FIU finds itself in the middle of three student-speech controversies.
Racist Chat Group:
I mentioned this one: Three students (including a 3L) said racist, sexist, antisemitic, and other offensive crap in an off-campus group chat. The university suspended two of them for two years–one for making “verbal or written abuse, threats, intimidation and/or coercion that objectively endangers the health, safety or well-being of others” in violation of the student code of conduct1 and the 3L (who set-up the group chat) for “affirmative act which aids, attempts, promotes, conceals, or facilitates” those violations. The third student’s disciplinary proceeding is pending.
Meanwhile, SD Fla Chief Judge Altanaga abstained from their § 1983 action under Younger, concluding that a university disciplinary proceeding qualifies as a civil enforcement proceeding akin to a criminal action. I think this is right–hard to see a difference between a university enforcing its codes and, e.g., a State Bar enforcing PR regulations. Although given the increasing frequency with which public universities sanction students for expressive conduct, this has the potential to remove a large swath of First Amendment cases from federal court.
Interestingly, the University of Florida did not raise Younger in defending a lawsuit challenging its suspension and investigation of a law student for similarly racist off-campus speech (and, indirectly, a controversial seminar paper). The district court preliminarily enjoined the university from continuing the suspension, although the Eleventh Circuit stayed the injunction pending appeal. The parties have briefed the appeal (without mentioning Younger) and I believe oral argument is upcoming. Perhaps because Damsky sued and got the PI immediately after he was suspended and barred from campus, before any disciplinary proceedings began.
Threats
FIU Police arrested a student in April for making threats when she joked in a What’sApp chat on the eve of a student capstone program, “Netanyahu, if you can hear me, drop some bonbons for us capstone students in Ocean Bank Convention Center.” A state court judge set bond at $ 5000 and indicated she viewed this t as an attempted threat that an objective person would not find to be a joke (even if the student believed she was joking). Given the Netanyahu reference (which apes Trump’s call to Russia in 2o16), it is hard to conclude that the student or a reasonable listener would take this as a true threat and not a joke. The student’s public defender is teeing up First Amendment arguments and FIRE weighed in with a letter to the university that fell on deaf ears.
Protests
Several students are under university investigation over a silent protest over FIU’s agreement with ICE. They allegedly violated conduct policies by protesting indoors (even silently and non-disruptively) and for refusing to produce ID upon request.
I continue to believe that the speech in the first two cases is protected–none of this can reasonably be understood or intended as a true threat or targeted harassment; it is racist and stupid but not unprotected. The process to that conclusion will take longer than we perhaps would like. As for the third, the university reg (no indoor protests) is content-neutral, although it again reveals the naked insincerity behind “don’t ignore or refuse to listen to speakers you do not like, listen to them and push back,” when even non-disruptive pushback is punished.
A former Capitol Police Officer and a current MPD Officer–both of whom helped defend the Capitol on January 6–have sued to stop the creation and implementation of Trump’s $ 1.776b slush fund.
Here is the standing portion of the Complaint:
- By creating the Anti-Weaponization Fund, funding it, and authorizing claim criteria that will allow it to make payments to, among others, Proud Boys and January 6 rioters, Defendantshave inflicted concrete and cognizable harms on Plaintiffs Dunn and Hodges.
- The Fund’s mere existence sends a clear and chilling message: those who enact violence in President Trump’s name will not just avoid punishment, they will be rewarded with riches. That message, by itself, substantially increases the already sizeable risk of vigilante
violence Dunn and Hodges face on a near-daily basis. And it encourages those who are harassing Dunn and Hodges, and sending them death threats, to up the ante.- These concrete, imminent injuries, which Defendants have caused, give Plaintiffs standing.
- And if and when the Fund begins making payments, Plaintiffs’ injuries will compound. In particular, if the rioters who have already accosted Plaintiffs in person on several occasions receive even a fraction of the $1.7 billion, the danger to Plaintiffs is enormous.
