Author: import

I am quoted in a Miami Herald article (may be paywalled) on the wave of actual and threatened firings of people over online comments about Charlie Kirk. The First Amendment ignorance and stupidity over this burns. And there is so much that it is impossible to keep up.

So let me try a Statement of Random First Amendment principles:

• There is no hate speech exception to the First Amendment. Conservatives–including our Florida-Woman Attorney General--who say “There’s free speech and then there’s hate speech”–sound as stupid as the liberals who were saying it fives years ago. Kirk himself said ugly, gross, and evil speech must be protected at least where his own ugly, gross, and evil speech was concerned.

• “Targeting people with hate speech” does not make it more coherent as First Amendment principle. “Targeting” might suggest hate speech that threatens or harasses; that may be unprotected because it is a threat or harassment, not because it is hateful. But you cannot threaten a dead person (anymore than you can defame a dead person, Sen. Lee). And stories I have seen have not involved threats or harassment of other people (I think a few people have said stuff about Kirk’s widow). So Bondi seems to mean hate speech about one specific person (“Charlie Kirk was a bad person”); however hateful one may find it, this is protected opinion on a matter of public concern.

• Incitement is extremely narrow. It basically means the metaphorical equivalent of standing in front of a pitchfork-wielding crowd outside a poorly guarded jail and shouting “let’s get that guy in there right now.” “Celebrating” Kirk’s death–praising the shooter, saying Kirk had it coming, even stating (in the abstract) that future similar acts against unnamed others would be a good thing–does not come close to that line.

• True threats are extremely narrow. Saying anything about Kirk and his death–even celebrating it–does not “threaten” unnamed conservatives or Republicans.

• “Civic discourse” and “debate” do not exhaust the limits of the First Amendment. In fact, I question whether they occupy the core. One man’s vulgarity is another man’s lyric. Debate on public issues should be uninhibited, robust, and wide-open, and may well include vehement, caustic, and sometimes unpleasantly sharp attacks. The First Amendment protects Donald Trump’s online rantings, which are neither civil nor debate; it must do the same for the online statements of a random South Florida school teacher.

This is actually an interesting sleight-of-hand from the right. They pushed civil discourse and debate to protect Kirk’s “debate me” schtick and to stop campus hecklers from protesting objectionable right-wing speakers; they made listening to offensive speakers and perhaps engaging them into the First Amendment’s core. They now are using that core to restrict speech they regard as insufficiently civil and willing to debate, speech that simply shouts mean things about people into the ether.

The Herald story quotes my congressperson calling out a local government member for a post (content not discussed–see below) about Kirk; she says the local official did not understand the First Amendment and the country’s founding principles. How does someone who spoke on a matter of public concern not understand (and even act on First Amendment principles? If the central First Amendment principle is “listen to and debate Charlie Kirk” such that Kirk epitomized the First Amendment; therefore anything opposing or criticizing Kirk and the stuff he did opposes it. As I said, sleight-of-hand.

• We do not know the full scope of Masterpiece and 303 Creative. But questions of “is a copy/print shop an expressive business that could refuse to make fliers” and “whose speech is the flier the shop is asked to print” arose in discussions of where the rules in those cases must lead. But we never get to that question with respect to a copy shop and fliers about Kirk. At least federal law does not prohibit ideological or political discrimination in places of public accommodation, regardless of the expressive or non-expressive nature of the business. In other words, the federal government cannot punish the person for refusing to make the fliers not because he enjoys a First Amendment right to refuse (he might–we never reach the issue) but because refusing violates no federal law.

• I told the Herald that I expect a lot of litigation and that I expect plaintiffs to win many of these cases. The article juxtaposes my statement with comments from Clay Calvert (formerly at UF), who suggested the government may be be able to show the sort of interference with effective government that Pickering requires. It frames us as disagreeing, but I am not sure we do.

