So much free speech restriction in the place that purports to be about the First Amendment.
• Judge Walker (N.D. Fla.) declared invalid Gov. DeSantis’ order designating the Council on American-Islamic Relations (CAIR) and its Florida chapter as a terrorist organization. The order violated NRA v. Vullo and Bantam Books by imposing/threatening legal sanctions on speakers who engaged with CAIR.
In an otherwise-correct opinion, Walker found the need to drop this footnote:
The October 7, 2023, terror attacks in Israel were horrific. Full stop. Hamas is a wicked organization. Full stop. Antisemitism is abhorrent and has resulted in the greatest atrocities in human history. Full stop. But this case does not turn on these indisputable facts. In this case, this Court must answer only the narrow question of whether the Governor’s executive order violates the First Amendment.
The felt need among politicians and elected officials to criticize and disavow the content of offensive speech before explaining why it enjoys constitutional protection is unfortunate. It places the First Amendment into a defensive crouch–“unfortunately, this is protected, although I hate it and kind of wish it were not.” But the stance is somewhat understandable, lest political opponents attempt to demagogue them for constitutional principles (see Papa Bush in 1988 and Aaron Sorkin’s response). But federal judges have life tenure so they can espouse, defend, and apply the principal, without having to defend against censors and demagogues. It does not matter to the law that Judge Walker dislikes Hamas, October 7, and antisemitism and it plays no role in a judicial opinion. It only matters that Judge Walker understands the protection that those retain.
• The Florida legislature has responded with a bill (passed the Senate, pending-but-certain-to-pass the House) giving the Governor the power to make that designation, apparently hoping to target student groups and organizations. I do not see how this responds to Walker’s opinion or how the law fares any better. The case did not turn on the unilateral nature of DeSantis’ action; it turned on jawboning violating the First Amendment. The legislature cannot authorize the governor to engage in the same First Amendment-violative conduct.
• A group chat that included three FIU students–one of whom serves as secretary of the Miami-Dade County GOP–featured the sort of racist, antisemitic, and generally hateful rhetoric. A local news outlet published screenshots; the story has spread to the Miami Herald and The New York Times. And within FIU, the”hate speech is not free speech” and “offensive speech to the world is harassment” contingents are out in force. I have received numerous emails from current and former students calling on the law school to investigate and sanction the students (and I imagine other faculty and administrators have received more than I have). FIU’s president issued a statement denouncing the statements in the chat and announcing that the students are under criminal and civil rights investigations (although–given that the speech occurred off-campus and, at least based on news reports, contained nothing within sniffing distance of threats, incitement, or harassment–I cannot imagine for what).
Admittedly, I would be more confident the students prevail on this if the Eleventh Circuit had not, for the moment, allowed UF to throw a student to the wolves over similar online speech. I think what happened at FIU was even further off campus than what happened at UF. But it is less certain than it should be given the substance of the speech.