- Payments from the Fund will be used to finance the operations of those who have threatened and tried to kill Plaintiffs. The rioters and paramilitaries who tried to kill Dunn and Hodges on January 6, and who continue to threaten them today, need money for their operations.
- The January 6 rioters had caches of guns, pepper and bear spray, body armor, tactical gear, and communications equipment. Such sophisticated equipment is expensive to obtain and maintain.
- Accordingly, many rioters, including members of paramilitary groups, fundraised for their operations before and after January 6, and continue to do so today. Crowdfunding by rioters and their supporters since January 6 has raised at least $5.3 million. And Oath Keepers founder Stewart Rhodes received donations as recently as May 16, 2026. The Fund will make render such fundraising far easier, supplementing online crowdfunding with public financing out of a confidential $1.7 billion slush fund.
- Earlier this year, on the fifth anniversary of January 6, Enrique Tarrio said that “[t]he thing that I’m searching for is retribution, retaliation.” After briefly disclaiming violence, Tarrio added, “I want them to pay. They made an example out of us, and we need to make an example out of them.”
- Compensating rioters like Tarrio through the Anti-Weaponization Fund will encourage them to seek that retribution, and furnish them with the resources to bring it about
I doubt this works. The mere existence of a law, rule, or program cannot cause injury. Accepting as true that both officers face daily threats and harassment and risks of vigilante violence, I question whether the promise of money sends a unique message of impunity that incentivizes future threats and violence. As for the risk that insurrectionists will use the proceeds to rearm and engage in future political violence, that risk threatens the public at large. It is not unique or particularized to these plaintiffs (one of whom has retired from law enforcement); their past injures at the hands of January 6 insurrectionists does not establish the risk of unique future injury.
The complaint also takes too narrow a focus by tying standing entirely to payments to January 6-ers. The fund raises many constitutional problems aside from that. Moreover, congressional Republicans are working hard to get Todd Blanche to commit that January 6 people are not eligible.1 Were Blanche to make that commitment, the asserted injury goes away–the slush fund neither incentivizes nor enables future violence against these plaintiffs.
The suit comes as everyone tries to figure out who has standing, refusing to accept the likely conclusion of “no one.”
Fresh off the South Carolina Supreme Court overturning his murder conviction, Alex Murtaugh filed a § 1983 action against Rebecca Hill, the court clerk whose improper influence over the jurors and the deliberation process formed the basis for the court decision (along with some other-acts evidence issues certain to appear on Evidence exams in the fall). He seeks damages in the amount ($ 600k) that he withdrew from his retirement accounts to fund his defense.
The case presents potential puzzles around § 1983 litigation:
State Action: Hill’s formal, legal job under state law was to manage the trial, including caring for and supporting the jury; it did not include holding substantive conversations with jurors. Lindke appears to allow courts to define the formal job at a high level of generality–“to arrest” or to “manage and support the jury”–while allowing cases against specific misuses of that authority, if that misuse enabled the violation (which it did here). But Hill might attempt to argue that her official job did not include talking with jurors about the case, such that her actual authority did not create the violation.
Absolute Immunity: Does Hill enjoy some form of quasi-judicial immunity? Court clerks can claim absolute immunity for functions integral to the operation of the judicial system. Is managing the trial and caring for the jury one such function? It does not involve judgment or discretion, although like filing documents, it is integral to the system in which judges operate. Another way to frame this: Ask whether this a case in which Hill exceeded her authority in managing the jury (immune) or in complete absence of authority in speaking to jurors about the case (not immune). Again, the level of generality will control. Hill’s motive in attempting to push the jurors towards conviction (she wanted to write a book about the case) is irrelevant.
Qualified Immunity: It seems unlikely there is SCOTUS or Fourth Circuit precedent with materially similar facts. Or that there is a substantial amount of case law from elsewhere with similar facts. Is the misconduct here obvious, requiring no similar precedent? Does the fact that this was a deliberative act rather than a split-second decision change the QI calculus (some argue it should). [Update: The South Carolina Supreme Court cited Parker v. Gladden, a case involving improper communications by the bailiff shepherding the sequestered jury. Close enough?]