In discussing this in the abstract (as opposed to specific cases), the question becomes what we see as the paradigm. It could be “I’m glad Kirk is dead because he deserved to die;” it could be “Kirk was a bad guy who believed bad things;” or it could be “here are some actual things Kirk said and believed and with which I disagree.” I see numbers two or three as the paradigms–and plaintiffs should win most such cases. They speak as citizens, offering opinions on matters of public concern based on true things in the public record. If that sufficiently disrupts the workplace, so would criticizing any national political official. As for number one, I guess it depends on whether Rankin v. McPherson (sheriff’s employee says, following attempted assassination of Ronald Reagan, “if they go for him again, I hope they get him”) remains good law and how much force it retains.

• The media has failed in covering the Kirk assassination by not quoting or describing Kirk’s actual views or statements, failing back on vague modifiers. The media continues to fail in covering this piece of the fallout by not quoting or describing the actual things that targeted people have said about Kirk, falling back on vague modifiers such as “celebrating.” If you want to know whether the government will get away with firing someone, you must say what the person actually said.

• The reporter did not include one telling part of our exchange. She asked whether I was surprised at the wave of censorship in South Florida, given that Florida is a libertarian place. Of course not, because most Republican and right-wing officials and commentators (here and elsewhere) rallied behind “free speech principles” in the name of protecting speech and speakers they liked, with no intention of adhering to those principles with respect to speakers they do not like. They were and remain “free speech opportunists.” (To be fair, most people are). Kirk’s murder provides the first large-scale opportunity they have had to really crack down on speakers and speech thewy do not like. Ironically, they purport to do so in the name of free speech (see above) while honoring a person who himself insisted he was not a free-speech opportunist.

I expect to add to this list because more of this is coming weeks and months.

Posted by Howard Wasserman on September 16, 2025 at 07:28 AM

More than 20 years ago, my friend Dan Markel invited me to guest-blog here at Prawfs … and I guess I hung around. Looking back through the archives, I see that my early posts were about Cardinal Newman’s Idea of a University, John McGreevy’s Catholicism and American Freedom, the late Bill Stuntz’s criminal-procedure scholarship, and Kazuo Ishiguro. It’s a little sobering to see that my interests have not evolved all that much!

I am very grateful to the Prawfs community, and to all those who’ve read and commented over the years. Most important, Dan’s memory continues to be a blessing for me, as I hope it is for you.

Just two final things: First, I think the theme I harped on most often in my posts was what then-Dean John Garvey called “institutional pluralism” in higher education. (My friend and co-blogger Paul Horwitz, of course, wrote a great book on this and adjacent subjects.) I don’t think that Prawfs is going to disappear, even when Typepad does, but I recommend downloading and reading the linked-to Garvey essay, especially in light of the A.B.A.’s recent threats to micro-manage even more, and homogenize even more, American law schools.

Second, here’s a quote I really like, and that I’ve stuck on the front pages of my syllabi nearly every semester, from C.S. Lewis’s essay, The Weight of Glory:

There are no ordinary people.

You have never talked to a mere mortal.

Nations, cultures, arts, civilization—these are mortal, and their life is to ours as the life of a gnat.

But it is immortals whom we joke with, work with, marry, snub, and exploit—immortal horrors or everlasting splendors.

This does not mean that we are to be perpetually solemn.

We must play.

But our merriment must be of that kind (and it is, in fact, the merriest kind) which exists between people who have, from the outset, taken each other seriously—no flippancy, no superiority, no presumption.

And our charity must be real and costly love, with deep feeling for the sins in spite of which we love the sinner—no mere tolerance or indulgence which parodies love as flippancy parodies merriment.

Next to the Blessed Sacrament itself, your neighbor is the holiest object presented to your senses.

I look forward to reading Prawfs for many more years. And, please send me your reprints!

