems, saying, THE ELECTION OF 2020 WAS RIGGED AND STOLLENYOU KNOW IT, & SO DOES EVERYONE ELSE.

See the article here:
Jack Smith Appears To Be Getting Creative in Push To Charge ... - The New York Sun

On Monday April 17, Eastern Kentucky Universitys (EKU) Theatre Program hosted Bard in Drag. Actors Johnathan Hibbard, who played the male role, and Chris Holmes, who played the female role, dressed in Elizabethan costumes and read parts of pieces of Shakespeare out loud.

Matthew Johnson, the director of the Theatre Program, said Bard in Drag was inspired by the push for anti-drag laws in many Southern states.

The anti-drag bill is the one that most readily affects what we do, said Johnson. With the way it was written, it just made any drag functionally illegal.

According to Senate Bill 115, an adult performance means a live sexually explicit performance, or a live performance involving male or female impersonators who provide entertainment that appeals to a prurient interest in sexual conduct.

The bill also states that a person is found guilty of engaging in an adult performance when he or she engages in an adult performance on publicly owned property, or in a location where the person knows or should know that the adult performance could be viewed by a person under the age of 18 years old.

During the performance, actresses Paige Harrod, Paige Lambert, and Taylor Drane, dressed up as senators. After screaming that the Shakespeare performance was obscene and a slur, Harrod, Lambert, and Taylor hauled Hibbard and Holmes away from the stage.

This event is part of First Amendment Week held by EKUs chapter of Society of Professional Journalists (SPJ).

For more First Amendment Week coverage visit http://www.easternprogress.com or follow the Eastern Progress on social media.

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"The Bard in Drag" event kicks off First Amendment week - The Eastern Progress Online