Heck: This is the interesting one. For the moment, Murdaugh has a favorable termination–his conviction was overturned on direct appeal. He filed in the brief moment in which his claim is not barred.
South Carolina intends to reprosecute him (and to pursue capital charges); a new conviction raises some interesting Heck issues. Would a judgment in the § 1983 action (that Hill’s constitutional misconduct caused his initial, vacated conviction) necessarily imply the invalidity of a (later) conviction entered without Hill’s actions? Or would the court look only at the initial conviction, on which Murdaugh received favorable termination (acquittal) and for which he seeks damages arising from Hill’s narrow misconduct? Murdaugh would need to frame his § 1983 action as seeking damages caused by Hill’s msiconduct–the attorney’s fees wasted on that first (successfully resolved) trial. He could not claim injury or damages for his overall prosecution, which resulted in conviction. That is, Hill violated his rights in a discreet manner in the first trial; that violation and injury remains regardless of what happens in the second criminal trial.1
I would expect the federal court to stay the civil action pending resolution of the new prosecution–to avoid conflicting and competing litigation obligations on Murdaugh, to see how the result of the prosecution affects Heck, and to enable meaningful discovery (while the new prosecution is pending, Murdaugh will plead the Fifth in any deposition). Even if Heck requires the federal court to await resolution of the new prosecution, Wallace v. Kato required Murdaugh to file the § 1983 action now. Wallace holds that the limitations period runs when the claim accrues, not when the potential Heck bar goes away. Plaintiffs must file the federal action, then await the outcome in state court.
SCOTUS’s Orders List included GVR’s in Bd. of Election Comm’rs v. NAACP and Turtle Mountain Band v. Howe, for reconsideration in light of Callais.
This is bizarre. Both cases presented the question of whether VRA § 2 allowed for private enforcement. The Fifth Circuit in NAACP said the statute includes an implied private right of action. The Eighth Circuit held in 2023 that the VRA did not, then held in Turtle Mountain Band that plaintiffs also could not enforce § 2 via a § 1983 “and laws” action. The underlying question is the same for all–whether § 2 includes “rights-creating language.” Whatever remains of § 2 after Callais, the provision creates rights to be free from racially discriminatory voting rules. And the § 1983/implied rights question goes to whether private plaintiffs can bring claims, regardless of whether those claims succeed.
Justice Jackson alone dissented, arguing that Callais does not address the VRA’s private enforceability.
The new Courts Law essay comes from Suzette Malveaux (Washington & Lee) reviewing Mila Sohoni, In CASA You Missed It, 78 Stan. L. Rev. (forthcoming 2026), describing all the judicial power left after CASA.
Our general disagreements about universal remedies notwithstanding, I agree with and cite to Mila’s article in Constitutional Litigation after Trump v. CASA, about to be published in the Duke Journal of Constitutional Law.
Paul asks what I (and others mean) by free speech culture.
“Free speech culture” originated to capture a commitment to free expression, open debate, free discourse, open, and the exchange of ideas–independent of formal legal First Amendment commitments. It posits that free speech demands more than the absence of government censorship; it demands the absence of all efforts by anyone to suppress, sanction, or limit what people can say, how, and where. It posits a commitment to allowing all ideas to be heard, including ideas one finds offensive.
Free speech culture is the Harper’s Letter. Free speech culture is FIRE’s political (as opposed to its litigation) work. Free speech culture is Jonathan Haidt. Free speech culture is a private university subjecting itself to First Amendment limits. Free speech culture is Disney not firing Gina Carano, radio stations not refusing to play the Chicks, and a general opposition to “cancel culture.”
There is
Unfortunately, the idea has curdled in frequent application. It equates substantive criticism with censorship. it ignores the expressive and associational nature of decisions as to whom to do business with, whom to listen to, and with whom to socialize or engage. It treats social consequences as government censorship or as unlawful harassment. It delegitimizes protest and more speech, where the upshot of a “culture” protecting X’s speech unavoidably silences those who criticize or oppose X or forces critics to, per my prior post, shut up and listen.