Posted by Rick Garnett on September 16, 2025 at 05:56 AM

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Thank you for message. I’ve enjoyed following this blog for many years, ever since I took Professor Wasserman’s class in law school. I hope to see it continue going forward, as I routinely find the posts and discussions very thought-provoking, even if it is not often related to my practice area. Blogs like this are a nice blend between the hot-take space of most social media and more stilted, long-form and less timely law review articles.

Regardless of what happens, thank you all for your work, your continued scholarship and for being willing to provide your thoughts for everyone to see.

Posted by: Joe G | Sep 16, 2025 7:01:35 AM

My new essay for The Hill shows that the Supreme Court’s conservative justices have no regard for the actual facts of the cases before them. Here is the gist:

Rejecting King Solomon’s wisdom, the Supreme Court bows to ideology

by Steven Lubet, opinion contributor – 09/15/25

There is a profound failing in the approach to law of the Supreme Court’s conservative supermajority. They do not much care about the facts of the cases before them, choosing instead to base their decisions on pure ideology.

The predictable results include the endorsement of religious coercion in public schools and ethnic profiling by federal agents.

[Gorsuch and Kavanaugh] have glossed over, distorted and mischaracterized the facts found by trial judges, to justify their preferred outcomes.

No system of justice can survive without respect for accurate fact-finding. In today’s America, it is the job of trial courts.

Gorsuch and Kavanaugh had full access to the factual records in the Kennedy [school prayer] and Vasquez Perdomo [ICE seizures] cases, developed at length by trial judges, which they did not let get in the way of their favored results.

It does not take Solomonic wisdom to realize that something very wrong is happening at the Supreme Court.

You can read the full piece, with examples of recent factual misrepresentations, at The Hill.

Posted by Steve Lubet on September 16, 2025 at 03:50 AM

As Prawfs readers know, the Typepad platform is shutting down. As it happens, I am the co-founder of a different blog, Mirror of Justice, that is also on that platform. I decided, after more than 20 years, to shut that blog down, although I am hoping that the Typepad minions will figure out a way to help me save the content in searchable and readable form. In any event, if you are interested, here is the final post. Tempus fugit and all that . . .

Posted by Rick Garnett on September 15, 2025 at 10:38 AM

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In one short article of mine, “Christian Witness, Moral Anthropology, and the Death Penalty,” I explore the implications for the death penalty of a Catholic anthropology, one that emphasizes our “creaturehood” more than, say, our “autonomy.” And, my friend Steve Smith (University of San Diego) has an paper out that discusses what a “person as believer” anthropology might mean for our freedom-of-religion jurisprudence that fleshes out excellent article. I wonder if any of my colleagues have any thoughts on these matters?

Posted by: Kishore Raju Satha | Sep 16, 2025 6:46:22 AM

Right-wing calls for “civility” focus entirely on tone and not on content. They* should be able to say the most hateful, obnoxious, offensive things, free from criticism, opporobrium, or protest; everyone must sit listen. In fact, it is uncivil to accurately describe or repeat–even without comment-what they say. Their only obligation is that they say it with a smile and a nice tone.

[*] Although not lefties, liberals, and university professors.

In other words:

Civil: (Said in a calm tone on a stage by a well-dressed, well-spoken white man): Trans people should be stoned. Homeless people should be given lethal injections. The Civil Rights Act of 1964–and presumably racial and gender equality in the workplace, education and public accommodations–was a mistake. Joe Biden should be executed for the harm he has done to America. Democrats are vermin. We must stop Black and Brown immigrants from replacing the white people who make America great. We are keeping a list of professors who say things we do not like and we will use that list to harass them and urge universities to fire them.

Uncivil: Fuck you and your bigoted ideas. I do not want to sit and listen to what you have to say. Your policies, if implemented, suck and would create a bad society. So fuck them.

Kevin Kruse argues that this echoes the birth of White Citizens Councils following Brown, which “likewise hid ugly actions behind a mask of civility.” Here is the close of the piece, which captures the history and the present moment:

Their rule of thumb seems to be that, as long as the tone is cheerful, there’s no need to examine the ugliness of the words. As long as the speaker is smiling, there’s no need to hear what they say.