White used the term facetiously, to capture how this application immunizes Haidt and NYU from any critics or objections. I was copying his use of the term in this context.
The New York Times required two reporters to report that some students wrote a letter to NYU administrators criticizing their choice of Jonathan Haidt as graduation speaker. They breathlessly paint this as an ironic attempt to silence an important free-speech hero and the greatest current threat to free expression–greater than NYU pre-recording student speeches to ensure no one says anything about Israel. And NYU did not rescind the invitation. So even if you believe deplatforming is a problem, this was, at best, an attempted deplatforming. But this is what the Times believes is the great free-expression problem of our time.
Snark aside, a serious question: What should a student with genuine disagreement with Haidt (whether based on his viewpoints, the questionable quality of his work, or his condescension towards the very audience he has been invited to address) do? What is the “more speech” that this student can or should undertake?
She cannot debate him because this is not a debate. This forum does not entail Q&A, so “engage, ask questions, and challenge premises” is off the table. Reactions to my prior posts show that I sit on a lonely island in finding First Amendment value in audience heckling that does not prevent the speaker from speaking. My guess is NYU will confiscate signs or other forms of silent protest. NYU might even punish a student who silently protests in the moment, such as turning her back on Haidt. I imagine if a student attempted to walk out during the speech, NYU would not allow her to return for the remainder of the ceremony.
The obvious expressive act is the letter objecting to Haidt as speaker and explaining the reasons for that objection, especially if well thought out and explained–perhaps the students are familiar with Haidt’s work and have decided he is full of shit. Of course, I am sure the Times reporters (and likely Haidt) would label that not as more speech but as intolerance, censorship, and refusal to be exposed to “perspectives different from their own.”
What is left for the student? Absent herself from the speech. But that means absenting herself from an event designed to celebrate a lifecycle milestone for which she worked and spent $ 400k over the past four years. It seems unfair to say that Jonathan Haidt has a right to a forum that overcomes the student’s celebration.1 And again, for the reasons above, the reporters would describe this as another example of refusing to listen to ideas they do not like.
So what is really left for the student? The title of this post.
Or as Ken White puts it:
Free speech culture means shut up with your criticisms or disagreements with other people’s speech. Free speech culture means students should accept, passively, without dissent, whoever the school chooses to honor with a speaker gig.
Jonathan Haidt is a Thinker, a Speaker. It is his role to say what he thinks. The students are students. Their role is to receive wisdom, to accept. The universe should be ordered to protect Haidt’s right to speak without hurt feelings.
I do not know the answer to this. I do not think that student objections should derail any graduation speaker. I do know that this is complex, that there is a balance of interests at work–objecting audience members have expressive rights worthy of acknowledgement.
And it seems clear that the Times reporters (or the rest of the “free-speech culture” crowd) have no interest in engaging with that balance, recognizing that complexity, or acknowledging that anyone other than the powerful Thinker/Speaker has free-speech interests.
I wrote about the 11th Circuit’s 2024 decision in New Georgia Project v. AG, abstaining under Younger from a challenge to state campaign-finance law in deference to a state administrative proceeding. I used the case in my Civil Rights arguments on Monday; this got me thinking about the interaction between this case and First Choice Women’s Resource Center.
Judge Rosenbaum concurred in New Georgia, highlighting the “Goldilocks” problem in Younger–plaintiffs must hit the sweet spot between state enforcement being sufficiently imminent to warrant standing but before that state enforcement has begun. But First Choice might eliminate (or at least lessen) the Goldilocks problem. First Choice‘s essential point is that the investigative subpoena through which the state initiates its enforcement efforts creates (or at least can create) a sufficient First Amendment injury to create standing in federal court. The target of the investigation need not await enforcement of the subpoena to become imminent to go to federal court, at which point Younger looms.