But a true reckoning with the life and legacy of any political activist – no matter where they stood on the spectrum – has to address the substance of their words and deeds, and not just their style. Focus on exactly what they said, not how nicely they said it.

The Citizens Councils were not as bloodthirsty as the Klan, but they used economic pressure to harass people who said the wrong things and often to get them blacklisted or even fired. They were more polite about it, of course, but that’s a distinction that didn’t matter to their victims.

And it shouldn’t matter to us. Not then, not now.

Posted by Howard Wasserman on September 14, 2025 at 06:02 PM

Great thread from UNC history prof Joe Stieb on “prove me wrong” debate contrasted with what actually occurs (and should occur) in a classroom and a university. Speakers such as Kirk are fine; they are not part of the core university mission.

Stieb articles better something I have long thought about. My classroom has never been a forum for debating all ideas or engaging uncomfortable truths or however people describe it. We discuss what the law is and why; we discuss the advantages and disadvantages of what the law is and its alternatives; we argue cases or hypos; and I guess there is some room to argue one’s preferred views. And I run the classroom in a way to draw out the relevant information, not to offer students a soapbox. As one colleague tells his students, for purposes of this classroom, I do not care what you think–I care about what the court says and why. A better understanding of the classroom purpose and dynamic–as Stieb describes–would clarify so much.

Posted by Howard Wasserman on September 13, 2025 at 03:43 PM

I just finished reading Akhil’s new book, which I would highly recommend. No doubt I am a little biased, as I was his student and am a regular listener of his podcast. Nevertheless, Born Equal is a page-turner with lots of nuggets that advances birth equality as a basic principle for constitutional interpretation.

Typically, I read Akhil’s books for the trees rather than for the forest. A book that goes through each provision of the Constitution (as his 2005 book did) must invariably focus on details. The same goes for his 1998 book on the Bill of Rights. He is terrific at uncovering new facts, highlighting forgotten people or issues, and doing case analysis. There are sometimes broader themes, but before this book the most significant was that Reconstruction glossed the first ten amendments. You now see some Justices endorsing this claim, though the Court has so far not used that to do anything.

Birth equality is a broader idea. Akhil’s prior books nodded in that direction. But as someone once told me, a scholar’s work looks like a well-planned arc only in hindsight. We don’t have master plans that take forty years to spool out. Instead, reflection and research turns tentative thoughts into commitments and fine points into grand ones. That’s what’s going on here. I would say that the biggest divide in Fourteenth Amendment scholarship is between the tree and forest scholars. This is Akhil’s first forest book. And it’s a towering forest.

One cautionary note: The subtitle says that Born Equal is about the Constitution from 1840-1920. That’s only sort of true. There is a fair amount of pre-1840 background, and most of the book is about 1840-1870. 1870-1915 gets only one chapter. The repudiation of birth equality, what Michael McConnell once called “The Jim Crow Republic,” should probably get more attention. But you can only put so much in one book.

Posted by Gerard Magliocca on September 13, 2025 at 01:25 PM

Now that it appears Charlie Kirk’s alleged assassin was steeped in right-wing gamer culture, the Republican/conservative ecosystem seems to be coalescing around attacking the free-speech rights of those who did not respond or continue not to respond in a sufficiently mournful and respectful way. That is, everyone must speak of Kirk as a great man and never think about or mention the things he believed and said or the incivility with which he often said them. Those who fail to do so will be fired, deported, and perhaps worse.

Don Moynihan (Michigan) provides a comprehensive discussion. Updating what I wrote yesterday, Pete Hegseth announced that they are coming after service members. Virginia Governor Glenn Youngkin sent a letter threatening all public employees with reprisal for social-media posts. NBC News reports at least a dozen instances of educators (college and secondary) disciplined for their posts about Kirk. And I forgot to mention MSNBC’s Matt Dowd and a sports reporter for a Phoenix radio station.