New Georgia received subpoenas in 2019. It waited three years to bring the § 1983 action. Pre-First Choice, it may have believed it lacked standing until the state finished its preliminary investigation. Instead, it litigated in the state agency, seeking to quash the subpoenas . Under First Choice, however, perhaps it could have challenged the subpoenas (and the investigation of which they were part) in federal court, rather than waiting until state post-investigation proceedings loomed.
First Choice might differ from New Georgia as to the nature of the subpoenas and information sought. New Jersey sought information about First Choice donors; the First Amendment protects organizations from having to disclose members, such that the subpoena itself causes the injury. Georgia sought New Georgia’s bank records, campaign materials, and invoices, attempting to identify undisclosed election spending; the First Amendment does not necessarily protect that information such that the subpoena itself does not cause the injury. Instead, the First Amendment violation in New Georgia arises from the attempted enforcement of invalid state campaign-finance laws; that occurs further down the line.
I wanted to ask the student arguing New Georgia about this change. Unfortunately the Court issued the decision after classes had ended and we did not spend sufficient time on standing for it to be a fair question.
Orin Kerr disagrees with my post about James Percival’s talk at UCLA.
As to whether my description reflects actual events, I based my comments on the version of events in David’s post. He discusses what he witnessed, which looked very different than what video clips purported to show. Blame Dan Kahan.
As to my broader argument, I am looking for some line or metric to define the competing rights. I have not figured it out (otherwise I would have written the article already).
At Orin’s extreme, an audience member cannot hijack the event–in terms of topic, volume, or time–such that the on-stage speaker cannot be heard. At the other end, I do not believe the answer is as simple as “invited speaker says whatever he wants; critics ask hard questions if the speaker deigns to allow it and to answer or engage, otherwise shut up and listen politely.” Somewhere in the middle–again, I have not figured out where–lies a line around which we can define a form of speech/more-speech interaction in which both a speaker and a heckling audience each engages in competing protected free-speech activity.
David offers a nice way to frame the free-speech question: Does an invited speaker (especially a powerful government official) “deserve[] an entirely boo-free, cackle-free, and laugh-free hour”? Does free speech entitle every invited speaker to “an entirely boo-free, cackle-free, and laugh-free hour,” such that those who boo, cackle, and laugh undermine that speaker’s rights and general principles of free expression? Or is booing, cackling, and laughing–in some amount and within some limits–itself protected expression, the “more speech” that Brandeis urged.
In order, my answers are “no,” “no,” and “yes,” if qualified by context and facts.
Update I: One unresolved issue a reader flagged for me: The extent to which a university can impose rules on reserved spaces and what, if any, limits the First Amendment imposes on those rules. That is, whether a university could require an “entirely boo-free, cackle-free, and laugh-free hour” for any speaker1 or whether the First Amendment ensures some rights for audience members and thus limits those permissible rules. Again, I have not worked this out. For the moment, I reject the simplistic reaction–these audience members acted as censors carrying out a heckler’s veto in disregard of free-speech commitments.
Update II: Eric Segall on Judge Ho’s remarks at a panel responding to the UCLA events, which apparently reached peak Judge-Ho-itude. Eric does not share my First Amendment commitments, but recognizes:
Please remember, Mr. Percival said what he wanted to say, albeit with background noise that was likely annoying. What exactly does Judge Ho want UCLA to do? Punish the students who did not remain totally silent during the event? How should those with the power to punish distinguish between normal background muttering allowed at all events from a true heckler’s veto? Those lines are difficult to draw for the best-intentioned administrators.
This seems to support my basic point: Some realm of protected negative audience reaction exists in the free-speech space.
David Marcus (UCLA) has a guest-post at Dorf on Law unpacking the recent UCLA Fed Soc event with DHS General Counsel James Percival. David emphasizes three points. First, the bait-and-switch: Event organizers advertised the event as including a Q&A in which critics could ask challenging questions (which Fed Soc had used to justify inviting an objectionable speaker), then announced at the event that only pre-submitted/pre-screened questions would be allowed. Second, the idea of civility as a norm (rather than an enforceable regulation) and as a two-way street. Third, the problem of the right-wing propaganda machine producing misleading clips of the event and turning it into another supposed attempt to silence conservative speakers. Read the post calling bullshit on all three of those things.