Bari Weiss’s Free Press offers the most ridiculous take–universities are to blame for political violence, including this one, because they act like madrassas radicalizing students and denying tenure and suppressing conservative ideas. Transportation Secretary Sean Duffy and other right-wing commentators got the memo and have begun to push this theme; they seek to justify and increase ongoing attacks on universities, faculty, and students. Moynihan shows why this is absurd. Never mind that Robinson spent one semester at Utah State and more time at a technical college; even if universities indoctrinated–we don’t–he most certainly did not receive any in that short a time at those schools. Also, every indication so far is that whatever political ideas he held and acted on were not ones he would have gotten in a semester of college. Charlie Kirk’s life’s work belies the claim that universities do not allow conservative speech, including obnoxious speech– they allowed him and the organization he founded to exist and thrive on campus. Moynihan’s piece is worth a read.

Appearing on PBS Friday, David Brooks said he had received texts and emails from people saying Kirk’s murder is the right’s George Floyd. If true, this exposes the free-speech opportunism that supposedly defines the free-speech warriors on the right. This is a fun-house mirror of what happened in 2020, with the right doing all the things that in 2020 they ridiculed and decried as horrific intrusions on free speech: Universities announcing positions on non-campus public controversies; universities offering emotional-support services and programs for students affected by distant controversies (FIU had one with the chaplain for the university policy department; people fired or sanctioned (cancel culture!!) for criticizing the victim (recall the many stories and social-media posts insisting that Floyd was a bad guy responsible for his own death).

By all accounts, the shooter was immersed in a subset of right-wing culture. But the right is still finding ways to blame and attack the left for it, without any grounding in fact or reality. It is kind of impressive, if you think about it.

Posted by Howard Wasserman on September 13, 2025 at 12:01 PM

The Golden Gate Jubilee Quartet was founded in 1934 by four students at Booker T. Washington High School in Norfolk, VA. With changes in personnel, and having dropped “Jubilee” at some point, the group is still performing today. They were extremely popular in the ’40s and ’50s, with many crossover performances. I first became aware of the group because they backed Leadbelly’s only recording of “Midnight Special,” which was evidently some producer’s idea of a good match. That clip is at the bottom of the post, so you can decide for yourselves if it works; I don’t think it does, despite the high talent levels, but you can decide for yourself at The Faculty Lounge.

Note: I am not sure how much longer there will be Saturday Music Posts. Typepad, the blogging platform for The Faculty Lounge and Prawfs, is closing down at the end of the month. TFL will hopefully be migrating to WordPress, but the process may not be able to transfer videos, including the 24 posts, with around 200 videos, I have queued up for the next six months. It takes a couple of hours to create each post, so I am not looking forward to recreating over 50 hours of work. Still working on transferring the queued posts, and will let readers know whether it is successful.

Posted by Steve Lubet on September 13, 2025 at 06:19 AM

I posted my thoughts on the Charlie Kirk murder yesterday, but a Typepad glitch (the platform seems to be going out in a blaze of malfunctioning glory) caused it to be deleted. So trying again–with a slightly different focus–with another 12 hours of news.

1) Charlie Kirk should not have been murdered and whoever did it (they seem to have arrested the right guy, after two prior mistakes) should be tried and, if convicted, punished.

2) Kirk was not a free-speech warrior and the reporting painting him as such shows the extent to which language has lost all meaning. Kirk was never punished or sanctioned by government for his speech. And he never–as far as I know–took a stand to oppose government efforts to censor or target speech with which he disagreed.