The UCLA incident and David’s coverage connect with issues I have written about and need to turn into an article. It is another example of what Ken (Popehat) White calls the problem of the “preferred first speaker,” in which government and news coverage treat counter-speakers as censors rather than individuals engaging in competing, equally protected free speech activities. It demonstrates the disingenuousness of cries for “more speech through tough questioning” as a response to heinous speakers; sponsors of these events treat that vehicle as a privilege rather than a competing right, available only if the speaker and/or sponsor deigns to allow tough questions and to engage honestly with them.1 And it demonstrates the trap of civility, which rendersillegitimate the remaining mechanism for more speech–protest within the event, through signs, reactions, etc.
With tough questions and engagement off the table, some students resorted to laughing, booing, and interjecting at points, although never (according to David) to the point of Percival being unable to speak or audience members being unable to hear what he said. It created a noisier, more challenging environment in which the speaker and the critic were able to express themselves and to make their views know. Rather than deride that as incivility worthy of university punishment and a violation of free speech principles, this should be understood as one legitimate form of debate and free-speech activity–something more like Prime Minister Question Time than a Rotary Club debate. We can question whether this is the normatively best or ideal form of public discourse. But we should not treat it as not being a form of public discourse or as being censorship rather than a different, more racuous form of First Amendment activity. David Schraub and Jeremy Waldron have explored these ideas (Waldron more supportively than Schraub), including the idea that heckling a speaker to knock that speaker off his rhythm is itself a legitimate form of more speech and a legitimate aspect of debate.
Duncan Hosie (Fellow at Stanford) makes some interesting points in The Atlantic about Callais‘s future consequences and what it means for future voting legislation
Two questions for me:
1) Is Callais a constitutional decision or a statutory decision. On one hand, the Court focused on the proper interpretation of the VRA. On the other hand, the proper interpretation was driven by constitutional concerns about the scope of § 2 of the Fifteenth Amendment, which empowers Congress to prohibit only intentional discrimination in voting and nothing too far beyond. The Court’s holding appears to be that the Louisiana map violated the Fourteenth Amendment because the state did not have a compelling interest in using this map because the VRA did not require or even permit it. Justice Alito took that position in his pissy response to Justice Jackson about rushing the mandate. This question–is this a constitutional or statutory decision–relates to an article I want to begin this summer.
2) Hosie’s piece argues that the § 2 discussion an applying City of Boerne congruence-and-proportionality to the Fifteenth Amendment gives Callais its greatest future force. Going forward, Congress cannot read the Fifteenth Amendment to prohibit something other than blatantly intentional race discrimination and it cannot enact an amended VRA that less closely hews to that constitutional meaning.
Niko Bowie agrees with the premise but offers a “friendly amendment“: “Congress does not need this majority’s approval to check the Court’s power and respond anyway.”
That friendly amendment reflects that we live under a regime of judicial departmentalism rather than judicial supremacy, despite the Court’s rhetoric. A Democratic Congress and President could enact and attempt to enforce a new VRA precluding disparate impact. It would not violate Callais or any existing judgment; it would not be grounds for a good-faith argument about Congress or the President “ignoring” or “disregarding” the Court. Not that the Justices and Republicans will not make those arguments; just that they should not be taken seriously.
Of course, the lower courts and eventually SCOTUS will declare that new law invalid and enjoin its enforcement–that is the “judicial” in judicial departmentalism. And Congress can go back and try again. I think we would better off, at least rhetorically, if we accepted the reality of this process, rather than speaking in inaccurate judicial-supremacy terms. And perhaps these is a benefit to forcing the Court to expend political capital in repeatedly declaring invalid broadly popular laws. A combination of popular pressure (and/or eventual change of personnel) perhaps prompts the Court to back off and alter its constitutional approach.