Instead, Kirk was a free-speech warrior in the unfortunate new sense of a person who says whatever he wants, demands that those who disagree “debate me,” and derides as opposing freedom of speech anyone who protests him, criticizes him, or refuses to engage or associate with him because he believed and uttered vile crap. Free speech is performative debates. Censorship is all speech outside of that performative debate that pushed back against or called out the ugly stuff he said, including calling for or celebrating (in a constitutionally protected way) violence (January 6) and other actions against disfavored groups. Ezra Klein mimics this new meaning in saying Kirk “did politics the right way.”A person fights for free speech when he says outrageous things–even supporting violence–but does not actually engage in that violence.

3) Media coverage of Kirk’s death–bowlderized, hagiographic obits that never mention the substance of anything he ever said or believed or wanted the government to achieve–shows why we are in the current hole. The inability to separate “he should not have been killed” from the truth of “this is what this politically influential figured believed and stood for” reflects the death of meaningful journalism. Note that the media coalesced around this idea–left-wing censor killing a fearless speaker and critic—before we knew anything. This could have gone very badly, had someone used these reports as a pretext for violence.

4) The Republican/conservative response to the murder of this supposed free-speech warrior is . . . I would say ironic, but that assumes these people act in good faith. A State Department official announced that they would be looking for non-citizens who wrote stuff online that was insufficiently respectful of Kirk and his death. Rep. Clay Higgins promised legislation, investigations, and jawboning of tech companies to ban those who said bad stuff about Kirk or good stuff about his murder.* Sen. Mike Lee wants Kirk’s family to sue Stephen King for defamation when King posted that Kirk wanted to stone trans people.

[*] I am old enough to remember when Republicans believed government asking social-media sites to look at potentially harmful speech in the middle of public-health crisis was the greatest threat to free speech. Again, ironic, if I believed Higgins acted in good faith.

Closer to my home, the Commissioner of the Florida Board of Education sent a memo to all school superintendents promised an investigation of every educator who posted “despicable comments” about Kirk’s murder.

5) I have seen weird responses within the Jewish community (Kirk supported Netanyahu and the current war in Gaza), insisting that it was ok that Kirk targeted particular groups and that we must tolerate even speech that we hate. These are the same people complaining about campus protests and encampments.

6) We are just getting a sense of the killer’s politics (although not his motivations for this act). He seems to have beenb bound up in the online gaming world, which has some antisemitic, anti-LGBTQ+ stuff baked into its nihilism. He is not some lefty, trans activist.

That either changes the narrative or causes the story to go away, as Republicans lose the ability to use it to demonize and attack people they hate. Trump turned a question about Kirk into a ramble about the White House ballroom, indicating he is done with this. Nancy Mace has gone from insisting that a “tranny” did this to praying that a lost soul such as the suspect find Christ. If the shooter was not a lefty seeking to silence a free-speech warrior because of his ideas, it becomes harder to use this (as FIU’s president did) as an excuse to demand “civility” and “respectful discourse” and thus to silence dissenting and protesting voices who call out evil speech as evil.

7) Charlie Kirk should not have been murdered and whoever did it (they seem to have arrested the right guy, after two prior mistakes) should be tried and, if convicted, punished.

Posted by Howard Wasserman on September 12, 2025 at 01:50 PM

Criminal adultery laws remain on the books in Maryland and police and prosecutors occasionally charge under them. The article mentions that legislatures must repeal laws to eliminate them from the books; it does not mention that any charges or conviction could not withstand a constitutional challenge.

The article mentions one side effect of this laws, illustrating how zombie laws may not be harmless: Litigants in divorce proceedings assert Fifth Amendment privilege around questions of adultery, even though a constitutionally valid prosecution cannot happen; the statute on the books is enough.

Posted by Howard Wasserman on September 12, 2025 at 11:41 AM

I wanted to note G. Edward White’s new biography on Justice Jackson, published by Oxford University Press. The book is especially strong on Jackson’s life before he entered public service and his time at Nuremberg. This is the first biography of the Justice since the 1950s and is well worth reading.

Posted by Gerard Magliocca on September 12, 2025 at 09:59 AM